Hillpan Pty Limited v Roads and Traffic Authority of New South Wales [No 2]

[2001] NSWLEC 58

Land and Environment Court

of New South Wales

CITATION:

Hillpan Pty Limited v Roads and Traffic Authority of New South Wales [No 2] [2001] NSWLEC 58

PARTIES:

APPLICANT
Hillpan Pty Limited

RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S):

30007 of 2000

CORAM:

Cowdroy J

KEY ISSUES:

Practice & Procedure :- Application of slip rule - valuation of land - calculation challenged - determination resulting from mistake in mathematical calculation derived from written submissions - mistake corrected

LEGISLATION CITED:

Land and Environment Court Rules 1996 Pt 10 r 7

CASES CITED:

Brew v Whitlock (No 3) [1968] VR 504 ;
Expo Aluminium (NSW) Pty Limited v Pateman Pty Limited [No 2] NSWCA NSW, 29 April 1991 unreported;
Hatton v Harris [1892] AC 547 at 558 ;
Re JW Challand Pty Ltd (1945) 62 WN(NSW) 166

DATES OF HEARING:

29/3/01

DATE OF JUDGMENT:

04/24/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Ayling (Barrister)

SOLICITORS
Coudert Brothers

RESPONDENT
Ms J Blackman (Barrister)

SOLICITORS
Crown Solicitor

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 30007 of 2000
CORAM: Cowdroy J
DECISION DATE: 24/4/01

Hillpan Pty Limited

v

Roads and Traffic Authority of New South Wales

JUDGMENT (No 2)

Background

1. By notice of motion filed on 22 March 2001 pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996 the respondent submits that there was an accidental mathematical error contained in par [30] of the judgment delivered in these proceedings on 2 March 2001 (“the judgment”) that should be corrected.

2. Paragraph [30] of the judgment provides:-

The LEP permits not only single lot housing for which a 450 m2 is required but also small lot housing subdivision for which an area of 270 m2 per lot is required. It might be possible to create two such lots to maximise the use of the residue. Assuming $70,000 per single lot was achievable, the highest and best use of the land would be as follows:-

14 x 3 bedroom townhouses @ $45,000 = $630,000
2 x residential allotments @ nett $70,000 = $140,000
________
Total $770,000

3. In making the assessment of the area available for development, the Court was mindful that a residue of 514 m2 would remain (“the residue”) after the development of the land for 14 townhouses. The Court was also mindful that if two small lots were created from the residue of 270 m2 each, making a total area of 540 m2 there would be a shortfall in area of 26 m2. The Court considered that the total development of the land might be adjusted to accommodate such lots. In view of this understanding there was no mistake in respect of the calculation of land available for development.

Error in Paragraph [30]

4. In determining the value of the residue and in the absence of specific evidence the Court observed that the area available for development was less than that required for two townhouses. An area of 600 m2 would be required for development of two three bedroom townhouses and 520 m2 for two townhouses each of two bedrooms. Accordingly the Court considered that although the area of the hypothetical lots would be slightly smaller than that required for townhouse development, the value of such lots would be similar to that required for each townhouse.

5. Whilst no error exists in the calculation of the area of the residue, a mistake exists in the value applied to such land. When considering the written submissions of the parties the Court mistakenly selected the value of a single residential lot of 450 m2, namely $70,000, as the value for each hypothetical small lot. However it intended to fix the value of such lots at $45,000 each. This figure was based upon Mr Carrapetta’s valuation of the land for the purpose of medium density development as between $165.40 per m2 and $174 per m2. Based upon these estimates, rounded to $175 per m2 a value of $45,000 for each of the remaining residue lots would result, and was the appropriate valuation.

6. Since the correct value of $45,000 per lot would have been substituted as a matter of course had it been brought to the attention of the Court, it is permissible to vary this figure under the slip rule (see Hatton v Harris [1892] AC 547 at 558; Re JW Challand Pty Ltd (1945) 62 WN(NSW) 166). This substitution involves no further exercise of discretion (see Brew v Whitlock (No 3) [1968] VR 504 at 506) since the valuation given in the judgment was an ‘accidental slip or omission’ and was not deliberate (see Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) NSWCA, 29 April 1991, unreported).

Orders

7. For these reasons the Court orders:-

1. Paragraph [30] of the judgment delivered on 2 March 2001 be corrected pursuant to Pt 10 r 7 of the Land and Environment Court Rules 1996 as follows:-

The LEP permits not only single lot housing for which a 450 m2 is required but also small lot housing subdivision for which an area of 270 m2 per lot is required. It might be possible to create two such lots to maximise the use of the residue. Assuming $45,000 per single lot was achievable, the highest and best use of the land would be as follows:-
14 x 3 bedroom townhouses @ $45,000 = $630,000
2 x residential allotments @ nett $45,000 = $90,000
________
Total $720,000

2. Order 1 of the judgment delivered on 2 March 2001 be corrected as follows:-

Finds that the compensation payable by the respondent to the applicant pursuant to s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 is the sum of $720,000.

3. Directs that the proceedings be placed before the registrar at 9.00 am on Thursday 3 May 2001 for directions.