AG Dennis Pty Ltd v Minister for Environment

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2020 03470

AG DENNIS PTY LTD & ORS (according to the attached schedule)	Applicants
v
MINISTER FOR ENVIRONMENT	Respondent

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 16–18, 23–27, 30 May, 11 August 2022
DATE OF JUDGMENT:	15 February 2023
CASE MAY BE CITED AS:	AG Dennis Pty Ltd & Ors v Minister for Environment
MEDIUM NEUTRAL CITATION:	[2023] VSC 44

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VALUATION OF LAND – Seven applicants jointly owned 20 titles comprising 2,518.31 hectares of land – Respondent applied planning overlay reserving the land for a public purpose – Applicants made claim for compensation pursuant to ss 98 and 106 of the Planning and Environment Act 1987 – 20 titles offered for sale simultaneously and sold to single purchaser – Whether compensation should be assessed on basis of hypothetical development of land without the planning overlay – Whether compensation should be assessed on basis of direct sales comparison – Whether land should be valued on assumption that absent the reservation for public purpose the 20 titles would have been offered for sale on an individual and staggered basis – Whether quantum of compensation should be discounted to reflect market saturation if 20 titles were offered for sale simultaneously – Compensation assessed on basis of direct sales comparison – Compensation assessed on basis that absent public reservation of land the 20 titles would not have been offered for sale simultaneously – Planning and Environment Act 1987 ss 98, 104, 106 – Land Acquisition and Compensation Act 1986 ss 80, 105.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Messrs J Gobbo KC and P Chiappi	Minter Ellison
For the Respondent	Ms M Foley SC and Mr I Munt	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

Introduction	1
Background	1
*Reservation of the Subject Land*	3
*Sale of the Subject Land*	4
*The applicants’ claims*	5
Legislative framework	11
Issues for determination	13
Are the applicants able to claim compensation under ss 98 and 106 of the Act on an individual sale basis?	13
*Consideration*	16
Issues arising out of the expert evidence which affect valuations of the Subject Land	18
*Engineering evidence*	19
(i). Cost of extending electricity and telecommunications infrastructure to the Subject Land	20
(ii). Costs of road construction under the Tract Plan	21
*Ecological evidence*	22
(i). Whether approvals for native vegetation offsets would be granted	23
(ii). Buffer zones around non-dwelling infrastructure	24
(iii) Co-location of offsets	26
(iv). The costs of obtaining offsets	27
(v). The time that it would take to obtain the offsets	28
*Planning evidence*	28
(i) Which planning controls would have applied to the Subject Land in the absence of PAO7?	29
(ii). The likelihood of the future inclusion of the Subject Land in the UGB	35
(iii). The likelihood of obtaining approvals for the subdivision and development of Subject Land under the proposed Tract Plan	37
*Valuation evidence*	39
(i). Whether GST would be payable on the resale of the subdivided lots	39
(ii). The highest and best use of the Subject Land.	40
*Conclusion*	41
Is a HDA approach appropriate as a primary method of valuation in the present case, and if so, which of Mr Brown and Mr Haines’ valuations is to be preferred?	43
*Valuation evidence of Mr Brown and Mr Haines*	47
If a HDA approach is not appropriate, which of the DSC valuations captures the most comparable sales to the Subject Land?	53
*Mr Brown’s evidence*	54
*Conclusion on Mr Brown’s Evidence*	60
*Mr Haines’ evidence*	61
*Conclusion on Mr Haines’ evidence*	74
*Mr Molloy’s evidence*	74
Should a check method be applied?	74
What is the maximum amount of compensation payable?	75
Conclusion	78
Annex A Map of Subject Land	79
Annex B April 2022 Tract Plans	80
Annex C Further Amended Particulars of Claim on Individual Sales Approach	81
Annex D Further Amended Particulars of Claim on Whole-of-Land Sales Approach	82
Annex E Further Amended Particulars of Claim on Green Wedge Zone	83
Annex F Further Amended Particulars of Claim on Rural Conservation Zone	84
Annex G Nicholas Haines DSC Valuation	85
Schedule of Parties	86

HIS HONOUR:

Introduction

This proceeding concerns a claim for compensation pursuant to ss 98(1)(a) and 106 of the Planning and Environment Act 1987 (‘Act’). The land the subject of the claim comprises 20 titles covering 2,518.31 ha (‘Subject Land’ or ‘Quandong Estate’). The seven applicants each claim for financial loss suffered as result of the respondent’s decision to apply a planning overlay which reserved the Subject Land for a public purpose.

On 1 March 2019, the applicants entered into a contract of sale with Mr George Georges to sell the Subject Land for $9.35 million. Settlement of the contract occurred on 30 August 2019 (‘relevant date’). The applicants claim that, absent the reservation of the land by the respondent, the Subject Land could have been sold on the relevant date at a higher price. The applicants claim compensation for the difference between the amount the Subject Land was sold for (‘affected value’) and the amount for which the Subject Land could have been sold absent the reservation (‘unaffected value’).

The respondent accepts that it is liable to compensate the applicants. However, the parties disagree on both the appropriate method for determining the unaffected value of the Subject Land and on the quantum of compensation owing.

I have concluded that the respondent’s expert valuation evidence should be accepted, albeit without the 20 per cent discount to account for market saturation. I have determined that the value of the Subject Land at the relevant date was $101.21 million. The applicants suffered a loss of $91.86 million upon the sale of the Subject Land in August 2019. In addition, it is common ground the respondent is liable to compensate the applicants for $493,103.34 in legal, valuation and other expenses. The quantum owing for compensation and expenses totals $92,353,103.30.

Background

The seven applicants comprise a family business. The second and third applicants are husband and wife, with Mr Dennis being a director of the fourth applicant. Mr and Mrs Dennis’ son, Mr Marshall Dennis, is a director of the first, fifth, sixth, and seventh applicants.[1]
[1]CB744, Affidavit of Marshall Glenn Dennis dated 7 June 2021, [2]; CB3, Claim for Compensation (AG Dennis Pty Ltd) dated 27 May 2020.

The Subject Land was acquired by the applicants in July 1984.[2] Since its acquisition it has been used for farming, primarily grazing and cropping activities. Improvements are present on the land including two dwellings and several sheds used for farming activities.
[2]CB744, Affidavit of Marshall Glenn Dennis dated 7 June 2021, [4].

A map of the Subject Land detailing the ownership of the lots is contained in Annex A to this judgment. The 20 titles that comprise the Subject Land were owned by the seven applicants as follows:

·Titles 15 and 20 were owned by the first applicant, AG Dennis Pty Ltd;[3]
·Titles 6, 16, and 19 were owned by the second applicant, Albert George Dennis;[4]
·Titles 4 and 7 were owned by the third applicant, Dawn Allison Dennis;[5]
·Titles 5, 8, and 12 were owned by the fourth applicant, Dennis Projects Pty Ltd;[6]
·Titles 1, 13, 14, and 17 were owned by the fifth applicant, MG Pastoral Company Pty Ltd;[7]
·Titles 3, 9, and 10 were owned by the sixth applicant, Tensa Kirsten Nominees Pty Ltd;[8] and,
·Titles 2, 11, and 18 were owned by the seventh applicant, Veles Anna Nominees Pty Ltd.[9]
[3]Being Lot 1 on Title Plan 135007U contained on Certificate of Title Volume 9720 Folio 905; Lot 1 on Title Plan 135279J contained on Certificate of Title Volume 9720 Folio 900.
[4]Being Lot 1 on Title Plan 134987K contained on Certificate of Title Volume 9718 Folio 292; Lot 1 on Title Plan 135281X contained on Certificate of Title Volume 9720 Folio 902; Lot 1 on Title Plan 135540A contained on Certificate of Title Volume 9727 Folio 385.
[5]Being Lot 10 on Plan of Subdivision 124313 contained on Certificate of Title Volume 9251 Folio 520; Lots 1 and 2 on Title Plan 134986M contained on Certificate of Title Volume 9718 Folio 291.
[6]Being Lot 1 on Plan of Subdivision 641450R contained on Certificate of Title Volume 11404 Folio 811; Lot 1 on Title Plan 135280A contained on Certificate of Title Volume 9720 Folio 901; Lot 13 on Lodged Plan 124312 contained on Certificate of Title 9251 Folio 512.
[7]Being Lot 7 on Lodged Plan 124313 contained on Certificate of Title Volume 9251 Folio 517; Lot 12 on Lodged Plan 124312 contained on Certificate of Title Volume 9251 Folio 511; Lot 2 on Plan of Subdivision 632967C on Certificate of Title Volume 11519 Folio 633; Lot 1 on Title Plan 135278L on Certificate of Title Volume 9720 Folio 899.
[8]Being Lot 9 on Lodged Plan 124313 contained on Certificate of Title Volume 9251 Folio 519; Lot 1 on Title Plan 135282V Certificate of Title Volume 9270 Folio 904; Lot 15 on Lodged Plan 124312 contained on Certificate of Title Volume 9251 Folio 514.
[9]Being Lot 8 on Lodged Plan 124313 contained on Certificate of Title Volume 9251 Folio 518; Lot 14 on Lodged Plan 124312 contained on Certificate of Title Volume 9251 Folio 513; Lots 1 and 2 on Title Plan 135006W on Certificate of Title Volume 9720 Folio 903.

Reservation of the Subject Land

The Subject Land falls within the Wyndham Planning Scheme. The Subject Land sits outside the Urban Growth Boundary (‘UGB’) and, prior to 6 August 2010, was subject to Green Wedge Zone (‘GWZ’) planning controls.

In December 2008, the Victorian Government released three key documents that identified integrated land use and transport initiatives for planning Melbourne’s growth: Melbourne 2030: a planning update – Melbourne @ 5 million, The Victorian Transport Plan and Freight Futures: Victorian Freight Network Strategy. An Inter-Departmental Taskforce was established in December 2008 by the Department of Planning and Community Development to oversee the review and implementation of integrated land use and transport initiatives. The findings of the Taskforce and technical evidence for proposed land use and transport changes culminated in a June 2009 report for public consultation, Delivering Melbourne’s Newest Sustainable Communities. That report set out the Victorian Government’s proposals to revise Melbourne’s UGB and to define the boundaries and management of grassland reserves in Melbourne’s west.

The planning amendments required for these proposals were contained in Amendment VC68, which was prepared and approved by the Minister for Planning. Sections 46AF–56AI of the Act require planning amendments which amend an urban growth boundary or allow green wedge land to be subdivided into more or smaller lots to be ratified by both Houses of Parliament, and notice of ratification to be published in the Government Gazette. On 6 August 2010, Amendment VC68 to the Victoria Planning Provisions and all planning schemes in Victoria (‘Amendment VC68’) was gazetted and came into effect. Amendment VC68 amended the Wyndham Planning Scheme in two relevant respects.

Amendment VC68 inserted Schedule 4 to Clause 42.01 of the Wyndham Planning Scheme. Schedule 4 designates a 15,000 ha area outside the UGB to the west of Melbourne as subject to Environmental Significance Overlay 4 (‘ESO4’). The area is designated as the Western Grassland Reserve.[10]
[10]CB10885, Wyndham Planning Scheme, sch 4.

Amendment VC68 also added Public Acquisition Overlay 7 (‘PAO7’) to the Schedule to Clause 45.01 of the Wyndham Planning Scheme and amended the Public Acquisition Overlay Map to include the land reserved by PAO7. The Schedule notes that the land the subject of PAO7 was reserved by the Minister responsible for administering Part 2 of the Crown Land (Reserves) Act 1978 for the purpose of the Western Grassland Reserve.[11] Pursuant to cll 45.01–6 of the Wyndham Planning Scheme, any land that is included in a Public Acquisition Overlay is taken to be reserved for a public purpose within the meaning of the Act.
[11]CB10901, Wyndham Planning Scheme, cl 45.01

The entirety of the Subject Land is included in the land reserved by PAO7.

Sale of the Subject Land

The applicants offered the Subject Land for sale through an expression of interest campaign in October 2018. The Subject Land was offered for sale on the basis of sales of individual titles, or sale of a combination of titles.[12]
[12]CB745, Affidavit of Marshall Glenn Dennis dated 7 June 2021, [6].

As a prerequisite for a claim under s 106(1)(a) of the Act, s 106(1)(b) requires the owner of land to give 60 days’ notice to the Minister of their intention to sell the land. On 8 November 2018, the applicants wrote to the Minister giving notice of their intention to sell the Subject Land and claim compensation under the Act.[13]
[13]CB778, Letter from MinterEllison to the Respondent dated 8 November 2018.

On 28 February 2019, a boardroom auction was conducted for a number of shortlisted purchasers. Mr Georges was the successful bidder. The $9.35 million paid by Mr Georges comprised the following sums paid to each applicant:

·AG Dennis Pty Ltd (Title 15 – $533,885; Title 20 – $924,415);
·Albert George Dennis (Title 6 – $214,000; Title 16 – $484,330; Title 19 – $1,015,110);
·Dawn Allison Dennis (Title 4 – $149,520; Title 7 – $844,005);
·Dennis Projects Pty Ltd (Title 5 – $152,405; Title 8 – $499,140; Title 12 – $149,520);
·MG Pastoral Pty Ltd (Title 1 – $149,520; Title 13 – $149,520; Title 14 – $1,045,030; Title 17 – $982,385)
·Tensa Kirsten Nominees Pty Ltd (Title 3 – $149,520; Title 9 – $193,545; Title 10 – $149,520);
·Veles Anna Nominees Pty Ltd (Title 2 – $149,520; Title 11 – $149,520; Title 18 –$1,265,590).

A contract of sale was entered into on 1 March 2019. The contract of sale provided for the conveyance of all 20 lots from the seven vendors. Mr Georges nominated Quandong Holdings Pty Ltd as the transferee under the contract, with settlement to occur on 30 August 2019.

The applicants’ claims

The second and third applicants filed compensation claims with the respondent on 15 May 2020.[14] The first, fourth, fifth, sixth and seventh applicants filed their claims on 27 May 2020.[15] The applicants did not receive a response from the respondent.
[14]CB747, Affidavit of Marshall Glenn Dennis dated 7 June 2021, [15]; CB13, Claim for Compensation (Albert George Dennis) dated 13 May 2020; CB3, Claim for Compensation (Dawn Allison Dennis) dated 13 May 2020.
[15]CB747, Affidavit of Marshall Glenn Dennis dated 7 June 2021, [16]; CB3, Claim for Compensation (AG Dennis Pty Ltd) dated 27 May 2020; CB33, Claim for Compensation (Dennis Projects Pty Ltd) dated 27 May 2020; CB43, Claim for Compensation (MG Pastoral Pty Ltd) dated 27 May 2020; CB54, Claim for Compensation (Tensa Kirsten Nominees Pty Ltd) dated 27 May 2020; CB64, Claim for Compensation (Veles Anna Nominees Pty Ltd) dated 27 May 2020.

On 1 September 2020, the applicants filed separate notices of referral in separate proceedings in this Court.[16] On 29 October 2020, Keith JR made orders by consent to consolidate the seven proceedings into the present proceeding (S ECI 2020 03470).[17]
[16]The proceeding numbers were as follows: S ECI 2020 03470; S ECI 2020 03479; S ECI 2020 03471; S ECI 2020 03472; S ECI 2020 03473; S ECI 2020 03474; S ECI 2020 03475.
[17]CB720, Order of Keith JR dated 29 October 2020.

The applicants put their claim for compensation in a number of different and alternative ways. However, before addressing the applicants’ claims it is necessary to consider the differing approaches to valuation used by the valuation experts.

The primary method of valuation is a direct sales comparison (‘DSC’) approach. A valuation obtained through a DSC analysis relies on evidence of the rates for which comparable properties sold. The valuer will identify similar properties within the general area and examine the rate at which those properties were sold on the open market. The valuer will then make adjustments to account for any improvements present on comparable properties and the varying terms on which the properties were sold. This produces an adjusted rate per hectare. From this, the valuer is able to derive an estimated price for which a purchaser might wish to buy the subject property.

An alternative to a DSC is a hypothetical development analysis (‘HDA’). Through a HDA, the valuer seeks to ascertain the maximum value that an individual would pay for the property having regard to the potential for subdivision and development of the property. On this approach, the valuer assesses the price that the property could be sold for following a hypothetical subdivision and development of the property, accounting for the costs of the development as well as allowing a margin for the hypothetical developer’s profit.

The parties each led expert valuation evidence regarding the market value of the unaffected Subject Land. Mr Les Brown was called to give evidence for the applicants, with Mr Nicholas Haines and Mr Peter Molloy for the respondent. The parties tendered the following expert evidence:

·Expert valuation report of Mr Molloy dated 29 September 2021;[18]
[18]CB4030, Expert valuation report of Mr Molloy dated 29 September 2021.
·Expert valuation report of Mr Haines dated 13 October 2021;[19]
[19]CB6854, Expert valuation report of Mr Haines dated 13 October 2021.
·Expert valuation report of Mr Brown dated 4 November 2021;[20]
[20]CB6599, Expert valuation report of Mr Brown dated 4 November 2021.
·Joint expert witness statement of Mr Brown, Mr Molloy and Mr Haines dated 10 December 2021;[21]
·Supplementary expert valuation report of Mr Brown dated 11 March 2022;[22]
·Supplementary expert valuation report of Mr Haines dated 14 April 2022;[23]
·Supplementary expert valuation report of Mr Molloy dated 19 April 2022;[24]
·Addendum to the expert valuation report of Mr Brown dated 3 May 2022;[25]
·Correction to the expert valuation report of Mr Haines dated 26 May 2022;[26]
·Addendum to the expert valuation report of Mr Brown dated 31 May 2022;[27]
·Addendum to the expert valuation report of Mr Molloy dated 7 June 2022;[28] and
·Addendum to the expert valuation report of Mr Haines dated 7 June 2022.[29]

[21]CB7596, Joint expert witness statement of Mr Brown, Mr Molloy and Mr Haines dated 10 December 2021.

[22]CB7661, Supplementary expert valuation report of Mr Brown dated 11 March 2022.

[23]CB8400, Supplementary expert valuation report of Mr Haines dated 14 April 2022.

[24]CB8440, Supplementary expert valuation report of Mr Molloy dated 19 April 2022.

[25]CB14697, Addendum to the expert valuation report of Mr Brown dated 3 May 2022.

[26]CB15082, Correction to the expert valuation report of Mr Haines dated 26 May 2022.

[27]CB15085, Addendum to the expert valuation report of Mr Brown dated 31 May 2022.

[28]CB15111, Addendum to the expert valuation report of Mr Molloy dated 7 June 2022.

[29]CB15116, Addendum to the expert valuation report of Mr Haines dated 7 June 2022.

The applicants’ primary claim is that their entitlement to compensation should be assessed on the basis that each of the seven applicants would have offered their particular lots for sale on an individual and staggered basis, that is, in contrast to the actual sale in August 2019 when the seven applicants jointly sold their respective holdings. The valuation exercise which underpins this claim was a combination of a DSC and HDA. The applicants’ primary claim is a ‘hybrid’ valuation based on:

(i). a HDA of six of the larger lots capable of subdivision; and

(ii). a DSC of the remaining 14 lots which do not have subdivisional potential and lot 7.

Mr Brown regards certain of the larger lots which comprise the Subject Land as being ‘ripe for subdivision’:[30] lot 14 and lots 17–20.[31] For the purposes of his valuation exercise Mr Brown adopts a development plan which envisages the subdivision of each of lots 14, 17, 19 and 20 into three lots and the subdivision of lot 18 into four lots. Mr Brown adopts a HDA approach to assess the value of these lots. Lot 7 is recorded on the title as two lots. Mr Brown envisages that there could be a realignment of the title boundaries in lieu of subdivision. Mr Brown accordingly values lot 7 using the direct comparison approach.[32] The 14 remaining smaller lots are assessed by Mr Brown using a DSC analysis.
[30]Transcript of Proceedings, T 750 L 2–8 (26 May 2022).
[31]CB6638–7, Expert valuation report of Mr Brown dated 4 November 2021.
[32]CB6658, Expert valuation report of Mr Brown dated 4 November 2021.

The proposed development of the Subject Land that formed the basis of Mr Brown’s analysis was premised on several evolving versions of a development plan produced by Tract Consultants. The applicants commissioned Tract Consultants to prepare indicative plans of a subdivisional development at the Subject Land. These were referred to throughout the proceeding as the Tract Plans, and provided an indication of the potential to use and develop the Subject Land through subdivision and the construction of dwellings and outbuildings. Tract Consultants prepared various versions of the Tract Plans:

·6 June 2021 Tract Plans;
·27 July 2021 Tract Plans;
·6 August 2021 Tract Plans;
·25 October 2021 Tract Plans; and
·25 April 2022 Tract Plans.[33]

[33]See from CB14424, Appendix 1 to Supplementary Expert Report of Mr Lane dated 29 April 2022.

Each of the above iterations of the Tract Plans revised and superseded the preceding version. In particular, the successive versions of the Tract Plans revised the layout of the prospective development on the Subject Land in order to minimise impacts on native vegetation and costs associated with the construction of infrastructure such as roads. The various versions of the Tract Plans shared common features. Each assumed a form of development based on a minimum 80 ha lot size, and identified 32 proposed lots, each capable of containing a dwelling and outbuildings. A site map of the latest version of the Tract Plan is found in Annex B to this judgment. Five of the 20 lots on the undeveloped Subject Land (lots 14, 17–20) which were large enough to be subdivided into 80 ha lots were valued on the assumption that a purchaser of the lots would be able to obtain a permit for subdivision. Lots 7, which already comprise two lots, would have their boundaries realigned. The remaining 14 lots, which do not have the potential for subdivision, were valued on a DSC basis.

The applicants’ claim based on the individual sales approach, and the respondent’s offer of compensation under Part 5 of the Act, is as follows:[34]
[34]CB15022, Respondent’s Amended Particulars of Offer dated 10 May 2022; CB15103, Addendum to the Expert Witness Statement of Mr Brown dated 31 May 2022.

Applicant

Claim

Offer

AG Dennis Pty Ltd

$27,401,700

$10,555,000

Albert George Dennis

$33,696,560

$13,885,000

Dawn Allison Dennis

$23,141,475

$12,685,000

Dennis Projects Pty Ltd

$21,528,935

$10,340,000

MG Pastoral Company Pty Ltd

$46,023,545

$20,115,000

Tensa Kirsten Nominees Pty Ltd

$16,512,415

$7,685,000

Veles Anna Nominees Pty Ltd

$34,815,370

$14,260,000

Total

$203,120,000

$89,525,000

I refer to this as the applicants’ individual sale claim. The respondent’s offer in respect of the applicants’ individual sale claim is based on a DSC valuation undertaken by Mr Haines. On that valuation, Mr Haines found that the applicants were entitled to $91.86 million, but that the maximum compensation payable, as determined by s 104 of the Act, was $89.52 million. This is discussed in further detail below. The full particulars of the claim are found in Annex C to this judgment.

The applicants’ alternative claim assumes sale of the Subject Land on a whole-of-land basis: as occurred with the actual sale in August 2019, all 20 lots are offered for sale concurrently. The method of valuation is a HDA using the Tract Plan. The applicants’ claim under the joint sale HDA together with the respondent’s corresponding offer is as follows. The respondent’s offer is based on a DSC valuation undertaken by its expert witness, Mr Haines:[35]
[35]CB15021, Respondent’s Amended Particulars of Offer dated 10 May 2022; CB15104, Addendum to the Expert Witness Statement of Mr Brown dated 31 May 2022.

Applicant

Claim

Offer

AG Dennis Pty Ltd

$24,463,269

$8,085,700

Albert George Dennis

$27,553,736

$10,846,560

Dawn Allison Dennis

$16,657,798

$10,478,475

Dennis Projects Pty Ltd

$13,420,716

$8,550,935

MG Pastoral Company Pty Ltd

$39,014,940

$15,865,545

Tensa Kirsten Nominees Pty Ltd

$8,250,453

$6,459,415

Veles Anna Nominees Pty Ltd

$26,229,089

$11,331,370

Total

$155,590,000

$71,618,000

I refer to this as the applicants’ whole-of-land HDA claim. The full particulars of the claim are found in Annex D to this judgment.

In addition to the HDA of a whole-of-land sale, Mr Brown undertook two DSC valuations of a whole-of-land sale. In the first, Mr Brown assumed that the subject land absent the planning overlay would have been zoned Green Wedge Zone (‘GWZ’). In the second, Mr Brown assumed that absent the planning overlay the land would have been zoned Rural Conservation Zone (‘RCZ’).

The applicants’ claim based on a whole-of-land sale DSC valuation and GWZ/RCZ zoning is as follows:[36]
[36]CB15091–2, Addendum to the Expert Witness Statement of Mr Brown dated 31 May 2022.

Applicant

GWZ

RCZ

AG Dennis Pty Ltd

$24,310,349

$18,381,265

Albert George Dennis

$27,394,116

$20.696,787

Dawn Allison Dennis

$16,553,667

$12,516,250

Dennis Projects Pty Ltd

$13,336,817

$10,083,845

MG Pastoral Company Pty Ltd

$38,771,052

$29,314,967

Tensa Kirsten Nominees Pty Ltd

$8,198,875

$6,199,065

Veles Anna Nominees Pty Ltd

$26,065,124

$19,707,821

Total

$154,630,000

$116,900,000

I refer to this as the applicants’ whole-of-land DSC claim. The full particulars of these claims are found in Annexes E and F to this judgment.

The respondent’s offer of compensation in respect of this final formulation of the applicants’ claim is the same as in respect of the joint sale HDA: $71.62 million.

The applicants otherwise claim for compensation in a sum determined by the Court.

Legislative framework

The applicants each plead reliance on s 98(1)(a) of the Act as the basis for their claim. This section provides for a right to compensation:

98 Right to compensation
(1) The owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of—
(a) subject to subsection (1A), the land being reserved for a public purpose under a planning scheme; or

…
(1A) Subsection (1)(a) only applies if the provision of the planning scheme that has been applied to and reserves the land expressly states as a purpose “to reserve land for a public purpose”.

‘Public purpose’ is defined in s 3 as:

public purpose includes any purpose for which land may be compulsorily acquired under any Act to which the Land Acquisition and Compensation Act 1986 applies;

Section 98(1)(a) is pleaded in combination with s 106:

106 Loss on sale
(1) The owner of land may claim compensation under section 98 after the sale of the land if—
(a) the owner of the land sold it at a lower price than the owner might reasonably have expected to get if the land or part of the land had not been reserved or proposed to be reserved; and
(b) before selling the land, the owner gave the relevant authority not less than 60 days notice in writing of the owner’s intention to sell the land.

Section 104 places a cap on the maximum amount payable under the Act as the difference between the affected and unaffected value of the land:

104 Maximum amount of compensation payable
The compensation payable for financial loss under section 98 must not exceed the difference between—
(a) the value of the land at the date on which the liability to pay compensation first arose; and
(b) the value that the land would have had at the date if the land had not been affected by any circumstance set out in section 98(1) or (2) or 107.

For the purpose of s 104, the date on which liability to pay compensation arose is determined by s 99. Relevantly, s 99(b) pins the right to compensation as arising when the land is sold:

99 When does the right to compensation arise?
A right to compensation and the liability of a planning authority or responsible authority to pay compensation arises—
…
(b) under section 98(1)(a), (b) or (c), on the sale of the land concerned under section 106;

Under s 101, an applicant has a right to claim compensation for expenses incurred in preparing a claim:

101 Claim for expenses
If compensation is payable under section 98, the owner or occupier of any land may also claim from the planning authority or responsible authority any legal, valuation or other expenses reasonably incurred in preparing and submitting the claim.

Pursuant to s 105 of the Act, the dispute resolution and procedural provisions of the Land Acquisition and Compensation Act 1986 (‘LAC Act’) apply to a claim under the Act:

105 Land Acquisition and Compensation Act 1986 to apply
Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary changes, apply to the determination of compensation under this Part as if the claim were a claim under section 37 of that Act.

Section 80 of the LAC Act, which is found within part 10 of the LAC Act, permits parties to refer disputed claims for compensation to the Court for determination:

80 Application or referral of disputed claim
The Authority or the claimant may—
(a) apply to the Tribunal for determination of a disputed claim in accordance with this Act; or
(b) refer a disputed claim to the Court for determination in accordance with this Act.

Issues for determination

The issues for determination are as follows:

(i). Are the applicants able to claim compensation under ss 98 and 106 of the Act on an individual sale basis?

(ii). Issues arising out of the expert evidence which affect valuations of the Subject Land;

(iii). Is a HDA approach appropriate as a primary method of valuation in the present case, and if so, which of Mr Brown and Mr Haines’ valuations is to be preferred?

(iv). If a HDA approach is not appropriate, which of the DSC valuations captures the most comparable sales to the Subject Land?

(v). Should a check method be applied?

(vi). What is the maximum amount of compensation payable?

Are the applicants able to claim compensation under ss 98 and 106 of the Act on an individual sale basis?

The primary issue for determination is whether the applicants are able to claim compensation under ss 98 and 106 of the Act which is calculated on an individual sale basis. The respondent contends that the judgment of the Court of Appeal in Brompton Lodge Pty Ltd v Head, Transport for Victoria (‘Brompton Lodge’)[37] requires the calculation of compensation to be premised upon a whole-of-land sale.
[37][2021] VSCA 302 (‘Brompton Lodge’).

If the assessment of the applicants’ loss must be undertaken on the assumption that absent PAO7 the Subject Land would have been offered for sale on a whole-of-land basis, the applicants’ loss is approximately $20 million less than if the loss is assessed on the assumption that Subject Land would have been sold on an individual sale basis.

In Brompton Lodge, part of the applicants’ land was reserved for the future upgrade of the Western Port Highway. The applicants later sold the land for a price of $55,101,400 and made a claim for compensation under s 98(1)(a) of the Act for financial loss incurred on the sale as a result of the reservation of the land. The respondent declined to offer any compensation to the applicants on the primary basis that the applicants had not demonstrated that the land sold at a lower price than it might reasonably have been expected to get if not reserved, pursuant to s 106(1)(a) of the Act. The respondent further submitted that the actual purchase price of the land bore no relationship to the alleged affected value of $116.12 million or the alleged unaffected value of $141.33 million as pleaded by the applicants. In the judgment of the Court of Appeal, Emerton JA (as her Honour then was), Kennedy and Osborn JJA stated:

The basic proposition advanced by the applicants is that where loss on sale is relied upon as giving rise to a right to compensation for the imposition of a reservation, the loss does not have to be assessed by reference to the actual sale or, more specifically, by the actual sale price. They say that in this case, the sale price did not reflect the market value of the Brompton land and their financial loss for the purposes of s 98(1) was to be assessed by comparing the affected and unaffected market values of the Brompton land at the relevant date based on hypothetical sales. In other words, the determination of their loss as the natural, direct and reasonable consequence of the imposition of the Reservation was to be carried out on a basis almost entirely divorced from the actual circumstances of the sale to [the purchaser].
There was no dispute that the sale price of $55 million was not the price the applicants would have obtained for the Brompton land on the open market if freed from the constraint of the PD Agreement. The dispute is whether financial loss suffered by the applicants attributable to the imposition of the Reservation can be established for the purposes of s 98(1) of the PE Act by comparing different land values based exclusively on hypothetical sales, ignoring the circumstances of the actual sale of the Brompton land. As the applicants do not rely on the sale price to establish the compensation they contend is payable, it was necessary for them to persuade the primary judge that s 106(1), in combination with ss 98(1) and 99, does not require their compensable loss be established by reference to the circumstances of the actual sale and that his Honour was bound to accept as evidence of the applicants’ loss the product of the valuation exercises carried out by three valuers who assessed the affected and unaffected values of the Brompton land using market valuations.
… the scheme in pt 5 of the PE Act recognises that the reservation of land will not, in and of itself, cause loss. Indeed, reservation may enhance the value of land where it is for a purpose which, when effected, will make the land more valuable, such as the establishment of a transport corridor in an area slated for urban development. It may, at the time of reservation, not be clear whether and to what extent the value of land is reduced or enhanced by the reservation. The highest and best use of the land and its market value may change subsequent to reservation. Even where reservation can be expected to reduce the value of land, there will be no financial loss to the owner unless and until it impedes the owner’s ability to use or develop the land, or where it results in a loss on the sale of the land.
Hence, compensation under pt 5 is payable, not upon the imposition of the reservation, but only when the owner has suffered actual financial loss. Section 99 provides that the right to compensation does not arise until the happening of a specified event, being an event causing actual detriment to the owner. One of those events is the ‘sale of the land concerned under section 106’. Relevantly, s 106(1) provides that the owner may claim compensation under s 98 ‘after the sale of land’ if the owner ‘sold it at a lower price’ than he or she ‘might reasonably have expected to get’ if the land had not been reserved.
The principles of statutory construction require consideration of the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose. The words ‘sold it’ in s 106(1)(a) refer to a specific action by the owner and to a specific event; and the words ‘at a lower price’ refer to a specific outcome of that event. The reference to ‘price’ is to be compared to the use of the word ‘value’ elsewhere in pt 5. Based on the ordinary meaning of the words in s 106(1), the section calls for a comparison between an actual outcome and a hypothetical outcome that assumes the land was sold in the same circumstances as the actual sale but unburdened by the reservation.
While it is true, as the applicants submit, that s 106(1) requires entry into the hypothetical realm, the enquiry is nonetheless anchored by the sale and the price obtained for the land burdened by the reservation. It is not the case that s 106(1) simply provides a date for the assessment of loss and the vague and undemanding ‘precondition’ that there has been a sale for an amount that is less than might otherwise have been achieved absent the reservation. As Batt J said in Halwood Corporation Ltd v Roads Corporation, the sale under s 106 is ‘of practical effect in quantifying the loss caused’ and ‘furnishes the measure of the owner’s gross loss and satisfaction of the causal requirements of s 98(1)’.[38]

[38]Ibid [87]–[94] (emphasis added).

By its written submissions, the respondent relied on the Court of Appeal’s dicta in Brompton Lodge as requiring the sale in the unaffected situation to mirror the circumstances of the actual sale:

The measure of the Applicants’ financial loss is therefore the difference between the value of the Subject Land, if sold on 30 August 2019, and ‘in the same circumstances as the actual sale but unburdened by the reservation’. That is, the purpose of this inquiry is to ascertain the value of the Subject Land if it were all sold at once by the Applicants on 30 August 2019 and it were not reserved for a public purpose under the Scheme.
This does not require the Subject Land to be sold to a single purchaser, but nor does it rule that out. This conclusion flows from the circumstances of the actual sale of the Subject Land, in which all of the Subject Land were put to market at once. It was open, in these circumstances, for one, or for more than one, person to buy all or part of the Subject Land. What matters is that all of the Subject Land is presumed to have sold, as was the case on 30 August 2019.[39]

[39]Respondent’s Closing Submissions dated 28 July 2022, 7 [16]–[17].

The evidence of Mr Haines is that if all of the Subject Land was offered for sale simultaneously as in the whole-of-land scenario, this would result in a 20 per cent reduction in the sale price because of market saturation. On this basis, Mr Haines values the land at $80,968,000. However, if the Subject Land were sold on an individual basis with a staggered release to the market, the sale price would be $101,210,000. After deducting the $9.35 million which was received for the sale in August 2019, the difference in Mr Haines’ valuation is as follows:

·If the Subject Land were offered for sale on a whole-of-land basis: $71,618,000;
·If the Subject Land were offered for sale on an individual basis and not simultaneously: $91,910,000.

Consideration

I reject the respondent’s contention that the applicants’ financial loss must be assessed on the basis that all 20 lots were offered for sale simultaneously. Section 98 of the Act establishes a requirement for a causal nexus between the loss suffered and the act of reservation. The Act requires the financial loss suffered be the ‘natural, direct and reasonable consequence’ of the reservation of the land. The effect of PAO7 and ESO4 is to limit the possible uses for Subject Land to those compatible with the objective of preserving the Western Grassland Reserve. This limitation has a direct impact upon prospective purchasers interested in the Subject Land and the market circumstances in which they may seek to acquire it.

It is common ground that the highest and best use of the Subject Land in the affected scenario is for agricultural use.[40] The 20 titles comprising the Subject Land were offered for sale simultaneously on the basis of sales of individual titles, or sale of a combination of titles.[41] It was a natural, direct and reasonable consequence of the reservation of the Subject Land that the market comprised buyers interested in purchasing the whole of the Subject Land for agricultural uses. It was a natural and direct consequence of the reservation of the Subject Land that the 20 titles would be offered for sale simultaneously to maximise the potential return on the sale of the land for agricultural use. When the applicants sold their 20 lots in August 2019, the Subject Land was being used for a farming operation conducted by MG Pastoral Pty Ltd. Mr Georges acquired the whole of the Subject Land with the intention of continuing the existing farming operation.
[40]CB7601, Joint Expert witness statement of Mr Brown, Mr Molloy and Mr Haines dated 10 December 2021.
[41]CB745, Statement of Marshall Glenn Dennis dated 7 June 2021, [6].

The respondent submits that Brompton Lodge requires the Court to assume that the Subject Land would have been sold on a whole-of-land basis in the unaffected scenario. I reject this submission. The whole-of-land sale of the Subject Land was a direct consequence of the reservation, which affected both the highest and best use and prospective market of purchasers of the Subject Land. In the unaffected scenario, the expert valuers regard the Subject Land as having a different highest and best use, namely for rural/agricultural or rural-lifestyle uses and some potential subdivision. This highest and best use attracts a different market of purchasers than in the affected scenario, who may be interested in acquiring the Subject Land on an individual sale basis rather than a whole-of-land basis.

A literal reading of the phrase ‘the same circumstances’ in paragraph [93] of Brompton Lodge would require the Court to adopt an assumption that the 20 unaffected titles would be offered for sale simultaneously. If the assessment of the applicants’ loss is constrained by an assumption that the Subject Land would have been sold on a whole-of-land basis, the resulting assessment would be approximately $20 million less than the loss suffered by the applicants as a natural, direct and reasonable consequence of the Subject Land being reserved for a public purpose.

The issues in dispute in Brompton Lodge are entirely different from those in the present case. The Court of Appeal was not considering a situation where it was contended that the sale circumstances underpinning a hypothetical valuation of the land needed to directly reflect the circumstances of the actual sale of the land. In Brompton Lodge, the issue was whether the affected price needed to reflect the actual price obtained by the seller in the affected scenario. The seller had argued that the Court should instead look to the affected market value of the land to determine its affected price. The Court rejected this argument, emphasising that the enquiry must be anchored in the price actually obtained for the land in the affected reality.

Brompton Lodge is authority for the proposition that the affected price is determined by reference to the circumstances of the actual sale. Brompton Lodge is not authority for the proposition that determination of the unaffected value is to be determined by reference to the circumstances of the affected sale. Such an issue was not in dispute in the case. I reject the respondent’s submission that Brompton Lodge requires the unaffected value of the Subject Land to be determined on the basis of a whole-of-land sale of the Subject Land. Such an outcome would be inconsistent with an assessment undertaken in accordance with the natural and ordinary meaning of the text of ss 98 and 106 of the Act.

Issues arising out of the expert evidence which affect valuations of the Subject Land

Before considering the valuations prepared by the expert valuers, it is necessary to make findings regarding a number of issues which affect the value of the Subject Land. The issues to be addressed are set out below.

Engineering evidence:

(i). Cost of extending electricity and telecommunications infrastructure to the Subject Land;

(ii). Costs of road construction under the Tract Plan.

Ecological evidence:

(i). Whether approvals for native vegetation offsets would be granted;

(ii). Buffer zones around non-dwelling infrastructure;

(iii). Whether State and Commonwealth offsets could be co-located on the same parcels of land;

(iv). The costs of obtaining offsets; and,

(v). The time that it would take to obtain the offsets.

Planning evidence:

(i). The planning controls which would have applied to the Subject Land absent PAO7;

(ii). The likelihood of the future inclusion of the Subject Land in the UGB; and,

(iii). The likelihood of obtaining approvals for the subdivision and development of Subject Land under the proposed Tract Plan.

Valuation evidence:

(i). Whether GST would be payable on the resale of the subdivided lots; and,

(ii). The highest and best use of the Subject Land.

These are factors which influence the value of the ‘unaffected’ Subject Land and were relied upon by the three valuation experts in undertaking their respective HDA and/or DSC valuations. The resolution of these issues is relevant for two reasons. First, it has bearing on the question of whether a HDA or DSC approach to valuation is appropriate. The HDA approach is sensitive to the reliability of underlying inputs which replicate a prospective developer’s inquiry into the costs of undertaking a hypothetical development scheme. The respondent submits that much of the expert evidence in respect of these issues is too uncertain or disputed to form a sound basis for valuation on a HDA approach. Secondly, insofar as there is disagreement between the expert valuers the resolution of these issues provides a basis for the Court to determine which of the three valuers’ evidence is to be preferred.

Engineering evidence

The parties each led expert engineering evidence regarding the estimated cost of electricity and telecommunications infrastructure on the Subject Land. The engineering evidence is a relevant input in determining the cost of a proposed subdivision of the Subject Land under the HDA prepared by the valuation experts. The cost of the development affects the amount that a prospective developer would pay for the Subject Land and so affects the valuation of the Subject Land.

Mr Mark Whalen was called to give evidence for the applicants, with Mr Charles Shinkfield for the respondent. The parties tendered the following expert evidence:

·Expert report of Mr Shinkfield dated 12 April 2021;
·Expert report of Mr Whalen dated 3 March 2022; and
·Joint expert witness statement of Mr Whalen and Mr Shinkfield dated 4 May 2022.

Cost of extending electricity and telecommunications infrastructure to the Subject Land

It was common ground between Mr Whalen and Mr Shinkfield that in order to obtain planning permission for the Tract Plan development, the hypothetical developer would be required to provide electricity to each of the lots. The experts disagreed about the costs of the infrastructure that would be required.

There is significant disparity between the estimated costs provided by the parties’ experts. Mr Whalen estimated that it would cost approximately $1 million to extend existing overhead electricity supply to the balance of the Subject Land.[42] Mr Shinkfield estimated costs of $8.35 million. Mr Shinkfield’s estimate considered the cost of providing an underground electricity service, as opposed to an extension of the existing overhead infrastructure.
[42]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 5 [17(c)].

I do not accept Mr Shinkfield’s estimate. The estimate based on the underground electricity infrastructure was provided to him by a third party, Key Consult. Key Consult suggested that Powercor, the electricity provider, might require the landowners to use underground electricity infrastructure. While Mr Shinkfield relied on Key Consult’s opinion, he conceded that, in his view, the requirement for underground electricity infrastructure represented a ‘worst case’ scenario.[43] Mr Shinkfield was not told by Key Consult of any situation where Powercor had required a similar development to utilise underground electricity infrastructure.[44] For his own part, Mr Shinkfield considered it unlikely that Powercor would require a landowner to incur substantially larger costs when there was existing overhead electricity infrastructure.[45]
[43]Transcript of Proceedings, T 182 L 27 (16 May 2022).
[44]Ibid T 205 L 9–12 (16 May 2022).
[45]Ibid T 206 L 13–20 (16 May 2022).

Both experts agreed that a developer would not be required to extend telecommunications infrastructure to all lots on the proposed subdivision. Mr Whalen considered that, given the availability of mobile network coverage in the area, there would be no need to build telecommunications infrastructure for each dwelling. Mr Shinkfield’s evidence again relied on external advice from Key Consult, who estimated that the provision of telecommunications services would cost $1.76 million. However, in their joint statement, both Mr Whalen and Mr Shinkfield agreed that Key Consult’s estimate appeared excessive and unwarranted.[46] I accept Mr Whalen’s view that there would be no requirement for a hypothetical developer of the Subject Land to build telecommunications infrastructure.

Costs of road construction under the Tract Plan

[46]CB14712, Joint Statement of Mr Whalen and Mr Shinkfield dated 4 May 2022.

The experts provided differing estimates on the construction of roads required for the Tract Plan development. Mr Whalen provided an estimated cost of $2,066,599.[47] Mr Whalen largely based his costings on figures from Rawlinsons Construction Cost Guide (‘Rawlinsons’), as well as from his experience in the construction of a nearby development.
[47]Mr Whalen corrected his report during oral evidence: Transcript of Proceedings, T 157 L 10–2 (16 May 2022).

Mr Shinkfield estimated costs of $2,529,825. Mr Shinkfield noted that his costings were derived from various construction tenders used in nearby developments that he had been involved in, as well as from his discussions with construction engineers.[48] Mr Shinkfield conceded that Rawlinsons is the industry standard for valuations of this kind.[49] I accept Mr Whalen’s estimate of $2,066,599 based on Rawlinsons.
[48]Transcript of Proceedings, T 189 L 17–24 (16 May 2022).
[49]Ibid T 197 L 22–3 (16 May 2022).

Ecological evidence

The parties each led expert ecological evidence regarding the ecological values of the land and their implications for subdivision and development.

The ecological condition of the Subject Land is relevant to the question of whether a HDA approach to valuation is appropriate in the present case. This is because a HDA approach is premised on the possibility of subdivision and construction of dwellings and infrastructure on the Subject Land. Where land contains features of environmental significance which are protected under state and Commonwealth legislation, certain environmental approvals may need to be obtained in order to realise the hypothetical development. The process of obtaining state and Commonwealth approvals for native vegetation removal may operate as a barrier to the viability of any scheme of hypothetical development of environmentally protected land. In addition, approvals for native vegetation removal may be subject to conditions that the landowner secure environmental offsets. The process of obtaining offsets may operate as a further barrier to hypothetical development due to the availability (or lack thereof) of suitable offsets. Uncertainty as to whether or not approvals for native vegetation removal and/or offsets would be obtained contributes to the profit and risk margin adopted on a HDA approach.

In the event that a HDA approach to valuation is appropriate in the present case, the ecological evidence has ongoing relevance. The length of time required to obtain both approvals and offsets is relevant to a HDA approach as it affects the lead-in time, and associated holding costs, of a scheme of hypothetical development. The costs of both obtaining approvals and offsets are inputs which a hypothetical developer must take into account as part of the costs of developing land through subdivision and construction.

The ecologists also gave evidence concerning the extent of native vegetation removal required in the immediate vicinity of dwellings and other infrastructure (such as driveways, tennis courts and swimming pools). This issue assumes further relevance in relation to a HDA valuation as the ecological evidence forms a basis on which the planning experts may evaluate whether planning permits for subdivision and the construction of dwellings on the Subject Land would be obtained.

The ecological condition of the Subject Land is also relevant to valuation on a DSC approach. Whether the Subject Land contains native vegetation is a factor which affects prospective uses and its value. It is necessary to ascertain the environmental values of the Subject Land in order to identify comparable sales of land which also bear similar environmental values.

Whether environmental approvals would be granted

Mr Brett Lane was called to give evidence for applicants, with Mr Andrew Hill for the respondent. The parties tendered the following expert evidence:

·Expert report of Mr Hill dated June 2021;
·Expert report of Mr Lane dated August 2021;
·Joint expert witness statement of Mr Lane and Mr Hill dated 26 August 2021;
·Supplementary expert report of Mr Hill dated 8 April 2022;
·Supplementary expert report of Mr Lane dated 5 May 2022; and
·Second joint expert statement of Mr Lane and Mr Hill dated 26 May 2022.

It is common ground that a suitable representation of the ecological condition of the Subject Land (including threatened communities and species’ habitat) is set out in the first report of Mr Hill.[50] The Subject Land contains features of environmental significance listed under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Subject Land forms part of the nationally listed ecological community of the Natural Temperate Grassland of the Victorian Volcanic Plain, and also supports habitat of nationally listed fauna species (Golden Sun Moth and Striped Legless Lizard) and flora species (Matted Flax-lily, Clover Glycine and Spiny Rice-flower).[51]
[50]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 6 [18].
[51]CB1580–1, 1592, Expert Report of Mr Brett Lane dated 3 June 2021.

It was common ground that certain environmental approvals would have been required to subdivide and construct dwellings on the Subject Land: at the state level, approvals under the Flora and Fauna Guarantee Act 1988 and the Victoria Planning Provisions, and at the Commonwealth level, approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).[52]
[52]CB3971–2, Joint Statement of Mr Hill and Mr Lane dated 9 September 2020; Transcript of Proceedings, T 219 L 26 – T 220 L 18 (16 May 2022).

I have concluded that the applicants may claim compensation under ss 98 and 106 of the Act on an individual sale basis. On the question of whether approvals would be obtained for native vegetation removal required to enact subdivision of the Subject Land and the development of dwellings in accordance with the April 2022 Tract plans, Mr Lane considered that approvals would be obtained for subdivision and dwellings in circumstances where each individual landowner made a separate application.[53] Mr Hill likewise considered it likely that individual applications for native vegetation removal to subdivide and construct dwellings would be granted.[54]
[53]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 6 [19(c)].
[54]Transcript of Proceedings, T 366 L 12–16 (18 May 2022).

It was common ground that approvals for the subdivision and construction of dwellings on the Subject Land would be subject to a condition that the landowner secure environmental offsets. An offset compensates for negative environmental impacts in one area of a parcel of land by securing land with those same significant environmental attributes elsewhere, either on the same parcel of land (first-party offset) or on a different parcel of land (third-party offset).

Buffer zones around non-dwelling infrastructure

On the question of the extent of native vegetation removals required to develop the Subject Land under the Tract plans, it is common ground that all native vegetation within 10 metres of dwellings would be removed.[55] It was also common ground that native vegetation within four metres of newly constructed fences would be removed.[56] However, the ecologists disagreed as to the extent of land around non-dwelling infrastructure (such as driveways, sheds, swimming pools and tennis courts) which would need to be cleared of native vegetation.[57] Both Mr Lane and Mr Hill agreed that this was a matter of professional opinion and experience on which experts could differ.[58]
[55]CB15062, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[56]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 9 [26].
[57]CB15063, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[58]Transcript of Proceedings, T 284 L 18–22; T 320 L 7–12 (17 May 2022).

Mr Lane gave evidence that a 2-metre area around such infrastructure would need to be disturbed.[59] This figure was drawn from his professional experience, in which council approvals were obtained in applications with 2-metre buffer zones.[60]
[59]CB14407, Supplementary Expert Witness Statement of Mr Lane dated 29 April 2022.
[60]Transcript of Proceedings, T 223 L 27–31; T 242 L 19–22 (16 May 2022); T 259 L 10–20; T 284 L 1–10 (17 May 2022).

Mr Hill gave evidence that a 10-metre area would need to be disturbed.[61] In his oral evidence, he indicated that after a process of negotiations with the deliberating planning officer, a margin of 5 to 6 metres might be acceptable, representing a middle-ground figure between the proffered 2-metre and 10-metre buffer zones.[62] Mr Hill described the 10-metre buffer as ‘precautionary’ and adopted this wider buffer zone due to the sensitivity of grasslands and their high susceptibility to disturbance.[63] Mr Hill based the 10-metre buffer on his professional experience.[64]
[61]CB7685, Expert Report of Mr Hill dated 8 April 2022; Transcript of Proceedings, T 321 L 17–8 (17 May 2022).
[62]Transcript of Proceedings, T 322 L 19–24 (17 May 2022).
[63]Ibid T 319 L 14–24 (17 May 2022).
[64]Ibid T 321 L 19–28 (17 May 2022)

Mr Lane and Mr Hill attended two joint conferences, one of which followed both experts’ oral evidence and was aimed at discussing matters of agreement and disagreement in relation to their evidence to the Court. Nevertheless, the second joint expert statement of Mr Lane and Mr Hill confirms their disagreement on the distance from non-dwelling infrastructure in which native vegetation removal would be required.[65] Both of the ecologists were informed in their views by their professional experience, which was not called into question in cross-examination. On balance, I prefer the evidence of Mr Hill that due to the sensitivity of the grasslands and their susceptibility to disturbance a 10-metre area would need to be disturbed.

Co-location of offsets

[65]CB15063, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.

Mr Lane and Mr Hill disagreed as to the prospect of co-locating State and Commonwealth offsets on the same land. The significance of this issue is that co-location results in lower offsets costs because it obviates the need to obtain offsets on separate parcels of land with separate costs. Both experts agreed that co-location is explicitly permitted under the Commonwealth Environmental Offsets Policy, provided that the offsets form part of the same action and are established simultaneously.[66]
[66]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.

Mr Lane assumed co-location of offsets in his analysis.[67] Mr Lane agreed that finding land with characteristics suitable for co-location was ‘challenging at times’ but ‘not impossible’, and that in particular ‘Plains Grassland remnant of sufficient quality for offsets were hard to find’.[68] He stated that co-location was achievable because ‘developers had a strong incentive to find such solutions due to the considerable costs associated with not finding co-located offsets’.[69] Mr Lane gave evidence that these offset sites could be obtained in 12 to 18 months.[70]
[67]CB14730, Supplementary Expert Witness Statement of Mr Lane dated 10 May 2022.
[68]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[69]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[70]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.

Mr Hill stated that there was a scarcity of land which could accommodate both State and Commonwealth offsets, making co-location difficult in practice.[71] He stated that very little Plains Grassland remains to the west of Melbourne,[72] and that offsets were additionally required to be of sufficient quality in terms of weed cover and site condition.[73] Insofar as suitable sites could be obtained, Mr Hill stated that the process of obtaining co-located offsets could take 2 to 3 years.[74]
[71]Transcript of Proceedings, T 397 L 22 – T 398 L 31 (18 May 2022).
[72]Ibid T 399 L 1–20.
[73]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[74]Ibid.

I accept the evidence of Mr Hill. Both experts acknowledge the difficulty in locating land with suitable ecological characteristics for co-location. Mr Lane’s acceptance of the difficulty in finding suitable land is inconsistent with his conclusion that offset requirements would be met by co-location, and that this could be achieved in 12 to 18 months. I accept Mr Hill’s evidence that offset requirements would most likely be located on separate parcels of land.

Costs of obtaining offsets

On the question of the costs of obtaining offsets, Mr Lane assessed the cost of obtaining state and Commonwealth offsets for subdivision as per the April 2022 Tract plans on an individual application basis as $664,351.81.[75] In addition, Mr Lane assessed the cost of obtaining state and Commonwealth offsets for dwellings as per the April 2022 Tract plans as being $429,026.38.[76] Mr Lane’s assessment of the cost of offsets totals $1,093,378.18.[77] Mr Hill did not carry out an assessment of the offset costs for subdivision or dwellings as per the April 2022 Tract plans,[78] but assessed the offset costs for subdivision and dwellings as per the October 2021 Tract plans at $4,912,297.51.[79] I also note that the ecologists were not able to compare or agree offset costs for clearing vegetation within the road reserves.[80]
[75]CB14730, Supplementary Expert Witness Statement of Mr Lane dated 10 May 2022.
[76]CB14728, Supplementary Expert Witness Statement of Mr Lane dated 10 May 2022.
[77]CB14730, Supplementary Expert Witness Statement of Mr Lane dated 10 May 2022.
[78]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 7 [20(b)], [21(c)].
[79]CB7688, Addendum to the Expert Witness Statement of Mr Hill dated 13 April 2022.
[80]Joint Statement of Agreed and Disagreed Issues dated 9 August 2022, 10 [31].

I accept Mr Hill’s evidence that a 10-metre offset would be required around non-dwelling infrastructure. Even assuming that the revision of the Tract plans between October 2021 and April 2022 further minimised the extent of impacted vegetation and lowered the costs of offsets, I infer that the offset costs would exceed Mr Lane’s assessment. However in the absence of expert evidence led by the respondent as to the offset costs for subdivision or dwellings as per the April 2022 Tract plans, and the inability of the experts to agree on the extent of vegetation removal necessary in the road reserves, I am unable to make a finding as to the cost of obtaining offsets. This uncertainty attending the costs of obtaining offsets influences the appropriateness of a HDA in the present case, as discussed below.

The time that it would take to obtain the offsets

I accept Mr Hill’s evidence that offset requirements would most likely be located on separate parcels of land. On the question of how long it would take to obtain approvals and offsets, Mr Lane gave evidence that these could be obtained in 12 to 18 months.[81] This timing estimate reflected his conclusion that offsets could be co-located. Mr Hill gave evidence that Commonwealth approvals would take 12 months for simple sites and two to three years for sites requiring offsets,[82] and that state approvals would take 12 months.[83] I accept Mr Hill’s evidence that the scarcity of land bearing the environmental characteristics suitable for use as an offset site would result in a timeline of 1 to 3 years to obtain approvals and offsets.
[81]CB15066, Second Joint Statement of Mr Hill and Mr Lane dated 11 July 2022.
[82]Transcript of Proceedings, T 324 L 9 (17 May 2022).
[83]Ibid T 324 L 22.

Planning evidence

The parties each led evidence from a planning expert regarding the zoning of the Subject Land in the unaffected scenario. Ms Colleen Peterson gave evidence on behalf of the applicants, Ms Sophie Jordan gave evidence on behalf of the respondent. There was significant disagreement between the parties regarding the planning controls that would have applied to the Subject Land had it not been reserved under PAO7. The planning controls affecting the Subject Land are relevant to its valuation on both a HDA and under a DSC analysis. Under a DSC analysis, a key factor in determining comparability of comparison sales is whether the properties have common zoning. To this end, the applicant’s valuer, Mr Brown, produced two DSC valuations premised on the Subject Land being zoned either GWZ or RCZ, with different comparison properties being used in either valuation. Similarly, under a HDA the valuer looks to the gross realisation that can be achieved under the proposed subdivision by comparing the developed lots with prices obtained for similar lots. Accordingly, it is necessary to determine the likely zoning of the Subject Land in the unaffected scenario.

The planning experts also tendered evidence on the prospects that the Subject Land would be included in the UGB, a factor which is relevant to its valuation on both a HDA and under a DSC analysis. In general, prospective purchasers are willing to pay more for land which has higher prospects of inclusion in the UGB. All of the valuers found that the likelihood of a property’s inclusion in the UGB in the future significantly influenced sale prices for properties to the west of Melbourne. Under a DSC analysis, a factor in determining comparability of comparison sales is whether the property has similar prospects of inclusion in the UGB as does the Subject Land. This is also a relevant factor under a HDA approach due to the need to compare developed lots with prices obtained for similar lots.

The parties tendered the following expert evidence:

·Expert report of Ms Peterson dated 6 August 2021;
·Expert report of Ms Jordan dated 2 August 2021;
·Joint expert witness statement of Ms Peterson and Ms Jordan dated 9 September 2021;
·Supplementary expert report of Ms Peterson dated March 2022;
·Supplementary expert report of Ms Jordan dated 11 April 2022; and
·Addendum to the joint expert witness statement of Ms Peterson and Ms Jordan dated 5 May 2022.

Which planning controls would have applied to the Subject Land in the absence of PAO7?

The Subject Land had previously been zoned Rural Zone between 1999 and 2004. In 2004, the Subject Land was zoned GWZ. The effect of PAO7 was to rezone the land as RCZ.[84] It was in issue between the parties whether absent PAO7, the Subject Land would have been zoned RCZ or GWZ.
[84]CB3820, Report of Ms Sophie Jordan dated 2 August 2021, [98].

Ms Peterson described the difference between GWZ and RCZ as follows:

[T]he primary difference is that the Green Wedge Zone looks to protect and preserve land for a variety of different reasons, of which the environmental qualities is one, whereas the Rural Conservation Zone, its primary objective is to protect land for its ecological or environmental values.[85]

Despite the greater emphasis that is placed on environmental protection in land zoned RCZ, the minimum size for subdivision is 40 ha, as opposed to a 80 ha on GWZ land.[86]

[85]Transcript of Proceedings, T 441 L 29 – T 442 L 3 (18 May 2022).

[86]CB3822, Report of Ms Sophie Jordan dated 2 August 2021, [105].

Ms Peterson contended that absent PAO7, the Subject Land would have remained in the GWZ. Ms Peterson considered that the GWZ would provide an adequate statutory framework to address the planning issues arising from the Subject Land’s environmental and conservation values. Ms Peterson noted further that the GWZ would be suitable to allow for ongoing agricultural activities on the Subject Land. Accordingly, Ms Peterson did not consider there would be any cause for the Subject Land to be rezoned.

Central to Ms Peterson’s opinion that the Subject Land would remain zoned GWZ was her view that there was no relevant ‘trigger’ for the planning authority to consider rezoning the land. Ms Peterson described the concept of a rezoning trigger as follows:

It is very rare, in my experience, that land would be re-zoned without it being predicated by a proposed development, a push by a particular landowner to achieve a particular outcome or that there would be some other threat to land that would require the council to take the initiative. Can I say, to perhaps give an example in this particular instance, the ecological value of the grasslands is well known and identified. The use of the land continues on in its current form with grazing; there’s no real change in circumstances. But an owner or some owners of the land bring forward an application that seeks to build a school and then that might be the trigger point at which the council says, ‘Is that the right zone and is this the right type of development we want, because that would bring about a change of activity that would detrimentally impact on grasslands.’ But while the existing zone and the existing use of the land are simply continuing the status quo, I don’t think there is that event that would warrant a re-zoning.[87]

[87]Transcript of Proceedings, T 481 L 31 – T 482 L 19 (18 May 2022).

In conjunction with the GWZ zoning, Ms Peterson considered that the Subject Land would also have been subject to an ESO similar to the Wyndham Planning Scheme’s ESO5.[88]
[88]CB3976, Joint Expert Witness Statement of Ms Jordan and Ms Peterson dated 9 September 2021, [2].

Ms Sophie Jordan gave evidence on behalf of the respondent. Ms Jordan opined that absent PAO7 the Subject Land would have been zoned Rural Conservation Zone:

I would consider the Rural Conservation Zone to be the most relevant and appropriate zone in the circumstances really is based upon the significance of the land from an environmental perspective; but, really breaking that down a little bit further, the high biodiversity value of the land, the degree to which it was deemed significant at a State and national perspective; also the degree to which the vegetation covers the site.[89]

Ms Jordan’s opinion of the environmental and conservation values of the Subject Land were based on the opinions expressed by the respondent’s ecologist, Mr Hill.

[89]Transcript of Proceedings, T 557 L 19–27 (23 May 2022).

Ms Jordan considered that RCZ provided the most appropriate protection for the particular environmental and conservation values of the Subject Land. Ms Jordan arrived at this conclusion from her consideration of Planning Practice Note 42 – Applying the Rural Zones,[90] a document authored by the Victorian Government that provides guidance on the purposes and features of various rural planning zones. In this regard, Ms Jordan noted that:

Planning Practice Note 42 – Applying the Rural Zones published by the State Government in 2015 identifies that the Rural Conservation Zone as being suitable in circumstances where environmental or landscape features cover a large area. In locations where there is evidence of environmental degradation and threatened species habitat is in existence, the Rural Conservation Zone provides a more cautious approach to land use and development to avoid further environmental damage.[91]

[90]CB14200, Planning Practice Note 42 – Applying the Rural Zones dated June 2015.

[91]CB3830, Report of Ms Sophie Jordan dated 2 August 2021, [142].

Ms Jordan further considered that, subject to environmental considerations and permit requirements, RCZ could appropriately accommodate the Subject Land’s agricultural uses.[92] Ms Jordan noted that alongside the RCZ designation, the Subject Land would likely also be subject to an ESO similar to ESO4.[93]
[92]CB3830, Report of Ms Sophie Jordan dated 2 August 2021, [144].
[93]CB3976–7, Joint Expert Witness Statement of Ms Jordan and Ms Peterson dated 9 September 2021.

I accept Ms Jordan’s opinion that absent PAO7, the Subject Land would have been zoned RCZ at the relevant date.

Initially, the experts’ opinions of the likely zoning were based on different inputs. Ms Jordan’s evidence was based on the mapping provided by Mr Hill, while Ms Peterson relied on the mapping provided by Mr Lane.[94] Following the filing of the ecologists’ Joint Expert Statement on 25 August 2021 it became common ground between the parties that, due to the nature and extent of Mr Hill’s survey, the ecological mapping undertaken by Mr Hill more accurately captured the Subject Land’s ecological values.[95]
[94]CB1148, Report of Ms Colleen Peterson dated August 2021, [6.1.3].
[95]CB3969, Joint Expert Witness Statement of Mr Lane and Mr Hill dated 26 August 2021, [1].

In the Joint Expert Statement, the ecologists agreed that there were ‘significant differences in the extent of mapped native grassland’ between their respective reports.[96] Mr Lane’s survey had concluded that approximately 30% of the Subject Land contained native vegetation,[97] while Mr Hill found that approximately two-thirds of the Subject Land contained native vegetation.[98] The parties subsequently revised the Tract Plan to reflect Mr Hill’s findings.
[96]Ibid.
[97]CB858, Expert Report of Mr Brett Lane dated 6 August 2021, [4.1.2].
[98]Transcript of Proceedings, T 301 L 13–7 (17 May 2022).

In light of Mr Lane’s adoption of Mr Hill’s native vegetation mapping and the revised Tract Plan, Ms Peterson was subsequently instructed to provide an addendum to her initial expert report addressing the updated ecological mapping and the revised Tract Plan (‘Addendum Report’). Ms Peterson was primarily asked to address issues relating to subdivision and the provision of services to the proposed hypothetical development, and was not instructed to specifically consider the effect of Mr Hill’s ecological mapping on her opinion of the likely zoning of the Subject Land.[99]
[99]CB7625, Addendum to Expert Report of Ms Colleen Peterson dated 11 March 2022, [1.1.2]; Transcript of Proceedings, T 477 L 5–8 (18 May 2022).

However, Ms Peterson provided a brief comment on whether the revised ecological mapping affected her initial view that the Subject Land would otherwise be zoned GWZ:

I also consider that my original opinion regarding the underlying zone of the land (GWZ) remain unchanged, recognising the objectives of this zone and the combined effect of the ESO.[100]

[100]CB7630, Addendum to Expert Report of Ms Colleen Peterson dated 11 March 2022, [2.3.3].

Ms Peterson considered that there was a substantial difference between the two ecologists’ reports.[101] Ms Peterson agreed that her statement in her initial report, that the zoning of the land ‘would be influenced by its environmental quality’, underemphasised the impact that Mr Hill’s evidence of the Subject Land’s environmental values would have on the zoning.[102]
[101]Transcript of Proceedings, T 471 L 6–20 (18 May 2022).
[102]Ibid T 469 L 3–21; CB1149, Report of Ms Colleen Peterson dated August 2021, [6.1.2].

Ms Peterson nonetheless considered that the Subject Land would have remained GWZ despite the significant shift in the underlying ecological evidence:

MS FOLEY: Just to be clear, the fact that the vegetation - the extent of the native vegetation on the subject land goes from around 30 per cent to 64 per cent makes no difference to you in terms of the zoning of the land?---
MS PETERSON: Because the Green Wedge Zone is still set up to protect the environmental values of land, that the decision guidelines and the objectives clearly give rise to that as a key consideration and decision-making point - you obviously still have the state and local planning policy to guide decisions - but I do accept that because of the value of that land, that an ESO would have been highly likely to have come into play regardless of the reservation.[103]
…
MS FOLEY: So your position is that because a Green Wedge Zone allows for the protection of environmental attributes of land, that that’s sufficient as being one of the suite of issues that the Green Wedge Zone can address, as opposed to a zone which is specifically directed to preserving the biodiversity of the land?---
MS PETERSON: I’m not saying that the Rural Conservation Zone couldn’t work as an appropriate zone but rather that, in the absence of a trigger event like the grasslands, was there sufficient momentum at that time to re-zone the land, and I don’t think there was given - if it was in a farm zone, possibly. But because it’s in the Green Wedge Zone, which does provide for environmental protection, I think that it’s more likely that we would have seen the status quo continue on, which, as I say, is reflected in what’s happened with the land that was affected by the hinterland ESO.[104]

[103]Transcript of Proceedings, T 473 L 18–29 (18 May 2022).

[104]Ibid T 474 L 1–17.

Ms Peterson’s opinion is underpinned by her belief that there was no relevant trigger event that would cause a rezoning of the Subject Land. When pressed on whether a trigger was necessary to occasion a rezoning of the Subject Land, Ms Peterson conceded that there was no requirement for a triggering event. Rather, Ms Peterson considered that as a matter of her own experience, it would be ‘very rare’ for a rezoning to occur absent a triggering event.[105]
[105]Ibid T 481 L 28 – T 482 L 5.

Mr Brown gave the property an analysed value of $63,381 per hectare.[252] He regarded its location as inferior to that of the Subject Land.

2–92 and 94–148 Harkness Road, Harkness

[252]CB6651, Expert valuation report of Mr Brown dated 4 November 2021.

The properties at 2–92 and 94–148 Harkness Road, Harkness are two properties comprising a total of 324.1 ha located to the north of the Subject Land and less than 2 km from developed areas of Melton West. The 94–148 Harkness Road property is the immediate southern neighbour of the 2–92 Harkness Road property. The properties were sold to the same purchaser in July 2019 and were frequently considered together in the valuers’ evidence.

The 2–92 Harkness Road property is 243.7 ha in size and is predominantly zoned GWZ with 38.5 ha of RCZ zoning along the property’s western boundary which abuts Djerriwarrh Creek. The property is subject to a BMO and two ESOs. The property was sold for $20.3 million in July 2019. Mr Haines gave the property an analysed value of $65,784 per hectare.

The 94–148 Harkness Road property is 80.4 ha in size and is likewise predominantly zoned GWZ, save for two patches of RCZ land totalling approximately 7.6 ha. The property is subject to the same overlays as its northern counterpart, alongside a Development Plan Overlay. The property was sold for $6.7 million in July 2019. Mr Haines gave the property an analysed value of $66,466 per hectare.

Mr Haines considered that the rate at which the Harkness Road properties sold reflected purchaser speculation in the Melton/Harkness area. He did not, however, view the Harkness Road properties as having a high prospect of inclusion within the UGB. Mr Haines viewed the properties as having subdivisional potential and good access to local amenities.[253] Under the terms of the relevant planning scheme, the Harkness Road properties are subject to smaller minimum subdivision requirements than the Subject Land, with subdivisions of a minimum size of 5 ha.
[253]Transcript of Proceedings, T 899 L 1–13 (27 May 2022).

Mr Brown considered the Harkness Road properties as part of his GWZ valuation, providing an analysed value of $67,541 per hectare. Mr Brown considered that the Subject Land had a superior location and more regular shaped lots and so attracted a higher per lot price.[254]

1182–1250 Exford Road, Eynesbury

[254]CB6647, Expert valuation report of Mr Brown dated 4 November 2021.

The property at 1182–1250 Exford Road, Eynesbury is a 72.8 ha property zoned GWZ located approximately 11 km to the north of the Subject Land. The property is subject to an ESO and is in immediate proximity to the UGB. The property’s improvements include both a two-bedroom cottage and a large homestead. The site is subject to a Heritage Overlay (‘HO’) and contains a heritage-listed woolshed and silo. The property sold for $5.4 million in April 2018. Mr Haines gave the property an analysed value of $67,265 per hectare.[255]
[255]CB6954, Expert valuation report of Mr Haines dated 13 October 2021.

Mr Molloy gave some consideration to the property, providing an analysed value of $64,322. Ultimately, Mr Molloy considered that the price paid for the Exford Road property was reflective of its subdivisional potential and longer term speculative land banking attributes.

Mr Brown considered the Exford Road property as part of his GWZ DSC analysis. He gave the property an analysed value of $65,202 per hectare. Mr Brown ultimately considered that the property’s location and irregular shape rendered it inferior to the Subject Land.[256]

21–257 and 220–290 Eynesbury Rd, Eynesbury

[256]CB6650, Expert valuation report of Mr Brown dated 4 November 2021.

The properties at 21–257 and 220–290 Eynesbury Rd, Eynesbury comprise two semi-contiguous lots totalling 231.62 ha located to the north-east of the Subject Land and, at its closest point, is within 1 kilometre of the UGB. The property is zoned GWZ and is subject to an ESO. Improvements on the property consist of a dwelling and ancillary rural improvements. The eastern edge of the property abuts the Werribee River. The property sold for $14 million in July 2018. Mr Haines gave the property an analysed value of $43,751 per hectare.[257]

547 Bulmans Road, Harkness

[257]CB6955, Expert valuation report of Mr Haines dated 13 October 2021.

The property at 547 Bulmans Road, Harkness is a 61.9 ha property located to the north of the Subject Land that is situated adjacent to the UGB. The property is zoned GWZ and is not subject to any overlays. Improvements include a dwelling and ancillary rural improvements. The property sold for $10 million in October 2018, Mr Haines provided an analysed value of $132,491 per hectare.[258]
[258]Ibid.

Mr Haines considered that the price paid for the Bulmans Road property was a product of high expectation of future urban inclusion and the property’s proximity to the UGB.[259] Mr Molloy agreed with this proposition.[260]
[259]Transcript of Proceedings, T 837 L 21–6 (26 May 2022).
[260]Ibid T 957 L 19–27 (27 May 2022).

Mr Brown likewise considered this property as part of his GWZ DSC analysis, providing an analysed value of $153,312 per hectare. He considered that the property was in an arguably inferior location to the Subject Land, but otherwise represented the upper limit for rates per hectare that similar-sized lots on the Subject Land could achieve.

Consideration

With the exception of the properties at 925 Bulban Road, Little River and 547 Bulmans Road, Harkness, I accept that the above-described sales are comparable. Each of these properties is used for rural and/or rural residential uses, which also reflects the highest and best uses of the Subject Land. Some of the properties have subdivisional potential or some prospects of urban inclusion, but the valuers did not regard these as transactions driven primarily by speculative or ‘land-banking’ considerations. They otherwise share characteristics with lots of the Subject Land in terms of their zoning, size and/or location. I therefore accept Mr Haines’ evidence that these are comparable as ‘urban-peripheral transactions between $30,000/ha and $72,000/ha, which reflect useable agricultural lands with premiums for proximity to amenities within the Urban Growth Boundary’.[261]
[261]CB7613, Joint expert witness statement of Mr Brown, Mr Molloy and Mr Haines dated 10 December 2021.

I do not place weight on the sale of 925 Bulban Road, Little River. That property was sold as a mortgagee-in-possession sale, rendering it a less reliable indicator of market performance. It is also a rural enterprise, with substantial improvements in the form of industrial poultry sheds and other business-related improvements. By contrast, the valuation evidence indicates that the prospective uses for the Subject Land are rural activities in the nature of cropping and grazing, rather than larger-scale agricultural business activities. I do not consider this to be a comparable sale.

I also find it difficult to draw conclusions from the sale of 547 Bulmans Road, Harkness. That property is adjacent to the UGB and has no apparent native vegetation constraints, resulting in a much higher expectation of urban inclusion than the Subject Land. Therefore I do not consider this to be a comparable sale.

Other sales of basic agricultural properties

In addition to 570 Parwan-Exford Road, Parwan, Mr Haines relied on a number of other sales which he described as having ‘more “basic” agricultural value… (which is instructive for the Subject Land’s larger and more west/south-west allotments)’.[262]
[262]Ibid.

·965 Little River-Ripley Road, Little River;
·85–125 Gifkins Road, Little River;
·305 Box Forest Road, Balliang;
·665 Granite Road, Little River; and,
·150 Breguet Road, Lara.

965 Little River-Ripley Road, Little River

The property at 965 Little River-Ripley Road, Little River is a 88.7 ha property located to the south-west of the Subject Land. The property is zoned FZ and is also subject to an ESO, a Significant Landscape Overlay (‘SLO’) and HO. The property was sold in January 2019 for $3.32 million. It has a significant heritage bluestone dwelling and other substantial ancillary improvements to which Mr Haines ascribed $1.5 million of the sale price. Mr Haines gave the property an analysed price of $20,523 per hectare.[263]

85–125 Gifkins Road, Little River

[263]CB6949, Expert valuation report of Mr Haines dated 13 October 2021.

The property at 85–125 Gifkins Road, Little River is a 64.7 ha property located approximately 5 km to the south west of the Subject Land. The property is zoned FZ and is subject to a BMO and Significant Landscape Overlay. Mr Haines notes in his report that he had been told by the selling agent that the property was purchased as a rural lifestyle allotment. The property was sold in April 2019 for $1.74 million. Mr Haines gave the property an analysed rate of $27,027 per hectare.

305 Box Forest Road, Balliang

The property at 305 Box Forest Road, Balliang is a 135 ha property located 13 km south-west of the Subject Land at the outskirts of the Balliang township. It is a rectangular-shaped parcel used for rural and rural-residential uses. The property is zoned FZ and is located within the Greater Geelong Planning Scheme’s Northern Rural area with a minimum subdivision area of 80 ha. It is improved by a dwelling and ancillary improvements. The property sold in March 2018 for $2.6 million. Mr Haines gave the property an analysed price of $18,148 per hectare.

665 Granite Road, Little River

The property at 665 Granite Road, Little River is a 66.7 ha property located to the south-west of the Subject Land. It is a rectangular-shaped parcel used for grazing. The property is zoned FZ and half of the property is subject to ESO4 as it forms part of the Victorian Volcanic Plain Bioregion. It is improved by a dwelling and ancillary improvements. The property sold in April 2018 for $1.2 million. Mr Haines gave the property an analysed price of $17,508 per hectare.[264]

150 Breguet Road, Lara

[264]CB6954, Expert valuation report of Mr Haines dated 13 October 2021.

The property at 150 Breguet Road, Lara is a 59.7 ha property located to the south-west of the Subject Land on the north-western outskirts of the township of Lara and one site removed from Barwon Prison. It does not have strong prospects of urban inclusion. It is a flat, rectangular-shaped site. The property is zoned FZ and is also subject to a floodway overlay. It is improved by a dwelling and ancillary improvements. The property sold in December 2018 for $1.7 million. Mr Haines gave the property an analysed price of $25,981 per hectare.[265]

Consideration

[265]CB6956, Expert valuation report of Mr Haines dated 13 October 2021.

I accept that the above-described sales are comparable. Each of these properties is used for rural and/or rural residential uses, as each is improved by a dwelling (with the exception of 85–125 Gifkins Road, Little River, which was nevertheless purchased as a rural-lifestyle concern). These properties therefore share the highest and best uses of the Subject Land, as well as sharing characteristics with lots of the Subject Land in terms of their zoning, size and/or location. I therefore accept Mr Haines’ evidence that these are comparable to the larger and more west or south-west lots of the Subject Land, being those with more basic agricultural value.

Conclusion on Mr Haines’ evidence

The right to compensation under s 98 of the Act is for financial loss suffered as a natural, direct and reasonable consequence of the land being reserved for a public purpose under PAO7. The assessment of the loss requires a comparison between the price actually received on the sale of the affected land ($9.35 million) compared to what the owner might reasonably have expected to receive if the land was not reserved. The evidence of Mr Haines provides strong support for finding that, absent the reservation, the applicants would have sold their individual holdings in a staggered fashion resulting in total receipts of $101.21 million. Based on the affected value of $9.35 million, the applicants have established a financial loss of $91.86 million.

Mr Molloy’s evidence

In this proceeding Mr Haines assumed the role of the primary valuer on behalf of the Valuer-General, with Mr Molloy acting as a check valuer on behalf of the Victorian Government Land Monitor.[266] This practice was adopted because, in circumstances where the land valuation in question exceeds a value of $750,000, the Victorian Government Land Monitor requires two independent valuations to be prepared. Therefore, Mr Molloy’s evidence assumed a secondary level of importance in the respondent’s case, serving to corroborate the evidence of Mr Haines. In light of this and the above findings, it is not necessary to further address Mr Molloy’s valuation evidence.
[266]Transcript of Proceedings, T 150 L 19–31 (16 May 2022); T 977 L 19 – T 978 L 6 (30 May 2022).

Should a check method be applied?

I have concluded that the DSC analysis is the appropriate valuation methodology to use in this case. I accept Mr Haines’ DSC, which results in an unaffected value of $101.21 million. Both Mr Brown and Mr Haines produced a check valuation. Mr Molloy did not undertake a check valuation.

Mr Brown’s primary method of valuation was the HDA. His check valuations were the GWZ and RCZ DSC analyses discussed above. For reasons I have previously stated I do not accept that those valuations accurately value the Subject Land.

Mr Haines undertook a HDA of the Subject Land using the Tract Plans as a check method. On this valuation, Mr Haines valued the Subject Land at $66.05 million. This figure was based on a gross realisation figure of $132.06 million less selling costs of $9,845,758 and a profit and risk margin of 25% ($24,503,048). Mr Haines then deducted development and incidental purchase costs, including holding charges, totalling $31,665,195.

The difficulties that attended Mr Brown’s HDA valuation also arise in respect of Mr Haines’ HDA valuation. The lack of a comparable development scheme and significant evidentiary uncertainties relating to the various inputs that comprise the analysis render Mr Haines’ HDA valuation similarly unsuitable for use as a check method. In any event, Mr Haines’ HDA valuation produces a much lower valuation than that achieved on the DSC analysis. While I do not consider Mr Haines’ HDA valuation to provide confirmation of the valuation reached by the DSC analysis, it nonetheless demonstrates the appropriateness of a DSC analysis on the facts of the present case. Mr Haines’ DSC analysis provides an appropriate basis for valuing the Subject Land.

What is the maximum amount of compensation payable?

I have determined that the applicants have established a financial loss of $91.86 million. A question arises as to whether s 104 of the Act would otherwise restrict that sum being payable as compensation. Section 104 places the cap on the maximum amount payable under the Act as the difference between the affected and unaffected value of the land:

104 Maximum amount of compensation payable
The compensation payable for financial loss under section 98 must not exceed the difference between—
(a) the value of the land at the date on which the liability to pay compensation first arose; and
(b) the value that the land would have had at the date if the land had not been affected by any circumstance set out in section 98(1) or (2) or 107.

For the purpose of s 104(a), the value of the Subject Land is to be differentiated from the price that was paid for it.[267] The price paid for a parcel of land may reflect its value on the date of contracting, but may, owing to changes in the relevant market, not reflect the land’s value on the date on which the liability to pay compensation first arose, being the date of settlement of the contract. Further, a vendor could seek to inflate their entitlement to compensation by selling affected land at a price less than the true value of the land.[268] Section 104 requires compensation to be capped on the basis of the ‘value’ of the affected land as opposed to the ‘price’ received by the vendor.
[267]Brompton Lodge (n 37) [96].
[268]Cf Barilla v Roads Corporation [2017] VSC 349, [72]–[78].

There was disagreement among the experts regarding the affected value of the Subject Land as at the relevant date. Mr Brown and Mr Molloy both considered that the price of $9.35 million that was paid for the Subject Land accurately reflected its affected value at the relevant date. In this regard, Mr Brown stated:

We note the date of settlement was approximately six months after the signing of the Contract of Sale. We have reviewed market sentiment and evidence of “affected” properties at this date and consider the price paid for the land on a cash basis represents the “affected“ value.[269]

[269]CB6682, Expert valuation report of Mr Brown dated 4 November 2021.

Mr Molloy similarly noted:

[B]ecause there is only a period of approximately 6 months between the Contract Date and the Assessment Date, and, based on my analysis of the sales evidence, I do not consider that there is a material change land values or land use considerations between those two dates.[270]

[270]CB4063, Expert valuation report of Mr Molloy dated 29 September 2021; CB15112, Addendum to the expert valuation report of Mr Molloy dated 7 June 2022.

Both Mr Brown and Mr Molloy then provided a figure representing the maximum amount of compensation payable by deducting $9.35 million from the unaffected values they determined in their respective reports. Because I have not adopted either Mr Brown or Mr Molloy’s unaffected value, it is not necessary to consider the compensation cap adopted by them. Their opinion regarding the affected value of the Subject Land nonetheless remains relevant.

Mr Haines, on the other hand, adopted an affected value of $11.69 million. Subtracting that value from the unaffected value of the property ($101.21 million) results in a compensation cap of $89.52 million.[271] The amount of $91.86 million that I have determined would be payable under ss 98(1)(a) and 106 exceeds Mr Haines’ compensation cap. It is therefore necessary to determine whether the Court should adopt Mr Haines’ affected value or otherwise use the affected value of $9.35 million.
[271]CB15122, Addendum to the expert valuation report of Mr Haines dated 7 June 2022.

In arriving at his affected value, Mr Haines agreed that there was no relevant market movement between the contract date and the relevant date that would affect the value of the Subject Land.[272] However, it is clear from Mr Haines’ calculations that he used the unaffected value derived from his whole-of-land sale valuation, being the $80.97 million figure.[273] He did not provide an affected value using the individual sale valuation figure.
[272]CB6902, Expert valuation report of Mr Brown dated 4 November 2021, [192].
[273]See CB15120, 15122, Addendum to the expert valuation report of Mr Haines dated 7 June 2022.

Each of Messrs Brown, Molloy and Haines agreed that there was no change in the value of the Subject Land between the date when the contract of sale was signed and the settlement date. Accordingly, the value of the land for the purposes of s 104(a) equated with the contract price of $9.35 million. I do not accept Mr Haines’ evidence that the value of the Subject Land for the purposes of s 104(a) was $11.69 million. The value of the Subject Land for the purposes of s 104(a) equates with the price paid by the purchaser on 30 August 2019 on settlement of the contract: $9.35 million. Consequently the compensation cap for the purposes of s 104 of the Act is $91.86 million.

Conclusion

The unaffected value of the Subject Land at the relevant date was $101.21 million.

The applicants are entitled to recover legal, valuation or other expenses reasonably incurred in preparing and submitting the claim pursuant to s 101 of the Act. It is common ground that these expenses total $493,103.34.[274]
[274]CB15021, Amended Particulars of Offer dated 10 May 2022; Transcript of Proceedings, T 17 L 9–18 (13 May 2022).

The applicants’ financial loss compensation under s 98 of the PE Act is calculated:

(a) Unaffected value  $101.21 million
(b) Less affected value of the Subject Land  $9.35 million
(c) Plus expenses   $493,103.34
Total  $92,353,103.3

I will provide the parties with an opportunity to make submissions on the costs of the proceeding. The amount of compensation which I have concluded the applicants are entitled to receive is approximately $20 million more than the amount of $72,111,103.34 which the respondent contended should be awarded.[275] My provisional view is that the respondent should pay the applicants’ costs on a standard basis to be taxed in default of agreement.
[275]Respondent’s Closing Submissions dated 28 July 2022, [7].

I will also provide the parties with an opportunity to submit an order to give effect to this judgment. It will be necessary for the compensation sum of $91.86 million payable pursuant to ss 98 and 106 of the Act and the sum of $493,103.34 to be apportioned as between the applicants.

Annex A – Map of Subject Land
CB749, Title Particulars of the Subject Land

Annex B – April 2022 Tract Plans
CB14424, Tract Plans dated 25 April 2022

Lot	Unaffected Value	Affected Value	Loss
AG Dennis Pty Ltd
15	$10,900,000	$533,885	$10,366,115
20	$17,960,000	$924,415	$17,035,585
Total	$28,860,000	$1,458,300	$27,401,700
Albert George Dennis
6	$6,700,000	$214,000	$6,486,000
16	$11,150,000	$484,330	$10,665,670
19	$17,560,000	$1,015,110	$16,544,890
Total	$35,410,000	$1,713,440	$33,696,560
Dawn Allison Dennis
4	$5,285,000	$149,520	$5,135,480
7	$18,850,000	$844,005	$18,005,995
Total	$24,135,000	$993,525	$23,141,475
Dennis Projects Pty Ltd
5	$5,585,000	$152,405	$5,432,595
8	$11,360,000	$499,140	$10,860,860
12	$5,385,000	$149,520	$5,235,480
Total	$22,330,000	$801,065	$21,528,935
MG Pastoral Company Pty Ltd
1	$5,300,000	$149,520	$5,150,480
13	$5,600,000	$149,520	$5,450,480
14	$18,528,271	$1,045,030	$17,483,241
17	$18,921,729	$982,385	$17,939,344
Total	$48,350,000	$2,326,455	$46,023,545
Tensa Kirsten Nominees Pty Ltd
3	$5,335,000	$149,520	$5,185,480
9	$6,485,000	$193,545	$6,291,455
10	$5,185,000	$149,520	$5,035,480
Total	$17,005,000	$492,585	$16,512,415
Veles Anna Nominees Pty Ltd
2	$5,30,000	$149,520	$5,150,480
11	$5,450,000	$149,520	$5,300,480
18	$25,630,000	$1,265,590	$24,364,410
Total	$36,380,000	$1,564,630	$34,815,370
Total loss claimed	$203,120,000

Annex C – Further Amended Particulars of Claim on Individual Sales Approach

Lot	Unaffected Value	Affected Value	Loss
AG Dennis Pty Ltd
15	$9,488,619	$533,885	$8,954,734
20	$16,432,950	$924,415	$15,508,535
Total	$25,921,569	$1,458,300	$24,463,269
Albert George Dennis
6	$3,804,628	$214,000	$3,590,628
16	$8,609,922	$484,330	$8,125,592
19	$16,852,627	$1,015,110	$15,837,517
Total	$29,267,176	$1,713,440	$27,553,736
Dawn Allison Dennis
4	$2,654,453	$149,520	$2,504,933
7	$14,996,870	$844,005	$14,152,865
Total	$17,651,323	$993,525	$16,657,798
Dennis Projects Pty Ltd
5	$2,702,322	$152,405	$2,549,917
8	$8,865,662	$499,140	$8,366,522
12	$2,653,797	$149,520	$2,504,277
Total	$14,221,781	$801,065	$13,420.716
MG Pastoral Company Pty Ltd
1	$2,654,453	$149,520	$2,504,933
13	$2,653,797	$149,520	$2,504,277
14	$18,577,234	$1,045,030	$17,532,204
17	$17,455,911	$982,385	$16,473,526
Total	$41,341,395	$2,326,455	$39,014,940
Tensa Kirsten Nominees Pty Ltd
3	$2,654,453	$149,520	$2,504,933
9	$3,434,788	$193,545	$3,241,243
10	$2,653,797	$149,520	$2,504,277
Total	$8,743,038	$492,585	$8,250,453
Veles Anna Nominees Pty Ltd
2	$2,654,453	$149,520	$2,504,933
11	$2,653,797	$149,520	$2,504,277
18	$22,485,469	$1,265,590	$21,219,879
Total	$27,793,719	$1,564,630	$26,229,089
Total Loss Claimed	$155,590,000

Annex D – Further Amended Particulars of Claim on Whole-of-Land Approach

Lot	Unaffected Value	Affected Value	Loss
AG Dennis Pty Ltd
15	$9,432,642	$533,885	$8,898,757
20	$16,336,007	$924,415	$15,411,592
Total	$25,768,649	$1,458,300	$24,310,349
Albert George Dennis
6	$3,782,183	$214,000	$3,568,183
16	$8,559,128	$484,330	$8,074,798
19	$16,766,245	$1,015,110	$15,751,135
Total	$29,107,556	$1,713,440	$27,394,116
Dawn Allison Dennis
4	$2,638,793	$149,520	$2,489,273
7	$14,908,399	$844,005	$14,064,394
Total	$17,547,192	$993,525	$16,553,667
Dennis Projects Pty Ltd
5	$2,686,380	$152,405	$2,533,975
8	$8,813,360	$499,140	$8,314,220
12	$2,638,141	$149,520	$2,488,621
Total	$14,137,882	$801,065	$13,336,817
MG Pastoral Company Pty Ltd
1	$2,638,793	$149,520	$2,489,273
13	$2,638,141	$149,520	$2,488,621
14	$18,467,640	$1,045,030	$17,422,610
17	$17,352,933	$982,385	$16,370,548
Total	$41,097,507	$2,326,455	$38,771,052
Tensa Kirsten Nominees Pty Ltd
3	$2,638,793	$149,520	$2,489,273
9	$3,414,525	$193,545	$3,220,980
10	$2,638,141	$149,520	$2,488,621
Total	$8,691,460	$492,585	$8,198,875
Veles Anna Nominees Pty Ltd
2	$2,638,793	$149,520	$2,489,273
11	$2,638,141	$149,520	$2,488,621
18	$22,352,820	$1,265,590	$21,087,230
Total	$27,629,754	$1,564,630	$26,065,124
Total Loss Claimed	$154,630,000

Annex E – Further Amended Particulars of Claim on Green Wedge Zone

Lot	Unaffected Value	Affected Value	Loss
AG Dennis Pty Ltd
15	$7,262,295	$533,885	$6,728,410
20	$12,577,271	$924,415	$11,652,856
Total	$19,839,565	$1,458,300	$18,381,265
Albert George Dennis
6	$2,911,944	$214,000	$2,697,944
16	$6,589,767	$484,330	$6,105,437
19	$12,908,516	$1,015,110	$11,893,406
Total	$22,410,227	$1,713,440	$20,696,787
Dawn Allison Dennis
4	$2,031,636	$149,520	$1,882,116
7	$11,478,140	$844,005	$10,634,135
Total	$13,509,775	$993,525	$12,516,250
Dennis Projects Pty Ltd
5	$2,068,273	$152,405	$1,915,868
8	$6,785,503	$499,140	$6,286,363
12	$2,031,134	$149,520	$1,881,614
Total	$10,884,910	$801,065	$10,083,845
MG Pastoral Company Pty Ltd
1	$2,031,636	$149,520	$1,882,116
13	$2,031,134	$149,520	$1,881,614
14	$14,218,439	$1,045,030	$13,173,409
17	$13,360,213	$982,385	$12,377,828
Total	$31,641,422	$2,326,455	$29,314,967
Tensa Kirsten Nominees Pty Ltd
3	$2,031,636	$149,520	$1,882,116
9	$2,628,880	$193,545	$2,435,335
10	$2,031,134	$149,520	$1,881,614
Total	$6,691,650	$492,585	$6,199,065
Veles Anna Nominees Pty Ltd
2	$2,031,636	$149,520	$1,882,116
11	$2,031,134	$149,520	$1,881,614
18	$17,209,681	$1,265,590	$15,944,091
Total	$21,272,451	$1,564,630	$19,707,821
Total Loss Claimed	$116,900,000

Annex F – Further Amended Particulars of Claim on Rural Conservation Zone

Annex G – Nicholas Haines DSC Valuation

Lot	Address	Hectares	Applied Rate per Ha	Adjustments*	Adopted Value
Albert George Dennis
6	1267 Edgars Road	58.02	$70,000	NA	$4,060,000
16	572 Argoona Road	131.30	$40,000	-10%	$4,730,000
19	225a Mortons Road	257.1	$27,500	-2.5% +$20,000	$6,910,000
Dawn Dennis
4	1361 Edgars Road	40.48	$75,000	-5% +$20,000	$2,900,000
7	1187 Edgars Road	228.70	$50,000	NA	$11,440,000
Dennis Projects Pty Ltd
5	1341 Edgars Road	41.21	$75,000	+$150,000	$3,240,000
8	488 Argoona Road	135.20	$40,000	NA	$5,410,000
12	1276 Edgards Road	40.47	$75,000	NA	$3,040,000
AG Dennis Pty Ltd
15	1260 Edgars Road	144.70	$40,000	-10%	$5,210,000
20	814 Argoona Road	250.60	$27,500	-2.5%	$6,720,000
Tensa Kirsten Nominees
3	111 Ripley Road	40.48	$75,000	-2.5%	$2,960,000
9	Edgars Road	52.38	$60,000	-10% +$20,000	$2,850,000
10	1236 Edgars Road	40.47	$75,000	-5%	$2,880,000
Veles Anna Nominees
2	75 Ripley Road	40.48	$75,000	-5%	$2,880,000
11	1256 Edgars Road	40.47	$75,000	-2.5%	$2,960,000
18	175 Quandong Road	342.9	$30,000	-2.5% +$230,000	$10,260,000
MG Pastoral Co Pty Ltd
1	37 Ripley Road	40.48	$75,000	-5%	$2,880,000
13	1450 Edgars Road	40.47	$75,000	+$50,000	$3,090,000
14	257 Ripley Road	283.3	$32,500	-2.5% +$20,000	$9,000,000
17	650 Argoona Road	266.20	$30,000	-2.5%	$7,790,000
Total unaffected value				$101,210,000.00

* Mr Haines made various adjustments to reflect a number of physical attributes including improvements to the Subject Land

SCHEDULE OF PARTIES

S ECI 2020 03470

AG DENNIS PTY LTD	First Applicant
DENNIS, ALBERT GEORGE	Second Applicant
DENNIS, DAWN ALLISON	Third Applicant
DENNIS PROJECTS PTY LTD	Fourth Applicant
MG PASTORAL COMPANY PTY LTD	Fifth Applicant
TENSA KIRSTEN NOMINEES PTY LTD	Sixth Applicant
VELES ANNA NOMINEES PTY LTD	Seventh Applicant
- and -
MINISTER FOR ENVIRONMENT	Respondent

---

Applicant	Claim	Offer
AG Dennis Pty Ltd	$27,401,700	$10,555,000
Albert George Dennis	$33,696,560	$13,885,000
Dawn Allison Dennis	$23,141,475	$12,685,000
Dennis Projects Pty Ltd	$21,528,935	$10,340,000
MG Pastoral Company Pty Ltd	$46,023,545	$20,115,000
Tensa Kirsten Nominees Pty Ltd	$16,512,415	$7,685,000
Veles Anna Nominees Pty Ltd	$34,815,370	$14,260,000
Total	$203,120,000	$89,525,000

Applicant	GWZ	RCZ
AG Dennis Pty Ltd	$24,310,349	$18,381,265
Albert George Dennis	$27,394,116	$20.696,787
Dawn Allison Dennis	$16,553,667	$12,516,250
Dennis Projects Pty Ltd	$13,336,817	$10,083,845
MG Pastoral Company Pty Ltd	$38,771,052	$29,314,967
Tensa Kirsten Nominees Pty Ltd	$8,198,875	$6,199,065
Veles Anna Nominees Pty Ltd	$26,065,124	$19,707,821
Total	$154,630,000	$116,900,000

[2023] VSC 44

15 February 2023