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…
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- Case
- [2023] WASAT 79
- Decision Date
CaseChat Overview and Summary
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.
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