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Love v Roads Corporation

Love v Roads Corporation

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Case Copied 6 March 2014 77 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0015

THOMAS JAMES LOVE

ROADS CORPORATION

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JUDGES	MAXWELL P, WHELAN and SANTAMARIA JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 November 2013
DATE OF JUDGMENT	6 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 30
JUDGMENT APPEALED FROM	[2010] VSC 537 (Vickery J)

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LAND VALUATION AND COMPENSATION – Compulsory acquisition – Proposal for bypass road – Land used for agricultural purposes – Valuation according to highest and best use of land – Whether market value of land decreased because of bypass proposal – Whether land would otherwise have been used for quarrying and landfill – Planning panel recommended permit restrictions – Whether restrictions arose from bypass proposal – Pointe Gourde principle discussed – Land Acquisition and Compensation Act 1986 (Vic) s 43(1)(a).

APPEAL – Appeal limited to questions of law – Grounds of appeal 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).

PRACTICE AND PROCEDURE – Trial – Final addresses – Directions to parties to file submissions in form of draft judgment – Plaintiff unrepresented – Whether procedurally unfair – No breach of natural justice – Procedure undesirable and not to be followed.

EVIDENCE – Opinion – Planning panel – What recommendations likely to have been made by panel if circumstances different – Proposed evidence from Planning Minister about likely outcome – No specialised knowledge – Opinion evidence inadmissible – Evidence Act 2008 (Vic) ss 76, 79.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A Graeme Uren QC Ms L Martin	Blue Rock Law
For the Respondent	Mr J Delaney SC Mr D Batt SC Mr P Chiappi	Garland Hawthorn Brahe

MAXWELL P
WHELAN JA
SANTAMARIA JA:

The appellant, Mr Love, owns land in Cooper Street, Epping. On 11 February 2002 part of that land was compulsorily acquired by the respondent, the Roads Corporation. The purpose of the acquisition was the construction of a new section of the Hume freeway, referred to as the Craigieburn Bypass. As a consequence of the acquisition Mr Love became entitled to compensation under s 30 of the Land Acquisition Compensation Act 1986 (Vic) (‘the LAC Act’).

Section 41 of the LAC Act provides that in assessing the amount of compensation payable regard must be had to the ‘market value’ of the claimant’s interest ‘on the date of acquisition’. ‘Market value’ is defined by s 40 as ‘the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser’.

Because the acquired land was less than the whole of the land owned by Mr Love, pursuant to s 41(3) of the LAC Act the market value of the acquired interest is the difference between the…

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 30
Decision Date: 6 March 2014

CaseChat Overview and Summary

The case of Love v Roads Corporation concerned a dispute over the valuation of land acquired for a bypass road. The Roads Corporation, seeking to compulsorily acquire land for the project, faced opposition from the landowner, Love, regarding the valuation of the land. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the market value of the land was decreased by the proposal for the bypass road, and if the land would have otherwise been used for quarrying and landfill. The Roads Corporation argued that the market value should be assessed based on the highest and best use of the land, while Love contended that the proposal for the bypass road had diminished the land's value.

The court examined whether the restrictions recommended by the planning panel arose from the bypass proposal and considered the Pointe Gourde principle, which suggests that a compulsory acquisition does not lower the market value of the land. The court concluded that there was no error of law in the trial judge's findings, and the appeal was dismissed. The court also noted that the procedure of directing parties to file submissions in the form of a draft judgment was undesirable and should not be followed in future cases. Additionally, the court held that opinion evidence regarding what the planning panel might have recommended under different circumstances was inadmissible, as it did not possess specialised knowledge.

The Supreme Court found that the proposed evidence from the Planning Minister about the likely outcome if circumstances had been different was not admissible under the Evidence Act 2008 (Vic) sections 76 and 79. The court also held that the procedure followed during the trial, where the plaintiff was unrepresented and the parties were directed to file submissions in the form of a draft judgment, did not breach the principles of natural justice. The court clarified that while the procedure was undesirable, it did not amount to a breach of natural justice in this particular case. The appeal was ultimately dismissed, and the lower court's decision was affirmed.

Orders