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Macarbell Pty Ltd v RTA

Macarbell Pty Ltd v RTA

Case [2006] NSWLEC 366

Compensation

Compulsory Acquisition of Land

Land Use and Zoning

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Land and Environment Court

of New South Wales

CITATION: Macarbell Pty Limited v RTA, Michael Nasser v RTA [2006] NSWLEC 366

PARTIES:
Proceedings 30801 of 2004
APPLICANT
Macarbell Pty Limited
RESPONDENT
Roads & Traffic Authority of New South Wales
Proceedings 30802 of 2004
APPLICANT
Michael Nasser
RESPONDENT
Roads & Traffic Authority of New South Wales

FILE NUMBER(S): 30801 of 2004; 30802 of 2004

CORAM: Jagot J

KEY ISSUES: Compulsory Acquisition of Land :- compensation - "before" and "after" valuations, decrease in value of land caused by proposal, comparable sales

LEGISLATION CITED: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Liverpool Local Environmental Plan 1997
National Parks and Wildlife Act 1974
Rivers and Foreshores Improvements Act 1948
Roads Act 1993
Threatened Species Conservation Act 1995

CASES CITED: Blacktown City Council v Lasseter (unreported, Court of Criminal Appeal, 5 December 1996);
Boland v Yates Property Corporation Pty Ltd and Another (1999) 167 ALR 575;
Brewarrana Pty Ltd v Commissioner of Highways [No 2] (1973) 6 SASR 541;
Collins and Another v Council of the Shire of Livingstone (1972) 127 CLR 477;
Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358;
Crompton v Commissioner of Highways (1973) 5 SASR 301;
De Ieso v Commissioner of Highways (1981) 27 SASR 248;
Downie v Sorell Council (2005) 141 LGERA 304;
E J Cooper & Son Pty Limited v Baulkham Hills Shire Council (2003) 131 LGERA 226;
Emerald Quarry Industries Proprietary Limited v Commissioner of Highways (South Australia) (1979) 142 CLR 351;
Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307;
Fraser and Others v City of Fraserville [1917] AC 187;
Griffith City Council v Polegato and Another (1990) 20 NSWLR 696;
Hornsby Shire Council v Roads and Traffic Authority of New South Wales (1998) 100 LGERA 105;
Housing Commission of New South Wales v San Sebastian Proprietary Limited and Others (1978) 140 CLR 196;
Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430;
Mario Piraino Pty Ltd v Roads Corporation (1990) 76 LGRA 263;
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426;
Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331;
Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2004] NSWLEC 612;
Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 [No 3] (1991) 71 LGRA 441;
R K Morgan Holdings Pty Ltd v Melbourne & Metropolitan Board of Works (1992) 77 LGRA 102;
Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159 ;
Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd (2005) 143 LGERA 192;
RTA v Muir Properties Pty Ltd [2005] NSWCA 460;
Roads and Traffic Authority of New…

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.

Continue reading Macarbell Pty Ltd v RTA

Details

AGLC: Macarbell Pty Ltd v RTA [2006] NSWLEC 366
Case: [2006] NSWLEC 366
Decision Date: 11/07/2006

CaseChat Overview and Summary

Macarbell Pty Ltd and Michael Nasser commenced proceedings under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (the "Just Terms Act") objecting to the amount of compensation offered by the respondent, Roads and Traffic Authority of New South Wales, on the compulsory acquisition of part of the applicants' land at Prestons on 10 October 2003. The applicants contended that they were entitled to compensation (excluding disturbance) of $31,496,176. The respondent contended that the applicants were entitled to compensation (excluding disturbance) of $8,700,000 (reduced from $10,550,000 as set out in the primary report of Mr Lunney, valuer). Jagot J determined that the applicants were entitled to compensation (excluding disturbance, interest and costs) in the sum of $13,578,522. The Court considered the issues in the following order: (i) the issue of the zoning east of Ash Road at the acquisition date, (ii) the views of the hypothetical buyer about the expert advice they would have obtained relating to various circumstances affecting the land, (iii) the comparable sales relied on by the valuers, and (iv) the value of the land (before and after acquisition) at the relevant date. The Court was satisfied that the rezoning of the applicants' land east of Ash Road from 4(a) to 5(a) was the result of the convergence of two events: the inadequacies of the Council's basin strategy and the future need to accommodate the M7 within the floodway. The rezoning of the applicants' land east of Ash Road from 4(a) to 5(a) was the necessary cause of the decrease in value. The Court found that the hypothetical buyer of the land at the acquisition date would have obtained the advice of an ecological consultant, recognised that the land had been cleared, and been informed by the ecologist that the vegetation across the land was the endangered ecological community CPW, which had been subject to a regime of clearing over a number of years and exhibited varying degrees of intactness and weed infestation, but was regenerating as the endangered ecological community. The Court determined that the hypothetical buyer would have expected a requirement to retain and rehabilitate the whole of the western moderate constraint area (as part of any overall industrial subdivision consent). The Court was satisfied that the hypothetical buyer would have expected a 40 metre setback requirement to Maxwells Creek. The Court was satisfied that the hypothetical buyer would have obtained the advice of a hydrological expert (or experts) to assist in determining the likely constraints to development of the land by reason of flooding and fill requirements. The Court determined that the appropriate rate to apply to the applicants' developable land was $155 per sqm of developable land in the before situation. The Court determined that, despite the benefits presented by the M7, an adjustment must be made in the after situation for the land to the west of Ash Road to take account all of the issues identified by the Court. The Court determined that the hypothetical buyer and seller would conclude that the main development parcel was to the west of Ash Road of an area of about 83,150 sqm (117,950 less 34,800 sqm). They would apply a 15% discount to the value of that land (say $131 per sqm). The Court concluded that the applicants were entitled to compensation (excluding disturbance, interest and costs) in the amount of $13,578,522.

Orders