Nasser v Roads and Traffic Authority (No 2)

[2006] NSWLEC 561

Land and Environment Court

of New South Wales

CITATION:	Nasser v Roads and Traffic Authority (No 2) [2006] NSWLEC 561
PARTIES:	APPLICANTS Fred Nasser, Michael Nasser and George Nasser RESPONDENT Roads and Traffic Authority of New South Wales
FILE NUMBER(S):	30162 of 2003
CORAM:	Pain J
KEY ISSUES:	Compulsory Acquisition of Land :- amount of compensation payable
CASES CITED:	Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 100
DATES OF HEARING:	25/07/2006 02/08/2006, 04/09/2006 Applicants' written submissions 18/08/2006 Respondent's written submissions
DATE OF JUDGMENT:	09/08/2006
LEGAL REPRESENTATIVES:	APPLICANTS Mr P McEwen SC with Mr A Pickles SOLICITORS Allens Arthur Robinson RESPONDENT Mr J Maston SOLICITORS Corrs Chambers Westgarth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

8 September 2006

30162 of 2003 Fred Nasser, Michael Nasser & George Nasser v Roads and Traffic Authority (No 2)

JUDGMENT ON COMPENSATION

1 Her Honour: I gave my decision in Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 100 on 6 June 2006. I did not finalise the amount of compensation payable in relation to the Nasser claim as further information was needed from the parties before doing so, as raised in [151].

2 Further to [150] of my earlier judgment, I consider that a prudent hypothetical purchaser would consider that 20 per cent of the Nasser land would be subject to ecological constraints in the “before” scenario. I adopted Mr Rowbottom’s scheme for flood filling ([110]). Consequently 5,500m2 of constrained land must be allowed for flood storage/filling in the “before” scenario. I also held at [136] that 50 per cent of the significant vegetation in the north-western corner of the Nasser land would be considered to be constrained by a prudent hypothetical purchaser, an area of 2,760m2.

3 While there have been several submissions from the parties attempting to resolve the issue raised in [151] of my earlier judgment, it has not been possible to do so and it is time this matter was finalised. I agree with the Applicants’ written submissions dated 4 September 2006 in relation to scenario 2 discussed therein that a prudent hypothetical purchaser would consider 20 per cent of the Nasser land to be ecologically constrained land and that the constrained land due to flooding would be available for the provision or retention of native vegetation areas so that the two areas would overlap.

4 The area of ecologically constrained land in the north-western corner (2,760m2) and the area identified for flood storage by Mr Rowbottom’s scheme (5,500m2) provide a total area of ecologically constrained land of 8,260m2, or 20.4 per cent of the Nasser land in the “before” scenario.

5 In relation to the “after” scenario for the Nasser land, which I discussed at [193] of my earlier judgment, I agree with the Applicants’ written submissions of 2 August 2006 that there is no need to conclude that there is any constrained land due to ecological constraints, apart from an area of 2,760m2 of environmentally significant land in the north-western corner of the Nasser land.

6 I must also clarify one value to be applied in relation to the Nasser land. In my earlier judgment at [184] I found that a rate of $40/m2 should apply to developable land in the “after” scenario and applied that rate to the Millstar land. The valuers arrived at a different view in relation to the Nasser land in the “after” scenario – valued on the basis of Rural 1(e) – Future Urban zoning with future industrial potential as identified in their joint report at p 15 (exhibit Q). I will adopt Mr Lunney’s figure of $80/m2 in that context.

7 It is now possible to calculate the amount of compensation payable for the Nasser claim.

8

“Before” value

Market value of whole parcel before acquisition on basis of industrial zone.
The capital letters refer to areas of land identified in the plan attached to my first judgment.
Total area: 40,470m2 (T+D)

Market value of whole parcel before acquisition on basis of industrial zoning:

(a) developable land – 32,210 m2 x $190/m2 (flood free) $6,119,900

(b) constrained land – 8,260 m2 x $20/m2 $165,200

less fill costs 1,300 x $8/m2 $10,400 $ 6,274,700

The 8,260m2 of constrained land consists of 2,760m2 – part of environmentally significant land (north-west corner) and 5,500m2 – (flooding buffer zone (per Rowbottom plan exhibit 6, Fig 5.1) and vegetation zone)

“After” value
Market value of remainder of parcel after acquisition
Total area: 25,190m2 (T)

(a) developable land –22,430m2 x $80/m2 $1,794,400

(b) constrained land – 2,760m2 x $10/m2 $27,600

$ 1,822,000

Compensation
“Before” less “after”

$6,274,700 - $1,822,000 $4,452,700

9 Final orders must await the outcome of my decision on the Applicants’ disturbance claim.