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Attard v Transport for NSW

Attard v Transport for NSW

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Case Copied 24 April 2014 78 min read

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Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Attard & Ors v Transport for NSW [2014] NSWLEC 44
Hearing dates: 13, 17-20, 24-28 February, 3 March 2014
Decision date: 24 April 2014
Jurisdiction: Class 3
Before: Biscoe J
Decision:
1. Determination of compensation in the eight proceedings:
(1) Attard 53 Schofields Road $2,619,857
(2) Attard 55 Schofields Road $2,728,025
(3) Xiguis 57 Schofields Rd $2,677,500
(4) Hsia 59 Schofields Rd $2,676,644
(5) Sultana 61 Schofields Rd $2,607,588
(6) Camilleri 67 Schofields Rd $3,265,088
(7) Milicevic 31 Tallawong Rd $3,422,246
(8) Camilleri partnership $94,349
2. The respondent is to pay the applicants' costs.
3. The exhibits may be returned.

Catchwords: COMPULSORY ACQUISITION - of seven similar neighbouring rural residential properties of about two hectares each for the purpose of the North West Rail Link - claims under Land Acquisition (Just Terms Compensation) Act 1991 for compensation for market value, disturbance losses and solatium - properties located in Riverstone East precinct of North West Growth Centre under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - at acquisition date virtually certain that this precinct would be released and rezoned for residential subdivision under the SEPP - likely that rezoning would occur in late 2014 / early 2015 and be R2 zoning requiring minimum of 15 dwellings per hectare and 250 square metre lots - assessment of market value by reference to comparable sales - consideration of distinction between out of line sale, sale to an adjoining owner prepared to pay more for adjoining land, and sale to an anxious purchaser - selection of comparable sales - appropriate adjustments including for contamination of one of the acquired properties - claim for disturbance loss in respect of a truck haulage business carried on by a partnership on one of the acquired properties owned by one of the partners - whether all claimed disturbance losses compensable under s 59, if so, whether not payable under s 61 because would necessarily have been incurred in realising the potential on the basis of which the market value of the land was assessed.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 91(4), 94, 94EE
Land Acquisition (Just Terms Compensation) Act 1991 ss 3, 4, 34, 37, 39, 41, 54, 55, 56, 59, 61,
Land Tax Management Act 1956 cl 6 of Schedule
Local Government Act ss 68(1), (2)
Blacktown Local Environmental Plan 1988
Environmental Planning and Assessment Model Provisions 1980
Metropolitan Strategy 2005 cll 2, 3, 8
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
State Environmental Planning Policy No 4 -Development Without Consent and Miscellaneous Exempt and Complying Development cll 10(1), 10(2), 2(4)(b)
Cases Cited: Bardsley-Smith v Penrith City Council [2013] NSWCA 200, (2013) 195 LGERA 34
Bingham v Cumberland County Council (1954) (1954) 20 LGR (NSW) 1
Bonomo v Transport for New South Wales [2014] NSWLEC 25
Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541
Chaudry v Liverpool City Council [2008] NSWLEC 251

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWLEC 44
Decision Date: 24 April 2014

CaseChat Overview and Summary

In the case of Attard v Transport for NSW, the applicants were property owners along Schofields Road and Tallawong Road, contesting compensation awarded by the respondent for the compulsory acquisition of their properties by the Roads and Maritime Services. The dispute was brought before the Supreme Court of New South Wales. The applicants argued that the compensation was inadequate, particularly in relation to the diminution in value of their properties due to the acquisition.

The court was tasked with determining the appropriate compensation for each property in question, given the evidence presented on the diminution in value and the fair market value of the properties at the time of acquisition. The applicants claimed that the method used by the respondent to calculate the compensation was flawed and did not properly account for the impact of the acquisition on the value of their properties.

The court examined the evidence and submissions from both parties and found that the compensation awarded by the respondent was insufficient. The court determined that the applicants were entitled to higher compensation amounts for their respective properties. The court set out the new compensation amounts for each property, which were significantly higher than those awarded by the respondent. The court also ruled that the respondent was to pay the applicants' costs and that the exhibits could be returned to the applicants.

The final orders of the court included the determination of compensation for each property, the payment of costs by the respondent, and the return of exhibits to the applicants. The court's decision provided relief to the applicants who had contested the adequacy of the compensation awarded by the respondent.

Orders

Orders of the court

1. Determination of compensation in the eight proceedings:

(1) Attard 53 Schofields Road $2,619,857

(2) Attard 55 Schofields Road $2,728,025

(3) Xiguis 57 Schofields Rd $2,677,500

(4) Hsia 59 Schofields Rd $2,676,644

(5) Sultana 61 Schofields Rd $2,607,588

(6) Camilleri 67 Schofields Rd $3,265,088

(7) Milicevic 31 Tallawong Rd $3,422,246

(8) Camilleri partnership $94,349

2. The respondent is to pay the applicants' costs.

3. The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Attard & Ors v Transport for NSW [2014] NSWLEC 44
Hearing dates:	13, 17-20, 24-28 February, 3 March 2014
Decision date:	24 April 2014
Jurisdiction:	Class 3
Before:	Biscoe J
Decision:	1. Determination of compensation in the eight proceedings: (1) Attard 53 Schofields Road $2,619,857 (2) Attard 55 Schofields Road $2,728,025 (3) Xiguis 57 Schofields Rd $2,677,500 (4) Hsia 59 Schofields Rd $2,676,644 (5) Sultana 61 Schofields Rd $2,607,588 (6) Camilleri 67 Schofields Rd $3,265,088 (7) Milicevic 31 Tallawong Rd $3,422,246 (8) Camilleri partnership $94,349 2. The respondent is to pay the applicants' costs. 3. The exhibits may be returned.
Catchwords:	COMPULSORY ACQUISITION - of seven similar neighbouring rural residential properties of about two hectares each for the purpose of the North West Rail Link - claims under Land Acquisition (Just Terms Compensation) Act 1991 for compensation for market value, disturbance losses and solatium - properties located in Riverstone East precinct of North West Growth Centre under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - at acquisition date virtually certain that this precinct would be released and rezoned for residential subdivision under the SEPP - likely that rezoning would occur in late 2014 / early 2015 and be R2 zoning requiring minimum of 15 dwellings per hectare and 250 square metre lots - assessment of market value by reference to comparable sales - consideration of distinction between out of line sale, sale to an adjoining owner prepared to pay more for adjoining land, and sale to an anxious purchaser - selection of comparable sales - appropriate adjustments including for contamination of one of the acquired properties - claim for disturbance loss in respect of a truck haulage business carried on by a partnership on one of the acquired properties owned by one of the partners - whether all claimed disturbance losses compensable under s 59, if so, whether not payable under s 61 because would necessarily have been incurred in realising the potential on the basis of which the market value of the land was assessed.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 91(4), 94, 94EE Land Acquisition (Just Terms Compensation) Act 1991 ss 3, 4, 34, 37, 39, 41, 54, 55, 56, 59, 61, Land Tax Management Act 1956 cl 6 of Schedule Local Government Act ss 68(1), (2) Blacktown Local Environmental Plan 1988 Environmental Planning and Assessment Model Provisions 1980 Metropolitan Strategy 2005 cll 2, 3, 8 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy No 4 -Development Without Consent and Miscellaneous Exempt and Complying Development cll 10(1), 10(2), 2(4)(b)
Cases Cited:	Bardsley-Smith v Penrith City Council [2013] NSWCA 200, (2013) 195 LGERA 34 Bingham v Cumberland County Council (1954) (1954) 20 LGR (NSW) 1 Bonomo v Transport for New South Wales [2014] NSWLEC 25 Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 Chaudry v Liverpool City Council [2008] NSWLEC 251