Love v Roads Corporation - [2014] VSCA 129

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2013 0073

THOMAS JAMES LOVE

ROADS CORPORATION

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JUDGES	NETTLE and WHELAN JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 June 2014
DATE OF JUDGMENT	25 June 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 129
JUDGMENT APPEALED FROM	[2013] VSC 176 (McMillan J)

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APPEAL – Appeal limited to questions of law – Grounds in substance challenged findings of fact – Whether open to trial judge to make findings in question – Whether judge bound to make different findings – No error of law – Appeal dismissed – Land Acquisition and Compensation Act 1986 (Vic) s 89(2).

LAND VALUATION AND COMPENSATION – Compulsory acquisition – Land used for agricultural purposes – Proposal for interchange – Compensation for loss attributable to severance of land – Difference between market value of claimant’s interest in land before and after the acquisition – Whether access to claimant’s interest ‘before’ acquisition would be different from access ‘after’ the eventual construction of the interchange – Land Acquisition and Compensation Act 1986 (Vic) ss 41(1)(a), 41(3).

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Appearances:	Counsel	Solicitors
For the Appellant	The Appellant appeared in person
For the Respondent	Mr J Delany QC with Mr S Goubran	Garland Hawthorn Brahe Lawyers

NETTLE JA:

I agree with Whelan JA.

WHELAN JA:

This appeal is the latest in a series of cases concerning the compulsory acquisition by the Roads Corporation of land owned by Mr Love in Epping. The Roads Corporation has compulsorily acquired land from Mr Love to widen Cooper Street, Epping,[1] and to construct the Craigieburn Bypass.[2] The acquisition in issue here was made in 2003 and was for the purpose of constructing an interchange on the Craigieburn Bypass at O’Herns Road, Epping.[3]
[1]See Roads Corporation v Love (No 2) (2010) 31 VR 451 and Love v Roads Corporation [2011] VSCA 434.
[2]See Roads Corporation v Love [2010] VSC 537 and Love v Roads Corporation [2014] VSCA 30.
[3]The judgment at first instance is at Roads Corporation v Love [2013] VSC 176 (‘Judgment’).

The Craigieburn Bypass is part of the Hume Freeway and (broadly) runs north/south in the relevant area. O’Herns Road is a two lane carriageway running (broadly) east/west. In 2003 Mr Love owned land along the southern side of O’Herns Road on both the western side of the Craigieburn Bypass and the eastern side. The Roads Corporation compulsorily acquired part of Mr Love’s land on each side for the purpose of constructing an interchange. An interchange is a bridge with on and off ramps so that traffic can cross the bypass on O’Herns Road and can also enter and exit the bypass.

The Roads Corporation has not built the interchange yet but after the acquisition it built an overpass at O’Herns Road. An overpass is a bridge without ramps. The traffic can cross the bypass on O’Herns Road but it cannot enter or exit the bypass.

Under s 30 of the Land Acquisition and Compensation Act 1986 (‘the Act’)…

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: [2014] VSCA 129
Decision Date: 25 June 2014

CaseChat Overview and Summary

The case of Love v Roads Corporation involves an appeal by the landowner against the valuation of their property for the purposes of compulsory acquisition. The Roads Corporation proposed to acquire the land for the development of an interchange. The trial judge had determined the appropriate compensation for the loss attributable to the severance of the land, which was used for agricultural purposes. The Court of Appeal was asked to consider the landowner's argument that the trial judge erred in making certain findings of fact concerning the valuation of the land.

The key legal issue was whether the trial judge was correct in making the findings in question and if there was any error of law in the process. Specifically, the appeal challenged the findings regarding the difference between the market value of the claimant's interest in the land before and after the acquisition, with a particular focus on the impact of the eventual construction of the interchange on access to the land. The case hinged on statutory provisions, including sections 41(1)(a) and 41(3) of the Land Acquisition and Compensation Act 1986 (Vic).

The Court of Appeal held that the trial judge was not in error in making the findings in question. The court found that the judge had correctly applied the law and there was no basis to conclude that the findings were incorrect. The appeal was thus dismissed, with the court affirming that the trial judge's approach was consistent with the statutory requirements and there was no error of law in the valuation process. The court also noted that the appeal was limited to questions of law, and the grounds did not challenge the findings of fact in a way that would warrant a different outcome.

The final orders of the court were to dismiss the appeal and affirm the decision of the trial judge regarding the valuation and compensation for the compulsory acquisition of the land. The landowner was not successful in their appeal, and the compensation determined by the trial judge was upheld.

Orders