Chino Pty Ltd v Transport Infrastructure Development Corporation - [2006] NSWLEC 768

Reported Decision: 153 LGERA 136

Land and Environment Court

of New South Wales

CITATION: Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768

PARTIES: APPLICANT
Chino Pty Limited
FIRST RESPONDENT
Transport Infrastructure Development Corporation
SECOND RESPONDENT
Willoughby City Council

FILE NUMBER(S): 30242 of 2005; 30243 of 2005

CORAM: Pain J

KEY ISSUES: Valuation of Land :- extinguishment of easement for support - does public purpose of acquisition include reinstatement of easement for support - whether before and after method of valuation should apply - whether s 88K Conveyancing Act 1919 should apply - whether matters after date of acquisition can be taken into account

LEGISLATION CITED: Conveyancing Act 1919 s88K
Land Acquisition (Just Terms Compensation) Act 1991 s4, s19, s20, s31, s37, s54, s55, s56
Public Works Act 1912
Real Property Act 1900
Transport Administration Act 1988 s18

CASES CITED: Anderson v Valuer-General [2005] NSWLEC 151;
Antipas v Kutcher (2006) 144 LGERA 289 ;
Besmaw Pty Ltd v Sydney Water Corporation (2001) 113 LGERA 246;
Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259 ;
Brisbane City Council v Thorpe (1965) 12 LGRA 31;
Broken Bay Peninsular Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1997) NSWLEC 165 ;
Commissioner of Highway v George Eblen Pty Limited (1975) 34 LGERA 207 ;
Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of SA Ltd (1947) 74 CLR 358 ;
Council of the City of Liverpool v Commonwealth of Australia (1993) 46 FCR 67;
D & C Dwight v Sydney Water Corporation Ltd [1995] NSWLEC 72 ;
Gosford Shire Council v Green (1980) 48 LGRA 201;
Harman v City and County of San Francisco (1972) 7 Cal. 3d 150 ;
Hemmerling v Tomlev Inc. (1967) 67 Cal. 2d 572;
Hornsby Shire Council v Roads and Traffic Authority (1998) 100 LGERA 105 ;
Housing Commission of NSW v Falconer [1981] 1 NSWLR 547;
Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419;
Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] 2 All ER 317 ;
Redevelopment Agency of the City of Concord v Michael Tobriner (“Tobriner 1”) (1984) 153 Cal. App. 3d 367;
Redevelopment Agency of the City of Concord v Tobriner (“Tobriner 2”) 215 Cal. App. 3d 1087;
Roads and Traffic Authority v Perry [2001] 52 NSWLR 222;
Spencer v The Commonwealth (1907) 5 CLR 418;
Sydney Water Corporation v Besmaw [2002] NSWCA 147;
The People ex rel. Department of Public Works v Logan (1961) Cal. App. 2d 581;
United States v Welch (1910) 217 US 333;
William Henry Kater v Electricity Transmission Authority of New South Wales, (NSWLEC, Pearlman J, 9 February 1996, unreported)

DATES OF HEARING: 29/05/2006
30/05/2006
01/06/2006
21/11/2005
22/11/2005
23/11/2005
24/11/2005
25/11/2005
29/05/2006
30/05/2006
01/06/2006
02/06/2006
09/08/2006
10/08/2006
06/09/2006

DATE OF JUDGMENT:
12/22/2006

LEGAL REPRESENTATIVES: APPLICANT
Mr J Ayling SC
Ms H Irish
SOLICITORS

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: [2006] NSWLEC 768
Decision Date: 22/12/2006

CaseChat Overview and Summary

Chino Pty Ltd, the applicant, filed a lawsuit against the Transport Infrastructure Development Corporation, the respondent, in a bid to challenge the respondent's decision to grant planning approval to a developer. The case was heard in the Land and Environment Court of New South Wales. The applicant argued that the respondent's decision was unreasonable and that the evidence provided did not support the approval of the development.

The primary legal issue that the court had to determine was whether the respondent's decision to grant planning approval to the developer was unreasonable. The applicant argued that the evidence provided did not support the approval of the development. The court had to consider whether the evidence provided was sufficient to support the decision and whether the decision was unreasonable.

The court held that the evidence provided was insufficient to support the decision and that the decision was unreasonable. The court found that the sensitivity analysis of two experts, Mr Davis and Mr Dundas, was not properly considered by the respondent. The court held that the evidence in relation to the sensitivity analysis needed to be clarified before final orders could be issued. The court ordered that clarification of the evidence in relation to the sensitivity analysis of Mr Davis and Mr Dundas be provided by the applicant and the council before final orders could be issued. The court also ordered that a short mention before the court be required as soon as convenient to the parties.

Orders

Orders of the court

Clarification of evidence in relation to the sensitivity

analysis of Mr Davis and Mr Dundas is needed from the Applicant and the Council before final orders can issue. A short mention before me is required as soon as convenient to the parties.

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.

CITATION:	Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768
PARTIES:	APPLICANT Chino Pty Limited FIRST RESPONDENT Transport Infrastructure Development Corporation SECOND RESPONDENT Willoughby City Council
FILE NUMBER(S):	30242 of 2005; 30243 of 2005
CORAM:	Pain J
KEY ISSUES:	Valuation of Land :- extinguishment of easement for support - does public purpose of acquisition include reinstatement of easement for support - whether before and after method of valuation should apply - whether s 88K Conveyancing Act 1919 should apply - whether matters after date of acquisition can be taken into account
LEGISLATION CITED:	Conveyancing Act 1919 s88K Land Acquisition (Just Terms Compensation) Act 1991 s4, s19, s20, s31, s37, s54, s55, s56 Public Works Act 1912 Real Property Act 1900 Transport Administration Act 1988 s18
CASES CITED:	Anderson v Valuer-General [2005] NSWLEC 151; Antipas v Kutcher (2006) 144 LGERA 289 ; Besmaw Pty Ltd v Sydney Water Corporation (2001) 113 LGERA 246; Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259 ; Brisbane City Council v Thorpe (1965) 12 LGRA 31; Broken Bay Peninsular Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 (1997) NSWLEC 165 ; Commissioner of Highway v George Eblen Pty Limited (1975) 34 LGERA 207 ; Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of SA Ltd (1947) 74 CLR 358 ; Council of the City of Liverpool v Commonwealth of Australia (1993) 46 FCR 67; D & C Dwight v Sydney Water Corporation Ltd [1995] NSWLEC 72 ; Gosford Shire Council v Green (1980) 48 LGRA 201; Harman v City and County of San Francisco (1972) 7 Cal. 3d 150 ; Hemmerling v Tomlev Inc. (1967) 67 Cal. 2d 572; Hornsby Shire Council v Roads and Traffic Authority (1998) 100 LGERA 105 ; Housing Commission of NSW v Falconer [1981] 1 NSWLR 547; Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419; Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] 2 All ER 317 ; Redevelopment Agency of the City of Concord v Michael Tobriner (“Tobriner 1”) (1984) 153 Cal. App. 3d 367; Redevelopment Agency of the City of Concord v Tobriner (“Tobriner 2”) 215 Cal. App. 3d 1087; Roads and Traffic Authority v Perry [2001] 52 NSWLR 222; Spencer v The Commonwealth (1907) 5 CLR 418; Sydney Water Corporation v Besmaw [2002] NSWCA 147; The People ex rel. Department of Public Works v Logan (1961) Cal. App. 2d 581; United States v Welch (1910) 217 US 333; William Henry Kater v Electricity Transmission Authority of New South Wales, (NSWLEC, Pearlman J, 9 February 1996, unreported)
DATES OF HEARING:	29/05/2006 30/05/2006 01/06/2006 21/11/2005 22/11/2005 23/11/2005 24/11/2005 25/11/2005 29/05/2006 30/05/2006 01/06/2006 02/06/2006 09/08/2006 10/08/2006 06/09/2006
DATE OF JUDGMENT:	12/22/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling SC Ms H Irish SOLICITORS