Doueihi v RTA - [2004] NSWLEC 51

Land and Environment Court

of New South Wales

CITATION: Doueihi and Anor v RTA [2004] NSWLEC 51

PARTIES:
FIRST APPLICANTS
Ibrahim Doueihi and Mariette Doueihi
SECOND APPLICANT
A & M Doueihi Pty Limited
RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S): 30421 of 2002

CORAM: Cowdroy J

KEY ISSUES: Valuation of Land :- whether compensation for land can be awarded in respect of unauthorised use of land - whether Court is entitled to award compensation for a chance that the consent authority would grant consent for the unauthorised use - whether compensation can be awarded for a operating business which is conducted unlawfully.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C, s 106
Environmental Planning and Assessment Regulation 2000, cl 41, cl 42(2)(b), cl 43
Holroyd Local Environmental Plan 1991
Land Acquisition (Just Terms Compensation) Act 1991, s 55, s 56(1)

CASES CITED: Lemworth Pty Ltd v Liverpool City Council (2001) 53 NSWLR 371

DATES OF HEARING: 17/02/2004; 18/02/2004; 19/02/2004; 20/02/2004; 23/02/2004

DATE OF JUDGMENT: 03/05/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr D. Officer QC
Ms V. Culkoff (Barrister)
SOLICITORS
Russo and Partners
RESPONDENT
Mr R. Lancaster (Barrister)
SOLICITORS
Henry Davis York

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

30421 of 2002

Cowdroy J

5 March 2004

Ibrahim Doueihi and Mariette Doueihi

First Applicants

A & M Doueihi Pty Limited

Roads and Traffic Authority of New South Wales

Respondent

Judgment

Introduction

1 The applicants appeal against a Determination of Compensation made pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”). The applicants are entitled to compensation arising out of the acquisition of land known as No. 134-138 Great Western Highway, Mays Hill also being known as lot 4 in deposited plan 165054 and lot 1 in deposited plan 745175 and being the whole of the land contained in folio identifier 4/165054 and 1/745175 (“the subject land”).

2 The acquisition of the subject land was gazetted on 17 December 2001. Compensation in respect of the market value of the land acquired has been assessed under s 55(a) of the Just Terms Act at $970,000. Disturbance pursuant to s 55(d) of the Just Terms Act has been assessed in the amount of $40,000.

3 The first named applicants, namely Mr and Mrs Doueihi owned the subject land as joint tenants. The second applicant was the owner and operator of a florist business (“the business”) which was mostly located on No. 136-138 of the subject land. Erected thereon was a corner shop and associated sheds at the rear. A cottage known as No. 134 Great Western Highway was used for the purpose of accommodation for an employee of the business.

4 Since the commencement of the proceedings, the parties have agreed that the appropriate amount of compensation in respect of two issues. Compensation for No. 134 is agreed at $305,000 and compensation for disturbance is agreed at $40,000. Accordingly the issues remaining are confined to the valuation…

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: [2004] NSWLEC 51
Decision Date: 03/05/2004

CaseChat Overview and Summary

The case of Doueihi and Anor v RTA involved a dispute over the compensation to be awarded for the acquisition of land and a business operated thereon by Ibrahim and Mariette Doueihi. The Doueihis owned and operated a florist business on the acquired land, which had been zoned for residential use. The key issues in the case revolved around the valuation of the land and the business, specifically whether compensation could be awarded for the unauthorised use of the land and the operation of the business without proper consent. The court had to decide whether it was entitled to award compensation based on a chance that the consent authority would have granted consent for the unauthorised use, and whether compensation could be awarded for a business conducted unlawfully.

The court held that compensation for the unauthorised use of the land and the operation of the business without consent could not be awarded. The court reasoned that the applicants had failed to prove that there was a chance that the council would have approved the unauthorised use of the land for the operation of the florist business. The court also found that the valuation of the land and the business for compensation purposes must be made in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, which required the disregard of any increase in value caused by the use of the land in a manner or for a purpose contrary to law.

The court determined that the lawful use of the property should be considered for the calculation of compensation, and that the value of the business should be confined to the floral retailing business conducted on the authorised portions of the land. The court awarded compensation in the sum of $1,001,000, comprising $305,000 for the cottage at No. 134, $425,000 for No. 136-138, and $231,000 for the value of the business. The applicants were also awarded $40,000 for disturbance. The question of costs was reserved, and the exhibits were ordered to be returned.

In summary, the court ruled that compensation could not be awarded for the unauthorised use of the land and the operation of the business without consent, and that the valuation of the land and the business for compensation purposes must be made in accordance with the applicable legislation. The court awarded compensation for the lawful use of the property and the value of the business, while reserving the question of costs and ordering the return of the exhibits.

Orders