Nevitoro Investments Pty Ltd v Hawkesbury City Council

[2000] NSWCA 33

CITATION:	Nevitoro Investments Pty Ltd v Hawkesbury City Council [2000] NSWCA 33 revised - 7/03/2000
FILE NUMBER(S):	CA 40268/98
HEARING DATE(S):	02/02/00
JUDGMENT DATE:	2 March 2000
PARTIES :	Nevitoro Investments Pty Ltd (Appellant) Hawkesbury City Council (Respondent)
JUDGMENT OF:	Stein JA at 22; Fitzgerald JA at 1; Foster AJA at 26

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	30020/97
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	Appellant - Peter Biscoe QC / Jamie Stephenson Respondent - Peter McCelland QC / Mr Newport
SOLICITORS:	(Appellant) - Cooder and Corry; (Respondent) - Abbott Tout
CATCHWORDS:	Compulsory acquisition of land by the Council - Claim for compensation under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 - how such compensation is to be calculated - claim under s 55(f) of the Land Acquisition (Just Terms Compensation) Act 1991 of alleged decrease in the value of land - - ND -
LEGISLATION CITED:	Land and Environment Court Act 1979; Land Acquisition (Just Terms Compensation) Act 1991
DECISION:	The appeal is dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40268/98
LEC 30020/97

STEIN JA
FITZGERALD JA
FOSTER AJA

Thursday, 2 March 2000

NEVITORO INVESTMENTS PTY LIMITED v HAWKESBURY CITY COUNCIL

JUDGMENT

1   FITZGERALD JA: The appellant, (“Nevitoro”), is the owner of Lots 1 and 2 in Development Plan 864088 and was the owner of Lot 3, the subject land, until it was compulsorily acquired by the respondent, (the “Council”). The subject land adjoins both Lot 1 which is the site of the Macquarie Arms Hotel at Windsor, and Lot 2 which is the site of Fitzgerald House. 2   Nevitoro has appealed against the Land and Environment Court's determination of the compensation to which Nevitoro is entitled from the Council. An appeal is permitted only against an order or decision of the Land and Environment Court on a question of law. Land and Environment Court Act 1979, s 57(1). 3 The appeal involves Nevitoro's claims to compensation (i) under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (the “Act”) for the market value of the subject land on the date of its acquisition by the Council, and (ii) under s 55(f) of the Act for an alleged decrease in the value of Lot 2. 4 At the hearing of the appeal Nevitoro was refused leave to base its claim for compensation for an alleged decrease in value of Lot 2 on s 55(c) of the Act. Although it seems from the initial claim for compensation by Nevitoro that its claim for an alleged decrease in the value of Lot 2 was then made under s 55(c), not s 55(f), of the Act, s 55(c) was not relied on in the Land and Environment Court or the basis of any order or decision of that Court, and was not even hinted at in any of the various versions of the notice of appeal or the written submissions to this Court. 5 At the date when the Council acquired the subject land it was zoned Special Uses 5A Parking, had a sealed surface, and was used for car parking in connection with Nevitoro's use of Lot 2, Fitzgerald House, and perhaps, although it is not material to this appeal, Lot 1, the Macquarie Arms Hotel. 6 The surface of the subject land had been sealed for use for that purpose. The Council acquired the subject land for use as a public car park and has put it to that use. 7 The Land and Environment Court assessed the market value of the subject land on the date of its acquisition as $321,600. Nevitoro argued that the correct market value of the subject land at that date was $525,000. The Court rejected Nevitoro's claim for compensation under s 55(f) of the Act. The total compensation awarded, $348,125.75, included $26,525.75 for disturbance under s 55(d) of the Act. 8 Two issues were raised for this Court and other matters which had earlier been raised were abandoned. The second of the two matters, although I will deal with it first because it seems to me logically to arise in that order, was an argument in relation to the market value, that is to Nevitoro's claim under s 55(a) of the Act. 9 The valuers who gave evidence agreed that the highest and best use of the subject land on the date of its acquisition was business (Business General 3(a)), and that was the basis on which the Court determined its market value. The valuers were also agreed that the appropriate method of determining the market value of the subject land on the date of its acquisition on the basis that its highest and best use was business was by reference to comparable sales, and that was the course which the Court adopted. 10 At least some of the valuers, including the Council's valuer Mr Wood, also assessed what the value of the subject land on the date of its acquisition would have been if its highest and best use had been parking, not business. On that hypothesis, the market value of the subject land was calculated on the basis of the number of car spaces available multiplied by an appropriate amount per car space. One or more of Nevitoro's valuers added an amount related to the sealing of the subject land, but Mr Wood did not. 11 Each of the valuers, including Mr Wood, assessed a higher market value for the subject land on the date of its acquisition on the basis that its highest and best use was business, not parking. However, according to Mr Wood, the market value of the subject land on the date of its acquisition would not have been much less if its highest and best use had been parking, not business. 12 If, contrary to his opinion, Mr Wood had included the cost of sealing the subject land in his assessment of its market value on the date of acquisition on the hypothesis that its highest and best use was parking, he would have reached a higher figure than the figure he reached on the basis, agreed in by Nevitoro's valuers, that the subject land's highest and best use was business. 13 It was not legally erroneous for the Land and Environment Court to accept Nevitoro's contention that the market value of the subject land on the date of its acquisition should be determined on the basis that its highest and best use was business. No valuer gave evidence to the contrary. 14 That being so, the Court was not legally obliged to consider and discuss whether, if the highest and best use of the subject land had been parking, Mr Wood's assessment of its value on that hypothesis should have been increased by the cost of sealing. 15 The second matter relates to Nevitoro's claim for an alleged decrease in the value of Lot 2. Nevitoro claimed that the value of Lot 2 was decreased because eleven car parking spaces which were previously available for use in conjunction with the business conducted on Lot 2, that is Fitzgerald House, were lost. 16 According to Nevitoro four car parking spaces on the subject land are no longer available for use in conjunction with Lot 2 and seven car parking spaces on Lot 2 were lost because of the lack of access or restricted access across the subject land to Lot 2. 17 Any decrease in value of Lot 2 was outside the scope of s 55(f) of the Act, which would entitle Nevitoro to compensation for a decrease in the value of Lot 2 only if that decrease in value resulted from a particular use or proposed use of the subject land by the Council. Any decrease in the value of Lot 2 in relation to the lost car parking spaces arose directly from the loss of the use of the subject land for parking for Fitzgerald House and for access to Lot 2 for parking for Fitzgerald House because of Nevitoro's loss of ownership of the subject land when it was compulsorily acquired by the Council. 18 That decrease in value, if any, resulted irrespective of the use which the Council proposed for or made of the subject land. There was no evidence that the Council's proposed use of the subject land for public parking decreased the value of Lot 2 as might have resulted from some uses, for example a sewerage treatment plant. as occurred in Halloran and SeaLark Proprietary Limited v Shoalhaven City Council 1999 NSWLEC 171, a judgment delivered on 28 July 1999 to which the Court’s attention was drawn by counsel for Nevitoro. 19 In this Court Nevitoro sought to adduce further evidence to show that the Council had imposed parking restrictions upon the public use of the subject land since its compulsory acquisition. This evidence was apparently intended to support a proposition that parking on and access across the subject land in connection with the business of Fitzgerald House is now more restricted than it was when Nevitoro owned the subject land. 20 Other considerations aside, since Nevitoro's claim for a decrease in the value of Lot 2 on the basis advanced is outside the operation of s 55(f) of the Act, the evidence is irrelevant and should be rejected. 21 In summary, in my opinion the appeal should be dismissed with costs. 22 STEIN JA: I agree with Fitzgerald JA and with the order he proposes. I wish to add a few remarks of my own. The manner in which the appeal has been handled on behalf of the appellant is worthy of some comment. 23 The grounds of appeal seem to be a permanently moving feast. Starting with the original notice of appeal, which included allegations of actual or ostensible bias and denial of procedural fairness by the trial judge, through to an almost final document entitled Further Supplementary Notice of Appeal filed on 16 February 2000 which runs to some 22 grounds. Grounds one to 11 inclusive of this document was abandoned yesterday afternoon. 24 A completely new ground changing the whole basis of the appeal was proposed by the appellant this morning. The application for leave to add the new ground was refused by the Court. Further grounds of appeal were foreshadowed in argument on behalf of the appellant. In the event, in my view, no ground demonstrated any error of law, with which this appeal is confined. 25 Parties need to address their grounds of appeal at an early point in time after the decision has been given which they desire to challenge. This is especially so when an appeal is confined to a question of law. Repeatedly in this Court I find a situation where the original notice of appeal bears no resemblance whatever (except in the names of the parties) to the issues sought to be litigated at the hearing of the appeal. 26 FOSTER AJA: Yes, I agree. I have nothing to add. 27 STEIN JA: Accordingly the order of the Court is that the appeal is dismissed with costs.

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