Launceston City Council v Shepherd - [2009] TASSC 71

[2009] TASSC 71

COURT: SUPREME COURT OF TASMANIA

CITATION: Launceston City Council v Shepherd [2009] TASSC 71

PARTIES:  LAUNCESTON CITY COUNCIL
  v
  SHEPHERD, Douglas Claude

FILE NO/S:  M94/2006
DELIVERED ON:  28 August 2009
DELIVERED AT:  Hobart
HEARING DATE:  6, 7 April 2009
JUDGMENT OF:  Evans J

CATCHWORDS:

Real property – Compulsory acquisition of land – Assessment – Part of land acquired – Service station.

Land Acquisition Act 1993 (Tas)

Aust Dig Real Property [1676]

REPRESENTATION:

Counsel:
             Applicant:  R W Pearce
             Respondent:  S P Estcourt QC
Solicitors:
             Applicant:  Douglas & Collins
             Respondent:  Page Seager

Judgment Number: [2009] TASSC 71
Number of paragraphs: 71

Serial No 71/2009
File No M94/2006

LAUNCESTON CITY COUNCIL v DOUGLAS CLAUDE SHEPHERD

REASONS FOR JUDGMENT EVANS J

28 August 2009

This is an assessment of the compensation payable by the Launceston City Council ("the Council") to Douglas Claude Shepherd for 150.2 square metres of land it acquired from him pursuant to the Land Acquisition Act 1993 ("the Act"). The acquired land is a portion of 1,152 square metres of land owned by Mr Shepherd on the north western corner of the intersection of Lindsay Street with Invermay Road in Launceston. The acquired land is at the point of that intersection and has a frontage on Invermay Road of 12.68 metres to its corner with Lindsay Street, and a frontage on Lindsay Street of 30.36 metres from that corner. The acquisition will remove an access to the site from Invermay Road virtually at the junction of that road with Lindsay Street and an access from Lindsay Street which is not far from that junction. The site retains one access from Esk Street which runs along its rear or western boundary, one access from Invermay Road at the northern end of that frontage and an access from Lindsay Street at the western end of that boundary. Compensation is to be assessed as at 29 June 2005, when the Council served a notice to treat; the Act, s35.

For many years prior to service of the notice to treat the primary use of the site had been as a service station known as Ampol No 1. For about four months prior to service of the notice to treat, the service station had been closed. The Council contends that this was because the site had ceased to be viable as a service station. Mr Shepherd disputes this and contends that when the notice was served, the highest and best use for the site was as a service station. This dispute is central to the parties' competing claims about the compensation that is due to Mr Shepherd, which turns, in part, on what was a fair market rental for the site when the notice to treat was served. It is not disputed that as the acquisition has removed two of the vehicular accesses to the site and reduced its size, the site is no longer viable for a service station.

The approach to the assessment of the compensation

As to the approach…

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: [2009] TASSC 71
Decision Date: 28 August 2009

CaseChat Overview and Summary

The Launceston City Council sought to compulsorily acquire part of a service station located in Launceston. The owners of the property, Shepherd, contested the assessment of the compensation payable to them for the portion of their land that was acquired. The dispute was brought before the Supreme Court of Tasmania. The primary legal issue before the court was the proper assessment of compensation for the portion of the service station that was acquired by the Council. Specifically, the court had to determine whether the value of the acquired land should be assessed based on its highest and best use as a service station or if it should be assessed based on its value as vacant land.

The court examined the relevant statutory provisions governing compulsory acquisitions and the principles of compensation. The court noted that the assessment should reflect the market value of the land at the time of acquisition, taking into account its highest and best use. However, the court also recognised that the highest and best use must be a reasonably probable use, which is not necessarily the current use of the land. The court held that the assessment should be based on the land's value as vacant land, as the highest and best use as a service station was not reasonably probable due to the Council's intention to use the land for a different purpose. The court further found that the assessment should consider the diminution in value of the remaining portion of the property due to the acquisition.

The court ordered that the compensation payable to the owners should be based on the value of the acquired land as vacant land, taking into account the diminution in value of the remaining portion of the property. The court determined the amount of compensation payable and ordered the Council to pay that amount to the owners.

Orders