Azizi v Council of the City of Ryde; Alnox Pty Limited v Council of the City of Ryde (No 2) - [2022] NSWLEC 3

Land and Environment Court

New South Wales

Medium Neutral Citation: Azizi v Council of the City of Ryde; Alnox Pty Limited v Council of the City of Ryde (No 2) [2022] NSWLEC 3
Hearing dates: 22, 23, 24, 28 and 29 June 2021
Date of orders: To be advised
Decision date: 21 January 2022
Jurisdiction: Class 3
Before: Moore J
Decision:
See directions for bringing in orders at [515] to [517]

Catchwords:
COMPENSATION - compulsory acquisition of land for public recreation - land formerly zoned Low Density Residential - dispute as to whether there was up-zoning potential for increased density residential development at time of acquisition - disagreement between expert planners - dispute as to extent of potential future higher density development - disagreement between expert planners - consideration of relevant town planning issues - potential up-zoning existed at time of acquisition - expert valuers in agreement on the valuation to be applied on various alternative potential development scenarios - agreed valuation to be applied to determined development potential
COMPENSATION - claim for stamp duty equivalent payment by resident owning one of three allotments compulsorily acquired - stamp duty equivalent payment claim for potential purchase of replacement residence – dispute as to validity of claim - dispute as to whether stamp duty equivalent, if to be awarded, should be calculated by reference to agreed proportion of total market value of acquired land or be discounted from it - no statutory basis for the claim – claim rejected - stamp duty equivalent payment to be calculated on full market value of acquired residential property if claim had been valid
COMPENSATION - claim for compensation for disadvantage resulting from relocation - statutory maximum set for such compensation - statutory factors required to be considered in assessing such compensation - claim for maximum statutory amount - appropriate to award maximum statutory amount

Legislation Cited:
Land Acquisition (Just Terms Compensation) Act 1991, ss 23, 48, 56, 59 – 61, 66 and 68
Land Acquisition (Just Terms Compensation) Amendment Act 2016
Ryde Local Environmental Plan 2014
State Environmental Planning Policy (Infrastructure) 2007, cl 101

Cases Cited:
Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde [2021] NSWLEC 40
Banno v Commonwealth of Australia (1993) 45 FCR 32
Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404
Council of the City of Ryde v Azizi [2019] NSWSC 1605
Council of the City of Ryde v Azizi [2021] NSWCA 165
Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328
El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33
Roads and Maritime Services v United Petroleum Pty Ltd (2018) 236 LGERA 389; [2019] NSWCA 41
Roberts v Commissioner for Main Roads (1987) 63 LGRA 428
Robertson v Commissioner for Main Roads (1987) 63 LGRA 420
Stephen Anthony Horton and Kay Elizabeth Horton v Wyong Shire Council (No.2) [2005] NSWLEC 45
Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 251
Sydney Water Corporation v Caruso and Ors (2009) 170 LGERA 298; [2009] NSWCA 391
Terrence John Fitzgerald & Wendy Patricia Fitzgerald v Blacktown City Council [1994] NSWLEC 40
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2007] HCA 5

Texts Cited:
Follett Publishing Company, Latin-English Dictionary, 1967
Macquarie Dictionary Publishers, Macquarie English Dictionary (2020, online)
Oxford English Dictionary, Oxford English Dictionary (2021, 3rd ed, online)

Category: Principal judgment
Parties:
168439 of 2021
Raymond Boutros Azizi (Applicant)
Council of the City of Ryde (Respondent)
168457 of 2021
Alnox Pty Limited (Applicant)
Council of the City of Ryde (Respondent)
Representation:
Counsel:
Mr I Hemmings SC/Mr Tim Poisel, barrister (Applicant in each matter)
Mr M Hall SC/Ms J McKelvey, barrister (Respondent in each matter)
Solicitors:
Madison Marcus (Applicant in each matter)
Bartier Perry (Respondent in each matter)

File Number(s): 168439 and 168457 of 2021
Publication restriction: No

JUDGMENT

Introduction

These proceedings comprise two appeals (heard together) against determinations by the Valuer-General of the compensation to be paid pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) for the compulsory acquisition by Ryde City Council (the Council) of land at North Ryde (land identified at [4] to [6] below).
Mr Raymond Boutros Azizi (Mr Azizi) is the applicant in Matter No 168439 of 2020. Alnox Pty Limited (Alnox) is the applicant in Matter No 168457 of 2020. Alnox is a company associated with the sons of Mr Azizi. Mr Azizi and Alnox are later referred to collectively as the Azizi interests unless separate reference is required.
The parties to these proceedings have adopted a Statement of Agreed Facts (the SoAF) containing facts agreed for the purpose of s 191 of the Evidence Act 1995 (NSW)(the Evidence Act). It was tendered for the Azizi interests becoming Exhibit D. That which follows as providing a background chronology for these proceedings is adapted from the SoAF (but is also an expansion of it).

A background chronology

On or about 9 March 2011, Mr Azizi purchased 86 Blenheim Road, North Ryde (Lot C in Deposited Plan 410408). Mr Azizi continues to reside at this property.
On or about June 2011, Alnox purchased 12A Epping Road, North Ryde (Lot D in Deposited Plan 410408).
On or about 23 December 2011, Alnox also purchased 14 Epping Road, North Ryde (Lot E in Deposited Plan 410408).
The three properties purchased by the Azizi interests are contiguous. They are later referred to collectively as the site unless separate reference is required.
On 12 September 2014, the Ryde Local Environmental Plan 2014 (the 2014 LEP) was made. As part of the process for the development of the 2014 LEP, the Council resolved, in March 2013, that planning proposals would be accepted for consideration by the Council for five nominated locations within the Council's area. One of the nominated locations was the site owned by the Azizi interests. At the same time, the site was made subject to the following planning controls pursuant to the 2014 LEP:

The site was zoned R2 Low Density Residential, save for a small portion of the north-eastern corner of 86 Blenheim Road which was zoned SP2 Infrastructure;

The applicable maximum height of building development standard was 9.5 metres;

The applicable maximum floor space ratio development standard was 0.5:1; and

Minimum lot sizes for dual occupancy (attached) and multi-dwelling housing were 580sqm and 900sqm respectively.

On 18 June 2015, the Azizi interests lodged with the Council a planning proposal which sought that the controls applicable to the site pursuant to the 2014 LEP be amended as follows:

The site be rezoned to R4 High Density Residential;

The maximum height of building development standard be increased to 45 metres; and

The maximum floor space ratio development standard be increased to 4.3:1.

On 21 September 2015, the Council's Acting Group Manager, Environment and Planning, wrote to Alnox following a meeting attended by the Council's General Manager; its Team Leader, Strategic Planning; and the author of the letter concerning the Azizi interests’ planning proposal. The letter outlined a number of options put to Alnox. It will be necessary, later, to return to the terms of this letter.
On 22 March 2016, the Council resolved to not support the planning proposal prepared for the Azizi interests.
On 26 April 2016, the Council resolved to prepare a planning proposal to rezone the site RE1 Public Recreation under the 2014 LEP.
On 28 April 2016, the Azizi interests lodged a Rezoning Review with the (then) Department of Planning and Environment (the Department).
On 26 May 2016, the Council made a detailed submission in opposition to the Azizi interests’ planning proposal. This submission, signed by the Council's Manager, Strategic City, will also require to be considered later.
On 19 July 2016, the Department recommended that the Azizi interests’ planning proposal be treated as eligible for a Rezoning Review and recommended that it should be forwarded to the East Sydney Joint Regional Planning Panel (the JRPP) for independent review.
On 31 August 2016, the JRPP unanimously determined that the Azizi interests’ planning proposal be rejected. This conclusion by the JRPP was made as the outcome of a Pre-Gateway Review. The report of the JRPP was brief and it will later be appropriate to return to that which is set out in the report under the heading “JRPP advice and justification for recommendation”.
On 10 October 2016, the Department informed the Azizi interests that their planning proposal was unsuccessful and would not be submitted for a Gateway Determination on the recommendation of the JRPP. The Department also informed the Council that its planning proposal would proceed.
On 25 July 2017, the Council resolved to acquire the site.
On 24 November 2017, Amendment No 15 to the 2014 LEP was made. This amendment had the effect of rezoning the site RE1 Public Recreation (save for the small portion which remained zoned SP2 Infrastructure) and removed development standards for heights of buildings and any floor space ratio. These were the planning controls applying to the site as at the date of acquisition on 24 August 2018.
On 9 February 2018, the Azizi interests made submissions to the Council claiming that the public purpose now attributed to the site meant they were suffering hardship and seeking to compel the Council to acquire the site pursuant to the ‘hardship’ provisions of s 23 of the Land Acquisition Act.
On 27 March 2018, the Council resolved to accept the hardship applications.
On 14 May 2018, the (then) Minister for Planning wrote to the Council, recommending it not advance any new planning proposals for residential development of land within its local government area until such time as strategic studies had been undertaken.
On 26 June 2018, the Council resolved to write to the Minister and confirm it would follow the recommendation not to advance any new planning proposals.
On 1 August 2018, the Minister wrote to the Council stating his support for its resolution and committing that the Department would not consider any rezoning reviews in the Council’s local government area until 1 July 2020.
On 24 August 2018, the Council compulsorily acquired the site.
The Council acquired the site from the Azizi interests by publication of acquisition notices in the NSW Government Gazette.
On 21 December 2018, the Valuer-General of NSW issued determinations for compensation for the acquisition of the site, payable by the Council to the Azizi interests.
On 5 February 2019, the Council commenced judicial review proceedings in the Supreme Court, seeking orders that the determinations for compensation issued by the Valuer-General for the site were void and of no effect.
On 20 November 2019, the Supreme Court made orders setting the determinations for compensation issued by the Valuer-General for the site aside and ordering the Valuer-General to remake determinations of compensation (Council of the City of Ryde v Azizi [2019] NSWSC 1605).
On 25 February 2020, the Valuer-General issued new determinations for compensation for the acquisitions of the site, payable by the Council to the Azizi interests.
On 10 March 2020, the Council issued compensation notices to the Azizi interests in accordance with the new determinations.
On 5 June 2020, the Azizi interests commenced these proceedings in objection to the amounts of compensation offered by the Council in accordance with the new determinations.
Although playing no part in the merit issues I address in this decision, it is appropriate to observe that the Council did not pay to the Azizi interests the entirety of the 90% of the second Valuer-General's determinations as mandated by s 68 of the Land Acquisition Act. In lieu of doing so, the Council paid $5 million into the trust account of its solicitors pending the outcome of the valuation determinations given in this decision. This was because the Council considered that the second determinations made by the Valuer-General (ones based on a valuation assuming a potential R3 Medium Density Residential zoning) were too high. If the statutorily mandated advance payments were made, the Council considered that the Azizi interests would be unable to fulfil any repayment obligation arising pursuant to s 48 of the Land Acquisition Act of any overpaid amount.
The Azizi interests commenced interlocutory proceedings seeking orders that the Council make the full 90% advance payments. I heard and determined those interlocutory applications and ordered the Council to make the additional payments to the Azizi interests to bring the advance payments up to the full 90% of the Valuer-General's second determinations (Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde [2021] NSWLEC 40). The Council appealed that decision with that appeal being rejected (Council of the City of Ryde v Azizi [2021] NSWCA 165).

Representation

The Azizi interests were represented by Mr I Hemmings SC and Mr T Poisel, barrister whilst the Council was represented by Mr M Hall SC and Ms J McKelvey, barrister. Written opening and closing submissions were provided for the Azizi interests and for the Council. I note that these submissions were comprehensive and permitted the hearing to be conducted in a time effective fashion.

The hearing

Although originally scheduled to be heard over seven days, the entirety of the allocated time was not necessary to be used. First, commencement of the hearing was pushed back by a day because of the late provision of the joint expert valuers’ report. This delay did not impact on the conduct of the hearing as the valuers had reached agreement on the valuation outcomes for various potential planning scenarios. The only difference between them was an 18 square metre difference in the site area used for their calculations (see later discussion on this topic).
The hearing commenced on Tuesday 22 June with opening addresses by counsel for the parties. The site inspection took place on the morning of the following day with the oral evidence of the town planners commencing after the completion of that inspection. The oral evidence of the town planners then continued for the whole of the third day.
At the conclusion of the town planners’ oral evidence, the proceedings were adjourned until the following Monday in order to permit the preparation of written closing submissions. Closing addresses for the parties commenced on the following Monday and were concluded before lunch on Tuesday 29 June when I reserved my decision. I am indebted to counsel for the efficient way the proceedings were conducted given that, with the exception of the site inspection, the proceedings were conducted remotely (as a consequence of Covid-19 pandemic restrictions) using Microsoft Teams software with no physical attendance on behalf of the parties in the courtroom.

Relevant statutory provisions

Introduction

Provisions of both the Land Acquisition Act and the Environmental Planning and Assessment Act 1979 (the EPA Act) underlie matters that require consideration in these proceedings. However, it is not necessary to set out all of the provisions of this legislation that are engaged as the detail of many of them have not given rise to controversy requiring to be addressed in these proceedings (although they may have been matters of controversy in earlier related proceedings).
In addition, although processes associated with potential changes to the 2014 LEP also require to be described, none of the detailed provisions of the 2014 LEP require consideration and, therefore, no provisions of this environmental planning instrument require to be set out in detail.

Relevant provisions of the Land Acquisition Act

Only five provisions of the Land Acquisition Act require to be set out for the purposes of this judgement. The first of them is s 56, the provision that sets out how the market value of compulsorily acquired land is to be determined for the purposes of paying compensation to the dispossessed owners for the compulsory acquisition. This provision is in the following terms:

56 Market value
(1) In this Act—
market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)—

(a)   any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and
(b)   any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and
(c)   any increase in the value of the land caused by its use in a manner or for a purpose contrary to law.

(2) …
(3) …

The second provision of the Land Acquisition Act engaged is that which underpins the claim by Mr Azizi for a stamp duty equivalent compensation payment arising from his necessary relocation as a consequence of the compulsory acquisition of his home at 88 Blenheim Road, being part of the site acquired by the Council. This claim is made pursuant to s 59(1)(d), a provision in the following terms:

59 Loss attributable to disturbance
(1)   In this Act—
loss attributable to disturbance of land means any of the following—
(a)   …,
(b)   …,
(c)   …,
(d)   stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired),
(e)   …,
(f)   …

(2) …

The third provision of the Land Acquisition Act engaged for consideration in this judgement is s 48. I have earlier noted, at [34], the proceedings (both before me and in the Court of Appeal) concerning the statutory requirement for a 90% advance payment to the interests of the compensation sums determined as appropriate by the Valuer General.
As a consequence, the potential arises that there may be an obligation pursuant to s 48(4) of the Land Acquisition Act falling on Mr Azizi and/or Alnox to repay some portion of the 90% advance payment (and statutory interest) already made to either or both of them. How this possibility is to be addressed is a final element of the substantive matters arising in these proceedings. However, for present purposes, it is appropriate to reproduce the relevant elements of s 48 of the Land Acquisition Act. This is in the following terms:

48    Advance payments of compensation etc
(1)   An authority of the State may, at any time after land is acquired, make an advance payment of compensation to any person who the authority considers is entitled to the compensation.
(2)   ….
(3)   ….
(4)   A person who receives an advance payment of compensation which exceeds the amount of compensation to which the person is entitled must repay to the authority of the State the amount of the excess.
(5)   ….
(6)   Any amount due to an authority of the State under this section may be recovered as a debt in any court of competent jurisdiction.

The fourth provision of the Land Acquisition Act engaged for consideration in this judgement is s 60, a provision entitled Disadvantage resulting from the relocation. This head of compensation, formerly known as solatium, is also the basis of a separate compensation claim on behalf of Mr Azizi arising from him needing to relocate his residence as a consequence of its acquisition by the Council as part of the overall compulsory acquisition of the site. This provision is in the following terms:

60 Disadvantage resulting from relocation
(1) In this Act—
disadvantage resulting from relocation means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person’s principal place of residence as a result of the acquisition.

(2)   The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000.
(3)   In assessing the amount of compensation in respect of the disadvantage resulting from relocation, all relevant circumstances are to be taken into account, including—
(a)   the interest in the land of the person entitled to compensation, and
(b)   the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and
(c)   the inconvenience likely to be suffered by the person because of his or her removal from the land, and
(d)   the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land.

(4)   …
(5)   …
(6)   …
(7)   …

The final provision of the Land Acquisition Act engaged for consideration in this judgement is s 61(b), this being in the following terms:

61    Special provision relating to market value assessed on potential of land
If the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of—
(a)   …, and
(b)   any financial loss that would necessarily have been incurred in realising that potential.

The evidence

Two areas of expertise required to be addressed for the purposes of these proceedings. These were the disciplines of town planning and land valuation. The expert town planners who gave evidence were Mr Juradowitch (for the Azizi interests), and Mr Mead (for the Council). The valuers were Mr Dempsey (for the Azizi interests) and Mr Preston (for the Council).
The documentary evidence was extensive. Virtually all of it was provided electronically. Initially, the vast bulk of the electronic material was provided on a USB stick. Further electronic material was added to the primary material after it had been emailed to my Associate. The exhibits in the proceedings comprised the following:

Exhibit A was the Court Book. This comprised the pleadings and other formal documents;

Exhibit B was the Evidence Book. This comprised material behind 13 tabs totalling 1573 folios. The town planning report of Mr Juradowitch for the Azizi interests was at tab 4 in this exhibit with supplementary calculation correcting reports from him being at tabs 7 and 8 in this exhibit. The town planning report of Mr Mead for the Council was at tab 5 of this exhibit. The joint report of Mr Juradowitch and Mr Mead was at tab 6 of this exhibit. The joint expert report of the valuers was at tab 11 of this exhibit. Mr Dempsey's individual expert valuation report was at tab 9 with Mr Preston's individual expert valuation report being at tab 10.

Exhibit C was the combined tender bundle. This exhibit contained documents behind 111 tabs comprising 5078 folios in total. Only some of these documents were the subject of evidence of the planners and/or submissions for the parties. Relevant documents will require later consideration;

Exhibit D was the Statement of Agreed Facts;

Exhibit E comprised a list of the dramatis personae involved in the proceedings;

Exhibit F comprised agreed notes of the site inspection. These notes were settled by the legal representatives of the parties; and

Exhibit G comprised aerial photographs showing the location of the three sites on the southern side of Epping Road where medium density residential development had been approved (two of these approvals being pursuant to the (now repealed) Pt 3A of the EPA Act and one pursuant to an approval by the Joint Regional Planning Panel through a gateway process). It is to be noted that all three of these developments were opposed by the Council.

It is to be noted that the air photographs in Exhibit G noted immediately above were part of materials sought to be tendered on behalf of the Azizi interests during closing oral submissions in reply. Tender of the material was objected to with this objection being upheld in part. As a consequence, only the air photos described above were admitted into evidence.
Mr Patrick Azizi, Construction Project Manager, deposed two affidavits. These were dated 25 September 2020 and 16 June 2021. Mr Patrick Azizi is the sole director of Alnox. He was not required for cross-examination.
Of the experts, Mr Juradowitch and Mr Mead gave concurrent oral evidence.
Mr Preston and Mr Dempsey were not required to give oral evidence given that they had reached agreement on a range of alternative potential valuation outcomes, outcomes only dependent on my determination of the underlying town planning issues and, as later discussed, resolution of the calculation of the land area of the site.

The issues

As noted above, the valuers had reached agreement on the rates per square metre to be accorded to the site with the rate to be applied varying to reflect the outcome arising from resolution of the town planning issues in dispute. The town planning issues, therefore requiring to be determined were:

Is it appropriate, absent the public purpose, to assume that high density residential development would have been rendered permissible on the site?

If not, absent the public purpose, is it appropriate to assume that medium density residential development would have been rendered permissible on the site?

If development more intense than low density residential development is appropriate to be assumed, what would be the floor space ratio and height controls that could be expected to be applied to such a theoretical development for the site in order to calculate the gross floor area to which an agreed valuation factor should be applied?

Assuming higher density residential development is to be the basis for calculating compensation to the Azizi interests for acquisition of the site, what is the resulting total compensation to the Azizi interests for the land value arising from the compulsory acquisition of the site?

With respect to this final point, as later discussed, the expert planners’ joint report sets out a range of agreed yield outcomes – the one to be adopted depending on the answer to the earlier questions.
There are also two subsidiary disputes arising from the acquisition of Mr Azizi’s home as part of the acquisition of the complete site by the Council. These are:

Is Mr Azizi entitled to receive a payment pursuant to s 59(1)(d) of the Land Acquisition Act for the stamp duty liable to be incurred in the acquisition of a replacement residence and, if so, how is this to be calculated?

How much is it appropriate to require the Council to pay Mr Azizi pursuant to s 60 of the Land Acquisition Act? Payment entitlement pursuant to this provision (formerly known as solatium) arises from the terms of the provision which were earlier set out at [45].

Although the Azizi interests have agreed on the apportionment between themselves of the compensation arising from the compulsory acquisition of the site, it will be necessary for the parties to agree on the precise terms of the orders to be made. These will need to reflect the outcome of the proceedings to take account of advance payments already made (including such statutory interest as has already been paid), with incorporation, in the orders resolving Mr Azizi’s proceedings, of the determined stamp duty outcome (if any) pursuant to s 59(1)(d) and the amount payable as solatium pursuant to s 60.

General attributes of the site

The site is generally rectangular in shape with its northern and southern boundaries being a little longer than those of its east/west dimensions. Taken together, the overall elements of the site have a frontage to Epping Road to the north.
Of the three allotments which comprise the site, 88 Blenheim Road (owned by Mr Azizi individually) also has a frontage to Blenheim Road with access to the dwelling on this allotment being from the turning head of that roadway. Access to each of the other allotments is via a driveway directly from Epping Road, a major arterial thoroughfare.
The southern and western boundaries of the site abut the Council's Blenheim Park with the southern boundary running along the northern side of the parking area within Blenheim Park serving users of that recreation facility.
It is to be observed that I have adopted a conventional orientation reference being that the site’s frontage to Epping Road is toward its north. It is appropriate, in the matters requiring consideration in this judgement, that this conventional orientation be adopted for reference purposes.
The site generally slopes from Epping Road toward the car park (flattening somewhat toward that car park). The site also has a cross-slope, this being gently upward to the west along its Epping Road frontage.
Two signalised pedestrian crossings of Epping Road are in general proximity to the site. On the northern side of Epping Road is located the North Ryde Metro Station precinct, a precinct which includes significant high-rise residential development (as also later discussed).

The site inspection

On the morning of the second day of the hearing, I undertook an inspection of the site and of other locations that were considered relevant by the parties. We met in the Blenheim Park car park, a car park accessed from the turning head of Blenheim Road. Present were the legal representatives of the parties and the town planning experts advising them. Appropriate social distancing was observed and masks were worn.
The first phase of the site inspection comprised:

observing the car park and the off-leash, fenced dog exercise portion of Blenheim Park immediately adjacent to the car park;

walking up Blenheim Road to its intersection with Morshead Street then walking a short distance along Morshead Street and looking back to the site across Blenheim Park - with the viewing being over or between the dwellings in this street;

returning to the vicinity of the car park by walking across Blenheim Park, observing the distribution of the various trees between the Morshead Street residences and the site - including the various heights of these trees and the extent of their canopy cover acting as filters for viewing of the site (Blenheim Park sloping downward from the rear fences of the Morshead Street dwellings to the dog park and car park area);

observing the extent of the use of the car parking in the turning head of Blenheim Road and up Blenheim Road toward its intersection with its own diverted connection to Epping Road. It is to be noted that this car parking is not time-limited, a matter subsequently addressed in the oral evidence of the town planners;

walking from the car park along the eastern edge of the site to the footpath adjacent to the southern side of Epping Road. It is to be noted that a short flight of steps leads from Blenheim Road to the side of Epping Road, this being reflective of the fact that the site slopes from the car park up to Epping Road;

walking along the Epping Road frontage of the site observing, to the extent possible through the vegetation in the front setbacks of each of the three allotments, the setbacks of the present dwellings. It is to be noted that, for the two dwellings on the allotments which were compulsorily acquired from Alnox, each of them had vehicle driveway access direct from Epping Road (driveway access to Mr Azizi’s dwelling was from Blenheim Road); and

after reaching the western end of the site, we turned into Blenheim Park and walked back to our vehicles.

We then proceeded in convoy along Epping Road to the west to visit two apartment developments on the southern side of Epping Road. The first of these apartment developments (the Allengrove site) was a part five/part two storey development located between Allengrove Road and Epping Road.
The second apartment development visited (the Whiteside site) was also a part five/part two storey development located between the rear boundaries of residences on its southern side (these addressing Parklands Road) and Epping Road, to its north.
Each of these sites will be discussed later, both as to their physical attributes and as to the evidence given by the town planning experts concerning them. It is sufficient to note, for present purposes, that these developments were approved pursuant to (the now repealed) Part 3A of the EPA Act with the approvals being given despite opposition from the Council to each of them.

The area of the site

As the value of the land is to be determined on the basis of its development potential (if I determined that the site should not be regarded as having an ongoing R2 Low Density Residential zoning), it is necessary to know the area of the site for such a calculation. Unusually in these proceedings, the information relied upon by the expert valuers did not include an agreement as to the area of the site. Mr Preston, the Council's expert valuer, relied on calculations derived from documents sourced from the Registrar General showing the official areas for each of the allotments comprising the site. These added to a total of 2004.4 square metres. Mr Dempsey, the expert valuer for the Azizi interests relied on a survey document. This survey document put the area of the site at 2022.4 square metres.
The source documents disclosing the 18 square metre difference were contained in appendices to the joint expert valuers’ report (Exhibit B, tab 11).
On the final morning of the hearing, I indicated to Mr Hemmings and Mr Hall that I would need a settled figure for the area of the site to enable me to make a final determination after considering all the factors necessarily engaged up to that point. I invited the parties to agree on a process by which the area of the site, for the purposes of these proceedings, could be settled between the parties by reaching an agreed outcome.
On 30 June, the day after I had reserved my decision, my Associate received an email from the Council's legal representative advising that the parties had agreed to “split the difference” for the purposes of my determination and had, therefore, agreed to have me resolve the matter on the basis that the site had an area of 2013.4 square metres. I have proceeded to determine the outcome of these proceedings on that agreed basis.

The “statutory disregard” – emergence of the public purpose

Introduction

It is convenient, before turning to address matters of substance in the evidence and submissions concerning what is to be concluded to be the development potential of the site, to address the dispute between the parties as to the timing of emergence and the impact of the “statutory disregard” contained in s 56(1)(a) of the Land Acquisition Act.
For the purposes of the Land Acquisition Act, the emergence of knowledge of the public purpose plays a potentially significant part as a consequence of this engaging the operation of what is referred to as the “statutory disregard”. The “statutory disregard” is provided for in s 56(1)(a) of the Act, a provision earlier set out at [41].
Different positions were advanced for the Azizi interests and for the Council as to when I should conclude was the appropriate time to regard the “statutory disregard” as being triggered. The competing positions are discussed below followed by my conclusion on this point.
The contest that arises, in effect, is whether or not the evincing of the public purpose occurred at some date prior to the resolution of the Council's Planning and Environment Committee (the Council Committee) in March 2016 to recommend to the Council that the site be acquired for the purpose of adding it to Blenheim Park or whether, at some earlier date (potentially as early as 2012), an intention (or implied intention) on behalf of the Council can be discerned that would permit the drawing of a conclusion that the statutory disregard did not solely arise in the context of the Azizi interests’ planning proposal that was considered by the Council Committee (and the Council) and recommended for rejection but also in conjunction with the resolution to seek to acquire the site for incorporation into Blenheim Park.
In this context, it is convenient to set out, as encapsulating the matters required to be considered in this area of disagreement, a short extract from the closing oral submissions of Mr Hall. Before doing so, it is appropriate to note that this extract is to be viewed in the context of Mr Hall's references to the decision of the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2007] HCA 5, an appeal against the decision of the Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 251. As Mr Hall observed (Transcript 28 June 2021, page 232 lines 47 and 48), the High Court did not disagree with the reasoning of Basten JA in the Court of Appeal. The relevant summary to be drawn from Mr Hall's oral closing submissions is in the following terms (Transcript 28 June 2021, page 233 lines 2 to 41):

The first is that his Honour Basten J, by reference to prior authority, draws a clear distinction between decisions that are taken by public authority - the acquiring authority, on planning grounds I'll call them legitimate planning grounds, your Honour doesn't have that qualifier versus those are taken for the purpose of advancing the public purpose.
The second is that he says that as a matter of fact, you must take account of the fact that even without an intention to acquire the land, you would still have had a consent authority sitting there opposing the proposed value increasing change to zoning for which the owner is contending, because they have demonstrated that that is the view they take on planning facings of the merits of the relevant application.
Both of those illustrate, we respectfully submit, that you do not go through this exercise..(not transcribable)..by the applicants of somehow ignoring decisions on reasoning of the consent authority just because they happen to also be the acquiring authority, and also to hold in their minds the public purpose. The only thing that you're obliged to reject, it'll change in the value of the land caused by the carrying out of the public purpose. Here, there is this linguistic conundrum is facing us in respect of the section, which is that what the council did was refuse to support an upzoning, thereby denying the owners of the land their potential increased value, rather than taking any step or doing anything which would have caused a decrease in value.
Nonetheless, I respectfully accept that it must be the case that a decision of whether or not to prevent an upsell, which is exactly what was before the Court in both Murphy's case and Walker's case, can still be caused by the section in some way, so that if you were persuaded that but for the existence of the public purpose, the council in this case would either themselves have permitted a rezoning of the land or would have lent their weight to the planning proposal in 2015, then I accept that that - the..(not transcribable)..56(1)(a), but you cannot on the evidence, I respectfully submit, be persuaded of either of those propositions.
That is because there is nothing in the material to indicate that council was holding out on a rezoning just because they thought the proper use of this land was for a park extension. All of the material put forward by the council at each of the phases of their and the department, the JRPP's refusal to upgrade the land, put on the basis of the appropriate planning outcomes for the south side of Epping Road.

The Azizi interests’ position on the emergence of the public purpose

In essence, the written and oral submissions on behalf of the Azizi interests is that the public purpose can be discerned as existing from as early as 2012. The consequence of this, it was submitted, was as set out in paragraphs 94 and 95 of the written closing submissions on behalf of the Azizi interests:

94. The Court would be satisfied that the influence of the proposal to carry out the public purpose had its genesis in at least 2012. As a result, that influence is in the background of every decision made by the Council in relation to a different outcome for this land since 2012.
95. In the Applicants’ submission, that poses great difficulty for the Council seeking to place any reliance upon those subsequent decisions. That is because it is simply not possible to know whether Council officers, councillors or the Council itself might have come to different conclusions in any decision if the officers, the councillors or the Council were not seeking, at the same time, to have the land incorporated into Blenheim Park.

The factual basis upon which an earlier date for discerning the existence of the public purpose was set out at paragraphs 92 and 93 of the closing written submissions on behalf of the Azizi interests. These paragraphs were in the following terms:

92. However, according to the Council’s own materials, it is apparent that the proposal to incorporate the land into public open space informed the Council’s approach to the land from as early as 2012. This can be seen from the submission from Ryde Council to the JRPP. At Folio 628, the Council is critical of the Department’s report for failing to “comprehensively assess the strategic planning process undertaken regarding the need/provision of open space in this area of Ryde.” Similarly, the last bullet point advances the advantages of Council’s Planning Proposal (which it suggests have been ignored). That Planning Proposal was the parallel Planning Proposal to rezone the land for the purposes of open space at the same time as the 45m Planning Proposal was being considered.
93. In support of those concerns, and under a heading “Open Space” at Folio 629 express reference is made to each of the Integrated Open Space Plan 2012 and the 2014 Draft Open Space Future Provision Plan 2034. It is apparent from the submission that each of those two plans specifically considered the incorporation of the Applicants’ land into Blenheim Park.

In his oral closing submissions, Mr Hemmings referenced (Transcript 28 June 2021, page 211 lines 5 to 30) the terms of the passage of Council’ submission to the JRPP citing the Integrated Open Space Plan 2012 upon which he relied. The relevant paragraphs of the submission to the JRPP read:

Further, the objectives of the [2012 Open Space] Plan discuss the need for a strategic approach to extending the existing quantum of open space, based on consolidation, stand-alone acquisitions and rationalisation. The Plan identifies Blenheim Park as a potential option for land consolidation:
"Consolidation: identifying properties or spaces that are not currently zoned as public open space either within reserves or adjoining reserves, the consolidation of which would extend the capacity of that reserve; an example would include identifying residences adjoining or interjecting into park spaces for acquisition when they come to market, permitting extension of an existing reserve or joining of two separated parks (e.g. Blenheim Park)"

In 2014 Council prepared a Draft Open Space Future Provision Plan 2034 which had recommended that the site be acquired as open space, to increase the size of Blenheim Park. The reasons for this were to increase park size in an area of high population growth and to provide improvements to habitat and recreation connections to Myall Reserve by reconfiguring road access to the Park. (N.B. This Plan is yet to be endorsed by Council or publicly exhibited).

It is to be noted that the 2014 Draft Open Space Future Provision Plan 2034 does not appear to be in evidence.
The conclusion to be drawn from all the above, Mr Hemmings submitted (Transcript 28 June 2021, page 211 line 32 to page 212 line 6), is that:

… this plan [the 2014 Draft Open Space Future Provision Plan 2034] is yet to be endorsed by council or publicly exhibited, but nevertheless it plainly, because council brings it to the attention of the JRPP, it plainly was informing the council's approach to its decision making processes, otherwise it would not have suggested that it was relevant to the JRPP's consideration. That is why we say your Honour goes back to 2012, not merely starting at 2016.
At 94 of our submissions, we make that proposition, and so as we say, there is an influence in the background of every decision made by the council in relation to a different outcome for this land since 2012, and we note it poses a great difficulty for council to place any reliance upon those decisions, and that's because in our submission, it's simply not possible to know.
We distinguish between the three different decision making processes, or council officers, or council laws, or the council itself, whether they - and we spell this out later as well - but they would have come to different conclusions, but for the proposal to carry out the public purpose, and - or may have expressed different reasons for opposition to steps that we were attempting to take. But for the proposal to carry out the public purpose, and the - to use the vernacular, the decision and the decision process is infected by the proposal to carry out the public purpose.
And it's just not possible in our submission to quarantine part of the decision making process from another, and so the Court simply cannot place reliance upon these historical decisions.

The Council's position

Mr Hall submitted that the proposition that the 2012 Integrated Open Space Plan should be interpreted as providing evidence of specific emergence of the public purpose so as to trigger the “statutory disregard” should be rejected.
The submissions were to the effect that:

although the Integrated Open Space Plan had been adopted by the Council in 2012, it merely proposed that extension of Blenheim Park was a matter which might be part of a future process of identifying properties or spaces where consideration for acquisition could be appropriate when such properties were offered for sale;

no inference of the desirability of compulsory acquisition could be said to arise from this 2012 report;

the Draft Open Space Future Provision Plan 2034 prepared in 2014, although prepared within the Council, had not been considered by or adopted by the elected Council, nor had it been put on display for public consultation;

although the Council's submission to the JRPP may have noted that the Draft Open Space Future Provision Plan 2034 may have recommended acquisition of the site for incorporation in Blenheim Park, this recommendation had no status relevant for present purposes because it had not been considered and adopted by the Council in circumstances where the totality of the plan containing any such recommendation had never been put to the Council for consideration or adoption by the elected Council.

In this latter regard, Mr Hall’s submissions in support of rejecting the Azizi interests’ position on this point are summarised below:

the 2014 document had no formal status within the Council;

the 2014 document had not been put on public display for public consultation;

there was no evidence the elected Council of the day was aware of, let alone had considered and adopted, the 2014 document as a policy; and

there was no evidence of any other activity with respect to Blenheim Park (let alone the site) arising from the 2012 Open Space Study during the period after 2012.

However, it was accepted for the Council that the appropriate starting point for triggering the “statutory disregard” arose from two meetings held in March 2016. The first of these, a meeting on 8 March 2016 of the Council Committee considered the position to be adopted by the Council concerning the Azizi interests’ planning proposal – opposing it proceeding to a Gateway Determination. It will later be necessary to discuss this planning proposal and its fate in more detail. It is, however, sufficient for present purposes to note that the Committee adopted a fifteen-point resolution for recommendation to a full Council meeting for adoption as the Council's reasons for opposing the Azizi interests planning proposal (Exhibit C, tab 33, folio 500).
However, in addition to the above noted resolution to be proposed to the Council, the Committee also adopted the following further resolution to be recommended to the Council meeting:

b) That the General Manager be delegated to investigate and action the acquisition of the land for open space to be incorporated into Blenheim Park.

At a meeting of the Council held on 22 March 2016, the Council adopted the recommendations from the Committee without amendment (Exhibit C, tab 34, folio 511).
Mr Hall submitted that the Committee’s second recommendation and the subsequent adoption of it by the Council constituted clear evidence of the first emergence of the public purpose in the fashion necessary to trigger the “statutory disregard”.

Consideration

I am satisfied that the appropriate date for emergence of the public purpose should be that proposed by the Council. My reasons for reaching this conclusion can be stated simply.
To the extent that the Integrated Open Space Plan 2012 (Exhibit C, tab 111, commencing at folio 4846) referenced Blenheim Park as an instance where residences adjoining or interjecting into a park space might be appropriate to be investigated for future acquisition, this document made it expressly clear (folio 5020) that this was envisaged as a potential path for acquisition only when such properties came to market.
There is no suggestion that the authors of that 2012 plan, in envisaging Blenheim Park as an example of a recreation space potentially appropriate for future expansion, was doing that other than in the context of identifying a possibility only as and when such an expansion opportunity arose by an offering of any relevant property for sale (rather than by compulsory acquisition).
Even then, the terms of the discussion on folio 5020 did not specifically reference the site – the 2012 Plan merely discussed a conceptual framework for identification of properties where acquisition might be contemplated if they were offered for sale.
Even in the context of this bland and broad discussion, there is no suggestion that there was any subsequent policy consideration of this nor any decision by the elected Council (prior to the March 2016 resolution) that could remotely be construed as demonstrating that the collegiate body had ever turned its collective mind to opportunities for expansion of Blenheim Park, let alone expansion specifically by any acquisition (let alone the compulsory acquisition of the site).
Indeed, a contraindication can be gleaned from paragraph (h) of the resolution of the Council on 12 March 2013 (adopting the recommendations for finalisation of the 2014 LEP) that the elected Council had not adopted any determined position, at that time, that contemplated the addition of the site to Blenheim Park at any future time. The relevant paragraph of the resolution is at Exhibit C, tab 28, folio 306.
The relevance of this resolution in the broader context of the likely potential future use of the site are separately considered later.
However, for the purposes of the emergence of the statutory disregard, this resolution coming in time after the adoption of the 2012 Open Space Report is an indication against any conclusion that the elected Council had turned its collective mind to any suggestion that the site be incorporated into Blenheim Park.
I am also unable to accept that the 2014 Future Open Space Study can be regarded as an appropriate trigger. As was put for the Council, this study had no formal status within the Council. It had not been put on public display in order to undertake a public consultation process that might ordinarily be expected to be a precursor to adoption of a document such as this as a policy of the Council. There is no evidence that the Future Open Space Study was ever communicated to the elected Council of the day, let alone any evidence that it had been considered and adopted by that body.
There is also no evidence of any activity with respect to the Future Open Space Study during the period from 2014 until early 2016, when the Committee recommended the resolution to the Council in the terms earlier set out.
The lack of status of the 2012 or 2014 open space studies and the lack of activity concerning them following their preparation belies, in my view, any possibility that they could be regarded as evincing, in the Council, any intention to adopt and give effect to the public purpose, being the acquisition of the Azizi interests’ land for addition to Blenheim Park.
As was conceded by Mr Hall, the steps taken in the Council’s processes in March 2016 provides clear evidence of the emergence of the public purpose (and therefore the triggering of the “statutory disregard”) from 8 March 2016.
My conclusion is, therefore, consistent with the position submitted by Mr Hall on behalf of the Council. It is also consistent with the opinion expressed by Mr Juradowitch in his individual expert report (at Exhibit B, tab 4, folio 1034, paragraph 13).
Although I have concluded that the public purpose first emerged in March 2016 for the purpose of the statutory disregard, it seems to me that, for the valuation process in which I am engaged, the dispute between the Azizi interests and the Council concerning the emergence of the public purpose has no relevant significance. This is because, although the Council's process leading to the development of the 2014 LEP appeared to contemplate the possibility that the Council might consider an increased development density for the site, any such potential was swept aside by the Azizi interests’ determination to press ahead with a planning proposal for a development which their own witness in these proceedings, Mr Juradowitch, now concedes was of inappropriate height and scale.
Further, although the Council now opposes (and has consistently opposed) any up-zoning of R2 Low Density Residential zoned properties immediately to the south of Epping Road, that position is to be understood in the context where the Council would not be relevant determining body for any hypothetical planning proposal engaged for consideration in my judicial valuation exercise. That body would be the Joint Regional Planning Panel (the JRPP).
In this regard, as later discussed as a relevant factor, the JRPP’s principal rejection of the Azizi interests’ planning proposal as actually advanced for consideration, was based not on the Council’s general position of opposition to any up-zoning, but on the specific (and unrelated basis) of the extent of the anticipated likely overshadowing impact of a development of the height proposed on the existing ambience of Blenheim Park.
In my determination of what would have been the likely planning outcome for the site, in circumstances where the statutory disregard was engaged from March 2016, it is to be assumed that the Council’s in principle opposition to up-zoning south of Epping Road would, consistent with Mr Mead's evidence, have been maintained.
However, as such opposition would have been advanced by way of submission for such hypothetical planning consideration (as has been done through Mr Mead’s evidence), such opposition (as was the Council’s position with respect to the three increased density proposals that had been approved immediately to the south of Epping Road) would not have been determinative, but would merely have been a factor be taken into account by the JRPP.

The expert valuation evidence

Introduction

It is convenient, given the fashion in which the issues have unfolded, to turn first to the valuation evidence. The joint expert valuation report of Mr Dempsey and Mr Preston (dated 18 June 2021) is in evidence at Exhibit B, tab 11. In the introduction to the report, the experts note that the report deals with the following topics:

land areas;

town planning and development controls;

the basis of their respective valuations contained within their statements of evidence;

the market value but for the public purpose if R2 zoned; and

the market value but for the public purpose for each scenario considered in the joint planners report dated 7 May 2021.

Site area

To the extent that this joint report deals with the difference in the area of the site (between the documents relied upon by each of these experts), that matter was separately earlier dealt with in this decision and has been resolved by agreement between the parties as there discussed.

Basis for determination of site value

Under the heading of 3. Town Planning and Development Controls, the valuers noted:

Because of these significantly different opinions as to zoning and development controls but for the public purpose, we agreed that it was impossible for us to arrive at an agreed position as to single valuation figure as there would be different valuation outcomes depending on which of the expert planners’ opinions is adopted by the Court.
In other words, we have agreed that the valuation of the land in these proceedings is significantly a planning and development control matter for the judicial valuer.

The alternative valuations on various development scenarios

Introduction

Under the heading 4. Basis of Our Respective Valuations Contained Within Our Statements Of Evidence, the valuers noted the following agreed position:

We agreed that would be useful to assist the Court in these proceedings if we could consider and agree upon opinions of market value for each of the land use (zoning) and development control scenarios discussed and considered by both NJ and JM in the joint planning report dated 7 May 2021.

Valuations based on the joint planners’ report of 7 May 2021

Given that I have concluded that the site is not to be valued on the basis of maintaining the R2 Low Density Residential zoning, the agreed position in section 5 of the valuers’ joint report on this basis does not require consideration.
However, in section 6 of the valuers’ joint report, they address and agree upon a range of outcomes, for valuation purposes, depending on what conclusion I would reach concerning the future development potential of the site disregarding the public purpose and the site’s resultant acquisition by the Council. The joint report said, in this regard, at page 6:

We have set out in the table below our agreed opinions of market value based on the zoning and development control scenarios considered by the town planners in the joint town planning report.
In the process of agreeing the valuations in the table below we have also agreed:-
1.   To adopt the land area of 2022.4 m² based on the surveyed areas as discussed earlier herein;
2.   To adopt the GFA’s set out within the joint town planning report for each of the scenarios put by NJ and JM, despite the fact that they don't result from the exact multiplication of the land area and the stated FSR to 2 decimal places;
3.   To adopt, as the main valuation approach, the multiplication of the GFA under each scenario by the agreed rate per square metre of GFA derived from sales evidence as opposed to a rate per developable dwelling site;
4.   That the market rate per square metre of developable GFA would increase slightly through the scenarios as the development outcome diminishes in size and scale to account for matters such as the reduced development timing and reduced cost of debt.

We also note that PD had considered the R3 scenario with the least developable GFA at an FSR at 0.8:1 which he states he was advised was the case from an email received from iNJ.

GP noted that he had adopted the R3 with the least developable GFA at a floor space ratio of 0.5:1 based on the opinion of JM at paragraph 2.4.50 of the joint planning statement.
For the purposes of joint valuation statement we agreed to include both scenarios as depicted in the table below. We agree a floor space ratio of 0.5:1 results in an agreed market value below the minimum market value as represented by our agreed R2 zone assessment.

On page 7 of the joint valuers’ report, Mr Dempsey and Mr Preston set out, in tabular form, their agreement as to the market value to be derived from each of the zoning and development control scenarios addressed in the joint town planners report. A copy of this table is reproduced as Annexure A to this decision.
Mr Dempsey and Mr Preston concluded their joint report by observing that:

We also agreed that should the Court rule that the alternative land area is to be adopted and/or that a zoning and FSR other than that stated in the table above should apply it may be necessary for us to reconvene and attempt to agree on any alternative scenario the Court may direct us to consider.

Discussion

I later set out, at [194], the conclusions of Mr Juradowitch and Mr Mead at the end of the joint expert planners’ report. Those conclusions informed the valuations that are set out in Annexure A. Some brief observations warrant being made concerning the material set out in that table:

the values in lines 2, 3 and 4 attributed to Mr Juradowitch are derived from 2.4.47 and 2.4.49 of the joint expert planners’ report;

the value set out at line 5, as can be seen from the table, appears to be derived from the FSR adopted by the Valuer General for determining the compensation assessed as due to the Azizi interests through the statutory determination process (I have not immediately been able to find any documentation in either Exhibits A or B that establishes the basis for this. However, given my final conclusion on the development potential absent the public purpose, nothing turns on this);

The values in lines 6, 7 and 8 attributed to Mr Mead are derived from 2.4.48, 2.4.50 and, again, 2.4.48 of the joint expert planners’ report;

the value at line 9 was derived by Mr Dempsey as noted in the third last paragraph of the valuers’ joint report quoted above at [112]; and

the value in line 10 was derived by Mr Preston as noted in the second last paragraph quoted from the joint valuers’ report at [112]. It is also consistent with what Mr Mead wrote at 2.4.50 of the joint planners’ report.

As later explained in my consideration of, and conclusion concerning, the competing views of Mr Juradowitch and Mr Mead, I have nominated the zoning and FSR from the table which I consider appropriate to be applied for the purposes of deriving the market value compensation pursuant to s 56 of the Land Acquisition Act. In this context, it is to be observed that the relevant value set out in Annexure A will require to be adjusted, in a minor respect, to reflect the agreement between the parties as to what should be the area of the site for the purposes of these proceedings.
However, subject to that minor adjustment, the overall market value can be obtained by applying my conclusion later discussed in the context of consideration of the evidence of Mr Juradowitch and Mr Mead (and the submissions of Mr Hemmings and Mr Hall with respect to this evidence) from the relevant line in the annexed table.

The written expert evidence concerning development potential of the site

Introduction

Before turning to relevant elements of the oral evidence given by Mr Juradowitch and Mr Mead in response to questioning, it is first appropriate to set out in summary, the positions taken by each of them in the individual expert reports and, to the extent that those positions were modified by, or expanded upon, as a consequence of joint expert conclave and its resulting joint report, to set out relevant portions of that material.

Mr Juradowitch’s individual expert report

Mr Juradowitch’s individual expert report (Exhibit B, tab 4, folios 1028 and following) commenced by setting out a description of the site and its locality. It is not necessary to reproduce any of this material.
He next set out the history of the Council’s acquisition of the site, noting at folio 1034, his adoption (in paragraph 13) that the public purpose having first emerged in March 2016.
After discussing the zoning and primary controls set out in the 2014 LEP, the DCP, State Environmental Planning Policy 65 - Design quality in residential apartments (and the Apartment Design Guide) and the North Ryde Station Precinct Master Plan (it not being necessary at this point to reproduce the provisions of any of these), he then turned to address, in section 5, the question of the underlying zoning at the date of acquisition. In paragraph 46, he set out, in summary, his position on this topic, saying:

While I am of the opinion of the underlying zoning of the land is R4 High Density Residential, should this position not be supported, the[n] I consider underlying zoning would be R3 Medium Density Residential, rather than the Respondent's proposition of a R2 Low Density Residential zoning.

He then summarised three matters which he regarded as providing support for this primary proposition. These were:

the substantial development of the North Ryde – Macquarie Park corridor since the opening of the Epping to Chatswood rail line in 2009. This development, he opined, had increased (and by inference, would continue to increase) with the development of the North West Metro line and its incorporation of the Epping to Chatswood line;

the submission, in 2012, for development of the site by Mecone Urban and Environmental Planning to the Council as part of the process for the Draft LEP that the planning controls for the site should be based on an R4 High Density Residential zoning with an appropriate maximum building height and increased floor space ratio; and

the response by the Council at the conclusion of the process leading to finalisation of the 2014 LEP (when the Council identified a number of sites where higher densities might be contemplated). Mr Juradowitch noted that the site had been so identified. He described the purpose for this in paragraph 49 of his report saying:

In my experience, this is frequently the process applied with submissions to an LGA-wide draft LEP proposes substantive site-specific changes to an exhibited draft LEP. This approach avoids delaying finalisation of the draft LEP and enables more detailed consideration of site-specific substantive changes to development controls.

Mr Juradowitch then set out history of the planning proposal submitted on behalf of the Azizi interests in June 2015 and the steps taken with respect to it (as well as the parallel processes initiated by the Council to acquire the site for the public purpose of addition to Blenheim Park).
At paragraph 60, Mr Juradowitch expressed his agreement with the assessments of the Council, the Department of Planning and the JRPP that the planning proposal submitted in 2015 on behalf of the Azizi interests was not appropriate for the site. In this context, he noted:

This is not to say that the subject land is not suitable for rezoning to R4 High Density Residential, with a more modest building height and FSR, as recommended by the Council officers in 2015 and by the DPE in July 2016.

He then explained why a more modest R4 rezoning proposal and associated development (maximum building height of 25m and maximum FSR of 2.8:1) was likely to have been achieved (or, if not achieved, to be regarded as imminent and certain) by the date of acquisition of the site by the Council.
For these purposes, he relied on the 2012 plans from Mecone Urban and Environmental Planning (later discussed by him in more detail). He said, at paragraph 68:

Even the most pessimistic view of rezoning prospects for the subject land would at the date of acquisition, have the rezoning to R4 High Density Residential zone imminent and certain, with a maximum building height of at least 22 m (7 storeys) and a maximum FSR of at least 2.5:1.

This, he proposed, was the basis as to why the R 2 Low Density Residential zoning as at the date of acquisition would not have been maintained in the future.
He then explained why the medium density developments at Allengrove Crescent and Whiteside Street (both visited during the course of the site inspection, as earlier discussed) were of relevance in demonstrating the appropriateness of medium density infill development on the southern side of Epping Road. He set out the maximum interface height of these two developments with their neighbouring residential development as permitting a boundary interface maximum height of 3 storeys increasing to 5 storeys away from that interface. He said, in paragraph 71:

The subject land is some 150 m from the nearest low density dwelling. In such cases, a 3 storey interface limit would be unnecessary, allowing a 5 storey apartment building on the subject land, readily capable of achieving and FSR of at least 1.9:1.

He then noted that the moratorium on rezoning processes in the Council's local government area commencing in June 2018 would not have had relevance to the site given that any rezoning proposal (absent the public purpose) would have been lodged in 2017 well before this moratorium (report at paragraph 73)
Mr Juradowitch then set out a detailed examination of the nature of the hypothetical development based on the Mecone Urban and Environmental Planning document of July 2012 as providing an appropriate template for what should be regarded as would have arisen absent the public purpose. In support of this proposition, he relied upon:

the indicative footplate of Mecone Urban and Environmental Planning;

the absence of any substantive overshadowing of the Mecone Urban and Environmental Planning proposal after 10 AM on Blenheim Park;

his opinion that the Mecone Urban and Environmental Planning building form would have been appropriate for the site;

the setbacks proposed in the Mecone Urban and Environmental Planning proposal were appropriate with noise attenuation fencing on Epping Road;

vehicle access to such a hypothetical development would be via Blenheim Road, removing two existing driveways accessing Epping Road; and

a potential reduction of the western side boundary setback as a consequence of there being no neighbouring dwelling on that side.

He noted that the planning report of August 2018 prepared by Turnbull Planning International Pty Ltd had reached a similar conclusion to that which he had earlier expressed but with a more modest development yield with a maximum of 7 storeys and a maximum FSR of 2.1:1.
However, at paragraph 82, he confirmed that he remained of the opinion that the Mecone Urban and Environmental Planning proposal was an appropriate potential development response for the site. He qualified this by saying, in paragraph 82:

However, if it is determined that a height limit of 7 storeys in a maximum FSR of 2.5:1 should apply, there will be some reduction in apartment yield, as a consequence of deleting the top floor level to reduce height to 7 storeys and ensure FRS [sic] does not exceed 2.5:1. In this scenario. I estimate that apartment floor space would reduced to approximately 6200 m², with apartment yield reduced to 80 X 2 bedroom dwellings.

He then turned to address, briefly, two alternative matters. The first was that of what would be the position with respect to an R3 Medium Density Residential zoning and, second, what was the development potential if an R2 Low Density Residential zoning was to be retained. It is to be noted that, in light of the agreed position of the valuers that such an R2 retention outcome had no present relevance, it is not necessary to summarise his conclusions in this regard.
However, it is appropriate to set out what Mr Juradowitch said with respect to a potential R3 Medium Density Residential zoning. He opined, at paragraphs 84 and 85:

Adopting an underlying zoning of R3 Medium Density and having regard to the site being within 550m2 [sic] walk of North Ryde Metro Station, and well separated by at least 150m2 [sic] from the nearest low density residential development, I am of the opinion a 16m maximum height (5 storeys) and a maximum FSR of 1.9:1 would apply.
In the above scenario, building form would be similar to the Mecone Urban and Environmental Planning proposal for an 8 storey apartment building, but reduced in height to 5 storeys and with a reduced floor plate only for the fifth story. At an FSR of 1.9:1 an assessable GFA of 3842.56 m² could be achieved, providing for a total apartment floor area space of 3450 m², yielding 43 X 2 bedroom apartments.

Mr Mead’s individual expert report

Mr Mead’s individual expert report was at Exhibit B, tab 5, folios 1054 and following.
Mr Mead commenced his expert report by setting out the nature of the instructions he had received from the Council's solicitors; the documents to which he had had regard in the preparation of his expert report; and the four further sections which he had addressed in the document.
It is appropriate to note the two questions which he had been requested, specifically, to address in his instructions from the Council’s solicitors. These were:

As at the acquisition date, determine the zoning of the site, but for the proposal to carry out the public purpose, for which the properties have been acquired.

Assuming the Applicant’s [sic] claim that, as at the acquisition date, but for the proposal to carry out the public purpose, the property would have been zoned R4 – High Density Residential under the Ryde Local Environmental Plan 2014, what height limit and floor space ratio would have been assigned to the site?

Mr Mead then set out matters under the heading “The land and the locality”, dealing first, at 2.1, with the regional context he regarded as relevant for the site. It is appropriate to set out this material (which is comparatively brief) in full (omitting Figure 1, a regional air photograph identifying the site). His regional context analysis was in the following terms:

2   THE LAND AND THE LOCALITY
2.1   Regional Context
The Site is located towards the centre of the suburb of North Ryde, approximately 16km from the Sydney CBD, close to the junction of Pittwater Road, Epping Road and the point at which the M2 diverts north (from Epping Road which continues to the north-west).
The Site sits to the south-west of the North Ryde Station Precinct (Urban Activation Precinct) which incorporates major mixed use development adjoining North Ryde Station (5 & 9-11 Delhi Road, North Ryde) and under construction at the Lachlan’s Line mixed use development.
The Site is within the area identified by the State Government in A Metropolis of Three Cities as the Eastern Economic Corridor, current at the date of acquisition, however notably that Corridor encompasses a vast tract of land that straddles Macquarie Park, North Ryde Station Precinct and continues to the Sydney CBD and Sydney Airport. The Corridor is a focus of economic growth and is earmarked to leverage its strong financial, professional, health, education and innovation sectors. It is not a housing delivery initiative.
The North Ryde Station Precinct is the subject of B4 zones north-east of the M2 Motorway and subject to height limits of 45m & 92m and FSR of 2.3:1 and 3.5:1. There is a triangle of land directly adjoining Bundara Reserve, not dissimilar to the Site which has retained its R2 zoning.
The Site is about 600m walking distance from North Ryde Station entrance, with pedestrians having to cross Epping Road and continue along Delhi Road to the station entrance. Bus stops are located on both sides of Epping Road and along Blenheim Road.
In a regional sense, the northern and southern sides of Epping Road/M2 motorway can be readily distinguished.
•    South of Epping Road, a predominantly low density residential area extends from Shrimpton’s Creek in the west to the Lane Cove River in the east.
•   On the northern side of the arterial road system is the emerging North Ryde urban renewal area, focused on the railway station and then extending north-west through Lachlan’s Line into Macquarie Park and south-west into an established commercial and high-tech industrial precinct including uses such as Microsoft and CSIRO.

Mr Mead then set out more detailed material describing the locality within which the allotments formerly owned by the Azizi interests were situated. He followed this with a detailed description of the site and a series of photographs illustrating aspects of the site (aspects we were able to observe during the course of the site inspection, as earlier described). It is not necessary to reproduce any of this material.
The third section of his report was entitled “The planning controls”. He here set out relevant elements from the Land Acquisition Act, then setting out provisions of the relevant local planning controls (prior to the RE1 rezoning of the site) which gave rise to the acquisition request made by the Azizi interests pursuant to s 23 of the Land Acquisition Act. Although Mr Mead noted provisions in local planning instruments prior to the making of the 2014 LEP, they play no part in these proceedings. He then set out, from the 2014 LEP, extracts in their entirety from the land use table for seven of the zones in that LEP. Of those seven, the R2 Low Density Residential; R3 Medium Density Residential and R4 High Density Residential play a role in these proceedings.
He also noted controls which would be applicable if the R2 Low Density Residential zone was to be regarded as continuing and the possibility of what development might be permitted under those circumstances. As with the position in Mr Juradowitch’s report, this position requires no further consideration given the conclusion agreed to by the valuers in this regard.
Finally, in this section of his report, Mr Mead noted that there were no relevant draft planning controls requiring consideration as at the date of acquisition.
Section 4 of his report was headed “Consideration of zoning”. He commenced his analysis by setting out the uses permissible in the R2 zone and making a planning comment with respect to each of them. For the reasons noted above, it is unnecessary to give any consideration to this material. However, his conclusion (at folio 1082) was in the following terms:

When I disregard the RE 1 Public Recreation zone in accordance with my instructions, I conclude that the Site would have continued to have been zoned R2 Low Density Residential pursuant to the Ryde LEP 2014.
My conclusion is informed by the zoning history of the Site, its physical context and location on the southern side of Epping Road and the following considerations which were relevant at the time of acquisition.

Mr Mead then turned to deal with the matters which he considered were relevant at the time of acquisition. The first of these was addressed under the heading “4.1.1 Regional Planning (A Metropolis of Three Cities and North District Plan)”.
He expressed the opinion that these documents did not support an R4 High Density Residential zoning. He gave a number of reasons for this conclusion, these being: the plans specifically targeted locations which did not include the site owned by the Azizi interests;

four precincts were specifically identified by these plans and the site was not within any of those precincts;

whilst the site has some proximity to two of those identified precincts, it is physically divided from them by Epping Road and by the M2 Motorway.

As a consequence, Mr Mead opined (also at folio 1082):

These locations will continue to be the focus of higher density residential development which will in turn preserve lower density residential precincts outside these localities.

If he has a valid claim (as I have earlier determined, for reasons set out, he does not), Mr Azizi would therefore be entitled to compensation pursuant to s 59(1)(d) calculated on the basis of the full quantum of Mr Azizi’s market value compensation derived from the earlier set out apportionment basis of the total market value compensation to be paid by the Council to the Azizi interests for the compulsory acquisition of the site.

Disadvantage resulting from relocation

Introduction

It has long been recognised that, when a person's residence is compulsorily acquired for a public purpose, an additional compensatory payment may be appropriate to account for the life disruptions resulting from relocation which arises for the dispossessed person.
Historically, such a payment has been known as solatium. This term is from “solatium”, the Latin word meaning “solace” (Follett Latin-English Dictionary). Solace, in turn, is contemporarily defined with its primary meaning being:

Comfort, consolation; alleviation of sorrow, distress, or discomfort (Oxford English Dictionary);
and
Comfort in sorrow or trouble; alleviation of distress or discomfort (Macquarie English Dictionary).

In provisions applying in the EPA Act pursuant to the then s 116(2), solatium was considered to be for the following purposes (per Perrignon J in Robertson v Commissioner for Main Roads (1987) 63 LGRA 420 at 426)( Robertson):

In the present case, I am of the opinion that the words “solatium for the necessity to relocate his residence” refer to subjective and imponderable factors such as nuisance, annoyance, inconvenience and distress which might be caused to an owner who, as a consequence of the compulsory acquisition of his place of residence, finds himself under the necessity of relocating his residence.

With the coming into effect of the Land Acquisition Act in 1991, the concept of solatium was provided for, now, with respect to all public purpose compulsory acquisitions by s 60 of the Act. This provision was in the following terms:

60 Solatium
(1) In this Act:
solatium means compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition.

(2)   The maximum amount of compensation in respect of solatium is:
(a)   except as provided by paragraph (b)—$15,000, or
(b)   such higher amount as may be notified by the Minister by notice published in the Gazette.

(3)   In assessing the amount of compensation in respect of solatium, all relevant circumstances are to be taken into account, including:
(a)   the interest in the land of the person entitled to compensation, and
(b)   the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and
(c)   the inconvenience likely to be suffered by the person because of his or her removal from the land, and
(d)   the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land.

(4)   …
(5)   …
(6)   …
(7)   …

In 2014, the NSW government received the report from a review of the Land Acquisition Act undertaken by Mr D Russell SC. One of the provisions of the Act addressed by Mr Russell's review was s 60. Mr Russell's report recommended changes to the Act. Amongst the changes recommended was that the maximum compensation for solatium be increased significantly (to $50,000). Although the government of the day generally accepted Mr Russell's recommendations, the policy decision was made that his proposed increase was insufficient and that the maximum compensation for solatium was appropriate to be increased to $75,000 and that this sum would be subsequently regularly adjusted.
In 2016, the Land Acquisition Act was amended by the passage of the Land Acquisition (Just Terms Compensation) Amendment Act 2016. These amendments included changes to s 60.
In introducing the amending legislation in the Legislative Council on 20 October 2016, the Hon Duncan Gay MLC (Minister for Roads, Maritime and Freight, and Vice-President of the Executive Council) said, with respect to solatium:

The fifth legislative change recognises the significant stress and personal difficulty in going through the land acquisition process. The Government will amend the Act to increase the maximum solatium payment from $27,235 to $75,000. The Act provides for compensation, or solatium, to be paid for non-financial disadvantage arising from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition. As I have already said, the Government appreciates that losing the family home can be one of the most stressful experiences in life. It has been compared, in some circumstances, to bereavement. People need to relocate, find new schools and build new social and possibly work networks. The maximum amount was originally set at $15,000, or any higher amount set by the Minister responsible for the Act. The maximum amount has been indexed annually by the consumer price index [CPI] by the Government, and currently stands at $27,235. Solatium is paid in addition to compensation for other matters such as the market value of the land that has been acquired and legal and valuation costs.
As members of this House may be aware, Mr Russell in his report discussed the difficulty in applying a financial figure to what is compensation for non-financial impact—but that it should be increased from its current level. The Government agrees with Mr Russell that the maximum solatium compensation should be increased. However, in light of the impacts of land acquisition on families and individuals, the Government considers the amount should be increased even more substantially than the $50,000 in Mr Russell's report.
The Government will change the Act to make the maximum non-financial impact payment $75,000, indexed annually to the CPI. The increased solatium compensation payment, or the pro-rata amount, will also apply retrospectively to former residential landowners and tenants whose acquisitions were settled on or after 26 February 2014, the date Mr Russell's report was provided to the Government. For clarity, the Government will amend the term "solatium" to "disadvantage resulting from relocation", which more clearly articulates what this form of compensation relates to.

The 2016 amendments to replaced s 60 with the following reworked section:

60 Disadvantage resulting from relocation
(1) In this Act—
disadvantage resulting from relocation means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person’s principal place of residence as a result of the acquisition.

(2)   The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000.
(3)   In assessing the amount of compensation in respect of the disadvantage resulting from relocation, all relevant circumstances are to be taken into account, including—
(a)   the interest in the land of the person entitled to compensation, and
(b)   the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and
(c)   the inconvenience likely to be suffered by the person because of his or her removal from the land, and
(d)   the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land.

(4)   …
(5)   …
(6)   …
(7)   …

Two things are to be observed when considering this amended provision. The first is that the name of the head of compensation to be available to a person whose residence is compulsorily acquired for a public purpose is no longer to be known as solatium but is now to be known as “Disadvantage resulting from relocation“. This, it is readily to be assumed, reflects an ongoing trend in Parliamentary drafting processes to adopt more readily understood Plain English language in lieu of technical expressions not readily capable of being understood in the broader community.
However, for present purposes, it is appropriate to note that the practical effect of the implementation of this change is that the quantum of compensation available for disadvantage resulting from relocation was increased to $75,000 (s 60(2)) from the date of coming into effect of the revised provision.
Following adjustments made for inflation since that time, the maximum compensation now available for disadvantage resulting from relocation is more than $78,000.
However, for present purposes, it is to be noted that the assessment criteria set in the now applicable s 60(3) are identical to those which had applied in the terms of the section as it was prior to the revision affected by the 2016 amendments (as can be seen from the pre-2016 version of s 60(3) earlier reproduced).
As a consequence, although the quantum of compensation available for disadvantage resulting from relocation has changed significantly as a consequence of the 2016 amendments to the Land Acquisition Act, the basis upon which the quantum of such compensation is to be assessed has not.
The Valuer General's determination was that the maximum amount of compensation for disadvantage resulting from location (over $78,000) was appropriate to be awarded to Mr Azizi. It is to be noted that the Council's position is that up to that amount was available to be ordered but that it was not appropriate for that maximum amount to be awarded in these circumstances. It is in the context of that contest that it is now appropriate to turn to the parties’ submissions on that point.

Past s 60 determinations

Although Mr Hemmings noted that this determination pursuant to s 60 would be, as he understood it, the first contested determination for disadvantage resulting from relocation following the enactment of the 2016 amendments, for the reasons I have explained above, the evaluative framework for my determination has not changed in any functional fashion since the coming into effect of the Land Acquisition Act originally in 1991 when this head of compensation was known as solatium.
On the basis of the research I have undertaken, there appear to be only two judicial determinations arising from contests pursuant to the Land Acquisition Act as to the appropriate level of compensation to dispossessed owners to reflect disadvantage resulting from relocation. Both these decisions were given by Talbot J. In the first of them, Terrence John Fitzgerald & Wendy Patricia Fitzgerald v Blacktown City Council [1994] NSWLEC 40 (Fitzgerald), his Honour described the purpose of a compensatory payment pursuant to s 60 as being for:

Historically solatium refers to a sum of money paid over and above the actual damages as solace for injured feelings and to cover the distress caused by the taking of the person’s home. Pursuant to s 60(3)(d) the period after the acquisition of the land during which the person is allowed to remain in possession is one of the relevant circumstances to be taken into account in assessing the amount of compensation in respect of solatium. The non-financial disadvantage referred to in s 60 is related to the inconvenience factor attributable to the move. This is made further apparent from the circumstances included in s 60(3)(a),(b) and (c) which appear to have regard to the extent of physical and emotional attachment that a residential occupant has to the land. The extent of the loss or inconvenience will be the greater according to whether the occupier is an owner or a tenant and to their length of occupation.
The assessment of such imponderables, which are not specifically provable, means that each case should be decided on its own merits without reference to a gradation by assessing it against other cases.

In a subsequent decision, Stephen Anthony Horton and Kay Elizabeth Horton v Wyong Shire Council (No.2) [2005] NSWLEC 45 (Horton), his Honour adopted the above formulation, citing it as being consistent with the decision in Robertson and a decision of Cripps CJ in Roberts v Commissioner for Main Roads (1987) 63 LGRA 428, at 431-2, where the description of the purpose of solatium earlier set out in Robertson was endorsed.
For present purposes, although it is to be noted that the decisions in Robertson and Roberts were made pursuant to the then applicable s 116(2) of the EPA Act, no matters of principle additional to matters dealt with by Talbot J arise from those decisions.
It is, however, appropriate to note that, in each of them, the then applicable evaluative processes were undertaken by their Honours in determining the appropriate level of compensation for solatium to be awarded.
A similar approach was adopted by Talbot J in his determination of the appropriate level of compensation to be awarded for solatium in each of Fitzgerald and Horton. Obviously, each of those determinations was made by his Honour on the basis of his consideration of the application of the now applicable criteria requiring consideration by me for the purposes of assessing Mr Azizi’s claim for disadvantage resulting from relocation in these proceedings.
It is sufficient to note that Talbot J addressed those criteria by having regard to the facts and circumstances arising in each of the instances with which he was faced.
It seems to me that the only guidance potentially to be taken comes from his Honour's decision in Horton is that his Honour did not accept the proposition that compensation for disadvantage resulting from relocation should automatically be awarded in the full quantum available for that purpose.
In Fitzgerald, his Honour did award the full amount as appropriately reflecting the circumstances in which the Fitzgeralds found themselves, particularly as a result of Mrs Fitzgerald’s long association with the residence which was compulsorily acquired. However, in Horton, his Honour discounted the amount of compensation for disadvantage resulting from relocation only because of the comparatively limited temporal association between the Hortons and the residence which was compulsorily acquired from them.

The submissions for Mr Azizi

The position advanced by Mr Hemmings on behalf of Mr Azizi on this point was a simple one. In summary in his closing written submissions, Mr Hemmings noted (with respect to the matters set out in section 60(3) (written submissions at paragraphs 219 to 222):

Mr Azizi owned the freehold title to his property as at the date of compulsory acquisition;

he had resided there, as his principal place of residence, for some seven and a half years as at the date of compulsory acquisition and, but for that acquisition, it would have remained his home;

consideration of Mr Azizi age and his medical condition demonstrate that he will suffer significant inconvenience as a result of him being required to move from his home and that these personal attributes did not warrant reduction from the maximum amount available to be ordered; and

underpinning Mr Azizi remaining in residence after acquisition had a proper statutory basis in s 34 of the Land Acquisition Act because, at the time of making these submissions, the compensation payment elements set out in that provision had not been satisfied.

The Council's position on Disturbance resulting from relocation

First, in paragraph 118 of the Council's written closing submissions, it was noted that:

Notwithstanding that the discretion in s. 26 of the Just Terms Act arises in this case because the acquisition was as a result of hardship, the Respondent does not deny that Mr Azizi should be paid some compensation under s. 55(e). Rather the position is that the Respondent denies the Mr Azizi is entitled to the maximum statutory sum for disadvantage resulting from relocation because Mr Azizi remains in occupation of Lot C (see s. 60(3)(d) of the Just Terms Act).

The Council's written submissions then addressed the available earlier case law concerning payment of solatium (discussed earlier). However, it is appropriate to note that the amount set by s 60(1) is a legislatively imposed cap on such compensation under this head even if my judicial assessment was that a greater sum might be warranted. No such hypothetical greater sum was proposed on behalf of Mr Azizi.
The Council's position was summarised, in its written closing submissions, at paragraphs 122 and 123 in the following terms:

In this case, Mr Azizi has owned Lot C, had resided there for 10 years and has continued to reside on the property since the date of acquisition. While it is axiomatic that Mr Azizi will endure a degree of inconvenience in having to eventually move from Lot C, the Applicant has not demonstrated any reason beyond a bare statement as to why it is said that such inconvenience would be “significant” as suggested by Mr Azizi’s son, nor has the Applicant identified any particular aspects of Mr Azizi’s life on Lot C that would justify the maximum sum being paid. His additional 3 years of post-acquisition occupation is also relevant.
If it were the case that the simple act of having to move was sufficient to warrant the maximum sum being paid, s. 60 of the Just Terms Act would simply state that as the criteria. Rather, an evaluative judgment is required to be made as to the appropriate sum in the circumstances of a particular case. In this case, the Applicant has failed to provide sufficient evidence such that the Court would be satisfied that the maximum sum should be paid.

Mr Hall's oral submissions noted that this aspect of Mr Azizi claim was subject to the threshold proposition that eligibility necessitated me finding that there was an up-zoning potential for the land (I note that, given that I have concluded such an up-zoning potential existed, it is not necessary to address this submission).
In his closing oral submissions, Mr Hall noted that my role was not one confined merely to adopting the maximum statutory amount mandated by s 60 of the Land Acquisition Act to make an assessment of the appropriate amount of compensation under this heading but that I was limited to the amount I could order by the statutory cap.
There were two matters, in summary, pressed by Mr Hall in his oral closing submissions as to why less than the statutory maximum should be awarded. In this regard, it was submitted, with respect to the continuing occupation of the acquired property by Mr Azizi (Transcript 29 June 2021, page 265 line 48 to page 266 line 18):

HALL: And you are given a series of factors to be taken into account, I say, to be taken to account. One of which is subs (d), the period after the acquisition of the land during which the person has been, or would be, allowed to remain in possession. So, that there is a clear indication that the amount of compensation will vary according to the opportunity that the dispossessed owner has to remain in occupation.
And that cannot simply be the extremely rare case in which they are given, effectively, a life estate or a perpetual continuation, which was the only example that Mr Hemmings could conjure. It must be an indication that, in the ordinary range of cases where there is a significant variation sometimes between the speed with which the acquisition takes place and the disposition takes place
That is a factor that..(not transcribable)..play here, and you would readily accept, I respectfully submit, that a person who is bundled unceremoniously out of their house within days of notice of the intended acquisition suffers significantly greater disadvantage than a person who was given a significant period; in this case three years, to plan their affairs, can choose the options, which they participate, can choose the properties that they seek to purchase as a replacement.

The second matter, which Mr Hall revised was the absence of any evidence by Mr Azizi or on his behalf as to the basis of why the inconvenience suffered by Mr Azizi would warrant the maximum amount being awarded. In this regard, Mr Hall submitted (Transcript 29 June 2021, page 267 line 28 to page 268 line 6):

HALL: And the final point that I wanted to make is this: again, you are told in the section that the job of the Court is to assess the amount of compensation under this head and that, amongst the factors you take into account in that is, the inconvenience likely to be suffered by the person because of the removal from the land. So, it’s not a single factor that - the fact of removal, cost due to the inconvenience, the inconvenience of the factor to be assessed and that means that in the modern jurisprudence or the modern praxis in this field, a person who wishes to claim the maximum amount under this heading, must give evidence and does give evidence, regarding the subjective impact on them of inconvenience of moving.
Now, I do accept that there may well be reasons why Mr Raymond Azizi himself could not be the witness to say that, but Mr Patrick Azizi has come forward to speak on his father’s behalf and does nothing. It’s simply avoiding the evidence. Does not say anything about - I shouldn’t go too far here, because I’ll supply the want that the witness has so clearly lacked - but nothing about emotional connection, nothing about family history on the house, nothing about difficulty of relocation or adaptation of the house to special needs, or any of the things that we know routinely, cannot..(not transcribable)..to depose to.
And that absence, you must infer, is just because there is nothing additional that Mr Patrick Azizi could have said on that topic that would have persuaded you that there was real, or specific, or concrete disadvantage in this case, beyond what I accept is, the statutory presumption that there will be some..(not transcribable)..environment in each case. And for that reason, you must, I submit, depart from the maximum and you must depart from the maximum to a sufficient degree to note the two factors that I have put forward, namely, a significant period of post acquisition occupation, and the absence of evidence indicating the particular circumstances of these applicants.

The response for Mr Azizi

First, Mr Hemmings addressed the second of the above propositions saying (Transcript 29 June 2021, page 268 lines 43 to page 269 line 1):

HEMMINGS: Your Honour, can I just deal with that last point firstly, because, as your Honour will recall, there were discussions going on - Mr Hall, you might need to listen to this, because I’m talking about conversations that we may have had. Obviously, if there was to be evidence put on in relation to this, it would have come from Mr Azizi senior, and we discussed this with the counsel.
Mr Azizi senior has dementia and so he didn’t put on an affidavit, it was put on by his son. That was done without objection and without the necessity for him to be cross examined. It’s a very difficult ask, with respect, to suggest there’s a problem with the lack of evidence from Mr Azizi senior.

Mr Hemmings later addressed the topic further saying (Transcript 29 June 2021, page 270 lines 26 to 49):

In terms of the disadvantage resulting from relocation amount, in our submission, the respondent approaches this in wrong way, with respect. We've made some submissions about the matter already, and I don't repeat those submissions, but to the extent it's suggested that we have failed in some evidentiary sense to fill holes necessary for s 60(3), in our submission, particularly having regard to the approach or an understanding that one gets of the approach to this provision from things like the second reading speech, the $75,000 is a maximum, but it's the starting point.
It's not a matter of a dispossessed landowner in our submission convincing the Court that we are entitled to the maximum because that is the starting point, rather evidence may be lead which can diminish, for example, the amount of compensation that should be entitled to. We have put on some evidence. We have talked about the conduct that we were suffering even prior to - sorry, you remember the boarding up and the changing of locks and that sort of thing,
But if the respondent wanted to take some advantage of something like s 60(3)(d), there is no onus expressed through that provision as to who it is that's informing the Court as to what or why that problem arises, but otherwise in terms of the period of time that we're there, there's nothing. As we've already submitted, there's nothing about the period of time that we are staying in occupation other than that which is anticipated by the legislative scheme. It's certainly not something which would result in a watering down of the otherwise maximum.

Consideration

Introduction

For present purposes, in my consideration of the claim made by Mr Azizi pursuant to s 60 of the Land Acquisition Act, I must undertake an assessment of the facts and circumstances here applicable considered in light of the criteria now contained in s 60(3) of the Act, namely:

(a)   the interest in the land of the person entitled to compensation, and
(b)   the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and
(c)   the inconvenience likely to be suffered by the person because of his or her removal from the land, and
(d)   the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land.

As can be seen from the above terms of s 60(3) of the Land Acquisition Act, the list of criteria mandated to be considered in determining the quantum of compensation to be awarded for disadvantage resulting from relocation requires a cumulative assessment of all four factors set out the provision. I now turn to do so (addressing all matters – not merely those pressed by Mr Hall as warranting some discount from the maximum statutory amount).

Mr Azizi’s interest in the site

Mr Azizi had a freehold interest in only portion of the site compulsorily acquired by the Council. His interest was confined to his ownership of 86 Blenheim Road, his place of residence. The material made available to the Council in support of the application by the Azizi interests pursuant to the hardship provisions of the Land Acquisition Act requesting that the Council compulsorily acquire the site made it clear that Mr Azizi’s ownership of his portion of the site was as his principal place of residence and was subject to a mortgage - an entirely conventional and unexceptional position.

Mr Azizi’s length of occupancy

Mr Azizi purchased 86 Blenheim Road in 2011, some years prior to lodgement of the rejected planning proposal on behalf of the Azizi interests for a 45 m high apartment building. However, his purchase was at the same (general) time as Alnox commenced its acquisitions of the other two properties which, together with Mr Azizi’s property comprise the site.
It can readily be assumed that Mr Azizi accepted that it was appropriate for the advantage of himself and his sons (collectively the persons comprising those behind the Azizi interests) that he was prepared to fold his ownership of 86 Blenheim Road into an aggregated site and, if the planning proposal had been successful, to move his residence elsewhere. Mr Azizi was, at the time of the compulsory acquisition, a man of significantly mature years. There is no evidence of him having any significant social, emotional or other ties with his residence at 86 Blenheim Road in the fashion to which Talbot J had adverted in Fitzgerald when addressing this head of compensation.
For present purposes, I am satisfied that the comparatively short tenure of Mr Azizi of his portion of the site; the timing of his acquisition of his residence in the context of the assembling of the total Azizi interests’ holdings of the site; together with the absence of any evidence of specific ties to his residence weighs, to a minor extent, in favour of the Council’s contention that Mr Azizi ought not be awarded the full amount of compensation for disadvantage resulting from relocation.

Inconvenience to Mr Azizi arising from relocation

I am satisfied that, in addition to what would ordinarily be expected to be the inconvenience to Mr Azizi (and his wife) arising from the necessity for them to relocate their residence as a consequence of its compulsory acquisition by the Council, Mr Azizi’s age and health are factors in his favour to be taken into account as increasing the extent to which there will be disruption to his life when he needs to relocate from 86 Blenheim Road as a consequence of the finalisation of these proceedings and, thus, completion of the compulsory acquisition by the Council of his residence.
I decline to draw any inference adverse to Mr Azizi’s claim for this compensatory element because of his son not giving evidence about the impact on Mr Azizi of requiring his relocation.

Post-acquisition occupation

Mr Azizi has remained in occupation of his residence since its compulsory acquisition by the Council. Whilst, ordinarily, his continuing occupation over the intervening period might potentially be regarded as a factor weighing in favour of some discounting from the maximum available amount to be awarded pursuant to this head of compensation, I am satisfied that, in the singular circumstances of this acquisition, that would not be appropriate.
I have so concluded because the attitude adopted by the Council resisting the making of the full mandated statutory advance payment to the Azizi interests has imposed a significant barrier on Mr Azizi acquiring a replacement residence satisfactory to him and his wife to which they could relocate. These unusual circumstances mean that there is no circumstance arising pursuant to this criterion which would warrant any discounting from the maximum quantum set for this head of compensation.

Conclusion on compensation under s 60 of the Land Acquisition Act

As can be seen from the above analysis, the only factor weighing in favour of any discount from the current statutory maximum compensation available pursuant to s 60 of the Land Acquisition Act arises only from my assessment of the second of the four cumulative criteria set by the statutory provision.
However, the statute merely imposes a cap – it is necessary to determine if a discount is warranted under these circumstances. Absent that cap, had it been open to me to do so, I might well have concluded the impact of involuntary relocation given Mr Azizi’s age and medical condition warranted more than the statutorily capped quantum. Under this circumstance, I am satisfied that the weight to be given to the minor negative to be drawn from the second factor does not warrant a discount from that maximum potential amount under this head of compensation.
Under the circumstances, I am satisfied that the appropriate compensation to be awarded to Mr Azizi pursuant to s 60 of the Land Acquisition Act should be the statutory maximum.

Costs

The decision of Wilcox J in Banno v Commonwealth of Australia (1993) 45 FCR 32 (Banno) that compulsory acquisition of private real property, when subject to curial proceedings to determine the quantum of compensation to be paid to the dispossessed owner, will usually be followed by a costs order in favour of the dispossessed owner has been adopted as applicable in this jurisdiction pursuant to the Land Acquisition Act by the Court of Appeal in Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 (Dillon) at [70] to [72].
Even in circumstances where the result is a mixed one, where a dispossessed owner does not achieve complete success, but only succeeds on some elements, nonetheless, it is appropriate to make a costs order in favour of the dispossessed owner (Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404).
Here, although the Azizi interests have only partially succeeded (as their claim for R4 High Density Residential zoning has not been successful), nonetheless, they have, collectively, succeeded to the extent that I have not upheld the Council's position that the R2 Low Density Residential zoning as at the date of acquisition should be sustained.
However, Mr Azizi has not succeeded on the contested position arising from his stamp duty equivalent compensation payment claim but has on his claim pursuant to s 60 of the Land Acquisition Act.
Although the positions of Mr Azizi and Alnox differ in their individual outcomes, it seems to me that the effective overall result of the proceedings (being heard, together with evidence in one being evidence in the other as relevant) should result in a common costs position arising in each instance.
As a consequence, unless the Council wishes to contend for some alternative position in Mr Azizi’s and/or Alnox's proceedings, I am satisfied that the appropriate order should be, in each matter, that the Council pays the cost of the dispossessed owner.

Offsets for overpayment (if any)

In [34], I noted the outcome of the proceedings before me concerning the requirement in s 68(2)(a) of the Land Acquisition Act for a 90% (total) advance payment (plus statutory interest) to be made to Mr Azizi and to Alnox based on the Valuer General's compensation determination. I also there noted the Council's unsuccessful appeal against that determination. The decision of the Court of Appeal in that appeal also discussed whether or not I had power to make an order pursuant to s 48 of the Land Acquisition Act to order repayment of any overpayment which might arise after my compensation determinations with respect to Mr Azizi and Alnox were compared to these 90% (plus statutory interest) advance payments. The Court of Appeal’s discussion and conclusion on this point that this Court had those powers were set out at [33] and [34] of that decision.
At [44], I set out the relevant elements of s 48(6) of the Land Acquisition Act potentially engaged for such purposes. They do not require repetition here.
I am satisfied that, for the purposes of finalising all aspects of the compensation claims made by Mr Azizi and Alnox, such orders as may be necessary should be made to give effect to the appropriate overall outcome in these proceedings. It therefore follows that the directions given below for the finalisation of these proceedings encompass any requirement for orders to address this potential repayment issue with respect to Mr Azizi and/or Alnox as appropriate.

Conclusion

In summary, I have concluded that:

the appropriate underlying development potential for the site owned by the Azizi interests as at the date of acquisition was as a site zoned R3 Medium Density Residential resulting in the development yield to be derived as set out at line 6 of Annexure A to this judgement;

Mr Azizi is entitled to compensation of the relevant maximum amount for “Disadvantage resulting from relocation” pursuant to s 60 of the Land Acquisition Act;

Mr Azizi is not entitled to a stamp duty compensation payment pursuant to s 59(1)(d) of the Land Acquisition Act as a consequence of the operation of s 61(b) of the Act. However, if I am wrong in this conclusion and he is so entitled, such a payment would be calculated on the basis of the sum representing the complete quantum of his portion of the market value compensation to which the Azizi interests are entitled;

any obligation pursuant to s 48 of the Land Acquisition Act on Mr Azizi and/or Alnox to repay any portion of the 90% advance payments already made is to be addressed in the overall orders to be settled by the parties’ legal representatives pursuant to the directions made below for the finalisation of these proceedings; and

the Council is to pay the costs of the proceedings for Mr Azizi and for Alnox unless it wishes to contend for some alternative costs order.

Directions

The parties are directed to settle orders to give effect to all elements noted under the heading “Conclusion” above. If settled orders signed by the legal representatives of the parties are provided to my Associate by the close of business on Friday, 28 January 2022, I will make orders in chambers the following Monday, at the commencement of the 2022 law term, to give effect to them.
If there is any dispute between the legal representatives of the parties as to the orders appropriate to give effect to this decision or the Council wishes to propose an alternative costs’ outcome, the matter is to be listed for mention before me at 8.30 AM on Friday 4 February 2022 with the parties to notify the Registry by on-line court of the necessity of such a mention.
If the Council wishes to seek some alternative costs order other than that it pays the costs of Mr Azizi and/or of Alnox, the process for listing the matter for mention before me on Friday 4 February 2022 is to be triggered by the Council's legal representatives with notice to be given to the legal representatives of the Azizi interests of the necessity for such a mention.

**********

Annexure A

Decision last updated: 21 January 2022

Medium Neutral Citation:	Azizi v Council of the City of Ryde; Alnox Pty Limited v Council of the City of Ryde (No 2) [2022] NSWLEC 3
Hearing dates:	22, 23, 24, 28 and 29 June 2021
Date of orders:	To be advised
Decision date:	21 January 2022
Jurisdiction:	Class 3
Before:	Moore J
Decision:	See directions for bringing in orders at [515] to [517]
Catchwords:	COMPENSATION - compulsory acquisition of land for public recreation - land formerly zoned Low Density Residential - dispute as to whether there was up-zoning potential for increased density residential development at time of acquisition - disagreement between expert planners - dispute as to extent of potential future higher density development - disagreement between expert planners - consideration of relevant town planning issues - potential up-zoning existed at time of acquisition - expert valuers in agreement on the valuation to be applied on various alternative potential development scenarios - agreed valuation to be applied to determined development potential COMPENSATION - claim for stamp duty equivalent payment by resident owning one of three allotments compulsorily acquired - stamp duty equivalent payment claim for potential purchase of replacement residence – dispute as to validity of claim - dispute as to whether stamp duty equivalent, if to be awarded, should be calculated by reference to agreed proportion of total market value of acquired land or be discounted from it - no statutory basis for the claim – claim rejected - stamp duty equivalent payment to be calculated on full market value of acquired residential property if claim had been valid COMPENSATION - claim for compensation for disadvantage resulting from relocation - statutory maximum set for such compensation - statutory factors required to be considered in assessing such compensation - claim for maximum statutory amount - appropriate to award maximum statutory amount
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991, ss 23, 48, 56, 59 – 61, 66 and 68 Land Acquisition (Just Terms Compensation) Amendment Act 2016 Ryde Local Environmental Plan 2014 State Environmental Planning Policy (Infrastructure) 2007, cl 101
Cases Cited:	Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde [2021] NSWLEC 40 Banno v Commonwealth of Australia (1993) 45 FCR 32 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 Council of the City of Ryde v Azizi [2019] NSWSC 1605 Council of the City of Ryde v Azizi [2021] NSWCA 165 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33 Roads and Maritime Services v United Petroleum Pty Ltd (2018) 236 LGERA 389; [2019] NSWCA 41 Roberts v Commissioner for Main Roads (1987) 63 LGRA 428 Robertson v Commissioner for Main Roads (1987) 63 LGRA 420 Stephen Anthony Horton and Kay Elizabeth Horton v Wyong Shire Council (No.2) [2005] NSWLEC 45 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 251 Sydney Water Corporation v Caruso and Ors (2009) 170 LGERA 298; [2009] NSWCA 391 Terrence John Fitzgerald & Wendy Patricia Fitzgerald v Blacktown City Council [1994] NSWLEC 40 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2007] HCA 5
Texts Cited:	Follett Publishing Company, Latin-English Dictionary, 1967 Macquarie Dictionary Publishers, Macquarie English Dictionary (2020, online) Oxford English Dictionary, Oxford English Dictionary (2021, 3rd ed, online)
Category:	Principal judgment
Parties:	168439 of 2021 Raymond Boutros Azizi (Applicant) Council of the City of Ryde (Respondent) 168457 of 2021 Alnox Pty Limited (Applicant) Council of the City of Ryde (Respondent)
Representation:	Counsel: Mr I Hemmings SC/Mr Tim Poisel, barrister (Applicant in each matter) Mr M Hall SC/Ms J McKelvey, barrister (Respondent in each matter) Solicitors: Madison Marcus (Applicant in each matter) Bartier Perry (Respondent in each matter)
File Number(s):	168439 and 168457 of 2021
Publication restriction:	No