JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11-14, 18, 27 October 2010
DATE OF JUDGMENT:	22 March 2011
CASE MAY BE CITED AS:	McCann v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2011] VSC 96

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VALUATION AND COMPENSATION – Hypothetical highest and best use in ‘before’ situation – Effect of Bypass proposal on value to be disregarded – Strategic planning considerations – Factors supporting residential rezoning – Location – Topography – Need – Factors potentially adverse to residential rezoning – Landscape – Natural boundaries – Agricultural land – Break between Ceres and Geelong – Services – Appropriateness of power line easements as urban growth boundary – Council’s likely position – Claimant’s land ripe for residential rezoning at relevant date - Land Acquisition and Compensation Act 1986, ss 41(3), 43(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Townshend SC with Mr S Goubran	Earl and Associates
For the Respondent	Mr J Delany SC with Ms M Foley	Garland Hawthorn Brahe

TABLE OF CONTENTS

The legal concepts.............................................................................................................................. 5

The Statutory Framework.......................................................................................................... 5
Expert Evidence....................................................................................................................... 12
Relevance of Planning Documents.......................................................................................... 14
Relevance of Planning History................................................................................................ 16

The land............................................................................................................................................. 18

Background to the planning dispute............................................................................................ 33

The trial.............................................................................................................................................. 35

Preliminary issues....................................................................................................................... 36

The planning policy framework and the test of net community benefit.................................. 37
Topography.............................................................................................................................. 51

Planning Considerations............................................................................................................ 53

Need and demand..................................................................................................................... 53
The landscape of the Barrabool Hills........................................................................................ 58
Natural boundaries.................................................................................................................. 61
Agricultural land..................................................................................................................... 62
The break between Geelong and Ceres..................................................................................... 63

Incidental matters....................................................................................................................... 64

Services.................................................................................................................................... 64
The power lines as a boundary................................................................................................. 65
The Council’s likely position.................................................................................................... 66
The status of the land as at the relevant date........................................................................... 67
Principal criticisms of the witnesses........................................................................................ 71

Conclusion......................................................................................................................................... 73

HIS HONOUR:

On 2 March 2007 (‘the relevant date’), Roads Corporation (‘the authority’) compulsorily acquired a tract of land from the applicant (‘the claimant’) in order to construct a section of the Geelong Bypass.

The acquired land was a 24.953 hectare strip running almost north-south. This strip bisected a larger parcel of land held by the claimant which was being used at the relevant date for agricultural purposes (‘the claimant’s land’). The acquisition comprised approximately 10 per cent of the claimant’s total land holding of 251.197 hectares prior to the acquisition.

Save for a strip of land fronting the Barwon River (which is zoned Public Conservation and Resource Zone), the claimant’s land east of the Bypass is, and was at the relevant date, zoned Residential 1 with a Development Plan Overlay Schedule 6 and a Design and Development Overlay Schedule 13. The claimant’s land west of the Residential 1 Zone was at the relevant date in a Rural Zone and subject in part to a reservation for public purposes (namely the proposed Bypass).

The claimant claims compensation pursuant to the provisions of the Land Acquisition and Compensation Act 1986

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 McCann v Roads Corporation

Details

AGLC: McCann v Roads Corporation [2011] VSC 96
Case: [2011] VSC 96
Decision Date: 22 March 2011

CaseChat Overview and Summary

McCann v Roads Corporation was a case before the Supreme Court of Victoria, where the primary issue was the valuation of a parcel of land for the purposes of compulsory acquisition by the Roads Corporation. The respondent, Roads Corporation, proposed to acquire the land for the development of a bypass. The appellant, McCann, contested the valuation, arguing that it did not appropriately reflect the land's hypothetical highest and best use in the 'before' situation, which is the situation immediately prior to the acquisition. The court had to decide whether the proposed bypass would impact the highest and best use of the land and, if so, whether that impact should be disregarded for the purposes of the valuation.

The legal issues that the court needed to address included the appropriate consideration of strategic planning factors in determining the highest and best use of the land, the relevance of the proposed bypass to the valuation, and the extent to which the value of the land could be affected by the potential for rezoning. The court also had to consider whether the land was ripe for residential rezoning at the relevant date, as this would affect the valuation under the Land Acquisition and Compensation Act 1986. The court had to balance the factors supporting residential rezoning, such as the location, topography, and need for residential development, against the factors potentially adverse to such rezoning, such as the landscape, natural boundaries, and the presence of agricultural land.

The Supreme Court held that the proposed bypass should be disregarded in determining the highest and best use of the land in the 'before' situation. The court found that the factors supporting residential rezoning were significant, but the potential for rezoning was uncertain and speculative. The court concluded that the land was not ripe for residential rezoning at the relevant date and that the proposed bypass did not affect the highest and best use of the land. The court found that the valuation was appropriate and dismissed the appeal. The court ordered that the appeal be dismissed with costs to the Roads Corporation.

Orders