J L and M M Muir Properties Pty Ltd v Roads and Traffic Authority

[2003] NSWLEC 434

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Land and Environment Court

of New South Wales

CITATION:	J L & M M Muir Properties Pty Ltd v Roads and Traffic Authority [2003] NSWLEC 434
PARTIES:	APPLICANT: J L & M M Muir Properties Pty Ltd RESPONDENT: Roads and Traffic Authority
FILE NUMBER(S):	30222 of 2003
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- Hearing of claim for compensation for compulsory acquisition-Application to adjourn hearing to review claim for injurious affection
LEGISLATION CITED:	Land Acquisition (Just Terms) Compensation Act 1991, s 55
CASES CITED:
DATES OF HEARING:	12/11/2003
EX TEMPORE JUDGMENT DATE :	11/12/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Webster SC SOLICITORS Abbott Tout RESPONDENT: Mr R Lancaster, Barrister SOLICITORS Clayton Utz

JUDGMENT:

IN THE LAND AND Matter No

. . 30222 of 2003

ENVIRONMENT COURT Coram

: Bignold J

OF NEW SOUTH WALES

12 November 2003

J L & M M MUIR PROPERTIES PTY LIMITED

Applicant

v

ROADS AND TRAFFIC AUTHORITY

Respondent

JUDGMENT

1. This is a claim for compensation brought under the Just Terms Act in respect of the acquisition of land fronting Windsor Road at Kellyville by compulsory acquisition notice published in December 2002.

2. The case was listed for hearing in this Court (with appropriate directions for preparation for trial having been given) for four days commencing on Monday of this week. The trial has reached the stage where each party has comprehensively opened its case in detailed fashion taking me in particular to the historical chain of relevant planning documents affecting the Rouse Hill Development Area since the publication in 1989 of Structure Plans.

3. This morning the Claimant’s Senior Counsel raised two matters of concern to the Claimant in respect of a significant component of the overall claim for compensation, namely the claim of compensation in respect of injurious affection of the residue lands held by the Claimant. That claim is for a little in excess of six million dollars, and is supported by the evidence of Mr Large, a valuer.

4. The two matters Senior Counsel for the Claimant raised concern (i) the question of whether the claim is properly within the Court’s jurisdiction and (ii) the assumption in respect of alternative access to the residue lands upon which the claim for compensation for injurious affection has been based.

5. The jurisdictional problem or potential problem was said to arise by virtue of the fact that the Respondent in communications to the Claimant’s Solicitor earlier this year had proffered a deed of release required to be executed by the Claimant in exchange for the amount of compensation offered to it by the Respondent. That release contemplated the execution by the Claimant of a restriction on user to be created pursuant to the Conveyancing Act 1919, s 88E, the effect of which would be to deny any means of access between the widened Windsor Road and the residue lands retained by the Claimant.

6. The second matter raised concerned the manner in which the Claimant, through its advisers, had formulated and estimated the injurious affection claim which was said to be based upon the assumption that the Respondent would provide alternative access arrangements via a service road as a result of the denial of access between the residue land and Windsor Road as widened.

7. As the matter was developed in debate, it appears to me that there is no problem with the Court’s jurisdiction to entertain the claim for injurious affection which as I understand it is based entirely upon the effect of the denial of access to Windsor Road from the Claimant’s residue lands zoned Business 3B under the Baulkham Hills Local Environmental Plan. This position emerges with tolerable clarity upon analysis of the nature of the claim and the fact that the Respondent has made it clear both prior to, and at the date of compulsory acquisition that access to Windsor Road from the retained lands would be denied.

8. There was some discussion concerning the legal foundation for effecting such a prohibition on access, including consideration whether appropriate declarations would be made under the Roads Act1993 to achieve that legal prohibition. But as I understand Counsel for the Respondent, that source of legal authority to achieve that result is not at the present time envisaged, but instead the Respondent relies upon the provisions of the relevant planning instruments, especially the Baulkham Hills Local Environmental Plan.

9. No objection is raised by the Respondent to the Court entertaining the claim to injurious affection upon the sole basis that that injurious affection is created or caused by the denial of access between the claimant’s retained lands and the Windsor Road.

10. In these circumstances I am satisfied that the Court may entertain comfortably within its established jurisdiction the injurious affection claim and properly determine it. I should add that it is the Respondent’s case that there is no injurious affection caused to the retained land by virtue of the compulsory acquisition of the strip lands, together with the intention of the Roads and Traffic Authority that there be no access to that road to and from the retained lands. Accordingly, this particular matter raised by Senior Counsel for the Claimant does not found or support any application for adjournment.

11. The real basis for the adjournment application is founded upon the Claimant’s submission that it may, in its evidence, have quantified the claim for injurious affection at a figure which is less than the true impact by dint of injurious affection.

12. This submission is founded upon the proposition that Mr Large’s quantification of that element of the claim was based upon provision to the retained land on a permanent basis of the alternative access to be provided by the Roads and Traffic Authority, and in particular via the service road earlier mentioned. Mr Large’s report of valuation (Exhibit 23), states the basis upon which he quantifies the claim upon the advice that would have been available to the hypothetical purchaser at the date of compulsory acquisition.

13. There is a dispute in the evidence as to whether the service road was ever intended to operate as more than an alternative access to sustain existing uses made of the relevant lands. It is to be noted that the retained land of the Claimant which is zoned Business 3B under the Local Environmental Plan, has not been re-developed in accordance with that zoning, and remains in its rural state, and the use of it has been for some form of desultory grazing with the benefit of vehicular access being obtained from Windsor Road.

14. Senior Counsel for the Claimant has submitted that as the Roads and Traffic Authority has made clear in its opening of this case this week, the assumption upon which Mr Large has quantified the injurious affection claim (namely the provision on a permanent basis of the service road for the redevelopment of the site) is an erroneous assumption, which will not be fulfilled. In consequence of this realisation, it is said that it is necessary for the Claimant, through its advisers, to review the whole question of the impact of the denial of access to Windsor Road upon the value of the retained lands. It is anticipated that that review (which would include exploring the feasibility and viability of obtaining alternative access) is likely to lead to a claim in excess of the quantified six million dollars estimated in Mr Large’s existing valuation.

15. In opposing the adjournment application, Counsel for the Roads and Traffic Authority have drawn attention to the letter from his instructing Solicitors to the Claimant’s instructing Solicitors written on 12 August this year in which the Roads and Traffic Authority declare that its position in relation to the alternative road via the service road concept is only offered to sustain existing uses and is not a relevant to or capable of sustaining any commercial redevelopment of the substantial landholding of the Claimant in the retained, and submits that since some three months having elapsed since the position of the Roads and Traffic Authority was made perfectly clear in the litigation, the application for belated adjournment should not be granted.

16. The Claimant is in some form of dilemma in relation to its claim to injurious affection in as much as it has propounded it on a single basis, namely what the hypothetical purchaser would have known at the date of acquisition (that is in December 2002) of the proposals for alternative access. As I mentioned earlier, Mr Large in his report Exhibit 23 sets out in section 12 at page 10 the Roads and Traffic advice that he said was given at a meeting with Roads and Traffic Authority engineers on 29 October 2002, just a few weeks before the date of acquisition.

17. The forensic dilemma confronting the Claimant is not only that that factual basis (or evidence to that effect) may not be accepted, but instead the Court might make some alternative finding either on the evidence available at the time or on the basis of evidence of events subsequent to the date of compulsory acquisition, in which event the Claimant’s quantification of the injurious affection claim would have proceeded upon a false assumption.

18. The dilemma is intensified even if the assumption made by Mr Large is ultimately adopted as the factual position on the hypothetical transaction at the date of compulsory acquisition in as much as it is now known and made clear by the Respondent that no alternative access to the retained land to enable its development to its full capacity as commercially zoned land is to be provided. It follows that even if Mr Large’s assumption as to the position of the RTA at the date of resumption is accepted, that assumption is no longer factually the position, as a result of events subsequent.

19. All this may be accepted, but the hard fact remains that so much was clear and ought to have been clear as from the date of the Respondent’s Solicitor’s August letter, some three months ago. Without shutting out the Claimant to seek to adduce further evidence in these proceedings on the quantification of the claim for injurious affection, I am of the opinion in the circumstances of this case that the adjournment application at this stage should be refused.

20. The case has well and truly commenced, we are past the half way point of the hearing time allocated. The position was tolerably clear three months ago. The claim for injurious affection, even based upon the sole foundation found in Mr Large’s report of valuation, is for a sum of six million dollars, whereas the Respondent’s position is not a cent is compensable for injurious affection.

21. Accordingly, what is foremost in contest, is the question of principle or liability to compensation rather than its quantification. In rejecting the adjournment application I do not necessarily shut the Claimant out from making any further application that it may be advised to make later in the litigation on the question of quantification if liability for payment of injurious affection is substantiated. For all those reasons the adjournment application is rejected.