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…

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 248
Decision Date: 05/30/2006

CaseChat Overview and Summary

The case before the Land and Environment Court of New South Wales, Costantino and Maric v RTA, involved two sets of Class 3 proceedings brought by the Applicants appealing against the offer of compensation by the Roads and Traffic Authority (RTA) for the acquisition of their land. The Applicants, Antonio Costantino and Domenica Costantino, as well as Stevan Maric, claimed compensation for the compulsory acquisition of their land for the construction of the Western Sydney Orbital. The key issues in the case included determining the highest and best use of the acquired land, the value of the land in the drainage reserve, and whether compensation for disturbance was payable for the acquisition of replacement property.

The Court considered the conflicting expert evidence provided by both parties and applied the principles of a prudent hypothetical purchaser to determine the market value of the land. The Court found that the highest and best use of the acquired land was for single dwelling sites on conventional lots, rather than medium density development. The Court also determined the value of the land within the creek bed and riparian corridor, as well as the value of the Australian Noise Exposure Forecast (ANEF) affected land on the Maric land. The Court found that the land in the riparian zone and ANEF affected land should be valued at a rate of $25/m2, as it was constrained from residential development.

Regarding disturbance, the Court found that the Applicants' claim for compensation for legal and stamp duty costs as they must move to a new residence as a result of the compulsory acquisition was not recoverable because it was subsumed by the amount of compensation payable in respect of market value assessed on the basis of the highest and best use of the land.

The Court determined the amount of compensation to which the Applicants were entitled, which included market value and disturbance compensation. The Court also awarded solatium and rent paid under s 34 Just Terms Act. The final orders directed the parties to file short minutes of order to reflect these reasons for judgment and advise what orders they wished made in relation to costs within seven days.

Orders