JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 & 29 November 2016
DATE OF JUDGMENT:	1 August 2017
CASE MAY BE CITED AS:	Barilla v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2017] VSC 349

---

VALUATION AND COMPENSATION — Amendment to Hume Planning Scheme — Public Acquisition Overlays imposed on Applicants’ property — Applicants entered contract of sale of property — Delay in settlement — Whether costs of sale, capital gains tax advice and the value of lost opportunity in the form of interest foregone on the proceeds of sale constitute financial loss suffered as a natural, direct and reasonable consequence of the reservation — Whether ‘the value of land’ in s 104 of the Planning and Environment Act 1987 means ‘value to the owner’ — Planning and Environment Act 1987 ss 98, 99(b), 101, 104 and 106; Land Acquisition and Compensation Act 1986 ss 35, 37.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr S Morris QC with Mr G Peake	Rennick & Gaynor Solicitors
For the Respondent	Mr S Goubran	Russell Kennedy Lawyers

HER HONOUR:

Until 5 June 2014, Mr and Mrs Barilla were the registered proprietors of 15.26 hectares of land at 15 Gunns Gully Road, Mickleham. They had acquired the land on 11 April 2001 with the intention of developing it as a propagating plant nursery and as a tourist attraction that included an animal nursery, water ponds, an olive grove, a vineyard, maize, visitors’ centre and car-parking. They also intended, ultimately, to live there.

Some, but not all, of these purposes were achieved. Planning and other permits were sought and obtained for the development and use of the land as contemplated, and works were carried out.

On 13 August 2009, Amendment C90 (Part 1) to the Hume Planning Scheme was published in the Victoria Government Gazette. The amendment imposed a Public Acquisition Overlay (‘PAO1’) on the Barillas’ land for the widening of the Hume Highway.

On 6 August 2010, Amendment VC68 to the Victoria Planning Provisions was published in the Victoria Government Gazette. The amendment imposed a further Public Acquisition Overlay (‘PAO3’) on the subject land to facilitate the upgrading of the Hume Highway and the construction of the Outer Metropolitan Ring Road.

Between them PAO1 and PAO3 reserved 6.16 hectares — more than a third of the Barillas’ land — for public purposes.

Following the imposition of PAO3 on 6 August 2010, having received uncertain advice as to when the Roads Corporation (‘Authority’) might acquire the subject land, the Barillas decided to exercise their right to sell the land pursuant to s 106 of the Planning and Environment Act 1987 (Vic) (‘PE Act’).

On 28 September 2013, the Barillas sold the land for $3.2 million. The contract was due to settle on 24 March 2014, but settlement did not…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Barilla v Roads Corporation

Details

AGLC: Barilla v Roads Corporation [2017] VSC 349
Case: [2017] VSC 349
Decision Date: 1 August 2017

CaseChat Overview and Summary

The matter of Barilla v Roads Corporation concerned a dispute arising from the imposition of Public Acquisition Overlays on the applicants' property by the Roads Corporation, which led to a delay in the settlement of the property sale. The applicants sought compensation for the financial loss they incurred due to the delay, including costs of sale, capital gains tax advice, and the value of lost opportunity in the form of interest foregone on the proceeds of sale. The court was tasked with determining whether these costs constituted a financial loss suffered as a natural, direct, and reasonable consequence of the reservation, and if the term "value of land" in section 104 of the Planning and Environment Act 1987 included "value to the owner."

The primary legal issue was the interpretation of the term "value of land" under section 104 of the Planning and Environment Act 1987, and whether it encompassed the value to the owner, which would include the applicants' incurred costs and lost opportunities. The court also needed to consider whether the applicants' financial losses were a natural, direct, and reasonable consequence of the Public Acquisition Overlays imposed by the Roads Corporation, as required by the relevant sections of the Planning and Environment Act and the Land Acquisition and Compensation Act 1986.

The court held that the term "value of land" in section 104 of the Planning and Environment Act 1987 should be interpreted to include the value to the owner, which would encompass the applicants' incurred costs and lost opportunities. The court found that the applicants' financial losses were a natural, direct, and reasonable consequence of the Public Acquisition Overlays imposed by the Roads Corporation. Consequently, the applicants were entitled to compensation for the financial loss they suffered as a result of the delay in the settlement of the property sale. The court found in favour of the applicants and ordered the Roads Corporation to compensate them for their incurred costs and lost opportunities.

Orders