Johnston v Roads and Traffic Authority - [2000] NSWLEC 111

Land and Environment Court

of New South Wales

CITATION: Johnston v The Roads and Traffic Authority [2000] NSWLEC 111

PARTIES:
APPLICANT
Johnston
RESPONDENT
The Roads and Traffic Authority

FILE NUMBER(S): 30443 of 1998

CORAM: Cowdroy J

KEY ISSUES: Compensation :- highest and best use - valuer notionally dividing land into separate components and applying comparable sales to each separate portion - method of valuation unorthodox - assessment of value determined by application of traditional principle of comparison of whole of lands with comparable sales - disturbance claim for loss of existing use rights - costs of relocation of heritage item.

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Roads Act 1993

CASES CITED: Lodge v Water Conservation and Irrigation Commission (1967) 14 LGRA 88;
McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238;
Moreton Club v The Commonwealth (1948) 77 CLR 253;
N Stephenson Pty Limited v Roads & Traffic Authority of New South Wales (1994) 83 LGERA 248 ;
Pamalco Pty Limited v Minister (3) (1991) 71 LGERA 441;
Redeam Pty Limited v South Australian Land Commission (1977) 40 LGRA 151;
Riverbank Pty Limited v Commonwealth of Australia (1974) 48 ;
ALJR 483 ;
Russellan v Roads and Traffic Authority of New South Wales (1992) 75 LGERA 263 ;
Sher v The Commissioner of Main Roads (NSW) (1975) 24 Valuer 150;
The Commonwealth of Australia v Milledge (1953) 90 CLR 157 ;
Veins & Anor v Gosford Shire Council (1976) The Valuer 756

DATES OF HEARING: 9/5/00, 10/5/00, 11/5/00, 12/5/00, 25/5/00, 26/5/00

DATE OF JUDGMENT:
06/16/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Webster (Barrister)
SOLICITORS
Stone & Partners
APPLICANT
Mr J Maston (Barrister)
SOLICITORS
Crown Solicitors

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No.30443 of 1998
CORAM: Cowdroy J
DECISION DATE: 16/6/00

Robert James Johnston

Applicant

The Roads and Traffic Authority

Respondent

JUDGMENT

1. By application class three the Court is required to assess compensation pursuant to the provisions of s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”) in respect of land described as:-

All those pieces or parcels of land situate in the Byron Shire Council area, Parish of Brunswick and County of Rous shown as Lots 28, 31 and 33 Deposited Plan 877915 being part of the lands in Certificate of Title 12/755692:
Lot 29 Deposited Plan 877915 being part of the land in Certificate of Title 12/755692 and Lot 30 Deposited Plan 877915 and Lot 2 Deposited Plan 123323 being parts of the Land in Certificate of Title Auto Console 5742-19.

2. Such lands were compulsory acquired by notice published in the New South Wales Government Gazette dated 11 September 1998, for the purpose of the re-alignment of the Pacific Highway at Byron Bay. Such acquisition was made pursuant to the provisions of the Roads Act 1993.

3. The compulsory acquisition did not involve a substantial portion of the applicant’s land. Rather the lands compulsorily acquired…

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: [2000] NSWLEC 111
Decision Date: 06/16/2000

CaseChat Overview and Summary

The case of Johnston v Roads and Traffic Authority was heard in the Land and Environment Court of New South Wales, where the applicant, Robert James Johnston, sought compensation for the compulsory acquisition of his land by the Roads and Traffic Authority for the purpose of re-aligning the Pacific Highway at Byron Bay. The applicant's land, located on either side of the Pacific Highway near Byron Bay, comprised a weatherboard cottage of the Federation era with heritage significance known as “Araluen” (“the Araluen house”) and other land that was zoned partly Rural 1(B1) (Agricultural Protection) and partly 7(D) Environmental Protection (Scenic Escarpment) pursuant to the Byron Bay Environmental Plan 1988. The key issue in this case was the valuation of the applicant’s land, both before and after the acquisition, and the amount of compensation to which the applicant was entitled. The applicant's valuer, Mr Allsopp, had notionally divided the property into four areas and used comparable sales to assess each area separately, whereas the respondent's valuer, Mr Bewes, had used comparable sales of the whole of the applicant’s land. The Court determined that the method adopted by Mr Bewes, which involved using comparable sales of the whole of the applicant’s land, was the appropriate and fair method of compensation, as it eliminated the numerous mathematical calculations that were essential in Mr Allsopp’s method and also the factors which could produce fluctuating results. The Court accepted the evidence of Mr Bewes and adopted his quantification of the value of the applicant’s land both before and after the acquisition. The Court also rejected various subsidiary claims made by the applicant, including the claim for stamp duty for a hypothetical purchase of a substitute house, the cost of accountant’s advice, loss of rent, and planning advice. The Court held that these claims were not compensable under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991. In conclusion, the Court determined that the applicant's entitlement pursuant to s 55 of the Acquisition of Land (Just Terms) Act was the sum of $613,217, which included compensation for land, legal expenses, evaluation expenses, road extensions, removal of house, and site re-location expenses. The total compensation payable was therefore the sum of $613,217.

Orders