Bowmont Pty Limited v Transport Infrastructure Development Corporation
[2004] NSWLEC 118
•03/09/2004
Land and Environment Court
of New South Wales
CITATION: Bowmont Pty Limited v Transport Infrastructure Development Corporation [2004] NSWLEC 118 PARTIES: APPLICANT
RESPONDENT
Bowmont Pty Limited (ACN 003 989 982)
Transport Infrastructure Development CorporationFILE NUMBER(S): 30793 of 2003 CORAM: Cowdroy J KEY ISSUES: Compulsory Acquisition of Land :- adjoining owner influence LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 CASES CITED: Cretazzo v Lombardi (1975) 13 SASR 4;
Croghan v Hawkesbury City Council (1998) 99 LGERA 375;
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429;
Hughes v Western Australian Cricket Association (1986) 8 ATPR 40-748;
Maloney v Cowra Shire Council (2000) NSWLEC 33 ;
Mood and Anor v Cowra Shire Council (1999) 103 LGERA 260DATES OF HEARING: 08/03/2004; 09/03/2004 EX TEMPORE
JUDGMENT DATE :03/09/2004 LEGAL REPRESENTATIVES:
APPLICANTS
Mr J. Maston (Barrister)SOLICITORS
McGlynn and AssociatesRESPONDENT
SOLICITORS
Mr R. Lancaster (Barrister)
Clayton Utz
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
30793 of 2003
9 March 2004Cowdroy J
- Applicant
- Respondent
1 In these proceedings the applicant claims an award of compensation pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Act”) in respect of the compulsory acquisition of its land at 154-158 Church Street, Parramatta (“the land”). The land is also known as lot 1 in Deposited Plan 128471.
2 The respondent was granted leave today to amend these proceedings by substituting the entity known as the Transport Infrastructure Development Corporation instead of the State Rail Authority of New South Wales.
3 During the first day of the hearing of these proceedings the parties resolved the compensation to be awarded in respect of the market value of the land pursuant to s 55(a) of the Act. The expert valuers, namely Mr Terence Large and Mr Garry Humphries agree that such value at the date of acquisition, namely 24 April 2003 was $8,650,000.
4 The parties also agree the quantum of the items of disturbance pursuant to s 55(d) of the Act is $52,000 plus stamp duty to be determined. If no other sum is awarded it is agreed that the amount of stamp duty will be $461,240.
5 The remaining issue concerns the applicant’s claim that a premium of ten per cent should be allowed in respect of the alleged “adjoining owner influence” on market value. The applicant submits that the “adjoining owner influence” arises as a result of the land forming part of a larger parcel acquired by the respondent.
6 Prior to the date of acquisition the respondent had purchased properties in close proximity to the land, namely 85 Argyle Street, 87 Argyle Street and 148 Church Street, Parramatta. Although these properties were separated from the land the applicant submits that they were nevertheless adjoining in the context described by Kirby P in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429.
7 Additionally the land was located opposite the respondent’s railway line. Accordingly, the applicant contends that the respondent would most likely have been the future purchaser and would have paid a premium to obtain the land. The applicant makes such submission irrespective of the need to compulsorily acquire the land.
8 The applicant’s claim is predicated upon the recognised basis for an award which may be made pursuant to s 56(1)(a) of the Act as explained in Croghan v Hawkesbury City Council (1998) 99 LGERA 375 at p 387. Similar allowances were made by Talbot J in Mood and Anor v Cowra Shire Council (1999) 103 LGERA 260 at p 263 and Maloney v Cowra Shire Council (2000) NSWLEC 33 especially at para 71.
9 Alternatively the applicant submits that the adjoining owner influence arises because Westfield, the owner of a large neighbouring shopping complex had made an expression of interest in acquiring the land as part of the consolidated parcel of land which had been acquired by the respondent up to the date of acquisition. Such expression of interest was made in late 2003, namely several months after the compulsory acquisition and only followed after the respondent had indicated that the purpose of the acquisition was to be curtailed.
10 The respondent submits that there is no basis for the finding of an adjoining owner influence. It submits that there has been no evidence of any special potentiality to justify such an award: see Bignold J in Croghan at p 387. Further it submits that the findings of Talbot J in Mood and Maloney are distinguishable since those cases involved part of a roadway being mistakenly constructed on private land.
11 Further the respondent submits that the Court is required by s 56(1)(a) of the Act to disregard the public purpose for which the land was acquired in assessing market value: see Roads and Traffic Authority of New South Wales v Perry and Anor (2001) 52 NSWLR 222.
Findings
12 In Croghan Bignold J reached his finding in favour of an adjoining owner influence having heard evidence that the respondent needed to acquire the applicant’s land for the purposes of a sewage system and had made an offer to acquire such lands for a sum in excess of market value. When negotiations failed the land was compulsorily acquired.
13 The facts in Croghan are distinguishable to the present. There is no evidence that at the date of acquisition any offer had been made by any party to acquire the land in excess of the market value.
14 The prospect that the respondent may have wished to acquire the land for a purpose unrelated to the acquisition purpose is entirely speculative. Whilst acquisitions were made by the respondent of land at 85 Argyle Street, 87 Argyle Street and 148 Church Street, Parramatta, such acquisitions were directly related to the object of the acquisition, namely to provide facilities for a new railway complex. Even assuming such properties are to be regarded as adjoining the land it is not established that the basis for adjoining owner influence is thereby created.
15 The expression of interest by Westfield was only made subsequent to the date of acquisition when all of the land acquired by the respondent had been consolidated and after the plans for the proposed railway infrastructure became doubtful. It could not be said that Westfield had a special interest in the land at the date of acquisition.
16 Accordingly there is no basis for the assertion that adjoining owner influence existed.
Costs
17 The respondent seeks an order that it not be required to pay the applicant’s costs of the issue determined today. The Court is satisfied that the issue which was determined today forms part of the matters for determination in the applicant’s overall claim. Authority exists for the proposition that apportionment of costs should only be made in exceptional circumstances, lest the ultimate ends of justice be prevented by a party being dissuaded from canvassing all issues because of the risk of costs: Cretazzo v Lombardi (1975) 13 SASR 4 at p 16; followed by Toohey J in Hughes v Western Australian Cricket Association (1986) 8 ATPR 40-748.
18 Accordingly the Court rejects the respondent’s application that it should not be liable to meet the costs of the applicant for today’s hearing. Accordingly the Court will make an order that the respondent pay the applicant’s costs of these proceedings.
Orders
19 The Court makes the following orders:
1. ORDER that pursuant to s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 the respondent pay the applicant the amount of $8,650,000 for market value;
2. ORDER that pursuant to s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 the respondent pay the applicant the amount of $513,740 for disturbance;
4. ORDER that the exhibits be returned.3. ORDER that the respondent pay the applicant’s costs of these proceedings;
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