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Love v Roads Corporation

Love v Roads Corporation

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Case Copied 16 December 2011 80 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0018

THOMAS JAMES LOVE	Appellant
v
ROADS CORPORATION	Respondent

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JUDGES	WARREN CJ, TATE JA and EMERTON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 and 16 August 2011
DATE OF JUDGMENT	16 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 434
JUDGMENT APPEALED FROM	Roads Corporation v Love [2010] VSC 32 (Osborn J)

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LAND VALUATION AND COMPENSATION – Appellant’s land compulsorily acquired – Appellant claimed compensation for loss of land and loss of value caused to the balance of the remaining land – Claimed loss of market value, special value, severance or disturbance, and loss of amenity – Appellant claimed for loss of potential future use of land as landfill – Trial judge found low prospect of use of land for future use as a landfill site – Found highest and best use of the land was future industrial use – Compensation awarded – Whether trial judge erred in calculating the amount of compensation awarded – The highest and best use of the land – Correct test for severance applied – No disturbance claim raised on appeal – No special value in landfill potential – Land Acquisition and Compensation Act 1986 ss 40, 41, 89 Valuation of Land Act 1960 s 5A – Appeal dismissed

COSTS – Appeal from the trial judge’s award of costs – Discretion as to costs under s 91 of the Land Acquisition and Compensation Act 1986 (Vic) – Whether it was open to the trial judge to have regard to an offer made ‘without prejudice save as to costs’ – Whether conduct arising from the making of a ‘without prejudice’ offer is unreasonable conduct for the purposes of s 91(1)(b)(i) of the Land Acquisition and Compensation Act 1986 – Whether the letter was a Calderbank offer – Coastal Estates Pty Ltd v Bass Shire Council [1994] 1 VR 210 considered – Land Acquisition and Compensation Act 1986, s 91 – Supreme Court (General Civil Procedure) Rules 2005, O 26 – Leave to appeal granted – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr G H Garde QC with Mr B L Reilly	McCluskys
For the Respondent	Mr J Delany SC with Mr S S Goubran	Garland Hawthorn Brahe

WARREN CJ
TATE JA
EMERTON AJA:
The appeal

This appeal is a challenge by Mr Love to an award of compensation made by the trial judge[1] in respect of land that the Roads Corporation (‘the Corporation’) compulsorily acquired from him, pursuant to the Land Acquisition and Compensation Act 1986 (‘the Act’). Mr Love submits that, due to errors made by the trial judge, the awarded sum does not sufficiently compensate him for the acquisition. He seeks to have the award set aside and the matter remitted for rehearing and determination.
[1]Roads Corporation v Love [2010] VSC 32 (‘Reasons’).

Mr Love also seeks leave to appeal from the trial judge’s award of costs.[2]
[2]Roads Corporation v Love [2010] VSC 154 (‘Costs…

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: [2011] VSCA 434
Decision Date: 16 December 2011

CaseChat Overview and Summary

Love, the appellant, brought an action against the Roads Corporation, the respondent, after their land was compulsorily acquired. The appellant sought compensation for the loss of land and the diminution in value caused to the remaining land. They claimed for loss of market value, special value, severance or disturbance, and loss of amenity, and also for the loss of potential future use of the land as landfill. The trial judge found that there was a low prospect of the land being used as a landfill site and that the highest and best use of the land was future industrial use. The trial judge awarded compensation, and the appellant appealed the decision, contending that the trial judge erred in calculating the amount of compensation awarded and that the highest and best use of the land was incorrectly determined. The court was also required to determine if the trial judge correctly applied the test for severance and whether there was a valid disturbance claim. Additionally, the appellant argued that the land had special value in its potential use as a landfill and that the trial judge should have taken into account a 'without prejudice save as to costs' offer when awarding costs.

The court considered the arguments and found that the trial judge had correctly applied the law in determining the compensation amount and the highest and best use of the land. The court held that there was no special value in the landfill potential and that the test for severance was correctly applied. Regarding the costs, the court determined that the trial judge could consider the 'without prejudice save as to costs' offer when exercising discretion under section 91 of the Land Acquisition and Compensation Act 1986. The court concluded that the conduct arising from the offer did not constitute unreasonable conduct for the purposes of section 91(1)(b)(i) of the Act. As a result, the appeal was dismissed.

Orders