Barkat v Roads and Maritime Services

[2018] NSWLEC 209

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 1994
Cases 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 547 Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196; [1978] HCA 28; [1978] HCA 28 Jameson v Rail Corporation New South Wales [2014] NSWLEC 83 Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 Kirela Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) (2004) 132 LGERA 90; [2004] NSWLEC 68 Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430 Macarbell Pty Limited v Roads & Traffic Authority of New South Wales [2006] NSWLEC 366 Maggiotto v Roads and Traffic Authority of New South Wales [2006] NSWLEC 54 Maidment v Roads and Traffic Authority of New South Wales (2006) 153 LGERA 249; [2006] NSWLEC 606 McDonald v Roads & Traffic Authority of New South Wales (2009) 169 LGERA 352; [2009] NSWLEC 105 Melino v Roads and Maritime Services, [2018] NSWCA 251 MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 Moloney v Roads and Maritime Services, [2018] NSWCA 252 New South Wales Cremation Company Pty Limited v Valuer General [2016] NSWLEC 135 Pamalco Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 [No 3] (1991) 71 LGRA 441 R v Murphy (1990) 71 LGRA 1; [1990] HCA 42 River Bank Pty Ltd v The Commonwealth (1974) 31 LGRA 244 Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222; [2001] NSWCA 251 Rocco Fraietta v Roads and Maritime Services [2017] NSWLEC 11 Sandhurst Trustees Limited v Roads and Traffic Authority of New South Wales [2006] NSWLEC 243 Sebastian Cannavo and Alfia Jennifer Busa v Roads and Traffic Authority of New South Wales [2004] NSWLEC 570 Speter v Roads and Maritime Services [2016] NSWLEC 128 The Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Category:	Principal judgment
Parties:	Mr Mark Barkat (First Applicant) Mrs Rubina Barkat (Second Applicant) Roads and Maritime Services (Respondent)
Representation:	COUNSEL: Mr P Tomasetti SC and Mr S Nash (Applicants) Ms S Duggan SC, Ms A Hemmings and Mr H Grace (Respondent)   SOLICITORS: Shaw Reynolds Lawyers (Applicants) Ashurst (Respondent)
File Number(s):	2016/158064

TABLE OF CONTENTS

Applicants object to offer of compensation for compulsory acquisition of land in Homebush

The Underwood Land

The evidence

Mr Ellis’ valuation approach

Mr Lunney’s valuation approach

The relevant statutory provisions

Land Acquisition (Just Terms Compensation) Act 1991

Strathfield Local Environmental Plan 2012

Environmental Planning and Assessment Act 1979

Preliminary Note

Planning proposals and Ministerial Directions

The final positions of the parties on compensation

The agreed valuation principles

Highest and best use – the Applicants’ submissions

Hydrological evidence

Easement evidence

Town planning evidence

Summary of evidence regarding the highest and best use

Highest and best use – RMS’ submissions

The constraints of the Underwood Land

Town planning constraints

Flooding constraints

Easement constraints

Potential for rezoning

The Draft PRUTS

The potential for rezoning – the evidence

Timing for potential rezoning

Development potential and development consent

Summary of evidence regarding the highest and best use

Direct comparison analysis – the Applicants’ submissions

The “top-down” approach

The “bottom-up” approach

Comparable sales approach – RMS’ submissions

Disturbance – the Applicants’ submissions

Disturbance – RMS’ submissions

Stamp duty

Development application

Costs – the parties’ positions

Consideration and Determination

The public purpose and the status of the Draft PRUTS

Relevant case law on public purpose and the statutory disregard

The highest and best use

Land banking – a legitimate use

Hydrological issues – implications

Floodway issues – implications of climate change

Market value – determination

The disturbance claim

Disturbance claim – agreed items under s 59(1)(a), (b) and (f)

Rocco Fraietta v Roads and Maritime Services – useful guidance

Disturbance claim – the new dwelling DA application costs and stamp duty

Costs

Orders

Annexure A - References to Particular Evidence on Public Purpose

Annexure B - Consolidated R3 Comparable Sales

Annexure C - Court’s Adjustments to Relevant Comparable Sales

Judgment

Applicants object to offer of compensation for compulsory acquisition of land in Homebush

1. On 18 December 2015, the Respondent, Roads and Maritime Services (RMS) compulsorily acquired land comprising Lot 101 in Deposited Plan 874681, Lot X in Deposited Plan 359920 and Lot 3 in Deposited Plan 13612, collectively known at the time as 90-92 Underwood Road, Homebush (the Underwood Land). RMS acquired the Underwood Land under the Roads Act 1993 (the Roads Act) for the purpose of the WestConnex M4 East Project (the WestConnex Project).

2. Immediately prior to the compulsory acquisition, Mr Mark Barkat and Mrs Rubina Barkat (the Applicants) were the registered proprietors of the Underwood Land.

3. On 7 January 2016, the Valuer-General determined the amount of compensation for the compulsory acquisition of the Underwood Land in the sum of $3,095,590 (comprising $2,900,000 for market value and $195,590 for disturbance). Accordingly, RMS offered compensation to the Applicants in the sum of $3,095,590.

4. On 5 April 2016, the Applicants commenced these Class 3 proceedings by way of a Class 3 Application objecting – pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) – to the amount of compensation offered by RMS for the acquisition of the Underwood Land.

5. Initially, in their Class 3 Application, the Applicants sought an order from the Court that the compensation payable to the Applicants by RMS for the acquisition of the Underwood Land be determined in the sum of $45,007,262. However, the Applicants have since revised their claim and seek an order from the Court that the compensation payable be determined in the sum of $23,213,219.04 (comprising $21,900,000 for market value and $1,313,219.04 for disturbance).

6. In sharp contrast, RMS contends that the Court should determine the compensation payable to the Applicants in the sum of $3,267,110.27 (comprising $3,200,000 for market value and $67,110.27 for disturbance).

7. It falls to the Court to resolve this significant dispute between the parties as to the amount of compensation which RMS must pay the Applicants for the compulsory acquisition of the Underwood Land: Just Terms Act, Div 5 of Pt 3 and Land and Environment Court Act 1979, s 24.

8. In order so to do it is necessary to first: identify some of the fundamental characteristics of the Underwood Land; set out the most relevant statutory provisions; provide an overview of the significant body of evidence in the proceedings; delineate the final positions of the parties on the appropriate amount of compensation; and summarise the submissions of the parties on the highest and best use of the Underwood Land, the appropriate valuation method, and disturbance.

The Underwood Land

9. The lots comprising the Underwood Land are identified in the following survey plan [Ex A, C01, p 5]. The neighbourhood of the Underwood Land is illustrated by the “Nearmap” photograph that also follows, extracted from the statement of evidence of the Applicants’ planner, Mr Murray Donaldson [Ex A, C01, p 6]. To be noted from the photograph is the abuttal of the Underwood Land to Underwood Road, its proximity to the M4 Western Motorway and the location of Ismay Avenue to the rear.

10. The drainage channel, which figures largely in this case, is shown on the survey plan diagonally traversing the Underwood Land between the two dwellings. Taking care to note that the photograph is swivelled 45 degrees clockwise to the survey plan, the drainage channel is not visible in the photograph due to the obscuring effect of the trees that were extant on the property prior to acquisition.

11. The Underwood Land is the land encompassed by the red border in the survey plan (with a site area of 1,705.3 m2). At the relevant date, the Underwood Land was improved by two freestanding dwellings, each used for the purpose of a boarding house. In particular, there was an extant brick dwelling on 90 Underwood Road used for the purpose of a boarding house and an extant weatherboard dwelling on 92 Underwood Road also used for the purpose of a boarding house.

12. The Court was advised by the Applicants’ senior counsel that the boarding house use in both dwellings was unlawful because consent had never been sought for such a use. For present purposes, the Court simply notes the submission of Mr Tomasetti SC, when he said: “I think that nothing turns on it, but the use wasn’t lawful because consent hadn’t been sought for the use. It doesn’t matter, I don’t need to explain it, but if I do I think I’m instructed that there was just no understanding the consent was required. It doesn’t matter. Two dwelling houses, they were occupied, they were earning an income …” (T43.17-21). In the circumstances, if there had been an increase in the value of the Underwood Land by reason of the use of both dwellings for the purposes of boarding houses without the necessary consents, the statutory disregard provided by s 56(1)(c) of the Just Terms Act would have required any such increase in value to be disregarded.

13. Importantly, there is no dispute that the Underwood Land was flood liable and burdened by the following three easements in favour of Sydney Water:

1. Easement A – A 10.06 m wide drainage easement which had a 225 mm sewer pipe running along it and a dwelling constructed over part of it.

2. Easement B – A 3.66 m wide (variable) open stormwater drainage channel easement (with a driveway crossing and footbridge across it).

3. Easement C – A 3.66 m wide drainage easement which had a 300 mm sewer pipe running along it and a dwelling constructed over part of it.

14. It must also be noted that the Underwood Land was zoned as R3 ‑ Medium Density Residential land (R3 Zone land) under the Strathfield Local Environmental Plan 2012 (SLEP 2012).

The evidence

15. The evidence in these proceedings included both expert and lay evidence. The lay evidence was in the form of an affidavit from the First Applicant, Mark Barkat, sworn 19 May 2016 (the Barkat affidavit) (Ex A.B01). To the Barkat affidavit there were annexed the copies of 33 documents (Ex A, B01.1‑B01.33) which were addressed in the course of the deponent’s evidence set out in the affidavit. Although Mr Barkat had been scheduled to be called to speak to his affidavit and be available for cross-examination, by arrangement between the parties’ counsel he was not in the end called, rather his affidavit was formally read into evidence without overall objection from RMS. RMS only objected to par 10 and to one sentence in par 16, which objections the Court addresses later in this judgment at [271] and [280]. As Mr Barkat was not required for cross-examination, the Applicants submitted that his evidence should be accepted (Applicants’ outline of closing submissions at par 119).

16. As for the expert evidence, it was produced by 12 professionally qualified persons and pertained to the following areas of expertise: town planning, land surveying, quantity surveying, hydrology, easements and valuation. In this respect, the Applicants provided the following helpful (but not exhaustive) table:

Evidence	Applicants	Respondent	Joint expert reports
Town planning	Statement of Evidence of Mr Murray Donaldson	Statement of Evidence of Mr Garth McKenzie	Joint Statement of Evidence dated 18 August 2017
Land surveying	Statement of Evidence of Mr Adam Richardson and Ms Tasy Moratis	Nil	Nil
Quantity surveying	Statement of Evidence of Mr Michael Dakhoul	Statement of Evidence of Mr Stephen Bolt	Joint Statement of Evidence dated 29 September 2017
Hydrology	Statement of Evidence of Dr Brett Phillips	Statement of Evidence of Dr Daniel Martens	Joint Statement of Evidence dated 4 August 2017
Easements	Supplementary statement of Mr Michael Hodges dated 18 October 2017	Statement of Evidence of Dr Daniel Martens	Joint Statement of Evidence dated 18 August 2017
Valuation	Statement of Evidence of Mr Mark Ellis Supplementary report dated 18 September 2017	Statement of Evidence of Mr David Lunney	Joint report dated 20 October 2017 Joint report dated 1 November 2017 Joint report dated 4 November 2017”

17. Given the nature of the hearing of these proceedings as a “paperless trial”, the written expert evidence, as contained within the substantial Court Book (comprising 140 documents), was admitted into evidence as Ex A and the Tender Bundle (containing 100 documents) was admitted into evidence as Ex B on the same USB stick. Many of the 100 documents in the Tender Bundle were substantial public reports addressing planning and infrastructure policy, some of which were many hundreds of pages in length. In addition to these 240 electronic exhibits, three documents were tendered into evidence: a bundle of relevant photographs – Ex C; an LJ Hooker advertisement – Ex D; and an e-mail from Mr Donaldson, the Applicants’ town planner – Ex E.

18. One significant aspect of the Applicants’ evidence is that which relates to “conceptual examples of potential redevelopment schemes of the [Underwood Land]”. In particular, the Applicants relied upon the following three schematic concepts of residential flat building developments:

1. Schematic Option 1A – this proposed redevelopment option prepared by Ghazi Al Ali Architect comprises two high density residential flat buildings (106 units) divided by the existing stormwater channel with basement parking extending under the stormwater channel.

2. Schematic Option 1B – this proposed redevelopment option prepared by Ghazi Al Ali Architect comprises two high density residential flat buildings (106 units) divided by the existing stormwater channel with basement parking restricted to the northern side of the stormwater channel.

3. Schematic Option 2 – this proposed redevelopment option prepared by Moderinn Pty Ltd comprises one high density residential flat building which features a rebuilt stormwater channel that is incorporated into the building and basement superstructure.

19. It should be noted that, in response to RMS’ objection, the Applicants pressed for a three-dimensional model of the above schematic options to be admitted into evidence as an exhibit. After confirming with the Applicants’ senior counsel that the only purpose of the model was to visualise what may or may not be possible on the Underwood Land, the Court ruled that the model would remain as only being marked for identification (MFI 1): T601.

20. As is to be expected, the Applicants and RMS focused upon what each understood to be the most pertinent and relevant aspects of the overall body of evidence in their respective submissions. Hence, given the detailed summary of submissions below, it is not necessary to set out here an independent account of all the relevant evidence before the Court – that task would be well–nigh impossible. This does not mean that the Court has simply relied on each party’s account of the evidence. Rather, the Court has independently examined and considered what it has determined within the evidence is most relevant to determining the issues in contention. As the aggregate size of the Court Book and the Tender Bundle amounted to many thousands of pages, the Court’s pathway through this material necessarily had to be guided by the parties and their experts drawing attention to pertinent passages relevant to the issues to be determined by the Court. Not surprisingly, each party found passages which they submitted supported their respective perspective of the issues. The Court has, within practical limits, endeavoured to read cited passages in context in order to reach conclusions on the veracity of opposing contentions.

21. In the Court’s experience, this case was remarkable for the extent to which the parties’ experts had reached diametrically opposed conclusions on the evidence in the areas of planning, hydrology, the implications of the easements and with respect to valuation. In short, areas of agreement, as one might desirably find with joint reports, were minimal in stark contrast to the wide range of areas remaining in contention.

22. Notwithstanding this, it is appropriate to set out here a short (simplified) summary of the primary valuation approach taken by each expert valuer in determining the value of the Underwood Land at the material date. This summary should be read with Annexure B to this judgment which was the spreadsheet of the consolidated R3 comparable sales jointly analysed by the valuers and incorporated in to their ‘Supplementary Joint Expert Report of Valuation Experts’ dated 4 November 2017, being Ex A, F06. This spreadsheet includes the original four sales analysed by Mr Lunney and set out in his original analysis table (Ex A, F03, p 35) which he revised for the final Ex A – F06 version. Mr Ellis’ spreadsheet of the comparative R4 sales upon which he originally relied was set out in his original sales analysis table (Ex A, F01, p 35). For reasons which will become apparent, the table of R4 zoned properties are not annexed to the judgment.

19. It is stressed that these primary valuation approaches are not the only valuation exercises that each expert engaged in (as will become apparent). For example, the valuers provided a useful table of adjustments to 11 identified comparable sales of R3 Zone land that would, however, be unnecessary to consider if the Court was to completely agree with and adopt either valuers’ primary valuation approach in undertaking the judicial valuation exercise (Ex A, F06, p 5). Nevertheless, it is considered to be sufficient for present purposes to only set out each expert’s primary valuation approach.

20. Prior to setting this out, it should be recorded that the Court undertook a view on 6 November 2017 of, inter alia, the Underwood Land, its neighbourhood and the relevant properties relied upon by the valuers.

Mr Ellis’ valuation approach

25. Mr Ellis’ valuation approach, as set out in his primary report (Ex A, F01) proceeded on the basis that the “highest and best use of the subject property is rezoning to R4 High Density Residential redevelopment with residential apartments” (with a likely timeframe of early 2019) and that “a residential development of around 10,000 m2 can be built upon the subject site” (Ex A, F01, p 15).

26. On this basis, Mr Ellis identified the following eight potentially comparable sales:

1. 12-16 Boundary Street and 13-17 Grosvenor Street, Croydon;

2. 180 Burwood Road, Burwood;

3. 17 Deane Street, Burwood;

4. 9 Hassall Street, Parramatta;

5. 125-129 Arthur Street, Parramatta;

6. 9-13 Parnell Street, Strathfield;

7. 2-6 Hillcrest Street, Homebush; and

8. 4-8 Smallwood Avenue, Homebush.

27. In so doing, Mr Ellis acknowledged that “[t]here have not been many sales upon which to utilise in the immediate area” but that the above sales “reflect land that has similar use potential to the subject site amongst other factors including but not limited to location, area, date of sale and zoning”.

28. In analysing the above sales, Mr Ellis adopted the following approach (Ex A, F01, par 15.6):

(a)   I have determined the GFA [gross floor area] by multiplying the land area by the FSR [floor space ratio] or used the DA approved GFA where provided. The resultant figure provides the total floor area of building able to be constructed on the property. This figure is divided into the sale price to derive the rate per square metre of GFA.

(b)   The rate per square metre of site area is derived by dividing the land area into the sale price.

(c)   I have adjusted for market movement on the basis of around 2% per month around the relevant date in late 2015. Those sales that have sold proximate in time to the relevant date required less adjustment and are considered more reliable than sales that have occurred well before the relevant date and require a greater adjustment factor for market movement.

(d)   The potential unit yield is based on the estimated unit size in the right hand column, and this rate can vary widely depending on the mix of unit bedrooms and the size of each proposed unit. This is considered to [be] a less reliable method in comparison to the GFA analysis of market value.

29. After weighing up the analysed market evidence, Mr Ellis concluded that the gross floor area (GFA) of the Underwood Land “has a conservative market value range of $2,500 m2 to $3,200 m2 at the relevant date and for practical purposes I have adopted $2,800 m2 GFA”.

30. Critically, Mr Ellis next determined the market value of the Underwood Land (assuming R4 zoning) (adopting the “direct comparison [top-down] method”) by multiplying the derived rate of $2,800 m2 by the determined achievable GFA of 10,000 m2 (rounded down) to identify a prima facie market value of $28,000,000.

31. However, recognising a need to adjust this figure for the “risk of rezoning not occurring or being delayed”, Mr Ellis allowed for a 7% risk. Similarly, Mr Ellis adjusted the figure for the 3.25-year period in which the purchaser would be waiting for the Underwood Land to be rezoned (determined to be 5% per year). Hence, after making these adjustments, Mr Ellis arrived at a final figure of $21,900,000.

Mr Lunney’s valuation approach

32. Mr Lunney’s valuation approach, as set out in his primary report (Ex A, F03) proceeded on the basis that the highest and best use of the Underwood Land would be that of two individual dwellings rather than as an amalgamated development site (Ex A, F03, pp 32 and 33).

33. On this basis, Mr Lunney searched for sale properties located within the same zoning as the Underwood Land, in close proximity to the Underwood Land and with the same or similar potential for a future rezoning as the Underwood Land. As a result of this, Mr Lunney accumulated the following relevant sales:

1. 66 Ismay Avenue, Homebush

2. 60 Ismay Avenue, Homebush

3. 4 Ismay Avenue, Homebush

4. 3 Ismay Avenue, Homebush

34. In order to create equivalence between these sales and the Underwood Land (or, more accurately, 90 Underwood Road and 92 Underwood Road), Mr Lunney made various adjustments to each of the Ismay Avenue sales including an adjustment for “flooding, easements and canal”.

35. Having done so, Mr Lunney derived an adjusted value range for 90 Underwood Road of $1,412,775 to $1,708,100 (the average being $1,555,470) and an adjusted value range for 92 Underwood Road of $1,225,800 to $1,528,300 (the average being $1,390,565).

36. However, in light of Mr Lunney’s conclusion that greater weight should be given to the sales at 60 and 66 Ismay Avenue (due to their closer proximity and the sale being closer in time), Mr Lunney determined the respective market value of 90 Underwood Road and 92 Underwood Road at $1,700,000 and $1,500,000. Accordingly, this produced an en globo market value of $3,200,000 for the Underwood Land at the material date.

The relevant statutory provisions

Land Acquisition (Just Terms Compensation) Act 1991

37. The Just Terms Act, being an Act relating to the acquisition of land on just terms by authorities of the State, has the following objects:

3   Objects of Act

(1)   The objects of this Act are:

(a)   to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and

(b)   to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and

(c)   to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and

(d)   to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and

(e)   to encourage the acquisition of land by agreement instead of compulsory process.

38. Part 3 of the Just Terms Act provides the framework governing compensation for the acquisition of land. Relevantly, Div 4 of Pt 3 sets out the provisions concerning the determination of the amount of compensation. For the purposes of this judgment, it is convenient to set out the relevant provisions in ss 54-56 and 59.

Division 4 Determination of amount of compensation

54   Entitlement to just compensation

(1)   The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.

(2)   …

55   Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division):

(a)   the market value of the land on the date of its acquisition,

(b)   any special value of the land to the person on the date of its acquisition,

(c)   any loss attributable to severance,

(d)   any loss attributable to disturbance,

(e)   the disadvantage resulting from relocation,

(f)   any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

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)   When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.

(3)   If:

(a)   the land is used for a particular purpose and there is no general market for land used for that purpose, and

(b)   the owner genuinely proposes to continue after the acquisition to use other land for that purpose,

the market value of the land is taken, for the purpose of paying compensation, to be the reasonable cost to the owner of equivalent reinstatement in some other location. That cost is to be reduced by any costs for which compensation is payable for loss attributable to disturbance and by any likely improvement in the owner’s financial position because of the relocation.

…

59   Loss attributable to disturbance

(1)   In this Act:

loss attributable to disturbance of land means any of the following:

(a)   legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land,

(b)   valuation fees of a qualified valuer reasonably incurred by those persons in connection with the compulsory acquisition of the land (but not fees calculated by reference to the value, as assessed by the valuer, of the land),

(c)   financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs),

(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)   financial costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the discharge of a mortgage and the execution of a new mortgage resulting from the relocation (but not exceeding the amount that would be incurred if the new mortgage secured the repayment of the balance owing in respect of the discharged mortgage),

(f)   any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition.

(2)   Subject to the regulations, a reference in this section to a qualified valuer is a reference to a person who:

(a)   has membership of the Australian Valuers Institute (other than associate or student membership), or

(b)   has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or

(c)   has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or

(d)   is of a class prescribed by the regulations.

Strathfield Local Environmental Plan 2012

39. The Land Use Table under Pt 2 of SLEP 2012 regulating development on R3 Zone land was in the following terms at the relevant date.

Zone R3 Medium Density Residential

1   Objectives of zone

•   To provide for the housing needs of the community within a medium density residential environment.

•   To provide a variety of housing types within a medium density residential environment.

•   To enable other land uses that provide facilities or services to meet the day to day needs of residents.

2   Permitted without consent

Home occupations

3   Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Child care centres; Community facilities; Dual occupancies; Dwelling houses; Environmental protection works; Group homes; Home businesses; Multi dwelling housing; Neighbourhood shops; Places of public worship; Recreation areas; Residential care facilities; Residential flat buildings; Respite day care centres;

Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Water recycling facilities

4   Prohibited

Any development not specified in item 2 or 3

40. Additionally, it should be noted that SLEP 2012 provided for maximum building heights and maximum floor space ratios (FSR) for buildings as shown on the relevant maps: cll 4.3 and 4.4. I interpose here to note that the parties agreed that the maximum building height and maximum FSR controls for the Underwood Land at the material time were 9.5 m and 0.65:1 (Ex A, C05, pp 2‑3). Similarly, by dint of cl 4.1A, the minimum lot size for development for the purpose of a residential flat building on land zoned as R3 or R4 was 1,000 m2.

Environmental Planning and Assessment Act 1979

Preliminary Note

41. As a preliminary note to the Court’s analysis of relevant provisions of the Environmental Planning and Assessment Act 1979 (EPA Act), this case was heard some months before the EPA Act was substantially amended by the Environmental Planning and Assessment Amendment Act 2017 (EPA Amendment Act), which commenced on 1 March 2018. As the exercise that is required of the Court is to determine the appropriate amount of compensation payable to the Applicant at a fixed point in time, being the operative date of acquisition on 18 December 2015, my references to the EPA Act will be to the sections as they were at that time. However, in order to facilitate an understanding of the transition to the EPA Act after 1 March 2018, in this judgment, where appropriate, both the previous section references of the Act and the updated section references in the now extant Act are set out.

Planning proposals and Ministerial Directions

42. The process under the EPA Act for making a local environmental plan (LEP), set out under Div 4 of Pt 3 of the EPA Act (now s 3.33), was in the following terms at the material date:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)   The planning proposal is to include the following:

(a)   a statement of the objectives or intended outcomes of the proposed instrument,

(b)   an explanation of the provisions that are to be included in the proposed instrument,

(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)   if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood-prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)   details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)   The Secretary may issue requirements with respect to the preparation of a planning proposal.

43. Separately, under s 117 of the EPA Act (now s 9.1), a power was conferred on the Minister to make particular directions:

117   Directions by the Minister

(1) The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.

(2)   In addition to any direction which may be given under subsection (1), the Minister may direct a council:

(a) to exercise its functions under Division 4 or 5 of Part 3 in relation to the preparation of a local environmental plan in accordance with such principles, not inconsistent with this Act, as are specified in the direction, and

(b)   without limiting paragraph (a), to include in a planning proposal prepared by the council provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with this Act, as are specified in the direction, and

(c)   to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.

(2A)   A direction under subsection (2):

(a)   may be given to a particular council or to councils generally, and

(b)   may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and

(c)   may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).

Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).

(2B) A reference to a council in subsections (2) and (2A) includes a reference to a relevant planning authority under Division 4 of Part 3 that is not a council.

(3)   A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.

(4)   Before giving a direction under subsection (1) or (2), the Minister shall consult with the responsible Minister concerned.

(4A)   Before giving a direction under subsection (2) (c), the Minister is to consult with the Local Government and Shires Association of New South Wales and any other industry organisation the Minister considers to be relevant, in relation to the information that the Minister is proposing to seek. This requirement is in addition to the requirement under subsection (4).

(5)   A local environmental plan (or any planning proposal or purported plan) cannot in any court proceedings be challenged, reviewed, called into question, prevented from being made or otherwise affected on the basis of anything in a direction under subsection (1) or (2).

44. As will become apparent, the following s 117 Ministerial Direction is of some significance in these proceedings:

4.3 Flood Prone Land

Objectives

(1)   The objectives of this direction are:

(a)   to ensure that development of flood-prone land is consistent with the New South Wales Government’s Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005, and

(b)   to ensure that the provisions of an LEP on flood-prone land is commensurate with flood hazard and includes consideration of the potential flood impacts both on and off the subject land.

Where this direction applies

(2)   This direction applies to all relevant planning authorities that are responsible for flood-prone land within their LGA.

When this direction applies

(3)   This direction applies when a relevant planning authority prepares a planning proposal that creates, removes or alters a zone or a provision that affects flood-prone land.

What a relevant planning authority must do if this direction applies

(4)   A planning proposal must include provisions that give effect to and are consistent with the NSW Flood Prone Land Policy and the principles of the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas).

(5)   A planning proposal must not rezone land within the flood planning areas from Special Use, Special Purpose, Recreation, Rural or Environmental Protection Zones to a Residential, Business, Industrial, Special Use or Special Purpose Zone.

(6)   A planning proposal must not contain provisions that apply to the flood planning areas which:

(a)   permit development in floodway areas,

(b)   permit development that will result in significant flood impacts to other properties,

(c)   permit a significant increase in the development of that land,

(d)   are likely to result in a substantially increased requirement for government spending on flood mitigation measures, infrastructure or services, or

(e)   permit development to be carried out without development consent except for the purposes of agriculture (not including dams, drainage canals, levees, buildings or structures in floodways or high hazard areas), roads or exempt development.

(7)   A planning proposal must not impose flood-related development controls above the residential flood planning level for residential development on land, unless a relevant planning authority provides adequate justification for those controls to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General).

(8)   For the purposes of a planning proposal, a relevant planning authority must not determine a flood planning level that is inconsistent with the Floodplain Development Manual 2005 (including the Guideline on Development Controls on Low Flood Risk Areas) unless a relevant planning authority provides adequate justification for the proposed departure from that Manual to the satisfaction of the Director-General (or an officer of the Department nominated by the Director-General).

Consistency

(9)   A planning proposal may be inconsistent with this direction only if the relevant planning authority can satisfy the Director-General (or an officer of the Department nominated by the Director-General) that:

(a)   the planning proposal is in accordance with a floodplain risk management plan prepared in accordance with the principles and guidelines of the Floodplain Development Manual 2005, or

(b)   the provisions of the planning proposal that are inconsistent are of minor significance.

Note: ‘flood planning area’, ‘flood planning level’, ‘flood prone land’ and ‘floodway area’ have the same meaning as in the Floodplain Development Manual 2005.

Direction 4.3 – issued 1 July 2009

The final positions of the parties on compensation

45. In circumstances where the Applicants’ claim “evolved”, transitioning from its initial Points of Claim to a final Further Revised Points of Claim (Ex A.09) and with respect to its claim in relation to losses attributable to disturbance, which similarly evolved, ending with an “Amended Applicants’ Schedule of Losses” under s 59(a)-(f) (Ex A.05), but which does not address the claim for stamp duty under s 59(1)(d) or (f), a final further table titled “Disturbance Issues” summarising the claim, including that relating to stamp duty, was produced (Ex A, 248243505-1).

46. The following table endeavours to summarise the final positions of the parties, acknowledging that the figure claimed for stamp duty would vary should the Court determine to adopt a different market value to that claimed by the Applicants.

Just Terms Act (Section)	Applicants’ claim	RMS’ position	Agreed position
Market value – s 55(a)	$21,900,000.00	$3,200,000.00	In dispute
Legal costs – s 59(1)(a)	$29,599.77
Valuation fees – s 59(1)(b)	$26,950.00
Stamp duty – s 59(1)(d)	$1,189,990.00	Nil	In dispute
Any other financial costs reasonably incurred – s 59(1)(f)	$59,459.33, but revised down to $44,019.83 (inclusive of $33,459.33 in relation to DA 2013/006) $1,189,990.00 stamp duty in the alternative to s 59(1)(d)	$10,560.50	Partially in dispute (agreed up to $10,560.50)
Total	$23,213,219.00	$3,267,110.27	In dispute

The agreed valuation principles

47. The parties agreed on the following summary of the relevant general valuation principles guiding the determination of the market value of land. Conveniently, the Applicants’ counsel set out those principles at pars 19-23 in their closing submissions, which were in turn adopted by RMS’ counsel in its closing submissions at par 4.2. It is convenient to set out this summary from the Applicants’ submissions in full (citations amended):

The Court is acting as the judicial valuer: Sydney Water Corporation v Caruso (2009) 170 LGERA 298 at [3], [35], [37], [146] and [150]; [2009] NSWCA 391 and Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156. The Court is not confined to accept one party’s case or the other party’s case, and is able to use the evidence adduced in the proceedings to make its own assessment of the compensation payable for the compulsory acquisition, perhaps at a point somewhere in between the 2 parties’ contended valuations (Leichhardt Council v Roads and Traffic Authority (NSW) (2006) 149 LGERA 439; [2006] NSWCA 353 at [83]).

As a general principle, in determining compensation doubts should be resolved in favour of a more liberal estimate: Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (1947) 74 CLR 358 at 374; [1947] HCA 10; see also Sydney Water Corporation v Caruso at [3].

The market value of land under s 55(a) of the Just Terms Act must be valued according to its ‘highest and best use’: Turner v Minister of Public Instruction (1956) 95 CLR 245; [1956] HCA 7; Spicer v Valuer-General (1963) 10 LGRA 319.

The Court will therefore approach the task of determining compensation by determining what was the ‘most profitable potential use’ of the Parent Parcel: Vilro Pty Ltd v Roads and Traffic Authority NSW (2010) 179 LGERA 47; [2010] NSWLEC 234 at [17].

Further:

The parties to the hypothetical sale are assumed to be ‘fully informed’ and to make ‘all proper enquiries’: Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (2010) 177 LGERA 43; [2010] NSWLEC 88 at [58];

The land must be valued at the relevant date in its existing condition with all its potentialities as potentialities: Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 175-176; 73 LGRA 47 at 65-66 citing Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 313 and Turner v Minister for Public Instruction at 268-289;

The valuation exercise must assume that both parties (to the hypothetical transaction) are ‘perfectly acquainted with the land, and cognizant of all circumstances which might affect..[its] value’: Spencer v the Commonwealth of Australia (1907) 5 CLR 418 at 441 per Isaacs J; Kenny & Good Pty Ltd v MGICA (1992) Ltd at [49]-[50] per McHugh J, specifically adopted by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority; and

The valuer, and indeed the Court as judicial valuer, often expresses its approach as ‘doing the best [it] can’, and sometimes, in the absence of available market evidence, the valuer must make the best guess that can be made: Jameson v Rail Corporation New South Wales [2014] NSWLEC 83 at [65].

48. In addition to these general principles, it should be noted that RMS added two further valuation principles. First, that the hypothetical purchaser must be assumed to have a knowledge of all matters that affect the value of the relevant land: citing Kenny and Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25 at 436. Secondly, that events subsequent to the acquisition date are to be ignored unless relied upon to confirm foresight: citing, inter alia, Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 557-558.

Highest and best use – the Applicants’ submissions

49. The Applicants prefaced their submissions on the highest and best use of the Underwood Land with the claim that the highest and best use of land may be a “potential use where the landowners is holding the land speculating that future changes to planning instruments will permit a more profitable use” rather than the “current apparent use” (land banking).

50. In the present case, the position of the Applicants is not that the highest and best use of the Underwood Land was its redevelopment for the purpose of residential flat buildings as is currently permissible with consent in the R3 Zone land under the applicable SLEP 2012 (relevantly, with a maximum height control of 9 m). Instead, the position of the Applicants is that the highest and best use of the Underwood Land was – given the “strong potential and likelihood for rezoning to the R4 High Density Residential Zone by the first quarter of 2019 (relevantly, with a maximum height control of 42 m) or change of planning controls without rezoning” – that of land banking.

51. In support of this fundamental claim, the Applicants made detailed submissions with respect to the relevant expert hydrological, easement and town planning evidence. The Applicants emphasised that the Court’s findings with respect to the expert evidence concerning hydrological issues (including the effect of the three easements) and town planning issues will be fundamental to the Court’s determination of the question of what was the highest and best use of the Underwood Land at the material date. On the Applicants’ case, it was said that the existence of the easements on the Underwood Land “could not possibly affect the rezoning capabilities of [the Underwood Land]”.

52. In considering this expert evidence, the Applicants suggested that the Court should understand that the hydrological evidence has informed the town planners’ evidence as to the redevelopment potential of the Underwood Land, the likelihood of the land being rezoned as R4 High Density Residential land and, therefore, the highest and best use of the Underwood Land. Ultimately, the Applicants submitted that the Court should accept the oral evidence of Mr Hodges, Dr Phillips and Dr Martens, and Mr Donaldson relevant to the question of highest and best use.

Hydrological evidence

53. The Applicants conceded that the Underwood Land was flood liable on the material date. However, the Applicants contended that, on the expert evidence concerning hydrological issues, this flood liability “is not an insurmountable impediment to redevelopment and its highest and best use for residential flat building purposes within an R4 or R3 Zone”. In other words, it was asserted that the “flood liability of the [Underwood Land] was not a serious prohibiting constraint which would have prevented the redevelopment of the [Underwood Land] under either an R4 or R3 zoning – despite the Respondent’s pessimism”. Prior to setting out its case in support of these claims, the Applicants emphasised that, given the value of land in metropolitan Sydney, the development of land almost always “involves overcoming, mitigating and managing constraints (particularly constraints on urban consolidation)”: citing the development of Sydney Olympic Park.

54. The Applicants advanced the following propositions in support of their claim concerning the significance of the flood liability of the Underwood Land.

55. First, the Applicants submitted that, on Dr Phillips’ evidence, the flood liability of the Underwood Land would be controlled by the prospective residential flat building: adopting a ground floor level higher than the probable maximum flood (PMF) level at any entry point; being constructed of flood compatible materials below the PMF level; being structurally designed to withstand hydraulic forces in all floods up to the PMF. In this respect, the Applicants noted Dr Phillips’ evidence that the key flooding considerations for development in the relevant Powells Creek catchment including: flooding behaviour in a 100-year ARI flood event (the relevant metric for planning purposes); flooding behaviour in a PMF; and the need to mitigate risks to future occupants of a site and limit off-site impacts.

56. Secondly, the Applicants relied upon Dr Phillips’ evidence that flood risks for the prospective residential flat building would be addressed by an emergency flood management plan (including a flood emergency response plan) enforced by a condition of development consent. In this respect, Dr Phillips gave evidence that an approach of sheltering in place was more realistic and safer than an evacuation plan given that the land is affected by urban temporary flash flooding rather than long flooding events. In this respect, the Applicants highlighted that the Powells Creek catchment in a small, highly developed urban catchment in which the “critical storm duration which generates the greatest amount of water is a relatively short duration storm of between 1 and 2 hours” (T102). It was also submitted that the relevant parts of “Floodplain Development Manual 2005” (FDM) must be understood in this context.

57. In fact, the Applicants submitted that the opposite conclusion – that evacuation would be the appropriate response to a flooding event – would be ludicrous. Why, the Applicants rhetorically asked, would Emergency Services attempt to evacuate people in a short flash-flooding event (especially when the general area would be in chaos anyway)? Overall, the Applicants hotly denied that the potential for high density development on the Underwood Land would be sterilised “merely because the [Underwood Land] may be inaccessible by emergency and SES vehicles for 1-2 hours”.

58. Thirdly, with respect to the Applicants’ different schematic prospective residential flat building developments, the Applicants submitted that, at the very least, the proposed development was “not unachievable” with some amendments such as reducing the size of the buildings. Relying on Dr Phillips’ evidence, the Applicants submitted that the schematic developments would be capable of approval because they address the existing and future flood risks conformably with, inter alia, the FDM and SLEP 2012. Moreover, the Applicants submitted, relying on Dr Phillips’ evidence, that the development schematics would not have unacceptable off‑site flood impacts. The Applicants also said that it is of some significance that the relevant stormwater channel has not prevented considerable upstream urban development.

59. Fourthly, the Applicants contended that the potential rezoning of the Underwood Land from R3 to R4 zoning would not be precluded due to flooding issues. In particular, the Applicants submitted that Dr Phillips’ evidence is that such an upzoning would comply with any s 117 Ministerial Direction. In support of this claim, the Applicants argued that any blanket prohibition of high density residential development on flood-liable land would be unaffordable and contrary to good planning. Indeed, the Applicants suggested that this is both why much R4 Zone land in metropolitan Sydney is mapped as being flood-prone and why the FDM recognises that “flood-prone land is a valuable resource that should not be sterilised by unnecessarily precluding its development” and provides for “a flexible merits based approach to … dealing with development or redevelopment of flood‑prone land”. In the present case, the Applicants reasoned that the relevant issues of flooding would be appropriately considered at the development application stage rather than at the time of a rezoning decision: citing, inter alia, cl 6.3 of SLEP 2012.

60. Fifthly, the Applicants argued that the example provided by the Court approval of a development application for three three-storey residential flat buildings in Courallie Avenue Pty Ltd v Strathfield Council [2015] NSWLEC 1128 is very instructive in considering the impact of flooding issues on the development potential of the Underwood Land. The Applicants submitted that the obstacle of a high hazard (flash flood) floodway was overcome, in order to approve the residential development, by a flood-engineered bridge and culvert driveway and appropriate flood-warning signage. The Applicants denied any suggestion that this approved development and the prospective development of the Underwood Land are not relevantly comparable. In particular, the Applicants said that Dr Martens’ assertion that the approved development would not be isolated during a 1-in-100-year ARI flood event (because occupants could evacuate by climbing over adjoining neighbours fences) was unpersuasive.

61. Sixthly, the Applicants asserted that the development application and consent history of the Underwood Land is largely irrelevant.

62. Seventhly, although the Applicants conceded that the future high density development of the Underwood Land involves greater risk and cost due to being flood-prone, it was denied that this is of any significance beyond necessitating a downward adjustment in valuing the land.

63. Eighthly, the Applicants drew the Court’s attention to a number of decisions where the Court “found that flooding constraints could be overcome to achieve redevelopment potential”: see Gattuso v Liverpool City Council [2011] NSWLEC 110 (at [45]), Macarbell Pty Limited v Roads & Traffic Authority of New South Wales [2006] NSWLEC 366 (at [104]), Maggiotto v Roads and Traffic Authority of New South Wales [2006] NSWLEC 54 (at [64]), Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430 (at [32]), Ballina Waterways Pty Ltd v Roads and Traffic Authority of New South Wales [2009] NSWLEC 96 (at [123]) and Davies v Sydney Water Corporation [2012] NSWLEC 130 (at [162]).

64. Further to these submissions, the Applicants emphasised the following points in support of their submissions relating to the hydrological issues in this case:

1. Dr Martens’ evidence was that securing development consent for the Applicants’ prospective schematic residential flat building developments was “not unachievable”;

2. the “Draft Parramatta Road Urban Transformation Strategy” (Draft PRUTS) was prepared with an understanding of the flooding characteristics of the Underwood Land and, despite this, proposed more intensive residential development for the Underwood Land. Importantly, according to the Applicants, the Draft PRUTS refers to Powells Creek and identifies that its vision can be realised by, inter alia, “managing flooding”. Hence, the Applicants reasoned that, on a fair reading of the Draft PRUTS, the Court should infer that it was informed by flooding considerations;

3. the decision to zone the Underwood Land as R3 land “was selected in full knowledge of the flooding characteristics of the [Underwood Land]”;

4. the FDM highlights that flood-prone land should not be unreasonably sterilised for urban development;

5. “Flooding issues involve a merit based assessment”;

6. in other local government areas throughout metropolitan Sydney decisions have been made to zone flood-prone land as R4 land;

7. the approved development in Courallie Avenue Pty Ltd v Strathfield Council was able to address comparable flooding issues by adopting flood-engineering works;

8. no other property along the relevant drainage channel has been constrained by flooding from redevelopment;

9. for the purposes of the WestConnex Project, the relevant drainage channel was “simply reconstructed”; and

10. the earlier development consent for 92 Underwood Road “dealt with the flooding characteristics of the [Underwood Land]” (which was recognised by Mr McKenzie to be relevant in considering what advice to give to a prospective purchaser).

Easement evidence

65. With respect to the easements which affected the Underwood Land, the Applicants contended that they do not prevent redevelopment for the purpose of high-rise residential development under the likely R4 zoning (or R3 zoning). In other words, the Applicants claimed that “[t]he existence of the easements would not be a significant or serious impediment to the re-development of the [Underwood Land] on the acquisition date, and the advice provided to the hypothetical parties would confirm this position…”. In fact, the Applicants asserted that “[i]t is absurd to suggest that 2 sewer pipes could prevent 106 dwellings on land close to 2 railway stations”. In support of their position, the Applicants made the following primary submissions.

66. First, the Applicants submitted that it is important to have careful regard to the terms of the easements to understand the rights which Sydney Water has and, accordingly, the likely effect of the easements on the redevelopment potential of the Underwood Land.

67. Secondly, whilst recognising Mr Hodges’ observations that the Underwood Land was “significantly constrained” by the easements and that they represented a “considerable risk and cost burden”, the Applicants emphasised Mr Hodges’ opinion that the relevant prospective high-rise development schematics would either be likely to be approved by Sydney Water (with respect to Schematic Option 1B) or capable of approval by Sydney Water (with respect to Schematic Options 1A and 2). With respect to the schematic options capable of approval, the Applicants said that Mr Hodges’ opinion was predicated on the fact that “ultimately Sydney Water’s only interest is in protecting its assets”. The Applicants bolstered this point with the claim that Sydney Water infrastructure is intended to facilitate residential redevelopment rather than impeding such development.

68. Thirdly, the Applicants claimed that Sydney Water, by its policies, recognises that it will work with landowners to ensure that positive outcomes are achieved rather than hampering economic and residential growth: citing Sydney Water’s “Asset Adjustment and Protection Manual” at pp 4 and 8 (Ex B, B04).

69. Fourthly, the Applicants drew the Court’s attention to recent examples of development identified by Mr Hodges (and considered by Mr Donaldson) where easements of a similar nature to the Underwood Land did not prevent redevelopment: citing a development application concerning 29 Burlington Road and a development application concerning 92 Underwood Road, both in Homebush. Although the 29 Burlington Road development predated the relevant Sydney Water policies, the Applicants contended that this development supports its claim that Sydney Water would not prevent the prospective redevelopment of the Underwood Land (especially in light of the Underwood Land offering “a prime opportunity for urban consolidation and intensified residential accommodation”).

70. Fifthly, the Applicants submitted that providing that the easement terms and the Sydney Water Act 1994 are adhered to, the existence of the easements would not significantly deter a prospective purchaser because he or she (or it) would be “reasonably confident of working with and obtaining Sydney Water’s concurrence” (despite the lack of an “iron-clad guarantee”).

71. Sixthly, in response to Dr Martens’ “pessimistic” written evidence regarding the impacts of the easements, the Applicants submitted that Dr Martens’ oral evidence was broadly consistent with the Applicants’ claim that “[t]he existence of the easements would not be a significant or serious impediment to the re-development of the [Underwood Land] on the acquisition date”. Rather, the Applicants said that “[t]he reality is that expert engineers like … [Dr] Martens deal with these situations every day”.

Town planning evidence

72. The Applicants contended that, after considering the town planning evidence, the Court should make three critical findings bearing on the determination of the likelihood of achieving an R4 rezoning, the likelihood of achieving development consent for the schematic prospective developments and, therefore, the highest and best use of the Underwood Land.

73. First, that the Draft PRUTS would have sent a “significantly overt signal to the market that the [Underwood Land] would be upzoned to R4 in the short term, with accompanying amended planning controls permitting more intensive forms of residential accommodation”. Secondly, that development consent would be granted for the schematic prospective residential flat building developments. Thirdly, that the Draft PRUTS was not a RMS strategy and, therefore, the WestConnex Project (for which the Underwood Land was acquired) could not “work to engage s 56(1)(a) of the [Just Terms Act]”. Relevantly, the decisions made in relation to the prospective zoning of the Underwood Land were not anticipated to be made by RMS but by other government instrumentalities.

74. In support of its position, the Applicants made the following submissions with respect to Mr Donaldson’s evidence.

75. First, the Applicants contended that the Underwood Land would have been rezoned as R4 land by early 2019. This prediction was said to be consistent with other site-specific planning proposals in the Parramatta Road corridor and the overarching action of Principle 1 of the Draft PRUTS – being the action of the Department of Planning and Environment working with council to rezone land and update the planning provisions within the precincts consistently with the Draft PRUTS through LEP amendments in the short term (2015-2021): Ex B, C26, p 105. In support of this fundamental claim, the Applicants stressed the following aspects of the Draft PRUTS (published immediately before the material date):

1. The Homebush Structure Plan Map described the Underwood Land as suitable for “residential development” of on “[a]verage 8 storeys – max 12 storeys [42 m]”. In this respect, Mr Donaldson opined that a 12‑storey limit would apply to the Underwood Land in accordance with “a transitional approach to building scale and densities adopted in the [Draft PRUTS]” and that it would be likely that a rezoning of the Underwood Land would occur in 2019: citing Ex A, C03, pp 58-66.

2. The Draft PRUTS contained multiple express statements that it would be implemented in critical planning decisions concerning the affected Parramatta Road corridor. Hence, the message was conveyed to the broader community and property market that the Draft PRUTS would fundamentally shape planning outcomes. For example, under the heading “Delivering the Strategy”, it was stated that:

Every planning decision made in the Parramatta Road Corridor will be influenced by this draft Strategy. This includes day-to-day planning proposals and development applications, and local statutory planning documents such as Local Environmental Plans (LEPs), Development Control Plans (DCPs) and contributions plans. The project will also be a mechanism to translate A Plan for Growing Sydney, Sydney's framework to guide land use decisions over the next 20 years, at a regional level.

76. Secondly, the Applicants denied that the references to “staging” and the implication of a staged implementation approach within the Draft PRUTS over 20-30 years means that rezonings contemplated in the Draft PRUTS may, therefore, not be adopted for 20-30 years. Instead, the Applicants submitted that the Draft PRUTS makes clear that the rezonings will be achieved according to a “short-term” implementation plan (2015-2021). To be sure, the full realisation of the Draft PRUTS may take 20-30 years. However, critically, the Applicants said that there “is no serious doubt that the [Underwood Land] would not have been upzoned very shortly after the [Draft PRUTS] given the close proximity to 2 train stations and in light of the government’s preference to increase urban densities around heavy rail stations” (by 2019). Hence, whilst the Underwood Land may not be developed for a number of years, the Applicants reasoned that they are entitled to compensation for the value of their land on the basis that the Underwood Land “will achieve the rezoning by 2019”.

77. Thirdly, the Applicants submitted that Mr Donaldson’s evidence demonstrated that rezoning the Underwood Land to become R4 Zone land would have been consistent with the applicable s 117 Ministerial Direction for flooding because, inter alia, “[t]he development proposal addresses the existing, future and continuing flood risk in a manner which is consistent with the NSW Flood Prone Land Policy and the principles of the FDM 2005”: citing Ex A, C03, p 65.

78. Fourthly, the Applicants said that the schematic prospective developments would have obtained development consent if the Underwood Land was zoned as R4 land and the maximum height and FSR controls were amended. In this respect, the Applicants submitted that there would have been a range of viable basement design options to address the easement issues.

79. Fifthly, the Applicants submitted that Mr Donaldson’s evidence shows why there is no causal relationship between the carrying out of the WestConnex Project and the upzoning of the Underwood Land to become R4 Zone land. In response to the claim that the future R4 rezoning was part of the WestConnex public purpose, the Applicants countered that this claim is factually and legally erroneous because:

1. The rezoning of the Underwood Land would have occurred irrespective of the WestConnex Project. In support of this, the Applicants submitted that the Draft PRUTS was prepared so as to facilitate urban renewal along the Parramatta Road corridor because it was identified as ripe for urban renewal. Moreover, the Applicants rejected the proposition that the expected traffic improvements generated by the WestConnex Project would have caused any upzoning of the Underwood Land on the basis that the environmental impact statement for the project shows that there would be no such improvements in Homebush.

2. As RMS has no capacity to rezone land, the WestConnex Project could not trigger s 56(1)(a) (citing Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 (Walker) at [53] and [54]) and there could not be any link between an upzoning and the WestConnex Project. In fact, the Applicants submitted that the Draft PRUTS itself is “based on a multi‑layered governance framework”: citing Ex B, C26, p 92.

3. “The mere circumstance that the public purpose is a contributing factor to changes which in turn affect value is not necessarily sufficient, particularly if the changes depend also on discretionary decisions made by other authorities” [Applicants’ emphasis added]: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LGERA 245; [2008] NSWCA 325 (AMP Capital Investors) at [99] (cited in MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 (MMTR)). Here, even if the WestConnex Project contributed to an uplift in land value due to a prospective rezoning from R3 to R4, it was said that such a decision depends upon discretionary decisions of a number of government entities which are independent of RMS, such as UrbanGrowth NSW and the Department of Planning and Environment. Moreover, the Applicants claimed that the available public documents amply demonstrate that, but for the WestConnex Project, the urban transformation of Parramatta Road would still have been pursued.

4. Despite bearing the burden of proof that RMS and its WestConnex Project was directly responsible for the potential rezoning of the Underwood Land from R3 to R4, the Applicants argued that RMS has not called any evidence from any relevant government entity to make good the claim that the Draft PRUTS would not have been pursued if the WestConnex Project had not existed.

5. The claims that (1) the Underwood Land would not have been rezoned as R4 and (2) if it was rezoned it would be due to the WestConnex Project are inconsistent.

6. Land being rezoned for residential purposes would normally require roads to service the future residential development. Hence, “this serves to demonstrate that the ‘indirect’ link which the Respondent seeks to impress upon the Court is not what s 56(1)(a) is directed towards”.

7. In order to understand the relevance of the WestConnex Project to the Draft PRUTS, it is important to have regard to the following extract of the strategy:

The vision and principles are designed to optimise the benefits of the New South Wales Government’s investment in WestConnex, which will connect the eastern end of the M4 Motorway with the eastern end of the M5 Motorway to serve longer distance journeys into, out of and through the Corridor.

WestConnex provides an accelerated opportunity to transform Parramatta Road – it will change traffic volumes in some areas and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, while encouraging walking and cycling and improving public areas and streets. Improved north-south connections will also come from the transformation process.

8. In response to Mr McKenzie’s relevant evidence – said to ultimately be that the WestConnex Project helped the implementation of the Draft PRUTS – it was said that this evidence does not support the proposition that “WestConnex positively influenced land values”.

80. In addition to these points, the Applicants also contended that the “Final Strategy” is significant (although not a document for the Court to rely on directly) in confirming that, at the material date, there were strong prospects of future high density residential development on the Underwood Land (albeit to a 30 m height limit and with a FSR control of 2.2:1): in contradiction to the “doom and gloom predictions” in the evidence of Mr McKenzie.

81. With respect to the other postulated constraints on the redevelopment of the Underwood Land, the Applicants made the following points. Any traffic noise would easily be resolved by appropriate mitigation treatments (noting that other residential developments closer to the M4 have been approved). Whilst trees on the Underwood Land may need to be removed, they would ultimately be replaced with new deep soil landscaping. The irregular lot shape and configuration has been demonstrated, by the schematic concept developments, to not be an impediment.

82. Finally, it should be noted that the Applicants submitted that the Court ought to prefer Mr Donaldson’s evidence to Mr McKenzie’s. One basis for so doing, according to the Applicants, is that “Mr McKenzie would consistently default toward negativity and pessimism about the [Underwood Land’s] characteristics, even though such answers were not responsive to the questions”: citing T319.3-8.

Summary of evidence regarding the highest and best use

83. In summary, the Applicants submitted that the evidence of Mr Donaldson, Dr Phillips and Mr Hodges supports the following material propositions bearing upon the highest and best use of the Underwood Land at the material date:

1. The fact that the Underwood Land was flood liable in the 100-year ARI flood event would not prevent its redevelopment under either an R3 or R4 zoning consistently with the schematic designs or a rezoning from R3 to R4 (and consequent maximum building height amendments).

2. The fact that the Underwood Land was burdened by easements would not prevent its redevelopment because, following negotiations with Sydney Water, viable engineering solutions would have been available.

3. The WestConnex public purpose was not “causative of the rezoning of the [Underwood Land]”.

4. RMS’ contention that the Underwood Land had no redevelopment or rezoning capability is unsustainable in light of, in particular, the evidence of Mr Donaldson, Dr Phillips and Mr Hodges.

Highest and best use – RMS’ submissions

84. RMS fundamentally disagreed with the Applicants’ position that the highest and best use of the Underwood Land “may not be the current apparent use”. Contrary to Mr Donaldson’s initial assertion that the highest and best use would be a residential flat building up to 42 m in height, RMS contended that the highest and best use “can only be a town planning use which is permissible under the current planning regime”. RMS also rejected the subsequent position of Mr Donaldson that the highest and best use was that of an R3 residential flat building with the potential for R4 zoning.

85. Ultimately, RMS’ contention is that the highest and best use of the Underwood Land is (in accordance with its current R3 zoning) that of two detached dwellings. RMS structured its submissions in support of this claim to address the following issues: the potential for rezoning of the Underwood Land; the likely timing of the rezoning; the development potential of the Underwood Land and the likelihood of obtaining development consent for the high density development of the Underwood Land. Yet, prior to addressing these issues, RMS summarised the relevant evidence concerning the constraints of the Underwood Land.

The constraints of the Underwood Land

Town planning constraints

86. RMS contended that there is no dispute that the Underwood Land was subject to numerous constraints at the material date (which the hypothetical purchaser would have been advised of) including: being within a 1‑in‑100‑year ARI flood event area; a high hazard floodway; sewer easements; stormwater channel easement; traffic noise from the M4 motorway; large individual trees; site excavation; irregular shape and access; and unsuitability for on-site car-parking due to flood-related issues.

Flooding constraints

87. RMS submitted that the hydrology experts agreed that the Underwood Land was burdened by the following flooding constraints: it would be affected by flood waters in events more frequent than a 1-in-100-year ARI flood event; evacuation would not be possible during a 1-in-100-year ARI flood event (or greater); it is affected by two floodways; and it is subject to flash-flooding.

88. The flood-related characteristics of the Underwood Land were said to be unique in the following ways. First, the land is a confluence point of four distinct water flows, being flow from: the stormwater channel; under the overpass on Underwood Road; along Underwood Road from the opposite direction; and the stormwater system: citing the evidence of Dr Martens – T105-106.

89. Secondly, the Underwood Land was said to be “encircled by ‘high hazard’ floodways”, which entails a broad range of serious risks to human life. Given this, RMS submitted that it is not clear that a strategy of “shelter in place” would be approved in order to enable high density development.

90. Thirdly, the relevant flood-related risks were said by RMS to be so significant that such risks have “previously impeded proposals to redevelop the [Underwood Land]”: citing the refusal of a 2005 development application on flood-related grounds and the imposition of conditions of a 2013 development consent prohibiting the parking of vehicles of the Underwood Land.

91. Fourthly, given that the Underwood Land is located at the bottom of a valley and encircled by floodways, it could not be accessed during flood conditions. Hence, RMS said that it would be “very difficult to develop” the land.

92. RMS submitted that the overall consequence of these flood-related constraints is that there would be “additional risks, delay and cost burdens for developing the [Underwood Land]” including:

1. the risk that the Underwood Land would not be rezoned;

2. regardless, flooding would be a mandatory relevant consideration in determining a development application and this could result in an application being refused or approved subject to significant restrictions;

3. the Underwood Land would be a difficult site to develop (which would translate into higher design costs, construction costs and flood mitigation costs);

4. an expensive flood impact assessment would need to be undertaken prior to the consideration of a development application; and

278. Fourthly, it follows that the situation with respect to the Applicants is in contradistinction to the situation that arose in Moloney, wherein claims were identified as being a consequence of the public purpose rather than the acquisition – eg moving a residential dwelling from one place on the unacquired land to a more distant place on that unacquired land so as to avoid unpleasant amenity impacts of a major highway now constructed across the acquired land too close to an extant dwelling. The Court held that that undesirable amenity impact was a consequence of the public purpose – the new highway construction – rather than a consequence of the acquisition. Therefore, the costs of moving the extant dwelling to a new more distant location was not a financial cost reasonably incurred which was capable of being claimed under s 59(1)(f).

279. The situation in this case is materially different. The Applicants in this case claim they have lost their entire investment property which was held by way of, or for the purpose of, land banking until such time as they could develop it for a more remunerative use or sell it on, at a premium reflecting its potential, to another developer. Either way, the facts in this case demonstrate a track record of effort on the part of Applicants to pursue opportunities to achieve the highest and best use of the Underwood Land. The Court has confirmed earlier that it accepts the land was held in accordance with a land banking arrangement, as was apparent by repeated efforts to obtain development consents seeking to better utilise, clearly for more remunerative purposes, the investment asset they held. The Court has concluded that the Applicants were not benignly sitting back awaiting an increase in land values, rather they were actively pursuing ‘value-adding’ opportunities. The acquisition of the Underwood Land has deprived the Applicants of what the Court will describe as their ‘working asset’ – or as their ‘trading stock’, as coined in Cannavo at [46].

280. With the Underwood Land being acquired, the unchallenged evidence of the First Applicant is clear: the Applicants would need to replace their working asset with another working asset. They had two blocks of land, their land bank, in relation to which they repeatedly pursued what they perceived as development opportunities. Essentially, the Applicants’ land was being held until the best development opportunity came their way. It is likely and accepted that the Applicants considered the Underwood Land was strategically located in a corridor that, one day, would inevitably be more intensely utilised for higher density development opportunity – simply because Greater Sydney was showing all the stress of a metropolis bursting at the seams. Proximity to railway stations (although not ideally located) and proximity to a highway (once the authorities ‘got their act together’ to overcome traffic congestion) were most probably identified as positives. Unfortunately for the Applicants, once the authorities ‘got their act together’ to address the congestion issues, the very remedy that they had awaited or anticipated, the WestConnex Project, became the public purpose which deprived the Applicants of their land whilst concurrently becoming the catalyst for the very urban renewal which will lead to higher density development that the Applicants had expected would eventually come their way. Sadly for the Applicants, as it was WestConnex that brought them what they expected, the benefits of it must be ignored as it is the public purpose (for which their land was acquired) which must be disregarded.

281. Accordingly, because the Applicants have lost their working asset – the Underwood Land – which they actively held as their land bank – the Court has concluded that it is reasonable for the Applicants to claim pursuant to s 59(1)(f) the primary extra cost of finding an alternative land bank property, the stamp duty that they would have to pay on a similarly valued piece of land elsewhere. The Court accepts that having been deprived of their entire working asset, the Applicants would most probably seek to replace that working asset with another. The Court surmises they would seek to purchase a new property, probably in another future development corridor with potential, so that they could at that property pursue development opportunities, as they identify them, as a means of achieving the highest and best use of that other newly purchased land. In land banking terms, that highest and best use is most probably the most remunerative use they can achieve.

282. Accordingly, in terms of s 59(1)(f), the Court has decided that the stamp duty that would be paid on that other property in order for the Applicants to carry on their ‘land bank to development’ enterprise would constitute financial costs which they might reasonably incur (applying the words in the brackets within the paragraph), relating to the actual use of the land, as a direct and natural consequence of the acquisition.

283. Similarly, as explained above at [292], it is for similar reasons that the Court has concluded that the costs of securing DA 2013/006 are similarly financial costs that the Applicants had reasonably incurred, by reason of the costs arising in relation to a proposed “holding residence”, as the Court has chosen to describe it, pending the expected inevitable redevelopment. The Court is cognizant of the need to reflect on the question whether there is a prospect of double-dipping with respect to the costs of the DA 2013/006. As was confirmed by the Court of Appeal in Moloney at [100], when compensation has been obtained in full for losses occasioned by acquisition in the claim for market value under s 55(a), (b) or (f), a separate claim for the same amount as disturbance under s 55(d) (under any of the heads identified in s 59(1)) is not maintainable. The Court has concluded that the market value under s 55(a) determined in this case would not have included the costs associated with the DA 2013/006, costs which were limited to the strategic land bank purpose of the Applicants, but otherwise not value-adding to the property. Further, the costs in question do not fall within s 55(b) as rather than the value of the development consent being “incidental to the person’s use of the land” the Court has found, far from being incidental, there was a direct nexus to their land bank use of the land. Finally, as for s 55(f), as said earlier, there is no “other land” involved which adjoins or is severed from the acquired Underwood Land in this case.

284. There may be a thought that the Applicants would be double-dipping if they secured stamp duty pursuant to s 59(f) whilst concurrently receiving the market value of the acquired Underwood Land pursuant to s 55(a). Such a thought would be erroneous. Careful dissection of the hypothetical replacement property transaction reveals that there is no double-dipping. First, embodied in the hypothetical marketplace acquisition of the Underwood Land would be the price that the market would pay for that property to a willing-but-not-anxious vendor. Conceptually, that vendor could be expected to have in mind that when they originally purchased the property they paid the then market value and then subsequently had to pay the State Government the stamp duty on that acquisition, so the vendor would set their market sale price, which they would be willing to accept, as covering the cost of their purchase plus the stamp duty they paid, plus of course, realistically, a sum reflecting market increase since their original purchase. Having accepted the purchase price and sold, that vendor (in the land banking scenario of the Applicants) would now, flush with funds, move to acquire a replacement property. They would be faced with having to pay the market price of that new property to another vendor, who in turn has in mind to secure the best price covering their original purchase, costs such as stamp duty, and any increase in the market price. However, the Applicants, having paid the market price on which the vendor was willing to sell, would now, inconveniently, face the additional cost of having to pay stamp duty to the State on that new property. It is therefore a cost which they legitimately seek to be recompensed under s 59(1)(f) – as a financial cost they will reasonably incur. The Court accepts that compensation for that cost is appropriate and available under a proper application of that statutory provision.

285. With the Court having determined that the market value for the aggregated Underwood Land was $4,300,000.00 as at the date of acquisition, applying the rate of duty that was chargeable, pursuant to s 32(1) of the Duties Act 1997, as at 18 December 2015, the Applicants are entitled to receive the sum of $221,990.00 in compensation pursuant to s 59(1)(f) attributable to stamp duty they would have paid on the purchase of a replacement property.

Costs

300. As I have awarded the Applicants compensation in an amount greater than the amount offered in the “Notice of Compensation” and contended for by the Respondent, the Applicants should be awarded their costs of the proceedings.

Orders

301. Compensation shall be paid by the Respondent to the Applicants as follows:

1. Market value for the aggregated 90 Underwood Road, Homebush and 92 Underwood Road, Homebush – $4,300,000.00

2. Disturbance: $67,110.27 – comprising $29,599.77 for legal costs pursuant to s 59(1)(a); $26,950.00 for valuation fees pursuant to s 59(1)(b); and $10,560.50 for financial costs relating to actual use pursuant to s 59(1)(f).

3. Disturbance as compensation for the loss of the costs associated with obtaining DA 2013/006 being $33,584.68.

4. Disturbance in relation to stamp duty pursuant to s 59(1), being $221,990.00.

302. The costs of the Applicants in the proceedings, as assessed or agreed on the usual basis, shall be paid by the Respondent.

***********

ANNEXURE A

RMS document from Court Book, Exhibit A, J – Additional Documents

“Public Purpose – Key Documentary References”

BARKAT v ROADS AND MARITIME SERVICES (2016/158064)

Respondent’s references to particular evidence on public purpose

No.

Extract

Reference

Strathfield Economic and Land Use and Employment Strategy: TB C01 (June 2010)

1.1

This precinct [i.e., Underwood Road Homebush] is well connected by road, particularly Homebush Bay Drive and the M4. However, congestion is a significant issue in this area as uses which are not anticipated by the zoning have developed. The closest station is North Strathfield which is not within walking distance. The area is close to the Bay to Bay cycle path, with the RTA cycle path maps noting that moderately difficult on-road routes connect the area to Flemington Station. The 525 – Parramatta – Burwood bus serves this area. The precinct is located opposite Bressington Park and Mason Park, with some residential areas nearby. Sydney Olympic Park is close to this area.

Underwood Rd, Homebush: The Future

Underwood Road will continue to provide accommodation for small industrial business in a high amenity location, adjacent to a large shopping centre. Additional retail or office based activities on industrial land will be avoided. Over the longer term, if the area can be shown to be part of, or better linked to Olympic Park – Rhodes, then an alternative zoning could be considered. However, this is reliant on comprehensive planning and improved transport connections.

CB C01 p 41 (PDF p 44)

JBA Strathfield Residential Land Use Study: TB C03 (November 2011)

2.1

The IWSS [i.e., draft Inner West Subregional Strategy] is intended to guide land use planning in the Strathfield, Ashfield, Burwood, Canada Bay and Leichhardt LGAs until 2031] outlines how the State Government will act to improve transport access to key centres, including the following projects that are planned or currently underway that directly impact Strathfield:

…

M4 East Extension;


TB C03 p 10 (PDF p 20)

First things first: The State Infrastructure Strategy 2012-2032: TB C05 (October 2012)

3.1

WestConnex is intended to be more than a motorway. It is a scheme designed to act as a catalyst to renew and transform the parts of Sydney through which it passes. WestConnex is intended to develop as an integrated land use and transport scheme delivering on road transport, urban renewal and public transport outcomes.

TB C05 p 88 first paragraph (PDF p 88)

3.2

Key benefits include:

• Relieving congestion on the existing M4/Parramatta Road and M5 East

• Supporting freight movements between Sydney’s Gateways and the logistics hubs in Western and South Western Sydney

• Supporting people movements to Sydney Airport

• Acting as a catalyst for urban regeneration along key corridors, particularly Parramatta Road

• Enhancing orbital road connectivity South and West of the CBD

• Facilitating improvements in public transport, particularly on the Parramatta Road corridor

TB C05 p 88 (PDF p 88)

3.3

Consideration has also been given to the urban regeneration potential provided by the scheme, particularly along Parramatta Road. This is a significant opportunity for rejuvenation of a tired corridor that has the potential to play an important economic role in Sydney’s future.

TB C05 p 88 (PDF p 88)

3.4

Redeveloping Parramatta Road

…

One of the aims of the WestConnex program is to support the regeneration of the Parramatta Road corridor. Infrastructure NSW believes that a slotted road concept would enable this more than a tunnelling approach. The slotted concept sinks the motorway below surface level while constructing a new local road at surface level.

TB C05 p 89 (PDF p 89)

3.5

6.6.5 Next Steps
The scale and complexity of the problems along the M5 and M4 corridors, and the latter's inadequate connectivity to Sydney's Gateways suggests a transformational solution is needed. The solution needs to fit within and connect with the existing transport network and must also enable urban renewal.

The feasibility study that Infrastructure NSW has led with Transport for NSW and RMS suggests WestConnex is the solution to these issues…

…

Recommendation: Infrastructure NSW recommends that Government progress the development of WestConnex, an integrated toll-road scheme designed to innovatively and affordably deliver the M4 Extension and M5 East Expansion projects within the next ten years,

Recommendation: Infrastructure NSW recommends that urban renewal – in particular, the transformation of Parramatta Road – should be placed at the heart of the WestConnex scheme from the beginning.

TB C05 p 90 (PDF p 90)

3.6

Infrastructure NSW has identified in outline a scheme – WestConnex – that can help support freight and people movements across the city, and support major urban redevelopment. Infrastructure NSW believes that, while ambitious, WestConnex can be delivered in ten years with sufficient will.

TB C05 p 93 (PDF 93)

WestConnex – Sydney's next motorway priority: TB: C06 (October 2012)

4.1

WestConnex is more than a motorway. It is a scheme designed to act as a catalyst to renew and transform the parts of Sydney through which it passes. WestConnex creates opportunities for urban renewal and public transport improvements, especially along Parramatta Road. It will strengthen access to industry and commercial centres along the full corridor, improving growth opportunities for local businesses. WestConnex is intended to develop as an integrated land use and transport scheme delivering on road transport, urban renewal and public transport outcomes.

TB C06 p 3 (PDF p 3)

4.2

While there are still decisions to be made about the scope of WestConnex it is clear that infrastructure investment in WestConnex would offer major strategic benefits for transport, productivity and liveability in Sydney. The overall benefits of WestConnex include:

….

• New opportunities for urban renewal in the inner west, including along Parramatta Road, especially east of North Strathfield.

…

It is clear that WestConnex is not just a road project. A number of the key benefits it offers to the urban fabric, the economy of Sydney and public transport are discussed in more detail in the following sections.

TB C06 p 21 at [3] (PDF p 21)

4.3

The WestConnex scheme would transform Parramatta Road. The separation of high volume through traffic into a mixture of deep tunnel and road cutting or “slot” would allow the creation of a transit boulevard – a lesser trafficked, high quality public transport corridor – within a revitalised and reshaped built environment.

This transformation would take time. New development next to the transit boulevard would combine residential, business, civic and shopping land uses, capitalising on the improved public transport opportunities and the lower noise and congestion from the removal of through traffic and freight.

A coordinated approach to redeveloping the Parramatta Road corridor supports Sydney’s recent development patterns, with around 80 per cent of development taking place through urban in-fill. It also supports the preference Sydneysiders have shown for mixed use development.

The reshaping of the corridor would have a significant effect on the productivity, sustainability and liveability of this area and Sydney as a whole. It would help create the opportunity for a thriving urban environment and a residential growth area close to the city and existing key transport linkages.

In time communities alongside the corridor would benefit and a high quality and permeable public domain along the Parramatta Rd precinct promoting social and economic activity would be established.

Design principles for this transit boulevard vision would address:

• A high quality built form with a diverse mix of housing and business land uses so that opportunities for economic growth are captured and a vibrant living and working environment created day and night.

• The accessibility and connectivity along and across the new Parramatta Road boulevard, for all public transport modes and local traffic, with shared paths, frequent crossings, parking, bus stops and bridging over the slot motorway at key intersections and desire lines.

• The greening of the corridor with trees and open space to provide shade, air quality improvements, recreation opportunities and a green backdrop.

• The safety of the corridor so that pedestrians and traffic are safely organised and that security and surveillance is maximised and crime prevented.

• The integration and design quality of the slot motorway so that a high quality motorway environment is created for road users that minimises disruption and traffic impacts on the surrounding built environment.

• Other issues and opportunities identified by the local community and stakeholder groups.

TB C06 pp 21-22 at [3.1]

(PDF pp 21-22)

4.4

The Federal Urban Design Protocol indicates that high quality urban development achieves benefits in productivity, sustainability and liveability. Investing in transport infrastructure in the Parramatta Road corridor supports these benefits by not only improving transport but by changing the role and environment of Parramatta Road. It does this through the separation of through traffic and freight from local traffic and the reorganisation of Parramatta Road itself.

…

a project of Westconnex's scale would provide the opportunity to reshape and revitalise the Parramatta Road corridor and open up development opportunities for new residential sites and businesses.

TB C06 pp 26 at [4.2] (PDF p 26)

4.5

WestConnex will be an urban renewal project as well as a transport project. It is intended that public and private sector investments in WestConnex will support renewal objectives as part of the delivery of the motorway program.

The organisation responsible for the planning and delivery of WestConnex will work with the newly established Urbangrowth NSW to develop a master plan for urban renewal along the Parramatta Road corridor and strategies for its achievement.

The master plan will be developed through extensive consultation and collaboration with key stakeholders, relevant authorities, potential developers and landowners in the corridors. Planning and urban design objectives, principles and projects will flow from the consultative process.

TB C06 p 32 at [5.4] (PDF p 32)

NSW Long Term Transport Master Plan: TB: C08 (December 2012)

5.1

An integrated approach to land use and transport planning can meet the community’s social, environmental and economic objectives.

Integrated planning recognises that land use generates demand for travel while the transport system influences how land is used for a particular purpose. Our ability to access employment, education and other services from where we live impacts on the quality of our lives. Likewise, the ability of a business to move its goods and people affects profitability.

…

A growing population and changing patterns to where we live and where our jobs are located will create new pressures that require far-sighted and exible planning for our future transport system.

The Long Term Transport Master Plan takes into account future land use planning, particularly in areas where significant growth will occur both from green eld developments and in ll in existing residential areas.

Ensuring that land use and transport planning continue to be fully integrated will help us strengthen our transport planning processes.

TB C08 p 37 at [1.9] (PDF 37)

5.2

Integrated planning: Sydney’s roads hierarchy – Our approach to planning road investments will create a cohesive road network that features integration with land use planning, integration across all modes and integration with Sydney’s wider public transport network. 


TB C08 p 141 (PDF p 141)

Draft Metropolitan Strategy for Sydney to 2031: TB: C09 (March 2013)

6.1

Parramatta Road Corridor

The Parramatta Road Corridor connects Global Sydney and Parramatta via Sydney Olympic Park. It is one of the busiest road corridors in Sydney.29

The WestConnex Motorway will provide opportunities to transform the local centres that exist alongside the Corridor and better connect them as Sydney Olympic Park grows.

The Parramatta Road Corridor offers prime regeneration opportunities to create lively, well-designed centres with improved north-south and east-west linkages currently limited by the busy Parramatta Road.

This will help to deliver a diversity of housing and jobs choices, close to the shops and services in a new, liveable context.

Priorities for Parramatta Road Corridor

• deliver improved road connections through the WestConnex Motorway, ensuring improvements allow for better links between local centres so they can flourish and attract new investment

• deliver stronger east-west connections along, and at grade north-south connections across, Parramatta Road

• focus on Sydney Olympic Park as a Specialised Precinct to be a major location for employment, high density housing, sports and entertainment

• use the planned regeneration31 to better integrate Sydney Olympic Park into adjacent areas

• facilitate delivery of Urban Activation Precincts at Carter Street and Wentworth Point as part of the wider regeneration of Sydney Olympic Park

• create high quality places and spaces at key points along and adjacent to Parramatta Road

• plan for well-designed housing including smaller dwellings and apartments to ensure the Corridor achieves a higher population density that can stimulate business and retail investment

• plan for a viable and frequent public transport service the length of the Corridor

TB C09 p 23 (PDF p 23)

6.2

The Corridor between Liverpool and Sydney Airport will benefit from work to widen the M5 Motorway and the proposed WestConnex Motorway will be a catalyst for major urban renewal and regeneration along the Parramatta Road corridor.

TB C09 p 71 (PDF 71)

6.3

Our city shapers (see Objective 4, page 18) – including areas for transformative urban renewal and regeneration within the Parramatta Road Corridor, the North West Rail Link Corridor and the Anzac Parade Corridor — will be supported by enhanced accessibility and connectivity through new infrastructure and improved transport services. The WestConnex Motorway will, with a sympathetic design, allow the transformation of centres and suburbs as traffic lessens on the busy Parramatta Road Corridor.

TB C09  p 73 (PDF 73)

WestConnex Strategic Environmental Review: TB C13 (September 2013)

7.1

There is arguably no greater opportunity in Sydney for urban renewal than the Parramatta to CBD Corridor. The Draft Metropolitan Strategy recognises it as one of nine ‘city shapers’ critical to Sydney’s future success. An integrated land use and multimodal response will be required to service renewal of this corridor and to improve amenity in local movements along and across the corridor. As such, the urban renewal of the Parramatta Road Corridor relies initially on a major improvement to existing traffic conditions.

TB C13 p 13 (PDF p 28)

7.2

The strategic need for WestConnex is established in Chapter 2. In summary, WestConnex is needed to:

• Address poor urban amenity along the Parramatta Road corridor due to heavy traffic volumes and congestion throughout weekdays and on weekends.

• Provide new opportunities for urban renewal in the inner west, along Parramatta Road, especially east of North Strathfield.

• Improve liveability for residents and businesses in the corridor.

• Provide for new opportunities for land development and wider land use planning changes.

TB C13 p 105 (PDF p 121)

7.3

The WestConnex scheme will deliver significant long-term benefits to the economic growth and development of NSW and to the nation. It will deliver substantial amenity and environmental benefits, improve the function of the city and assist to reduce the negative effects of traffic congestion along key corridors. This will provide an important catalyst for urban renewal in areas of the city that currently experience poor amenity due to excessive traffic on local and arterial roads

TB C13 p 109 (PDF p 125)

WestConnex Business Case Executive Summary: TB: C14 (September 2013)

8.1

Urban revitalisation will be achieved by:

• fixing transport – putting trucks and cars underground and improving above ground public transport in the inner west

• investing up to $200 million to improve the living environment in the Parramatta Road corridor

• amending planning controls to encourage new investment in residential, retail and commercial enterprises

TB C14 p 25 (PDF 25)

8.2

How WestConnex will trigger urban revitalisation

WestConnex will connect communities like never before. Currently, sections of Parramatta Road are an urban blight because traffic congestion and noise has made them relatively unattractive places to live, work and socialise. Parramatta Road has become a barrier between communities north and south of it.

Travel speeds have fallen as little as 21 km per hour for morning and afternoon peak periods while the M4 is congested 13 hours a day.

It needs to be fixed, and WestConnex will help enable that to happen by putting traffic underground and allowing the above ground landscape to be transformed into a quieter more appealing environment.

In consultation with councils and communities, sections of the Parramatta Road corridor will be rezoned to encourage construction of new apartments and homes, commercial and retail space, recreational, community and other civic and government buildings.

By taking a holistic approach, Parramatta Road can be truly transformed for the better.

TB C14 p 25 (PDF p 46)

Strategic Review of the WestConnex Proposal – SGS Final Report: TB C21 (February 2015)

9.1

The strategy is particularly focused on employment and the economy, with actions including accelerating urban renewal across Sydney around train stations, growing a more internationally competitive Sydney, growing Parramatta as Sydney’s second CBD, improving productivity in Western Sydney, and enhancing capacity at key international gateways and managing long term growth.

TB C21 p 13 (PDF p 19)

9.2

WestConnex was also promoted as supporting freight and people movements to Sydney Airport, relieving congestion and facilitating improvements in public transport. The strategic justification of the projects in the SIS included:

• relieving congestion on the existing M4/Parramatta Road and M5 East

• supporting freight movements between Sydney’s Gateways and the logistics hubs in Western and South-Western Sydney

• supporting people movements to Sydney Airport

• acting as a catalyst for urban regeneration along key corridors, particularly Parramatta Road

• enhancing orbital road connectivity South and West of the CBD

• facilitating improvements in public transport, particularly on the Parramatta Road corridor.

TB C21 p 17 (PDF p 23)

Sydney CBD to Parramatta Strategic Transport Plan: TB C25 (September 2015)

10.3

WestConnex is the catalyst initiative that will substantially contribute to the Corridor’s transformation.

TB C25 p 20 (PDF p 20)

10.4

In the long term, WestConnex will improve access through the inner west and precincts along Parramatta Road and to key regional destinations such as Sydney Airport and Port Botany from both Western Sydney and within the Corridor. It will also reduce traffic congestion on the M4and M5 Motorways, Parramatta Road and the wider road and rail network, particularly in peak periods. This will facilitate urban transformation and improve public and active transport along Parramatta Road and its immediate surrounds.

TB C25 p 24 (PDF p 24)

Draft Parramatta Road Urban Transformation Strategy: TB C26 (September 2015)

11.1

WestConnex provides an accelerated opportunity to transform Parramatta Road – it will change traffic volumes in some areas and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, while encouraging walking and cycling and improving public areas and streets. Improved north-south connections will also come from the transformation process.

TB C26 p 8 (PDF 8)

11.2

The draft Strategy presents an integrated approach that considers the Corridor as a single strategic entity. We have planned the Parramatta Road Corridor from a regional perspective, while also recognising it as a place of many individual but linked places with unique values and characteristics. The draft Strategy looks at ‘big picture’ issues with the depth of local knowledge required to plan for existing and future communities.

TB C26 p 12 (PDF 12)

11.3

What can be done?

One of the most significant influencers that can help address issues on the Corridor is WestConnex.

WestConnex will connect the eastern end of the M4 Motorway with the eastern end of the M5 Motorway to serve longer distance journeys into, out of and through the Corridor. It provides an accelerated opportunity to transform Parramatta Road – it will change traffic volumes in some areas and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, while encouraging walking and cycling and improving public areas and streets. Improved north-south connections will also come from the transformation process.

In this way, WestConnex provides a unique catalyst to transform the Corridor. Its delivery, and the corresponding efforts to revitalise the Corridor, will be realised in stages.

What is New Parramatta Rd?

New Parramatta Rd is the project to transform the Corridor …

TB C26 p 20 8 (PDF 20)

11.4

Delivery mechanisms

Intervention	Mechanism/Tool	Effect	Applied to
Catalytic	Infrastructure delivery Significant projects	… Kick-start the urban transformation process in affected areas	All lands in the Corridor where additional growth is projected

TB C26 p 94 (PDF 94)

Parramatta Road Economic Analysis Report: TB C27 (September 2015)

12.1

Many parts of Parramatta Road have an associated stigma attached, largely due to traffic congestion, poor quality of built form, poor connectivity and lack of public domain amenity. Critical to the success of the PRUTP is government investment in alleviating traffic congestion (WestConnex) and in carrying out amenity improvements along the Corridor. In its current form without any intervention, large scale renewal is unlikely to occur.

TB C27 p 15 (PDF p 19)

12.2

With regard to the Parramatta Road Urban Transformation Program it is understood UrbanGrowth NSW is leading an Integrated Project Team that includes Department of Planning and Environment, Transport for NSW, Roads and Maritime Services and WestConnex Delivery Authority and the local councils along the PRC.

The Integrated Project Team is collaborating with councils along the corridor. One of the key projects apart from the Parramatta Road Urban Transformation Program which will significantly transform the way Parramatta Road is used is WestConnex.

…

WestConnex is one the New South Wales Government’s key infrastructure projects which aims to ease congestion, create jobs and connect communities. The 33 kilometre WestConnex motorway will run from Parramatta along the M4/Parramatta Road corridor to Rozelle, before heading south through Camperdown to St Peters and Sydney Airport, and then west to Beverly Hills. WestConnex will serve longer distance journeys into, out of and through the corridor – most notably for heavy freight, commercial and business. It will enable key parts of the transport system to be reshaped to better serve existing and new customers from a revitalised corridor.

TB C27 pp 23-24 at [1.2] (PDF pp 27-28)

12.3

Conclusion

Many parts of Parramatta Road have a stigma associated with them, largely brought about by traffic congestion, poor quality of built form, poor connectivity and lack of public domain amenity. Critical to the success of the PRUTP is government investment in alleviating traffic congestion (WestConnex) and in carrying out amenity improvements along the Corridor. In its current form without any intervention, large scale renewal is unlikely to occur.

TB C27 p 144 (PDF p 148)

Draft Parramatta Road Urban Design Guidelines: TB C28 (September 2015)

13.1

The objectives of the draft Guidelines are to ensure that:
…

– the opportunity to transform and improve the amenity of Parramatta Road resulting from WestConnex is fully realised;

TB C28 p 5 at 1.2 (PDF p 5)

Parramatta Road Precinct Transport Report: TB C29 (September 2015)

14.1

The Catalyst - WestConnex

The strategic importance of Parramatta Road in the structure and on the functioning of metropolitan Sydney is clear, connecting the two main economic hubs of the Sydney CBD in the east and the Parramatta CBD in the west. However, traffic congestion and associated poor amenity have placed the road under increasing pressure to the point where its many other attributes, including its role as a high street or focus for shopping and trade, have been significantly eroded. This is evidenced by the declining economic vitality of traditional strips of shops, high levels of vacancy in commercial space and an overall degradation of the quality of the street environment over time. From a planning perspective, multiple jurisdictions and levels of Government mean that planning decisions are not easily coordinated. Planning controls are inconsistent and restrict how the land can be used, diminishing incentives for an improved urban environment.

The WestConnex Motorway represents an opportunity to deliver the largest integrated land use and transport project in Australia – a 33km motorway and a 20km urban transformation corridor. It will change traffic volumes, divert traffic and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, while also encouraging walking and cycling. Better transport options and improved urban amenity will enable urban transformation to occur that can optimise the Corridor’s well-established retail and service centres and help to provide significant volumes of diverse, well-located housing and jobs.

TB C29 p 4 (PDF 7)

14.2

The Transport Plan acknowledges in conjunction with WestConnex, the long term vision for how the Study Area will grow and develop to 2050 by capitalising on WestConnex to develop new housing and employment opportunities. It integrates land use and built form with public domain initiatives to meet Parramatta Road’s future population, housing and employment needs. The Precinct Transport Plans have been developed under the visions, directions and initiatives developed as part of the Transport Plan.

TB C29 p 7 (PDF 10)

14.3

A number of transport initiatives / projects have emerged as key opportunities to support / manage growth in the centres and Precincts along the Corridor:

WestConnex:

- To improve access to the inner west and Sydney CBD and to key regional destinations such as Sydney Airport and Port Botany from both Western Sydney and within the Study Area.

- To reduce existing traffic congestion on the M4 and M5 Motorways, Parramatta Road and the wider road and rail network.

- To remove thousands of daily vehicle trips from Parramatta Road, including up to 3,000 daily truck movements.

- To facilitate urban transformation and improved public and active transport along Parramatta Road and its immediate surrounds.

TB C29 p 8 (PDF 11)

14.4

WestConnex is the largest integrated transport and urban revitalisation project in Australia, linking Sydney’s west and south-west with the CBD, airport and port in a continuous 33 km motorway that is completely free of traffic lights.

It will be the trigger for urban transformation providing new opportunities for residential and commercial development along the Parramatta Road Corridor, beautifying streetscapes, adding green corridors and parkland and making it a more attractive place to live, work and socialise. It will transform Sydney by making it easier for cars and trucks to move between employment hubs and the vast residential suburbs and growth centres that house millions of people.

Delivered in three stages over the next decade, the WestConnex motorway project will augment and extend the M4 to the inner city, duplicate the existing M5 East and provide an airport link for journeys to Sydney’s international gateways. WestConnex is a critical part of an integrated transport solution that includes roads and public transport. WestConnex will facilitate improved public transport services and revitalise local communities.

TB C29 p 41 (PDF 44)

Parramatta Road Open Space and Social Infrastructure Report: TB C30 (September 2015)

15.1

The Parramatta Road Urban Transformation Program (PRUTP) is the integrated, cross-agency project established by the New South Wales Government in 2013 to explore, capture and deliver on opportunities for urban transformation along the Corridor resulting from the WestConnex Motorway and in line with A Plan for Growing Sydney.

TB C30 p 7 at [1.3] (PDF p 7)

15.2

1.8 The Catalyst – WestConnex

The strategic importance of Parramatta Road to the structure and function of the city is clear. It represents the spine of the city, connecting the two main economic hubs of Sydney CBD in the east and the Parramatta CBD in the west. However, traffic congestion and associated poor amenity have placed the road under increasing pressure to the point where its many other attributes, including its role as a high street or focus for shopping and trade have been significantly eroded. This is evidenced by declining economic vitality of traditional strip shopping, high levels of vacancy in commercial space and an overall degradation of the quality of the street environment over time. From a planning perspective, multiple jurisdictions and levels of Government mean that planning decisions are not easily coordinated. Planning controls are inconsistent and restrict how the land can be used, diminishing incentives for improvements.

The WestConnex Motorway represents the opportunity to deliver the largest integrated transport and urban renewal project in Australia – a 33km motorway and a 22km urban renewal corridor. It will change traffic volumes, divert traffic and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, while also encouraging walking and cycling. Better transport options and improved urban amenity enable urban transformation to occur that can optimise the Corridor’s well-established retail and service centres and help to provide significant volumes of diverse, well-located housing and jobs.

TB C30 p 9 at (PDF p 9)

15.3	Greater Sydney – Draft Metropolitan Strategy – Key findings relevant to PRUTP - The New South Wales Government plans to capitalise on the delivery of the WestConnex Motorway and staged urban transformation throughout the corridor’s centres.		TB C30 p 53 (PDF)
Parramatta Road Urban Amenity Improvement Plan: TB C31 (September 2015)
16.1	In order to rectify the decay, UrbanGrowth NSW has identified a suite of amenity improvement works that will stimulate urban transformation. Typically, the works are those that local government authorities and the development industry find difficult to achieve as they cross boundaries and are not directly attributable to one particular land holding. Utilising the Westconnex project as a catalyst for renewal, this Program supports the draft New Parramatta Road Urban Transformation Strategy. The works outlined in this Program are considered to offer the greatest opportunity to ameliorate urban decay and encourage urban transformation in an expeditiousmanner.		TB C31 p 5 (PDF p 5)
Draft Parramatta Road Corridor Urban Transformation Summary: TB C32 (September 2015)
17.1	WestConnex is the first in a series of major investments in transport along the Corridor. By reducing congestion and improving connections, this project will act as a catalyst for the Corridor’s transformation, enabling new public transport options and bringing new life to Parramatta Road.		TB C32 p 5 (PDF p 5)
WestConnex M4 East Environmental Impact Statement Vol 1: TB E03a, E03b (September 2015)
18.1	The [M4 East project] is a component of WestConnex.		TB E03a p i (PDF 4)
18.2	The project and the urban renewal of areas along Parramatta Road would be consistent with Direction 3.1 of A Plan for Growing Sydney, which seeks to revitalise existing suburbs. As traffic has increased with the growth of Sydney, many areas along Parramatta Road have become degraded and unattractive to pedestrians and customers due to reduced amenity and limited parking, while areas away from the road are much more attractive. The project would enable the revitalisation of precincts along the Parramatta Road corridor consistent with the Draft Parramatta Road Urban Renewal Strategy.		TB E03a p 3-7 (PDF p 74)
18.3	The project, as part of WestConnex, is expected to reduce through traffic on Parramatta Road. ‘Through traffic’ in this context refers to traffic that travels more than five kilometres along Parramatta Road to destinations away from Parramatta Road. The reduction in through traffic, particularly trucks, would assist in improving public transport and urban amenity, both of which would support future growth along the corridor, in particular residential development. …. The project, as part of WestConnex, would act as a catalyst for this urban renewal, which has the potential to significantly alter land use in these precincts. However, urban renewal in these precincts or in other parts of the Parramatta Road corridor does not form part of the project and would be subject to separate assessment and approval.		TB E03b p 12-36 – 12-37 (PDF 69-70)
WestConnex Updated Strategic Business Case: TB C34 (November 2015)
19.1	The objectives of WestConnex are to: • Create opportunities for urban renewal, improved liveability and public and active transport improvements along and around Parramatta Road		TB C34 p 114 (PDF p 114)
19.2	The reduced traffic and improved active and public transport environment will result in the Parramatta Road corridor becoming attractive for a range of land uses, providing a unique opportunity for urban renewal		TB C34 p 172 (PDF p 172)
M4 East Submissions Report – Volume 1A: TB E04a (December 2015)
20.1	This project is therefore considered to play an important role in the implementation of the Parramatta Road Transformation Program and would be the first stage in the improvement of public transport along the Parramatta Road corridor by reducing the number of vehicles which use Parramatta Road and enabling the future provision of permanent bus lanes (as part of a separate project).		TB E04a p 4-217 (PDF p 283)
M4 East Submissions Report – Volume 1B: TB E04b (December 2015)
21.1	The project (as part of WestConnex) is identified within the Parramatta Road Strategy as a catalyst for the restoration of the Parramatta Road corridor, because it would remove through traffic from the Parramatta Road corridor. ‘Through traffic’ in this context refers to traffic that travels more than five kilometres along Parramatta Road to destinations away from Parramatta Road. The reduction in traffic, particularly trucks, would assist in improving public transport and urban amenity, both of which would support future growth along the corridor, in particular residential development. The Parramatta Road Urban Transformation Program is being undertaken in parallel with the project to implement the Parramatta Road Strategy. A key element of this program is improved public transport services along Parramatta Road. The M4 East and the greater WestConnex would enable traffic reductions on Parramatta Road from Burwood to the CBD, which would in turn free up road space and create greater public transport options for existing and new residents along the Parramatta Road corridor.		TB E04b p 5-19 (PDF p 53)
21.2	As described in section 12.4.2 of the EIS, the project, as part of WestConnex, would be a catalyst for the urban renewal of Parramatta Road in line with the Parramatta Road Urban Transformation Program.		TB E04b p 5-230 (PDF p 264)
21.3	WestConnex supports the needs of Sydney in terms of growth, and improving productivity and liveability through provision of a transport solution. The project would act as a catalyst for urban renewal and improvements to public transport along Parramatta Road by reducing surface traffic		TB E04b p 5-276 (PDF p 310)
Secretary's Environmental Assessment Report: TB E05 (February 2016)
22.1	While the direct provision of public transport is outside of the scope of the WestConnex M4 East project, public transport would facilitate urban revitalisation along the Parramatta Road corridor. Both the Transport NSW Plan and the UrbanGrowth NSW Strategy suggest that WestConnex is catalyst for Parramatta Road’s transformation.		TB E05 p 47 (PDF p 57)
22.2	The Draft Parramatta Road Urban Transformation Strategy identifies new proposed vehicular, pedestrian and cycling connections. The Department considers that the M4 East proposal should, to the greatest extent practicable, allow for integration with the connections outlined in the Strategy and has consequently recommended the Proponent consult with UrbanGrowth NSW during detailed design.		TB E05 p 48 (PDF p 58)
22.3	Connectivity along the project corridor is currently constrained as a result of existing road infrastructure and traffic congestion. In particular, Parramatta Road currently acts as a boundary severing communities either side of the road. The project has the opportunity to enhance connectivity through improvements in network performance and reduced traffic volumes on Parramatta Road. This would assist in the revitalisation of the corridor which may improve community cohesion and connectivity. This revitalisation is being driven by UrbanGrowth’s (2015) Draft Parramatta Road Urban Transformation Strategy.		TB E05 p 90 (PDF p 100)
Parramatta Road Corridor Urban Transformation Infrastructure Schedule: TB C38 (November 2016)
23.1	The Parramatta Road Corridor Urban Transformation Strategy (the Strategy) is an integrated land use planning and transport policy framework for the transformation of the Parramatta Road Corridor (the Corridor). Over the next 30 years, the Corridor is estimated to support up to 27,000 homes and 50,000 jobs.		TB 38 p 3 (PDF p 3)
Parramatta Road Corridor Urban Transformation Implementation Plan 2016-2023: TB C40 (November 2016)
24.1	WestConnex provides an opportunity to transform Parramatta Road. This new infrastructure will change traffic volumes in some areas and, in particular, provide an alternative route for trucks and heavy vehicles. This will free up road space for better public transport, improve amenity along Parramatta Road, and encourage walking and cycling. Planning for the transformation of the Parramatta Road Corridor must be done in consideration of the staged delivery of the WestConnex Motorway and respond to the changed conditions along the Corridor.		TB C40 p 8 (PDF p 8)

ANNEXURE B

ANNEXURE C

Court’s adjustment table of Ismay Avenue sales evidence

R3 Sales Property	A Area of property	B Adjusted sale after market movement	C Amalgamation	D Land size	E Flood & easements	F Combined adjustments C + D + E	G 30% of adjusted sale after market B - F	H Adjusted sale after Court adjustments B - G	I $ rate/m2 of site area of final adjusted sale H/A *	Derived value of Underwood Land I x J **
66 Ismay	546.2 m2	$1,682,000	+10%	-10%	-20%	-20%	$336,400	$1,345,600	$2,464	$4,201,120
60 Ismay	537.4 m2	$1,693,200	+10%	-10%	-20%	-20%	$338,640	$1,354,560	$2,521	$4,298,346
3 Ismay	663.9 m2	$1,404,000	+10%	-10%	-20%	-20%	$280,800	$1,123,200	$1,692	$2,885,063
4 Ismay	518.5 m2	$1,449,100	+10%	-10%	-20%	-20%	$289,820	$1,159,280	$2,236	$3,812,768

J = Underwood Land = amalgamated area of 1,705.3 m2 (comprising: 90 Underwood = 930 m2 and 93 Underwood = 775.3m2)

* For the purposes of this table, figures are rounded up to the nearest dollar

** Actual calculation of J x I (unrounded), then rounded up to nearest dollar

Decision last updated: 19 December 2018