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…

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: [2006] NSWLEC 561
Decision Date: 08/09/2006

CaseChat Overview and Summary

In Nasser v Roads and Traffic Authority (No 2), the applicants, Fred Nasser, Michael Nasser, and George Nasser, sought to determine the amount of compensation payable to them for the compulsory acquisition of their land by the Roads and Traffic Authority of New South Wales. The case was heard by Pain J in the Land and Environment Court of New South Wales. The key issue before the court was the calculation of the compensation payable for the acquisition of the Nasser land, particularly considering the ecological constraints on the land both before and after the acquisition. The court had to determine the percentage of the land that would be considered ecologically constrained and the appropriate rates to apply to these areas.

The court assessed the percentage of the Nasser land that would be considered ecologically constrained by a prudent hypothetical purchaser, both before and after the acquisition. Pain J concluded that 20.4 per cent of the Nasser land would be considered ecologically constrained before the acquisition, taking into account the flood storage and environmentally significant land. For the after scenario, the court found that only the environmentally significant land in the north-western corner would be considered constrained. The court also resolved the valuation issue, adopting a rate of $80/m2 for the developable land in the after scenario, as recommended by the valuers.

After calculating the market values of the land both before and after the acquisition, taking into account the constrained land, the court determined the compensation payable to the applicants. The court found that the market value of the Nasser land before the acquisition was $6,274,700, while the market value of the remainder of the parcel after the acquisition was $1,822,000. Consequently, the compensation payable to the applicants was determined to be $4,452,700.

Pain J did not finalise the orders at this stage, pending the outcome of the applicants' disturbance claim. The court's decision provided clarity on the percentage of the land to be considered ecologically constrained and the appropriate valuation rates, which were essential in calculating the compensation payable.

Orders