Naburn Pty Ltd v Valuer General [2014] NSWLEC 1244

Land and Environment Court New South Wales

Medium Neutral Citation: Naburn Pty Ltd v Valuer General [2014] NSWLEC 1244 Hearing dates: 7 to 9 October 2014 Decision date: 27 November 2014 Jurisdiction: Class 3 Before: Moore SC Decision: See (189) Catchwords: VALUATION OF LAND: appropriateness of comparable sales; calculation of land improvements; whether land improvements add to value of comparable sale; appropriate adjustment factors for comparable sales Legislation Cited: Valuation of Land Act 1916 Pittwater Local Environmental Plan 1993 Cases Cited: Deaton v Pittwater Council [2007] NSWLEC 876 Deaton v Pittwater Council [2008] NSWLEC 1370 Maurici v Chief Commissioner of State Revenue [2003] HCA 8; (2003) 112 CLR 111; (2003) 195 ALR 236 and (2003) 77 ALJR 727 Stamford Property Services Pty Limited v Council of the City of Sydney [2014] NSWLEC 1206 Tenacity v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Naburn Pty Ltd (Applicant) Valuer General (Respondent) Representation: Mr A Gerard, barrister (Applicant) Mr N Waterson, barrister (Respondent) Howard Charles Lawyers (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 30340 and 30520 of 2013

Judgment

Introduction 1SENIOR COMMISSIONER: Ocean Road at Palm Beach runs generally north/south from Governor Phillip Park at the southern end of the peninsula connecting with Barrenjoey Headland to the southern end of the beach at a location known as Cabbage Tree Bay. Ocean Road can be regarded as being divided into three distinct sections. 2The first, at the northern end, is generally defined by having a steep escarpment rising from it to the west. It has a series of residential allotments along its western side with a number of them having houses constructed at the foot of the escarpment with the land behind them being largely unable to be used because of the steep slope. Directly across the road is a narrow strip of flat, grassed frontal dune and then the beach proper. This section of Ocean Road is heavily trafficked and comprises portion of the main access way to Palm Beach from suburbs to the south. It is also portion of the State Transit Authority bus route to Palm Beach. The southern end of this section is defined by the intersection with Palm Beach Road, a road running to the southwest. 3There is a slightly angled intersection between the northern and central sections of Ocean Road (although this is a continuation of Ocean Road proper). The central section runs from Palm Beach Road to Ocean Place. The local commercial centre for Palm Beach is located on the north-western corner of the intersection of Ocean Road and Ocean Place. Ocean Place is a one-way thoroughfare from west to east and is used as part of the terminating loop of the State Transit Authority buses. This section of Ocean Road is characterised, on its western side to the north of the commercial centre, by substantial residences located on allotments that are largely flat but which, in a number of instances, dip slightly from their road frontage but subsequently rise gently toward the west. On the eastern side of the road, there are a series of formalised visitor parking spaces with metered parking operated by Pittwater Council (the Council). In front of these parking spaces is a flat, grassed frontal dune area before the beach proper is reached. Commencing at approximately the midpoint of this section of Ocean Road, on the eastern side and extending some 50 m or so to the north, is located a substantial toilet block and changing room facility for visitors to the beach. This building, built in in art deco style, was listed (as at the two base dates) in Schedule 9 of the (now repealed) Pittwater Local Environmental Plan 1993 as an item of local heritage. 4The southern section of Ocean Road runs from Ocean Place to a cul-de-sac turning head at the southern end of the beach. This turning head is inclined slightly to the east of the line of the remainder of the road, following the shoreline at Cabbage Tree Bay. There are a small number of parking spaces on the south-eastern edge of the turning circle and the centre of the turning circle comprises a painted but unraised roundabout marking. There are two large Norfolk Island Pine trees at the turning circle - one on the beach side and the other to the immediate northwest of the turning circle. 5Along the western edge of the southern section of Ocean Road there are three distinct sectors of development. From Ocean Place southward are located a number of private club facilities comprising the Palm Beach Surf Lifesaving Club, the Pacific Club and the Cabbage Tree Club. After these facilities, there are several very large allotments with substantial residences located on them before the commencement of the cul-de-sac turning head. The topography of these allotments (residential and club occupied) is generally the same as in the central section of Ocean Road - although the rise to the west is a little more pronounced. 6At the commencement of the cul-de-sac turning head, at its northern end, there is a narrow Council reserve with, to the south of it, a number of allotments on the curve of the turning head proper and then extending a little to the south-east where these allotments are accessed either directly from the turning circle or from a shared driveway leading from the south-east quadrant of the turning circle. These allotments slope, in their original un-excavated landform, quite steeply to the southwest. These allotments comprise the third of the sectors in the southern element of Ocean Road.