Capocchiano v Shellharbour City Council - [2015] NSWLEC 28

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Capocchiano v Shellharbour City Council [2015] NSWLEC 28
Hearing dates: 9-12 December 2014
Date of orders: 27 February 2015
Decision date: 27 February 2015
Jurisdiction: Class 3
Before: Craig J
Decision:
Pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991, determine compensation for acquisition by the Respondent of Lot 2 in DP 1055678 on 16 August 2013 in the sum of $310,000.
Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 order that the Respondent pay the Applicants costs of the proceedings in the sum of $62,592 as a gross sum instead of assessed costs.
The exhibits may be returned.

Catchwords: COMPULSORY ACQUISITION OF LAND – highest and best use – underlying zoning to be assumed – potential for rural residential use
Legislation Cited:
Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005 (NSW)
Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006 (NSW)
Illawarra Planning Scheme Ordinance
Interpretation Act 1987 (NSW)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW)
Roads Act 1993 (NSW)
Shellharbour Local Environmental Plan No 16
Shellharbour Local Environmental Plan 2000
Shellharbour Local Environmental Plan 2013
Cases Cited: Byron Shire Council v Greenfields Mountain Pty Limited [1999] NSWCA 461; 105 LGERA 445
Chircop v Transport for NSW [2014] NSWLEC 63
Hamod v State of New South Wales (No 13) [2009] NSWSC 756
Idoport Pty Ltd v National Australia Bank Limited [2007] NSWSC 23
Puruse Pty Ltd v Council of the City of Sydney [2009] NSWLEC 163; 169 LGERA 85
Smith v Roads and Traffic Authority of NSW [2005] NSWLEC 438
Sydney Harbour Foreshore Authority v Walker Corporation Pty Limited (No 2) [2006] NSWCA 386; 68 NSWLR 487
Young v Hones (No 3) [2014] NSWSC 499
Category: Principal judgment
Parties:
Francesco Saverio Capocchiano (First Applicant)
Italia Capocchiano (Second Applicant)
Shellharbour City Council (Respondent)
Representation:
Counsel:
In person 9 December 2014; no appearance 10, 11 December 2014 (Applicants)
A Pearman (Respondent)
Solicitors:
In person (Applicants)
RMB Lawyers (Respondent)

File Number(s): 30818 of 2013

Judgment

1 By notice published in the New South Wales Government Gazette on 16 August 2013, land known as Lot 2 Croome Road Croom was compulsorily acquired by Shellharbour City Council (the Council) under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (the Compensation Act). At the time of acquisition, the land was jointly owned by Francesco Capocchiano and Italia Capocchiano (jointly the Applicants).
The Applicants object to the compensation offered to them by the Council for the acquisition of the land. Accordingly, they have commenced proceedings in this Court pursuant to s 66(1) of the Compensation Act. This Court is then enjoined by s 66(2) to “hear and dispose of the … claim for compensation.”
For reasons that will become apparent, the compensation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWLEC 28
Decision Date: 27 February 2015

CaseChat Overview and Summary

The applicants, Capocchiano, sought a review of the compensation offered by Shellharbour City Council for the acquisition of their land under the Land Acquisition (Just Terms Compensation) Act 1991. The dispute centred on the determination of the appropriate compensation for the land, specifically Lot 2 in DP 1055678, which was acquired on 16 August 2013. The applicants contested the fairness and accuracy of the compensation provided by the Council. The matter was brought before the court for judicial review.

The legal issues before the court involved interpreting the provisions of the Land Acquisition (Just Terms Compensation) Act 1991, assessing the appropriate compensation for the land acquisition, and determining the costs of the proceedings under the Civil Procedure Act 2005. The applicants argued that the compensation offered did not reflect the true market value of the property and sought a higher amount. The Council, on the other hand, maintained that the offered compensation was fair and in line with statutory requirements.

The court examined the evidence presented by both parties, including expert valuations and market data. It found that the applicants' property had a higher market value than that offered by the Council. The court was satisfied that the compensation awarded by the Council was inadequate and did not reflect the true value of the property. The court ordered the Council to pay the applicants compensation in the sum of $310,000, which represented a fair market value. Additionally, the court ordered the Council to pay the applicants' costs of the proceedings in the sum of $62,592, as a gross sum instead of assessed costs.

In conclusion, the court determined that the compensation offered by the Council was insufficient and ordered a higher amount reflecting the true market value of the property. The court also ordered the Council to pay the applicants' costs of the proceedings. The exhibits were to be returned to the parties involved.

Orders

Orders of the court

Pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991, determine compensation for acquisition by the Respondent of Lot 2 in DP 1055678 on 16 August 2013 in the sum of $310,000.

Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 order that the Respondent pay the Applicants costs of the proceedings in the sum of $62,592 as a gross sum instead of assessed costs.

The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Capocchiano v Shellharbour City Council [2015] NSWLEC 28
Hearing dates:	9-12 December 2014
Date of orders:	27 February 2015
Decision date:	27 February 2015
Jurisdiction:	Class 3
Before:	Craig J
Decision:	Pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991, determine compensation for acquisition by the Respondent of Lot 2 in DP 1055678 on 16 August 2013 in the sum of $310,000. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 order that the Respondent pay the Applicants costs of the proceedings in the sum of $62,592 as a gross sum instead of assessed costs. The exhibits may be returned.
Catchwords:	COMPULSORY ACQUISITION OF LAND – highest and best use – underlying zoning to be assumed – potential for rural residential use
Legislation Cited:	Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Amendment (Infrastructure and other Planning Reform) Act 2005 (NSW) Environmental Planning and Assessment Amendment (Reserved Land Acquisition) Act 2006 (NSW) Illawarra Planning Scheme Ordinance Interpretation Act 1987 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) Roads Act 1993 (NSW) Shellharbour Local Environmental Plan No 16 Shellharbour Local Environmental Plan 2000 Shellharbour Local Environmental Plan 2013
Cases Cited:	Byron Shire Council v Greenfields Mountain Pty Limited [1999] NSWCA 461; 105 LGERA 445 Chircop v Transport for NSW [2014] NSWLEC 63 Hamod v State of New South Wales (No 13) [2009] NSWSC 756 Idoport Pty Ltd v National Australia Bank Limited [2007] NSWSC 23 Puruse Pty Ltd v Council of the City of Sydney [2009] NSWLEC 163; 169 LGERA 85 Smith v Roads and Traffic Authority of NSW [2005] NSWLEC 438 Sydney Harbour Foreshore Authority v Walker Corporation Pty Limited (No 2) [2006] NSWCA 386; 68 NSWLR 487 Young v Hones (No 3) [2014] NSWSC 499
Category:	Principal judgment
Parties:	Francesco Saverio Capocchiano (First Applicant) Italia Capocchiano (Second Applicant) Shellharbour City Council (Respondent)
Representation:	Counsel: In person 9 December 2014; no appearance 10, 11 December 2014 (Applicants) A Pearman (Respondent) Solicitors: In person (Applicants) RMB Lawyers (Respondent)
File Number(s):	30818 of 2013