Carija and Main Roads Western Australia - [2012] WASAT 78

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LAND ADMINISTRATION ACT 1997 (WA)

CITATION: CARIJA and MAIN ROADS WESTERN AUSTRALIA [2012] WASAT 78

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 1 AND 2 FEBRUARY 2012

DELIVERED : 24 APRIL 2012

FILE NO/S: DR 278 of 2010
DR 279 of 2010
DR 280 of 2010
DR 281 of 2010

BETWEEN: ISAVEL AND LAURA CARIJA (DR 278 of 2010)
JOHN DINKO NUICH (DR 279 of 2010)
BLAZ RUDEZ (DR 280 of 2010)
ANTHONY RUDEZ AND BLAZ RUDEZ (DR 281 of 2010)
Applicants
AND
MAIN ROADS WESTERN AUSTRALIA
Respondent

Catchwords:

Compensation for compulsory acquisition of land Reduction of value ('injurious affection') of claimant's retained land adjoining land taken for a public work Land Administration Act 1997 (WA) s 241(7)(b) Widening and upgrading of Great Northern Highway including overtaking lanes Rural lifestyle use Identification of cause of reduction of value for which compensation is payable Identification of public work for which land of claimant was resumed by reason of which claimant's adjoining land is reduced in value Whether public work for which land of claimant was resumed is purpose of public work stated in Taking Order Whether public work for which land of claimant was resumed includes hypothetical work which may potentially be accommodated within the resumed land but was not planned or contemplated by the resuming authority when the land was taken

Legislation:

Acquisition of Land Act 1967 (Qld), s 20(1)
Land Acquisition and Public Works Act 1902 (WA), s 63(b)
Land Administration Act 1997 (WA), s 177, s 178, s 178(1)(d), s 220(c), s 241(1), s 241(7)(b)
State Administrative Tribunal Act 2004 (WA), s 51(1)

Result:

The applicants have not suffered any damage due to a reduction of the value of their retained adjoining land (other than the land comprising houses and their curtilages, the winery and the restaurant/reception centre) for the purposes of s 241(7)(b) of the Land Administration Act 1997 (WA)

Category: B

Representation:

Counsel:

Applicants: Mr JCW Skinner with Ms LM Helman
Respondent: Ms LA Eddy with Dr S Willey

Solicitors:

Applicants: Jackson McDonald
Respondent: State Solicitor's Office

Case(s) referred to in decision(s):

Cerini v The Minister for Transport [2001] WASC 309
Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 207 ALR 1
Konowalow and Felber v Minister for Works [1961] WAR 40
Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6
Marshall v DirectorGeneral, Department of Transport [2001] HCA 37; (2001) 205 CLR 603
Spencer v The Commonwealth of Australia (1907) 5 CLR 418

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Main Roads Western Australia resumed land from each of the applicants and from other landowners in order to expand the road reserve of Great Northern Highway and enable the highway to be widened and upgraded. In particular, the public work for which the applicants' and other landowners' land was resumed involved the replacement…

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: [2012] WASAT 78
Decision Date: 24 APRIL 2012

CaseChat Overview and Summary

In Carija v Main Roads Western Australia, the dispute centred around the compensation owed to the appellant for the injurious affection of land retained by him following the compulsory acquisition of adjacent land for the widening and upgrading of the Great Northern Highway, including the addition of overtaking lanes. The appellant claimed additional compensation for the diminution in value of his remaining property, which was used for rural lifestyle purposes. The court was tasked with determining whether the public work for which the land was resumed was the purpose of the public work stated in the Taking Order and whether it included hypothetical work that might potentially be accommodated within the resumed land but was not planned or contemplated by the resuming authority at the time of acquisition.

The primary issue was the identification of the cause of the reduction in value for which compensation was payable, and whether the public work for which the land was resumed was the stated purpose of the public work in the Taking Order. The court also considered whether the public work included hypothetical work that could potentially be accommodated within the resumed land but was not planned or contemplated by the resuming authority at the time of acquisition. The appellant argued that the purpose of the public work was not only the widening and upgrading of the highway but also the potential for future works that might be accommodated within the resumed land, even if not planned or contemplated at the time of acquisition.

The court held that the compensation for injurious affection must be based on the diminution in value attributable to the public work for which the land was resumed, as stated in the Taking Order. The court found that the appellant's land was resumed for the purpose of widening and upgrading the highway, including the addition of overtaking lanes, and that the purpose of the public work was limited to these specified works. The court rejected the appellant's argument that the public work included hypothetical future works that were not planned or contemplated at the time of acquisition. The court concluded that the appellant was not entitled to compensation for any potential future works that were not part of the public work for which the land was resumed.

The court ordered that the appellant was not entitled to compensation for the diminution in value of his retained land due to any hypothetical future works that were not part of the public work for which the land was resumed. The court's decision clarified the scope of compensation for injurious affection in cases of compulsory acquisition of land for public works and emphasised the importance of the purpose of the public work as stated in the Taking Order.

Orders