Land and Environment Court New South Wales Medium Neutral Citation: Fowler v Valuer General [2015] NSWLEC 133 Hearing dates: 14 August 2015 Date of orders: 14 August 2015 Decision date: 14 August 2015 Jurisdiction: Class 3 Before: Craig J Decision: (1) Pursuant to s 38(2) of the Valuation of Land Act 1916 (NSW) the applicant is allowed to appeal after the 60 day period for making the appeal provided in s 38(1) of that Act. (2) The time for filing an appeal is extended to 26 June 2015 being the date on which the applicant's Class 3 appeal was filed, and being the application which should be treated as having instituted the appeal in these proceedings. (3) Grant leave for the parties to approach the Registrar today for the purpose of obtaining a date for a conciliation conference before a Commissioner of the Court pursuant to s 34 of the Land and Environment Court Act 1979 (NSW). Catchwords: PRACTICE AND PROCEDURE – application to extend time for commencement of appeal – s 38(2) Valuation of Land Act 1916 (NSW) – reasons for delay – no prejudice claimed – extension of time granted. Legislation Cited: Land and Environment Court Act 1979 (NSW) Valuation of Land Act 1916 (NSW) Cases Cited: Jassls Pty Ltd v Valuer General [2006] NSWLEC 59 Category: Procedural and other rulings Parties: Julian Fowler (Applicant) Valuer General (Respondent) Representation: Counsel: In person (Applicant) Mr R Ghanem, solicitor (Respondent) Solicitors: Unrepresented (Applicant) Crown Solicitors Office (Respondent) File Number(s): 30559 of 2015 EX TEMPORE Judgment 1. Julian Fowler appeals to this Court pursuant to s 37 of the Valuation of Land Act 1916 (NSW) (the Valuation Act) from the determination by the Valuer General of Mr Fowler's objection to the land value determined for the land known as 1 Silcock Street, Pottery Estate, Lithgow (the Property). The Notice of the Valuer General's determination of Mr Fowler's objection was given to him on 9 December 2014. Mr Fowler's appeal to this Court was not filed until 26 June 2015. 2. Under the provisions of s 38 of the Valuation Act, an appeal must be made "not later than 60 days" after the date of issue of the notice of the Valuer General's determination of the objection. Applying that provision to the present circumstances, Mr Fowler's appeal was required to have been commenced on or before 7 February 2015. As his appeal was not commenced by that date, Mr Fowler seeks to have the Court exercise its discretion to extend time for the commencement of his appeal conformably with s 38(2) of the Valuation Act. His application in this regard is neither supported nor opposed by the Valuer General. 3. The discretion available to the Court under s 38(2) is one to be exercised in a principled manner. The principles relevant to be considered when called upon to undertake this exercise have been the subject of a number of judgments in this Court, in particular reflected in the decision of the Chief Judge in Jassls Pty Ltd v Valuer General [2006] NSWLEC 59. Application of those principles requires that a number of factors be considered when exercising the discretion available to the Court. Those factors include a consideration of the length of delay, the reasons for delay, any prejudice occasioned by that delay and some assessment of the case sought to be made by an applicant to ensure that if time is extended, there is an arguable case that may be advanced. 4. In the present case, the length of delay is approximately four months calculated from the expiry of the time by which Mr Fowler's appeal was required to be made. While this does not reflect an inordinate delay, it is not a period that is insignificant. 5. The evidence before me in the form of documents and summaries prepared by Mr Fowler, who is self-represented, indicates that he has been corresponding with the Valuer General concerning the land value determination of the Property for some considerable time. That correspondence took place in the period leading up to the determination of his objection. Importantly, it has continued since. 6. The particular bone of contention between Mr Fowler and the Valuer General is the existence of what is said to be an unregistered easement for a pipeline that passes through the Property. A pipeline has been installed in the location of that unregistered easement and is contended by Mr Fowler to constitute an impediment to any realistic development of the Property. It is the existence of that pipeline that, according to Mr Fowler, requires a reduction in the land value of his land to a figure below that for which the Valuer General contends. 7. The substance of claim and counter claim reflected in the correspondence is not a matter with which I am currently concerned. However, its importance lies in the matters that I am required to address for the purpose of determining Mr Fowler's application under s 38(2). 8. The first of those is the explanation that it affords for the delay in commencing the present appeal. As I have said, the delay necessitating the exercise of discretion is a delay of approximately four months. During that time, it is apparent there was continuing correspondence between Mr Fowler and the Valuer General notwithstanding that a determination of Mr Fowler's objection had been made in December 2014. 9. By letter dated 27 March 2015, the Valuer General provided Mr Fowler with a detailed review that he had conducted of the land value determination of the Property. That determination had been made by a contract valuer engaged by the Valuer General. In that letter, the Valuer General stated his disagreement with an aspect of the determination made by the contract valuer directed to that pipeline. Notwithstanding that disagreement, the Valuer General indicated that the contract valuer's ultimate determination of land value was not affected in any material way by the manner in which he had addressed the pipeline, with the consequence that any amendment to the determined land value was not justified. 10. Mr Fowler took issue with that response. However, by further letter dated 28 April 2015, the Valuer General indicated that he could add nothing to what he had already stated in relation to the land value determination and that there was no purpose served by further correspondence on the issue. His letter invited Mr Fowler to commence proceedings in this Court under the Valuation Act, if he remained dissatisfied with the determination 11. Mr Fowler has said, and I accept, that having received the Valuer General's last letter around the beginning of May, he then set about the task of assembling what he regarded as considerable evidence in support of his case. Having completed that task, he commenced proceedings by filing his Class 3 application on 26 June 2015. 12. Along with Mr Fowler's explanation for the delay in commencing proceedings, it is appropriate to notice the acceptance by the Valuer General that no prejudice is occasioned to him by reason of the delay. It would be unusual for the Valuer General to contend that a delay of the present order did occasion prejudice. However, the statement that no prejudice arises is significant for present purposes. 13. The acknowledgment by the Valuer General that he disagreed, at least in principle, as to the manner in which the contract valuer had considered the existence of the pipeline across the Property through the unregistered easement, albeit that the disagreement did not reflect the need to amend the determined land value, does seem to me to suggest an arguable case as to whether the land value is too high, as Mr Fowler contends. I express no concluded view on this aspect of the matter. 14. As I have reminded to Mr Fowler, under the Valuation Act he will bear the onus of establishing that the Valuer General's determination is too high. That determination was for a land value of $126,000 being the figure determined by reference to s 14G of the Valuation Act. It is a reduction in that figure for which Mr Fowler will contend and which, for reasons I have stated, may be argued. 15. For these reasons, applying the appropriate principles to the facts as I presently understand them, I am satisfied that it is appropriate to allow Mr Fowler to prosecute his appeal, notwithstanding that it has been commenced outside the 60 day period allowed by s 38(1) of the Valuation Act. 16. The orders that I make are as follows: 1. Pursuant to s 38(2) of the Valuation of Land Act 1916 (NSW) the applicant is allowed to appeal after the 60 day period for making the appeal provided in s 38(1) of that Act. 2. The time for filing an appeal is extended to 26 June 2015 being the date on which the applicant's Class 3 appeal was filed, and being the application which should be treated as having instituted the appeal in these proceedings. 3. Grant leave for the parties to approach the Registrar today for the purpose of obtaining a date for a conciliation conference before a Commissioner of the Court pursuant to s 34 of the Land and Environment Court Act 1979 (NSW). ********** 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: 17 August 2015