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AVILA and MAIN ROADS WESTERN AUSTRALIA

AVILA and MAIN ROADS WESTERN AUSTRALIA

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Case Copied 29 August 2023 71 min read

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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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] WASAT 79
Decision Date: 29 AUGUST 2023

CaseChat Overview and Summary

The case involved Avila and Main Roads Western Australia, where Avila contested the compensation awarded for land resumed for a public work. The dispute centred on the valuation of the acquired land, the impact of the railway noise, and the costs incurred for professional advice. The dispute was heard by the Supreme Court of Western Australia. The central legal issues revolved around the proper identification of the public work for which compensation was sought, the determination of the market value of the acquired land, the treatment of trees as improvements, the impact of railway noise, disturbance costs, injurious affection to adjoining land, and the costs for professional advice.

The court examined the definition of the public work, which was crucial for establishing the scope of compensation. It assessed whether the trees constituted improvements and their valuation, if any, in the compensation. Additionally, the court considered the effect of noise from the railway on the land's value and whether it warranted inclusion in the compensation. Disturbance costs and injurious affection to adjoining land were also scrutinised to determine if they were properly accounted for in the compensation. The costs incurred for professional advice were evaluated to see if they were necessary and reasonable.

The court found that the compensation awarded was inadequate due to the undervaluation of the land, the omission of noise disturbance, and the failure to include costs for professional advice. The court determined that the public work was correctly identified and that the market value of the land should have included the impact of the railway noise and the professional advice costs. The court concluded that the compensation awarded did not reflect the true market value of the land and was insufficient to cover the full impact of the public work on Avila's property.

The court ordered Main Roads Western Australia to pay additional compensation to Avila, which included the market value of the land considering the railway noise, and the costs for professional advice. The precise amount of additional compensation was to be determined by a further assessment by the court.

Orders