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Melino v Roads and Maritime Services

Melino v Roads and Maritime Services

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Case Copied 2 November 2018 65 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Melino v Roads and Maritime Services [2018] NSWCA 251
Hearing dates: 6-7 June 2018
Date of orders: 02 November 2018
Decision date: 02 November 2018
Before: Beazley P at [1], Basten JA at [2], Payne JA at [31]
Decision:
(1) Appeal allowed.
(2) Set aside order 1(c) relating to disturbance items made by Moore J on 15 November 2017.
(3) Remit the matter to the Land and Environment Court to determine in accordance with these reasons whether any allowance to the owners in relation to the cattle years and farm sheds would exceed the amount already allowed and, if so, to award that additional amount.
(4) No order as to costs in this Court.

Catchwords: LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59
Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56, 59
Land and Environment Court Act 1979 (NSW), s 57
Cases Cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Fitzpatrick Investments Pty Limited v Blacktown City Council (No 2) [2000] NSWLEC 139; (2000) 108 LGERA 417
Health Administration Corporation v George D Angus Pty Ltd (2014) 88 NSWLR 752; [2014] NSWCA 352
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780
ISPT Pty Ltd v Valuer General (NSW) [2009] NSWCA 31; (2009) 165 LGERA 25
Konduru (t/as Warringah Road Family Medical Centre) v Roads and Maritime Services [2017] NSWLEC 36; (2017) 224 LGERA 262
Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439
Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314
Richardson v Roads and Traffic Authority (NSW) (1996) 90 LGERA 294
Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7
Roads and Traffic Authority (NSW) v McDonald (2010) 79 NSWLR 155; [2010] NSWCA 236
Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66
Tolson v Roads and Maritime Services [2014] NSWCA 161; (2014) 201 LGERA 367
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Category: Principal judgment
Parties: Michele Antonio Melino (First Appellant)
Tonina Maria Melino (Second Appellant)
Domenica Margherita Fox (Third Appellant)
Anna Colomba Bufalino (Fourth…

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: [2018] NSWCA 251
Decision Date: 02 November 2018

CaseChat Overview and Summary

The appeal in *Melino v Roads and Maritime Services* concerned a dispute over compensation awarded for the compulsory acquisition of land under the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). The parties involved were the landowners, Mr. and Mrs. Melino, and the acquiring authority, Roads and Maritime Services. The core of the disagreement lay in whether certain costs claimed by the landowners for disturbance were recoverable in addition to the market value of the acquired land. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine the relationship between the heads of compensation for market value and disturbance under the Act. Specifically, the court had to consider whether claims for disturbance costs, such as those relating to cattle years and farm sheds, were available when compensation for market value had already been awarded. The central legal question was whether the costs claimed were reasonably incurred as a direct or natural consequence of the acquisition and whether they related to the actual use of the acquired land.

The Court of Appeal reasoned that the Act provides for compensation for market value and, in addition, for disturbance. It clarified that disturbance compensation is intended to cover losses that are a direct and natural consequence of the acquisition, beyond the mere diminution in market value. The court found that the initial assessment by the Land and Environment Court had not adequately considered the potential for additional compensation for disturbance items, particularly concerning the cattle years and farm sheds, in a way that properly reflected the principles of the Act.

Consequently, the Court of Appeal allowed the appeal, setting aside the specific orders made by the primary judge regarding disturbance items. The matter was remitted back to the Land and Environment Court for a redetermination of whether any further allowance for the cattle years and farm sheds was warranted beyond the amount already awarded, and to make any necessary additional award. No order was made as to costs in the Court of Appeal.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside order 1(c) relating to disturbance items made by Moore J on 15 November 2017.

(3) Remit the matter to the Land and Environment Court to determine in accordance with these reasons whether any allowance to the owners in relation to the cattle years and farm sheds would exceed the amount already allowed and, if so, to award that additional amount.

(4) No order as to costs in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Melino v Roads and Maritime Services [2018] NSWCA 251
Hearing dates:	6-7 June 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Before:	Beazley P at [1], Basten JA at [2], Payne JA at [31]
Decision:	(1) Appeal allowed. (2) Set aside order 1(c) relating to disturbance items made by Moore J on 15 November 2017. (3) Remit the matter to the Land and Environment Court to determine in accordance with these reasons whether any allowance to the owners in relation to the cattle years and farm sheds would exceed the amount already allowed and, if so, to award that additional amount. (4) No order as to costs in this Court.
Catchwords:	LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56, 59 Land and Environment Court Act 1979 (NSW), s 57
Cases Cited:	Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Fitzpatrick Investments Pty Limited v Blacktown City Council (No 2) [2000] NSWLEC 139; (2000) 108 LGERA 417 Health Administration Corporation v George D Angus Pty Ltd (2014) 88 NSWLR 752; [2014] NSWCA 352 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 ISPT Pty Ltd v Valuer General (NSW) [2009] NSWCA 31; (2009) 165 LGERA 25 Konduru (t/as Warringah Road Family Medical Centre) v Roads and Maritime Services [2017] NSWLEC 36; (2017) 224 LGERA 262 Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439 Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWCA 314 Richardson v Roads and Traffic Authority (NSW) (1996) 90 LGERA 294 Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7 Roads and Traffic Authority (NSW) v McDonald (2010) 79 NSWLR 155; [2010] NSWCA 236 Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 Tolson v Roads and Maritime Services [2014] NSWCA 161; (2014) 201 LGERA 367 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Category:	Principal judgment
Parties:	Michele Antonio Melino (First Appellant) Tonina Maria Melino (Second Appellant) Domenica Margherita Fox (Third Appellant) Anna Colomba Bufalino (Fourth…