Cornish Group Spring Farm Pty Limited v Valuer General; Cornish Group Pty Limited v Valuer General [2009] NSWLEC 205 (1 December 2009)

Last Updated: 2 December 2009

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Cornish Group Spring Farm Pty Limited v Valuer General; Cornish Group Pty Limited v Valuer General [2009] NSWLEC 205

PARTIES:
APPLICANTS
Cornish Group Spring Farm Pty Limited
Cornish Group Pty Limited
RESPONDENT
Valuer General

FILE NUMBER(S):
30403 of 2009
30404 of 2009
30405 of 2009
30406 of 2009
30407 of 2009
30408 of 2009
30409 of 2009
30410 of 2009
30411 of 2009

CATCHWORDS:
QUESTION OF LAW :- whether valid objections lodged by Applicants with Valuer General - whether objections lodged in the form approved by the Valuer General - whether objection "duly made" - whether inadequate information results in invalid objection

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979 s 19
Interpretation Act 1987 s 80,
State Revenue Legislation Amendment (Tax Concessions) Act 2006
Valuation of Land Act 1916 s 14L, 29, 33, 34, 35AA, 35B, 35C, 37, 38, 39, 40

CASES CITED:
Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81
Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Terence P Williams v Valuer General’s Department (NSWLEC, Bignold J, 3 March 1992, unreported)

CORAM:
Pain J

DATES OF HEARING:
26 November 2009

JUDGMENT DATE:
1 December 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr I Hemmings
SOLICITORS
Marsdens Law Group
RESPONDENT
Ms M Carpenter
SOLICITORS
Crown Solicitor

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Pain J

1 December 2009

30403-30411 of 2009 Cornish Group Spring Farm Pty Ltd and Ors v Valuer General

JUDGMENT

1 Her Honour: A preliminary question of law arises for determination in these nine Class 3 proceedings. In October 2008 the Applicants lodged objections to the land valuation made under the Valuation of Land Act 1916 (the VL Act) for the base date 1 July 2007 for nine properties. The objections lodged by the Applicants did not include land values of the properties contended for by the Applicants or any information about comparable sales to support lower land values.

2 The Respondent, the Valuer General (VG), formed the opinion that the Applicants had failed to supply sufficient information to allow the VG to determine the objections under s 35B of the VL Act. The Applicants were informed of the VG’s position by letter dated 22 April 2009. In the VG’s view there is no determination of an objection which can give rise to an appeal to this Court under s 37 of the VL Act. The Applicants have commenced these proceedings on the basis that there are determinations of the objections by the VG as contained in the letter from the VG dated 22 April 2009, dissatisfaction with which gives rise to these appeals.

3 In the course of the hearing the parties agreed that the Court need only answer one question (the VG having originally proposed two) in relation to whether valid objections were lodged by the Applicants with the VG. If I hold that there were, then the VG accepts that there is a determination for the purposes of founding an appeal to this Court under s 37 of the VL Act so that this Court has jurisdiction to hear the appeals under s 19(b) of the Land and Environment Court Act 1979. The question to be answered is:

Have the Applicants lodged with the Valuer-General what is in law and for purposes of the Valuation of Land Act 1916 valid objections?

Legislation
4 The VL Act sets out the procedure for objecting to and appealing land valuations. Part 3 headed “Notices and objections”, provides under s 29 that the VG is to provide a notice of valuation to an owner of land. An objection to the valuation may be lodged under s 29(3A). Other relevant sections in Pt 3 are:

33 Form of objection

An objection under this Part must be in a form approved by the Valuer-General.

34 Grounds of objection

(1) In relation to land the only grounds upon which objection may be taken under this Act are:

(a) that the values assigned are too high or too low,

(a1) that the area, dimensions or description of the land are not correctly stated,

(b) that the interests held by various persons in the land have not been correctly apportioned,

(c) that the apportionment of the valuations is not correct,

(d) that lands which should be included in one valuation have been valued separately,

(e) that lands which should be valued separately have been included in one valuation, and

(f) that the person named in the notice is not the lessee or owner of the land.

...

35AA Restrictions on objections to land tax valuations

(1) In the case of a valuation for the purposes of the Land Tax Management Act 1956, a person is not entitled to object to any valuation used as the basis of a land tax assessment if the valuation has previously been the subject of an objection, except with the permission of the Valuer-General.

(2) The Valuer-General is to permit the objection only if satisfied that there are special reasons for allowing the objection to be made.

(3) The fact that the person seeking to make the objection was not an owner, occupier or lessee of the land at the time that the earlier objection was made does not of itself constitute a special reason for allowing the person to make an objection.

(4) This section applies whether or not the person seeking to make the objection lodges the objection within 60 days after service of the relevant land tax assessment.

(5) If the Valuer-General refuses permission to make an objection under this section, the Valuer-General must give the person seeking to make the objection notice of the Valuer-General’s decision.

(6) A refusal to grant permission to make the objection does not give rise to a right of appeal under section 37.

35B Determination of objection

(1) The Valuer-General must consider an objection that has been duly made and either allow the objection or disallow the objection.

(2) If the Valuer-General delegates the functions conferred by this section, the delegate who considers the objection must be a different person from, and not subordinate to, the person who made the decision against which the objection is lodged.

35C Notice of determination

(1) The Valuer-General must give notice to the objector of the determination of the objection.

(2) The Valuer-General must, in the notice, give the reasons for disallowing an objection or for allowing an objection in part only.

(3) The notice is to be in a form approved by the Valuer-General.

(4) For the purposes of section 37, an objection is taken to have been disallowed if notice of the Valuer-General’s determination of the objection has not been given within 90 days after the objection was lodged with the Valuer-General.

5 Part 4 of the VL Act provides for an appeal to this Court where there is dissatisfaction with the determination of an objection:

37 Right of appeal

(1) Any person entitled under Part 3 to object to a valuation may appeal to the Land and Environment Court if the person is dissatisfied with the Valuer-General’s determination of any such objection to the valuation concerned (whether or not the person was the objector).

(2) An appeal may not be made on the ground that the objection is taken to have been disallowed, as referred to in section 35C (4), unless written notice of the objector’s intention to appeal on that ground has been given to the Valuer-General at least 14 days before the appeal is made.

(3) No person or body has jurisdiction or power to conduct a review or hear an appeal in respect of the determination of an objection except as provided by this Part.

38 Time for appeal

(1) 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.

(2) The Land and Environment Court may allow a person to appeal after the 60-day period.

39 Grounds of appeal

The appellant’s and respondent’s cases on an appeal are not limited to the grounds of the objection.

40 Powers of Land and Environment Court on appeal

(1) On an appeal, the Land and Environment Court may do any one or more of the following:

(a) confirm or revoke the decision to which the appeal relates,

(b) make a decision in place of the decision to which the appeal relates,

(c) remit the matter to the Valuer-General for determination in accordance with the Court’s finding or decision.

(2) On an appeal, the appellant has the onus of proving the appellant’s case.

6 I note that that the words “duly made” in s 35B(1) and the whole of s 35AA were introduced into the VL Act in 2006 by the State Revenue Legislation Amendment (Tax Concessions) Act 2006 (repealed).

7 Section 80 of the Interpretation Act 1987 headed “Compliance with forms” provides as follows:

(1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

(2) If a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.

...

Evidence/chronology
8 An affidavit of Paul Knight sworn 14 October 2009 was read for the VG. The exhibit to his affidavit contained a number of documents relevantly including:
a) The objections as lodged with the VG by the Applicants for nine different properties on 31 October 2008. For each property a valuation objection form was filled out. Box 5, headed “Why are you objecting to your valuation”, has two boxes marked, being “The value is too high” and “Concessions/allowances are incorrect”. A space for the estimate of the correct land value is left blank. Box 6, headed “Your evidence to support the objection”, instructs the objector to read Your land review guide for information on valid supporting evidence. The box states as follows:

Strong supporting evidence for your objection is sale process of comparable properties that occurred in that valuing year...Median sale prices for your area and asking prices of properties listed for sale are not valid evidence to support your objection.

The Applicants filled in the Box by writing, “see attached submissions”.
b) A document titled “Submissions in relation to 2008 Land Tax Assessment” was attached to the Applicants’ objection forms. These submissions have subheadings including “Physical characteristics of area”, “Planning matters” and headings for each of the nine properties. A table titled “Development concessions claim” was also annexed. This table is a lengthy list of invoice dates, the service provider named on the invoice, a description of the work carried out and the amount invoiced.
c) A letter dated 10 December 2008 from the VG to the Applicants’ solicitors stated that the objections lodged failed a screening process and were being returned. This was on the grounds that there were deficiencies in the information supplied, namely that information provided was too generic and required further specification. The letter stated that the right of objection would be retained until 27 January 2009.
d) A letter from the Applicants’ solicitors to the VG dated 27 January 2009 stating that the Applicants did not wish to provide further submissions.
e) A letter dated 22 April 2009 from the VG to the Applicants’ solicitors stating that the objections lodged were invalid due to inadequate supporting evidence and that the VG had not accepted the objection as valid, therefore no further action was to be taken.
f) A letter dated 1 June 2009 from the Applicants’ solicitors to the VG acknowledging the notices of determination dated 22 April 2009. This letter, inter alia, notified the VG of the Applicants’ intention to commence appeal proceedings in this Court on the basis that the values ascribed to the land were not supported by comparable sales or other market evidence and that the method of comparable sales was inappropriate.
g) Your Land Value Review Guide (the Review Guide) issued January 2008 by the Department of Lands and current at time the Applicants objections were lodged.
h) Objection Procedures Manual issued by the Department of Lands and approved 15 September 2008.

9 On 19 June 2009 the Applicants filed the nine Class 3 applications in this Court.

VG’s submissions
10 The Applicants failed to provide an objection in a form approved by the VG as required by s 33 of the VL Act. The Applicants did not complete the valuation objection form on its face. They failed to complete the section requiring the Applicants to estimate the land value contended for. Nor was it completed in accordance with the Review Guide, which is referred to in the valuation objection form. They did not provide relevant information on development concessions sought. The table of developer concessions and allowances provided with the valuation objection form did not enable the VG to undertake an assessment of concessions and allowances under s 14L of the VL Act. Further, the Review Guide states that an objector may object to a valuation on the basis that there have been changes to the permissible use of the land or if the objector believes that the permissible use of the land has not been taken into consideration. The Applicants did not indicate which of these two scenarios applied. The information provided by the Applicants did not enable the VG to carry out an assessment of the objection.

11 The VG should not have to guess the valuation for which the Applicants contend. The VG did not have sufficient information before him to determine the correct valuation. The Applicants incorrectly assert that they are not required to substantiate the value of the property for which they contend.

12 The reference in s 33 to an objection being “in a form approved by the Valuer-General” refers to a structural condition, not a particular document. Section 33 requires more than filling out one particular document. That more is required is consistent with the purposive method of statutory construction, explained by McHugh JA in Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423-42. There is an implied obligation under the VL Act for an objector to supply the VG with information that will enable the VG to either allow or disallow the objection and the interpretation of s 33 is consistent with this purpose of the statute. Section 80(2) of the Interpretation Act applies so that the valuation objection form must be completed in accordance with the Review Guide. The Applicants failed to do so, consequently their objections are not valid.

13 The purpose of the VL Act is to enable the correct valuation of land to be determined. It is consistent with public policy that further information be supplied by an objector in order for that objection to be fully assessed by the VG. The pre-condition of an objection to the VG before an appeal is lodged in this Court is consistent with the intention that the matter may be resolved before the Court is required to make a determination. It would be an absurd result if every objector who completes a form inadequately or fails to provide sufficient information to enable the VG to properly assess the objection would have an appeal right in circumstances where the VG has no way of reaching an appropriate decision on the objection.

14 Pursuant to s 35B(1), the VG must consider an objection that has been “duly made”. The requirement that an objection be duly made was inserted into s 35B(1) by the State Revenue Legislation Amendment (Tax Concessions) Act 2006. Since this amendment the VG is not required to consider any objection that has not been duly made. The reason for the amendment that should be inferred is that, as a matter of public policy, it is the Parliament’s intention that an objector could not proceed to this Court with an inadequately completed objection. In any case, prior to the amendment Bignold J stated in Terence P Williams v Valuer General’s Department (NSWLEC, Bignold J, 3 March 1992, unreported):

As a matter of statutory interpretation the reference to “an objection” is to be understood as an objection properly and validly made

15 The planning cases such as Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 and Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81, both relied on by the Applicants (see par 20 and 21), consider a quite different legislative framework in judicial review proceedings and are not analogous to the VL Act. Here the determining authority, the VG, is not satisfied with information supplied and has to be satisfied that he can make a decision on the basis of what is supplied. The cases do not concern a consent authority being dissatisfied that there is sufficient information before it to make a decision.

Applicants’ submissions

(i) objections comply with Act
16 The objection process under the VL Act is straightforward and the rules are intended for universal application. An objection to a valuation triggers an independent review of the valuation prepared by the VG, as identified in the Operations Procedure Manual at page 3. It is not an adversarial process. For the purposes of s 33 of the Act, a form has been approved by the VG which includes provision for identifying which of the grounds of objection prescribed in s 34(1) are relied upon. The objections lodged by the Applicants each identified the two grounds relied upon.

17 Substantial compliance with the approved form is required pursuant to s 80(1) of the Interpretation Act and this has occurred. There is no legislative requirement that an objection lodged with the VG specify a value contended for by the objectors.

18 The Review Guide does not have any statutory force under s 33 of the VL Act. It is referred to in the valuation objection form as a document available for information on completing that form. The Review Guide is not a matter the Court is required to take into account in determining whether the objection has been validly made. Section s 80(2) of the Interpretation Act is not applicable, contrary to the VG’s submissions.

19 Further, the objection was duly made under s 35B. The second reading speech to the State Revenue Legislation Amendment (Tax Concessions) Act 2006, which inserted the words “duly made” into s 35B, shows that the words were not added to ensure that an objection complies strictly with the requirements of any approved form. Rather the words were inserted to require consideration by the VG only of an objection to a valuation for a year in relation to which there had not previously been an objection. A provision was also inserted allowing the VG to permit a second objection to be made if appropriate.

(ii) non compliance does not result in invalidity
20 If the above submissions are not accepted, the second issue to arise is whether failure to comply with s 33 results in the invalidity of the objections filed by the Applicants. In the context of the Environmental Planning and Assessment Act 1979 (the EP&A Act) there is “very little, if any, scope in this legislative scheme for the concept of a “valid” application”, per Spigelman CJ in Currey at [35]. By analogy, the VL Act should not be construed so as to require a “valid” objection to be lodged in order to trigger the process of determining whether or not the original land valuation is either supported or not by market evidence.

21 In Cranky Rock Road, which considered a development application lodged under the EP&A Act, Tobias JA carried out a detailed analysis of the statutory regime. He determined that there was no reason that a development consent should not be granted where documents not of such significance as to prevent the consent authority performing its statutory duty were not attached. In this matter, the absence of a specified land value contended for by the Applicants or a valuation report are not of such significance as to prevent the VG from performing his statutory duty. It is impossible to ascertain a clear legislative intention to invalidate every objection which either fails to include a contended for value or attach a valuation, see McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

22 The Applicants submit that the answer to the preliminary question is in the affirmative.

Finding

Whether objections valid
23 I largely agree with and adopt the submissions of the Applicants in relation to the construction of s 33 of the VL Act and its application in the circumstances of this case. Section 33 requires that an objection be lodged in a form approved by the VG. The form approved by the VG is the valuation objection form. This was filled out by the Applicants for each objection but for the identification of a land value for which the Applicants contended. The form identified the grounds of objection as required by s 34 of the VL Act.

24 The Review Guide which is referred to in that form, as identified in par 8(a), is not incorporated as a mandatory requirement which must be complied with in completing the valuation objection form. It is referred to in the valuation objection form in terms of providing information on how to complete the form. As submitted by the Applicants, a right of appeal under s 37 to this Court should not be taken away because of the interpretation of an information guide incorporated by reference in a form. There has been substantial compliance with the requirements of the valuation objection form by the Applicants as provided under s 80(1) of the Interpretation Act.

25 It follows from my conclusion in the previous paragraph that the Review Guide is not a mandatory part of the form required for a valid objection so that it cannot be the basis for determining when a form is “duly completed” for the purposes of s 80(2) of the Interpretation Act. That section does not apply.

26 The meaning of “duly made” in s 35B should also be considered. The VG submitted that the usual meaning of “duly”, being properly or adequately, meant that a “duly made” application is one that the VG is satisfied is in a form enabling him to carry out his obligations under the VL Act. Given my finding that there has been substantial compliance with the valuation objection form and that s 80(2) of the Interpretation Act does not apply, the Applicants’ objections have been duly made for the purpose of s 35B. Section 35B on its face and in terms of the scheme of the Act does not provide expressly for the effect contended for by the VG. Nor can that effect be implied in terms of the scheme of the Act, for the reasons I give below in par 35.

27 For completeness I note that the Applicants submit that s 35B was amended at the same time as and to reflect s 35AA. They relied on the second reading speech in making that submission. Referring to the second reading speech for assistance in statutory construction is only warranted where a provision is ambiguous; Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 per Mason P at [160] (with whom Giles JA concurred, Spigelman CJ, Basten and Beazley JJA all concurring in separate judgments on this point). Section 35B is not ambiguous. It is unnecessary to refer to the second reading speech. As submitted by the VG, s 35B is a general provision dealing with all objections and there is no basis to restrict it to those matters referred to in s 35AA. That conclusion does not have any material relevance as my conclusion in the preceding paragraph remains.

Whether failure of objections results in invalidity
28 If I am wrong in the above conclusions, failure to lodge valid objections in the circumstances of this case does not give rise to invalidity of the objections. If it did that would result in the Applicants’ ability to appeal to the Court under s 37 being rendered nugatory. In Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ held at [91]:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied [65]; there is not even a ranking of relevant factors or categories to give guidance on the issue.

29 No cases have been presented by the parties or found where the issues raised by this question of law have been considered in relation to the VL Act. Currey and Cranky Rock Road consider whether requirements in the EP&A Act for the lodging of development applications and supporting information are mandatory such that failure to comply with these results in invalidity of a grant of development consent. Those cases are instructive by way of contrast with the different statutory scheme under the VL Act.

30 In Currey, a declaration was sought that a grant of development consent was void and of no effect. The consent included strata subdivision of the property. The appellants submitted that the relevant local environmental plan precluded the grant of development consent for the strata subdivision. The clause of the LEP on which the appellants relied did not apply where the application for that consent was made on or before a nominated date. The appellants argued, inter alia, that the development application at the time it was lodged sought consent for prohibited development. It was submitted that a development application could not be made in respect of a development which was prohibited. Spigelman CJ (Sheller JA and Foster AJA concurring) concluded that there was no such prohibition on the lodgement of a development application. His Honour considered that there was no basis for inferring a prohibition from a permissive and procedural scheme which forms part of the EP&A Act. At [35] his Honour stated:

I see very little, if any, scope in this legislative scheme for the concept of a “valid” application. Citizens are entitled to apply to authorities for whatever they like...There is no relevant prohibition, express or implied, which impinges upon the application making process.

31 The Court of Appeal (Tobias JA, Young CJ in Eq and Campbell JA concurring) in Cranky Rock Road considered the extensive requirements in the EP&A Act and the Environmental Planning and Assessment Regulation 2000 in determining that the requirement for a statement of environmental effects was not a mandatory requirement in the sense that a council could determine a development application in its absence.

32 That statutorily prescribed requirements were not held in Cranky Rock Road to be mandatory provides a useful context to consider the far more limited requirements for the lodging of an objection under the VL Act. The only requirement for the form of an objection is that in s 33, namely in a form approved by the Valuer-General. As submitted by the Applicants, that does not suggest a scheme whereby the absence of information in the objection prevents the VG from performing his statutory duty under s 35B. The objection is a means of triggering independent review by the VG, as identified in the Review Guide.

Scheme of VL Act
33 The VG emphasised in his submissions (par 13) that, as the object of the VL Act is the identification of the correct land value, he must be in a position to properly consider each objection. This would potentially avoid the need for a court hearing. This was argued to inform a purposive approach to statutory construction consistent with Keprose. However, the scheme of the Act does not support an appeal right to this Court not being available because the VG considered the information provided by the Applicants in support of their objections was inadequate given that the relevant form was completed with the grounds of review clearly identified and supporting information supplied.

34 While Currey addresses the different scheme under the EP&A Act in the context of whether a development application can be made for a prohibited development, the decision is useful in highlighting that legislation should not be lightly interpreted as preventing a citizen applying for a particular concession or review under it. That same approach is also apposite in relation to the VL Act which is a statutory scheme enabling a citizen to object to a valuation of land first to the VG and then ultimately to this Court.

35 Another reason why the failure to provide all the information which the VG considers to be relevant should not result in invalidity of the objection concerns the scheme of the VL Act with the progressive steps of notification of the valuation, lodging of an objection with the VG, determination of objection by the VG and appeal to the Court provided. The submissions of the VG asked the Court to consider the detail of the requirements of the Review Guide and the purported inadequacy of the information supplied in the objections. This was effectively asking the Court to undertake a review of the VG’s decision of the adequacy of what was lodged with the objections. While the VG did not press a submission that the Court was essentially reviewing the VG’s opinion about the adequacy of the information supplied, the tenor of submissions was that the subjective determination by the VG of whether the information was adequate was relevant to the determination of whether the objection was duly made. The scheme in the Act is not designed to provide scope for review of the VG’s administrative actions in rejecting an objection to a land valuation.

Conclusion
36 My finding on the preliminary question of law is that the Applicants have lodged with the VG valid objections in law and for the purposes of the VL Act.

Costs
37 The Applicants seek their costs of the preliminary hearing. The VG considers that any submissions on costs should await the determination of the question, with the parties given opportunity to first consider the Court’s judgment.