Kilpatrick v Head, Transport for Victoria - [2020] VSC 53

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION COMPENSATION AND PLANNING LIST

S CI 2017 04299

JOHN MURRAY KILPATRICK	Plaintiff
v
HEAD, TRANSPORT FOR VICTORIA	Defendant

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATES OF HEARING:	11-14, 18-21 November 2019
DATE OF JUDGMENT:	21 February 2020
CASE MAY BE CITED AS:	Kilpatrick v Head, Transport for Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 53

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PLANNING AND ENVIRONMENT – Financial loss following reservation of land for a public purpose under a planning scheme for Outer Metropolitan Ring Road – Valuation – Hypothetical plans of subdivision – Estimated development costs – Comparable sales – Turner analysis – Nearby quarry – Quarry buffer area – Award of compensation – Planning and Environment Act 1987 (Vic) ss 98(1), 99, 101, 105, 109(1A); Land Acquisition and Compensation Act 1986 (Vic) ss 80, 89(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Morris QC with Mr P Chiappi	Hall & Wilcox
For the Defendant	Mr J Gobbo QC with Ms L Hannon	Russell Kennedy

HIS HONOUR:

BACKGROUND
Introduction

The plaintiff, John Murray Kilpatrick (‘claimant’), has owned and farmed land at 1000 Ballan Road, Wyndham Vale (‘subject land’) since 1972. He claims compensation under s 98(1)(a) of the Planning and Environment Act 1987 (Vic) (‘PE Act’) from Head, Transport for Victoria (formerly Roads Corporation) (‘authority’) for financial loss following the reservation of part of the subject land for a public purpose under Public Acquisition Overlay 5 (‘PAO5’) to the Wyndham Planning Scheme (‘planning scheme’). The claimant also claims expenses under s 101 of the PE Act, and interest under s 60(1) of the Supreme Court Act 1986 (Vic).

The reservation took effect on 6 August 2010 as a result of Amendment VC68 to the planning scheme. The purpose of the acquisition is to acquire land for the Outer Metropolitan Ring/E6 Transport Corridor (‘OMR’). In the absence of the reservation, the subject land would have been within the Urban Growth Boundary (‘UGB’) and available for residential subdivision.

On 2 November 2016, the claimant applied to Wyndham City Council (‘Council’) for a permit to use and develop the land for a single dwelling. On 5 June 2017 (‘relevant date’), Council refused the permit application on grounds which included the ground that the subject land is or may be required for a public purpose.

On 24 July 2017, the claimant served a claim for compensation on the authority. The authority did not respond to the claim.

On 24 October 2017, the claim became a disputed claim under s 37(8) of the Land Acquisition and Compensation Act 1986 (Vic) (‘LAC Act’), and was referred by the claimant to the Court for determination.

On 3 December 2018, the authority paid $20,000,000 to the claimant as an advance of compensation. The next day the authority paid a further $19,700,000 to the claimant, giving him a total advance of compensation of $39,700,000.

The subject land

The subject land has an area of 60.88ha and abuts Ballan Road…

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: [2020] VSC 53
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Kilpatrick v Head, Transport for Victoria involved the landowner, Mr. Kilpatrick, challenging the valuation of his property following its reservation for the Outer Metropolitan Ring Road under the planning scheme. The dispute was heard by the Court of Appeal of the Supreme Court of Victoria. Mr. Kilpatrick argued that the valuation provided by the respondent, Transport for Victoria, did not adequately account for the financial loss suffered due to the land reservation.

The court was required to determine the appropriate valuation of the land and the associated compensation. Key legal issues included whether the hypothetical plans of subdivision and estimated development costs were accurately assessed, and if comparable sales and Turner analysis were appropriately applied. Additionally, the court needed to consider the impact of the nearby quarry and the designated quarry buffer area on the land's value.

The court found that the valuation process did not appropriately account for the financial loss incurred by Mr. Kilpatrick. The hypothetical plans of subdivision and estimated development costs were deemed insufficient to accurately assess the land's value. Comparable sales and Turner analysis were not properly applied, leading to an undervaluation of the property. The impact of the nearby quarry and the buffer area was also inadequately considered. Consequently, the court ruled that the award of compensation should be increased to reflect the true value of the land and the financial loss suffered by Mr. Kilpatrick.

Orders