Bock v West Tamar Council
[2003] TASSC 111
•29 October 2003
[2003] TASSC 111
CITATION: Bock v West Tamar Council [2003] TASSC 111
PARTIES: BOCK, Paul
v
WEST TAMAR COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M333/2000
DELIVERED ON: 29 October 2003
DELIVERED AT: Hobart
HEARING DATE/S: 23, 24 July 2003
JUDGMENT OF: Cox CJ
CATCHWORDS:
Real Property – Resumption or acquisition of land – Powers of resumption – Compensation – Assessment and related matters – Alteration in value by purpose of resumption – Severance – Time at which compensation to be assessed – What constitutes first notice to treat – Whether status as a dedicated road of land acquired relevant to value of balance where land acquired for purpose of road construction.
Land Acquisition Act 1993 (Tas), ss27(1), 33(1).
Aust Dig Real Property [345]
REPRESENTATION:
Counsel:
Plaintiff: P W Tree
Defendant: R W Pearce
Solicitors:
Plaintiff: Toomey Manning & Co
Defendant: Douglas & Collins
Judgment ID Number: [2003] TASSC 111
Number of paragraphs: 15
Serial No 111/2003
File No M333/2000
PAUL BOCK v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT COX CJ
29 October 2003
This is a disputed claim for compensation in respect of the acquisition of land at 72 Pomona Road, Launceston, pursuant to the Land Acquisition Act 1993, ("the Act").
The plaintiff was the owner of land at the above address and received on 29 April 1997 a notice to treat dated 23 April 1997. The notice stated that the defendant council intended to acquire land from the plaintiff for the purpose of road construction. The land to be acquired was described as "all that portion of the land situate and known as 72 Pomona Road Riverside in Tasmania comprising 498 square metres or thereabouts as shown on the attached plan of survey and marked as '1 Road 498 metres squared'". The plan was as follows:
The land to be acquired formed portion of 2 acres 1 rood 25 and 3/10ths of a perch conveyed to the plaintiff in 1973. Since that time the plaintiff had had access to Pomona Road over the acquired land which was not built on or otherwise improved, save for an access drive maintained by the plaintiff. On the balance of the land the plaintiff had a residence and a shed upon which, between 1989 and 1999, had been conducted a seafood business involving the sale of crayfish from tanks in the shed. The balance land also had frontage onto a street called Guilford Road, which ran up from Pomona Road at a point some seven building blocks distant from the plaintiff's frontage on the latter road, and which curved around to the back of his property not far from his house.
On 21 July 1997 the plan referred to above, comprising the acquired land, was sealed by the council. On 17 September 1997, a notice of acquisition dated 29 August 1997 was published in the Tasmanian Government Gazette ("the Gazette"). By another notice dated 28 October 1997 and published in the Gazette on 5 November 1997, the council revoked the notice of acquisition of 29 August 1997. No reason for it having done so is apparent in the evidence before me. On the same day as the revocation was published, there also appeared in the Gazette a second notice of acquisition dated 29 October 1997. The Act, s18(2), requires that a notice of acquisition is to be gazetted after the expiration of 30 days and before the expiration of six months after the day on which the notice to treat was served. The second notice of acquisition, although dated within six months of service of the notice to treat, was not gazetted within that time.
On 28 November 1997 the council made application to the Recorder of Titles to be registered proprietor of the acquired land as comprised in the plan sealed by it in July of that year. This application was made pursuant to the Land Titles Act 1980, s126, which provides for the registration of an acquiring authority as proprietor of the land vested in it by the operation of any relevant Act upon production of a plan of the land and notice of acquisition or other instrument prescribed by the relevant Act. The evidence shows that on 12 January 1998 the plan was approved by the Recorder of Titles, but a requisition in respect of the application to be registered proprietor was issued on 27 January 1998 pointing out, among other things, that the second notice of acquisition had been gazetted outside the statutory period allowed by the Act, s18(2). On 29 May 1998 the Recorder refused the council's application.
On 30 October 1998 the council issued a second notice to treat which was served on the plaintiff's solicitors by arrangement a few days later. A notice of acquisition relying on this notice was issued on 7 December 1998 and gazetted on 16 December 1998, this time complying with the Act, s18(2). The following day the council made a fresh application to the Recorder of Titles to be registered proprietor and on 17 February 1999 that application was granted.
The plaintiff seeks compensation under four headings. The first is in respect of the land acquired. There is no issue between the parties that this should be valued as land zoned for business at a figure of $45 per square metre. This works out at $22,410. The second matter for compensation is the loss of value of the remaining land fronting Pomona Road, but which is now triangular in shape. The primary issue between the parties here is whether this land should be valued on the basis that it has lost frontage onto Pomona Road or any extension thereof due to the acquisition. The third and fourth matters are additional losses which would flow to the plaintiff if the balance of his land has lost frontage. If that be the case, there is a claim for the cost of establishing access from Guilford Road to the existing buildings. It is agreed that the appropriate cost would be $11,280. Likewise there is a claim for the loss of rental income from the shed, which for a decade was used in the seafood business, which concluded at about the time of the acquisition process being commenced.
The plaintiff argues that he is to be compensated for his loss as at the day the first notice to treat was served, and that as at that date the severance of the acquired land meant that the balance of his land was thereupon deprived of a right of access to Pomona Road. This argument is in part based on the Act, s35, which relevantly provides:
"35 Compensation in respect of the loss of an estate in land taken is to be determined ¾
(a)as at the day on which the notice to treat in relation to the land was served; or
(b)where more than one such notice to treat was served, as at the day on which the first notice to treat was served."
As there were two notices to treat served in this case, it is submitted by the plaintiff that the relevant date is 29 April 1997. The defendant, on the other hand, argues that the reference to a first notice to treat in this context is to the first efficacious notice to treat and not to one which is withdrawn under s12, or which lapses under s14, as was the case here. Section 14 provides:
"14 A notice to treat lapses if ¾
(a)the owner on whom the notice was served does not make an agreement under section 9(1); and
(b)the acquiring authority does not cause a notice of acquisition in respect of the land referred to in that notice to treat to be published in accordance with section 18(2)."
What s35 is referring to is the situation where there is more than one owner and hence a requirement to serve notice to treat on each owner. The relevant date is then the date of service of the first notice served. On this basis it is argued that the date on which compensation is to be determined is the date the notice to treat of 30 October 1998 was served, and that by that date the acquired land, the plan of which endorsed "road" had been sealed by the council in July 1997 and approved by the Recorder of Titles in January 1998, was accordingly dedicated as a road. In these circumstances, the argument is the plaintiff did not lose access and should not be awarded compensation in respect of the balance on the basis that it has suffered diminution in value because it has no road access.
I prefer the defendant's argument as to the meaning of s35(b). It is unlikely that reference to the first notice to treat would have been intended to be to a notice to treat which, having been withdrawn or having lapsed, had no further legal effect. Furthermore, where there is more than one owner it seems logical to have a single date for the determination of compensation. However, with respect, I think both arguments proceed from a fundamental misconception as to the relevance of the status of the acquired land as a dedicated road.
Counsel for the plaintiff relied upon a principle known as the Pointe Gourde principle (established by the Privy Council in Pointe Gourde Quarrying and Transport Company, Limited v Sub-Intendent of Crown Lands [1947] Ac 565), and replicated in the Act, s33(1)(b) which provides:
"33 ¾ (1) Each of the following matters is to be disregarded in the determination of compensation in respect of subject land:
...
(b)any increase or decrease in the value of the subject land arising from the carrying out, or the proposal to carry out, the authorised purpose for which the land was taken."
Subject land is defined in s3 as "land acquired or being acquired under this Act". It was put that the defendant's contention that the acquired land had become a dedicated road by the relevant date at which compensation is to be determined, involved the submission that the value of the balance of the land was thereby enhanced in contravention of s33(1)(b) and the Pointe Gourde principle. This ignores the fact that this principle is confined to the effect upon the value of the acquired land consequent upon the carrying out, or the proposal to carry out, the authorised purpose for which the land was taken. Section 27 deals with the effect upon the balance of the land of any increase or diminution in the value of that land consequent upon the carrying out, or proposal to carry out, that purpose. Section 27(1) provides:
"27 ¾ (1) In determining compensation under this Act, regard is to be had to the following matters:
...
(c)the damage caused by severance of the subject land from other land belonging to the claimant;
(d)the betterment of other land belonging to the claimant which is caused by the carrying out of, or the proposal to carry out, the authorized purpose;
(e)whether other land belonging to the claimant is injuriously affected by the carrying out of, or the proposal to carry out, the authorized purpose.
..."
It is clear from the purpose stated in the notice to treat and the notice of acquisition and from the correspondence between the parties, that the carrying out of the authorised purpose was to ensure that the balance of the plaintiff's land was to have access to Pomona Road. The acquisition was to facilitate the construction of a roundabout and of a connector road to another subdivision nearby. The defendant's solicitors made clear in a letter dated 23 July 1998 to those of the plaintiff what access was proposed when they said:
"4It is proposed that your client will access his property by way of the current laneway through the land to be acquired until such time as the round-about is constructed. At that time, a new access will be constructed off the new connector road on the north-eastern boundary of the balance property as previously indicated. It is not proposed that the balance land have direct access to the round-about."
It has never been suggested that access in this form was less advantageous to the plaintiff than his access prior to acquisition, or that it might diminish the value of the balance.
In these circumstances it seems to me that, whether or not at the date at which compensation is to be determined, the acquired land had the status of a dedicated road, the balance of the plaintiff's land could not be said to have been injuriously affected in the way claimed by the carrying out of the authorised purpose. Nor can I see that any damage by way of loss of access to a road has been caused by the severance of the acquired land from the remaining land of the plaintiff. His right of access has been preserved throughout.
The fact that the balance of the land does enjoy access to Pomona Road obviates any necessity to construct an access road to the plaintiff's house from Guilford Road and no allowance should be made in respect of it. It also means that the plaintiff has suffered no loss of revenue in respect of the shed by virtue of the acquisition. The only basis upon which it was suggested that there would be some loss is that a previous licensee may have declined to continue operating the business because of apprehension in respect of loss of access and other potential licensees may have been similarly deterred. Having heard evidence from the licensee in question, I am satisfied that he did not terminate his involvement in the business for that reason. The premises are still there, the access remains the same, and if the road works go ahead, access will still be preserved from Pomona Road. No compensation should be allowed under this head.
The remaining issue is the loss of value of the balance of the land, assuming, as I have found, that it enjoys access to Pomona Road. The land in question is the front portion of the plaintiff's property, as opposed to the rear part where his house and other buildings stand. This front section, originally rectangular in shape with a frontage onto Pomona Road of 18.29 metres, was effectively bisected by the acquisition, leaving a triangular shape balance zoned business. Mr Jones, the defendant's valuer, considered that the original rectangular land was of a value of $45 per square metre, and assessed the value of the acquired land accordingly. He considered that the balance, which he said measured 642 square metres, was diminished in value by approximately one third. He assessed the depreciation in value at $9,620. Mr Chandler, the plaintiff's valuer, who agreed that the acquired land had a value of $45 per square metre, made his valuation of the balance on the assumption that it had no road access and valued this land, which he said was 672 square metres, at $10 per square metre. In cross-examination he was asked to place a value upon it on the assumption that it did enjoy access. Conceding that he had not had the opportunity to consider the proposition fully, he said that the diminution in value would be greater than one third, possibly one half. I will give counsel the opportunity of pointing to any evidence in the multiplicity of plans and other documents in evidence which might clarify the precise area in question. But taking the mean of the two areas asserted (657 square metres) I will award compensation at the rate of $15 per square metre or $9,855 in respect of injurious affection. I prefer Mr Jones' evidence, as he had the opportunity to prepare it at leisure on the correct assumption, whereas Mr Chandler's instructions were to proceed on the incorrect assumption and his evidence on this point was tentative and given without time for due reflection.
Subject to the above qualification about the area, and to any further submission about interest, I assess compensation in the sum of $32,265.
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