AVILA and MAIN ROADS WESTERN AUSTRALIA - [2023] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LAND ADMINISTRATION ACT 1997 (WA)
CITATION:   AVILA and MAIN ROADS WESTERN AUSTRALIA [2023] WASAT 79
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   15 - 18 MAY 2023
DELIVERED          :   29 AUGUST 2023
FILE NO/S:   DR 196 of 2022
BETWEEN:   BENJAMIN RAY AVILA
Applicant
AND
MAIN ROADS WESTERN AUSTRALIA
Respondent

Catchwords:

Land resumption - Compensation - Valuation of land - Identification of the public work - Market value of acquired land - Trees as improvements - Noise from railway - Disturbance costs - Injurious affection to adjoining land - Costs incurred for professional advice

Legislation:

Acquisition of Land Act 1967 (Qld), s 20(5)(a)
Environmental Protection (Noise) Regulations 1997 (WA), reg 3(1)(c)
Land Acquisition Act 1969 (SA), s 26B(1)
Land Administration Act 1997 (WA), s 151(1), s 159, s 159(b), s 160(1)(b), s 161, s 170, s 170(1), s 170(4), s 170(5), s 170(7), s 170(8), s 171, s 171(1)(b)(i), s 171(1)(d)(ii), s 175, s 175(5), s 177, s 177(1), s 178, s 178(1)(d), s 179, s 202(1), s 211, s 220(c), s 226, s 226(1)(a), s 241, s 241(1), s 241(2), s 241(4), s 241(6), s 241(6)(d), s 241(6)(e), s 241(7)(a), s 241(7)(b), s 241(11), Pt 9, Pt 10
Land Clauses Consolidation Act 1845 (UK)
Lands Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(a), s 59(1)(b)
Lands Acquisition Act 1989 (Cth), s 55(2)(e)
Lands Acquisition and Compensation Act 1986 (Vic), s 41(1)(f)
Main Roads Act 1930 (WA), s 9
Metropolitan Region Scheme
Planning and Development Act 2005 (WA), Pt 3
Public Works Act 1902 (WA), s 63(aa)(v)
Shire of Serpentine-Jarrahdale Town Planning Scheme 2
State Administrative Tribunal Act 2004 (WA), s 9(b)

Result:

Compensation determined

Category: B

Representation:

Counsel:

Applicant	:	Mr PG McGowan
Respondent	:	Mr T Ledger

Solicitors:

Applicant	:	Williams & Hughes
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Adams v Valuer General [2014] NSWLEC 1005
Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180
Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209
Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 544-545; (1973) 32 LGRA 170
Brisbane City Council v Mio Art Pty Ltd [2011] QCA 234; (2011) 183 LGERA 352
Bronzel v State Planning Authority (1979) 21 SASR 513, 523; (1979) 44 LGRA 34
Caltex Petroleum Pty Ltd v The Commissioner for Main Roads [2004] WASC 239
Cerini v The Minister for Transport [2001] WASC 309
Chircop v Transport for New South Wales [2014] NSWLEC 63
Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358
Commonwealth Custodial Services Ltd (as Trustee for Burwood Trust Fund) v Valuer-General (NSW) (2006) 148 LGERA 38
DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165
ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; (2008) 162 LGERA 59
Italiano v The Water Corporation [No 2] [2020] WASC 112
Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478
Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022; 134 LGERA 99
Kilmaley Investments Pty Ltd v City of Wanneroo [No 2] [2017] WASC 307
Konowalow & Felber v Minister for Works [1961] WAR 40, 41; (1960) 8 LGRA 75
Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58
Love v Roads Corporation [2011] VSCA 434
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; (2001) 114 LGERA 389
McKay v Commissioner of Main Roads [2013] WASCA 135
McKay v Commissioner of Main Roads [No 7] [2011] WASC 223
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
RiverBank Pty Ltd v Commonwealth (1974) 48 ALJR 483, 483-484; (1974) 31 LRGA 244
Roads Corporation v Love [2010] VSC 32; (2010) 173 LGERA 1
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 (2008) 233 CLR 259
Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application to determine the compensation that is owed to Benjamin Avila (the Applicant) by the Commissioner of Main Roads (Commissioner or Respondent). The application arises pursuant to s 220(c) of the Land Administration Act 1997 (WA) (LA Act) following the resumption of a portion of 20 Kentucky Drive, Darling Downs (Land).
These reasons deal with a number of questions including: (a) identification of the public work; (b) the market value of the land acquired; (c) compensation for consequential loss or damage; and (d) compensation for damage caused to 'adjoining land'.
For the reasons that follow, I have determined that the compensation that is owed to the Applicant is $500,000 (exclusive of solatium).

Background

The following facts are not contested. Accordingly, I find as follows.

The Land

The Land:
(a)at all relevant times, was owned by the Applicant (together with his wife) who purchased it in 2002;
(b)is more particularly described as Lot 103 on Plan 19947, being the whole of land contained in Certificate of Title Volume 2009, Folio 9 which, prior to the taking, had an area of 21,440 m²;
(c)is approximately 30 kilometres south-east of the Perth CBD. Darling Downs is a semi-rural locality situated within the Shire of Serpentine-Jarrahdale;
(d)was, at all relevant times, zoned 'Special Rural' in the Shire of Serpentine-Jarrahdale Town Planning Scheme 2 (TPS 2) and 'Rural' in the Metropolitan Region Scheme;
(e)is accessed via a battle-axe leg from Kentucky Drive. The Land's southern boundary is Thomas Road. To the east is a railway line which will be used to extend metropolitan rail services to Byford (as part of Metronet). The railway line currently services only the Australind rail service, which involves a total of four movements per day past the Land; and
(f)features a single-level brick and Colorbond residence, together with improvements including a double garage and a raised concrete pool and rammed earth cabana/studio as well as fenced paddocks, stables and landscaped gardens. Since 2002, the Applicant has established a stand of approximately 150 trees along the eastern and southern boundaries. These trees are now, and were at the Taking Date, up to 40 metres in height. The Taken Land included 45 such trees, all of which have been removed.

Events leading to, and following, the acquisition

The Respondent is a body corporate pursuant to s 9 of the Main Roads Act 1930 (WA).
On 22 December 2020, the Commissioner issued a notice of intention on the Applicant for the purposes of s 161 and s 170 of the LA Act. The 'Purpose of Public Work for which land to be designated' was 'Byford Rail Extension - Thomas Road over Rail' (NOITT).[1]
[1] Exhibit 4, pages 10 - 11.
By Taking Order made on 16 June 2021 (Taking Date), the Commissioner, acting pursuant to s 177 and s 178 of the LA Act, resumed 875m² of the Land (Taken Land). The 'Designation' was 'Byford Rail Extension - Thomas Road over Rail'.[2]
[2] Exhibit 4, pages 315 - 316.
The Taken Land is a triangular sliver of land at the Land's southern boundary, adjacent to Thomas Road. The remaining portion of the Land shall hereafter be referred to as the Residual Land.
The Taken Land was resumed for the stated purpose of the 'Byford Rail Extension - Thomas Road Over Rail' (Public Work).
On 26 October 2021, the Applicant claimed compensation pursuant to s 211 of the LA Act in the amount of $1,219,641.91 plus solatium and interest.
On 1 February 2022, the Commissioner offered compensation in the sum of $385,000. On 28 February 2022, the Applicant rejected that offer.
On 8 March 2022, the Respondent acknowledged that it had entered the Land on 20 July 2021 with the result being that interest accrues from that date.[3]
[3] LA Act, s 241(11).
On 12 April 2022, the Respondent paid the Applicant compensation of $385,000 together with interest on that amount (at 6% from 20 July 2021 making a total payment of $401,834.52). The Applicant acknowledged receipt of the advance payment.

Issues to be determined

The parties do not agree on the precise formulation of the issues to be determined. It is agreed, however, that my ultimate task is to determine the compensation that is owed to the Applicant as a result of the resumption of the Taken Land.
However, an anterior issue is to identify the 'Public Work'. More particularly, what works form the basis of the Public Work.
The Applicant submits the Public Work is the Byford Rail Extension, which the Thomas Road over Rail is only one aspect of. On the other hand, the Respondent submits that the Public Work begins, and ends, with the Thomas Road over Rail works. That is, the Public Work is only a road project.
The question is important because the Applicant is entitled to compensation arising from the Public Work. If the Public Work includes the railway extension (and the consequential intensification of its use), then compensation for any 'damage' to the Residual Land arising from the railway will be compensable.
It is not controversial that compensation is to be determined having regard to, and only to, the provisions contained in s 241 of the LA Act.[4] Accordingly, the following issues arise for determination:
(a)the value of the Taken Land together with any improvements;
(b)compensation, if any, in relation to consequential loss or damages sustained by the Applicant; and
(c)compensation, if any, arising from the damage caused by the Public Work to any adjoining land.
[4] LA Act, s 241(1).
As will become apparent, the Applicant seeks compensation for the loss of trees on the Taken Land as, in effect, a standalone item (including for incursions into the tree root zones of 13 trees remaining on the Residual Land). He also seeks compensation by reason of the impacts of increased gully winds on the improvements on the Residual Land as a result of the loss of trees and also the works associated with the Public Work.

Jurisdiction of the Tribunal

This matter arises in the Tribunal's original jurisdiction. Accordingly, the Applicant, as the party bringing the proceeding, carries the onus of proof. The civil standard applies, being the balance of probabilities.
In these reasons, where I set out that I am satisfied as to the existence of a fact, I mean that I am satisfied on the balance of probabilities that the relevant fact has been proved.

Statutory scheme of the LA Act

The LA Act authorises the taking of an interest in land for the purposes of a public work.[5] For the purposes of Pt 9 of the LA Act, an interest in land includes 'any legal or equitable estate or interest in land'.[6]
[5] LA Act, s 161.
[6] LA Act, s 151(1).
If the taking of an interest in land is without agreement, the Minister[7] must issue a notice of intention to take interests (notice of intention).[8] The notice of intention is registered on the relevant certificate of title and must be published once in a daily newspaper and given to the registered proprietor of the land.[9] It remains current for 12 months,[10] unless the Minister determines that a longer period applies.[11]
[7] Being, generally, the Minister for Lands under the LA Act. However, the Minister's powers under Pts 9 and 10 of the LA Act can be delegated to the Minister responsible for administering the Main Roads Act 1930 (WA) (MR Act): LA Act, s 159(b). Furthermore, the Minister responsible for the MR Act may then subdelegate their power under s 159 to the Commissioner or any officer of the Commissioner: LA Act, s 160(1)(b).
[8] LA Act, s 170(1). As set out at [7], the Notice of Intention in this matter was dated 2 December 2020.
[9] LA Act, s 170(4), (5).
[10] LA Act, s 170(7).
[11] LA Act, s 170(8).
A notice of intention must include the details set out in s 171 of the LA Act. These details include inter alia 'the purpose of the public work for which the land is proposed to be designated',[12] and particulars of 'the reasons why the land is suitable, or is needed, for, the public work'.[13]
[12] LA Act, s 171(1)(b)(i).
[13] LA Act, s 171(1)(d)(ii).
In this instance, the NOITT stated that the purpose of the public work for which the land is proposed to be designated was explained as: Byford Rail Extension - Thomas Road over Rail, and the reason why the land was needed adopted that same expression.
An objection may be lodged to a notice of intention and served on the Minister.[14] The Minister must consider any objections and determine that the notice of intention either stands, is cancelled or amended.[15]
[14] LA Act, s 175.
[15] LA Act, s 175(5).
The Minister may make a taking order (Taking Order) that is consistent with a notice of intention.[16] A Taking Order must include the details set out in s 178 of the LA Act, which includes the requirement to 'designate appropriately any land or interests in land required for the purpose of the proposed public work'.[17]
[16] LA Act, s 177(1).
[17] LA Act, s 178(1)(d).
In this instance, the 'Designation' under the Taking Order[18] was: Byford Rail Extension - Thomas Road over Rail.
[18] Issued on 16 June 2021.
The effect of the registration of a Taking Order is to extinguish the interest in land and to convert that interest into an entitlement to compensation under Pt 10 of the LA Act.[19]
[19] LA Act, s 179.
Section 202(1) of the LA Act provides that every person who has an interest in land taken under Pt 9 (as was the case here) is entitled, subject to Pt 10, to compensation for that interest from the acquiring authority.
Compensation under Pt 10 of the LA Act may be determined in any number of ways, including by reference to the Tribunal.[20]
[20] LA Act, s 220(c).
In dealing with a claim for compensation under Pt 10, the Tribunal is to be constituted pursuant to s 226 of the LA Act. For the purposes of s 226, I am a 'senior member who is a qualified person'.[21]
[21] LA Act, s 226(1)(a).
In determining the compensation, if any, payable for the taking of an interest in land under Pt 9, regard is to be had solely to the matters identified in s 241 of the LA Act. For ease of reference, I set out s 241 below:
241.How compensation to be determined
(1)In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.
(2)Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on —
(a)in the case of an interest taken for a railway or other work authorised by a special Act — the first day of the session of Parliament in which the Act was introduced; or
(b)in the case of an interest taken by agreement under section 168 — the date of the execution of the agreement, unless the agreement provides otherwise; or
(c)in the case of an interest to which paragraphs (a) and (b) do not apply — the date of the taking,
and discounting any increase or decrease in value attributable to the proposed public work.
(3)If a notice of intention was registered in relation to the interest on a date before the date referred to in subsection (2), and a transaction relating to the land made between those dates affected the value of the interest, regard may be had to the value of the interest assessed as at the date referred to in subsection (2) and discounting the effect of the transaction.
(4)No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of a notice of intention.
(5)Subject to subsection (4), in the case of a railway or other work authorised by a special Act, the value of any improvements made after the first day of the session of Parliament in which the Act was introduced but before the registration of the taking order are to be allowed, not exceeding their actual cost.
(6)Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of —
(a)removal expenses; or
(b)disruption and reinstatement of a business; or
(c)the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or
(d)architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or
(e)any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.
(7)If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant —
(a)due to the severing of the land taken from that adjoining land; or
(b)due to a reduction of the value of that adjoining land,
however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).
(8)If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9)The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.
(10)If the interest in land taken produces any rent or profits, then at the option of the acquiring authority, either —
(a)the amount of the rent or profits received by the acquiring authority, less the reasonable cost of collection, for the period from the date of registration of the taking order to the date of the payment of compensation or the date of the award, whichever is earlier, is to be added to the compensation payable; or
(b)interest is to be paid on the amount of compensation for the same period, at the rate of 6% per annum, or such higher rate as the acquiring authority, the court, or the State Administrative Tribunal considers adequate having regard to the circumstances of each case,
but if the interest in land ceases to produce any rent or profits after the taking, interest is to be paid in accordance with paragraph (b).
(11)If the interest in land taken does not produce any rents or profits, interest is to be paid at the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 as at the date of entry for construction or carrying out of the work or the date of registration of the taking order, whichever is earlier, and the interest is payable from —
(a)the date of the service of the claim on the acquiring authority; or
(b)the date of entry for construction or carrying out of the work,
whichever is earlier, to the date —
(c)when the offer was served on the claimant, if the compensation awarded by the State Administrative Tribunal or the court of competent jurisdiction is not more than the amount offered by the acquiring authority; or
(d)of settlement of the claim, in any other case[.]

Relevant legal principles

The Supreme Court has now, on a number of occasions, set out the principles that apply in the exercise of assessing compensation for the acquisition of an interest in land pursuant to s 241 of the LA Act.
Firstly, Beech J (as his Honour then was) in McKay v Commissioner of Main Roads [No 7] (McKay),[22] set out the relevant principles completely and authoritatively.
[22] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [156]-[158], [162]-[163], [175-176], [179]-[198], [213], [228], [339]-[379], [478]-[479], [1503], [2213]; see also the Court of Appeal in McKay v Commissioner of Main Roads [2013] WASCA 135 [137], [139]-[147] (Murphy JA, with whom Martin CJ and Buss JA agreed).
Secondly, Kenneth Martin J in Italiano v Water Corporation [No 2],[23] set out an extensive explanation of, at least some, of these relevant principles and repeated this exercise more recently in DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority (DBW).[24]
[23] Italiano v The Water Corporation [No 2] [2020] WASC 112 [73]-[77] (Kenneth Martin J).
[24] DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 [71] (Kenneth Martin J).
Thirdly, Edelman J in Lenz Nominees Pty Ltd v Commissioner of Main Roads (Lenz),[25] set out what he terms as a number of 'basic legal propositions' being 'propositions which are generally relevant to the determination of the valuation of' interests in land taken for the purposes of the LA Act. It is not necessary to set out all of these statements of principle.
[25] Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 [65] (Edelman J).
For the purposes of these reasons, I extract the following statements from Lenz:
(1)Assessment of compensation must be conducted with regard only to the matters contained in s 241 of the LA Act.[26]
[26] LA Act, s 241(1); Konowalow & Felber v Minister for Works [1961] WAR 40, 41; (1960) 8 LGRA 75, 7677 (Virtue J) (Konowalow).
(2)No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of the notice of intention on 13 December 2005.[27]
[27] LA Act, s 241(4).
(3)The purpose of the assessment of compensation for resumed land is to ensure that the person to be compensated is given a full money equivalent of his or her loss.[28]
[28] Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358 at 373-374 (Dixon J) (Executor Trustee).
(4)Compensation for the value of the resumed land should be assessed in a theoretical, albeit artificial, fashion by assuming that the land had been sold on the date of its acquisition by the resuming authority.[29]
[29] Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, [265], [271] (Callinan J) (Boland v Yates).
(5)This theoretical approach to assess compensation for the resumption of the land requires the court to identify the price which would be paid under a hypothetical bargain between a person 'desiring to buy the land … to a vendor willing to sell it for a fair price but not desirous to sell'.[30]
(6)In assessing the price payable in this hypothetical sale, it must be assumed that the hypothetical purchaser would be purchasing the land for the most advantageous use for which it is adapted.[31] This 'most advantageous use' is commonly referred to as the 'highest and best use' of the land.[32]
(7)The highest and best use of the land may be a single use, or it may be a package of alternative uses.[33] However, in the instance of a package of alternative uses, care must be taken to ensure that those alternative uses are not inconsistent.[34]
(8)The hypothetical purchaser must be assumed to have regard to all relevant available information, and to be cognisant of all circumstances which might affect the value of the land.[35]
(10)However, the hypothetical sale and the determination of the value of the plaintiff's interest in the land taken, and the compensation payable to the plaintiff must be conducted by 'discounting any increase or decrease in value attributable to the proposed public work'.[36]
(11)In conducting the valuation exercise it has been iterated and reiterated that a court must not usurp the skill and experience of a valuer. In other words, the court must not allow itself to become a 'third valuer'.[37]
(12)However, the prohibition against a court becoming a 'third valuer' does not, and cannot, prevent the court from making its own adjustments to the valuations, particularly where a valuer's adjustments to comparative sales are not wholly accepted. Judicial adjustment to the valuation may sometimes be unavoidable because a court cannot adopt adjustments which it has rejected; the court would otherwise be left with no basis to assess the value of the subject land.[38]
(13)If any doubts exist in assessing the compensation payable, then those doubts should be resolved by a liberal estimate in favour of the dispossessed owner.[39]

Evidence

[30] Spencer v Commonwealth (1907) 5 CLR 418, 432 (Griffith CJ) (Spencer v The Commonwealth); Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 [25] (the Court).

[31] Spencer, 441 (Isaacs J).

[32] ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447; (2008) 162 LGERA 59 [40] (the Court) (ISPT); Commonwealth Custodial Services Ltd (as Trustee for Burwood Trust Fund) v Valuer-General (NSW) (2006) 148 LGERA 38, 45 [15] (Biscoe J).

[33] ISPT [57].

[34] Love v Roads Corporation [2011] VSCA 434 [63]-[66] (the Court).

[35] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 (2008) 233 CLR 259; (2008) 170 LGERA 345 [51] (the Court); Boland v Yates [271]-[274] (Callinan J).

[36] LA Act, s 241(2).

[37] Bronzel v State Planning Authority (1979) 21 SASR 513, 523; (1979) 44 LGRA 34, 44 (Wells J); Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 544-545; (1973) 32 LGRA 170, 173-174 (Wells J); Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 [76] (Pullin J) (Arcus).

[38] McKay [2484].

[39] Executor Trustee, 373-374 (Dixon J); Boland v Yates [100] (Gaudron J); [111] (Gummow J); [356] (Callinan J).

In this matter, the parties have both filed documentary evidence on which they rely as well as witness statements. The following witnesses were called:

Applicant

(a)Benjamin Avila, the Applicant;
(b)Enzo-Biagioni-Froudist, civil engineer
(c)David Cuddihy, arborist;
(d)Tim Reynolds, acoustic engineer in relation to rail noise; and
(e)Duncan Cameron, valuer.

Respondent

(a)Daniel Lloyd, acoustic engineer in relation to road noise;
(b)Kate Bingham, valuer; and
(c)David Molony, valuer.

Overview of the Applicant's evidence

Mr Ben Avila

Mr Avila's family acquired the Land in approximately 1995. His family planted native vegetation, in particular, trees at the southern and eastern boundaries of the Land to screen both Thomas Road and the railway reserve. He and his wife then purchased the Land in 2002 and erected a single dwelling upon it. Over the years, the trees have matured, and some now exceed 30, even 40, metres in height.
After moving into his house, Mr Avila says he became aware of what he terms 'gully winds' affecting the local area. Some of these gully winds were, he says, so intense as to knock over a brick wall during the dwelling's construction. Each and every year, the gully winds 'batter' the Land. Trees have been uprooted and large branches have broken off. Trees also have a lean as a result of these winds. The gully winds can be felt most acutely at night and early in the morning between November to March. They blow from the east-south-east.
Despite attempts to mitigate the impact of these winds, it was only when the trees planted in the 1990s reached a sufficient height that the gully winds dissipated in 2015-2016. Mr Avila says he noticed 'a real and noticeably diminished impact'.[40] The cracking within the dwelling was happening less often. In 2016, the dwelling was repaired and was brought up to being in an excellent state of repair. He says that can only be attributed to the mature trees shielding the dwelling from the gully winds.
[40] Exhibit 6, para 14.
However, the acquisition of the Taken Land, and the removal of the trees, has resulted in the damaging gully winds again being an issue. Mr Avila says that from November to February the dwelling experiences 'gale-force' winds which are distressing and make sleep difficult.[41]
[41] Exhibit 6, para 16.
Mr Avila says the trees were an important asset that 'have been taken away by [the Respondent]'.
Mr Avila also refers to the pool and cabana/studio he erected on the Land between 2017 to 2021 as well as extensive landscaping. The total cost of these improvements exceeds $500,000. The design includes a 3metre-high wall which was built to add protection to the cabana/studio and the original dwelling. Walls were 300 millimetres solid rammed earth to mitigate the impacts of the gully winds.
Mr Avila outlines that the Respondent conducted a pre-construction dilapidation survey of the Land in 2021 which noted the substantial cracking in one room (which was not repaired in 2016) only. However, since that time, there are now cracks in the lounge room, bedrooms, entryway and living room and the cornice joints are separating. This is, he says, due to the removal of the wind break provided by the trees, especially in the south-east corner of the Land. Mr Avila says he, and his wife, are enduring sleepless nights as a result of the gully winds battering the home, shaking windows and felling trees.[42] The cabana also appears to be affected as ceiling panels and fixing (screws) have been dislodged.
[42] Exhibit 6, para 20.
The long, tall concrete wall associated with the Public Work is not at the same height as the trees that were removed and thus, the Residual Land is more exposed than it was prior to the acquisition of the Taken Land. Trees remaining on the Residual Land have also fallen over, or have had branches fall off, which may be caused by intrusion on their root zones.
The impacts from the gully winds have increased since the construction of the Public Work and is 'terribly distressing'.[43] Cracks have reappeared throughout the house. Mr Avila says the intensification of the impact of the gully winds is due to the removal of the trees associated with the Public Work.[44] Mr Avila says it is difficult to express the distress caused by the gully winds.[45]
[43] Exhibit 6, para 23.
[44] Exhibit 6, para 25.
[45] Exhibit 6, para 28.
Mr Avila's witness statement includes photographs of the damage he says has been caused by the gully winds. He considers that the damage arising from the gully winds is likely to persist for 25 years until any replacement trees reach sufficient maturity so as to be an effective wind break.

Mr Biagioni-Froudist

Mr Biagioni-Froudist is a civil engineer who costed the construction of an acoustic wall on the eastern boundary to shield the Residual Land from railway noise. He estimates the cost of constructing a 2.4metrehigh noise wall would be in the range of $312,940 to $356,530.
Mr Biagioni-Froudist also inspected the dwelling and noted its condition in relation to cracking etc as identified by Mr Avila. He says the impacts of the prevailing wind regimes on existing structures on the Residual Land 'need further consideration'.[46]

Mr David Cuddihy

[46] Exhibit 8, page 9.

Mr Cuddihy is a consultant arborist. In his primary report,[47] he has valued the trees which were on the Taken Land using the Helliwell System. The Helliwell System is based on six criteria[48] and allows an assessor to ascribe a visual amenity to a tree or woodland on a points scale. By multiplying a conversion factor, an appropriate monetary value can be derived. Mr Cuddihy opines on the benefits of trees in social, economic and environmental terms.
[47] Exhibit 12.
[48] The six criteria are: (i) tree size; (ii) expected duration of visual amenity; (iii) importance of position in the landscape; (iv) presence of other trees; (v) relation to setting; and (vi) form.
Using this system, Mr Cuddihy values the 45 trees that were on the Taken Land, and which have been removed to accommodate the Public Work, at $139,538.75.
Mr Cuddihy prepared a further report[49] which outlines that the tree protection zones of a further 13 trees on the Residual Land appear to have been breached. This is based on the measures outlined in Australian Standard (AS) 4970-2009. Using the Helliwell System, he values the potential loss of the 13 trees at $42,024.

Mr Tim Reynolds

[49] Exhibit 13.

Mr Reynolds is an acoustic engineer. He evaluated the noise that would arise from the increased use of the rail as part of the Metronet project.[50]
[50] Exhibit 9.
Having regard to State Planning Policy 5.4 - Road and Rail Noise (SPP 5.4), Mr Reynolds considers that the Public Work (being an extension of the railway network) would be regarded as 'a new railway line' under that policy, and thus should be treated as such in these proceedings. Mr Reynolds predicts, based on the Armadale train schedule from 2020, that the railway movements will increase to 107[51] new movements past the Residual Land each day once the Byford rail extension becomes operational.[52]
[51] ts 77, 88-90, 16 May 2023. The 'day period' is 6.00 am to 10.00 pm; the 'night period' is 10.00 pm to 6.00 am.
[52] 91 during the day and 16 in the evening. Based on model year 2044, estimated at 140% of 2020 Armadale services.
In addition, the train type will increase from 4-car and 2-car services that currently operate to 6-car and 3-car services in the future. That is to say, trains will be longer in the future.
Based on SPP 5.4, Mr Reynolds considers the applicable acoustic criteria for the increase in noise resulting from the use of the rail as part of the metropolitan rail network to be:
DayMaximum 55 dB(A) L_{Aeq (Day)}[53]
NightMaximum 50 dB(A) L_{Aeq (Night)}[54]
[53] The L_Aeq is the equivalent steady-state, A-weighted sound level which in a specified time period contains the same acoustic energy as the time-varying level during the same period. The L_{Aeq (Day)} is the 16-hour time period 6.00 am to 10.00 pm; SPP 5.4, section 7.
[54] The L_{Aeq (Night)} is the 8-hour time period between 10.00 pm and 6.00 am.
Mr Reynolds is of the opinion that the noise received at the dwelling and outdoor living spaces on the Residual Land would comply with the above criteria (Mr Reynolds says the applicable criterion should be the day period given this is when most trains will operate).
Mr Reynolds' assessment indicates that the current noise levels (L_Aeq(Day)) at the premises would be 40 dB but will increase to an L_Aeq(Day) of around 53 dB in the future.[55] Mr Reynolds considers such an increase in noise to be 'significant'.[56]
[55] Exhibit 9, page 7.
[56] ts 100, 16 May 2023.
To reduce the noise received at the premises, he observes that a 2.4metre-high noise wall could be constructed along the eastern boundary of the Residual Land, adjacent to the railway reserve. This is the noise wall that was engineered and costed by Mr Biagioni-Froudist.

Mr Duncan Cameron

Mr Cameron is a real estate valuer. He prepared a valuation report[57] and also participated in a joint conferral with the Respondent's valuers.[58] In summary, Mr Cameron assesses that the compensation that is due to the Applicant as a result of the acquisition of the Taken Land, having regard to the provisions of s 241 of the LA Act is:
[57] Exhibit 15.
[58] Exhibit 21.

Loss in value of land: s 241(2)

$26,500

Loss in value of improvements: s 241(2)

$442,639 ($303,100 + $139,539)

Consequential losses: s 241(6)(d)

All professional fees and expenses

Injurious affection: s 241(7)

$270,400

Total loss (before 10% solatium)

$739,539

Mr Cameron's primary methodology was via comparable sales (otherwise known as a before and after approach or direct comparison approach). He also employed what he termed a secondary methodology, being the summation approach. Under that approach, the value of each component of the asset (being the Land and improvements) are assessed separately and then added together. The 'added value' of the improvements and the underlying land values can then be derived.

Before scenario

In the before scenario, Mr Cameron observes a broad range of values in the Darling Downs and Oakford localities which are typically characterised by special rural and rural residential lifestyle properties.
Sales range from slightly below $1 million (for lesser quality properties with low value improvements) to $1.65 million for high quality properties or good quality properties with a high level of ancillary improvements. Larger properties with more expansive improvements have values that exceed $2 million.
In terms of land values, Mr Cameron assesses land values in the range of $435,000 to $630,000. At the lower end, Mr Cameron assesses the sale of 7 Ballack Place[59] as a dated sale, immediately post the COVID19 pandemic period and before a resurgence in the property market and situated at an inferior location, more removed from services and the Byford town centre. At the upper end was a sale in a culdesac to the south-east of the Land that sold in late 2020. More proximate to the Land is a tighter bandwidth of sales which evinces land values in the range of $530,000 to $630,000 for similarly sized parcels of land.[60]
[59] Exhibit 15, Table 11.2.
[60] Exhibit 15, page 34.
Mr Cameron considers that properties within Darling Downs and Oakford with a high level of improvements command values between $1.4 million to $1.65 million. Properties with a dated residence and limited landscaping typically command market values in the order of $1 million to $1.15 million.[61]
[61] Exhibit 15, page 34.
Mr Cameron considers that the Land commanded a value at, or slightly in excess of, the upper limit of the local market range, particularly due to the high standard of presentation, the high-quality cabana and pool as well as landscaping.
Mr Cameron highlights the following comparable sales:[62]
[62] Exhibit 15, page 35.

Sale

Sale price

Sale date

Comments

191 Masters Road,

Darling Downs

$1.5 million

16 May 2021

A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.

75 Foxton Drive,

Oakford

$1.56 million

11 May 2021

A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.

110 Foxton Drive,

Oakford

$1.65 million

18 June 2021

A higher value applied to the Land due to cabana, pool area and landscaping but offset by ancillary aspects of sale property such as granny flat and tennis court.

Other sales

A higher value applied to the Land as against other sales due to cabana, pool area and landscaping.

Mr Cameron considers that, in the before scenario, the Land would have commanded a value of $1.8 million.

After scenario

In the after scenario, Mr Cameron identifies the following issues:[63]
[63] Exhibit 15, page 36.
(a)loss of 875m²;
(b)increased commuter rail traffic, increased noise;
(c)visual blight of Public Work, including 10 metre high concrete wall at south-east corner;
(d)light spill and traffic noise from traffic bridge;
(e)potential for anti-social behaviour, vagrancy along commuter railway line; loss of privacy;
(f)compromised amenity for garden areas (loss of opportunity to host garden weddings);
(g)loss of trees and associated impacts from gully winds, although flyover may offer some protection;
(h)impacts of increased gully winds resulting in property maintenance costs; and
(i)overall result that the Land is now overcapitalised due to highend nature of cabana and pool area. Prospective purchasers may prefer alternate locations away from the Public Work.

The sales evidence indicates that the value of modern homes with a reasonable level of amenities in this locality lies in the range of $1.4 million to $1.45 million. However, such properties are not impacted by the blight associated with a flyover and a railway line.
Mr Cameron considers the value of the Land in the after scenario is 'more in the order of' $1.2 million.[64]

Summation approach

[64] Exhibit 15, page 36.

As a check exercise, Mr Cameron also undertook a summation of the added value of the improvements and underlying land value.[65] In employing such an approach, in the before scenario, he considered that the underlying value of the Land was $650,000 and in the after scenario it was $350,000.
[65] Exhibit 15, pages 37 to 39.
Mr Cameron then ascribes a separate value to all improvements (although there is, quite literally, no analysis of how each component was valued) as follows in the before and after scenario:

Improvement

Volume

Rate/value before

Rate/value after

Residence 250 m² $400,000
(1,600 m²)
$340,000

($1,360 m²)

Verandas 100 m² $30,000
($300 m²)
$25,500

($255 m²)

Garage 40 m² $24,000
($600 m²)
$20,400

($510 m²)

Cabana 120 m² $400,000
($3,333 m²)
$200,000

($1,667 m²)

Workshop 152 m² $30,400
($200 m²)
$30,400

($200 m²)

Pool (inc fences)

$75,000

$50,000

Pool paving

150 m²

$25,000

$15,000

Driveway paving

1,200 m²

$50,000

$50,000

Timber walkway

$15,000

$15,000

Fruit tree enclosure

620 m²

$25,000

$25,000

Shade houses x 3

150 m²(total)

$9,500

$9,500

Sheds x 2

24 m²

$2,000

$2,000

Landscaping

$50,000

$50,000

Reticulation/bore

$15,000

$15,000

Before total value of improvements:
$1,150,900
After total value of improvements:

$847,800

Adding the value of the land with the value ascribed to the improvements in the before and after scenario yields the following results:

Before

Land value: $650,000

Improvements value: $1,150,900

= $1,800,890

After

Land value: $350,000

Improvements value: $847,800

= $1,197,800

Mr Cameron then considers the effect of the Public Work on the Residual Land (the adjoining land) for the purposes of injurious affection. He values injurious affection - that is, the damage to the Residual Land due to the Public Work, to be $270,400.
His reasoning is as follows:

Total loss in value:

$600,000 (as per before and after calculations above).

Less loss in value of improvements:

$303,100

($1,150,900 - $847,000).

Less land value:

876 m² x $30.32m² = $26,500[66]

Equals Injurious affection of:

$270,400 (41.6% of unaffected value of the Land of $650,000)

[66] 21,440 x $30.32 = $650,000; Mr Cameron's before land value.

Mr Cameron reasons that the combined effect of the flyover, the railway line, the gully winds, the loss of trees and the need for a noise wall make an award of injurious affection of $270,400 appropriate.
Mr Cameron also prepared a supplementary report[67] which, in effect, is a review of the supplementary report prepared by Mr Molony for the Respondent.[68] In his supplementary report, he agrees that Mr Molony's estimation of the loss in value to the Residual Land arising from rail noise of $75,000 is reasonable.[69]

Overview of the Respondent's evidence

Mr Daniel Lloyd

[67] Exhibit 18.

[68] Exhibit 19.

[69] Exhibit 17, page 4.

Mr Lloyd is an acoustic engineer. He was engaged by the Respondent to model the noise impacts of the flyover over Thomas Road. His Noise Assessment report[70] indicates that the noise levels for the flyover will comply with the prescribed criteria for noise sensitive premises adjacent to the Public Work based on SPP 5.4.[71] The noise targets for roads are as follows:
[70] Exhibit 10, Annexure DL 1.
[71] The outdoor noise target is to be placed 1-metre from the most exposed, habitable façade.

Outdoor Noise Target

New Road

55 dB L_{Aeq (Day)}

50 dB L_{Aeq (Night)}

Road Upgrade

60 dB L_{Aeq (Day)}

55 dB L_{Aeq (Night)}

Mr Lloyd was questioned by Mr McGowan, counsel for the Applicant, as to whether the modelling had regard to the number of heavy vehicles that would be using the flyover and, in particular, had he accounted for the application of air brakes.[72] Mr Lloyd explained his modelling was based on Thomas Road before the works, rather than the flyover, and also based on a single carriage way.[73] Outside of the general assumptions that underpin the modelling, the use of Thomas Road by heavy vehicles was not specifically modelled.[74]
[72] ts 84, 16 May 2023.
[73] ts 84, 16 May 2023.
[74] ts 83-84, 16 May 2023.
Mr Lloyd also prepared a technical memorandum specifically focused on the Residual Land.[75] Mr Lloyd predicts that the Public Work will reduce the noise levels at the residence. The pre-works noise levels were 55.7 dB L_{Aeq (Day)}and in 2041 would have been 58.9 dB L_Aeq(Day). After the Public Work the noise received at the premises will be 50.9 dB L_Aeq (Day).

Ms Kate Bingham

[75] Exhibit 10, Annexure DL 2.

Ms Bingham is a real estate valuer. She prepared a report for the Respondent which assesses the compensation owed to the Applicant by reason of s 241 of the LA Act.[76] Ms Bingham adopted a before and after approach.
[76] Exhibit 20.
In terms of that compensation, she assesses it as follows:

Loss of land and improvement value: s 241(2)

875m² @ $25m²

$21,875

Consequential losses: s 241(6)

Nil

Severance: s 241(7)(a)

Nil

Injurious affection: s 241(7)(b)

$325,000

Rounded value:

$350,000

Solatium (if applicable)

TBD

Ms Bingham explains that the Land features a single level detached residence, built in around 1995,[77] which features five bedrooms, two bathrooms and a double garage. Ancillary accommodation includes a wraparound veranda, below ground pool, cabana/studio, large shed/workshop, orchard and nursery. The new pool cabana/studio is of a particularly high quality and includes an alfresco with built-in outdoor kitchen and barbeque. The Land also features extensive landscaping, with paddocks.
[77] Ms Bingham says this was a typographic error. Ms Bingham agrees the dwelling was constructed in 2002; ts 144, 17 May 2023. However, the typographical error was repeated throughout her report.
While the high level of the ancillary improvements is noted, the residence is also becoming dated and has a relatively small living area (235m²). She observes this smaller living is evident once comparisons are made with properties selling at levels above $1 million.

Before scenario

In the before scenario, the Land comprises a battle axe lot with access from Kentucky Drive. Thomas Road is at its rear (southern) boundary. Thomas Road has always been a significant regional road. There are trees planted at the southern boundary which reduces noise and visibility.
In terms of comparable sales, Ms Bingham highlights the following:[78]
[78] Exhibit 20, paras 144 to 148.

Sale address

Sale price

Sale date

Comments

225 Masters Road,

Darling Downs

$1.2 million

July 2020

A more modern residence (circa 2017) with a larger living area (323m²). Sale features a similar sized site area and is accessed via a battle axe leg. However, given the quality of the ancillary accommodation and more shed area, the Land would have a higher overall value. Analysed rate of $59m².

127 Foxton Drive,

Oakford

$1.38 million

September
2020

Residence with a similar age to the Land, with a significantly larger living area (363m²). Ancillary improvements include a large veranda, patio, pool, workshop, remote control gate and bore. The sale also features a separate fully selfcontained granny flat (circa 2015). Having regard to its location in a battle axe configuration and adjacent to Thomas Road, a lower value would apply to the Land. Analysed rate of $69m².

16 Cunningham Drive, Oakford

$ 1.425 million

November 2020

Residence with a similar age to the Land, with a significantly larger living area (377m²). There are significant ancillary improvements including a below ground swimming pool, barn style shed and a matching stable with two walk in/walk out horse facilities, a round yard, aviary and chicken run. The property is also in a quieter location. Overall, the Land would have a lower value. Analysed rate of $71m².

Ms Bingham considers that the above sales provide a market value range for the Land in the before scenario. She adopts a value of $1.3 million.[79]

After scenario

[79] Exhibit 20, para 148.

Ms Bingham opines that in the after scenario, there is a flyover bridge cutting through the rear of the Land which will have a significant impact on the market value of the Land. That includes the visual impact, noise impact and the loss of land.
In terms of comparable sales for the after scenario, Ms Bingham highlights the following:[80]
[80] Exhibit 20, paras 149 to 151.

Sale address

Sale price

Sale date

Comments

70 Bangap Place,

Oakford

$850,000

August 2019

Sale reflects a slightly smaller site, with more modern improvements. The site adjoins Tonkin Highway to the rear (busier than Thomas Road). However, the flyover is elevated which has a greater adverse impact. The Land's superior ancillary accommodation gives it a slightly higher value in the after scenario. Analysed rate of $42m².

134 Wungong South Road, Darling Downs

$1.05 million

September 2020

Sale reflects a slightly smaller site, with a main residence of a similar age to the Land. The sale also features significant ancillary improvements, including a below ground pool, bar and BBQ area, self-contained granny flat, bore, electric gate, 112m² shed with two stable and two walk in/walk out yards. The ancillary improvements appear slightly older than the subject but are overall broadly comparable. The sale is in a superior location compared to the after scenario. A lower value will apply to the Land. Analysed rate of $54m².

Ms Bingham considers that these sales provide a market range for the Land between $900,000 and $1 million. Ms Bingham has adopted a midpoint value of $950,000.[81]

Compensation owed

[81] Exhibit 20, para 152.

In broad terms, Ms Bingham ascribes a value to the Taken Land of 25m² @ 875m² = $21,875 (the basis for which is left largely unexplained)[82] and injurious affection of 25% ($1.3 million x 25% = $325,000). Ms Bingham rounds $346,875 up to $350,000.

Mr David Molony

[82] ts 171, 17 May 2023.

Mr Molony is a real estate valuer. He prepared a valuation for the Respondent outlining the compensation that is owed to the Applicant by reason of s 241 of the LA Act.[83] He also employs a before and after approach. His overall assessment of compensation is as follows:
[83] Exhibit 18.

Value of land taken: s 241(2)

$22,000

Consequential losses: s 241(6)

TBA

Severance/injurious affection: s 241(7)

$378,000

Betterment: s 214(7)

Nil

Solatium

TBA

Interest

TBA

Before scenario

In assessing the value of the Land in the before and after scenarios, Mr Molony has had regard to a wide range of sales. In the before scenario, he focuses on the sales in the table below which he describes as 'particularly relevant'.[84]
[84] Exhibit 18, para 287.
He outlines that his sales evidence is generally focused towards the higher end properties within Darling Downs. Given that there are fewer sales above $1 million in Darling Downs, he has included sales from nearby Byford and Oakford. He also notes that between 2012 and 2022 in the Darling Downs locality, there were 29 sales of improved lots between 1.5 hectares and 2.5 hectares. Twenty of these were below $1 million and only one exceeded $1.2 million.[85]
[85] Exhibit 18, para 291.
He has particular regard to the following sales in the before:[86]
[86] Exhibit 18, paras 286 to 313.

Sale address Sale price Sale date Comments

191 Masters Road, Darling Downs $1.5 million May 2021
Very well-presented residential property benefitting from substantial lifestyle attributes, quality horse improvements and quiet, tranquil position within the suburb. The sale price was a record price for a 2 hectare lifestyle property. The previous record was $1.3 million from 2007.

There are a number of sales in the 'low 1 millions' in Darling Downs in superior locations to the Land, but not with the same quality of ancillary improvements.

A hypothetical buyer would be prepared to pay a premium for the Land, above $1 million, but not so as to exceed $1.4 to $1.4 million.

225 Masters Road, Darling Downs $1.2 million July 2020 Arguably one of the most desirable/substantial properties to transact in Darling Downs in the years prior to the Taking Date. The sale at $1.2 million was during weaker market conditions in the early phases of the COVID-19 pandemic, and before the significant upswing in value in the 11 months leading to the Taking Date. This sale justifies his view that the Land would not sell for more than $1.4 million in the before scenario.

11 Rustic Place,
Darling Downs $1.475 million August 2021
A very good quality sprawling single level residence with a granny flat and a second residence, erected in a quiet tranquil rural lifestyle block. The property transacted 2 months after the Taking Date in a similar market.

This sale is superior to the Land, mainly due to a superior location and larger improvements. This property suggests a before value in the range of $1.3 to $1.4 million.

Why the Land has a value of $1.4 million in the before scenario

In considering these sales, Mr Molony considers that the evidence supports an 'unaffected value' of between $1.3 million to $1.4 million. Taking a view favourable to the Applicant, Mr Molony adopts the upper end of this range of $1.4 million.[87] His reasoning is as follows.
[87] Exhibit 18, paras 298 to 313.
While the improvements on the Land are good, particularly the pool/cabana/studio area, the Land was impacted in the before scenario by Thomas Road and the Perth-Australind railway line, with the rail having far less impact than Thomas Road. The impact of Thomas Road would influence price in a market for quiet, tranquil lifestyle properties. Thomas Road was only 70 metres from the main residence and 60 metres from the cabana. Noise was an issue affecting the Land in the before scenario. While the trees partially alleviated these issues, most of which remain, the most exposed part of the Land to traffic was the eastern paddock.
While the market was buoyant as at the Taking Date, buyers in the 'mid 1 millions' are very discerning (and increasingly so as price trends closer to and above $1.5 million) and Mr Molony considers that the Thomas Road 'frontage' would weigh on the degree of any premium that could be expected in the open market for the Land, despite its very appealing ancillary improvements. He reasons that there is a general desire for a quiet rural lifestyle amenity to justify the financial outlay.
The main residence is neat and reasonably modern, but not large and retains mostly original fixtures and fittings. The residence is not considered to be the same quality as the majority of sales in the $1.2 to $1.5 million price category. This is countered somewhat by the studio/cabana/pool, but the Land lacks any horse improvements which are highly sought after by the target market, and generally attract premiums, as evinced in the sales evidence.
The evidence suggests that sales that exceed $1.2 million in Darling Downs 'thins out significantly', with buyers in this price category attracted to other special rural locations such as better regarded and quiet pockets of Oakford, Banjup and Wandi.

After scenario

In the after scenario, the Residual Land has retained its appealing improvements, however the Public Work will negatively influence its value for a number of reasons, including the reduction in lot size, the loss of trees, and most significantly the elevating of Thomas Road such that the southern boundary now neighbours a raised section of Thomas Road as it 'ramps up' over the rail line to the south-east. The visual impact of the flyover is the most influential variable, despite the improved noise outcome. This visual impact is made worse by the loss of trees. Mr Molony expressly states his after value is conscious of both these factors.[88] He considers this impact as injurious affection.
[88] Exhibit 18, para 321.
Mr Molony reviewed the Applicant's arborist report by Mr Cuddihy, in relation to the loss of trees, but does not consider that it is a marketbased assessment. That is to say, he is of the view that purchasers do not price up individual trees to be added together as an improved value.[89] Rather, Mr Molony has assessed the value of the Residual Land in the after reflects the loss of the trees and the effect this has on the impacts of the flyover.
[89] Exhibit 18, para 319.
On his re-inspection on 23 March 2023, it confirmed for Mr Molony that the bulk of the bridge is most prominent at the rear southeastern corner moiety of the Residual Land. This is a most important factor, as in this instance the primary improvements - the dwelling and cabana/studio/pool - are located on the western half of the Land.[90] The dwelling and the cabana/studio/pool are located such that they are partially screened from the bridge by trees located on the Residual Land, as well as a minor number in the road reserve. In addition, the flyover is not as elevated in this portion (the eastern portion) of the Land. This would influence what a hypothetical purchaser would pay in the after scenario.
[90] Exhibit 18, para 322.
In the after scenario, the Land still appeals as a rural lifestyle property, with the ancillary improvements and the landscaping being the main drawcards. In particular, while the residence is smaller than a number of others in the local '$1 million plus category', the studio/cabana/pool and landscaping improves the appeal of the Land. These features would still appeal to a prospective buyer in the after scenario and would weigh-up the negative effect of the bridge.[91] The land loss is the least significant influencing factor.[92]
[91] Exhibit 18, para 328.
[92] Exhibit 18, para 330.
The real estate market was strong as at the Taking Date. This applies in the after scenario, as it does in the before.[93] However, in the after, the price would have to be discounted.
[93] Exhibit 18, para 329.
Mr Molony references the following sales for his after-scenario analysis, which focuses on the 'high $900,000s to low $1 millions' price bracket:[94]
[94] Exhibit 18, paras 315 to 339.

Sale address Sale price Sale date Comments

68 Kentucky Drive West, Darling Downs $1.15 million. June 2021
A lesser improved property than the Land with inferior ancillary items and a smaller house. Fronts Thomas Road but without flyover. The sale occurred in the same month as the Taking Date. This property would have sold for less than $1 million prior to the post COVID 19 market buoyancy.

The differences in overall value with the Land are minor. In ascertaining a price, the market would have mostly balanced out the differences of the impact of Thomas Road (bridge or at grade) versus the differences in quality, scale and size of the accommodation. I believe this property is superior than the Land.

33 Barip Place, Oakford $1.15 million. October 2021
A 2-hectare lot with lesser quality improvements. In terms of overall presentation, and improvements, the sale property is considered to be inferior to the Land.

With regards to location, the sale property backs onto the busy Rowley Road and is opposite a future industrial precinct (Forrestdale). However, the overall location is considered superior to the Land. Overall, this sale is slightly superior to the Land in the after.

87 Kentucky Drive West, Darling Downs $960,000 June 2021 In terms of overall presentation and improvements, the sale property is considered far inferior. With regards to location, the sale property backs onto Thomas Road, but an at-grade section. Overall, a higher after value is appropriate for the Land.

Mr Molony considers that the market evidence points to an after value of between $1 to $1.1 million. Mr Molony adopts the most favourable valuation to the applicant (being the lowest) of $1 million. In doing so, he has had regard to the loss of the trees and the impact of the flyover.
The result being that the difference between the before and after valuations is $400,000. Mr Molony then apportions this compensation value into the various heads of claim.

Value of Taken Land

Mr Molony assesses nine sales to attribute a value to the Taken Land. He says to do so is generous because rural residential land is not valued on an area-proportionate basis. So long as the lot in question is large enough to provide the buyer with the lifestyle attributes and the building envelope they seek, that will be sufficient.
He is of the view that there is not a great degree of difference between 2 hectare lots compared to 2.5 hectare lots. Even lots at 1 hectare can command values not too dissimilar to 2 hectare lots.[95]
[95] Exhibit 18, paras 370 to 372.
Mr Molony is of the view that a fair land rate for the Land is in the range of $22.50 to $25 per square metre. Because the market was buoyant as at the Taking Date, Mr Molony adopts the upper end of this range at $25 per square metre (x 875m²) = $22,000.
Therefore, Mr Molony allocates compensation as $22,000 for the purposes of s 241(2) and $378,000 as injurious affection under s 241(7).

Damages arising from the railway line

Mr Molony prepared a supplementary report.[96] This additional report assumed the Public Work included not only road works, but also 'the upgrading of the adjoining rail line to accommodate the Byford Metronet line which will significantly increase the frequency of rail traffic'.[97]
[96] Exhibit 19.
[97] Exhibit 19, para 1.
In preparing this advice, Mr Molony had the benefit of the Applicant's acoustic report prepared by Tim Reynolds.
In his review of the evidence, Mr Molony considers that the increased utilisation of the railway line will have a further downward effect on the value of the Land beyond that considered in his primary report.[98] The degree of that impact is influenced by the location of the primary improvements on the Land relative to the rail line. He estimates the dwelling is 155 metres away from the rail line, the cabana/studio is some 130 metres away.
[98] Exhibit 19, para 23.
Having regard to these additional factors, Mr Molony would reduce his after value from $1 million to $925,000. The result is, in effect, an increase in the compensation of $75,000.
As I will come to explain, I largely accept the evidence of Mr Molony.
Having given an overview of the evidence, I turn next to consider the issues in contest. I will address why I will not allow the Applicant's claims for trees 'as improvements' nor for damages alleged to have been caused by an increase in gully winds. I will also explain why I will not allow for the costs of construction for an acoustic wall on the eastern boundary. I will then conclude by outlining the compensation that is owed to the Applicant.
However, before any of that, I must first address the question of identifying what is the Public Work.

The Public Work

Identifying the Public Work

The Taking Order specified that the designated purpose of the Taken Land was the Byford Rail Extension – Thomas Road over Rail. The Public Work entails delivering pedestrian railway services to Byford to accommodate the fact that the population is expected to double to 35,000 by 2036. That will ultimately involve 107 new train movements per day past the Residual Land. Currently, there are only four rail services per day using the railway line as part of the Perth to Australind service.
As a consequence of that increased rail traffic, the existing Thomas Road level crossing was reconfigured to a road-over-rail bridge. The Taken Land forms part of the elevated road bridge that now crosses the railway line. The concrete wall that forms the bridge rises to 13 metres high adjacent to the Residual Land. As was apparent at the site view attended with the parties, the Public Work is, in general terms, highly visible from the Land.
The Respondent submits that the Public Work for which compensation is payable is only the road traffic bridge over Thomas Road. The Applicant submits that the Public Work includes the proposal to extend pedestrian rail services to Byford such that the damage that may arise from the increased use of the railway line is also compensable. The Respondent does not agree and submits that the Taking Order was perhaps 'unfortunately worded'.[99]
[99] ts 271, 18 May 2023.
The question of 'what is the public work?' was squarely addressed by Tottle J in Kilmaley Investments Pty Ltd v City of Wanneroo (Kilmaley).[100] I gratefully adopt, without repeating, his Honour's analysis of the relevant provisions of the LA Act.[101] In Kilmaley, his Honour also stated:
169A test for identifying the 'proposed public work' for the purposes of s 241 of the Act (or equivalent provisions in comparable legislation), has proved elusive. No test emerges from the authorities. Putting to one side the defendant's submissions that the 'proposed public work' is defined by the notice of intention to take, the parties do not identify a test in their submissions. There is no ready analogue to be derived from other areas of the law.
170I agree, with respect, with the conclusion expressed by Hodgson JA in Road Traffic Authority of New South Wales v Perry, that there are no clear rules for determining the relevant purpose or the appropriate level of generality with which it is to be defined (in the context of this analysis 'public purpose' in the New South Wales legislation may be equated with 'proposed public work' in the Act). The absence of a test or clear rules reflects the widely differing circumstances in which courts are called upon to identify the proposed public work or, as the case may be, the public purpose.
171Conformably with the view expressed by Lord Nicholl in Waters v Welsh Development Agency, in my view, identification of the 'proposed public work' requires a consideration of the primary facts as determined objectively. An evaluative judgment is required to select the primary facts and to determine the level of generality at which the proposed public work is to be identified. The guiding principle is that the land owner is to receive fair compensation but not more than fair compensation having regard, of course, to the provisions of s 241 of the Act.
172For the purposes of determining the facts it is open to the court to have regard to the documents of the acquiring authority, which in this case is the defendant. (Citations omitted)
[100] Kilmaley Investments Pty Ltd v City of Wanneroo[No 2] [2017] WASC 307 (Kilmaley).
[101] Kilmaley [102] - [112].
In this instance, the Metronet documents present the Byford Rail Project as but one public work. It is a project that is centred on delivering a pedestrian train network to Byford by the extension of the two-track electrified rail network, changes to the Armadale Rail Station and a new Byford Rail Station. As part of the delivery of the public work, it states:
To improve safety and connections in the area, and improve traffic flow, the Thomas Road level crossing will be reconfigured to a roadover-rail bridge.
And:
The Byford Rail Extension will include: Thomas Road crossing will be reconfigured to a road-over-rail bridge.
Counsel for the Respondent, Mr Tom Ledger, submitted that:
… So I guess the question for the tribunal is is it fair for Main Roads to be up for broader changes to a much bigger, wider project, when all they've done is done one part of that project?[102]
[102] ts 272, 18 May 2023.
With respect to Mr Ledger, I do think it is fair that [Main Roads] pays the compensation that is due to the Applicant having regard to the terms of s 241 of the LA Act, without regard to the identity of the Minister who signed the Taking Order or the authority undertaking the public work.
The terms of s 241 do not discriminate between different ministers or agencies that are authorised to undertake public works. It simply cannot be the case that just because it is the Commissioner of Main Roads, which is the Respondent, that any compensation payable to the Applicant must be limited to the road works which the Commissioner undertook.
Compensation is available for the impact of the public work in question, regardless of the identity of the agency ultimately responsible for the Taking Order. As Tottle J stated in Kilmaley, the evident purpose of s 241 is to provide fair compensation to the dispossessed landowner.[103] That purpose would be defeated if compensation for the public work was anchored to the identity of the acquiring authority.
[103] Kilmaley [168].
If the public work in question, properly construed, has the result that adjoining land owned by the Applicant is damaged via severance and/or injurious affection,[104] then compensation for that damage forms part of the fair compensation which they are owed under s 241 of the LA Act.
[104] I will explain the concept of injurious affection below at [164] to [166].
In Kilmaley, Tottle J noted that, in considering the provisions of Pt 9 of the LA Act, care has been taken to draw a distinction between the purpose of the public work, set out in a notice of intention, and the public work itself. His Honour concludes that 'the identity of the proposed public work for the purposes of s 241(2) of the LA Act is not determined by the particulars of the purpose of the public work stated in the notice of intention'.[105]

The Public Work includes the increased utilisation of the railway line

[105] Kilmaley [152] to [168], see particularly [161].

For the following reasons, each of which overlap, I am satisfied that the Public Work includes the upgrade, and increased utilisation of, the railway that adjoins the Residual Land to the east.
First, the Taking Order is not directed to simply being a road upgrading project. It is identified as being the 'Byford Rail Extension - Thomas Road over Rail'. I, as I must, accept the analysis from Kilmaley that the identity of the Public Work cannot be determined by the content of the NOITT.
However, nowhere does his Honour suggest that that content is irrelevant. In this instance, the Public Work, was presented in the NOITT as being for the express purpose of the Byford Rail Extension - Thomas Road over Rail. That is to say, the purpose was primarily a rail extension project with consequential road works. The NOITT does not confine either the purpose of the Public Work, or the Public Work, to being only the upgrade of Thomas Road.
Second, the Metronet documents also present the Byford Rail Extension as a project that entails, primarily, the extension of the pedestrian railway line to Byford together with related road works to improve traffic flow.
The Public Work encompasses the works necessary to deliver that rail infrastructure to cope with an anticipated doubling of the population in Byford to 35,000 people by 2035. Such works include consequential road works such as the Thomas Road over Rail. The Metronet documents explain that the Thomas Road over Rail is a project to 'accommodate the Byford Rail Extension'.
Third, and following on from above, in my view, there is no room for argument that this Public Work is merely a road upgrade project. The purpose of the road upgrade is to facilitate and accommodate the greater use of the rail line as part of the metropolitan rail network. It is a project that is primarily targeted at increasing the utilisation of the existing railway. In the language of Kilmaley, I find it should be identified at that level of generality.[106] The Thomas Road over Rail works is a corollary, but nevertheless part, of that broader project. On no reasonable view could the Public Work be regarded as a standalone road project.
[106] Kilmaley [171].
It follows that if I am satisfied that the increased utilisation of the railway line on the eastern boundary of the Land will damage the Residual Land being 'adjoining land') by reason of the increased rail noise, then then that damage is compensable.

The claim for the loss and/or damage to trees

The Applicant advances a claim, in effect, that in ascertaining the market value of the Taken Land, that the loss of 45 mature trees on that land 'should be brought to account'.[107] In effect, the Applicant seeks to value the trees independently (or separately) from the Taken Land. The claim for the trees on the Taken Land arise under s 241(2) of the LA Act.
[107] ts 160, 17 May 2023; ts 280, 18 May 2023.
The Applicant further contents that 13 trees remaining on the Residual Land are now at risk due to breaches of their tree root zones by the Public Work. This aspect of the claim is made as damage to adjoining land under s 241(7) of the LA Act. Although not articulated in the Applicant's written submissions, I agree with Mr McGowan that this claim properly falls under s 241(7)(b) as it is damage due to the reduction in value of the Residual Land.[108] The Applicant's point being that the presence of trees on the Residual Land adds a value and, therefore, the potential loss of 13 trees will result in a loss of value.
[108] ts 278, 18 May 2023.
The total amount of this claim is $139,539 for the 45 trees that were on the Taken Land and a further $42,024 for the encroachment into the tree root zones for 13 trees that remain on the Residual Land. The total is therefore $181,563.

Why I will not allow a separate award for the loss of the trees on the Taken Land

The compensation that is available under s 241(2) of the LA Act is for 'the value of the land with any improvements'. As a matter of law, the trees are a fixture. That is to say, they form part of the Taken Land.
In Lenz, a case which involved the loss of 501 pine trees which straddled the Forrest Highway, Edelman J was dealing with a claim for compensation for the loss of the trees as an aspect of severance damage (under s 241(7)(a) of the LA Act). His Honour was considering five alternate ways in which compensation for the trees might be awarded. The evidence established that the notional value of the pine trees was estimated to be in the order of $137,500.[109]
[109] Lenz [279(2)].
His Honour commented that the various methods of assessing the value of the pine trees, including by their notional value, should not be permitted on the basis that such an approach elides the fact that trees are, as matter of law, part of the land. His Honour stated:
First, to award compensation to Ms Glasson on the basis of (1) or (4) is inappropriate in these circumstances. These measures of compensation seek to attribute value to the trees independently of the land upon which they are affixed. But, in law, trees are a fixture. They are part of the land. Their value enhances the value of the land.[110]
[110] Lenz [282].
Regardless of the fact that the Applicant's claim in this case is made under s 241(2), it is still plain that the Applicant seeks to, in my view, value the trees independently of the Taken Land by employing what is, in this context, an artificial methodology.
As I will come to explain, in terms of 'bringing the trees to account', I accept the Applicant's criticism made of Ms Bingham that she did not, at least expressly, address the fact that the Taken Land contained mature trees; that these trees added something to the amenity enjoyed by the Land in the before scenario and that the loss of these trees will impact the Residual Land.[111]
[111] ts 160 - 164, 17 May 2023.
However, unlike Ms Bingham, Mr Molony made express reference to the trees and to the benefits that the trees added to the Land. In his analysis of the after scenario he again goes on to say that the loss of the trees has had both noise and visual implications for the ongoing enjoyment of the Residual Land. Mr Cameron merely adopted Mr Cuddihy's findings.
Furthermore, the approach urged on me by the Applicant, in my view, seems rather out of step with the test that is required under s 241(2) which was set out by Griffith CJ in Spencer v The Commonwealth.[112] That theoretical exercise is to identify the price which would be paid under a hypothetical bargain between a person:
… desiring to buy the land … to a vendor willing to sell it for a fair price but not desirous to sell[.]
[112] Spencerv The Commonwealth, 432.
The authorities emphasise that the buyer is assumed to be 'perfectly acquainted' with the land being valued and its potential.[113] In this instance, it can be accepted that the hypothetical purchaser has taken account of the trees and, in a rural living context in particular, is cognisant of the fact that the presence of trees adds value to those who seek a rural residential lifestyle property.
[113] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [162] (Steyler J, Templeman J, Simmonds J).
Even so, I agree with Mr Molony that, so far as trees are concerned, purchasers (including hypothetical purchasers) do not scrutinise each tree on a parcel of land and independently ascribe it a value that is then to be added as an extra amount on top of the underlying soil. Mr Molony took note of the fact that the Taken Land contained mature trees and returned to the Residual Land after the Taking Date to ascertain the impact of the loss of those trees.
In terms of 'bringing the trees to account', what is relevant is that the presence of the trees, and any value that they add as part of the land, are properly contemplated. As I have stated, while I am not satisfied that Ms Bingham has properly taken these into account, Mr Molony certainly did. He clearly and carefully valued the Taken Land on the basis that it was well treed in what is a rural residential context.
I find that the value that the presence, and the loss, of the mature trees falls to be considered by the valuers under s 241(2). It is not an item that is simply added-on after the land has been valued. It is an inherent part of the value of the Taken Land.
While the Helliwell System may seek to ascribe a monetary value for trees, in my view, it is not an instrument that assists in the valuation exercise required by s 241(2), at least in this instance. In its own terms, it was not designed as a means to attribute value to trees in compensation cases.[114] Furthermore, it also states that the valuation exercise is subjective and that the system is best used as a guide, rather than as a precision instrument.[115] However, in this instance, the Applicant does not rely on the system for broad and general purposes. Rather, he seeks to use the system as a means to a precise amount of compensation which he says he is owed.
[114] Although it states it has been used for this purpose as well as to calculate fines payable.
[115] Exhibit 14, page 4.
Moreover, in the valuation exercise contemplated by s 241(2) and the case authorities (such as Spencer v Commonwealth), as was the case in Lenz, I find there is no warrant in this case to value the trees independently from the Land which, as a matter of law, they form part of.
I decline to award the compensation for the loss of 45 trees as assessed by Mr Cuddihy.

Why I will not allow the claim for the potential loss of trees on the Residual Land

The claim for the potential loss of up to 13 trees on the Residual Land fails for the reason that the loss has not yet, and may never, actually be incurred.
As I raised with Mr McGowan in oral argument, the trees the subject of this claim may ultimately turn out to be unimpacted by the Public Work. Mr McGowan, fairly in my view, described this claim as a 'contingency' and that he could not 'put it higher than that'.[116]
[116] ts 281, 18 May 2023.

The record price paid in Darling Downs for a property is $1.5 million, yet his before value exceeds that by 20% without, in my view, adequate explanation or justification.
In an overall sense, I am not satisfied that Mr Cameron's analysis in the before scenario it is logical or reasonable, even having regard to the high quality of the ancillary improvements on the Land.
Those same concerns relate to his value in the after scenario. He simply concludes what he considers the value will be 'more in the order of $1.2 million'. He also says the after value is difficult to determine as the full impact of the Public Work is not yet known.[145] At some level that may be accepted. However, as is evident from the other valuers, there were sales that could have been used as reference points to articulate the basis for a value in the after scenario. Rather than undertake any real analysis, Mr Cameron rather just arrives at an after value of $1.2 million. The intellect process leading to that opinion is not set out.
[145] Exhibit 15, page 36.
The final concern I have with Mr Cameron's analysis is his summation assessment. I accept that valuation evidence includes many evaluative (and subjective) judgments, some of which are difficult to describe in detail or reduce to words. Even accepting that, Mr Cameron's summation assessment includes, literally, no analysis as to how he has valued all the improvements on the Land and the basis on which he adjusted those values in the after.
For example, there is no explanation as to why the main residence decreases in value only $60,000 in the after scenario, but the cabana decreases by $200,000. Furthermore, I am not sure why the (near-new) pool decreases in value by 33% in the after (from $75,000 to $50,000). No explanation or justification is offered.
Ultimately, in my view, Mr Cameron's summation exercise appears to be a somewhat contrived and artificial device concocted to justify and bolster his before and after valuation, rather than as a checking exercise per se.
Ms Bingham considers that, in this instance, the summation method to be too subjective to be utile. The subjectivity arises due to the lack of knowledge of the individual characteristics of the sales evidence and their various building components in comparing them with the subject property.[146] I am inclined to agree.

Mr Molony

[146] Exhibit 21, item 21, page 7.

Mr Molony's evidence was the most thorough and comprehensive of the three valuers. His evidence was also the most considered.
His report provided detailed analysis of his comparable sales, with detailed analysis of the residence and improvements as well as multiple photographs of each, which made it easier for me to follow his line of reasoning. He included a comprehensive analysis of the before and after scenarios and expressly took into account the fact that the Taken Land was planted out with mature trees.
In oral evidence, he was firm but candid but had clearly considered, at some depth, the sales which his valuation report referred to. In an overall sense, he was balanced, measured and reasonable. Furthermore, he was very fair. For example, when dealing with valuation ranges, he always adopted the value that was most favourable to the Applicant. I find he was an impressive witness.
Save for one adjustment that I will make; I accept and adopt his valuation evidence.

The value of the Land: the before scenario

All three valuers utilised the sale of 225 Masters Road, Darling Downs (sale price of $1.2 million) (225 Masters Road) and the sale of 191 Masters Road, Darling Downs (sale price of $1.5 million) (191 Masters Road). In my view, these two sales set the range for the value of the Land in the before. Both sales are in Darling Downs, of a similar size and were relatively recent.
I agree with Mr Molony and Ms Bingham that the sale at 191 Masters Road is superior to the Land. Mr Cameron considers the Land was superior due to the cabana/pool area and landscaping. I disagree.
191 Masters Road is better located and, in an overall sense, its improvements are superior than the Land. The residence was built in 2014 with quality fixtures and fittings and the ancillary improvements included a heated below ground pool. There is a 150,000-litre rainwater tank, a barn with horse improvements. The property also had immediate access to bridle trails which are valued in this locality. It is also in a quieter location.
By reference to this sale, I find that the value of the Land in the before scenario is below $1.5 million.
The sale at 225 Masters Road provides, I find, the most comparable sale. The residence was newer (2017) and was high quality. The ancillary improvements included a below-ground pool, double garage, central courtyard and fireplace, alfresco and fenced paddocks. It is very comparable to the Land in the before scenario but in a superior location. However, market conditions improved between July 2020 and July 2021 (the Taking Date) such that the adjusted sale price would be closer to $1.39 million.
Mr Molony considers that this sale provides the ceiling for the value of the Land in the before of $1.4 million. Ms Bingham considers that the Land was slightly superior, but Ms Bingham did not adjust her sale price upward to take account of the changed market conditions as at the Taking Date. Mr Cameron considered this sale, but not closely. He simply described it as 'inferior'.
I have also closely considered the sale at 11 Rustic Place, Oakford in August 2021.[147] The residence was built in 2000, extended in 2007 with a self-contained granny flat. A second residence was constructed in 2015. The property also includes an underground pool, extensive verandas and a workshop. It is in a quiet precinct away from major roads. I agree with Mr Molony, and so find, that this property is superior to the Land. The sale price of $1.475 million supports a valuation of the Land in the before at $1.4 million or less.
[147] Refer [99] above.
Likewise, the sale of 127 Foxton Drive, Oakford (referred to by Ms Bingham) supports a value for the Land at or below $1.4 million. The sale price of $1.380 million in September 2020 was for a 1997 residence comprising five bedrooms and two bathrooms. Ancillary features include a wrap-around veranda, an alfresco patio and a 10 metre x 5 metre pool. A further dwelling was added in 2015. I find that this sale is also superior to the Land.
Overall, I agree with and accept Mr Molony's analysis in the before scenario. His valuation was the most thorough, balanced and wellreasoned. In my view, a hypothetical prudent purchaser would not pay more than between $1.3 - $1.4 million for the Land in the before scenario. While the ancillary improvements on the Land are very high quality, the main residence is not large, and the overall location is somewhat compromised by the proximity of (at grade) Thomas Road and the railway line.
I adopt a value of $1.4 million for the Land in the before.

The value of the Residual Land: the after scenario

In the after scenario, Mr Cameron adopts a value of $1.2 million. Ms Bingham adopts $950,000 and Mr Molony adopts $1 million (later reduced to $925,000).
Mr Molony's sales in the after are all properties that back onto major roads (Thomas Road and Rowley Road). The sale at 114 Kentucky Drive West, Darling Downs for $960,000 was in the same month as the Taking Date. The improvements are inferior to the Land but in a superior location. Nevertheless, Mr Molony considers that the Land would have a higher value in the after due to the quality of the improvements.
The sale at 33 Barip Place, Oakford has improvements that are inferior to the Land but is, in an overall sense, better located even though it backs onto Rowley Road. Because of its superior location, Mr Molony considers its value at $1.150 million would exceed that of the Land.
Ms Bingham refers to the sale of 70 Bangap Place, Oakford for $850,000 as an inferior property. It abuts Tonkin Highway to the rear (at grade). Because of the elevated flyover, a higher overall value would attach to the Land in the after due to the quality of the improvements.
Ms Bingham considers the sale at 134 Wungong South Road, Darling Downs at $1.05 million to be superior to the Land in the after. It is similar sized, the residence is of a similar age and the ancillary features include a below ground pool, bar and barbeque area, selfcontained granny flat, bore, electric gate, stables with walk in/walk out horse facilities. These facilities are broadly comparable to the Land. However, the property is in a superior location compared to the Land in the after scenario.
Mr Cameron does not refer to any specific sales to establish or rationalise his after value. What he does say is that the value of the Land in the after lies below that of properties with modern homes, with a reasonable level of ancillary accommodation and devoid of negative impacts which attract prices of between $1.4 - $1.45 million. Rather he considers the value of the Land in the after is 'more in the order of $1.2 million'.
I have already explained that I find Mr Cameron's analysis of the after scenario difficult to follow as his reasoning process is not explained. While it can be accepted that the Land in the after is worth less than $1.4 million, more analysis is needed to establish just how much below that value the Land sits. I find that his blunt conclusion that a value 'more in the order of $1.2 million' does not suffice when there are plainly sales that could have been referred to, compared and more fully analysed to justify that opinion.
In an overall sense, Mr Molony has a range of $1.1 to $1 million based on the sales evidence. Ms Bingham was between $900,000 to $1 million. Mr Molony adopted the bottom end of his range (being $1 million) while Ms Bingham picks her midpoint of $950,000. After being instructed to consider the effects of the railway line, Mr Molony reduced his after value to $925,000.

The impact of the Public Work

In my mind, the impact of the after scenario on the value of the Land needs to be very carefully considered. Having attended the Land together with the parties, there is little doubt the Public Work will have a significant deleterious effect on the value of the Land. However, I do accept Mr Lloyd's evidence that road noise will be reduced by the Public Work, due to the range of acoustic treatments that have been included.
Nevertheless, Thomas Road has gone from being a busy (at grade) road to a steep concrete flyover with a large, and imposing, concrete wall that faces the Residual Land. I find the visual impact is quite stark. In my view, it erodes, in a quite a fundamental sense, the rural living amenity of the Residual Land.
While it must be acknowledged that the Land abutted Thomas Road, a busy regional road in the before, it is quite another thing for the outlook onto that busy (at grade) road to be replaced with a flyover structure of the scale of the Public Work. The view across Thomas Road has been replaced with a stark concrete wall that rises to 13 metres in height along its length.[148]
[148] ts 3, 15 May 2023.
It is also plain that the Applicant has taken steps to shield himself from, or to mitigate the impact of being adjacent to, Thomas Road. That is evident by the planting of a significant number of trees along the boundary, 45 of which were located on the Taken Land and must be assumed to have been removed in the after. It is also evident in the manner in which the pool and cabana have been sited on the Land, with the cabana facing away from Thomas Road overlooking the pool area. The decision to locate and orientate the cabana/pool area is negated somewhat by the height (and length) of the concrete wall that now rises behind the cabana (when viewed from the pool area).
Added to this will be the significant increased use of the railway line and the consequential amenity impacts in terms of increased noise.
It is at this point where I feel compelled to adopt what is commonly termed a 'liberal estimate'. I will explain why.

Why I will apply a liberal estimate to the after value

It is accepted in compensation cases that any doubts as to the compensation that is owed to a disposed owner must be resolved in favour of 'a liberal estimate'.[149]
[149] Refer [34(13)] above by reference to Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (373-374) (Dixon J); Boland v Yates Property Corporation Pty Ltd [100] (Gaudron J), [111] (Gummow J), [356] (Callinan J).
As I have set out at [39(13)], the leading authorities on the principle are Executor Trustee which was affirmed in Boland v Yates. Perhaps the best statement of the principle was from Osborn J in Roads Corporation v Love[150] where he stated:
Other things being equal, if there is a doubt as to the amount properly payable by way of compensation that doubt should be resolved in favour of the more liberal estimate.
[150] Roads Corporation v Love [2010] VSC 32; (2010) 173 LGERA 1 [122]
The principle needs to be carefully applied, and it is uncertain whether it can be applied to all heads of compensation. However, it is beyond question that it does apply to the valuation of land.[151]
[151] Newton, G & Connolly, C (2017) Land Acquisition, 7^th Edition, Lexis Nexis, [3.18].
The principle applies having regard to the fact that the reality of valuing a hypothetical sale in the face of a compulsory acquisition is an artificial construct which is inherently difficult and uncertain, where there are conflicting valuations and ultimately where the fact finder is left in some doubt.
It is beyond doubt that the Public Work is going to have a series deleterious impact on the value of the Residual Land. As I have stated, Ms Bingham's and Mr Molony's valuations are reasonably aligned. Together, their values for the after scenario establish a range between $1.1 million and $900,000. Mr Molony adopted the value of $925,000 taking account of the impact of the railway, Ms Bingham adopted $950,000 without any regard to the impact of the rail.
While I generally prefer, and have largely adopted, the valuation evidence of Mr Molony, in the context of the after scenario, I will adopt a more liberal estimate that favours the Applicant. I do so because I am ultimately left in some doubt as to what the appropriate after value is for the Residual Land having regard to the impact of the Public Work. Ultimately, I am concerned that $925,000 may be a value that is slightly too high. Therefore I will adopt the floor of Ms Bingham's range for the after valuation, being $900,000.
I therefore find that the difference between the value of the Land in the before scenario and of the Residual Land in the after scenario is $500,000.

The value of the Taken Land

Mr Molony's approach was to take that difference in value between his before and after assessments and then apportion it between the value of the Taken Land and injurious affection. He apportioned $22,000 as the value of the Taken Land and the remaining amount is to be treated as injurious affection.
Mr Molony adopted a land value for the Taken Land of $25 per square metre to derive a value of $22,000. This land value aligns with that found by Ms Bingham. Mr Cameron adopted a rate of $32.32 per square metre, equating to $26,500. However, that value derives from his before value which, as I have explained, I do not accept.
I find that the value of the Taken Land is $22,000.

Apportionment of compensation

Having made those findings on the before and after value, and having fixed the value of the Taken Land as an aspect of that, I apportion the compensation owed to the Applicant as follows:
(a)value of the Taken Land, s 241(2): $22,000.
(b)injurious affection to Residual Land, s 241(7)(b): $478,000.

Claim for professional fees

The Applicant claims $28,335.60 in professional fees from their arborist, valuer, engineer and lawyer. These fees do not include the litigation fees associated with the Tribunal hearing. The claim is made pursuant to s 241(6)(d) of the LA Act.
Section 241(6) of the LA Act is what is known as a 'disturbance' or 'consequential losses' head of claim. As with injurious affection, this label does not appear in the LA Act. The opening words speak to 'loss or damage sustained by a claimant' and govern the nature of what may be compensable pursuant to s 241(6). Such matters include removal expenses, disruption and reinstatement of a business or losses resulting from the halting of works in progress as at the date the interest was taken.
The claim for these professional fees under s 214(6)(d) must fail. The fees claimed are plainly not fees 'in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest'.
For the avoidance of doubt, I will also explain why compensation for such fees is not available under s 241(6)(e) of the LA Act either. That provision states I can have regard to 'any other facts which [the Tribunal] considers it just to take into account in the circumstances of the case'.
In Cereni v The Minister for Transport,[152] Parker J held that a claim for such professional fees under s 241(6)(e) must fail. There, his Honour followed the decision of Virtue J in Konowalow, where it was held that the statutory predecessor[153] to s 241(6) is to be read ejusdem generis.
[152] Cerini v The Minister for Transport [2001] WASC 309.
[153] Being Public Works Act 1902 (WA), s 63(aa)(v).
That is to say, s 241(6) establishes, and is confined to, a genus which is described as 'compensation for loss or damage resulting from interference with the activities being carried on by a plaintiff on the land'.[154] Professional fees in anticipation of, or in response to, the taking of an interest in land do not fall within that genus. More recently, this view was followed by Edelman J in Lenz.[155]
[154] Konowalow, 41.
[155] Lenz [409] - [420]; see also Caltex Petroleum Pty Ltd v The Commissioner for Main Roads [2004] WASC 239 [28] - [34] (McKechnie J).
It follows that it is not for me, as a Senior Member of an administrative tribunal, to depart from what is now, and has been for some time, settled law in relation to the application of s 241(6)(e) of the LA Act.
In so finding, I feel compelled to say that, as a matter of principle, I am sympathetic to the Applicant's claim for such fees. The taking of 875m² of his Land for the Public Work was imposed on him, was not of his doing and, quite naturally, has disrupted his life to a significant degree, and will continue to do so into the future. No one in this case has suggested otherwise.
It is also relevant, in my view, that the Applicant has been required, by an Act of Parliament, to compulsorily yield part of his Land for the benefit of the broader public interest embodied in the Public Work. As a matter of principle, it seems reasonable that persons in the position of the Applicant should be entitled, within reason, to access some professional advice to guide them through the stresses and uncertainty associated with the acquisition and compensation process.
I would also observe that the compensation position in relation to professional costs incurred in obtaining legal and valuation advice under the LA Act, as against its eastern states' counterparts, seems to be something of an outlier. The equivalent legislative provisions at Commonwealth[156] level, as well as in New South Wales,[157] Victoria,[158] Queensland,[159] and South Australia[160] each expressly provide for the recovery of some professional fees in consequence of the taking of an interest in land.
[156] Lands Acquisition Act 1989 (Cth), s 55(2)(e).
[157] Lands Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(a) and (b).
[158] Lands Acquisition and Compensation Act 1986 (Vic), s 41(1)(f).
[159] Acquisition of Land Act 1967 (Qld), s 20(5)(a).
[160] Land Acquisition Act 1969 (SA), s 26B(1).

However, I accept that the extent and scope of compensation that is to be made available to those impacted by the compulsory acquisition of interests in land is, quite properly, a matter for the legislature.

Conclusion

For the foregoing reasons, the compensation for the Taken Land is $22,000 and injurious affection results in a further $478,000. Therefore, I have found that the Applicant is owed $500,000 for the taking of the Taken Land having regard to the relevant provisions of s 241 of the LA Act.
Added to that should be solatium fixed at 10% and interest also needs to be paid at the rate provided for in s 241(11) of the LA Act. The advance payment of $385,000 (plus interest) made on 12 April 2022 will, of course, need to be taken account of in assessing any compensation that remains outstanding.
The parties should confer on the orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
29 AUGUST 2023

Loss in value of land: s 241(2)	$26,500
Loss in value of improvements: s 241(2)	$442,639 ($303,100 + $139,539)
Consequential losses: s 241(6)(d)	All professional fees and expenses
Injurious affection: s 241(7)	$270,400
Total loss (before 10% solatium)	$739,539

Sale	Sale price	Sale date	Comments
191 Masters Road, Darling Downs	$1.5 million	16 May 2021	A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.
75 Foxton Drive, Oakford	$1.56 million	11 May 2021	A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.
110 Foxton Drive, Oakford	$1.65 million	18 June 2021	A higher value applied to the Land due to cabana, pool area and landscaping but offset by ancillary aspects of sale property such as granny flat and tennis court.
Other sales	A higher value applied to the Land as against other sales due to cabana, pool area and landscaping.

Improvement	Volume	Rate/value before	Rate/value after
Residence	250 m²	$400,000 (1,600 m²)	$340,000 ($1,360 m²)
Verandas	100 m²	$30,000 ($300 m²)	$25,500 ($255 m²)
Garage	40 m²	$24,000 ($600 m²)	$20,400 ($510 m²)
Cabana	120 m²	$400,000 ($3,333 m²)	$200,000 ($1,667 m²)
Workshop	152 m²	$30,400 ($200 m²)	$30,400 ($200 m²)
Pool (inc fences)	$75,000	$50,000
Pool paving	150 m²	$25,000	$15,000
Driveway paving	1,200 m²	$50,000	$50,000
Timber walkway	$15,000	$15,000
Fruit tree enclosure	620 m²	$25,000	$25,000
Shade houses x 3	150 m²(total)	$9,500	$9,500
Sheds x 2	24 m²	$2,000	$2,000
Landscaping	$50,000	$50,000
Reticulation/bore	$15,000	$15,000
Before total value of improvements: $1,150,900	After total value of improvements: $847,800

Before	Land value: $650,000	Improvements value: $1,150,900	= $1,800,890
After	Land value: $350,000	Improvements value: $847,800	= $1,197,800

Total loss in value:	$600,000 (as per before and after calculations above).
Less loss in value of improvements:	$303,100 ($1,150,900 - $847,000).
Less land value:	876 m² x $30.32m² = $26,500[66]
Equals Injurious affection of:	$270,400 (41.6% of unaffected value of the Land of $650,000)

Outdoor Noise Target
New Road	55 dB L_{Aeq (Day)}	50 dB L_{Aeq (Night)}
Road Upgrade	60 dB L_{Aeq (Day)}	55 dB L_{Aeq (Night)}

Loss of land and improvement value: s 241(2) 875m² @ $25m²	$21,875
Consequential losses: s 241(6)	Nil
Severance: s 241(7)(a)	Nil
Injurious affection: s 241(7)(b)	$325,000
Rounded value:	$350,000
Solatium (if applicable)	TBD

Sale address	Sale price	Sale date	Comments
225 Masters Road, Darling Downs	$1.2 million	July 2020	A more modern residence (circa 2017) with a larger living area (323m²). Sale features a similar sized site area and is accessed via a battle axe leg. However, given the quality of the ancillary accommodation and more shed area, the Land would have a higher overall value. Analysed rate of $59m².
127 Foxton Drive, Oakford	$1.38 million	September 2020	Residence with a similar age to the Land, with a significantly larger living area (363m²). Ancillary improvements include a large veranda, patio, pool, workshop, remote control gate and bore. The sale also features a separate fully selfcontained granny flat (circa 2015). Having regard to its location in a battle axe configuration and adjacent to Thomas Road, a lower value would apply to the Land. Analysed rate of $69m².
16 Cunningham Drive, Oakford	$ 1.425 million	November 2020	Residence with a similar age to the Land, with a significantly larger living area (377m²). There are significant ancillary improvements including a below ground swimming pool, barn style shed and a matching stable with two walk in/walk out horse facilities, a round yard, aviary and chicken run. The property is also in a quieter location. Overall, the Land would have a lower value. Analysed rate of $71m².

Value of land taken: s 241(2)	$22,000
Consequential losses: s 241(6)	TBA
Severance/injurious affection: s 241(7)	$378,000
Betterment: s 214(7)	Nil
Solatium	TBA
Interest	TBA