Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich
[2005] NSWCA 350
•11 October 2005
Reported Decision:
142 LGERA 331
Court of Appeal
CITATION: Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich [2005] NSWCA 350
HEARING DATE(S): 25 August 2005
JUDGMENT DATE:
11 October 2005JUDGMENT OF: Handley JA at 1; Tobias JA at 23; Brownie AJA at 56
DECISION: Appeal dismissed with costs
CATCHWORDS: APPEAL - parties bound by conduct at trial - COMPULSORY ACQUISITION - no question of principle - EVIDENCE - agreement between experts defining issues - whether binding on Court - D
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Evidence Act 1995
Land and Environment Court Expert Witness Practice Direction 2003
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979
Rivers and Foreshores Improvement Act 1948CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279
Dare v Pulham (1982) 148 CLR 658
E J Cooper & Son Pty Ltd v Baulkham Hills Shire Council (2003) 131 LGERA 226
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156PARTIES: Minister Administering the Environmental Planning and Assessment Act 1979 (Appellant)
George Bautovich (Respondent)FILE NUMBER(S): CA 41083 of 2004
COUNSEL: J J Webster SC/A Pickles (Appellant)
N Hemmings QC (Respondent)SOLICITORS: Abbott Tout (Appellant)
Allens Arthur Robinson (Respondent)
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 30883 of 2003
LOWER COURT JUDICIAL OFFICER: Talbot J
CA 41083 of 2004
11 OCTOBER 2005HANDLEY JA
TOBIAS JA
BROWNIE AJA
APPEAL – parties bound by conduct at trial
COMPULSORY ACQUISITION – no question of principle
EVIDENCE – agreement between experts defining issues – whether binding on Court
The appellant appealed from a decision of the Land and Environment Court assessing compensation for the compulsory acquisition of land. The first issue argued by the appellant was whether an agreement between the valuers for the parties under the Practice Direction of the Court bound the Judge and determined issues for trial. The second was whether a low lying drainage depression on the land was a river within the artificial definition in the Rivers and Fisheries Improvement Act 1948. HELD: (1) Even if the agreement bound the parties and the Judge in the same way as formal pleadings, the parties could still fight the case on other issues chosen at trial: Dare v Pulham (1982) 148 CLR 658, 664; Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, 287; (2) The appellant had not objected to the way the valuation issue was fought and was bound by his conduct at the trial: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483; (3) It was not necessary to consider whether the depression was a river as defined. The correct approach was to consider the advice the hypothetical purchaser would have received and its effect on the price he would be prepared to pay: E J Cooper & Son Pty Ltd v Baulkham Hills Shire Council (2003) 131 LGERA 226, 229, 233.
Appeal dismissed with costs.
CA 41083 of 2004
11 OCTOBER 2005HANDLEY JA
TOBIAS JA
BROWNIE AJA
1 HANDLEY JA: This is an appeal by the Minister from the assessment of compensation by Talbot J for the compulsory acquisition of 16.19 hectares of land at Stuart Road, Hoxton Park on 15 November 2002. His Honour assessed the compensation at $30,760,000 together with a further amount for disturbance. The appeal to this Court is confined to questions of law, and two questions were argued on behalf of the Minister. The first concerned the effect of an agreement between the valuers for the applicant and the Minister made, without legal assistance, pursuant to the Court’s Expert Witness Practice Direction 2003. The second was whether a low lying drainage depression at the south-eastern corner of the land was a river within the artificially wide definition in the Rivers and Foreshores Improvement Act 1948 (the RFI Act) and what effect this would have on the price paid by the hypothetical purchaser.
The main valuation issue
2 The Judge set out the terms of the agreement between the valuers in full [para 13], but it is only necessary to set out para (a):
- “On the basis that the whole of the land can be developed, [and] the Cumberland Plain Woodland and the Gas Pipeline Easement land would be accepted as part Section 94 Contributions as per the Hardy Plan, at Residential Englobo Values we agree the value of the acquired land would be at the rate of $190 per square metre ($30,760,000), plus items of disturbance.”
3 Thus the agreement purported to limit the main valuation issue to be decided by the Judge to determining whether the Council would accept the woodland and the site of the pipeline easement as part of a developer’s contribution under s 94 of the Environmental Planning and Assessment Act 1979 at a residential englobo value.
4 The Judge did not decide the main valuation issue on that basis. He said [para 17]:
- “The figure of $190m2, identified by the valuers in their agreed statement, represents a compromise, which they … recognise falls within the acceptable margin of error for the value of developable land. Whether the hypothetical purchaser would apply the rate of $190m 2 across the whole of [the land] is the subject of the debate” (emphasis supplied).
5 He considered the evidence and made findings directed to the issue as he defined it [paras 18-40]. He found that the hypothetical purchaser “would have paid a price for the land that anticipated the receipt of a s 94 contribution credit for that part of the land supporting [woodland] and the easement for pipeline” [paras 41, 42, 43].
6 Thus his Honour determined the first of the two issues identified in para (a) of the agreement in favour of the applicant. He did not determine the second of those questions but instead determined the question he had posed for himself in para 17. He found [para 44]:
- “I am satisfied by the evidence of Mr Large that purchasers were prepared to pay at least $190m2 for englobo land, notwithstanding the impact of the type and extent of the constraints affecting the subject land. This conclusion is reinforced by the analysis of the Prestons sale and the sale at 35 Fifteenth Avenue, West Hoxton. In my opinion, both of these sales reflect an englobo price per square metre that takes no account of impediments, in so far as the impediments can be compared to those affecting the subject land”.
7 He determined the main valuation issue on that basis and adopted the figure of $30,760,000.
8 Mr Webster SC, who appeared for the Minister, submitted that, as a matter of law, it was not open to the Judge to assess compensation in this way and he was bound to assess it in accordance with para (a) of the agreement. The argument as presented was capable of raising a question of law. A finding of fact is open to legal challenge “where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer”: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 per Glass JA. An error of law also occurs where a judge fails to hear and determine a claim made in judicial proceedings conducted before him: Yates Property Corporation Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156, 186.
9 I am prepared to assume that the agreement defined the main valuation issue for trial and bound the parties and the Judge in the same way as formal pleadings. An agreement between experts pursuant to the practice direction may not have this effect where the issue is defined by statute viz Land Acquisition (Just Terms Compensation) Act 1991 ss 54, 55 and 56. Even if this assumption is made in favour of the Minister, his submissions on the main valuation issue must fail. While the litigants and the Judge are bound by the pleadings there is a well established exception “where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial”: Dare v Pulham (1982) 148 CLR 658, 664 and Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279, 287.
10 In this case the parties chose to fight the main valuation issue on a basis other than that defined by para (a) of the agreement. All three valuers gave oral evidence, two based on their analyses of sales viewed as comparable, and the third based on a hypothetical realisation in subdivision by a developer. None of this evidence was objected to and an objection based on para (a) of the agreement was not taken in written submissions or final address. A party is bound by the conduct of his case: University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483, and an objection that evidence was given and issues were raised outside the pleadings cannot be taken for the first time on appeal. The agreement between the valuers cannot have a higher status. The relevant grounds of appeal must be rejected.
The river issue
11 The RFI Act restricts development within 40 metres of the banks of a river without a permit under Pt 3A. River is defined in s 2, so far as relevant, as:
- “’River’ includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved …”.
12 The appellant contended that a low lying drainage depression at the south-eastern corner of the land was a river as defined, and that the restrictions on development imposed by the RFI Act would have had a depressing effect on its market value. In that corner there were swampy areas, potholes, unconnected drains, and eroded areas which in places gave the impression of formed banks.
13 Conflicting expert evidence was given on this issue by Dr Webb for the applicant and Dr Martens for the Minister. Dr Webb said there was no river as defined because there was no channel, bed or bank except possibly in the lowest section of the depression. There was a lack of connectivity with any riparian corridor upstream, no riparian vegetation, and a small contributing catchment area.
14 The Judge concluded [para 60]:
- “On the balance of probabilities the purchaser would have regarded the area in question as a drainage depression. After inspecting the site and hearing all the evidence, it is my opinion that even if it was considered to look like a creek, the prospective purchaser almost certainly would not have regarded it as a river. In the circumstances, any allowance made by the purchaser would, in my opinion, have been minimal. The sales evidence supporting an englobo rate of 190m2 confirms this view”.
15 This and associated findings were challenged by the appellant for error of law. It was said [appellant’s submissions para 24] that his Honour’s conclusion “was premised upon his … own view of the land rather than resolving the conflicting expert evidence” and that he had “substituted his own opinion based on his view” and had determined the issues “for himself” [appellant’s submissions paras 27, 28].
16 With respect I see no substantial basis for these submissions. His Honour was faced with conflicting expert evidence and had the benefit of a view. Under the Evidence Act 1995 s 54, a view is evidence but in Class 3 of its jurisdiction the Land and Environment Court is not bound by the rules of evidence “but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits” (Court Act s 38(2)).
17 In the passage quoted the Judge stated the conclusions he had reached “after inspecting the site and hearing all the evidence”. He does not state in terms that he prefers the evidence of Dr Webb but it is clear that he did and in para 64 he said so. The Judge did not make the legal error attributed to him in this part of the appellant’s submissions.
18 The appellant also relied on the Judge’s rejection of the tender of a document containing cross sections of the drainage depression prepared by Dr Martens. This was tendered on 24 June 2004, the last day of evidence. The applicant’s advisers objected to its reception at that stage and the Judge rejected it on that ground (black 2/367). The document which is dated 1 June had not been served on the solicitors for the applicant. The river issue itself had been raised by the Minister by the service of Dr Martens’ report after the time for the filing and service of expert evidence had expired. The admission of the document would have raised a new issue leading to an adjournment and delay while the applicant prepared and presented his answer.
19 The Judge was entitled to reject this document at that stage of the trial.
20 The Judge focussed his attention on the advice the hypothetical purchaser would have received at the relevant date and its effect on the price he would be prepared to pay. He did not decide whether the drainage depression was in fact a river as defined and this is the correct approach: E J Cooper & Son Pty Ltd v Baulkham Hills Shire Council (2003) 131 LGERA 226, 229, 233 per McClellan CJ.
21 It was not necessary for the Judge to finally resolve the conflict between Dr Webb and Dr Martens and decide whether this drainage depression was a river as defined. Thus the errors relied upon by the appellant were immaterial in any event.
22 The appeal should be dismissed with costs.
23 TOBIAS JA: I have had the benefit of reading in draft the judgment of Handley JA. I agree with his Honour that the appeal should be dismissed for the reasons that he has given. However, I wish to add some observations of my own with respect to the first of the questions the subject of the appeal referred to by his Honour in [1] of his judgment as it raises a matter of some practical and legal significance in the conduct of Class 3 claims for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act).
24 Prior to the commencement of the hearing before the primary judge, the respective valuers for the parties conferred pursuant to the Land and Environment Court's Expert Witness Practice Direction 2003 (the EWPD). As a result, they reached an agreement which is reproduced in full by the primary judge in [13] of his judgment. However, only paragraph (a) of that agreement is relevant for present purposes which Handley JA has conveniently set out in [2] of his judgment.
25 Earlier in his judgment (at [9]), the primary judge had observed that if the Court determined that the resumed land would have been hypothetically sold for a price reflecting an englobo valuation on the basis that the Cumberland Plain Woodland (the CPW land) and the Gas Pipeline Easement land (the easement land) were accepted by Liverpool City Council (the Council) in part satisfaction of the hypothetical purchaser's s 94 contributions, then the valuers had agreed that the whole of the resumed land should be valued at the rate of $190 m². His Honour also noted that if those lands were rejected by the Council, then a differential rate had been agreed as applicable thereto.
26 This understanding of the primary judge as to the agreement of the valuers is not entirely reflective of paragraph (a) of that agreement which records an agreed value for the resumed land at the rate of $190 m² only
- "[o]n the basis that the whole of the land can be developed, [and that] the Cumberland Plain Woodland and the Gas Pipeline Easement land would be accepted as part section 94 Contributions as per the Hardy Plan, at Residential Englobo Values ". (emphasis added)
27 In other words, there were two conditions to be satisfied before the rate of $190 m² would be applied to the whole of the resumed land. The primary judge (at [17]) further noted that the rate of $190 m² identified by the valuers in their agreement represented a compromise which they recognised fell within the acceptable margin of error for the value of developable land. However, as Handley JA points out in [4] of his judgment, his Honour stated the matter in issue more broadly as being
- "[w]hether the hypothetical purchaser would apply the rate of $190m² across the whole of [the resumed land]".
28 The primary judge (at [20]) then referred to the evidence of Mr Wood, the appellant's valuer, that neither the CPW land nor the easement land would generally be accepted by the Council in lieu or in part satisfaction of the applicable s 94 contribution but that where the dedication of that land was so accepted, it would only be accepted at a value which would be considerably less than if it was land unaffected by the constraints to which it was in fact subject. His Honour noted that if the Court found to the contrary then the appellant's valuer would agree that the theoretical purchase price of the resumed land at the date of resumption could be calculated on the basis set out in paragraph (a) of the agreement.
29 The respondent's valuer, Mr Large, was of a contrary opinion. Based on his analysis of comparable sales and particularly the sale referred to by the primary judge as the Preston sale, he opined that a hypothetical purchaser of the resumed land would observe that it had some CPW present and that it had a measure of drainage problems but nonetheless would determine to pay a lump sum for the whole of the resumed land without, as I understand it, differentiating between the easement land and the CPW land on the one hand and the developable area of the resumed land on the other. Furthermore, Mr Large was of the opinion that the hypothetical purchaser would assume that the Council would accept dedication of the CPW land and the easement land in partial satisfaction of the applicable s 94 contributions.
30 The primary judge accepted (at [33]) that paragraph (a) of the agreement depended upon proof that the Council would accept dedication of the CPW land and the easement land as part of the applicable s 94 contribution to the development of the resumed land in accordance with the Hardy Plan. He then considered as relevant to that matter the evidence of a number of witnesses including a Mr Turrisi, the Group Manager of Community and Environmental Planning at the Council at the time of the resumption.
31 His Honour concluded (at [41]) that he was satisfied, relying on the evidence of Mr Turrisi, that but for the compulsory acquisition of the resumed land, the Council would have had in place a development control plan made under s 72 of the Environmental Planning and Assessment Act 1979 and a contributions plan (approved under s 94B of that Act) that identified the CPW land and the easement land as open space. He thus concluded that he was satisfied that
- "the hypothetical purchaser would have paid a price for the land that anticipated the receipt of a s 94 contribution credit for that part of the land supporting CPW and the easement for pipeline".
32 His Honour then referred in [42] to the s 94 contributions plan current at the date of resumption and the respondent's case that a hypothetical purchaser would have assumed that there would have been a credit of $180 m² in respect of the CPW land so that he or she would not have made any allowance in respect of that land in determining the purchase price he or she would pay for the resumed land. I understand his Honour to mean by that observation that it was the respondent's case that the hypothetical purchaser would not have differentiated between the CPW land on the one hand and the developable land on the other when determining an overall rate per square metre which he or she would be prepared to pay for the resumed land as a whole. His Honour concluded that he was satisfied on the balance of probabilities that a hypothetical purchaser would have made the assumption that the CPW land could be dedicated for open space and that it would have received
- "a credit against s 94 contributions on that account".
33 The primary judge also made a similar finding with respect to the easement land (at [43]). In the same paragraph, his Honour accepted that the hypothetical purchaser would have been entitled to assume that the easement land would be recognised by the Council as land that it would accept by way of dedication for open space
- "on the basis that its value could be taken into account for the purpose of assessing s 94 contributions".
34 Finally, the primary judge (at [44]) said this:
- "Moreover an analysis of the sales evidence does not identify any occasion when the purchaser adopted the process that Mr Grezar [a valuer from the State Valuation Office] and Mr Wood developed. I am satisfied by the evidence of Mr Large that purchasers were prepared to pay at least $190m² for englobo land, notwithstanding the impact of the type and extent of the constraints affecting the subject land. This conclusion is reinforced by the analysis of the Preston sale and the sale at 35 Fifteenth Avenue, West Hoxton. In my opinion, both of these sales reflect an englobo price per square metre that takes no account of impediments, insofar as the impediments can be compared to those affecting the subject land."
35 As I understand the above passage, his Honour found that, based on an analysis of the sales to which he referred, a hypothetical purchaser would be prepared to pay $190 m² for the whole of the resumed land square metre for square metre and would not have discounted to a lower figure so much of that land as was constituted by the CPW land and the easement land which the hypothetical purchaser would assume could be dedicated to the Council in partial satisfaction of its s 94 contribution requirements.
36 The primary complaint of the appellant was that the primary judge failed to appreciate that the agreement between the valuers to apply a rate of $190 m² for the whole of the resumed land square metre for square metre, was dependant not only upon a finding that the CPW land and the easement land would be accepted by the Council in part satisfaction of the applicable s 94 contribution, but also upon the basis that the Council would assess the value of the land so dedicated at "Residential Englobo Values" normally at $190 m² .
37 The appellant therefore submitted, as Handley JA has noted in [3] of his judgment, that the only relevant issues before the primary judge as a consequence of paragraph (a) of the agreement were whether the Council would have
(ii) allowed that offset at the full residential englobo market value of the developable part of the resumed land, namely, at $190 m².
(i) accepted the CPW land and the easement land as an offset against the applicable s 94 contribution; and
38 Although the first of these conditions was satisfied by his Honour's findings, it was submitted that his Honour neither addressed nor determined the second requirement so that the matter should be remitted to the Land and Environment Court either to determine that that requirement was satisfied or, if not, to apply paragraph (b) of the agreement and determine the market value of the CPW land and easement land in accordance with the rates per square metre set out therein.
39 The appellant relied heavily upon the terms of the EWPD which commenced on 2 February 2004. Clause 6(1) of that document provided that the Court might, on the application by a party or of its own motion, direct expert witnesses to confer and to endeavour to reach agreement on outstanding matters and to provide a joint report specifying the matters agreed or disagreed. Clause 6(5) provided that the parties may agree to be bound by the agreement on any specified matter in which event the joint report may be tendered at the trial as evidence of the matters agreed. In that case, clause 6(6) provided that a party affected may not without the leave of the Court adduce expert evidence inconsistent with the matter agreed in the joint report.
40 In the present case the joint report was tendered as evidence of the matters agreed but, as Handley JA pointed out in [9] and [10] of his judgment, the parties conducted the case not only upon the evidence constituted by the agreement but also upon the evidence generally of the valuers and, in particular, upon their respective analyses of the relevant comparable sales.
41 Schedule 2 to the EPWD sets out the requirements for the joint conference of expert witnesses. It notes in paragraph 1 that the objectives of the Court giving directions for a joint conference of experts include, inter alia, the identification and narrowing of issues in the proceedings, noting that the joint report may be tendered by consent as evidence of the matters agreed and/or to identify and limit the issues on which contested expert evidence will be called. A further objective was apprising the Court of the issues for determination and binding the experts to their position on the issues thereby enhancing certainty as to how the expert evidence will come out at trial.
42 Paragraph 4 of Schedule 2 provides that the questions to be answered in the joint report should be those specified by the Court or those agreed by the parties as relevant and any other question which any party wishes to submit for consideration. Paragraph 5 provides that the questions to be answered should be framed to resolve an issue or issues in the proceedings.
43 In my opinion, it is clear from the manner in which the primary judge approached his task that, notwithstanding paragraph (a) of the agreement, he considered that based upon an analysis of the relevant comparable sales by Mr Lange whose evidence he accepted, a hypothetical purchaser of the resumed land would, firstly, assume that the Council would accept the dedication of the CPW land and the easement land in partial satisfaction of the Council's s 94 contribution requirements and, secondly, that that purchaser would apply the same residential englobo value to the that land to be directed as to the balance of the resumed land which was available for residential development.
44 In other words, his Honour found that the hypothetical purchaser would not be concerned as to whether the Council would in fact provide an off-set credit of $190 m² for the dedicated land. Accordingly, it was irrelevant to the primary judge that in paragraph (a) of the agreement the figure of $190 m² was agreed to by the two valuers upon the basis that the CPW land and the easement land would not only be accepted by the Council in partial satisfaction of any s 94 contribution but also would be accepted by it at a residential englobo value.
45 The foregoing conclusion of the primary judge was reflective of the approach to the valuation issue which he had articulated in [10] of his judgment in the following terms:
- "The underlying issue to be determined is whether comparable englobo sales demonstrate a sale price at the rate of 190m² for residential land notwithstanding similar environmental constraints to those found on the subject land. If that is the case, then many of the issues raised regarding the exact extent of land to be set aside for open space or drainage purposes and whether it would be accepted as part of s 94 contributions will not be relevant. On the other hand, if it is apparent from an analysis of comparable sales that purchasers do take into account the extent of the constraint and whether constrained land will be accepted for the purposes of s 94 it will be necessary to resolve the various issues arising in respect of the application of a diminished rate per square metre for affected land."
46 In other words, paragraph (a) of the agreement only became relevant if an analysis of the comparable rates supported a finding in terms of the last sentence of the above cited passage.
47 The flaw in the appellant's argument is that irrespective of any agreement between expert witnesses achieved pursuant to the terms of the EWPD, a judge of the Land and Environment Court, as a judicial valuer, is bound by the provisions of s 55 of the Just Terms Act to determine the amount of compensation to which the dispossessed owner was entitled by regard to, inter alia, the market value of the resumed land at the date of its acquisition. The Court was also bound to determine that market value in accordance with the definition of that expression in s 56(1) of that Act as being the amount that would have been paid for the land if it had been sold at the time of acquisition by a willing but not anxious seller to a willing but not anxious buyer.
48 In other words, the Court was bound to inquire into and determine on the evidence the market value of the resumed land in accordance with the Just Terms Act and if that determination differed in any relevant respect from the opinion the valuers had expressed in their agreement made pursuant to the EWPD, then the Court was required to ignore the valuers agreement and determine the matter in accordance with its own opinion based on the evidence. An agreement between the valuers resulting from their conferring pursuant to the EWPD cannot trump the mandatory requirements of the statute where there is an inconsistency between the two.
49 In the present case, his Honour determined, on the basis of the expert evidence he accepted, that a hypothetical purchaser would pay $190 m², square metre for square metre, for the whole of the resumed land once he was satisfied that that purchaser would be justified in assuming that the Council would accept the dedication of the CPW land and the easement land in part satisfaction of any applicable s 94 contribution condition which the Council might impose upon its consent to the hypothetical development of the land.
50 The point that requires emphasis is that the parties or their experts cannot impose upon the Court what might ultimately be determined to be a false issue or an issue which is inconsistent with the statutory mandate of the Court to determine the market value of the land in accordance with the provisions of s 56 of the Just Terms Act. Of course, there must be evidence before the Court that supports its ultimate finding and, as Handley JA has observed in [9] and [10] of his judgment, the parties must have conducted their respective cases upon the basis of that evidence.
51 Here there was evidence called by the respondent which was not objected to by the appellant on the basis that it was contrary to paragraph (a) of the agreement and which was accepted by the primary judge, that the hypothetical purchaser would pay $190 m², square metre for square metre, for the whole of the resumed land. Once his Honour found that the hypothetical purchaser would be entitled to assume that the CPW land and the easement land would be accepted by the Council as dedicated open space for the purpose of any s 94 contribution, it was equally open to him to find on the evidence that that hypothetical purchaser would pay $190 m² for the whole of the resumed land and that that purchaser would not, as the relevant sales evidence established to his Honour's satisfaction, be concerned to inquire of the Council as to whether it would only accept the dedication of the EPW land and the easement land at englobo residential values.
52 If it be established on the evidence that the hypothetical purchaser would not be concerned with that issue and otherwise would not have discounted the value of the land to be dedicated to a figure less than that which he was prepared to pay for the balance of the resumed land, then the Court was not bound to reject that determination simply because, pursuant to the EWPD, the valuers had come to an agreement as to a particular rate per square metre for the resumed land upon a condition which they required to be proved but which the primary judge found the hypothetical purchaser would not require to be established. To give precedence to the valuer's agreement in such circumstances would in my opinion constitute an error of law.
53 Obviously, the EWPD is a highly useful document and agreement between experts is to be encouraged. However, it must be constantly kept in mind that the ultimate question – in this case the determination of the market value of the resumed land – is always a matter for the Court and not a matter to be conditionally agreed by the experts where otherwise a dispute as to the market value of the land remains for resolution. This does not mean that the experts cannot agree various issues which would otherwise be required to be resolved as part of the process of the Court determining the ultimate issue, namely, the amount of compensation to be paid for the resumed land and, in particular, the market value thereof. But it does mean that the Court is not bound by the valuers' agreement where it otherwise determines on the evidence advanced by the parties that that agreement and any conditional terms thereof, is or are at odds with what the Court finds to be the proper approach by the hypothetical purchaser as to what he or she will pay as reflecting the market value of the resumed land as defined in accordance with s 56(1) of the Just Terms Act.
54 In the present case, in my opinion the appellant sought to give too much weight to the agreement of the expert valuers and, by seeking to confine the issues to be determined by the Court to those reflected in paragraph (a) thereof, misunderstood the limitations of such an agreement and of the legal status of the EWPD.
55 Accordingly, for these further reasons I am of the opinion that the approach adopted by the primary judge in his determination of the market value of the resumed land did not reveal any error of law.
56 BROWNIE AJA: I agree with Handley JA and also with Tobias JA.
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