Beach Court Pty Ltd v Roads and Traffic Authority of NSW
[2006] NSWLEC 780
•21/12/2006
Land and Environment Court
of New South Wales
CITATION: Beach Court Pty Ltd v Roads and Traffic Authority of NSW [2006] NSWLEC 780 PARTIES: APPLICANT
RESPONDENT
Beach Court Pty Limited
Roads and Traffic Authority of New South WalesFILE NUMBER(S): 31243 of 2005 CORAM: Jagot J KEY ISSUES: Compulsory Acquisition of Land :- effect of zoning at acquisition date absent public purpose LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Rules 1996 Pt 6 r 1(1)
Local Government Act 1919
Local Government (Town and Country Planning) Amendment Act 1945
Supreme Court Rules 1970 Pt 31 r 2CASES CITED: Griffith City Council v Polegato and Another (1990) 20 NSWLR 696;
Roads and Traffic Authority of New South Wales v Perry and Another (2001) 52 NSWLR 222;
Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407;
The Crown v Murphy and Another (1990) 71 LGRA 1DATES OF HEARING: 6 - 8/11/2006
DATE OF JUDGMENT:
12/21/2006LEGAL REPRESENTATIVES: APPLICANT
Mr J A Ayling SC
SOLICITORS
Fishburn Watson O'Brien SolicitorsRESPONDENT
Mr J B Maston
SOLICITORS
Clayton Utz
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
21 December 2006
31243 of 2005
BEACH COURT PTY LIMITED
ApplicantJUDGMENTROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES
Respondent
Jagot J:
A. Introduction
1 The Roads and Traffic Authority compulsory acquired land owned by Beach Court Pty Ltd at Macauleys Headland, Coffs Harbour, on 19 August 2005. The land in question was lot 101 and lot 102 DP 1080766. The RTA offered compensation of $1,560,000 to Beach Court as determined by the Valuer General (s 42 of the Land Acquisition (Just Terms Compensation) Act 1991). Beach Court objected to that amount and claimed compensation of $5,000,000 (s 66 of the Just Terms Compensation Act).
2 By consent of the parties and order of the Court on 25 August 2006, the following question was identified as appropriate for separate determination (see Pt 31 r 2 of the Supreme Court Rules 1970, incorporated into the Land and Environment Court Rules 1996 by Pt 6 r 1(1)):
But for the public purpose for which the subject land was acquired, what would the effect of the zoning of the land have been as at the date of acquisition?
3 This question reflected the common position of the parties that to give effect to s 56(1)(a) of the Just Terms Compensation Act, I must consider the state of affairs that would have existed at the acquisition date as if the public purpose had never existed (Roads and Traffic Authority of New South Wales v Perry and Another (2001) 52 NSWLR 222 at [14] – [17], [24] – [43], [52], [56]). The parties proceeded on the common assumption that the separate question was directed to the effect of the land use planning zone that would have applied to the acquired land at the acquisition date had the public purpose never existed and that the facts of this matter did not give rise to any issues of the character considered in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407.
4 There was no dispute between the parties with respect to the public purpose or its inception. The relevant public purpose was the provision of a road east of the Pacific Highway, variously referred to in the evidence as a road, a highway, highway deviation and a motorway. Although the width of the proposed road was altered over the years, it was common ground that there was a single purpose and that the purpose existed as early as 1945 and, indeed, pre-dated all of the planning instruments identified by the parties as relevant to the separate question. Although the RTA decided by 1990 or thereabouts that it no longer wished to construct the road, the land remained zoned for the public purpose at the acquisition date and the acquisition provisions of the Coffs Harbour Local Environmental Plan 2000 represented a continuation of the same single public purpose.
5 Mr Smith and Mr Rowan, town planners, gave evidence. Much of their evidence involved a detailed review of documents of the Council and State government authorities from the late 1940’s onwards. The thorough evidence of both planners including the careful historical review they each carried out provided significant assistance in resolution of the separate question, even though they reached different conclusions about the likely course of planning in the area.
6 Mr Smith considered that, absent the public purpose, the land would have been zoned Residential “A” in 1964, and would have retained the equivalent zoning under the Coffs Harbour LEP 2000 at the acquisition date (Residential 2A). Mr Rowan considered that, absent the public purpose, the land would have been zoned 6(a) Open Space until 1980, 7(f2) Environmental Protection (Coastal Lands Acquisition) from 1980 to 2000 and 7C Environmental Protection (Coastal Acquisition) from 2000 to the acquisition date under the Coffs Harbour LEP 2000. Each of these zones contained an acquisition obligation. The RTA acknowledged that if the land were assumed to be within a zone subject to an acquisition obligation (albeit for another public purpose – such as coastal or environmental protection), a further question of the market’s perception of the value of that land would arise under s 56(1)(a). For this reason, the separate question focused on the effect of the zone, rather than the zone per se. Mr Rowan identified that the effect of the zoning of the land at the acquisition date would have been either a new zone 7C Environmental Protection – Coastal to the same effect as the 7C Environmental Protection (Coastal Acquisition) but without an acquisition clause or an amended version of zone 7B Environmental Protection – Scenic Buffer (the amendments being to include the aim of protecting coastal lands and omitting recreational facilities as a permissible use from the amended zone).
7 The fact that Mr Smith and Mr Rowan managed to reach such different conclusions is not unexpected. The public purpose existed prior to the coming into force of any environmental planning instrument. The proposed highway was a significant feature that, by reason of its size, location and function, exerted an obvious influence on the planning of the area. Determining the likely course of planning absent the public purpose from a time when basic road and development patterns were not all (or even mostly) fixed and stretching over a period of some 60 years inevitably involves conjectural elements.
B. Background
8 The acquired lots were created for the purpose of the acquisition. Lot 101 is vacant, partly vegetated, land on the southern side of a ridge that runs from the west to Macauleys Headland. The lot is to the immediate east of the residential properties fronting Macleay Place. It has an area of 2,398 m2 and is separated from lot 102 by an unformed public road. It does not have road frontage other than to the unformed road. It falls to the southwest about 6 metres overall (or 1 in 6). Lot 102 is mainly on the northern side of the ridge. It has an area of 21,630 m2. In that area, the land slopes northeast falling from Richmond Road. About 10% only of lot 102 is on the southern side of the ridge. Lot 102 is vacant and covered by a mixture of grasses and coastal vegetation. Lot 102 has a frontage of about 68 metres on its western side to Richmond Road, and a secondary frontage to Diggers Beach Road. The lots are separated from the public reserves along the foreshore by other land (compulsorily acquired from Beach Court for coastal purposes).
9 In 1945, the Department of Main Roads decided to carry out work to determine the location of a road reserve two chains wide to accommodate a two-lane carriageway through Coffs Harbour. This was the inception of the public purpose for which the land was ultimately acquired in April 2005. Accordingly, the public purpose came into existence at about the same time as the enactment of the Local Government (Town and Country Planning) Amendment Act 1945, which inserted Pt XIIA into the Local Government Act 1919. In common with other land in New South Wales, Coffs Harbour was subject to interim development control from April 1945 onwards. Until 1956, the councils responsible for Coffs Harbour were Dorrigo Shire Council and Bellingen Shire Council, with the acquired land in the Dorrigo area.
10 From as early as 1946, the Department of Local Government urged Dorrigo Shire Council to prepare a planning scheme. In 1949, the Department provided to the Council a town planner, Mr McRae, to prepare a draft scheme as a demonstration or model scheme for the State. By 1951, Mr McRae was involved in discussions with the Department of Main Roads about the preferred route for the road that was to be shown on the proposed scheme map.
11 A civic survey was prepared as part of the proposed planning scheme. It recorded that the previously unplanned development of Coffs Harbour had created numerous problems, including the widespread subdivision of swamplands that required expensive drainage the community would have to fund. The survey noted that the hill country between the two main ridges at Macauleys Headland and Roberts Hill was well suited for future development. It said that the trend was towards “rising ground particularly northwest to north of the town where excellent sites for the extension of the town exist”. There was strong demand for home sites, ample vacant land, but apparently few willing sellers. The civic survey identified the main tourist reserves proposed for the area. These included a reserve extending from Park Beach to Charlesworth Bay “preserving a magnificent stretch of headland…planned as the chief tourist district”. “Charlesworth Bay” was often used at this time to refer to Diggers Beach. Proposed subsidiary parks, primarily meeting scenic needs, included a community forest and scenic reserve on part of portions 20, 36, 43 and 94, being an area where the “higher levels command extensive views over the town and ocean…[that]…could be an excellent picnic spot…Resumption will be necessary as the land is privately owned”.
12 The acquired land was within portions 20 and 36. Both portions were located east of the Pacific Highway. The portions (but not the acquired land) extended to the Crown reserve for public recreation running north from Park Beach around Macauleys Headland and to the beach further north (Diggers Beach). Portion 94 adjoined the western boundary of portion 20 and the southern boundary of portion 36 and extended to the Pacific Highway. All the portions had some irregular boundaries - particularly portion 20 where it adjoined the Crown reserve in a distinctive fishtail shape.
13 Mr McRae prepared a report on the draft scheme. That report recorded that the town had been subject to rapid uncontrolled growth. It observed that if growth exceeded expectations there was sufficient land north and west to accommodate development. The proposed road (to function as a deviation of the Pacific Highway) was described as essential to opening up Park Beach and Macauleys Headland as premier tourist resorts and an immediate priority, with limited access points. The report described the area as one having “many natural attractions awaiting development” and ample land to “best preserve the scenic beauties of the district…at the minimum cost of land acquisition”. Mr McRae identified Macauleys Headland and Charlesworth Bay for the development of tourist resorts, as well as preserving and enlarging the Crown reserve. Also, that Coffs Harbour was fortunate as “proportionately very little land has to be resumed” and care had been taken to “keep the area of land to be resumed at an absolute minimum compatible with a satisfactory plan”. The open space proposals included 38 acres of privately owned land at “McCauleys Head and Beach, Charlesworth Bay” and 9 acres, “portion 36 near McCauleys Head” later identified in the report as part of portions 20, 34 and 36 east of the proposed highway deviation and part of portion 36 west of the proposed highway deviation respectively.
14 Through 1952 to 1956, the draft scheme was exhibited, amended and exhibited again, culminating in a public inquiry. The draft scheme maps included the proposed highway deviation curving through portions 20 and 36.
15 In 1956, North Coast Estates Pty Ltd bought a large tract of land, which included portions 20, 36 and 94. North Coast Estates submitted an application for interim development in 1958. The application related to the land west of the proposed road within portions 20, 36 and 94 and some land to the south. On 22 October 1958, the Council resolved that it considered such development in the public interest for the betterment of the shire and that it should be permitted under the proposed planning scheme - a scheme that the Council thought “failed to make adequate provision for the development of Coff’s Harbour and environs and for the realization of their residential, health and tourist potentials”. The Council resolved to seek the Minister’s approval to object to the draft scheme given the changed circumstances from its preparation and for the Minister to receive a deputation from the Council and North Coast Estates about the development and modification of the draft scheme. The Council also resolved that, although it viewed the development favourably and would approve it as interim development, it felt duty bound to refuse the application as inconsistent with the draft scheme. North Coast Estates appealed to the Department of Local Government, which refused the appeal in December 1958 on the same ground.
16 On 1 May 1959, the Coffs Harbour Planning Scheme Ordinance was made. The scheme map showed the highway deviation as proposed arterial road, about 37.5 metres wide. North of Park Beach Road, nearly all land west of that road was within the non-urban zone. All land to the east was within the 6(a) open space recreation zone. The 6(a) zone also extended west of the proposed road in one area between the road and Pacific Highway. The acquired land, superimposed by Mr Smith and Mr Rowan on this map, would mostly be in the open space zone, with part affected by the road reservation and the non-urban zone (the area of lot 101 in fact lying west of the road reserve as depicted at this time). The area of Crown reserve between the fishtail and the high water mark was noted as subject to a special purpose lease, apparently for the quarrying of materials. Richmond Road did not exist, nor Firman Drive. The proposed road functioned as an obvious and convenient dividing line between the non-urban and open space zones north of Park Beach Road.
17 On 31 July 1959, the Council’s Chief Health Inspector and Shire Clerk met with the Department of Local Government about North Coast Estates’ proposal to develop portions 20 and 36 and part portions 94 and 43. Departmental officers were apparently in favour in principle of the proposed development, which they said could be included in a varied scheme upon the Department receiving satisfactory detailed submissions on all its aspects. The Department was concerned to ensure that the Council did not expose itself to major expenditure relating to development in areas other than those zoned residential and noted that development of these other areas would depend on the rate of residential development and occur much later. The Department observed that it was “doubtful that the Department of Main Roads would consider themselves liable for” the proposed access roads to cross the highway. With respect to the land on the eastern side of the highway that abutted the Crown reserve proposed by North Coast Estates to be zoned for residential flat buildings (and where the proposed roads from this area apparently encroached into the reserve set aside for public recreation), the “Department was adamant on this point in that it wished to preserve the view and surroundings for the Public’s benefit and not for private individuals”. The Department advised that the appropriate course was for “a town planner to prepare a varying Scheme for presentation, along with all details required by the Department”.
18 On 7 October 1959, the Council appointed Mr Stone, town planner, for the purposes of:
(b) Minor revision to the remainder of the Coff’s Harbour Town Plan area including reports if any following investigations.(a) Rezoning and replanning with associated reports to justify the development of Portions 20 and 36 and part of Portions 94 and 43, Parish of COFF, at Macauley’s Headland and land contiguous thereto and owned by North Coast Estates Pty Ltd; and
19 On 4 November 1959, Mr Stone submitted a report to the Council. He said that in order to vary the planning scheme, it would be necessary to justify the expansion of the urban zoning to the north and elsewhere and for the developer to provide “sufficient appropriate recreation areas on the subdivision by dedication”. Mr Stone unreservedly concluded that the Council could justify an extension of the urban zone to the north based on a minimum additional population of 3,500 people. Mr Stone said that he had reached an agreement with the Divisional Engineer of the Department of Main Roads about a crossing point in one location shown on a planning scheme for the Macauley’s Headland subdivision (which, despite their diligent efforts, neither Mr Smith nor Mr Rowan could locate). Mr Stone also noted that North Coast Estates proposed as part of its plan to dedicate a “large slab at the Lookout at Macauley’s Headland”. In a later report in the same year, Mr Stone referred to the major addition to the planning scheme being the proposed residential development of the Macauley’s Headland area “which was shown by the Council to be a desirable development in order to provide for future expansion of Coff’s Harbour as a tourist centre”. More generally, Mr Stone identified that the pattern of open space in the planning scheme was good and should be retained.
20 On 16 December 1959, the Council resolved to give notice of its decision to prepare a varying scheme. I am satisfied that this resolution must relate to the recommendation of Mr Stone in his November report with respect to the North Coast Estates’ proposed subdivision. The Minister approved publication of that resolution on 25 March 1960, at which time it was published in the NSW Government Gazette.
21 By this time, North Coast Estates was in financial difficulty, however. Beach Court, the mortgagee, took possession of the land in February 1962. Just prior to that, in 1961, Beach Court lodged an application to subdivide the Macauleys Headland holdings into 5 acre lots. That subdivision would have precluded residential development of the land as envisaged in the Council’s resolution of 16 December 1959. In its application, Beach Court complained about “the two years of negotiations for rezoning”, which the report said was not the Council’s doing but due to the change of ownership and ideas. The report also said “Macauley’s Headland and adjacent lands are the logical location for the town of Coff’s harbour to expand. The proposed subdivision into 5 acre lots would effectively prevent this essential development”. The Council resolved to increase the minimum subdivision area to 25 acres on the basis that it was preparing a varying scheme for this area to change the zoning from non-urban to urban and that any subdivision into 5 acre lots could materially prejudice its implementation. The Council refused the application in September 1961.
22 Mr Smith identified a file note of 10 August 1962 as a Department of Local Government document, given the file reference and his inspection of other documents. I accept that identification. The file note related to a meeting between a representative of the developer and the chief town planner (I infer, within the Department). The file note included the following:
1 Owner makes an agreement with the Council as a codicil to the title, that as the land is developed by subdivisions, the owner will dedicate the areas indicated as such on an agreed plan.
2 …3 …
5 Any development of land north of Macauleys Headland and east of this proposed road and not shewn on agreed plan as Public Garden and Recreation Space shall be subject to future agreement between Council and Minister for Local Government and the owner, but any such development is not to be construed as necessitating the Department of Main Roads providing access across the proposed deviation of Pacific Highway at the expense of the Department, at or near this land.4 Owner to agree that nothing in any subdivision to be subsequently agreed to by Council after rezoning or release of land shall be continued [sic] as to give the owners of the land, whether subdivided or not any right of access to these proposed deviations of Pacific highway.
Clause in ordinance which requires that in the commercial centre the parking area shall be in the same proportion to the commercial development as is shewn on the plan, plus percentage of service station.
23 On 31 January 1964, Interim Development Order No 2 was made varying the planning scheme. The notice of the making of IDO 2 recorded the Council’s resolution to vary the planning scheme, the Minister’s approval of that resolution and the Minister having received a report by the Town and Country Planning Advisory Committee, as a result of which the Minister considered it expedient to allow development to be carried out notwithstanding the planning scheme, pending the coming into operation of the varying scheme. The IDO 2 map provided for the rezoning of a substantial area of land to residential, with some general business, and special uses, as well as open space, all to the west of the proposed deviation of the highway (which was depicted as about 40 metres wide). No rezoning occurred east of the highway. The land rezoned was part portions 20, 36, 94 and 43 at Macauleys Headland.
24 Apart from the fact that the release of land for urban purposes was limited to land west of the proposed highway, other matters are apparent on the IDO 2 map. One area west of the highway zoned open space under the planning scheme was rezoned residential. The IDO 2 map has been placed over a base plan depicting a subdivision that extended both west and east of the highway. Because the highway was narrower at this time, a substantial part of the acquired land would have been within the proposed subdivided area on this base plan. Two crossing points are shown across the highway, but both have an “X” through them indicating that they are not part of the approved map. The two crossing points are roads within the subdivision continuing east of the highway where further subdivided lots were located, as well as a hotel site and a large slab of land (8.5 acres) to be dedicated as public garden and recreation space. That area, as the inspection of the land and its surrounds I carried out confirmed, contained a high plateau commanding extensive views.
25 In June 1965, the first plan of subdivision of this new residential area was registered, being part of portion 36. That plan depicted subdivided residential lots and various roads within the subdivision, including Richmond Road (adjacent to the highway), Clarence Crescent, Macauleys Headland Road and Macleay Place. All the residential lots were to the west of Richmond Road in accordance with IDO 2. None of the east west roads in the subdivision extended beyond Richmond Road.
26 In June 1965, the Department of Main Roads approved the route of the highway, including its width, accesses, and grade separation at Park Beach Road and Arthur Street. By notice published in the NSW Government Gazette, the route was proclaimed as a motorway. Its width was increased to “greater than 200 feet” in June 1965 and, in September 1965, was increased again to 310 feet (about 94 metres). This incorporated the whole of the acquired land.
27 IDO 2 was rescinded and replaced by Interim Development Order No 7 on 19 August 1966. The IDO 7 zoning map depicted largely the same residential subdivision west of the highway, with some adjustments to the open space zonings. East of the highway, no residential subdivision was shown, however. The zoning map included a single access point across the highway at Arthur Street, with a dotted line north in the location between portions 35 and 36. A note along the highway route stated, “access across [this] boundary is denied”. The highway was also considerably wider than previously identified, presumably consistent with the declaration by Department of Main Roads in 1965 (that is, a 94 metre wide highway reservation).
28 By 1967, the State Planning Authority (constituted in 1963) had established the Sim Committee to examine development of the northern coastal areas in New South Wales. The Sim Committee published its report, but it said little about the Coffs Harbour coastline.
29 By 1969, local groups were more actively seeking a shift of the highway west of the town. The Council resolved in May of that year to seek relocation of the route. However, the Department of Main Roads would not alter the route or the access points. The Council was still trying to get the highway shifted in 1970. At about this time, the State Planning Authority also consulted the Council about coastal protection and commenced a coastal landscape study of the Coffs Harbour/Sawtell area. Another owner of land zoned open space east of the highway sought rezoning to permit development. The Council resolved on 26 August 1970 that it would be “totally against all planning principles for this area east of the motorway to be developed for any other purpose than open space, and negotiations should be carried out with the company towards the acquisition of the open space area”.
30 In March 1971, a report to the Council about the efforts of the local progress association to shift the highway to the west recorded that it would be unreasonable to do so given the length of time that the highway had been proposed in its eastern location and the impacts on the new developments in the western area. In the same year, the State Planning Authority established an inter-departmental committee on the means of “securing the appearance of the coast and its protection against undesirable development”.
31 In January 1972, IDO 7 was amended to enable tourist related development between Arthur Street and the southern side of Macleay Place on the western side of the highway.
32 The inter-departmental committee on coastal protection recommended that certain lands along the coast should be either acquired or protected by stringent planning controls, including part of the land owned by Beach Court east of the highway. Cabinet approved the committee’s recommendations in 1973, thereby establishing the coastal lands protection scheme. In June 1973, the Council considered a proposal for caravan parks and cabins on part of lot 75 DP 3320 (Beach Court’s land), east of the highway on land zoned open space. The report recorded that the area east of the motorway was a significant landscaped feature that should be kept as open space and not alienated for private use, and noted that the owners could request acquisition. In 1974, the coastal protection provisions were applied to the whole of Beach Court’s land east of the highway. Various discussions relating to the acquisition of lot 75 by the Planning and Environment Commission, the successor to the State Planning Authority, occurred thereafter. The negotiations did not result in acquisition of Beach Court’s land.
33 Draft interim development order No 67 was prepared in April 1977. It proposed to rezone the land east of the highway for coastal protection purposes (including the eastern part of lot 102). IDO 67 was not made, however. Instead, Interim Development Order No 80 was made on 30 May 1980. On the map accompanying that instrument, the highway reservation width was about 66m. The land east of the reservation was zoned 7(f2) Coastal Lands Acquisition and 7(f1) Coastal Lands Protection. The highway was zoned Special Uses “C” (Arterial Route). Under this instrument, lot 101 and the western part of lot 102 were in the road zone, whereas the eastern part of lot 102 (about 30%) was in the 7(f2) Coastal Lands Acquisition zone.
34 Negotiations for the acquisition of Beach Court’s land continued spasmodically thereafter. In 1981, Beach Court retained consultant planners to assess the development potential of their holdings. The consultants identified most of the land as capable of visually acceptable development, excluding the area of the ridge running from Richmond Road to the east and the high area (including the whole of the fishtail area). The area identified as unsuitable for development for visual reasons was similar to the area proposed to be dedicated as public garden and recreation space on the plan of subdivision underlying the IDO 2 zoning map.
35 In 1985, Local Environmental Plan No 33 amended IDO 80 by rezoning land immediately north of Diggers Beach Road and east of the highway deviation to 2(d3) Residential – Tourist and 6(d) – Open Space – Landscaping Private.
36 The North Coast Regional Environmental Plan came into force in January 1988. At the time it came into force the REP contained provisions relating to coastal development with respect to plan making and development control.
37 On 6 April 1988, the Coffs Harbour Local Environmental Plan 1988 was made. It maintained the special uses and coastal zonings under IDO 80.
38 In July 1990, the RTA advised the Council that it no longer intended to construct the highway. Consistent with that advice part of the land within the highway, north of Diggers Beach Road, was rezoned to permit residential development in 1992. The land to the south (including the acquired land) remained in the special uses arterial road zone.
39 The State government adopted the NSW Coastal Policy in 1997. The primary object of the policy was to better coordinate the sustainable management of coastal lands. The North Coast REP 1988 was amended in 1999 by the introduction of provisions with respect to coastal protection requirements in plan making and development control consistent with the 1997 policy.
40 In May 1999, Beach Court served notice on the RTA to acquire the land. At the same time, it served notice on the Department of Planning to acquire the land to the east in the coastal protection zone. A draft LEP exhibited by the Council apparently excluded acquisition clauses for the land, prompting the service of these notices. The Department obtained a planning report about Beach Court’s land in 1999, including the land to be acquired by the RTA. That report observed that the motorway route had functioned as a clear and obvious division between the residential development to the west and coastal foreshores to the east since the early 1950’s. The report recommended the release of land to the south of the acquired land for medium density residential development and, given its coastal scenic values, the retention of the balance of the land for environmental protection.
41 The Coffs Harbour Local Environmental Plan 2000 was made on 30 April 2000. Despite the events from 1990 onwards, the acquired land was zoned Special Uses – Community Purposes (identified on the zoning map as 5A Classified Road). Clause 20(7) contained an acquisition obligation applying to such land, the relevant acquisition authority being the RTA. The land east of the classified road zone was in the 7C Environmental Protection Coastal Acquisition zone. The Department subsequently acquired that land.
42 Apparently, Beach Court and the RTA agreed that the notice requiring acquisition would be withdrawn if a suitable rezoning of the acquired land could be obtained. The RTA thus requested the Council to consider rezoning the land. In 2001, the Council prepared a local environmental study relating to land within the road corridor in accordance with this request. The study recommended rezoning the northern section of the highway (including the whole of the acquired land) to 7A (Environmental Protection – Habitat and Catchment) and the southern section to 2C (Residential – Medium – High Density). A report to the Council in July 2001 recorded that the northern section was a very sensitive location of scenic and ecological value, and that any development of it would dominate the headland and significantly impact upon the conservation values of the whole headland. In contrast, the lower, less prominent, southern section could be developed for residential purposes.
43 A report of January 2002 identified that Planning NSW (as it was then known) requested a stricter environmental protection zone over the proposed 7A land. A report of April 2002 recommended that the acquired land be zoned Environmental Protection 7C Coastal Zone, absent an acquisition clause as no public authority wished to acquire the land.
44 Beach Court served a further notice on the RTA requiring it to acquire the land on 5 March 2004. The RTA acquired the land on 19 August 2005. At that time, the proposed rezoning to 7A or some stricter environment protection zone had not occurred. The draft instrument rezoning the acquired land was not exhibited until October 2005, after the acquisition. The rezoning itself did not take place until July 2006.
C. Evidence of Mr Smith and Mr Rowan
45 Mr Smith had over 40 years’ experience as a town planner, having started his professional career in 1958 at Brisbane City Council. By 1963, Mr Smith was the director of research of the Urban Planning and Research Centre in Sydney. He has worked as a planner since 1958, and is also a surveyor. Mr Smith considered that, had the public purpose never existed, the acquired land would have been zoned non-urban under the 1959 planning scheme and residential “A” under IDO 2 in 1964. He acknowledged that it was possible that the zoning may have altered between 1964 and the acquisition date, although he thought the prospects of such a change would have been limited. He concluded that if the zoning had been altered, it would have been to a more generous residential zoning, namely, 2(d) to permit tourist development and the like.
46 Mr Smith observed that, in the late 1950’s and 1960’s, the headland was much less well vegetated than at the acquisition date. East of the fishtail, there were special purposes leases for quarrying, including haul roads. The headland could not be described as pristine. Moreover, it was anachronistic to project current notions of protection of the environment back to the late 1950’s and early 1960’s. The word “environment” was “almost unheard of” at that time. The primary focus was engineering matters – drainage, sewerage, roads, kerbs and gutters. Open space zones were not for the purpose of protecting the environment or to preclude development. They were to provide areas for people to enjoy, in the form of camping reserves, tourist developments and the like. For example, in the late 1950’s the Council facilitated the development of a hotel near Park Beach Road (including financing the development) when that land was zoned open space. Land zoned open space in 1959 near Park Beach was also released for flats and urban development in the late 1960’s and early 1970’s.
47 In Mr Smith’s view, the highway proposal formed a “handy boundary” for planning purposes. Mr Smith accepted that the 1959 planning scheme generally used property boundaries to delineate zones, but noted that the same could not be said of IDO 2 or otherwise. Absent the highway proposal, another boundary would have been found between the urban and open space zones applied to the Crown reserves. It was not now possible to say exactly how far east the urban zone would have extended absent the highway. It may not have extended to the fishtail – but it would have extended to the east of the acquired land. Mr Smith thought that the documentary records supported his conclusions, as they contemplated development east of the highway in the late 1950’s to mid 1960’s or so. Issues with access across the highway, and responsibility for paying for access structures, were never able to be resolved, however. Thereafter, the notion of development east of the highway “wilted”. One reason for this was that the 1965 highway route determined by the Department of Main Roads was wider, and both removed about half of the land available for development on the eastern side of the highway north of the ridge and increased the required width of any crossing (and presumably the cost of providing it).
48 Mr Rowan commenced his professional career as a town planner in or about the mid 1980’s, having graduated in 1984 and thereafter obtained post graduate qualifications in urban conservation and design (1985) and building surveying (1987). Mr Rowan considered that, while lot 101 was not visually sensitive, lot 102 was prominent from many important vantage points. The absence of vegetation in the late 1950’s and 1960’s would have made this sensitive coastal land more visible. These qualities had been recognised in the work of Mr McRae and in the documents thereafter. The open space zoning imposed on land east of the highway in 1959 reflected the qualities of the acquired land.
49 In Mr Rowan’s view, the highway purpose influenced planning in the area, being a ready-made feature available to function as a convenient boundary between zones. He concluded that the highway resulted in more land being released for urban development west of the highway than otherwise would have been the case. Absent the highway purpose, the Council would have had to rely on other features to locate the zone boundary. Consistent with the Council’s approach elsewhere it would have used property boundaries to delineate different zones. Given the physical features of the acquired land, its visual prominence, slope and landscaped significance as part of the headland, the open space zone would have extended further to the west in 1959 (and thereafter) than it in fact did. The whole of portion 20 would thus have been within the 6(a) open space zone from 1959, with that zone extending northwards into portion 36 by a notional extension of the boundary between portions 20 and 36. This was consistent with the focus at the time on residential development west of the town, with the northern coastal areas to perform open space functions. Mr Rowan considered that the documentary record supported his conclusions, in particular that urban development east of the highway was never, and would not have been, contemplated. Had it been contemplated as Mr Smith said, then there were a number of opportunities for it to be achieved (when IDO 2 and IDO 7 were made), but it did not occur.
50 Mr Rowan did not think the 6(a) open space zoning would have been relaxed after its imposition in 1959, absent the highway purpose. Environmental considerations, particularly coastal protection, increased in importance with time. The land would have remained in a zone that, in substance, prohibited development of the land by construction of buildings, as summarised in paragraph 6 above.
51 If, contrary to his opinion, the land would have been zoned for residential development in or about 1964, then Mr Rowan also considered that there would have been a risk of either down-zoning after the creation of the coastal lands protection scheme to an environmental/coastal protection zone or of the imposition of development constraints through the planning regime. Mr Smith rejected the notion of down-zoning. He was not aware of any instances where residentially zoned land capable of residential development had been down-zoned as suggested by Mr Rowan. To his knowledge, it had only occurred for flood liable land. Mr Rowan knew of one rezoning from 3(b) to 6(a) (with an acquisition clause) to meet a shortage of open space and another example of stringent development controls being imposed on coastal land (without an acquisition clause). He also pointed to the Department’s position with respect to the subject land after 1999 (that is, for a more stringent environmental protection zone absent an acquisition clause).
D. Submissions
52 Senior Counsel for Beach Court submitted that the 1959 planning scheme was out of date before it was made. Mr Stone was appointed to prepare the varying scheme almost “before the ink was dry” on the planning scheme. The open space zone imposed in 1959 thus had to be seen as a form of holding zone, not as an identification of land required in perpetuity for open space purposes. So much is evident from the large open space area west of the highway that was rezoned from open space to residential in IDO 2 and the open space areas later rezoned and developed to the south of the acquired land, near Park Beach. The appointment of Mr Stone was inconsistent with any notion of the open space zones in the planning scheme being immune from rezoning. Moreover, the Council supported the North Coast Estates’ proposed development – the only reason for its reluctant refusal being the imminence of the planning scheme. Development on the eastern side of the road was postponed in 1964, primarily as a result of the absence of agreement on access across the highway at the expense of the Department of Main Roads. IDO 2 reflected the more limited proposal west of the highway, thus avoiding the problem of access across the highway.
53 The IDO 2 map depicted the developer’s proposed subdivision east of the highway. The map did not include the contentious residential flat building or roads within the Crown reserve rejected by the Department of Local Government, and should be inferred to be a later version of the plan considered by the Department at that meeting. It is inconceivable that the Minister would have used the developer’s subdivision plan as the base for the IDO 2 map unless that plan had been the subject of discussion with the Department or if the open space zoning east of the road was thought to be incapable of development in perpetuity. The plan included a dedication of public recreation space consistent with the description in the 1962 memorandum (and Mr Stone’s 1959 reports), including the area around the trig station (a high point) that would have provided a fine lookout. The plan also included two access points crossing the highway both of which have been crossed out. This is consistent with the Minister’s knowledge that no agreement for such access had been reached with the Department of Main Roads.
54 For these reasons, IDO 2 should be seen as having deferred the otherwise acceptable development east of the highway, subject to resolution of the issue of access. Absent the highway, the acquired land would have been rezoned residential in 1964 consistent with the land west of the highway. This opportunity lost in 1964 did not return. In particular, the 1965 declaration by the Department of Main Roads as to the final route widened the highway - making the 1964 proposed subdivision east of the highway impractical without major redesign. No progress was made on resolving the issue of access. Indeed, the problem became intractable by 1966 as the widened route was depicted as access denied on the IDO 7 map. While that would not have precluded an overpass, the greatly widened highway would have made it more expensive – in circumstances where the developable land east of the highway had been greatly reduced in area. Once the acquired land was rezoned residential in 1964, as it would have been but for the public purpose, there was no prospect of a further rezoning (specifically, down-zoning) for environmental/coastal protection purposes. Neither planner could point to any specific example of that having occurred. The acquired land would have remained in its residential zone at the acquisition date.
55 Counsel for the RTA submitted that there was an important difference in methodology between Mr Smith and Mr Rowan. Mr Smith had relied wholly on the documentary record, but the record was affected by the public purpose. Mr Rowan’s approach had regard to evidentiary sources capable of being separated from the public purpose – in particular, planning principles at the relevant times, the physical features of the land, statutory instruments and government policies from time to time, inferences from the actions of planning authorities and the treatment of the acquired land after the public purpose ceased to exist.
56 Relevant planning principles included the use of cadastral boundaries to determine zone boundaries and protecting elevated scenic headland areas. Relevant characteristics of the land included its scenic importance, elevation and visual prominence, topography (including some steep slopes) and drainage and run-off issues. These matters were required to be taken into account (The Crown v Murphy and Another (1990) 71 LGRA 1 at 4). Relevant policies included the coastal lands protection scheme 1973, the North Coast REP 1988 with its focus on planning instruments protecting undeveloped headlands and the NSW Coastal Policy 1997. Relevant actions of planning authorities included that at all times from 1959 onwards land east of the acquired land was in open space or coastal protection zones prohibiting development. Development east of the widened highway corridor was never contemplated. When the public purpose was abandoned, the Council prepared a local environmental study (absent any effect from the road purpose). That study, consistent with the planning principles and characteristics of the land, identified it as appropriately zoned for environmental protection purposes.
57 By reference to these classes of evidence, the only conclusion open was that reached by Mr Rowan – the acquired land would have been suitable only for an acquisition zoning as identified by Mr Rowan. The effect of that zoning would have been that the land was incapable of urban development and would have been seen as such at all times. This is supported by the fact that the land must be assessed in its condition at the acquisition date (vacant, well vegetated coastal land). That fact is also important given the development of the coastal policy. The coastal policy was independent of the public purpose. The development of that policy would have removed any potential for development of the land by the acquisition date. Compensation cannot be awarded for a prior potentiality (Griffith City Council v Polegato and Another (1990) 20 NSWLR 696). Consistent with Mr Rowan’s evidence, the only effect of the public purpose was to extend the boundary of residential development further to the east than would otherwise have been the case.
E. Findings
Some general matters
58 I have referred above to the RTA abandoning the public purpose from about 1990 onwards. I do not accept that the effects of the public purpose ceased from that time, however. The RTA no longer wished to construct the highway, but the acquired land remained zoned for special uses road purposes at all times up to the acquisition date.
59 For these reasons, the RTA’s characterisation of the 1999 planning study commissioned by the Department of Planning as a traditional zoning study unaffected by the public purpose cannot be accepted at face value. Certainly, the responses of the Council and the Department to that study cannot be so characterised. Beach Court had first served notices requiring acquisition of its land in 1999. The local environmental study was prepared against the background of the notices served on the Department and the RTA. The response to the study’s recommendations with respect to the zoning of the land, including the absence of an acquisition clause, must be understood in that context.
60 Mr Rowan described the ultimate rezoning of the land after the acquisition date as “the first time I've seen a Minister do it this way”. Nevertheless, he used the events after 1999 and before the acquisition date to support his opinion that if the land had been zoned residential in 1964 (contrary to his conclusion), down-zoning of the land thereafter was “not out of the realms of impossibility [sic]”. However, the sequence of events from about 1999 onwards was materially affected by the public purpose – in particular, by the fact that Beach Court had served notices securing its right to have the land acquired and compensation paid in accordance with the Just Terms Compensation Act before the local environmental study was carried out or considered by the Council and the Department. Moreover, these events pre-supposed that the land had been zoned for road purposes at all material times. Accordingly, these events should not be treated as unaffected by the public purpose, any more than the events of the 1950’s and 1960’s were unaffected.
61 I have referred above to Mr Smith’s evidence and Beach Court’s submissions about the risks of anachronism. I think those concerns are well founded. It would be wrong to draw inferences assuming planning decisions of the 1950’s and 1960’s reflect immutable planning principles when the evidence discloses an evolution of planning over time, with significant shifts within periods of five to ten years. Insofar as possible, the hypothetical course of events, absent the public purpose, must be approached through the eyes of the relevant planning bodies at the time. This includes the drawing of inferences from the physical characteristics of the land - in respect of which there was no debate that I must have regard to the actual physical condition and characteristics of the land as the RTA submitted.
62 I referred above to the RTA’s submission about a methodological difference between the evidence of Mr Smith and Mr Rowan – the former said to be relying solely on documents of the time affected by the public purpose and the other relying on more reliable sources of evidence. The line in Mr Smith’s report said to support the submission (paragraph 1.9) must be assessed in context. When that is done, it is apparent that Mr Smith’s opinions were not a mere interpretation of documents. His opinions were based on a detailed understanding of the physical characteristics of the land and its surrounds, the history of development and planning in New South Wales generally and the Coffs Harbour area in particular, and his experience as a town planner for the best part of 50 years, 43 of them as a principal of town planning practices in New South Wales. Moreover, Mr Rowan’s opinions were also formed after close inspection of not only the land and its surrounds, but also the documentary record. In my view, the approach of both planners, relying on all available sources of information including a detailed review of the documentary record, was sound.
Up to 1960
63 I am satisfied that the initial proposed development of North Coast Estates was limited to the land west of the proposed highway solely because of the existence of the highway. Absent the highway purpose, I can see no reason for the proposed development to have been so limited. Nevertheless, I think this largely immaterial to the events of 1959 because the proposed development, even west of the highway, was in the non-urban zone and inconsistent with the draft planning scheme. The development proposal was (reluctantly) rejected by the Council for that reason, and subsequently refused by the Department of Local Government on appeal on the same ground.
64 It is inevitable that there is a substantial conjectural component in seeking to identify the zonings that would have been imposed in 1959 absent the highway purpose. Although I accept the evidence of the planners that there was a tendency to use cadastral boundaries as zoning boundaries in 1959, I do not think that can be taken too far. Many of the portions were large tracts of land, with irregular boundaries. Mr McRae expressly contemplated placing parts of portions in the open space zone, albeit reflecting the division of those portions by the highway. The fishtail at the eastern end of portion 20 was a most unusual shape, presumably created when the Crown reserves were dedicated (apparently in 1916 and 1923).
65 Given the configuration of portions 20 and 36, I do not accept that the tendency to rely on cadastral boundaries would have overridden all other considerations. For example, portion 36 extended far to the west of portion 20 and portion 20, through its fishtail, extended to the east of portion 36. Whatever the approach taken, the zoning boundary would have been irregular if the zoning of any part of the portion necessarily dictated the zoning of the whole. I think it very unlikely that, even in 1959, the zoning boundary necessarily would have followed the portion boundaries, particularly given the configuration of portions 20 and 36.
66 Mr Rowan relied on parts of the civic study and Mr McRae’s reports identifying the scenic values of these coastal areas as supporting his conclusion that the land would always have been recognised as requiring protection from development. Two matters are apparent. First, while those documents do identify the scenic qualities of the coastal areas, the focus at the time was evidently more the provision of areas suitable for tourist development and tourist recreation areas than the protection of areas of inherent environmental value. Secondly, the Council did not think that the 1959 planning scheme made sufficient land available for development. In July 1959, a few months after the scheme was made, the Shire Clerk and Chief Health Inspector met the Department of Local Government with the obvious purpose of facilitating a rezoning to enable North Coast Estates to develop its land. Mr Stone was retained a few months later to review the plan to facilitate the North Coast development proposal.
67 I am also satisfied that the development proposal was amended to include land east of the highway shortly after the 1959 planning scheme was made. A readily available inference that I draw from the documents and the sequence of events is that North Coast Estates excluded land east of the highway from its formal development application to avoid the problems inherent in obtaining approval for a highway crossing over what had already been identified as a limited access road, presumably in the hope of obtaining a quick approval for at least some development before the planning scheme was made. Once its original proposal had been refused and the planning scheme made, there was no logical reason for North Coast Estates to limit its proposed development to the land west of the highway. Whether zoned non-urban or open space, rezoning was required to enable residential development to proceed. The meeting with the Department of Local Government in July 1959 referred to the proposed residential flat building on the eastern side abutting the public reserve, the roads to cross the highway and the likelihood that the Department of Main Roads would see that as a cost to be borne by the developer, not by it. This sequence of events leads inevitably to the inference that North Coast Estates, supported by the Council, proposed to develop the land both west and east of the highway from July 1959 at the latest.
68 Mr Rowan considered that the Department’s rejection of the proposed residential flat building zone east of the highway demonstrated the consistent objective of retaining all land east of the highway free from development. Like Mr Smith, I do not read that reference, when considered in context, as an indication of the Department opposing any development east of the highway. First, at that time, there was a relatively large area east of the highway and west of the public reserves (because the highway was narrower than it ultimately became). Secondly, the reference to crossings indicates access for development extending north and south of the fishtail, where there was ample land to accommodate development not immediately abutting the reserves. Thirdly, had the Department been adamantly opposed to any development east of the highway, then the access issue with the Department of Main Roads would have been largely moot, at least insofar as the developer was concerned. The fact that the crossings were still seen as an issue requiring resolution in the specific context of the North Coast Estates’ development is a strong indicator that the Department was not adamant that there should be no development at all east of the highway – it was adamant that there should not be residential flat buildings right next to the Crown reserves dependent for access on roads encroaching onto those reserves.
69 The significance of the open space zone imposed in 1959 must also be assessed in the context of the subsequent retainer of Mr Stone about the proposed variation of the planning scheme to accommodate the development plans of North Coast Estates. It is obvious that the Council strongly supported the development at this time. The fact that Mr Stone identified the general pattern of open space in the 1959 planning scheme as appropriate can only be understood as a reference to the planning scheme excluding the area of the North Coast Estates’ proposed development. The Council’s December 1959 resolution to prepare a varying scheme to facilitate this development was consistent with its conduct since North Coast Estates acquired the land – namely, to support development and the crossing over the highway ultimately negotiated by Mr Stone with the Department of Main Roads (and, indeed, more crossings if they could be obtained).
70 Accordingly, by the end of 1959, I am satisfied that the acquired land might have been zoned either non-urban or open space. Neither zone would have been seen as immutable. North Coast Estates wished to develop the land west and east of the highway generally for residential purposes. The Council strongly supported that development. The Department of Local Government was prepared to support that development in principle, provided various issues could be resolved to its satisfaction, but was not prepared to support residential flat buildings abutting the reserves or roads encroaching within the reserves. One issue that had to be resolved was access to the development across the highway, where the Department thought that the Department of Main Roads would see that as a cost to be borne by the developer. Mr Stone considered that he had resolved the concerns of the Department and had managed to agree a crossing point with the Department of Main Roads. He considered the development appropriate. The Council did also and resolved to make a varying scheme. The Minister allowed notice of that decision to be exhibited in March 1960.
1960 to 1967
71 The financial difficulties of North Coast Estates and the taking of possession of the land by Beach Court in 1962 would have delayed the progress of the foreshadowed varying scheme. At the same time, it is apparent that the position of the Department of Main Roads, both about crossing points and their cost, remained a significant issue for resolution given that the highway design and width was the subject of review and revision in this period.
72 I infer that Beach Court’s 1961 application to subdivide the area west of the highway zoned non-urban into lots of 5 acres was a tactic intended to force the Council’s and Minister’s hand – by proposing to develop that land in a manner incompatible with its ultimate urban development as supported by the Council at this time. If so, the tactic failed. As the Council said, the delay was not the Council’s doing. The Council obviously still supported the residential development, because it refused this proposal as inconsistent with its proposed varying scheme.
73 By August 1962, significant progress had been made. I am satisfied that there was both a plan in existence at that meeting (namely, a further revision of the plan considered by Mr Stone in 1959) and a plan or plans contemplated to be brought into existence showing the staging of the subdivision and the associated land dedications, with the land east of the highway to be subdivided in later stages than land west of the highway. Consistent with my findings above, I am satisfied that the plans in existence and contemplated involved residential development west and east of the highway, as well as a large dedication of public garden and recreation space the same or similar to that considered by Mr Stone. Further, that the Department had no objection in principle to the proposed development – hence, the reference to the development east of the highway and north of the headland being subsequently agreed to by the Minister and Council. No concern was raised about rezoning land within the open space zone east of the highway. The Department’s primary concerns were to ensure that it could not be understood as representing that access to the highway would be permitted at any time or that the Department of Main Roads would be responsible for providing a crossing over the highway to the land on the eastern side.
74 The land referred to in item 5 of the 10 August 1962 file note must be understood as including the acquired land – being the land east of the highway and north of the fishtail. I infer that Beach Court proposed to develop the land west of the highway first as that land was not subject to any requirement for construction of a (potentially expensive) crossing over the highway. Provided the developer was prepared to accept that the subdivision would have no access onto the highway itself (which it plainly was prepared to accept), the subdivision of the western land could proceed absent any problem with the Department of Main Roads. The remaining barrier to development east of the highway was access over the highway itself – water reticulation and drainage being matters that I infer were readily capable of resolution much as Mr Stone had indicated in late 1959.
75 It follows that I do not accept that the scenic coastal location, visual prominence or topography of the acquired land would have precluded or discouraged its rezoning for residential development in the early to mid 1960’s.
76 First, whether the acquired land is part of the headland proper or not, it is set well back from the foreshore reserves. The physical characteristics said to preclude its rezoning potential in the early 1960’s (coastal location, visual prominence and topography) were not substantially different from the land to its immediate west and would have made the land attractive for residential development.
77 Secondly, the prominent ridgeline running through the land did not operate as a barrier to development west of the highway. That development, absent the vegetation, would have been more visually prominent in the 1960’s than it is presently.
78 Thirdly, the rezoning and development proposal incorporated a large area of land to be dedicated as public garden and recreation space from at least late 1959. That area can readily be inferred to be the most elevated part of Beach Court’s land around the trig station. The alternative locations suggested by the RTA are untenable.
79 Fourthly, the documents referred to above strongly support inferences that North Coast Estates/Beach Court proposed development east of the highway from immediately after the making of the 1959 planning scheme, that the Council supported that development and that, by August 1962, the Department’s remaining concerns were either capable of ready resolution or related to access to or over the highway.
80 Finally, nothing in the documents supports inferences that the open space zoning was considered immutable or that development east of the highway was inconsistent with some fundamental planning principle at this time. For example, the August 1962 file note does not raises any in principle issue about development east of the highway - where it would have been expected, given the obvious context of crossings of the highway to facilitate development on its eastern side. The reference in the 1959 report to the Department’s adamant position against residential flat buildings as proposed is not supported by the concept of any development east of the highway being unacceptable - as one might also have expected if that were then the Department’s view. Nor can the focus on the highway crossings in the specific context of the development proposal be adequately explained as serving a broader community access purpose, as Mr Rowan suggested. The crossings might well have done so – but the inference that should be drawn from the documents is that the developer was focused on resolving the access issue for the purpose of facilitating development of its land east of the highway. The conduct of the developer, the Council and the Department of Local Government between 1959 and about 1966 is inconsistent with the notion that such development was perceived as precluded by the characteristics of the land and/or the open space zoning imposed in 1959.
81 Once IDO 2 is placed in this context, its limited extent and the form of the zoning map may readily be understood. IDO 2 was an interim measure, enabling residential development west of the highway, as one aspect of the more general proposed varying scheme that the Council resolved to prepare in December 1959. In so doing, IDO 2 rezoned the non-urban and an open space area west of the highway to residential, consistent with my conclusion above that the open space zoning, at that time, was not seen as immutable.
82 I am satisfied that the base plan used for the IDO 2 zoning map was the then current version of Beach Court’s proposed subdivision west and east of the highway. I infer that the Minister used the developer’s proposed subdivision as the base plan as it was intended at the time that the land east of the highway would also be released for residential development in the foreseeable future. The base plan is generally consistent with the descriptions in Mr Stone’s reports and the August 1962 file note. The use of that plan as the base for the IDO 2 zoning map is consistent with the findings above and inconsistent with the RTA’s submissions about the course of events that in fact occurred and would have occurred absent the highway purpose. The two crosses marked on the IDO 2 zoning map indicate that, although two years had passed, the issue of crossings over the highway remained unresolved.
83 I am satisfied that, absent the highway purpose, the land east of the highway would have been rezoned by 1964 to facilitate residential subdivision generally as identified on the IDO 2 base map. That is, the acquired land, absent the highway purpose, would have been rezoned Residential “A”, whereas the land proposed to be dedicated as public garden and recreation space would have remained within the Open Space (Recreational) zone. I accept Beach Court’s submissions that the reason the land was not so rezoned under IDO 2 in 1964 was that issues concerning access over the highway could not be resolved with the Department of Main Roads. As a result, the proposed development east of the highway was deferred to enable the instrument to operate with respect to land west of the highway.
84 I infer that one reason for the absence of agreement with the Department of Main Roads was the further work that Department was carrying out at the time to settle the final design parameters of the highway. Another was undoubtedly responsibility for the costs of access over the highway. But for those factors, I am satisfied that the rezoning proposed by Beach Court and strongly supported by the Council from the outset would have proceeded in 1964, if not earlier. The zones would not have been dictated by cadastral boundaries. Rather, the developer, the Council and the Department of Local Government would have agreed upon the proposed dedication as contemplated in the August 1962 file note (just as they presumably did for the open space zones west of the highway). I accept that the ultimately agreed dedication may have been greater (and would not have been less) than the 8.5 hectares shown on the IDO 2 zoning map. I am also satisfied, given the configuration of that area, the topography of the land and the Council’s support for the development at this time, that the agreed dedication would not have included the acquired land, other than perhaps the possible small encroachment of the proposed dedication area into lot 102 as shown on one of the plans marked by Mr Smith and Mr Rowan. If the dedication had been expanded by agreement (as the price of the rezoning) then the expanded area would have related to part of the land immediately adjacent to the Crown reserve, not the acquired land.
85 Because of the highway purpose, the rezoning east of the highway did not take place in the early 1960’s. Subsequent events associated with the highway further confounded Beach Court’s proposal throughout the mid 1960’s. The Department of Main Roads’ decision to increase the width of the highway reservation absorbed land to the east of the highway. A smaller developable area thus remained on the eastern side. The fact that this decision was not reflected in the zoning map until 1967 does not mean that it had no effect in 1965. I have no doubt that Beach Court, the Council and the Department of Local Government would have been well aware of the revised highway width as published by the Department of Main Roads and fully appreciated the consequences for development east of the highway. The area of land available for development was substantially reduced, while the length of any bridge or viaduct to enable a highway crossing was substantially increased
86 The IDO 7 zoning map (made in 1966) discloses that the problems of access over the highway had proved insuperable. That map did not show any proposed subdivision east of the highway or crossing points deleted, in contrast to the IDO 2 zoning map. It identified the increased width of the highway reservation, reducing the land area available to the east outside the proposed dedication area on the IDO 2 zoning map. It also marked the highway as “access across boundary …denied”. In other words, by 1967, the proposed rezoning of the land east of the highway for residential development was impractical because of the highway purpose.
From 1967 onwards
87 The Sim Committee specifically dealt with northern coastal development in its 1967 report. Although the report did not deal directly with the Macauleys Headland area, the constitution of the Committee discloses a change in regulatory process and perspective. The State Planning Authority, constituted in 1963, established the Sim Committee. The existence of the State Planning Authority (to ensure a coordinated approach to regional and State planning issues) would also have facilitated the more rapid diffusion of new planning concepts, including coastal protection. I think it telling that, in 1970 (the year the Authority carried out a study of the coastal areas of Coffs Harbour), the same Council that had obviously promoted and supported North Coast Estates/Beach Court’s development at all times prior to 1965 resolved that development east of the highway would be “totally against all planning principles for this area”. This was the Council that did not think the 1959 planning scheme made adequate provision for the development of Coffs Harbour, that lobbied the Department of Local Government to support the North Coast Estates/Beach Court proposed development immediately after the 1959 planning scheme had been made, that retained Mr Stone for the express purpose of justifying the North Coast Estates/Beach Court development, that resolved to make a varying scheme to accommodate the development and that refused to contemplate less intense development west of the highway in 1961 as it would preclude the residential development that the Council wished to encourage through the varying scheme.
88 From 1970 onwards, there was an increasing focus on coastal protection at State, regional and local levels. By 1973, the coastal lands protection scheme had been established. The RTA submitted that the focus on coastal protection would have led to the land being down-zoned. As the RTA submitted, the evolution of coastal protection policy was unconnected to the highway purpose. The highway purpose precluded the application of coastal policies for planning and development to the acquired land. The hypothetical course of events requires consideration of the effect of evolving coastal and environmental policy on the land, absent the highway purpose. Importantly, s 56(1)(a) of the Just Terms Compensation Act requires the effects of the public purpose to be disregarded from inception. Approaching the effects of the public purpose other than from its inception will not discharge the statutory mandate. Accordingly, it is necessary to consider events (particularly from 1967 onwards) recognising that, were it not for the highway purpose, the acquired land would have been zoned Residential “A” from no later than 1964. In other words, the operation of coastal and environmental policy on the acquired land should be approached within the hypothetical context established by s 56(1)(a) of the Just Terms Compensation Act, not at large.
89 The assumed residential zoning of the land would have been significant in the course of subsequent events. I do not accept that the increasing focus on coastal and environmental protection from 1967 onwards would have resulted in any down-zoning of the acquired land from its assumed residential zone. First, Mr Rowan identified that as a risk – but was careful to observe that he did not know if the risk would have manifested itself (if at all) by down-zoning or by the imposition of development controls and constraints. The rezoning examples mentioned by Mr Rowan were not analogous. The events relating to the acquired land after 1999 were affected by the public purpose – as Beach Court had secured its right to require the RTA to acquire the land before the Council and Department of Planning considered the local environmental study and related reports. Secondly, recognising that the acquired land must be taken in its actual condition at all times (vacant well vegetated land in a coastal location), it is nevertheless relevant that the land is set back from the Crown reserve, the foreshore and the area that a layperson at least would perceive as the headland proper. Thirdly, while much of the land is visually prominent, I consider that fact, taken in all the relevant circumstances that I have identified, supports Mr Rowan’s identification of likely development constraints rather than down-zoning.
90 It follows that this is not a case where matters unconnected to the public purpose would have resulted in the rezoning of the acquired land. The location, topography and visual prominence of the land, in the context of coastal and related environmental considerations, are not such as would have resulted in planning authorities determining that it was essential or appropriate for the land to be rezoned from its assumed residential zone to a coastal or environmental protection zone, with or without an acquisition clause, absent the public purpose. Those coastal and related environmental considerations would have been relevant to the market’s approach to the development potential of the land at the acquisition date, but that is outside the scope of the separate question.
Conclusion
91 For these reasons, the separate question should be answered as follows:
But for the public purpose the acquired land would have been zoned Residential 2A (Low Density Zone) under the Coffs Harbour Local Environmental Plan 2000. The effect of that zone would have been to permit development in accordance with the zoning table for that zone.
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