Kogarah Town Centre Pty Limited v Valuer General (No 2) [2014] NSWLEC 1107

Land and Environment Court New South Wales

Medium Neutral Citation: Kogarah Town Centre Pty Limited v Valuer General (No 2) [2014] NSWLEC 1107 Hearing dates: 22 May and 10 June 2014 Decision date: 13 June 2014 Jurisdiction: Class 1 Before: Moore SC and Brown C Decision: Rate per square metre adopted in para (98) of the decision of 15 May 2014 is confirmed. Catchwords: VALUATION OF LAND; calculation of statutory valuation Legislation Cited: Valuation of Land Act 1916 Cases Cited: Kogarah Town Centre Pty Limited v Valuer General [2014] NSWLEC 1085 Category: Principal judgment Parties: Kogarah Town Centre Pty Limited (Applicant)

Valuer General (Respondent) Representation: Mr R White, barrister (Applicant) Mr T Hale SC Ms M Carpenter, barrister (Respondent) Gadens Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 31133 of 2012 31134 of 2012 31135 of 2012 31136 of 2012 31137 of 2012

Judgment 1COMMISSIONERS: In our judgment of 13 May 2014 in these matters (see Kogarah Town Centre Pty Limited v Valuer General [2014] NSWLEC 1085), at paras 133 through 138, we set out the orders that we considered were appropriate to flow from the conclusions that we had reached concerning the statutory valuations for the Kogarah Town Centre for the years 2007 through 2011 inclusive as at the base date of 1 July in each of those years. 2The background and factual bases for the proposed orders are set out in detail in that judgment. It is unnecessary, for the purposes of these short reasons, to set those matters out again. 3In para 127 to 129 of the earlier decision, because of the various somewhat complex steps that had needed to be undertaken to derive the various values, we gave the parties the opportunity to check our calculations before finalising the orders in the matter. We listed the matter for a further short hearing, should the parties not have confirmed the arithmetical accuracy of the calculations underpinning the terms of the proposed orders. 4As is not unusual in valuation appeals in the Court (whether statutory valuation appeals such as this or the valuation elements of resumption compensation disputes), we requested and were provided with a Microsoft Excel spreadsheet that embodied the calculations used by the valuers for their comparable sales analyses undertaken by them. Such a spreadsheet included the various adjustment factors adopted by each of the valuers, some of which were agreed between them and others of which were in dispute between them. 5As is also not unusual, the spreadsheet was requested to be supplied electronically so that, if we were to reach a different conclusion to that adopted by both of the valuers with respect to one or more of the adjustment factors (as was the case in these proceedings) we would be able to enter such differing conclusion in the electronic spreadsheet to see the now appropriate resulting calculation. 6At the resumed hearing on 22 May, two matters emerged. These were: (1)First, the parties agreed that we had not resolved one difference concerning an adjustment factor for usage where Mr Duguid, the applicant's valuer, and Mr Watt, the Valuer General's valuer, had adopted adjustments of 10% and 5% respectively; and (2)Second, of far greater complexity and requiring further hearings that will be dealt with in a third judgment in this matter, there emerged a difference between the parties about the statutory requirements for apportionment of the value of the land into two separate Property Identification Descriptors as a consequence of the fact that the property (which comprises two separate allotments requiring to be given an aggregated value) straddles the boundary between the Kogarah and Rockdale Local Government Areas with the allotment boundaries not coinciding with the local government boundary. 7The first matter is capable of ready consideration and disposal whilst the second, to be the subject of a further hearing and decision, is more complex and may (although it is not certain at this stage) require us to venture into unchartered statutory interpretation territory. 8In the primary judgment, we accept that we did not resolve the overlooked dispute between the valuers as identified by the parties. This may have been as a result of the fact that multiple, differing, electronic versions of the spreadsheet were provided to us as the hearing unfolded. It is not, however, necessary to specify how the error has arisen with precision given the conclusion that we have reached as described below. 9In our primary consideration, we had set out a number of arithmetical bases that could potentially be utilised to derive an analysed value per square metre for the first of the allotments (known as Lot 1). The calculation of the resultant value for Lot 2 and the aggregated value of the two allotments was a simple mathematical process requiring only one (arithmetically uncontroversial but nonetheless contested) calculation factor to derive the value of the second allotment (Lot 2) and thus the aggregated value for the whole site - thus triggering the apportionment methodology contained in s 28 of the Valuation of Land Act 1916. 10Consideration of the derived, analysed values for the range of comparable sales led us to conclude, in a process set out in paras 84 through 98 of our primary judgment, that the appropriate derived value for Lot 1 was $650 per square metre. This rate was within the range of rates described in those paragraphs and was adopted by us as the appropriate point to settle upon within that range. 11At the second supplementary hearing, it was the agreed position of the parties that, if we were to prefer the position adopted by Mr Watt on the omitted difference between the valuers, there was no materially different result to be derived from the calculations and that the rate we had adopted of $650 per square metre did not need to be disturbed. If, on the other hand, we were to adopt the adjustment proposed by Mr Duguid, it would be necessary to revisit our calculations. 12In our primary judgment, in discussing the differences between the valuers, we set out our conclusion that, for reasons that do not require repeating, where there was a conflict between Mr Watt and Mr Duguid, we generally preferred the position adopted by Mr Watt (see para 122 of the decision). There is no fresh evidence in the proceedings and no leave has been sought by either party to adduce such evidence on this point. We see no reason to revisit the general conclusion set out in para 122 and therefore, as a consequence, given that preferring Mr Watt's position on the omitted matter does not require revisitation of our adopted analysed rate of $650 per square metre for Lot 1, we confirm that, notwithstanding the identified omission, we adhere to that adopted rate. Tim Moore Senior Commissioner Graham Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2014