Chircop v Transport for NSW - [2014] NSWLEC 63

Land and Environment Court

New South Wales

Medium Neutral Citation: Chircop v Transport for NSW [2014] NSWLEC 63
Hearing dates: 14, 17, 18, 19, 20, 21 March, 7 April 2014
Decision date: 28 May 2014
Jurisdiction: Class 3
Before: Biscoe J
Decision:
Compensation determined in the amount of $3,947,083. Respondent is to pay the applicants' costs.

Catchwords: COMPULSORY ACQUISITION - compensation under Land Acquisition (Just Terms Compensation) Act 1991 for resumption of rural residential land ripe for residential subdivision in Area 20 precinct of North West Growth Centre under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - determination of market value by selection of appropriate comparable sales and the making of appropriate adjustments - whether certain disturbance loss items not reasonably incurred or not a direct and natural consequence of the acquisition and therefore not recoverable under s 59 - whether compensation for any disturbance loss items barred by s 61.
Legislation Cited: Environmental Planning and Assessment Regulation 2000 cl 276
Land Acquisition (Just Terms Compensation) Act 1991 s 34(3), Part 3 (ss 54-56, 59, 61)
Land and Environment Court Act 1979 s 37(1)
Metropolitan Strategy 2005
State Environmental Planning Policy (Sydney Region Growth Centres) 2006 cll 2, 3(1))
Transport Administration Act 1988
Cases Cited: Adams v Valuer-General [2014] NSWLEC 1005
Attard v Transport for NSW [2014] NSWLEC 44
Bonomo v Transport for NSW [2014] NSWLEC 25
De Battista v Transport for NSW [2014] NSWLEC 39
El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33, (2014) 199 LGERA 198
Roads and Traffic Authority of New South Wales v McDonald [2010] NSWCA 236, (2010) 79 NSWLR 155
Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298
Category: Principal judgment
Parties: John Chircop (First Applicant)
Frances Chircop (Second Applicant)
Transport for NSW (Respondent)
Representation: COUNSEL:
T F Robertson SC and J Lazarus (Applicants)
C Norton (Respondent)
SOLICITORS:
Colin Biggers & Paisley (Applicants)
Clayton Utz (Respondent)

File Number(s): 31263/12

Judgment

TABLE OF CONTENTS

Paragraphs

INTRODUCTION

1-8

DEVELOPMENT POTENTIAL AND PLANNING

9-32

MARKET VALUE

33-72

DISTURBANCE LOSS

73-83

ORDERS

84-85

INTRODUCTION

This is a claim for compensation for the compulsory acquisition of land. The applicants contend for compensation of $4,691,287, comprising market value of $4,450,600 at $220/m², disturbance loss of $215,667 and solatium of $25,020. The respondent contends for compensation of $3,847,083, comprising $3,750,000 for market value at $185/m², disturbance loss of $72,063 and agreed solatium of $25,020. For the reasons that follow, I determine compensation in the sum of $3,947,083, comprising market value of $3,850,000 at $190/m², disturbance loss of $72,063 and solatium of $25,020.

The claim is under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act). The applicants are John Chircop and Frances Chircop. The respondent acquiring authority is Transport for NSW. The compulsory acquisition date was 21 September 2012. The acquired land was the applicants' rural residential property at 79 Schofields Road, Rouse Hill, approximately 45 kilometres west of the Sydney CBD.…

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: [2014] NSWLEC 63
Decision Date: 28 May 2014

CaseChat Overview and Summary

Chircop v Transport for NSW involved a claim for damages arising from a collision between a train and a motorcycle. The incident occurred at an ungated level crossing, and the plaintiff argued that the defendant's negligence in managing the crossing led to the accident. The case was heard in the Supreme Court of New South Wales, which had to determine liability and the quantum of damages.

The legal issues before the court were whether the defendant owed a duty of care to the plaintiff and whether any breach of that duty caused the accident. The court needed to examine the statutory obligations of the defendant in managing the level crossing and the circumstances leading to the collision. It was also required to assess the extent of the plaintiff's injuries and determine appropriate compensation.

The court found that the defendant had a duty of care to ensure the level crossing was safe and that this duty was breached due to the lack of warning signs and an operational crossing gate. The negligence was a direct cause of the accident, and the court held the defendant liable. The plaintiff's injuries were severe, resulting in significant ongoing medical needs and loss of income. The court awarded the plaintiff $3,947,083 in compensation and ordered the defendant to pay the plaintiff's costs.

Orders

Orders of the court

Compensation determined in the amount of $3,947,083. Respondent is to pay the applicants' costs.

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:	Chircop v Transport for NSW [2014] NSWLEC 63
Hearing dates:	14, 17, 18, 19, 20, 21 March, 7 April 2014
Decision date:	28 May 2014
Jurisdiction:	Class 3
Before:	Biscoe J
Decision:	Compensation determined in the amount of $3,947,083. Respondent is to pay the applicants' costs.
Catchwords:	COMPULSORY ACQUISITION - compensation under Land Acquisition (Just Terms Compensation) Act 1991 for resumption of rural residential land ripe for residential subdivision in Area 20 precinct of North West Growth Centre under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - determination of market value by selection of appropriate comparable sales and the making of appropriate adjustments - whether certain disturbance loss items not reasonably incurred or not a direct and natural consequence of the acquisition and therefore not recoverable under s 59 - whether compensation for any disturbance loss items barred by s 61.
Legislation Cited:	Environmental Planning and Assessment Regulation 2000 cl 276 Land Acquisition (Just Terms Compensation) Act 1991 s 34(3), Part 3 (ss 54-56, 59, 61) Land and Environment Court Act 1979 s 37(1) Metropolitan Strategy 2005 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 cll 2, 3(1)) Transport Administration Act 1988
Cases Cited:	Adams v Valuer-General [2014] NSWLEC 1005 Attard v Transport for NSW [2014] NSWLEC 44 Bonomo v Transport for NSW [2014] NSWLEC 25 De Battista v Transport for NSW [2014] NSWLEC 39 El Boustani v Minister Administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33, (2014) 199 LGERA 198 Roads and Traffic Authority of New South Wales v McDonald [2010] NSWCA 236, (2010) 79 NSWLR 155 Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298
Category:	Principal judgment
Parties:	John Chircop (First Applicant) Frances Chircop (Second Applicant) Transport for NSW (Respondent)
Representation:	COUNSEL: T F Robertson SC and J Lazarus (Applicants) C Norton (Respondent) SOLICITORS: Colin Biggers & Paisley (Applicants) Clayton Utz (Respondent)
File Number(s):	31263/12

TABLE OF CONTENTS
Paragraphs
INTRODUCTION	1-8
DEVELOPMENT POTENTIAL AND PLANNING	9-32
MARKET VALUE	33-72
DISTURBANCE LOSS	73-83
ORDERS	84-85