Multari v Roads and Traffic Authority of NSW

[2004] NSWLEC 649

Land and Environment Court

of New South Wales

CITATION:	Multari G v Roads and Traffic Authority of New South Wales [2004] NSWLEC 649
PARTIES:	APPLICANT Guiseppe Multari RESPONDENT Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	30154 of 2003
CORAM:	Talbot J
KEY ISSUES:	Compulsory Acquisition of Land :- compensation - whether subsequent events can be taken into account - proper evaluation of conflicting expert advice - Practice and Procedure - application to reopen after hearing but before judgment.
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 s 54, s 55(a), s 55(d), s 55(f), s 56, s 66, s 59(a), s 59(b), s 59(d), s 59(f), s 66 Threatened Species Conservation Act 1995 Liverpool Local Environmental Plan 1997 cl 18
CASES CITED:	Bwlfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 ; Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax 26 August 1943, High Court, unreported; Filip Yakas v Roads and Traffic Authority of New South Wales [2004] NSWLEC 525, unreported ; Housing Commission of New South Wales v Falconer and Others (1981) 50 LGRA 334; Longworth v Commissioner of Stamp Duties [1953] SR (NSW) 342 ; Kizbeau Pty Ltd v W G & B Pty Limited and Another (1995) 184 CLR 281 ; McCathie and Others v Federal Commissioner of Taxation (1944) 69 CLR 1 ; Potts v Miller (1940) 64 CLR 282
DATES OF HEARING:	13/10/04 14/10/04 15/10/04 18/10/04 01/11/04 12/11/04 (written submissions) 19/11/04 (notice of motion)
DATE OF JUDGMENT:	11/24/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J J Webster SC with Mr I J Hemmings (Barrister) SOLICITORS Gadens Lawyers RESPONDENT Mr P C Tomasetti (Barrister) SOLICITORS Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

24 November 2004

30154 of 2003 Multari G v Roads and Traffic Authority of New South Wales

JUDGMENT

1 Talbot J: The Roads and Traffic Authority of New South Wales (“the respondent”) has acquired an area of approximately 34,291m2, out of a total area owned by the applicant comprising 36,201m2, for the purposes of the construction of the Western Sydney Orbital Road (“the WSO") at Hoxton Park. The land is described as Lot 43 DP 1044841, being part of land in Certificate of Title 101/850423 at Hoxton Park. The land was acquired pursuant to a notice published in the New South Wales Government Gazette on 4 October 2002.

2 Under the Liverpool Local Environmental Plan 1997 (“the LEP”) the zoning of the acquired land is as follows:-

Rural 1(e) Future - Urban 30,073m2
Residential 2(a) 1,914m2
Special Uses 5(a) Drainage 400m2
Recreation Public 6(a) 1,903m2

3 Mr Guiseppe Multari (“the applicant”) objects to the amount of compensation offered by the respondent. The applicant’s claim stated in an Amended Points of Claim is for compensation of $4,746,407.58 made up of a claim in respect of the market value of land acquired at $4,625,000 and disturbance in the sum of $121,407.58. The total liability admitted by the respondent in its Amended Points of Defence is $927,200.

4 A dwelling is constructed on the residue land. The balance of the land was vacant at the date of acquisition. It had been previously used for market gardening.

5 The objectives of the Rural 1(e) zone are as follows:-

(a) to identify land which is included or proposed to be included in either the Urban Development Program or land proposed to be included in the Employment Lands Development Program of the Department of Urban Affairs and Planning for future urban development, and

(b) to avoid further fragmentation of land holdings, and

(c) to ensure that development does not contaminate or otherwise prejudice the orderly and economic development of future urban land, and

(d) to ensure that development is compatible with the ecological attributes of the area.

6 Subdivision of land within the Rural 1(e) zone is severely curtailed so that any development, effectively for present purposes, is required to take place on existing allotments.

7 The land in the Special Uses 5(a) – Drainage and Recreation Public 6(a) zones is liable to be acquired by the Council at the request of the owner. The 5(a), 6(a) and 2(a) zoned land is adjacent to Hinchinbrook Creek.

8 The majority of the acquired land is within the 25-30 ANEF contour for Hoxton Park Airport. A minor portion of the land along Hinchinbrook Creek is within the 20-25 ANEF contour.

9 Flooding experts Ian Rowbottom and Mike Boyden agree that the acquired land is affected by flooding during the 1% AEP flood event and that any proposed development would therefore need to comply with the provisions of Council’s Floodplain Management Plan (1987) (“FMP”).

10 The engineers disagree on the extent of development potential for the acquired land which is below the 1% AEP flood level.

11 Mr Boyden has proposed an engineering solution which is constrained by site flooding issues and the line of land and vegetation conservation provided by environmental consultants, whereas Mr Rowbottom has considered other site constraints such as flood hazard, riparian offset from Hinchinbrook Creek and environmentally significant land.

12 Mr Boyden’s scheme involves the excavation of a stormwater basin setback a distance of four metres from the alluvial woodland to allow for the drip line and root system of the vegetation. From the point of the setback he designed a gradient of 1:6 to a depth varying from 3 metres to 3.5 metres at the outlet of the storage across the southern boundary of the land. The material excavated for the purpose of the basin will be used to provide fill above the 1:100 level on the balance on the land. The basin is intended to operate so that as flood levels in Hinchinbrook Creek rise they would initially backup from downstream and subsequently the water flows over the bank of the creek into the pond. The proposed stormwater basin would then become part of the floodway for Hinchinbrook Creek. As the floodwaters recede, water would drain out of the basin at a slow rate through a pipe system.

13 Mr Boyden confirmed in the course of concurrent evidence with Mr Rowbottom that the system he proposes would form the basis for his advice to a prospective purchaser of the land. In the course of the hearing Mr Boyden amended his design of the proposed site drainage basin and flood storage to allow a set back of four metres from the significant vegetation along the creek bank.

14 Mr Rowbottom works upon his estimate that there would be somewhere between 130m3 and 150m3 per second of water flow across the 200m width of the subject property. Based upon an average velocity of flow at about one metre per second, there would be an average depth of up to a metre across the property. In addition to Hinchinbrook Creek, Mr Rowbottm identified a flow path in a south-easterly direction through the property which would result in a depth of cross flow approximately one metre deep, about the same depth of the flow path over the flood plain immediately adjacent to Hinchinbrook Creek. He categorised the additional floodway as a high hazard floodway that carries a significant volume of water, that if blocked, would have an impact on adjacent properties in terms of elevated flood levels. He also used criteria in the FMP to categorise other parts of the property in the north-western corner as low hazard floodway and in the south-western corner as low hazard flood storage or low hazard flood fringe.

15 Mr Rowbottom’s starting point for advising the hypothetical purchaser would be to explain that the land presented as a very risky proposition if the intention was to develop it for either residential or industrial purposes. The secondary flow path across the property, draining from the western boundary in a south-easterly direction, is a high hazard flood way and could not be developed. Furthermore, no development would be possible in the area adjacent to Hinchinbrook Creek. Mr Rowbottom would also avoid development in the north-western corner of the property because of the necessity to provide access out of the property in a flood event but more significantly because any fill along the northern boundary will cut off the overland flow path. That would leave, in his view, only the south-western corner as a possible area for development, subject to Council consent. There would be no development along or adjacent to Hinchinbook Creek.

16 As the result of his investigation of the site, Mr Rowbottom would advise the prudent hypothetical purchaser, that in his estimation, the maximum developable area is only 7000m2 in the south-western corner of the property. He modelled his proposal to confirm that the maximum area that could possibly be developed and not impact on adjacent properties would be the 7000m2 in the south-western corner. Mr Rowbottom obtained a costing of the proposal put forward by Mr Boyden in excess of $600,000, whereas the cost estimate for his own proposal was in the order of $70,000. An alternative costing for the Boyden scheme in the sum of $61,050 has been produced by a commercial operator acting on instructions from the applicant.

17 Mr Boyden drew some comfort from the fact that a scheme, which he perceived to be similar to his own, had been approved and completed on the opposite side of the Creek. Mr Rowbottom explained what he saw as significant differences between the flood contours and the nature of the work, which consisted of a floodway on the eastern side of the Creek, as opposed to the basin proposed by Mr Boyden on the subject land. Mr Boyden could not be persuaded to change his view that the works on the eastern side of Hinchinbrook Creek confirmed the feasibility of his scheme, notwithstanding the analysis undertaken by Mr Rowbottom.

18 The difference between the experts does not relate to the whether the land could be filled to above the 1:100 flood level and then developed, but rather whether there would be such an adverse impact on flood levels and flow paths as a consequence of the construction of an individual stand alone scheme on the subject land that it would preclude consent for the development from the point of view of flood engineering principles.

19 I prefer to adopt the views and opinions expressed by Mr Rowbottom as the advice that the prospective hypothetical purchaser would primarily have regard to, and eventually accept. Mr Boyden did not take proper account of all the exigencies. For example he initially took no account of the vegetation along the line of the creek and then more significantly overlooked the obvious flow path coming into the land across the western boundary. Not only must the Court take account of what the prudent hypothetical purchaser would do but it must be careful to take into account what is likely to be the most reliable advice from the experts, who on the balance of probabilities would be engaged by the purchaser to assess the situation before a price is determined. Properly and fully advised the hypothetical purchaser would have concluded that the best estimate of the area of land that could be made available for development, after the amount of the flood affectation is properly taken into account, would be approximately 7000m2 at a cost in the vicinity of $70,000. Even so, based upon Mr Rowbottom’s advice this would still present as a risky proposition.

20 This conclusion is reinforced by recognition of the fact that the land forms part of a high hazard floodway and that filling the land would not be consistent with the FMP or the Flood Plain Management Manual published by the New South Wales Government. The purchaser must be assumed to be aware of the constraints posed by these publications. Accordingly, the prospect of achieving a yield in excess of 7000m2 would be regarded as unlikely. Even the development of 7000m2 must be regarded as doubtful because of its dependency upon obtaining council consent to works inconsistent with the FMP.

21 The flora and fauna experts concur that the vegetation growing on the land is Sydney Coastal River Flat Forest (“SCRFF") which is an endangered ecological community under the Threatened Species Conservation Act 1995. The conclusion reached in respect of the flood affectation effectively disposes of any discrepancy between the flora and fauna experts as the areas where the woodland is growing and the environmentally significant land would be rendered sterile in any event by the potential impacts of flooding.

22 The physical constraints of the land effectively mean that the parts within the Residential 2(a); Special Uses 5(a) - Drainage and Recreation 6(a) Public zones have no development potential.

23 The remaining land in the west and southwest corner in the Rural 1(e) zone also falls within the 25-30 ANEF contour with the consequence that there will be further detrimental impact upon the development potential whilever the Hoxton Park Airport continues to operate. Development for residential purposes within the 25-30 ANEF noise contours is prohibited under cl 18 of the LEP.

24 There is some evidence that prior to the date of acquisition the closure of Hoxton Park Airport was under consideration.

25 During the course of the hearing the applicant sought to lead evidence of events, which have occurred subsequent to the date of resumption, in relation to the proposed closure of Hoxton Park Airport. I delivered an ex tempore judgment whereby the evidence was rejected. The applicant has requested that I fully explain my reasons for that determination.

26 Mr Hemmings, who argued this point for the applicant, submits that the Court should take into account the following events that occurred after the applicant’s land was resumed:-

· 16 April 2003, it is announced that the Airport is to be sold and will operate as an airport for 5 years only. The land is then expected to be redeveloped.

· 26 October 2003. The airport is sold. The airport lease over the land has been shortened.

· 19 November 2003. The Report on the sale of the airport shows that airport lease ends in 2008.

· The Masterplan confirmed the closure (currently on exhibition).

27 Mr Hemmings contends that the above facts are relevant and admissible to support the probability that the airport would close within 6 to 8 years of the acquisition date and that a prudent purchaser would acquire the land on the basis that it had residential potential. According to Mr Hemmings the probability that the airport would close was an expectation in existence at the acquisition date and is borne out by subsequent events.

28 That subsequent events can be material in a particular context is evident from the following remarks made by Williams J in Daandine Pastoral Co Pty Ltd v Commissioner of Land Tax 26 August 1943, High Court, unreported and quoted in the course of his judgment subsequently in McCathie and Others v Federal Commissioner of Taxation (1944) 69 CLR 1 at 16.

Values must be calculated in the light of circumstances which existed on the material date,…but subsequent events can be taken into account in order to determine the proper weight to attach to such circumstances.

29 Williams J made the above remarks in the context of a dispute regarding the real value of shares for the purpose of assessment of Federal estate duty, rather than market value. He expressly distinguished real value from market value at p 6. See also the remarks of Dixon J in Potts v Miller (1940) 64 CLR 282 at 299.

30 The decision of the Full Court of the Supreme Court of New South Wales in Longworth v Commissioner of Stamp Duties [1953] SR (NSW) 342 is another example of principles applied for the purposes of ascertaining value for the assessment of death duty but Owen J made some observations that are relevant for the present purposes at p 348 as follows:-

A tribunal which is called upon to make such an assessment of value must in each case decide what facts affecting values would have been in the contemplation of the notional buyer and seller at the relevant date, and what, if any, effect on values the existence of those facts would have had on the sum which the one was prepared to give, the other to take. One such relevant fact may be the probability or possibility that an event will later occur, and the existence or non-existence of that contingency may have its effect on values. If so, it is relevant. But the value must surely be ascertained in the light of the facts, including the probabilities, then existing, and without taking notice of subsequent happenings.

31 After recognising a suggestion in some then recent cases that later events may be looked at to support a tentative view that a probability existed at the relevant date, Owen J warned at p 349, against the possible consequences “should this so-called doctrine of preferring facts to prophecies be given too great an extension”.

32 In the different circumstances applicable to a claim for damages based on s 52 of the Trade Practices Act 1974 the majority of the High Court in Kizbeau Pty Ltd v W G & B Pty Limited and Another (1995) 184 CLR 281 also recognised that a subsequent event could be considered when determining a measure of loss suffered at an earlier date. The High Court expressly applied the following principles stated by Lord Macnaghten in Bwlfa & Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1903] AC 426 at 431:-

[T]he arbitrator’s duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should be shut his eyes and grope in the dark?

33 Mr Hemmings relies upon a statement made by Mahoney JA in Housing Commission of New South Wales v Falconer and Others (1981) 50 LGRA 334 at 365 as follows:-

Whatever be the precise limits of what the court may do in this regard, I think that, in this case, his Honour could look to events subsequent to the resumption in order to quantify the actual and projected increases in the building costs and then take those amounts into account in the manner to which I shall refer.

34 However once again the subject of the remarks is relevant. Mahoney JA at p 363 placed his observation in the context of the cost of reinstatement of a building when he said:-

Once it be accepted that “value” in that context is not limited to market value but includes value to the owner, in the sense to which I have referred, then no difficulty arises in including in the compensation amounts of the present kind.

35 Earlier his Honour made the distinction even clearer for present circumstances as follows:-

There are some cases in which the theory or principle on which the compensation is to be assessed prevents regard being had to subsequent events. Thus, where the compensation which is to be given is measured by the ordinary price of the property taken, the principle on which that market price is be determined prevents (or at least restricts) reference to subsequent events. That market price is the price acceptable to a willing but not anxious vendor and purchaser on the relevant date. Such persons are to be taken to know what an appropriately informed person would know on that date. That being the principle, it follows that such persons (and the court, as determining what they would have done) cannot be seen as knowing more.

36 I am not able to translate the statements of principle relied upon by the applicant to a consideration of the amount of compensation payable pursuant to s 55 of the Just Terms Act. A determination pursuant to the terms of the Just Terms Act is not the same as an assessment of value for death duties purposes, nor for the purpose of assessing damages in tort or following a breach of the Trade Practices Act. The Court is confined to determining the market value of the land at the date of compulsory acquisition in accordance with the definition in s 56.

37 The definition of market value, at best, permits consideration to be given to a sale subsequent to date of resumption provided that it is otherwise comparable in the accepted sense. Beyond that I have not been satisfied that the authorities relied upon by Mr Hemmings have any application to an assessment of market value.

38 I confirm my extempore ruling that the evidence in relation to what occurred after the date of acquisition in relation to the sale and closure of the Hoxton Park Airport is not relevant and therefore inadmissible for the above reasons.

39 On 19 November 2004, 18 days after the hearing had finished and 7 days after final submissions were required, the applicant applied, by way of notice of motion, for leave to rely on further evidence regarding the future of Hoxton Park Airport. Leave was refused and the applicant ordered to pay the respondent’s costs of the notice of motion.

40 The evidence comprised Department of Urban Affairs and Planing (“DUAP”) reports dated 1995 and extracts from annual reports of the company, Hoxton Park Airport Limited, both of which contained observations and projections about the development of the airport land. Part of the material was made available to the solicitors for the applicant by his valuer, Mr Dobrow, prior to the final day of the hearing. The balance was produced to the solicitors by Mr Dobrow on 4 November 2004. Arguably the planning report has been superseded by later material that a purchaser may have been aware of at the date of resumption. There must be considerable doubt that the company reports would have been generally available to members of the public generally and in particular prospective purchasers of the land.

41 There can be no doubt that this Court may enquire why the evidence was not called at the hearing. There is no explanation offered in this respect and accordingly the Court cannot determine whether the valuer made a decision not to produce it earlier or whether the legal representatives made a deliberate decision not to pursue it as soon as it became available to them. Without that evidence and given that the issue was raised by the applicant in the first place, there is a perception that even the most diligent purchaser is unlikely to have known about the contents of the documents. Even without that perception the lack of plausible explanation justifies the refusal of leave. The diminished potential probity of the evidence only heightens that justification.

42 Moreover, the issue regarding the future of the Hoxton Park Airport land does not bear heavily on the outcome of the case. In those circumstances the cost to both parties in the event the case is re-opened is not warranted. The application was therefore refused on that ground as well.

43 There is no evidence to support an argument that the proposal to build the WSO restricted the zoning of the land at the date of resumption. The argument put forward on behalf of the applicant, that a hypothetical purchaser having made prudent enquires would expect that the land could be released for some type of urban development within 6 to 8 years, is not supported by any material available at the date of resumption that persuades me, that, but for the proposal to build the WSO, it would have been rezoned within that time, or at all.

44 It is true that during the early 1990’s consideration was given to the future development of land within Precinct 3 of the Hoxton Park Stage 2 Release Area. In 1992 a draft LEP was prepared in respect of part of Precinct 3; being Precinct 3A. The subject land is within Precinct 3 but was not included in Precinct 3A. A study of historical documentary materials shows that a combination of the impact of the Hoxton Park Airport and a lack of clarity for the route of the proposed freeway meant further studies in relation to the balance of Precinct 3 were deferred.

45 Gary Rhodes, the applicant’s town planner, is of the view that initiatives of the early 1990’s could have resulted in the land being zoned for employment/industrial purposes with the potential determined by flooding and environmental considerations. While disagreeing with this projection, the respondent’s town planning consultant Harvey Sanders, notes that the land was affected by constraints including noise from Hoxton Park Airport, flooding, riparian zone requirements and environmentally significant land that would have precluded zoning for residential development. Although zoning for other urban development purposes would not necessarily be precluded by aircraft noise, they would have been precluded by the other constraints as well as by the unsatisfactory access to the land through residential streets.

46 Mr Sanders goes on to say that the environmental and other inherent problems with the area can be seen to have a causal connection with the selection of the site for the proposed WSO. I agree with the opinion of Mr Sanders that the initiatives of the early 1990’s would not necessarily have resulted in the land being zoned for urban uses. The constraints by flooding and environmental factors so severely limit the potential for urban development that the likelihood of rezoning is so remote that it should be discounted.

47 On 29 September 2002 Liverpool Council considered a report relating to a proposed rezoning of land to the immediate south of the subject land. The application has not been progressed primarily due to the affectation of the area by the 25-30 ANEF contours, as well as common problems associated with access and flooding.

48 I conclude therefore that as at the date of acquisition, ignoring the proposal for the WSO, the zoning of the land at the date of acquisition would have remained as it is presently. Having regard to the overall general constraints of the land and the advice of Mr Rowbottom together with the general uncertainty as to when the land would be rezoned for an urban purpose, if at all, it is my view that the hypothetical purchaser when determining the purchase price with a hypothetical vendor would not have made any allowance for, or recognition of, a prospect that the land could be rezoned for an urban purpose. On balance, it is my view that consistent with the respondent’s case the perceived development potential of the land in the Rural 1(e) zone would have been limited to the uses permissible in that zone. My opinion is principally based upon the constraints associated with the flooding potential of the land. The noise affectation from Hoxton Park aerodrome and the impact of the need to gain access through existing residential areas only compound the problem.

49 That leaves two issues to be determined, namely the price that the hypothetical purchaser would have agreed with the hypothetical vendor and compensation for disturbance.

Sales evidence

50 The sale of an area of 6.59ha fronting Cowpasture Road, north of the subject land and similarly constrained, after making some adjustments in relation to the true purchase price paid, the value of improvements and a 20 month time adjustment refects a value of $21.18 per m2. Having regard to the inherent and other constraints equally applicable to this land as to the subject land, I am not satisfied the proposal for the WSO significantly impacted on this sale as Mr Webster submits but neither am I satisfied that the proposal for the WSO necessarily enhanced the value of the land as Mr Wood suggested.

51 A further sale of land in Wilson Road, Hoxton Park comprising 3.198ha adjacent to Hinchinbrook Creek, opposite the subject land, similarly flood affected as the subject land and cut by a transmission line easement reflects an adjusted price of $16.29 per m2. The adjoining lot was purchased as a single house site and reflected a rate of $20.6 per m2 over the total area.

52 According to an analysis undertaken by Mr Wood, physically constrained vacant land at First Avenue, Hoxton Park comprising an area of 2.023ha acquired by Liverpool City Council was purchased in February 1999 for $700,000. That amount was deduced after allowing for the value of residential land included in the same transaction. Assuming that his analysis is correct the price paid for the area baldy affected by natural water course equated to $17 per m2 adjusted to $22 per m2 for time.

53 Relying upon the above sales, Mr Wood, the respondent’s valuer, ultimately adopted a rate per m2 of $25 on the assumption that the subject land remained in the Rural 1(e) zone.

54 Mr Dobrow on the other hand deduced $70 per m2 in support of the applicant’s case. Essentially, the applicant did not rely upon any alternative sales to justify a theoretical purchase price which reflected the Rural 1(e) zoning with urban development potential constrained by the impacts of flooding and the other environmental concerns identified above. Primarily Mr Dobrow proceeded to value the land by adopting comparable sales of englobo finished lots for industrial purposes and englobo land with residential potential.

55 Mr Dobrow only referred to the above sales used by Mr Wood for the purpose of establishing a value for land with environmental significance along Hinchinbrook Creek. He eventually deduced a rate of $47 per m2 which he says is consistent with the rates in the Council’s s 94 Contribution Plan. I cannot fathom any basis for adopting a rate derived from a s 94 Contribution Plan in circumstances such as the present. Moreover, there is no detailed justification for the rate of $70 per m2 advocated by Mr Dobrow in the joint report prepared by the valuers following their conference pursuant to the Expert Witness Practice Direction. He says that the latter rate of $70 per m2 was based upon sales of rural residential land, which he has dealt with in other cases and his general experience. One previous case he makes specific reference to is Filip Yakas v Roads and Traffic Authority of New South Wales [2004] NSWLEC 525, unreported where Pain J, in the course of her judgment at [51], lists a number of sales which prima facie show a rate of about $75 per m2. However, I note that her Honour did not accept Mr Dobrow’s evidence in Yakas and I have no independent testimony analysing the sales referred to that would justify adopting them in this case.

56 Using the Before and After Method for one basis of his original valuation Mr Wood calcualted a diminution in market value of $800,000. Using Mr Wood’s value of $25 per m2 for the area of 34,291m2 would yield a theoretical market price of $857,275.

57 Mr Wood states that the 3.6ha originally held by the applicant would have been valued as a rural homesite at $1,100,000 before the resumption. The improved value of the residue land upon which a cottage is erected, without taking account of injurious affectation is agreed between the valuers at $500,000. The valuers have also agreed that the injurious affectation of the WSO on the residue land is $150,000. Using the Before and After method on that alternative basis demonstrates a diminution in value of $750,000.

58 I am prepared to accept that the Before and After approach taken by Mr Wood could be regarded as conservative. It is appropriate to err in favour of the dispossessed owner and accordingly doing the best that I can I determine the willing but not anxious vendor and purchaser would have reached an agreement that a reasonable price to be paid for the acquired land at the date of acquisition would have been $875,000. I therefore adopt that figure of $875,000 as the market value of the land acquired. To this must be added the sum of $150,000 as the detrimental effect of the WSO on the retained land.

Disturbance

59 The applicant’s outstanding claims at the conclusion of the hearing was $17,412.58 for legal costs in respect of which the respondent admitted the sum of $9000. A claim for valuation fees paid by the applicant in the sum $16,995 was also disputed as to the sum of $14,795. Evidence in relation to these matters was filed subsequent to the completion of the hearing.

60 The affidavit evidence was filed in accordance with directions and the respondent now acknowledges that the legal costs amounting to $11,641 paid to JA Buda and Associates, Solicitors were reasonably incurred in connection with compulsory acquisition of the land and accordingly they are properly to be regarded as a loss attributable to disturbance pursuant to s 59(a) of the Just Terms Act. The further affidavit evidence shows that an amount of $2467 paid to Gadens Lawyers is properly attributable to the acquisition of the subject land. The respondent now concedes, quite properly, that the applicant is also entitled to the further amount of $2467 as compensation for loss attributable to disturbance pursuant to section 59(a).

61 An amount of $3795 paid to RS Canceri Pty Limited is a claim in respect of a report obtained from that company, a licensed land surveyor. The purpose of the report was to establish the levels for the land determining susceptibility to flooding and to define the boundaries of the subject land. The survey report was delivered to the applicant’s consultant town planner Mr Rhodes and incorporated in his report. I agree with the respondent that in the circumstances the amount paid to the surveyor does not fall within a valid head of valuation fees reasonably incurred in connection with the acquisition of the land under s 59(b). Moreover it is not possible to categorise the payment as a financial cost incurred in accordance with s 59(f).

62 No evidence has been provided by the applicant in relation to an amount of $11,000 allegedly paid to Gerton Pty Limited and now claimed as a valuation fee reasonably incurred in accordance with s 59(b). In the absence of evidence to support a claim it is axiomatic that the claim must fail.

63 In summary therefore the Court agrees with the respondent that the following amounts are properly payable as loss attributable to disturbance:-

Fees paid to JA Buda and Associates Solicitors $11,641
Fees paid to Gadens Lawyers $ 2,467
Valuation fees paid to Kenny and Good Pty Limited $ 2,200
$16,308

64 In a final written submission the applicant accepted the above amounts.

Determination of compensation

65 After taking into account the matters referred to in s 55(a), (d) and (f), the Court determines pursuant to s 66 of the Just Terms Act that the amount of compensation payable to the applicant as his entitlement under s 54 is $1,041,308.

66 The question of costs is reserved. There has been no argument in that respect. The exhibits may be returned, except for exhibit 15.