Baric v Roads and Traffic Authority of New South Wales

[2004] NSWLEC 701

Land and Environment Court

of New South Wales

CITATION:	Baric v Roads and Traffic Authority of New South Wales [2004] NSWLEC 701
PARTIES:	APPLICANT: Tom Baric RESPONDENT: Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	30151 of 2004
CORAM:	Lloyd J
KEY ISSUES:	Compulsory Acquisition of Land :- engineering and town planning issues
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 s 39 and s 42 Liverpool Local Environmental Plan 1997
CASES CITED:	Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	25/10/2004 and 26/10/2004
EX TEMPORE JUDGMENT DATE :	10/26/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr J J Webster SC and Ms F Sinclair (barrister) SOLICITORS: Henshaws RESPONDENT: Mr R P L Lancaster (barrister) SOLICITORS: Blake Dawson Waldron

JUDGMENT:

- 6 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 26 October 2004

BARIC v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES [2004] NSWLEC 701

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an objection by the applicant, Mr T Baric, to an amount of compensation offered by the respondent, the Roads and Traffic Authority of New South Wales (“the RTA”), for the compulsory acquisition of land at Prestons near Liverpool. The land was acquired by notice of acquisition on 10 October 2003 for the purpose of constructing the M7 motorway, known as the Western Sydney Orbital.

2 Mr Baric’s land originally comprised an area of 28,381 square metres, and was known as lot 5 in deposited plan 2845. The RTA acquired part of that land being an area of 20,690 square metres and now known as lot 14 in deposited plan 1053436. Mr Baric was left with a residue of 7,691 square metres now known as lot 7 in deposited plan 1053436.

3 By a compensation notice dated 13 November 2003 issued under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”), the RTA offered Mr Baric $2,441,000.00 as representing the market value of the land taken, together with $4,500.00 for disturbance - a total of $2,445,500.00

4 On 10 February 2004, Mr Baric lodged a claim for compensation under s 39 of the Just Terms Act for $4,551,800.00 as representing the market value of the land taken, together with $240,000.00 for disturbance.

5 The original parcel had a frontage to two roads, Skipton Lane to the east and Ash Road to the west. The land is within three zones under the Liverpool Local Environmental Plan 1997: 2(a) Residential, 5(a) Special Uses - Drainage, and 6(a) Recreation - Public. The land acquired by the RTA is within the 5(a) Special Uses - Drainage zone, the 6(a) Recreation - Public zone and part of the 2(a) Residential zone. The residue remaining in the ownership of Mr Baric is within the 2(a) Residential zone together with a small portion zoned 5(a) Special Uses - Drainage.

6 The Liverpool Local Environmental Plan 1997 allowed the owner of land zoned 5(a) and 6(a), among other things, to require the council to acquire the land. The parties agree that the underlying zoning of the land zoned 5(a) and the land zoned 6(a) would have been 2(a) Residential. These facts would of course have been known to any hypothetical purchaser of the land.

7 There is however a physical restraint to any development on the land. A creek known as Maxwells Creek bisects the land. The creek lies within a flood plain. Approximately 57 per cent of the original parcel is inundated in a 1 in 100 year flood, although such inundation would be generally shallow, typically 0.4 of a metre in depth.

8 The available area of developable land depends upon the flood strategy to be adopted, and this in turn depends upon whether flood control works and drainage works are carried out in conjunction with the owners of neighbouring properties or in isolation.

9 Mr D Bewsher is an engineer who has been involved in designing flood control measures for Maxwells Creek on behalf of Liverpool Council for some years. He has prepared a number of draft reports for the council including one in particular as long ago as April 1999.

10 If a joint scheme were adopted involving neighbouring properties, there would be a 70 metre wide excavated drainage corridor and riparian zone across the land which would not be developable. This would allow by filling parts of the remainder of the site some 79 per cent of the total site to be developed for residential purposes, absent the purpose of the compulsory acquisition.

11 If, however, the subject land were to be developed in isolation, then with filling part of the land there would be a somewhat smaller area available for residential purposes in the short term and perhaps additional land in the longer term when the adjoining parcels are developed.

12 The parties are agreed that the developable area if the total site were to be developed in isolation is 17,406 square metres. If, however, a joint drainage scheme were to be adopted then the developable area would be increased by a further 6,016 square metres. That is a total developable area of 23,422 square metres with a riparian and drainage area of 4,959 square metres. These figures have been agreed upon by the parties.

13 There is a dispute between the parties as to whether, and if so when, any development for residential purposes would have occurred on the land absent the proposal which led to the compulsory acquisition. Mr G Rhodes, the town planner called for the applicant, has expressed the opinion that the subject land would have been developed before the date of acquisition including the overall drainage scheme had it not been for the announcement of the M7.

14 The town planner called by the respondent, Mr H M Sanders, is of the view that the overall drainage scheme within the area would not have been in place as at the date of acquisition, irrespective of the announcement of the M7. This is because of the inherent difficulties in implementing such a scheme.

15 Mr Bewsher has expressed the opinion, based on his experience as a consulting engineer and his dealings with the council and developers in the area, that at the date of the acquisition, if the Western Sydney Orbital had not been proposed, this land would probably have been developed for residential purposes at or by the date of compulsory acquisition. He refers in particular to the fact that Development Control Plan No. 31, which was made in December 1995 specifies a drainage corridor 45 metres in width through the subject land and has expressed the opinion that development would most likely have proceeded up to the boundary of that drainage corridor, subject to the identification of other restraints.

16 The subject land is part of a large release area and is, as I understand it, part of precinct five of that larger release area. It was rezoned to its present zoning in 1992. The bulk of the area in that precinct has already been developed and was developed, as Mr Rhodes has pointed out, by 2001.

17 The opinion of Mr Sanders is that this area, the area in which the subject land is situated, had not been developed primarily because of its inherent problems, which includes an area of environmentally sensitive land immediately to the north and also some distance to the south of the subject land, and he points to the need for the approval of a number of agencies for the drainage scheme proposed by Mr Bewsher as a solution to the drainage problems of the area.

18 According to Mr Bewsher, the Western Sydney Orbital proposal was the primary reason why development did not take place on this land by the date of compulsory acquisition. The land could have been developed by just a few owners or perhaps one developer could have bought a number of parcels. Alternatively parts of the scheme could have been built in stages. Mr Bewsher says that absent the Western Sydney Orbital, this land would have been already developed and would have been developed before the date of compulsory acquisition. He also referred to the fact that once an area has been released for urban development, it is generally quickly snapped up and developed typically within two years.

19 The facts that I have stated have emerged from both the written reports that have been tendered in evidence and from oral evidence given by the three experts that I have mentioned. The conclusion to which I come to is based primarily on the following facts. The land was rezoned in 1992. In December 1995 the council made Development Control Plan No. 31. That would have been available to any prospective purchaser in October 2003. It shows that there is a 45 metre wide drainage reserve corridor through the land. A factor influencing any prospective purchaser would be the well recognised fact that a development control plan is something that has been held to be a focal point or a fundamental element in the consideration of any development on the land, see Zhang v Canterbury City Council (2001) 51 NSWLR 589.

20 Among the other factors to which I have regard, in particular, is the fact that the more easily developed land within precinct five had already been developed by about 1998, by which time the more difficult land - the subject land - would then be developed. My impression is that the subject land was not developed because by then the Western Sydney Orbital was a well known proposal which would have inhibited any development of the land.

21 The fact that the land has some inherent constraints does not, I think, mean that it would not have been developed. An example was given by Mr Rhodes in evidence of the Prestons industrial area which has similar inherent problems, which is not affected by the Western Sydney Orbital but has proceeded to development.

22 The conclusion to which I have come, therefore, is that as at the date of acquisition, 10 October 2003, the lands bounded generally by Skipton Lane, Ash Road, Kurrajong Road and Camden Valley Way would have been developed for urban purposes, or would have been in the course of being so developed, but for the Western Sydney Orbital. In developing that land, an area would have been required for a riparian corridor or zone along the course of Maxwells Creek 70 metres wide as described in evidence of Mr Bewsher. A hypothetical purchaser would have been aware of that and would have regarded that strip as being not developable. The balance of the land would have been developable.

23 That is the conclusion I have come to on the basis of the material adduced in Court both written and oral, in relation to the engineering and town planning issues. The Court will now proceed to hear the evidence of the valuation issues.

I hereby certify that the preceding 23 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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