Maggiotto v Roads and Traffic Authority - [2006] NSWLEC 54

Land and Environment Court

of New South Wales

CITATION: Maggiotto v Roads and Traffic Authority [2006] NSWLEC 54

PARTIES:
APPLICANTS
Angelo Maggiotto and Mario Maggiotto
RESPONDENT
Roads and Traffic Authority of New South Wales

FILE NUMBER(S): 30188 of 2005

CORAM: Cowdroy J

KEY ISSUES: Compulsory Acquisition of Land :- flooding constraints - airport noise constraints - ecological constraints - whether land had development potential - whether there was a prospect that land would be rezoned - admissibility of evidence of post-acquisition events

LEGISLATION CITED: Land Acquisition (Just Terms) Act 1991
Roads Act 1993

CASES CITED: Blacktown City Council v Fitzpatrick Investments Pty Ltd [2001] NSWCA 259;
Daandine Pastoral Co Pty Limited v Commissioner of Land Tax (unreported, High Court of Australia, 26 August 1943);
Gosford Shire Council v Green (1980) 48 LGRA 201;
Housing Commission of New South Wales v Falconer & Ors [1981] 1 NSWLR 547;
Longworth v Commissioner of Stamp Duties [1953] SR (NSW) 342;
McCathie & Ors v Federal Commission of Taxation (1944) 69 CLR 1;
Multari v Roads and Traffic Authority of New South Wales [2004] NSWLEC 649

DATES OF HEARING: 21/11/2005, 22/11/2005, 23/11/2005, 24/11/2005, 28/11/2005, 29/11/2005, 30/11/2005, 20/12/2005, 30/01/2006, 31/01/2006, 01/02/2006, 02/02/2006, 03/02/2006

DATE OF JUDGMENT:
02/22/2006

LEGAL REPRESENTATIVES: APPLICANTS
N Hemmings QC
SOLICITORS
Allens Arthur Robinson
RESPONDENT
P Tomasetti
SOLICITORS
Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

22 February 2006

30188 of 2003

ANGELO MAGGIOTTO and MARIA MAGGIOTTO
Applicants

ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES
Respondent
JUDGMENT

1 Cowdroy J: The applicant claims compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”) arising from the compulsory acquisition of lots 113, 114 and 115 in deposited plan 1045185 (“the subject land”), notice of which was published in Government Gazette No 163 dated 4 October 2002 (“the acquisition date”). The purpose of the acquisition was for the Roads Act 1993 being for the Western Sydney Orbital (“the WSO”). The total area acquired was 29,164m2.

2 The land, before acquisition, comprised three adjoining lots being lots 17, 18 and 19 in deposited plan 2475 (“the land” or “the parent parcel”). Portions of each of these lots were acquired, and accordingly the land was subdivided into lots 113, 114 and 115 in deposited plan 1045185 (“the acquired land”) and lots 102, 103 and 104 in deposited plan 1045185 (“the residue land”). The land is at Hoxton Park in the City of Liverpool and prior to acquisition, the parent parcel had a frontage of 214.55 m to a public but unmade road known as Government Road.

3 The land was undeveloped, mostly level and mostly-cleared land, falling from north west to south east. Hinchinbrook Creek runs along its eastern boundary which is accordingly irregular. The land is bounded by the unmade Government Road on its northern side. A drainage reserve approximately 20 metres wide is located on the southern boundary. The western perimeter adjoins other undeveloped land but…

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: [2006] NSWLEC 54
Decision Date: 02/22/2006

CaseChat Overview and Summary

The applicants Angelo Maggiotto and Mario Maggiotto brought an action against the respondent, Roads and Traffic Authority of New South Wales, seeking compensation for the compulsory acquisition of their land for the purpose of the Western Sydney Orbital. The applicants argued that the land could have been developed, contrary to the respondent’s contention. The Court had to decide the legal issues concerning the flooding constraints, airport noise constraints, ecological constraints, development potential of the land, the prospect of rezoning of the land and the admissibility of evidence of post-acquisition events. The Court held that the land could have been developed and that there was a real prospect that the land could have been rezoned for residential development within five years. The Court also held that medium density development would have been suitable residential development upon the land. The Court rejected the evidence of events occurring after the date of acquisition as inadmissible. The Court determined the value of the acquired land and the compensation payable to the applicants.

Orders