Costantino and Maric v RTA

[2006] NSWLEC 248

Land and Environment Court

of New South Wales

CITATION:	Costantino and Maric v RTA [2006] NSWLEC 248
PARTIES:	APPLICANTS Antonio Costantino and Domenica Costantino Stevan Maric RESPONDENT Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	30165 of 2003; 30187 of 2003
CORAM:	Pain J
KEY ISSUES:	Compulsory Acquisition of Land :- highest and best use - location of drainage reserve - value of land in drainage reserve Disturbance - whether payable for acquisition of replacement property
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s117 Land Acquisition (Just Terms Compensation) Act 1991 s54(1), s55, s59, s61, s66 Liverpool City Council Local Environmental Plan 1997 cl 18(2) Rivers and Foreshores Improvement Act 1948 Pt 3A
CASES CITED:	Baric v Roads and Traffic Authority of New South Wales [2004] NSWLEC 702; Bautovich v The Minister administering the Environmental Planning and Assessment Act 1979 [2004] NSWLEC 389 ; Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259; Damjanovic and Anor v Roads and Traffic Authority of NSW (2) [2005] NSWLEC 371; Horn v Sutherland Corporation [1941] 2 KB 26; Kirela Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2004] NSWLEC 68 ; Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430; Maggiotto v Roads and Traffic Authority [2006] NSWLEC 54; Peter Croke Holdings Pty Limited & Anor v Roads and Traffic Authority (1998) 101 LGERA 30; Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 315; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) NSWLEC 535 ; Woodbury & Ors v Wyong Shire Council [2006] NSWLEC 48
DATES OF HEARING:	21/10/05 25/10/05 26/10/05 27/10/05 28/10/05 15/12/05 16/12/05 28/02/06
DATE OF JUDGMENT:	05/30/2006
LEGAL REPRESENTATIVES:	APPLICANT J Webster SC I Hemmings (Barrister) F Sinclair (Barrister SOLICITORS J P Lawyers (Maric) Gulley Helene Scerri Lawyers (Costantino) RESPONDENT P Tomasetti (Barrister) SOLICITORS Henry Davis York Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 May 2006

30165 of 2003 Antonio Costantino and Domenica Costantino v Roads and Traffic Authority;
30187 of 2003 Stevan Maric v Roads and Traffic Authority

JUDGMENT

1 Her Honour: These are two sets of Class 3 proceedings brought by the Applicants appealing against the offer of compensation by the Roads and Traffic Authority (“the RTA”) for the acquisition of land owned by them. The Applicants have appealed to this Court under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”). The parties agreed that all evidence tendered was to be used as evidence in both proceedings.

Background

2 Mr Antonio Costantino and Ms Domenica Costantino were the registered proprietors of land being Lots 38 and 57 DP 1044841 (formerly Lot 183 DP 2475) known as 50 McIver Avenue, Hoxton Park (“the Costantino land”). On 4 October 2002, the whole of the Costantino land was compulsorily acquired by the RTA for the construction of the Western Sydney Orbital (“the WSO”). The Costantino land has a total area of 1.2144ha. The Valuer-General determined compensation payable to the Applicants for the Costantino land plus disturbance and solatium in the amount of $864,133 (excluding GST).

3 Mr Stevan Maric was at all times the registered proprietor of land being Lots 35, 36, 53, and 54 DP 1044841 (formerly Lots 186 and 187 DP 2475) known as 15 Seventeenth Avenue East, Hoxton Park (“the Maric land”). On 4 October 2002, the whole of the Maric land was compulsorily acquired by the RTA for the construction of the WSO. The Maric land had a total area of 1.6795 ha. The Valuer-General determined compensation payable to the Applicants for the Maric land plus disturbance in the amount of $1,396,750 (excluding GST).

4 The land is generally flat and cleared, in the local government area of Liverpool City Council (“the Council”). Hoxton Park Airport was nearby at the date of acquisition. There is an intermittent and ill-defined watercourse across the land. The Court conducted a view of the acquired land and relevant comparable sales.

Relevant provisions

5 The Just Terms Act regulates the basis on which compensation is payable in these circumstances. Section 54(1) of the Just Terms Act states that:

The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.

6 Section 55 of the Just Terms Act relevantly states that:

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division):
(a) the market value of the land on the date of its acquisition,
…

…

7 Section 59 of the Just Terms Act relevantly states that:

loss attributable to disturbance of land means any of the following:
(a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land,
(b) valuation fees reasonably incurred by those persons in connection with the compulsory acquisition of the land,
(c) financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs),
(d) stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired),
…

The Applicants’ claim

8 The compensation claimed for the Costantino land ranged from $2,050,384 to $2,792,160 based on different valuation scenarios. Disturbance under s55(d) of the Just Terms Act was also claimed.

9 The compensation claimed for the Maric land ranged from $2,797,444 to $3,652,465 based on different valuation scenarios. Disturbance under s55(d) of the Just Terms Act was also claimed.

Planning issues

10 The Applicants relied on the expert planning evidence of Mr Gary Rhodes. The RTA relied on the expert planning evidence of Mr Harvey Sanders.

11 At the date of acquisition the acquired land was zoned Rural 1(e) – Future Urban. The Liverpool City Council Structure Plan for Future Release Areas (1989) (“the Structure Plan”) identified Second Stage Release Area Precincts. The Structure Plan, which was adopted by the Council on 18 April 1989 divided the area into six residential precincts. The acquired land was within Precinct No 3 – Cecil Park, as identified in the Structure Plan. On 29 October 1992, the Council resolved to prepare a draft LEP for part of Precinct 3 (Aerodrome) to rezone this area for residential purposes.

12 The planners agreed that, but for the WSO proposal, the subject lands would have generally been included in a rezoning of precinct 3A in 1995/6 and would have been zoned Residential 2(e1) in 1997. Some land would have been reserved for drainage purposes although there is disagreement as to the location and width of any land so zoned. There is an intermittent watercourse across part of the land known as Middle Creek. It is agreed that the creek would be zoned Special Uses 5(a) – Drainage but there is disagreement about the location of the creek and the width of any riparian zone.

13 The three remaining issues between the planning experts were as follows:

(i) What was the expected zoning of the Australian Noise Exposure Forecast (“ANEF”) affected land?

(ii) What was the likely width of the riparian zone location?

(iii) What was the most appropriate building form on the land?

(i) ANEF 20-25 contour land and ANEF 25-30 contour land

14 The subject land is located close to the Hoxton Park Airport and the provisions of cl 18(2) of the Liverpool Local Environmental Plan 1997 (as amended, 27 September 2002) (“the LEP”) would therefore apply.

15 Clause 18(2) of the LEP states that:

In regard to Hoxton Park Aerodrome:
(a) a dwelling may be erected on land in the vicinity of the aerodrome where the Australian Noise Exposure Forecast (ANEF), as published by the Civil Aviation Authority, is between 20 and 25 only if the dwelling meets Australian Standard AS2021–1994 (Acoustics—Aircraft noise intrusion—Building Siting and Construction) regarding interior noise levels, and
…
(c) a dwelling must not be erected on land in the vicinity of the aerodrome where the Australian Noise Exposure Forecast (ANEF) as published by the Civil Aviation Authority exceeds 25.

16 A s117 Direction refers to a direction made by the Minister under s 117 of the Environmental Planning and Assessment Act 1979 (the “EP&A Act”) and is mandatory for local councils. The s 117 Direction G16 states:

G16 Except where the Council can satisfy the Director that any particular provision or area should be varied or excluded having regard to the provisions of section 5 of the Environmental Planning and Assessment Act 1979:
(i) Draft Local Environmental Plans shall not rezone land:
(a) For residential purposes, not increase residential densities in areas where the Australian Noise Exposure Forecast (ANEF) as from time to time advised by the Department of Aviation exceeds 25…

17 The Costantino land is located within the 20–25 ANEF contour. The planning experts agreed that dwellings could be erected on the Costantino land subject to compliance with AS2021 – 1994. AS2021 provides standards for land use planning in the vicinity of airports and provides guidelines for assessing and addressing the effect of noise from aircraft. Any dwellings to be located on the land would need to have acoustic treatment pursuant to cl 18(2) of the LEP. The expert quantity surveyors agreed that the cost of acoustical treatment would be in the amount of $2,200 – $2,400 per dwelling and based on this the parties agreed the amount of $2,300 per dwelling.

Maric land

18 The Maric land is mostly within the 20–25 ANEF contour and the same measures must apply to any dwellings built on that land as apply to the Costantino land. A strip of land along the McIver Avenue frontage to a depth of about 21.5m (north) and 12.5m (south), an area of approximately 2,850m2, is located in the 25–30 ANEF contour. The planning experts agreed that dwellings were not permitted in the 25–30 ANEF contours.

19 The experts disagreed on whether the strip of Maric land in the 25-30 ANEF contour would have been rezoned for residential purposes by 1996 given the s 117 Direction G16.

20 Mr Sanders considered that, pursuant to the s 117 Direction, the strip of Maric land within the 25-30 ANEF contour would have retained a Rural 1(e) – Future Urban zoning. Mr Rhodes considered that it was not good planning to leave a narrow strip of land in private ownership zoned Rural 1(e) – Future Urban. Further, the draft LEP proposed that all of the land in Precinct 3A be zoned 2(a) Residential. With some adjustment to the location of dwellings, the ANEF affected land could be zoned 2(a) Residential and could be used as outdoor recreation areas for dwellings located on the land.

Finding

21 The planning experts have provided conflicting advice in relation to the Costantino land and Maric land. It is therefore necessary to determine what a prudent hypothetical purchaser would do in light of the conflicting advice.

22 In Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2004] NSWLEC 315, Talbot J considered the role of the Court in reconciling conflicting expert evidence. Talbot J stated at [119] that:

… It is necessary, therefore, that the Court balance the evidence made available to it by having regard to the practical context of the willing but not anxious purchaser dealing with a vendor of the same mind.

23 In Bautovich v The Minister administering the Environmental Planning and Assessment Act 1979 [2004] NSWLEC 389 Talbot J states in his conclusion at [63] – [64]:

… the Court’s role is not to determine what would have been approved, but rather to decide how the hypothetical purchaser acting prudently after obtaining the advice of relevant experts familiar with and experienced in developments of residential subdivisions, would have assessed the potential for the development of the subject land.

24 I consider it is likely that a prudent hypothetical purchaser would obtain town planning advice which could potentially be conflicting.

25 At the date of acquisition there was no suggestion that the Hoxton Park Airport would be closed. This is confirmed by the statement of Kim Ellis, Chief Executive Officer of Hoxton Park Airport Limited tendered in evidence, that at the date of acquisition no announcement had been made about the possible closure of the airport. In such circumstances I consider the documents obtainable from the Council such as the relevant LEP and the s 117 Direction would be given significant weight by a prudent hypothetical purchaser. The s 117 Direction provides that no land in the 25–30 ANEF contour should be zoned to increase residential densities. The 1997 LEP and earlier plans show the zoning boundaries follow the ANEF contour lines and result in properties being intersected by zoning boundaries. I do not consider a prudent hypothetical purchaser would consider it reasonable to pay an amount based on the full residential rate of $180/m2 for the land in the ANEF corridor in these circumstances. A prudent hypothetical purchaser would not be able to rule out that the Rural 1(e) Future Urban zoning would apply to the area of the Maric land within the 25 – 30 ANEF contour at the date of acquisition. I consider that purchaser would therefore value the land on the basis of that zoning and consider it potentially constrained land.

(ii) Width of the riparian zone

26 There was general agreement amongst the planners that it was likely a regional drainage scheme would be implemented in the vicinity of and across the subject lands. That land would be zoned 5(a) – Special Uses. The planners disagreed on the likely extent of any riparian zone in light of that regional drainage zone. Mr Sanders considered there would be a requirement for a riparian zone extending 20m on either side of the watercourse in accordance with the Rivers and Foreshores Improvement Act 1948 (“the RFI Act”). This would apply even if there was a requirement of only 12m or 24m for the drainage reserve, assuming this followed the watercourse.

27 Mr Rhodes’ view is that the likely drainage and riparian zone width can be determined from Council’s approach to drainage elsewhere. That approach is generally to have 24m channels. Further, the development of other sections of the Hoxton Park Stage 2 Release area shows residential development occurred up to the boundary of the zoned channel according to Mr Rhodes.

28 The intermittent watercourse would not have been determined to be a “river” for the purpose of a Pt 3A permit, given the flat nature of the land, the lack of any defined watercourses and the location of regional drainage reserves. However, if it were determined to be a river then Mr Rhodes’ view is that the riparian zone required under the Pt 3 permit would not have extended beyond the drainage zone of 24m.

29 The location of the drainage line across the respective properties and the relationship, if any, to the intermittent watercourse across the land known as Middle Creek was in dispute. It was dealt with by the experts on flooding called by the parties. I will consider this issue further when I deal with those experts.

(iii) Most appropriate building form on the land

30 While both experts agreed that multi-unit housing is permissible on the Costantino and Maric lands, the planning experts disagreed as to the likelihood of this form of development occurring.

31 There was no issue between the planning experts as to whether there would have been a regional drainage scheme in place. However, the planning experts disagreed as to the likelihood of a fill policy being in place and the likely form of development on the subject lands, that is, whether infill medium density development was likely to occur in this vicinity.

32 Mr Rhodes considered that based on the rates of development in other precincts, by the date of acquisition approximately 80 per cent of Precinct 3A would have been developed. While Mr Sanders generally agreed with this, he considered flood liable land would be the last parcels of land developed. Mr Sanders’ view was that as the Costantino and Maric lands were flood liable, it could be inferred that at the date of acquisition there was a possibility that neither parcel of land was likely to be developed.

33 Mr Rhodes considered that multi-unit housing would be likely on both the Costantino land and Maric land. In reaching this view, Mr Rhodes noted that the development pattern in Precinct 1 immediately to the east contained a mix of detached housing, small lot housing and multi-unit housing and that the Council’s s 94 plan predicted 20 per cent of housing on lots of 405m2 or greater would consist of small lot torrens title, dual occupancy, integrated housing and multi-unit housing. According to Mr Rhodes multi-unit housing was often used for sites that were constrained in terms of the location of buildings within the constrained areas providing for open space in support of dwellings. Mr Rhodes considered that a prudent hypothetical purchaser would have the opportunity to inspect similar multi-unit housing developments and could then readily determine the development form and dwelling yield.

34 Mr Sanders considered that multi-unit housing would not have occurred given the nature and character of the area and the general form of residential development in it. The prevailing form of residential development in the locality is conventional single dwelling allotments and this would have been the case in the area in the immediate vicinity of the subject lands at the date of acquisition. There were very few examples of multi-unit housing in the area that extends from Cowpasture Road to Casula, and no multi-unit housing developments in the adjoining West Hoxton Park area.

35 If any of the subject lands were to be developed for multi-unit housing, the experts agreed that the dwelling yield would be one dwelling per 300m2 of unconstrained area. This was based on the assumption that the prudent hypothetical purchaser would not go to the expense of designing an actual layout for such a development.

36 This is an issue also considered by the valuers and I will return to this issue when their evidence is reviewed.

Development constraints – flooding/drainage

37 The subject lands drain toward Hinchinbrook Creek to the east. The Land and Property Information NSW 1:25,000 Topographical Map No. 9020/2S depicts a watercourse (a blue line) traversing the subject lands, known as Middle Creek. It is an intermittent watercourse. The natural creek line is also disturbed by land filling in the area. The area is generally flat.

38 The Cabramatta Creek Flood Plain Management Study was prepared by Mr Bewsher’s firm between 1996 – 1999. Flood contour maps were developed which were adopted by the Council in 2001. It was stated in the study that the indicated flood contours were indicative only and should not be relied on without carrying out separate investigations such as a detailed ground study.

39 The Applicants relied on the expert flooding evidence of Mr Drew Bewsher. The RTA relied on the expert flooding evidence of Mr Ian Rowbottom. The experts agreed the subject lands are flood liable to a minimal depth. The extent of flooding would not limit the development potential of the land. The development would be constrained to some extent by the need to provide for drainage of Middle Creek.

40 The three areas of disagreement between the flooding experts were as follows:

(i) What was the extent of flooding on the Costantino land and Maric land and what were the likely fill requirements?

(ii) Where would the drainage reserve identified as Special Uses 5(a) land have been located?

(iii) What was the likely width of the riparian zone given the RFI Act?

(i) Extent of flooding on Costantino land and Maric land and likely fill requirements

Costantino land

41 In their joint report, the flooding experts agreed that based on the Council’s adopted flood contour maps 2001, about two-thirds of the Costantino land is affected by the 1% AEP flood event and the depth of flooding is generally less than 150mm.

42 Mr Bewsher qualified his comments stating that, while he agreed that based on the Council’s flood contour maps about two-thirds of the Costantino land was affected, a hypothetical prospective purchaser would have gone to the Council to determine how flood affected the land was. After making enquiries with the Council, the prudent hypothetical purchaser would have obtained the latest ground levels, which would reveal that the Council’s flood maps were inaccurate, and would have determined that only about five per cent of the Costantino land was flood affected. On this basis no or very little fill would have been needed on the land.

43 Mr Rowbottom agreed that the Council’s flood maps may not be completely accurate, however, he considered that a prudent hypothetical purchaser would nevertheless rely on the Council’s flood maps which require that certain procedures be followed in relation to the individual sites in applying flood levels to these. He considered that in areas of shallow overland flow in relatively flat areas, minor changes in topography can have a significant impact on depth and extent of flooding. He considered the conclusion should be that the extent of flooding is uncertain, not that the land is relatively flood free.

(ii) Maric land

44 In their joint report, the flooding experts agreed that based on the Council’s flood maps, more than 90 per cent of the Maric land is affected by the 1% AEP flood event and the depth of flooding is generally less than 100mm. They also agreed a prudent hypothetical purchaser was unlikely to obtain a flood study before purchase. While the land was classified as flood liable it was in the Low Hazard Flood Fringe category.

45 Mr Bewsher qualified his comments in oral evidence again stating that a prudent hypothetical purchaser would have obtained the latest ground levels from the Council, which would reveal that the Council’s flood maps were inaccurate, and would have determined that only about ten per cent of the Maric land was flood affected. On this basis no or very little fill would have been needed on the land.

46 Mr Rowbottom had the same views as set out above at par 43. He considered that a prudent hypothetical purchaser would rely on the Council’s flood maps and that overall there was uncertainty about the extent of flooding.

(iii) Extent of fill on Maric and Costantino lands

47 Because of the low frequency of flooding, the relatively shallow depths of flow, and the low hazard nature of the flooding, residential development would be feasible over most of the acquired land provided it complied with Council’s guidelines for development of flood liable land. Council’s Guidelines for the Development of Flood Liable Land (that is, land below the 1% AEP flood level) require land levels for residential release area development to be at or above the 1% AEP flood levels. Therefore, as a minimum, development of the acquired land would require filling to raise finished surface levels of the land to the 1% AEP flood level. Mr Bewsher considered that no filling or no filling beyond the filling to the 1% AEP flood level would be considered necessary by a prudent hypothetical purchaser at this stage.

48 Mr Rowbottom considered there were a number of additional measures which would need to be factored in to render the land developable. The flood level of the dwellings would need to be raised a further 500mm above the 1% AEP flood level with the provision of a fill pad. There would need to be excavation to replace floodplain storage displaced as a result of placing fill material on flood affected land, construction of a 3m wide drainage reserve along McIver Avenue for Maric, and along Seventeenth Avenue for Costantino.

Finding

49 The flooding experts have agreed that the extent of flooding would not affect the development potential of both sites. The margin of error in the flood contour maps is +/- 0.5m. It was agreed that a prudent hypothetical purchaser would not obtain a flood study before the purchase but would be aware of the need to do so in order to get development consent. To the extent there is conflicting advice from the experts, a prudent hypothetical purchaser would consider this issue in the context of how much should be allowed for filling costs. The documents available from the Council at the date of acquisition suggest that the majority of the lands are flood liable to some extent, despite the potential according to Mr Bewsher’s advice for the prudent hypothetical purchaser to find out errors in the Council’s flood maps. I consider such a purchaser would take into account some fill costs.

50 There are conflicting estimates of the cost of filling required as between the quantity surveyors based on the different amounts of fill they calculate are needed to meet the different scenarios posed by the flood experts. Mr Howie, quantity surveyor, estimated costs of $20,630 for 1,214m3 of fill at $17/m3 on the Costantino land and $21,420 for 1,260m3 of fill at $17/m3 on the Maric land. This was on the basis that a prudent hypothetical purchaser would be aware of the basic development costs of elevating the land to the 1% AEP flood level as required by the Council’s Guidelines for the Development of Flood Liable Land.

51 A contrary view on the amount of fill needed was taken by another quantity surveyor, Mr Sanders. He considered that filling to the 1% AEP flood level would not be sufficient, based on Mr Rowbottom’s report. He included costs for flood storage within the site, building platform formation, levee formation, drainage reserves and kerbing and guttering. He therefore estimated fill costs to be $254,973 for Maric and $71,758 for Costantino.

52 I do not consider a prudent hypothetical purchaser would consider all of the fill costs identified by Mr Rowbottom and Mr Saunders would need to be factored in at this stage but would make some allowance for the cost of filling the lands to the 1% AEP flood level. I will adopt the figures applied by Mr Howie as being the figures a prudent hypothetical purchaser would take into account.

Issue 2 – Location of drainage reserve

53 Under the draft LEP for Precinct 3A, which was on exhibition from 8 September to 29 September 1993, the Costantino land was to be zoned Residential 2(e1) and the Maric land was to be zoned partly Residential 2(e1) and partly Special Uses 5(a) – Drainage. The Special Uses 5(a) – Drainage land was depicted as a strip of land 24m wide traversing the Maric land in a northwest-southeast direction. Submissions on the draft LEP opposing this approach were received in 1993 and were considered by the Council. However, the announcement of the WSO delayed the release of the area and consequently the location of the drainage reserve was never finally determined. The planners considered it was unlikely the position of the drainage reserve would have remained as it was in the draft LEP, given the public submissions received suggesting it be moved. They agreed that it was likely that a regional drainage scheme would be in place in the vicinity of, and across, the subject lands.

54 The flooding experts agreed that the final location of the regional drainage reserve would depend on a range of considerations, such as hydraulics, environmental constraints, property acquisition and the cost of construction. These experts agreed that the topography of the area was so flat that a regional drainage scheme could be located in a number of locations. In the absence of a regional drainage scheme having been constructed it would also be necessary to accommodate Middle Creek.

55 Mr Rowbottom considered that it was unlikely that the drainage reserve would have been located as originally proposed by the Council in the exhibited draft LEP. Based on submissions received while the draft LEP for Precinct 3A was on exhibition, it is very likely that the drainage reserve would have been relocated to follow the natural alignment of Middle Creek. This would have resulted in the drainage reserve being located in the south-west corner of Costantino’s property and across the northern part of the Maric property. He also considered that the strip of drainage reserve would continue along the ANEF 25-30 contour land on the Maric property.

56 Mr Bewsher believed that while some weight should be given to the natural alignment of Middle Creek, it would only be one of many considerations. The drainage reserve could be located along the southern boundary of the Costantino land and the northern boundary of the Maric land with the likely outlet towards the Hoxton Park Airport in order to minimise the impact on development.

Finding

57 I must consider what a prudent hypothetical purchaser would be likely to do in light of the conflicting expert advice that may be proffered in this matter. I accept the views of the planning and flood experts that it is likely that the drainage reserve would not follow the path shown in the exhibited draft LEP. This was the most likely position having regard to the submissions to the draft LEP and the Council minutes of 22 November 1993 which concluded that:

The location of these channels have been reviewed by the Council Officers with a view to alternative locations with less impact on land owners.

58 The planners agreed that by the acquisition date, the drainage works on surrounding land would have been implemented in accordance with the drainage scheme for the area. The flood experts agreed that due to the topography of the land and the nature of the intermittent watercourse the necessary drainage reserve would be able to be located in numerous locations. Given the planners’ agreement that a regional drainage scheme would have been in place, I consider the prudent hypothetical purchaser would be likely to assume the drainage reserve would have been located along the path identified by Mr Bewsher so that the drainage path would pass along the southern boundary of the Costantino land and the northern boundary of the Maric land in accordance with the plans in exhibit 26. This route, while not following Middle Creek precisely, can accommodate it and minimises impact on development on the subject lands.

Issue 3 – Required width of the riparian zone

59 As outlined above at par 26-29, the town planners disagreed on the issue of the likely width of the riparian zone. Mr Sanders considered that the land constrained by the drainage reserve would be the land 20m on either side of the unnamed watercourse as the watercourse located on the Maric land fell within the definition of “protected waters” under the RFI Act being the riparian zone on each side of the watercourse. Based on the advice of Mr Sanders, Mr Rowbottom considered that the width of the riparian zone would be 40m in total, being 20m on either side of the unnamed watercourse.

60 In the absence of a regional scheme, Mr Bewsher believed that a 15m buffer width from the creek bank would have been the likely outcome of negotiations with Department of Infrastructure, Planning and Natural Resources (“DIPNR”) to obtain a permit under Pt 3A of the RFI Act. If, however, a regional scheme was in place, Mr Bewsher considered that a riparian zone of 24m in total, being 12m either side of the unnamed watercourse would have been likely to be adopted by DIPNR.

Finding

61 Once again, a prudent hypothetical purchaser is likely to receive conflicting advice. What has occurred in the vicinity would be relevant to that purchaser’s consideration. It appears from existing regional drainage schemes in place in surrounding areas that the Council has generally required drainage land to be 24m wide. Given the poorly defined path of Middle Creek and its intermittent flow I consider a prudent hypothetical purchaser would look at what has occurred in other developed areas and consider that if a Pt 3 permit was required it would not be an impediment to development. Further, a drainage reserve of similar width to that which had been implemented elsewhere was likely, being a zone of 24m in width, 12m either side of the centre line. This is supported by the evidence of Mr Bewsher and Mr Rhodes.

62 In light of my finding on the location and width of the riparian corridor, the calculation of the areas of the riparian corridor will accord with those figures based on Mr Bewsher’s plans contained in the Applicants’ final submission and the tables attached to that submission, which refer to a small drainage reserve.

Expert Valuation Evidence

63 The Applicants relied on the expert valuation evidence of Mr Terry Large in relation to low density residential development and Mr Lopco Neskovski in relation to whether the land would be zoned for medium density development. The RTA relied on the expert valuation evidence of Mr Kent Wood. The valuers agreed that the underlying zoning was part Residential 2(a) and part Special Use Drainage 5(a) along the creek bed. Mr Large and Mr Wood agreed that the value of the residential land for conventional subdivision would be $180/m2.

64 The valuation experts had three areas of disagreement as follows:

(i) What was the highest and best use of the acquired land?

(ii) What was the value of the land within the creek bed and riparian corridor?

(iii) What was the value of the ANEF affected land on the Maric land?

Issue 1 – Highest and best use of the land

65 The planners agreed that by the acquisition date the surrounding land in the South Hoxton Park Aerodrome Release Area would have been 80 per cent developed but for the WSO proposal. Based on this, the Applicants argued that this site could be considered as likely to have been used for “in-fill” medium density development. Mr Large considered that the land could be used in whole or part for medium density development. Mr Neskovski had regard to other examples of medium density developments in the area and argued that the land would be used for medium density development under the agreed Residential 2(a) zoning.

66 Mr Wood considered that while the land could be used for medium density development as at the date of acquisition there would have been no demand for medium density development in the locality at that time. Accordingly, the highest and best use of the land was for single dwelling sites on conventional lots. The examples of medium density development cited by Mr Large and Mr Neskovski are all of smaller sites located to the east of Cowpasture Road in built out localities. Mr Wood stated that in any case, the potential for medium density development would have been captured in the price paid for Residential 2(a) land as medium density development was a permitted use in that zoning.

Finding

67 One issue I must decide is whether a prudent hypothetical purchaser would be prepared to pay $240/m2 for the Maric and Costantino lands because they were sufficiently certain that there would be demand for a large medium density development across both sites of 52 units in 2002, if I accept Mr Neskovski’s evidence. Mr Large applied an higher yield for medium density development of approximately 90 units over both sites.

68 Mr Wood’s evidence is that the most likely use of the site would be for lower density subdivision rather than medium density. This view is supported by the evidence of Mr Sanders set out above at par 34. If Mr Large or Mr Neskovski is correct the site would support medium density development, a view supported by Mr Rhodes at par 33.

69 While Mr Sanders argued (see par 32) that the flood prone nature of the land suggested it would not necessarily be developed by the date of acquisition, the extent of flooding is not serious. I consider the land was likely to be fully or partially developed by the date of acquisition.

70 Having viewed the relevant comparable sales in the surrounding areas, the nature of development in the area, and taking into account the views of the planners and valuers in this matter, I do not consider a prudent hypothetical purchaser would consider the demand for medium density development across both sites could be assumed. Even if surrounding land had been partly developed the certainty of demand for medium density development of 52 or more units in this location would not be assumed by a prudent hypothetical purchaser based on the comparable sales, in my view.

71 Even if part of the sites were developed for medium density should a rate greater than $180/m2 apply to that land? Mr Large relied principally on one sale of a medium density development property, 46 Wattle Road, Casula which sold in May 2002. It had development approval for 19 units on 4526m2. He agreed this was superior to the subject site and in an area with a different character to the subject sites had these been developed for residential purposes. The level of adjustment made by him to arrive at $240/m2 was significant, being 42 per cent due to the inferior location, greater noise impact from the airport and the low-lying nature of the subject land. Mr Neskovski relied on this sale as demonstrating $398/m2. I agree with Mr Wood that this sale was in a superior location and also required substantial adjustment when applied to the current site.

72 Mr Neskovski relied on four other sales he said were comparable, to arrive at a figure of $240/m2 as the value for medium density development on this site. I agree with Mr Wood that the comparable sales relied on by Mr Neskovski were in fully developed residential areas with generally superior locations and most were for much smaller parcels of land than the subject sites as follows:

· 20, 22 Kensington Close, Cecil Hills, sold on 31 January 2002. The site was flood free and elevated land, fully developed with all services with an area of 2647m2 and DA approved for eight units demonstrating $295/m2 according to Mr Neskovski. This sale required substantial adjustment when applied to the current site.

· 193 Wattle Road, Casula, sold on 30 June 2003, demonstrating $345/m2, according to Mr Neskovski. This sale of 4594m2 was well after the date of acquisition in a fully serviced established residential area. Once again substantial adjustment was needed in order to apply it to the subject lands

· Lot 16 DP1045891 Coffs Harbour Avenue, Hoxton Park, with an area of 10,217m2, was sold in February 2004 and was in a fully roaded and serviced area, with development consent for 37 townhouses. Mr Wood considered the sale was not a reliable comparison given the location and an “overanxious” vendor.

· Lot 1 DP505943 Ash Road, with an area of 22,240m2, located at corner Camden Valley Way, Prestons, was sold in January 2004. It was severely constrained in part by a transmission line easement 60m wide and also its proximity to the WSO to the east. I do not consider it to be of much assistance as a comparable sale.

73 It was not clear how the other sales referred to by Mr Neskovski, numbers 5, 7 and 8, were applicable to the subject sites and I understand that they were not ultimately relied on. The adjustment needed to apply the comparable sales to this site suggests $240/m2 is too high a valuation, even taking into account that the surrounding area and possibly the lands would have been developed by the date of acquisition but for the WSO. I do not consider a prudent hypothetical purchaser would consider a value greater than $180/m2 should apply to the land.

Issue 2 – Value of the land within the creek bed and riparian corridor

74 Mr Large applied the agreed amount of $25/m2 for the creek bed (5m2). He applied a value of $166.50/m2 for land within the riparian corridor because this land could be dedicated as open space under the Council’s 2001 s 94 Contributions Plan, therefore it should be ascribed the full residential value ($180) less ten per cent.

75 Mr Wood applied a value of $25/m2 for all of the land located within the creek bed and riparian corridor as the land had no residential potential at the date of acquisition. In reaching this figure, Mr Wood relied on six sales of constrained land set out at Appendix 2, of exhibit 2. He also relied on the 2001 s 94 Contributions Plan which provides for a unit cost of $10 indexed at 20 October 2002 by 1.9 to $19/m2, say $20/m2, for the purchase of land to be used for drainage purposes, such as a regional drainage scheme.

Finding

76 The parties agreed the creek bed of 5m should be valued at $25/m2 and I am prepared to apply that amount.

77 Both parties and their valuers have relied on different sections of the 2001 s 94 contributions plan to justify their figures for the riparian zone. Mr Wood has also relied on sales of constrained land which he considers justify a figure of $25/m2 rather than $20/m2 payable for land for drainage purposes under the contributions plan.

78 In addition to Mr Large’s valuation of $166.50/m2, the Applicants relied on the part of the contributions plan dealing with the provision of open space for the Southern Hoxton Park Aerodrome Release Area proximate to the subject lands. Such lands were valued on the basis of $50/m2 which must be increased by the index figure of 1.9 to approximately $100/m2. That part of the plan was prepared in light of the WSO of necessity and has to be disregarded for that reason.

79 The drainage scheme land the subject of the contributions plan does not apply to the area on which the subject sites are located because they are not in residential areas released because of the WSO. It is both valid and necessary to have regard to the provisions for the acquisition of drainage land on nearby land which is contained in the contributions plan to see what a prudent hypothetical purchaser was likely to consider would be likely to occur on the acquired land.

80 Given that it is accepted that a regional drainage scheme across the lands was likely to have been implemented by the date of acquisition so that land required for that scheme would have been purchased by the Council for that purpose and therefore that land was constrained from residential development, it must be valued on that basis. This is the case regardless of the underlying residential zoning.

81 As relied on by the RTA, in Baric v Roads and Traffic Authority of New South Wales [2004] NSWLEC 702, Bignold J considered the valuation of a trunk drainage strategy across land zoned for residential use. He considered the drainage land was constrained and applied a value significantly less than the residential value. In Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430, McClellan J also adopted a similar approach at [62].

82 It is therefore clear that the approach taken by Mr Wood is to be preferred as his constrained land sales suggest a value commensurate with the 2001 s 94 contributions plan. I consider a prudent hypothetical purchaser would value the land in the riparian zone at a rate of $25/m2.

Issue 3 – Value of the ANEF affected land on Maric

83 Mr Large applied a value of $166.50/m2 to the ANEF affected land as the ANEF affected land could be utilised as recreation areas for residential development. This was the full residential value of $180 minus ten per cent.

84 Mr Wood attributed a value of $25/m2 to the ANEF affected land. In reaching this figure, Mr Wood relied on six sales of constrained land as identified in par 75.

Finding

85 I have held a prudent hypothetical purchaser would not assume that the 25 – 30 ANEF land on the Maric site would be zoned for residential use but could remain as Rural 1(e) land. A prudent hypothetical purchaser would be likely to consider that land to be constrained and would therefore pay $25/m2 in my view. The area of this land is 2850m2.

Development risk

86 The RTA also argued that I should allow an amount for development risk of 25 per cent. None of the valuers suggested that such a discount was warranted. The land would have been zoned for residential development and the flooding experts agree that flooding would not impact on the development potential of the land. While a development application and flood study would be necessary before residential development could take place, a prudent hypothetical purchaser would not consider there was such uncertainty in gaining development approval that he or she would consider it necessary to discount the value on this basis.

87 The following table sets out the market value for the Costantino and Maric lands based on the above findings and amend, in accordance with my findings, Scenario 2 for the Maric land and Scenario 3 for the Costantino land in the Applicants’ valuation scenario table relied on as part of the Applicants’ final submissions.

MARIC COSTANTINO

Base Rate $180 $180
12,086m2 x 180 = $2,175,480 11,129m2 x 180 = $2003220

Creek @$25/m2 388m2 x 25 = $9,700 201m2 x 25 = $5025

Riparian/m2 1,472m2 x 25 = 36,800 764m2 x 25 = $19,100

ANEF/m2 2,850m2 x 25 = $71,250 N/A

Land value $2,293,230 $2,027,345

Fill @$17/m2 $21,420 $20,630

Acoustic treatment
@ $2,300/dwelling $59,800 $46,000

TOTAL $2,212,010 $1,960,715

Disturbance
Costantino land
Section 59(a) Legal Costs on Acquisition

88 The parties agreed legal costs of $5,700 plus GST, totalling $6270.

Section 59(b) Valuation Fees

89 The RTA agreed that the valuation fees reasonably incurred by the Applicants were in the amount of $1,500 plus GST, being $1,650.

Section 59(c) Financial Costs and (d) Stamp Duty

90 The Applicants claim compensation under s59(c) and (d) for their costs reasonably incurred in connection with their relocation and purchase of a new residence.

91 Section 61 of the Just Terms Act states:

If the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of:
(a) any financial advantage that would necessarily have been forgone in realising that potential, and
(b) any financial loss that would necessarily have been incurred in realising that potential.

92 The RTA submitted that the amount claimed by the Applicants under s 59(c) and (d) of the Just Terms Act was not recoverable having regard to s 61 of the Just Terms Act. If it was recoverable, the amount of $23,858.63 was admitted. This is the amount the Applicants are claiming.

93 The RTA argued that because the land had been assessed for market value at a higher value use than its current use, applying s61, additional compensation cannot be awarded under s 59(c) or (d).

94 Further, the RTA submitted that s 59 and s 61 both refer to “loss”. Although subsections of s 59 refers to the word “costs”, these subsections appear under the preamble to the section which refers to “loss” attributable to disturbance. There is no material difference between the two words in this context. The Applicants’ claim for compensation has been assessed on the basis that the land had potential to be used for a more valuable purpose than its current use. Compensation is not payable in respect of any financial loss that would be incurred in realising that potential. In order to realise the potential upon which the Applicants’ claim for market value is based, the land would have to be sold and the Applicants would have had to relocate. The Applicants cannot recover any compensation for “losses” because they have not incurred any “losses” as the land was assessed at its highest potential, which is not its current use. The RTA relied on Damjanovic and Anor v Roads and Traffic Authority of NSW (2) [2005] NSWLEC 371.

95 The Applicants submitted that s 61 does not apply here and does not limit the operation of s59. Section 59 is concerned with “loss attributable to disturbance”. It is clear from the subparagraphs to that section that the loss to which this section refers is a “cost” that has been incurred as a consequence of the acquisition. In contrast, s 61 is not concerned with costs incurred as a consequence of the acquisition. Rather, s 61 prevents the recovery of any “financial advantage” and/or “financial loss” in the assessment of compensation. Here, the Applicants are entitled to payments under s59(c) and (d) because this disturbance claim is not “in respect of” a foregone financial advantage (or loss) in realising the land’s potential. It is a disturbance claim that has to be incurred because of the acquisition.

Finding

96 In Damjanovic, Bignold J disallowed a claim for disturbance under s 59(d) and (f) in relation to legal costs and stamp duty for the purchase of another residence because of s 61 of the Just Terms Act. He held the claim for disturbance was inconsistent with the assessment of the market value of the land on the basis of the highest and best use of the land for industrial use rather than the existing farming use. In Damjanovic the applicants claimed disturbance, arguing that the acquisition forced them to relocate not only their poultry business, but also their place of residence. Bignold J found at [21]-[22] that the relocation of the applicant’s place of residence was ancillary to their intention to use the land for their poultry business and no disturbance was recoverable for this. Bignold J also found at [23] in obiter, that even if the purpose of acquiring the alternative property had been solely to relocate their place of residence, s 61 of the Act operated to prevent recovery for compensation under s 59.

97 In reaching that conclusion Bignold J applied his decision in Peter Croke Holdings Pty Limited & Anor v Roads and Traffic Authority (1998) 101 LGERA 30. His Honour at 42 – 43 referring to Horn v Sutherland Corporation [1941] 2 KB 26, states:

Scott LJ concisely states the principle as follows (at 50):

Where, by reason of the notice to treat, an owner is enabled to effect an immediate realization of prospective building value and thereby obtains a money compensation which exceeds both the value of the land as measured by its existing user and the whole of the owner's loss by disturbance, to give him any part of the loss by disturbance on the top of the realizable building value is, in my opinion, contrary to the statutes.
…
In my opinion, s 61 of the Just Terms Act was intended to operate, and does in fact operate, to similar effect as did the judge made qualification on the entitlement to compensation for disturbance and other consequential losses in consequence of the compulsory acquisition of land.
…
Thus s 61 merely recognises the fact (as recognised in Horn and in Milledge ) that the assessment of "market value" in accordance with s 56(1) may proceed on one of two bases, namely (i) its present or current use; or (ii) a higher (and more valuable) use for which the land possesses the potential and for which it is advantageously adaptable.

Usually of course, the estimation of "market value" will adopt basis (ii) because it yields the higher value. However, where that basis for assessing "market value" is adopted, section 61 precludes the recovery of additional compensation in respect of (a) financial advantage that would necessarily have been foregone in realising the potential (for the higher use) and (b ) financial loss that would necessarily have been incurred in realising that potential.

98 Bignold J also referred to Talbot J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2004) NSWLEC 535 where he states at [29]:

The primary intention of the legislation in respect of disturbance is to further compensate an owner who is required to relocate an actual use where that actual use is the basis for assessment of compensation.

99 At [38] his Honour held:

The present claim pursuant to s 59(f) fails primarily because the costs claimed have been subsumed by the amount of compensation payable in respect of market value assessed on the basis of the highest and best use.

100 In Walker the applicant claimed disturbance under s 59(f) for the costs of legal advice and fees paid to counsel, costs relating to valuing sites, and costs relating to attempts to obtain development consent and to the future development of the land for residential development.. The use of the land at the date of resumption was argued by the applicant to be as part of its land bank for future medium density residential development. The land was zoned for industrial use. Talbot J held that the actual use of the land was for industrial purposes, which was a different and less valuable use than the market value on which the land had been assessed. He applied s 61 and disallowed that disturbance claim because any cost incurred in seeking to obtain development consent was related to a more valuable use. That reasoning would appear applicable to the circumstances here.

101 Damjanovic and Croke have been followed in Woodbury & Ors v Wyong Shire Council [2006] NSWLEC 48 and Kirela Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (No 2) [2004] NSWLEC 68.

102 Section 55 of the Just Terms Act specifies those matters which must be considered in determining the amount of compensation payable, and includes any loss attributable to disturbance. Section 59 defines those costs which can be recovered as losses attributable to disturbance. Section 61 states that any financial loss incurred in realising potential where the market value of land is assessed on the basis of a use other than the current use is not claimable as compensation. The Costantinos are seeking compensation for their legal and stamp duty costs as they must move to a new residence as a result of the compulsory acquisition. They have obtained a market valuation of their land based on the highest and best use of residential subdivision. This valuation is based on a more valuable use than the current use of the land as a single house site. In order to realise the potential of the more valuable use, it would be necessary for the Costantinos to move from the land in any event. On the basis of Croke, Damjanovic, Kirela and Walker Corporation it is clear that their claim stamp duty under s 59(c) and (d) and for relocation costs are not recoverable because s 61 applies in this circumstance to preclude the disturbance claim on this basis.

103 The parties agreed that $19,665 was payable for solatium under s 55 (e).

Rent paid under s 34 Just Terms Act

104 The Costantino land was acquired on 4 October 2002. The advance payment, in accordance with s34(1) of the Just Terms Act, of 90 per cent of the compensation was not made until 1 April 2003. The Applicants vacated the property on 22 April 2003. The Costantinos claimed $4200 in rent paid to the RTA during the first three months of their occupation of the acquired land on the basis that, under s34(2) of the Just Terms Act, they were entitled to a three month rent-free period.

105 The RTA had agreed to pay the Applicants the amount of $4200 for rent paid, the basis on which the matter was dealt with before me at the hearing. After the hearing, where I reserved my decision, the RTA’s solicitor sent a letter to the Court stating that they now wished to dispute this matter. The Applicants’ have objected to the issue of rent now being raised after the hearing of this case in this manner. I agree. The way this matter was raised by a letter from the RTA’s solicitors sent after the close of hearing with no application made to reopen the case is unacceptable, and is contrary in any event to the way the matter was dealt with at the hearing. I will hand down a judgment which accords with the agreement of the parties as advised to the Court at the hearing.

Maric land

106 Section 59(a) Legal Costs on Acquisition

The parties agreed legal fees were payable in the sum of $13,204.02.

Section 59(b) Valuation Fees

107 The parties agreed valuation fees were payable in the amount of $8,250.

Section 59(d) and/or alternatively s 59(f)

108 Mr Maric claimed as disturbance under s 59(f), stamp duty for the purchase of a property which he argued was to replace the acquired property he had owned with the aim of developing it at some stage. The acquired property was held as a land “bank” for development purposes. He swore affidavits on 27 October 2005 and 9 December 2005 and gave oral evidence in support of his claim.

109 The first affidavit attests that Mr Maric is in the business of property development and had bought properties in St Mary’s, Liverpool and Maroubra on which he built various residential developments. At par 5 he states:

I purchased the Property in 1969 and lived there for almost fifteen years. In 1984 I was informed that Hinchinbrook Green Valley was being built up as a residential area. I was also aware that housing development to the north of Property [sic] was filling out and I had heard rumours that the Hoxton Park Airport would close. I therefore resolved to keep the Property for the purpose of developing it. I proposed to build townhouses on the Property, to obtain strata subdivision approval and to sell the townhouses.

110 In his second affidavit he states in relation to his previous affidavit that he and his wife had developed and subdivided four properties. He also states the properties are developed with his company Sydney Wide Construction and Roof Restoration Pty Ltd.

111 Reliance was placed by the Applicants’ counsel on Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259 and Maggiotto v Roads and Traffic Authority [2006] NSWLEC 54.

112 The RTA submitted that the Applicants had failed to establish that they were in the business of property development and held the acquired land in a land bank. Consistent with the Court of Appeal decision in Blacktown Council, the Applicants were required to show that the acquired Maric land was part of their stock in trade constituting a land “bank”. In his affidavit sworn 27 October 2005, Mr Maric stated that he is in the business of property development and has over a number of years acquired properties on which he has built townhouses, obtained strata subdivision approval and on-sold the townhouses. It is clear from the cross-examination of Mr Maric and from the financial records attached to his affidavit that these Applicants are unable to provide evidence of this and cannot be entitled to any compensation under s 59(d) of the Just Terms Act.

113 Alternatively, the Applicants cannot succeed because of s 61 of the Just Terms Act for the same reasons as articulated in relation to the Costantino land.

Finding

114 In Blacktown Council v Fitzpatrick Investments, there was no dispute that the acquired land was held for the purpose of “land banking”. The Court of Appeal held that this was an actual use of land for the purposes of s 59(f) of the Just Terms Act. The RTA disputed in this case that the land was actually used for the purposes of a land bank.

115 Has Mr Maric justified his claim that the acquired land was in a land “bank” which he intended to develop? It was clear from the cross-examination of Mr Maric that he had not taken great care with the execution of his affidavits as there were a number of inaccuracies in these which became clear during cross-examination. For example, he claimed to own two houses in Neutral Bay which he was developing for onselling. Cross- examination revealed that he owned one property which he currently occupied and that he may sell some time in the future. He was unable to state in cross-examination whether that property was a personal or business asset. His position in relation to the Neutral Bay property would appear to be no different from any homeowner who can hypothetically decide to sell his or her home at any time having undertaken development on it. It also became clear under cross-examination that Mr Maric and his wife had jointly bought and jointly developed other properties with another unrelated company rather than in their own right.

116 Financial records of the Applicants’ property development partnership were attached to Mr Maric’s affidavit dated 9 December 2005. The acquired land is not listed as a partnership asset. The property was originally bought in 1969 and used as the Applicants’ home for 15 years until about 1984 when Mr Maric said that he resolved to keep it for development purposes. I agree with the RTA’s submissions that the Applicants have failed to establish that the acquired land was part of their stock in trade constituting a land bank for the purposes of Blacktown City Council v Fitzpatrick Investments.

117 In Maggiotto, Cowdroy J awarded costs incurred for stamp duty and legal costs for the purchase of replacement land on the basis of the acquired land as part of a land bank. Because the land was not recorded as a partnership asset by the applicants, the respondents argued that the applicants were unable to produce evidence that they had any intention of using the land for development or the formation of a business land bank. The evidence from the applicants was that they, as joint tenants or as directors of corporations, held or sold various parcels of land for the purpose of the business. The acquired land was held as a personal asset, not a partnership asset. It had originally been purchased in 1969 to build a family home on but then in 1971 it was determined that it be retained for future development. Cowdroy J held at [128] that the actual use for which the applicants acquired the land was for the purpose of future residential development or subdivision. This was based on an application by the applicants for rezoning of the land to allow for medium density development in June 2002, prior to the gazettal of the acquisition notice in October 2002.

118 The facts of this case however, show greater similarity to Kirela, another decision of Cowdroy J. In that case, the applicant for compensation was seeking to recover, inter alia, stamp duty for land it said replaced the acquired land. It was held that the land at the date of acquisition was not being held for any current development purpose but was being held for development for a future purpose. The Applicants’ situation in these proceedings is more akin to these facts in my view. I do not consider the Applicants have made out their claim for disturbance under s 59(d) or (f).

119 In accordance with my findings above, the amount of disturbance to be awarded is as follows:

(i) In relation to the Maric land, the RTA must pay the Applicants $13,204.02 under s 59(a) of the Just Terms Act for legal costs and $8,250 under s59(b) for valuation costs.

(ii) In relation to the Costantino land, the RTA must pay the Applicants $6,270 under s 59(a) of the Just Terms Act, $1,650 under s 59(b), and $19,665 under s55(e).

120 The Court determines the amount of compensation to which the Applicants are entitled pursuant to s 55 of the Just Terms Act is as follows:

1. In relation to the Maric land, $2,212,010 for market value, and $21,454 for disturbance.

2. In relation to the Costantino land, $1,960,715 for market value, and $27,585 for disturbance. The amount of $4,200 for rent is also payable to the Costantinos under s 34(2).

121 The parties are directed to file short minutes of order to reflect these reasons for judgment and advise what orders they wish made in relation to costs within seven (7) days.