Dillon, Kevin v Gosford City Council (No.2)

[2010] NSWLEC 44

Land and Environment Court

of New South Wales

CITATION:

Dillon, Kevin & Anor v Gosford City Council (No.2) [2010] NSWLEC 44

PARTIES:

FIRST APPLICANT
Kevin Dillon
SECOND APPLICANT
Kerry Dillon

RESPONDENT
Gosford City Council

FILE NUMBER(S):

30157 of 2007

CORAM:

Sheahan J - Miller AC

KEY ISSUES:

COMPULSORY ACQUISITION OF LAND :- application to reopen to add further claims for compensation - finality of litigation - principles to apply - meaning and scope of easement acquired

LEGISLATION CITED:

Conveyancing Act 1919
Land and Environment Court Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Local Government Act 1993
Uniform Civil Procedure Rules 2005

CASES CITED:

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 258 ALR 14
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338
Bankstown City Council v El Dana [2009] NSWLEC 68
Dillon, Kevin & Anor v Gosford City Council [2008] NSWLEC 186
Fokas v Kogarah Council [2008] NSWCA 145
Metwally v University of Wollongong (No.2) (1985) 60 ALR 68
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2005] NSWLEC 419
Newcastle City Council v Caverstock Group Pty Ltd and Another (2008) 163 LGERA 83
Pittwater Council v Brown Bros Waste Contractors Pty Limited [2009] NSWLEC 50
Smith v NSW Bar Association (1992) 176 CLR 256
Teoh v Hunters Hill Council (No.3) [2009] NSWLEC 121

DATES OF HEARING:

17 February 2010

 
DATE OF JUDGMENT: 

31 March 2010

LEGAL REPRESENTATIVES:

FIRST AND SECOND APPLICANTS
Mr K Dillon in person

RESPONDENT
Mr P Tomasetti, SC
SOLICITORS
Storey & Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

31 March 2010

30157 of 2007 Dillon, Kevin & Anor -v- Gosford City Council (No.2)

JUDGMENT

1 His Honour: This judgment deals with a Notice of Motion (‘NOM’) brought by the applicants, subsequent to a decision given by the court in respect of their claim for compensation for the compulsory acquisition of an easement for a levee bank on their land at Narara on the Central Coast – see [2008] NSWLEC 186.

Relevant History

2 The Notice of Acquisition was issued by the Council on 19 July 2006, but the matter had some history prior to that date, as the levee was constructed some ten years before. The acquisition was gazetted on 27 October 2006, and the Council thereby acquired an easement for levee bank described on DP 1082242 as “Proposed Easement” and shown as “Plan of Proposed Easement for Support and Right of Carriageway” within Lot 3 of DP 775599.

3 On 26 November 2006, Mr & Mrs Dillon submitted a claim for compensation in the amount of $772,590, made up as follows:

Market Value $184,800
Special Value $47,500
Severance Nil
Disturbance $22,800
Solatium $10,000
Increase/decrease in value of other land $507,490
$772,590

4 Pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (“JTC Act”) the Valuer General assessed compensation at $100,000, and Council made an offer of compensation in that sum. The determination document, signed by a Mr Helman but not itself dated, allowed $85,000 for market value, $15,000 for disturbance, and “nil” for Special Value, Severance, Solatium, and Increase/decrease in the value of “other land”.

5 The applicants were self-represented at the time of commencing these proceedings on 27 February 2007. After the proceedings were commenced, the Council filed Points of Assessment of Compensation on 30 April 2007 outlining the same basis for the valuation of $100,000 as determined, and specifying “$Nil” for each of Special Value, Severance, Solatium, and Increase/decrease in value of other land.

6 The applicants filed Points of Claim (‘POC’) on 29 June 2007, particularising a total claim of $1,082,000 in the following terms:

Market Value $396,000
Special Value $245,000
Disturbance $443,000
Injurious affection $28,000
Total $1,082,000 (sic)

7 There was no claim included for “solatium” (cf [3] above). The “special value” claim was said to be based upon the financial value of the advantage previously enjoyed by the applicants incidental to their rural/residential use in their ability to readily construct a tennis court sympathetic to the flood prone nature of the lower lying portion of Lot 3. The “disturbance” amount was comprised of legal costs $15,000, valuation fees $3,000, and other financial costs $425,000 (all amounts estimated). The “injurious affection” claim related to the adverse impact on the value of Lot 3 as a result of the rezoning of part of it from “6(e) Open Space Proposed” to “9(a) Restricted Development – Flood Prone”, and to the impact of the levee bank construction on flood flow behaviour across Lot 3, with a consequent increase of damage to Lot 3 and its improvements.

8 In its Points of Defence (‘POD’) filed on 12 July 2007, the Council adhered to its compensation determination of $100,000. It specifically denied the applicants’ claims for special value, disturbance, and injurious affection.

9 As the matter progressed through the court in the run-up to trial, the applicants appointed Mr Peter Rees, of Mallik Rees Lawyers of Cessnock to act for them. Mr Rees filed a Notice of Solicitor Acting on 17 October 2007 and, on 10 December 2007, filed Amended Points of Claim (‘APOC’) in the following amounts:

Market Value $145,000
Loss attributable to disturbance $230,108
Total claim $375,108

10 No mention was made in those APOC of any claims for special value, severance, or injurious affection, but the “disturbance” claim was particularised as follows:

Removal and replacement of unsuitable fill $90,310
Rectification and establishment of a vegetation screen $4,798
Installation of scouring control measures
to the creek $130,000
Legal, valuation and ancillary costs before acquisition
(estimated) $5,000
Total $230,108

11 The respondent Council filed Amended Points of Defence (‘APOD’) on 10 December 2007, asserting a market value of $45,000, and agreeing to pay, by way of “disturbance”, legal/valuation fees of $5,000.

12 The matter proceeded to trial, with hearing dates 10-13 December 2007 and 10-11 March 2008. The applicants were represented throughout the hearing by Mr J A Ayling SC, instructed by Mr Rees. The Council was represented by Mr P Tomasetti SC.

13 I was assisted at the hearing by Acting Commissioner Craig Miller, whose continued assistance in the proceedings is gratefully acknowledged.

The Court’s Decision and Orders

14 I handed down the court’s decision on 6 June 2008. Its essence was summarised (in pars [89]-[92]) in the following terms:

“ 89. Accordingly, I have come to the following conclusions regarding the claimed compensation:

(a) The claim based on the loss in Market value is determined in the amount of $45,000.

(b) The disturbance claim in respect of the removal and replacement of unsuitable fill is declined.

(c) The disturbance claim in respect of the rectification and establishment of a vegetation screen at the front of the block is declined.

(d) The disturbance claim in respect of the installation of scouring control measures to the creek is allowed, but the quantum is not determined, as the appropriate quantum can be assessed only after those works have been completed.

(e) The disturbance claim based on legal, valuation and ancillary costs associated with the acquisition is determined in the amount of $5,000.


90. The parties are directed to bring in short minutes of order to reflect these reasons.

91. Leave is granted to Mr and Mrs Dillon to apply to the Court when approved scour protection works have been completed so that compensation for disturbance under s.59(f) can then be assessed, if it cannot be agreed with the Council.

92. The question of costs is reserved .”

15 In par [73] of my judgment I said, in relation to what became part (d) of par [89]:

“ I am satisfied that the works proposed by Mr Boyden and Mr Dillon extend beyond what is required or necessary to address the consequences of the increased flow of floodwaters in and into the Old Narara Creek following the construction of the levee. Accordingly, only a proportion of the cost of the works can properly be claimed as compensation arising from the acquisition (see Fitzpatrick). That sum can be calculated only when the works have actually been completed and the appropriate proportion of the final cost determined. For this reason I propose to follow what Lloyd J did in Fitzpatrick Investments Pty Limited v Blacktown City Council (No.2) [2000] NSWLEC 139, and grant leave to Mr and Mrs Dillon to apply to the Court when the works have been completed, if the issue cannot be satisfactorily negotiated with the Council, so that compensation for disturbance under s.59(f) can be assessed.”

16 The orders the court made on 6 June 2008 were:

“ 1. The parties are directed to bring in short minutes of order to reflect the reasons published on 6 June 2008.
2. Leave is granted to Mr & Mrs Dillon to apply to the Court when approved scour protection works have been completed so that compensation for disturbance under s.59(f) can then be assessed, if it cannot be agreed with the Council.
3. The question of costs is reserved.
4. All exhibits may be returned, except Exhibit A13 and Exhibit A14.”

17 No appeal was been lodged against the court’s decision.

18 On 22 July 2009 (some thirteen months later), Short Minutes of Order to reflect the judgment, including the special Fitzpatrick order the court made regarding compensation for scouring control works, were finally brought in, and orders were made in the following terms:

“ 1. The claim based on the loss in Market value is determined in the amount of $45,000.
2. The disturbance claim in respect of the removal and replacement of unsuitable fill is declined.
3. The disturbance claim in respect of the rectification and establishment of a vegetation screen at the front of the block is declined.
4. The disturbance claim in respect of the installation of scouring control measures to the creek is allowed, but the quantum is not determined. Leave is granted to Mr and Mrs Dillon to apply to the Court when approved scour protection works have been completed so that compensation for disturbance under s.59(f) can then be assessed, if it cannot be agreed with the Council.
5. The disturbance claim based on legal, valuation and ancillary costs associated with the acquisition is determined in the amount of $5,000.
6. Costs are reserved.”

19 Mr Rees filed a Notice of Ceasing to Act for the applicants on 31 July 2009.

20 On 15 September 2009, the orders made on 22 July 2009 were entered by the Registrar (see Exhibit G2).

21 The subject matters of Orders 4 and 6 (the compensation to be paid for scour protection works, and the costs of the substantive proceedings) remain to be finalised.

The scour protection works and the Notice of Motion

22 Following the judgment and orders of 6 June 2008, the unresolved question of scour protection was eventually listed for further consideration by the court on 10 August 2009.

23 On that date the applicants, once again represented by Mr Dillon alone, filed a NOM and a document entitled “Amended Points of Claim”.

24 Council had granted to the applicants, on or about 3 or 4 September 2008, a consent for relevant scour protection works. However, the Department of Water & Energy would not concur in the approval of those works, as envisaged at the time of the court’s decision. An acceptable alternative proposal has since been advanced, assessed, and approved.

25 Negotiations have continued between the parties regarding compensation for that work.

26 At the short hearing on 10 August 2009, the court directed the applicants to retain an expert to consult with the Council’s expert (Mr Tilley) regarding the appropriate cost of the scour protection works, and the appropriate proportions in which the parties should contribute to it.

27 On or about 25 August 2009, the applicants engaged Dr Ian Joliffe as their expert.

28 On 7 September 2009, the applicants filed a “Supplementary Valuation Report” from their valuer Mr Dupont.

29 On 17 September 2009, further directions were given.

30 On 25 September 2009, the applicants filed a new NOM, and a document entitled Further Amended Points of Claim (‘FAPOC’), along with a report from Dr Joliffe.

31 On 2 October 2009, a joint report by Dr Joliffe and Mr Tilley was filed, along with the applicants’ submissions on the NOM. The experts were directed to further confer on the question of scour protection works, the costs thereof, and apportionment of those costs.

32 On 9 October 2009, further directions were made by consent, including a notation that the 25 September 2009 NOM and FAPOC were in total replacement of the 10 August 2009 documents.

33 The parties are agreed that once the NOM has been determined, the court must move quickly to finalise the scour protection works aspect of the case.

34 In this regard, it should be noted that:

(1) the Council has agreed not to insist upon the works being completed prior to any agreed Council contribution being paid;
and
(2) Mr Tilley and Dr Joliffe have agreed that the cost of scour protection should be apportioned between the applicant and the respondent in the proportions 53% applicant and 47% Council.

35 The Council is anxious to finalise the matter once and for all. Its submissions point out that no work to protect the bank from scour has been done since the judgment was given.

36 The applicants have a quotation in the amount of $175,156 (including GST) from “Central Coast Civil”, dated 10 February 2010, for the works as now proposed, but do not accept the apportionment agreed by the experts. Council would like more quotes for comparison

The Notice of Motion

37 The NOM of 25 September 2009, which is now before the court, seeks the following relief (emphasis added):

“ 1. The Court is respectfully requested to make the following declaratory orders to formally determine the nature of the remaining estate or interest of the Applicants in the subject land (Lot 3, DP775599) pursuant to the provisions of section 25, Land and Environment Court Act, 1979:
(a) That the interest enjoyed by the owner(s) of Lot 3, DP775599 (Applicants/claimants) includes the right to continue use the soil, (sic) water, vegetation and other improvements comprising the levee bank and improvements installed in and on Lot 3, the adjacent filled area and dam situated within Lot 3, DP775599 and that such interest is unaffected by the provisions of sections 51, 59A and 191A, Local Government Act, 1993, but subject to the interest acquired pursuant to the acquisition notice published in the NSW Government Gazette dated 2 September 1994 – folio 5604 associated with the ‘Easement for Sewerage Pipeline’ and also the interests acquired pursuant to the acquisition notice published in the NSW Government Gazette No.69 dated 25 May, 2007 – folio 3028 associated with the ‘Easement for Levee Bank’ affecting Lot 3.
(b) That the interest enjoyed by the owner(s) of Lot 3, DP775599 (Applicants/claimants) is not subject to an ‘Easement for Levee Bank’ pursuant to the acquisition notice published in the NSW Government Gazette No.69 dated 25 May, 2007 otherwise than within Area ‘E’ shown on DP1082242.
(c) That the interest enjoyed by the owner(s) of Lot 3, DP775599 (Applicants/claimants) is not subject to either an ‘Easement for Support’ nor a ‘Right of Carriageway’ as shown on DP1082242 pursuant to either the acquisition notice published in the NSW Government Gazette No.69 dated 25 May, 2007 nor the provisions of the Real Property Act, 1900.
2. If the Court is unable to or declines to make Order 1(a), 1(b) and/or 1(c), that leave be granted to the Applicants to file the accompanying Further Amended Points of Claim dated 22 September, 2009, or so much thereof as the Court considers just in the circumstances.
3. If the Court is unable to or declines to make Order 1(c), that leave be granted to the parties to submit further valuation evidence in relation to the amount of compensation payable for the ‘Easement for Support’ and ‘Right of Carriageway’ shown affecting area ‘E’ on DP1082242 acquired by the Respondent.
4. If the Court does make Order 1(a), 1(b) and/or 1(c), that leave be granted to the Applicants to file so much of the accompanying Further Amended Points of Claim dated 22 September, 2009, as the Court considers just in the circumstances.
5. That the amount of compensation payable by the Respondent with respect to the Disturbance Loss claim associated with the proposed erosion protection works detailed in Development Consent No.34476/2008 be paid within 4 weeks of determination.
6. That the Respondent pay the costs of the Applicants on an Indemnity Basis .”

38 The respondent Council’s submissions point out that the applicants (in their NOM) have not sought, in terms, to set aside or reopen the judgment and orders of 6 June 2008, under UCPR 36.15 or UCPR 36.16.

39 Having also chosen not to appeal the court’s judgment and orders, the applicants now seek leave to rely on FAPOC, which substantively recast the claim that was made at the hearing of the proceedings.

40 The differences between what was claimed at the hearing (see [9] and [10] above), and what is now claimed, are easily seen. In the FAPOC, the applicants now claim compensation on three alternative bases:

“ Alternative 1 :
Market Value (provisional) $55,000
Special Value (provisional) $152,800
Severance Loss $31,250
Disturbance Loss (prov) $255,430
Injurious Affection (prov) $170,000
Total $664,480
OR, Alternative 2 :
Market Value (provisional) $215,000
Special Value (prov) $152,800
Severance Loss $31,250
Disturbance Loss (prov) $255,430
Injurious Affection Loss $10,000
Total $664,480


OR, Alternative 3 :
Market Value $55,000
Special Value (provisional) $152,800
Severance Loss Nil
Disturbance Loss $188,920
Injurious Affection Loss $45,000
Total $441,720”

41 The FAPOC go on to provide (p2) the following explanation of the three alternatives:

“ Alternative 1:
The interest acquired comprises that contained in the gazettal notice described above. The statutory powers and immunity provided under s51, s59A, s191A, s635 and s733, Local Government Act, 1993 are applicable to Lot 3 generally (as the levee bank is a ‘stormwater drainage work’), but those statutory powers and immunity do not form part of the acquired interest.

Alternative 2:
The interest acquired includes that contained in the gazettal notice described above. The statutory powers provided under s51, s59A, s191A, s635 and s733, Local Government Act 1993.

Alternative 3:
The interest acquired comprises that contained in the gazettal notice described above. The statutory powers provided under s51, s59A, s191A and s635, Local Government Act, 1993 are not applicable to Lot 3 generally as the levee bank is not a ‘stormwater drainage work’. However, the statutory immunity provided by s733, Local Government Act, 1993 is applicable to Lot 3 but does not form part of the acquired interest.”
(I will refer to the Local Government Act from hereon as the “ LG Act ”).

42 Also attached to the FAPOC (p3) is a table entitled “Valuation Summary” which further breaks down some of the dollar amounts. Additional supporting information is also included in that document (pp4-5) by way of explanation of the “provisional” items.

43 The NOM came on for hearing on 17 February 2010. On the eve of that hearing, the applicants filed a response to the Council’s submissions, which had been filed in November 2009. So the court has had the benefit of substantial written submissions from both parties, as well as oral submissions, to all of which I will return after I set out the evidence before the court.

Evidence

44 The applicant tendered the following documents at the hearing of the NOM:

Exhibit D1 – a document entitled “ Registrar General’s Directions ”, tendered to explain to the court what constitutes an easement.
Exhibit D2 – Extracts from the December 1988 “ Lower Narara Creek Flood Study ” and Kinhill’s “ Floodplain Management Plan for Lower Narara Creek ”, under which the subject levee bank was constructed.
Exhibit D3 – an extract from Council’s business paper dated 27 September 2005, concerning the levee bank, the related easement at the heart of these proceedings, and the decision to make the subject compulsory acquisition, together with a copy of Council’s original POD dated 6 July 2007, on which copy the applicants have emphasised the following in par 4(e): “ the Respondent denies that the Lower Narara Creek Floodplain Management System should be ignored in assessing the market value ”.
Exhibit D4 – a copy of the valuation report commissioned by the Valuer General and dated 27 October 2006, upon which the applicants rely to demonstrate that construction of the easement resulted in a diminution in the value not only of the easement area “ but also the adjoining land ”, yet the Council assessed its compensation on the basis of a nil decrease in the value of such “ other land ”.
Exhibit D5 – a plan depicting possible culverts which could be constructed under the levee and Manns Road to relieve the flooding of the applicants’ residue land.
Exhibit D6 – a Hansard extract of the second reading speech for the legislation which regulates (1) Council’s access to premises for purposes related to stormwater control works, and (2) Council’s liability to compensate landowners for any damage caused. Mr Dillon distinguishes drainage works from flood mitigation works and has concerns about s59A of the Local Government Act 1993 (enacted by that legislation, and amended in 2009), in view of the court’s findings.
Exhibit D7 – a title search regarding the applicants’ property which Mr Dillon argues contains various irregularities, including recording of two relevant easements, not one.
Exhibit D8 – Mr Dillon’s suggested alternative formulation of a single appropriate easement regarding the levee bank, acceptance of which he says would resolve the applicants’ NOM if the Council agreed to pay the applicants $85,000 in compensation (as per the original Valuer General report).
Exhibit D9 – Mr Dupont’s “ supplementary valuation report ” dated 3 September 2009, covering “ certain scenarios consequent upon ” my judgment, which valuation includes an assessment of injurious affection to the residue land as a result of the public purpose.
Exhibit D10 – the Joint Valuation Report dated 4 December 2007, tendered and relied upon in the substantive proceedings (as Exhibit R4), but now criticised by Mr Dillon.

45 Exhibit D8 had been put to the Council’s solicitors by email on 16 February 2010 as a way of alleviating the applicants’ concerns that Council can “use” the residue land as well as do works on the land which is subject to the easement (see Council’s Exhibit G1).

46 At this point I note that Mr Dillon wrongly submitted that this court could act upon any agreement to so amend the easement, by exercising the powers in s 89 of the Conveyancing Act 1919, or the “ancillary” jurisdiction in s 16(1A) of the Land and Environment Court Act 1979. The s 89 powers are within the jurisdiction of the Supreme Court and not this court (see s 7 of the Conveyancing Act 1919), and go far beyond what could be done by this court under its own Act (see Newcastle City Council v Caverstock Group Pty Ltd and Another (2008) 163 LGERA 83 at [50], and Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338, at [73]ff).

Submissions

Finality of Proceedings

47 The Council submits that proceedings under the JTC Act are a “once only” opportunity for the finalisation of compensation issues, and that, therefore, the court’s decision of 6 June 2008 is final and conclusive, except in so far as the actual amount to be paid by way of compensation for such scour protection works as the court found to be compensable has yet to be determined.

48 On the other hand, the applicants submit that the judgment and orders of and following 6 June 2008 are “interlocutory in nature”, presumably on the basis that they did not determine compensation for severance, special value, solatium, or injurious affection.

49 Mr Dillon also submits that the current proceedings are necessary because of (1) “real questions” raised by the earlier proceedings, and by my judgment purporting to finalise them, and (2) “outstanding matters” left unresolved by those proceedings. He says (at [81]-[82] of his submissions):

“ 81. Consequently, the findings in the judgment have raised numerous matters which must be considered by the judicial valuer in order to assess ‘just compensation’ as mandated by the JT Act. His Honour, Biscoe J., in McDonald v RTA of NSW [2009] NSWLEC 105 stated:
“[13] The list of matters in s 55 to which regard must be had when assessing the amount of compensation is subject to the ‘just compensation override’ in s 54: Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353, 149 LGERA 439 at [28]; Smith v Roads and Traffic Authority of New South Wales) [2005] NSWLEC 438 at [66].
[14] Because of the guarantee in s 3(1)(a), which is re-iterated in s 10(1)(a), the acquiring authority must pay at least the market value of the acquired land unaffected by the proposal: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325, 163 LGERA 245 at [63], [72] per Hodgson JA; Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353, 149 LGERA 439 at [41] per Spigelman CJ; Smith v Roads and Traffic Authority of New South Wales [2005] NSWLEC 438 at [65] per McClellan J.
82. The significant moment of the abovementioned findings potentially affects the assessment of market value as well as many other components of the just compensation. For these reasons the leave sought is considered essential in the in (sic) interest of justice.”

Section 59A of the LG Act

50 Mr Dillon submits (T p26, LL35-37) that in my judgment I opened a “sec 59A door” which should now be “shut tightly”, or have its impact now factored into redetermining the compensation to be awarded, bearing in mind that the applicants still own land under the levee, as well as around it.

51 Section 59A of the LG Act provides:

“59A Ownership of water supply, sewerage and stormwater drainage works
(1) Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).
(2) A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.
(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.”

52 Mr Dillon contends that ownership of the works undertaken in constructing the levee vests in the Council by virtue of the s 59A. As a consequence, he maintains (T p27, LL 25-30) that:

“ If 59A applies, it subdivides the property. The area beyond the levy (sic) bank, beyond area E, is basically cut off. If I was to drive a tractor from the house down to the far end of the levy (sic) I would be trespassing because the council owns the land, owns the soil. I have no right to graze it. The grass is council’s grass. They turfed it; they own it because of 59A, if 59A applies ”.

53 Mr Dillon also submitted (T p27, LL36-40) that:

“ 59A also enlivens section 635 of the Local Government Act which says that nobody can interfere or you can be penalised for interfering with a storm drainage works. Just things like, you know, digging a fence post hole or burying irrigation or, you know, spraying weeds and poison or planting plants. Any interference with the levy (sic) bank, in theory, is actionable ”.

Consideration

Finality

54 Despite Mr Dillon’s protestations to the contrary, the NOM clearly seeks a reopening of the substantive proceedings. The court considered on 22 July 2009 that the Short Minutes of Order brought in by the respondent accurately reflected my reasons for judgment, and I remain of that view.

55 No allegation has been made by the applicants that the judgment and orders were made “irregularly, illegally or against good faith”. Nor is any “slip” in the judgment or orders alleged, except that the applicants urge the court to use the slip rule to amend my Order 1 to better reflect my reasons and better explain the actual interest acquired for the $45,000 ordered as compensation.

56 Accordingly, I find (1) that the proceedings have been finally determined, except as to one specific consequential detail, and (2) that there is no “slip” requiring intervention of the kind which should be addressed by the application of a slip rule.

57 As five judges of the High Court said in their joint judgment in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 258 ALR 14, at [112]-[113]:

“[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.”

58 The law and principles regarding finality of orders and reopening of cases are now well established. See discussion of the rules, relevant authorities and the applicable principles by Lloyd J in Pittwater Council v Brown Bros Waste Contractors Pty Limited (“Brown”) [2009] NSWLEC 50, and by me in Teoh v Hunters Hill Council (No.3) (“Teoh”) [2009] NSWLEC 121, at [43]-[60].

59 Lloyd J in Brown carefully distinguished orders that are “final” from those which are properly considered “interlocutory, conditional, or procedural”. The orders I have made in this matter are clearly “final”.

60 As the Court of Appeal said in Fokas v Kogarah Council [2008] NSWCA 145, at [18], the courts must act promptly to correct any injustice created by final orders. While the orders on this matter were not perfected until 15 months after the judgment was handed down, the thrust of the orders was clear from June 2008 and the NOM (in final form) was not filed until September 2009.

61 Delay in initiating “remedial” action also occurred in Teoh, and in Mir Bros Unit ConstructionsPty Ltd v Roads and Traffic Authority of New South Wales (“Mir”) [2005] NSWLEC 419.

62 In Mir, market value had been finally determined but disturbance claims stood over, and some nine months elapsed before the applicant sought to reopen its case on three stated bases – (1) to reagitate the application of the “Before and After” valuation method, (2) to correct a possible arithmetical error, and (3) to introduce fresh valuation evidence on a matter which was debated and determined at trial, but had not been pleaded.

63 McClellan J agreed to reopen the case only in respect of the arithmetical error, if it could be established. His Honour applied the principles laid down by the High Court in Smith v NSW Bar Association (“Smith”) (1992) 176 CLR 256, especially at 265-7, saying, inter alia:

“6 The first matter sought to be reagitated is the proper application of the before and after method of valuation, which I utilised in reaching my conclusion in relation to market value. I utilised that approach, which was the approach taken by the parties' valuers, because, after consideration, I concluded that it was appropriate to derive the market value of the acquired land in that manner. Application of the before and after method requires faithful adherence to the relevant principles which include a proper analysis of the situation after the land has been acquired. In this case the evidence disclosed that the parcel of land from which the acquired land has been taken was large and, as against comparable sales, a discount for size was appropriate. With respect to the residue, it being a much smaller parcel, difference considerations arise which are reflected in my reasons for judgment.
7 The applicant seeks to reopen that aspect of the matter, not so much to tender any further evidence, and it is difficult to see what further evidence could be given in relation to that aspect, but to submit that the approach I took involves an error of law. If there be a legal question in that aspect of the matter and there is an error the appropriate forum for which to advance the argument is the Court of Appeal. Leave is declined in relation to that aspect of that matter.
8 The second question is in reality a matter of arithmetic. It is submitted that the calculation which I made when applying the adjustment relevant to consideration to the impact of the M7 contains an error of logic within the arithmetic. If that is the case then I would grant leave to reopen in order to amend the arithmetical calculation. The parties have undertaken to speak with each other about the matter and if they are agreed that an arithmetical error is contained within the calculation they will, on the resumed date, tell me of the error and I have indicated that I will then make whatever adjustment I believe appropriate to the market value. I do so mindful of what the High Court said in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265.
9 The third matter sought to be reopened requires a little more consideration than the first two. …”

64 His Honour went on to explain the third issue (impact of the M7 roadway upon values in the area) in some detail (at [9]-[13]). That issue, although not within the pleadings, had been identified by the parties before trial, and in the valuation evidence and submissions, and was dealt with in His Honour’s substantive judgment. The applicant had not complained of being disadvantaged until well after that judgment was delivered when it sought to reopen to produce fresh valuation evidence.

65 His Honour said (in Mir at [14]ff), that Smith made plain that, in considering such a reopening application:

“14. … it is relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, that will normally be decisive. But if that is not the case, it is relevant to enquire whether the hearing is complete, if the reasons for judgment have been delivered and whether or not there may be embarrassment or prejudice to the other side by allowing the matter to be reopened. If that is the case then the rules relating to fresh evidence are suggested as providing a useful guide to the exercise of discretion as to whether or not the matter should be reopened.
15 In the present case it is apparent that a decision was made by counsel that the evidence that was available at the trial was sufficient and appropriate for the resolution of this issue. Although I infer that the further report which is now sought to be tendered was not available and the approach taken by that valuer had not be identified, nevertheless, it is plain that a forensic decision was made that the evidence which was available was sufficient to resolve the issue.
16 It will be the case in many valuation matters that a fresh mind may identify a different approach with a potentially different outcome to the valuation problem. The fact that this has occurred in this case is not a reason, in my opinion, to allow the applicant to reopen.
17 Furthermore, as I have already indicated, this matter has proceeded on the assumption that the market value issue would be determined as a discrete issue. Evidence has been tendered, submissions received, the matter analysed and my reasons for judgment published. In every sense of the matter that fundamental issue in these proceedings has been finally determined.
…
21 The issue of the impact of the M7 has already been heard and determined. The opportunity to proffer an alternative approach to the resolution of that item was available to the applicant at the time of the hearing and, no doubt, a forensic decision was made that the basis upon which the matter was to be argued at that time was appropriate for its resolution. “

66 I adopt, without hesitation, the principles espoused in Smith and Mir.

67 If further authority is needed on the question of parties’ remaining bound by the way in which their cases have been conducted, I would refer to the following comments of six judges of the High Court in Metwally v University of Wollongong (No.2) (1985) 60 ALR 68, at [71]:

“ It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
(See also the authorities surveyed by Biscoe J in Bankstown City Council v El Dana [2009] NSWLEC 68).

68 The “just compensation override” in s 54(1), of which Biscoe J spoke in McDonald v RTA, requires the court to have regard to “all relevant matters” contained in the relevant part (Part 3) of the JTC Act to “justly compensate” the dispossessed owner. In this case, pleadings were exchanged and amendments attended to. Directions were made for the orderly conduct and disposal of the proceedings. The applicants formulated their claims, and the issues were clearly defined and joined. Substantial time was devoted to hearing them and coming to a considered decision on them.

69 The Dillons were represented at the hearing by experienced practitioners, including eminent senior counsel well recognised in this area of practice. They chose not to make claims for severance, special value, solatium or injurious affection at their “once and for all” hearing.

70 Like Mrs Teoh (see Teoh at [64]-[65]), Mr Dillon, in his submissions on behalf of the applicants, criticises others, such as Council, Council officers and Council’s legal representatives, and has not been especially critical of the court’s judgment, but asks the court to “go back, do it again, and try to go a little further for us”.

71 The case ran for five hearing days, and most of what transpired is now conveniently ignored. The applicants relied at the hearing on the joint valuation evidence tendered without objection, but now criticise its methodology. Because the overall result to their litigation was a disappointment to them, they now argue that the judgment was only “interlocutory”, or a “step along the way” - their submissions refer to the “proceedings to date”, “a primary case”, and the “findings made to date”.

72 All their points, as finally pleaded, were run, and not all succeeded. All that remains of the case so determined is to arrive at a dollar figure to put on one successful disturbance claim.

73 On reconsideration of the proceedings and the judgment, I am satisfied that the court acted as required by s 54(1) of the JTC Act, and by the authorities (including some decisions of my own) upon which Mr Dillon’s submissions rely.

The LG Act issues

74 In my opinion, s 59A of the LG Act does apply, but it refers only to ownership of the works, and not to the land on which those works have been undertaken. Secondly, the works have been constructed, by virtue of the acquisition of an easement, on land which still remains in the ownership of the applicants.

75 There is nothing in the terms of that easement which limits the applicants’ rights to use the surface of the levee for any lawful purpose such as grazing or for access to other parts of their land.

76 Accordingly, a claim under s 55(c) of the JTC Act, for “any loss attributable to severance”, cannot arise.

77 In respect of s 635, I reject the suggestion that such examples of interference as Mr Dillon gave (see [53] above) would result in an actionable offence.

78 Clause 1(a) of Schedule 2 of the easement states “drain water from any natural source through each lot burdened, but only within the site of this easement…”. I have already held (see principal judgment at [34]) that the lot burdened is lot 3, so the inclusion of the words “but only within the site of this easement” adds nothing.

79 Accordingly, the answer to Mr Dillon’s question (T17.02.10, p26, L8-11) – “What is entitling council to use that substantial part of our land to discharge flood waters and there’s no statutory power; there’s no common law right; there’s no implied necessity; it’s not an easement of the necessity” – is that the easement covers the whole of the lot burdened, namely lot 3.

The Certificate of Title

80 The applicants’ concern about the dealings listed on their Certificate of Title (see prayer 1 in [37] above) is not a matter that this court can rectify, even under its ancillary power, but I am confident there would be a way to address it elsewhere.

Conclusions and Questions of Costs

81 It is clear from what I have said that the court should dismiss the applicants’ Notice of Motion.

82 That outcome dictates that the applicants be ordered to pay the Council’s costs in respect of it, and the court will so order.

83 In submissions, Mr Tomasetti foreshadowed that the Council might seek indemnity costs on the motion, but that question has not yet been argued.

84 In addition, there remain outstanding not only the question of compensation for scour protection works, but also the question of the costs of the proceedings, so far reserved.

85 All three remaining issues should be determined as soon as possible, and the orders made today seek to put that in train.

86 The parties are encouraged to endeavour to settle all three outstanding issues before the proceedings are listed for further hearing.

Orders

87 Accordingly, the orders of the court are:

1. The applicants’ Notice of Motion of 25 September 2009 is dismissed.

2. The applicants are ordered to pay the respondent’s costs in respect of the Notice of Motion, as incurred on and since the filing of the original Notice of Motion on 10 August 2009.

3. If the respondent wishes to seek an order that those costs be paid on an indemnity, rather than on a party-party, basis, it should file a Notice of Motion to that effect within 21 days of today’s date.

4. The matter is listed for callover and directions by the Registrar on Friday 23 April 2010 with a view to setting a date for the hearing, before Sheahan J and Miller AC, of:
(a) any Notice of Motion brought pursuant to Order 3 hereof,
(b) further submissions on the outstanding disturbance item concerning scour protection works, and
(c) the question of the costs of the substantive proceedings.

5. All exhibits are returned, except Exhibit G2 .