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Mason v Head, Transport for Victoria

Mason v Head, Transport for Victoria

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0035

LESLEY MASON & ORS	Applicants
v
HEAD, TRANSPORT FOR VICTORIA	Respondent

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JUDGES:	BEACH, EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2020
DATE OF JUDGMENT:	12 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 19

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LAND VALUATION AND COMPENSATION – Determination of questions reserved by order of trial judge pursuant to Supreme Court Act 1986, s 17B – Rights of owners of land to compensation in circumstances where value of land is adversely affected by imposition of reservation for public purposes pursuant to planning scheme – Interpretation of ss 98(1) and 108 of the Planning and Environment Act 1987 (‘P&E Act’) – Subject land reserved for a public purpose under a planning scheme; registered proprietor at the time reservation was imposed, died without having sold the land; applicants became registered proprietors as beneficiaries under the land owner’s will – Whether applicants precluded from claiming compensation under s 98(1)(a) of the P&E Act on the basis that they were not owners of the land at the time of the imposition of the planning reservation – Reconsideration of Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 – Reasoning with respect to s 98(1) – Sufficient that claimant be owner or occupier at the date the right to compensation arises – Claim limited to financial loss suffered as the natural, direct and reasonable consequence of the reservation – Whether in circumstances where applicants became registered proprietors as beneficiaries under the will of the former registered proprietor, they have ‘acquired’ the land within the meaning of s 108(2) of the P&E Act – Applicants have not since the reservation ‘acquired’ the land within the meaning of that word understood in its context – Leave for consideration of questions granted – Both questions answered ‘no’ – Planning and Environment Act 1987 ss 98, 99, 108 – Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 reconsidered.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D J Batt QC with Ms J Watson	Rennick & Gaynor
For the Respondent	Ms L Hannon SC with Mr R Chaile	Victorian Government Solicitor’s Office

BEACH JA
EMERTON JA

OSBORN JA:

Introduction

The reservation of land (or part of land) for public purposes pursuant to a planning scheme may blight the potential use of land and adversely affect the value of land.

Conversely, in some circumstances where part of land is reserved, the effect of the reservation may be to increase the value of the balance of the land by reason of the designation of the reserve for a purpose which will directly benefit adjacent land, for example, where the reservation is for the development of a port or irrigation facility.

This case is concerned with the interpretation of provisions contained in the Planning and Environment Act 1987 (‘P&E Act’) governing the rights of owners of land to compensation in circumstances where the value of land is adversely affected by…

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: [2021] VSCA 19
Decision Date: 12 February 2021

CaseChat Overview and Summary

The respondents, as beneficiaries under the will of the deceased registered proprietor of the subject land, sought compensation for a loss in value of the land due to a reservation for public purposes. The land was reserved for public purposes pursuant to a planning scheme and the original proprietor had died without selling the land. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The primary issue was whether the respondents, who became registered proprietors as beneficiaries under the will of the deceased, were precluded from claiming compensation under section 98(1)(a) of the Planning and Environment Act 1987 because they were not the owners of the land at the time the reservation was imposed. The second issue was whether the respondents had 'acquired' the land within the meaning of section 108(2) of the P&E Act.

The Court of Appeal held that the applicants were not precluded from claiming compensation as they were owners at the time the right to compensation arose. The Court found that the correct interpretation of section 98(1)(a) is that it is sufficient that the claimant be the owner or occupier at the date the right to compensation arises. The Court clarified that the claim is limited to financial loss suffered as the natural, direct and reasonable consequence of the reservation. The Court further found that the applicants had not acquired the land within the meaning of section 108(2) of the P&E Act, as they had not acquired it since the reservation. The Court reconsidered the decision in Halwood Corporation Ltd v Roads Corporation and held that the reasoning in that case was incorrect.

The Court answered both questions in the negative. The Court granted leave for the consideration of the questions and provided guidance on the interpretation of sections 98 and 108 of the P&E Act. The Court also reconsidered the decision in Halwood Corporation Ltd v Roads Corporation and provided clarification on the correct interpretation of section 98(1)(a) of the P&E Act.

Orders