Big Country Developments Pty Ltd v Transport for New South Wales (No 2)

[2021] NSWLEC 101

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Big Country Developments Pty Ltd v Transport for New South Wales (No 2) [2021] NSWLEC 101
Hearing dates:	15 September 2021
Decision date:	21 September 2021
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See [7] of judgment
Catchwords:	COMPULSORY ACQUISITION – base rate for valuation determined
Cases Cited:	Big Country Developments Pty Ltd v Transport for New South Wales [2021] NSWLEC 86
Category:	Principal judgment
Parties:	Big Country Developments Pty Ltd (Applicant) Transport for New South Wales (Respondent)
Representation:	Counsel: A Perkins, solicitor (Applicant) J McKelvey (Respondent) Solicitors: Project Lawyers (Applicant) Hunt and Hunt Lawyers (Respondent)
File Number(s):	20/302817

Judgment

1. Following Big Country Developments Pty Ltd v Transport for New South Wales [2021] NSWLEC 86 (Big Country No 1), concerning compensation payable for the partial acquisition of the Applicant’s land at Mulgoa Road Jamisontown in Lot 1 in DP 884114 (the Parent Parcel), two additional matters have been identified which require consideration in order for the amount of final compensation to be determined. These are:

1. In relation to comparable Sale 3 a different adjustment for shape/topography is made by the valuers resulting in a different rate per square metre when applied to the Parent Parcel.

2. The appropriate base rate per square metre for the Parent Parcel to be used for the final determination of the amount of valuation payable to the Applicant.

2. A description of the Parent Parcel is identified at [3] of Big Country No 1. The valuers’ evidence is summarised in Big Country No 1 at [14]-[32] and need not be repeated in full. Three comparable sales described in [17]-[19] were relied on by the valuers being 34-36 Preston Street (Sale 1), 49 Regentville Road (Sale 2) and 128 Blaikie Road (Sale 3). All were zoned B5 (Business Development), the same zoning as the Parent Parcel.

Sale 3 adjustment

3. Of the three comparable sales only one was adjusted by the valuers for shape/topography. Sale 3 is described at [19] in Big Country No 1 as smaller than the whole of the Parent Parcel (measuring 6,001 m² compared with the Parent Parcel which is 19,945 m²), of slightly irregular shape with basic improvements of a shed with deck.

4. Both valuers agreed that an adjustment for shape/topography for Sale 3 was warranted but disagreed as to the amount. Sale 3 is narrow and elongated compared to the Parent Parcel. A 20% adjustment was made by Mr Phil Rennie (Applicant’s expert) and a 10% adjustment was made by Mr Grahame Hollinshead (Respondent’s expert).

5. Mr Rennie considers Sale 3 is inferior compared to the Parent Parcel due to its shape and topography warranting a 20% variation. Mr Hollinshead considers 10% is warranted. There is very limited evidence for either of these opinions, concerning a matter which both parties described as minor. Each valuer essentially identified that Sale 3 is narrow and elongated and states their adjustment. It is a matter on which minds may reasonably differ. Having viewed the photograph and descriptions of Sale 3 in evidence, I consider Mr Rennie’s adjustment of 20% is too large. I will adopt an adjustment of 15%. A variation of the table in Big Country No 1 at [16] was provided by the parties attached to an email dated 3 September 2021, which took into account the possible outcomes of my finding on the Sale 3 adjustment. This results in the adjusted rate for Sale 3 of $1,031/m².

Base rate

6. The range of adjusted base rates of the valuers identified in Big Country No 1 at [28] has been narrowed with the application of adjustments determined in that judgment and the further adjustment of Sale 3 immediately above. The adjusted base rates derived from the three agreed comparable are now $1,058/m² for Sale 1, $945/m² for Sale 2 and $1,031/m² for Sale 3. The range of adjusted base rates has narrowed to between $945/m²-$1,058/m². I am prepared to adopt the highest of these rates of $1,058/m².

Amount of compensation

7. The total area of land acquired was 1,975 m² of the Parent Parcel, see Big Country No 1 at [5]. The rate of $1,058/m² is applicable for the area of land acquired without Forest Red Gum trees of 255 m², resulting in an amount of $269,790. Half the rate of $1,058/m² must be applied to the area that has Forest Red Gum trees of 1,720 m², in accordance with my finding in Big Country No 1 at [70], resulting in an amount of $909,880. The total compensation payable is $1,179,670. Orders to that effect will be made once the parties have agreed that is the correct result mathematically. Final orders should be filed by the parties within seven days of this judgment.

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Addendum made on 1 October 2021

8. Further to my judgment of 21 September 2021, it is noted that the total compensation payable to the Applicant is $1,309,068.53 comprising of market value in the sum of $1,179,670 as above in [7] and disturbance in the sum of $129,398.53, being the amount parties’ agreed during the hearing as recorded in Big Country No 1 at [7].

9. The Court orders as follows:

1. Compensation pursuant to Part 3 Division 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the compulsory acquisition of the Applicant's interest in the land Lot 1 in Deposited Plan 884114, known as 261-268 Mulgoa Road, Jaminsontown is determined in the sum of $1,309,068.53 with statutory interest under ss 49 and 50 of the Just Terms Act payable until 21 October 2020 only.

2. The Respondent is to pay the Applicant’s reasonable costs of these proceedings as agreed or assessed. There is to be no interest payable on costs.

3. The exhibits are returned.

Amendments

01 October 2021 - Addendum added

Decision last updated: 01 October 2021