Kudrynski v Orange City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kudrynski v Orange City Council [2023] NSWLEC 9

Hearing dates:

14, 15 and 16 March 2022

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

See orders at [76].

Catchwords:

COMPULSORY ACQUISITION: flood prone vacant land acquired by the council for the public purpose of stormwater harvesting project – land constrained by easements and affected by traffic noise – highest and best use of the land is for rural-residential development – limited comparable sales evidence – adoption of hypothetical development approach –application of statutory disregard – claim that stormwater harvesting project either unfeasible or illegal irrelevant to proceedings – limited weight placed on valuation evidence of applicant because it was decades old and because no adjustments were made to comparable sales – no other valuation evidence provided by applicant – no town planning evidence relied upon by applicant – Court relied upon the town planning and valuation evidence provided by the respondent to calculate the compensation payable for the acquisition of the land.

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1992, ss 4, 55, 56, 59, 66

Land and Environment Court Act 1979, ss 20, 38

Land and Environment Court Rules 2007, r 7.7

Orange Local Environmental Plan 2011, cll 4.1, 4.6, 7.2

Uniform Civil Procedure Rules 2005, Pt 31, Sch 7

Cases Cited:

Marroun v Roads and Maritime Services [2012] NSWLEC 199

UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63

Category:

Principal judgment

Parties:

Alexandra Kudrynski (First Applicant)
Julius Kudrynski (Second Applicant)
Orange City Council (Respondent)

Representation:

Counsel:
J Kudrynski (as agent for First and Second Applicant)
N Eastman with A Richards (Respondent)
Solicitors:
N/A (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/330687

Publication restriction:

Nil

JUDGMENT

Kudrynski Seeks Compensation for the Compulsory Acquisition of Her Land

1. On 11 September 2020 by notice published in the NSW Government Gazette, Orange City Council (“the Council”) compulsorily acquired a parcel of vacant land at 280-284 Phillip Street, Orange (“the land”). The land was acquired for the purpose of a council project, namely, the Blackmans Swamp Creek Stormwater Harvesting Project (“the stormwater harvesting project”).

2. At the time the land was compulsorily acquired it was owned by Alexandra (also known as “Alicia”) Kudrynski. As part of the compulsory acquisition the Council had endeavoured to reach agreement with Kudrynski to purchase the land. The negotiations were unsuccessful thereby resulting in the Council carrying out the compulsory acquisition and engaging the compensation provisions of the Land Acquisition (Just Terms Compensation) Act 1992 (“the Just Terms Act”).

3. On 14 October 2020 the Valuer-General determined that the compensation payable to Kudrynski was $450,000. This was based on a market value for the acquired land, with no additional compensation for any disturbance pursuant to s 59(1) of the Just Terms Act.

4. Kudrynski considered that the compensation which had been determined by the Valuer-General for the acquisition of her land was insufficient for her dispossession. As…