Williams v Valuer-General of NSW [2017] NSWLEC 17

Land and Environment Court New South Wales

Medium Neutral Citation: Williams v Valuer-General of NSW [2017] NSWLEC 17 Hearing dates: 20 February 2017 Decision date: 03 March 2017 Jurisdiction: Class 3 Before: Pain J Decision: (1) The appeal is dismissed. (2) No order as to costs. (3) The exhibits are returned. Catchwords: APPEAL – Valuation of Land Act – effect of bushfire protection clearing provisions on positive covenant designed to protect endangered ecological community – operation of 10/50 "rule" under Rural Fires Act – highest and best use of land at base date was residential subdivision Legislation Cited: Conveyancing Act 1919 s 88B Rural Fires Act 1997 ss 100P, 100Q, 100R Threatened Species Conservation Act 1995 Valuation of Land Act 1916 ss 6A, 14K, 37, 40 Wingecarribee Local Environmental Plan 2010 Cases Cited: Falk v Valuer-General [2005] NSWLEC 141 Category: Principal judgment Parties: Dennis Charles Williams (Applicant) Valuer-General of NSW (Respondent) Representation: COUNSEL: D C Williams (Lip) (Applicant) R White (Respondent)

SOLICITORS: N/A (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2016/157798

Judgment

VALUATION OF LAND APPEAL 1. The Applicant Mr Williams appeals under s 37(1) of the Valuation of Land Act 1916 (NSW) (VL Act) against the land value determined by the Respondent Valuer-General for Lot 10 DP1172869, Biggera Street, Braemar (the land) on 1 July 2015 (the base date). The Valuer-General assessed the land value at $430,000. Mr Williams contends that the actual value of the land is $215,000. 2. In these appeals the Court can confirm or revoke the decision to which the appeal relates, make a different decision or remit the matter to the Valuer-General under s 40(1) of the VL Act. Section 40(2) provides that on appeal the appellant bears the onus of proving the appellant's case. Further, s 14K(1) requires the Court to assume that the land is in the same physical condition and may be used in the same way as it was on 1 July 2015. 3. The subject land is located approximately 3 km north of Mittagong in the Wingecarribee Shire Council local government area. The land is zoned R2 low density residential under the Wingecarribee Local Environmental Plan 2010 and was at the base date undeveloped vacant land. Lot 10 has a total area of 6,974 m2 and is burdened by several easements related to a padmount substation and underground mains. 4. Additionally the Wingecarribee Shire Council and Sydney Catchment Authority imposed on the land a public positive covenant. The covenant is intended to protect and conserve Southern Highlands Shale Woodlands, an endangered ecological community (Woodlands EEC) under the Threatened Species Conservation Act 1995 (NSW) (TSC Act). The covenant is outlined in item 7 of the s 88B instrument (per the Conveyancing Act 1919 (NSW)) pertaining to the land. It requires the retention, rehabilitation, maintenance and ongoing protection of the Woodlands EEC. The covenant imposes limitations on access and use of the majority (86%) of the land leaving a building envelope of 1,000 m2.