Chino Pty Limited v Transport Infrastructure Development Corporation and Anor (No 2)

[2007] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION:	Chino Pty Limited v Transport Infrastructure Development Corporation and Anor (No 2) [2007] NSWLEC 99
PARTIES:	APPLICANT Chino Pty Limited FIRST RESPONDENT Transport Infrastructure Development Corporation SECOND RESPONDENT Willoughby City Council
FILE NUMBER(S):	31242 of 2005, 30243 of 2005
CORAM:	Pain J
KEY ISSUES:	Compensation :- final orders
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 s 55
CASES CITED:	Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768
DATES OF HEARING:	22 December 2006
DATE OF JUDGMENT:	12 March 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling SC SOLICITOR Mallesons Stephen Jaques FIRST RESPONDENT Mr J Maston SOLICITOR Clayton Utz SECOND RESPONDENT Mr P Tomasetti SOLICITOR Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

12 March 2007

31242 of 2005; 30243 of 2005 Chino Pty Limited v Transport Infrastructure Development Corporation and Willoughby City Council (No 2)

JUDGMENT

1 Her Honour: I gave judgment in Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768 on 22 December 2006 and required the Applicant and Willoughby City Council (the Council), who is the Second Respondent, to file additional evidence from their respective valuers as identified at [172] of that judgment. This was to enable me to make final orders for compensation to be paid under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act). The additional evidence required was sensitivity analyses applying varying “after” capitalisation rates and number of years rental income likely to be paid by a theoretical purchaser in order to reflect different “risk” factors in the after scenario. This evidence has been provided from Mr Dundas, valuer, on behalf of the Council (now exhibit 1K) and Mr Davis, valuer, on behalf of the Applicant (now exhibit P).

Applicant

2 In relation to the Applicant I held in the after scenario that a lower capitalisation rate than the eight per cent applied by Mr Davis but greater than the 5.25 per cent agreed by Mr Dempsey (TIDC’s valuer) and Mr Davis in the before scenario should be applied ([160]). The additional sensitivity analysis required (and now provided) was identified at [161]. I consider in light of the risk factors referred to at [158-161] that a capitalisation rate in the after scenario of 6.25 per cent should be applied for a five year period as the years of rental income for which a theoretical purchaser would pay after removal of the easement. According to exhibit P this means that compensation of $3,410,000 is payable. The table in exhibit P incorporates the deduction of the after value from the agreed before value. (The valuers agreed on the before value of Lot 12 of $6,875,000).

3 I held at [162] of my earlier judgment that the amount of $175,000 claimed for Lot 16 is payable. I also held that disturbance in the amount of $86,954.94 should be awarded at [171]. These amounts are the total compensation payable to the Applicant under s 55 of the Just Terms Act.

Willoughby City Council

4 In relation to the Council I also held that the after scenario was less risky than Mr Dundas considered ([166]) and consider I should apply in the after scenario a lower capitalisation rate for a different number of years. The additional sensitivity analysis (now provided) was referred to at [166]. In view of the risk factors I referred to at [158] – [159] in relation to Lot 12 I adopt an after capitalisation rate of seven per cent and apply a period of four years rental income as that likely to be paid by the theoretical purchaser resulting in an after value of $18,680 according to exhibit 1K. That sum must be deducted from the amount of $156,000 accepted by me as the before value of Lot 12 ([149]) to arrive at a total of $137,320.

5 In relation to Lot 16 I held at [167] that an amount of $10,000 was payable as compensation to the Council. This sum is are the total compensation sought and payable to the Applicant under s 55 (a) and (f) of the Just Terms Act in these proceedings.

6 I note that any claim for disturbance by the Council under s 55(d) is being pursued in other related proceedings.

Orders

7 Accordingly the Court makes the following orders:

1. In relation to the Applicant:

(a) The Applicant is entitled to compensation:

(i) pursuant to s 55(a) and (f) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) in the sum of $3,585,000.

(ii) pursuant to s 55(d) of the Just Terms Act in the sum of $86,954.94.

(b) Costs are reserved.

(c) Exhibits to be returned.

2. In relation to the Second Respondent:

(a) The Second Respondent is entitled to compensation pursuant to s 55(a) and (f) of the Just Terms Act in the sum of $147,320.

(b) Costs are reserved.

(c) Exhibits to be returned.