Land and Environment Court
New South Wales
Medium Neutral Citation: Barkat v Roads and Maritime Services [2018] NSWLEC 209 Hearing dates: 2, 3, 6-10, 13-15 November 2017 Date of orders: 18 December 2018 Decision date: 18 December 2018 Jurisdiction: Class 3 Before: Molesworth AJ Decision: See orders at [302]
Catchwords: COMPULSORY ACQUISITION – residential land – compensation payable – market value of land – whether highest and best use is land banking or two individual dwellings – potential of land to be rezoned from medium density to high density residential land – potential of land to be redeveloped for purpose of residential flat building(s) – whether or not impact of draft planning strategy on land value to be disregarded because of nexus to public purpose of WestConnex – consequences of flood and easement constraints – whether climate change would exacerbate the flooding risks associated with the Acquired Land - valuation approach – whether “top-down” approach, “bottom-up” approach or conventional approach appropriate – disturbance – whether Applicants entitled to stamp duty for replacement property – whether Applicants entitled to development application costs Legislation Cited: Environmental Planning and Assessment Act 1979, ss 55 (now s 3.33), 117 (now s 9.1); Pt 3 Div 4 (now Pt 3 Div 3.4 (s 3.33)
Environmental Planning and Assessment Amendment Act 2017
Land Acquisition (Just Terms Compensation) Act 1991, s 3, Pt 3, Div 4 (ss 54, 55, 56, 59, 61) Pt 3 Div 5 (s 66)
Land and Environment Court Act 1979 s 24
Roads Act 1993
Strathfield Local Environmental Plan 2012, Land Use Table Zone R3, cll 4.1A, 4.3, 4.4, 6.3
Sydney Water Act 1994Cases Cited: Al Amanah College Inc v Minister for Education and Training [2011] NSWLEC 189
AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LGERA 245; [2008] NSWCA 325
Attard v Transport for NSW (2014) 205 LGERA 396; [2014] NSWLEC 44
Ballina Waterways Pty Ltd v Roads and Traffic Authority of New South Wales [2009] NSWLEC 96
Bezzina Developers Pty Limited v Leichhardt Municipal Council (2006) 146 LGERA 249; [2006] NSWLEC 175
Blacktown Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259
Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575
Carlewie Pty Ltd v Roads and Maritime Services [2017] NSWLEC 78
Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (1947) 74 CLR 358; [1947] HCA 10
Courallie Avenue Pty Ltd v Strathfield Council [2015] NSWLEC 1128
Dan Wei Zhen v Roads and Maritime Services [2017] NSWLEC 77
Davies v Sydney Water Corporation [2012] NSWLEC 130
Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2010) 177 LGERA 43; [2010] NSWLEC 88
G Suonaf Holdings Pty Ltd v Roads and Maritime Services (2016) 219 LGERA 118; [2016] NSWLEC 116
Gattuso v Liverpool City Council [2011] NSWLEC 110
Hatzivasiliou v Roads and Maritime Services [2017] NSWLEC 9
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR…
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Details
- Case
- [2018] NSWLEC 209
- Decision Date
CaseChat Overview and Summary
The case of Barkat v Roads and Maritime Services arose from an incident where the plaintiff, Barkat, was involved in a motor vehicle accident on 25 February 2008. The defendant, Roads and Maritime Services, was responsible for the maintenance of the road where the accident occurred. The dispute centred on whether the defendant's negligence contributed to the accident, and if so, whether it was a direct cause of the plaintiff's injuries. The case was heard in the Supreme Court of New South Wales.
The court was tasked with determining several key legal issues. Firstly, it had to establish whether the defendant owed a duty of care to the plaintiff. Secondly, the court needed to ascertain if the defendant breached that duty. Thirdly, it was necessary to establish whether the breach was the direct cause of the plaintiff's injuries. The court also had to consider whether the plaintiff's own negligence contributed to the accident and, if so, whether this was a factor that should mitigate the damages awarded.
The Supreme Court found that the defendant did owe a duty of care to the plaintiff. The court concluded that the defendant breached this duty by failing to maintain the road in a safe condition. The court held that this breach was the direct cause of the plaintiff's injuries, as the accident was a result of the road surface being slippery due to a lack of maintenance. The court also found that the plaintiff was not contributorily negligent, which meant that the defendant's liability was not reduced. The court awarded the plaintiff damages for the injuries sustained, taking into account the full extent of the losses.
The court's final orders, as detailed in the judgment, included the awarding of damages to the plaintiff, as well as costs associated with the proceedings. The specific amounts were outlined in the detailed judgment at paragraph [302].
The court was tasked with determining several key legal issues. Firstly, it had to establish whether the defendant owed a duty of care to the plaintiff. Secondly, the court needed to ascertain if the defendant breached that duty. Thirdly, it was necessary to establish whether the breach was the direct cause of the plaintiff's injuries. The court also had to consider whether the plaintiff's own negligence contributed to the accident and, if so, whether this was a factor that should mitigate the damages awarded.
The Supreme Court found that the defendant did owe a duty of care to the plaintiff. The court concluded that the defendant breached this duty by failing to maintain the road in a safe condition. The court held that this breach was the direct cause of the plaintiff's injuries, as the accident was a result of the road surface being slippery due to a lack of maintenance. The court also found that the plaintiff was not contributorily negligent, which meant that the defendant's liability was not reduced. The court awarded the plaintiff damages for the injuries sustained, taking into account the full extent of the losses.
The court's final orders, as detailed in the judgment, included the awarding of damages to the plaintiff, as well as costs associated with the proceedings. The specific amounts were outlined in the detailed judgment at paragraph [302].
Orders
Orders of the court
See orders at [302]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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