Longo v Roads Corporation - [2013] VSC 636

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION COMPENSATION & PLANNING LIST

S CI 2013 2306

ANTHONY LONGO	Appellant
v
ROADS CORPORATION	Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2013
DATE OF JUDGMENT:	20 November 2013
CASE MAY BE CITED AS:	Longo v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2013] VSC 636

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LAND ACQUISITION – Appeal from Victorian Civil and Administrative Tribunal under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - Compensation for compulsory acquisition of land – Whether the Authority bound by its initial offer made under s 31 of the Land Acquisition and Compensation Act 1986 (Vic) – Whether the amount offered by the Authority for the market value of the land is ‘not disputed’ for the purposes of s 31(8) of the Land Acquisition and Compensation Act 1986 (Vic) where the claimant claims a higher amount – Authority revoked initial offer on the ground of mistake – Whether Authority’s offer was based upon reliance on mistaken information – Whether the power to vary an offer under s 36(2) of the Land Acquisition and Compensation Act 1986 (Vic) allowed the Authority to reduce its offer – Appeal dismissed – Land Acquisition and Compensation Act 1986 (Vic) ss 31, 33, 36, 57.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P Barton	Pearce Webster Dugdales
For the Respondent	Mr P Chiappi	Garland Hawthorn Brahe

HER HONOUR:

Introduction

The appellant, Mr Longo, owned vacant grazing land to the west of Melbourne facing onto the Western Highway. On 18 December 2006, the respondent (the ‘Authority’) gazetted a Notice of Acquisition under the Land Acquisition and Compensation Act1986 (the ‘LAC Act’) in respect of a part of the land.[1] The acquired land was required for the realignment of Leakes Road to enable a bridge to be constructed over a section of the Western Freeway.
[1]7.909 hectares of the 11.734 hectares.

On 18 January 2007, the Authority wrote to Mr Longo offering $645,000 compensation for the acquired land and enclosing a certificate of valuation dated 18 December 2006 valuing the land at $630,000 as at the date of acquisition. A further amount of $15,000 was offered for valuation and planning expenses. Mr Longo requested and was granted an advance in the amount of that offer.[2]
[2]Mr Longo received a payment of $15,000 and an advance of $630,000.

However, by letter dated 2 May 2007, the Authority wrote to Mr Longo explaining that, following the payment of the advance of $645,000, it had received planning advice that had caused it to request a review of the valuation upon which its earlier offer was based. On the basis of the revised valuation, the Authority offered Mr Longo compensation in the sum of $1,460,000. The offer was expressed to be on the same terms and conditions as set out in the letter of offer of 18 January 2007, save for interest.

On 7 May 2007, Mr Longo wrote to the Authority…

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: [2013] VSC 636
Decision Date: 20 November 2013

CaseChat Overview and Summary

In Longo v Roads Corporation, the respondent sought to compulsorily acquire the appellant’s land. The appellant claimed compensation based on the market value of the land, while the respondent contended that the initial offer made under the relevant legislation was binding and the amount offered was not disputed. The matter came before the Victorian Civil and Administrative Tribunal, which dismissed the appellant’s claim. The appellant appealed to the court.

The court had to determine whether the respondent was bound by its initial offer made under section 31 of the Land Acquisition and Compensation Act 1986 (Vic) and whether the amount offered by the respondent for the market value of the land was ‘not disputed’ for the purposes of section 31(8) of the Act. Additionally, the court needed to ascertain whether the respondent's offer was based on reliance on mistaken information and if the power to vary an offer under section 36(2) of the Act allowed the respondent to reduce its offer.

The court found that the initial offer made by the respondent was not binding as it was revoked on the basis of a mistake. The court held that the offer was not based on reliance on mistaken information but rather on an incorrect assessment of the market value of the land. The court also held that the power to vary an offer under section 36(2) of the Act allowed the respondent to reduce its offer, and therefore, the respondent was not bound by its initial offer. The court dismissed the appeal and upheld the decision of the Tribunal.

The court dismissed the appeal and affirmed the decision of the Tribunal that the respondent was not bound by its initial offer and could reduce its offer under the provisions of the Act.

Orders