David Fox v Planning Ministerial Corporation

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

David Fox v Planning Ministerial Corporation [2023] NSWLEC 109

Hearing dates:

5 to 9, 13 to 15, 22 and 29 June and 14 July 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Class 3

Before:

Moore J

Decision:

See directions at [487]

Catchwords:

COMPULSORY ACQUISITION – determination of compensation – land compulsorily acquired on the Sydney Harbour foreshore at McMahons Point – necessity to determine the public purpose for which the land was acquired –public purpose to be disregarded for the purposes of assessing compensation – the Applicants propose that the public purpose was the creation of a foreshore park identified in 1948 and incorporated in the County of Cumberland Planning Scheme Ordinance 1951– Applicants propose underlying zoning at the date of acquisition was R3 Medium Density Residential after disregarding the public purpose – the Ministerial Corporation's position is that the acquisition was for the purpose of completing the already existing open space reserve surrounding the site – Ministerial Corporation proposes underlying zoning at the date of acquisition was B1 after disregarding the public purpose – public purpose was that advanced by the Ministerial Corporation – resultant underlying zone is B1 Neighbourhood Centre at the date of acquisition

VALUATION – valuation of site on an underlying zoning of B1 Neighbourhood Centre – consideration of the extent of a hypothetical B1 development on the site – hypothetical development of three storeys with one ground floor commercial level with basement and a single level apartment above – hypothetical purchaser an owner/occupier not a developer looking to construct the hypothetical development and on‑sell it – consideration of value of commercial component – consideration of value of residential component – two-level hypothetical B1 development subject of quantity surveying evidence – necessity to derive a value after consideration of valuation and quantity surveying costing – necessity to make allowance for risk of obtaining development – valuation of acquired property on B1 underlying zoning basis to be derived from applying nominated adjustments to the valuation analysis of a three-level shop top housing development – directions given for calculating outcome

VALUATION – contingent R3 valuation undertaken as a precaution if B1 Neighbourhood Centre incorrect underlying zoning – comparable sales method appropriate basis for valuation assessment –expert valuers consider multiple potential comparable sales – consideration of whether sales were truly comparable – only one sale truly comparable – analysis and adjustment of comparable sale results in valuation of acquired property on R3 underlying zoning basis of $17,200,000

DISBURSEMENTS – dispute as to limited range of disbursements made in support of preparation of Applicants case – disbursements made for the purposes of enabling legal advice to be given to the Applicants – disbursements to be reimbursed pursuant to s59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991

COSTS – consideration of costs entitlement of dispossessed owners – dispossessed owners’ case not advanced unreasonably or in a fashion causing unnecessary expense…