Owners Corporation of Strata Plan 30859 v Roads and Traffic Authority of NSW
[2009] NSWLEC 135
•13 August 2009
Reported Decision: 168 LGERA 30
Land and Environment Court
of New South Wales
CITATION: Owners Corporation of Strata Plan 30859 v Roads and Traffic Authority of NSW [2009] NSWLEC 135 PARTIES: APPLICANT
RESPONDENT
Owners Corporation of Strata Plan 30859
Roads and Traffic Authority of New South WalesFILE NUMBER(S): 30742 of 2007 CORAM: Sheahan J KEY ISSUES: COMPULSORY ACQUISITION OF LAND :- right of body corporate to claim for injurious affection to individual units in strata scheme; market value; disturbance LEGISLATION CITED: Interpretation Act 1987
Land Acquisition (Just Terms Compensation) Act 1991
Strata Schemes (Freehold Development) Act 1973
Strata Schemes Management Act 1996
Wyong Local Environmental Plan 1991CASES CITED: Commissioner of Highways v George Eblen Pty Ltd (1975) 34 LGRA 207
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Dillon v Gosford City Council [2008] NSWLEC 186
Houghton v Immer (No.155) Pty Ltd (1997) 44 NSWLR 46
Lin v Owners Corp-Strata Plan 50276 [2004] NSWSC 88
Marshall v Director General, Department of Transport (2001) 205 CLR 603
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of New South Wales [2004] NSWLEC 612
Owners of Strata Plan 30064 v Roads and Traffic Authority [2003] NSWLEC 248
Owners of Strata Plan 30064 v Roads and Traffic Authority [2003] NSWLEC 368
Page & Anor v Sutherland Shire Council [2000] NSWLEC 125
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
Roads & Traffic Authority (NSW) v Peak [2007] NSWCA 66
York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391DATES OF HEARING: 9 February 2009 (view), 10-12 February 2009,
19 February 2009 (written submissions)
9 April 2009 (disturbance)
24 April 2009 (written submissions)
DATE OF JUDGMENT:
13 August 2009LEGAL REPRESENTATIVES: APPLICANT
Mr M Wright, Barrister
SOLLICITORS
Brennan Tipple PartnersRESPONDENT
Mr P Tomasetti SC
RESPONDENT
Clayton Utz
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
13 August 2009
JUDGMENTMatter 30742 of 2007 Owners Corporation of Strata Plan 30859 v The Roads and Traffic Authority of New South Wales
Introduction
1 His Honour: This case concerns the compulsory acquisition by the respondent under the Land Acquisition (Just Terms Compensation) Act 1991 (“JTC Act”) of a portion of land located at 53 Pacific Highway, Ourimbah, on the Central Coast of New South Wales. The acquisition was gazetted on 23 March 2007.
2 Pre-acquisition, the “parent parcel” of land was known as Lot 1, of Deposited Plan 626909 and comprised an area of 577.5m2. The respondent acquired a 7m strip off the common property’s 16.91m highway frontage of the subject land (190.5m2) – effectively the “front yard” of the “modest” six-unit strata development (SP 30859) on Lot 1 – for the purpose of widening the Pacific Highway from one lane in each direction, to two.
3 The highway improvement project involves the elevation of the roadway by approximately 900mm, establishment of a new footpath, and construction of a new drainage system.
4 Post acquisition, the “residue parcel” (387m2) has become Lot 20, Deposited Plan 1063966, and the acquired land Lot 21. The parent parcel was, and the residue parcel is, zoned 3(a) (Business Centre Zone) under the Wyong Local Environmental Plan 1991.
5 The court was assisted by expert evidence, both written and oral, from:
· Michael J Dick, Valuer for the applicant (Exhibits A1, A2, A3),
· Graham A McDonald, Valuer for the respondent (Exhibits R2, A2, A3),
· Dr Ian Joliffe, Water and Drainage Expert, ultimately engaged by both parties (Exhibits A4, A5, A6, A7),
· Graham Atkins, Acoustic and Noise Expert for the respondent (Exhibits R1, A9, A10).
The Land as at the Date of Acquisition
6 Lot 1 fronted the Pacific Highway almost directly opposite the Ourimbah train station, on the western side of the highway, between King and Station Streets. It was (and Lot 20 is now) developed with a two-storey mixed commercial/residential development comprising a total of six units, thought to have been erected in the 1980s.
7 The ground floor consists of four shop units (units 1 to 4) and the first floor of two rented two-bedroom residential units (units 5 and 6), each with balconies overlooking the Highway. It is a brick building, with a service station neighbouring it, at number 51, and a vacant lot on the other side, being number 55. (See Exhibit A8).
8 The ground floor also comprises a tiled walkway/arcade, a male and female toilet, and a switchboard room, all forming part of the common property. Units 1 and 2, along with the toilets, are located on the left of the walkway/arcade as you enter the development from the Highway, with unit 4 and the switch room, to the right. Unit 3 is behind unit 4, but is currently accessed via units 1 & 2 as the three are owned and occupied by a single business, DL Sumner and Partners, Consulting Engineers. Unit 4 has been leased to Shep’s Hair Design (“Shep’s”), a hairdressing business being operated by Ms Kim Godden, since about October 2001.
9 Ms Godden currently pays, in rent and outgoings, $123.50 per week (Exhibit A11 - $87.50 rent plus $35.92 outgoings), and whilst still continuing in paying rent she has not renewed her lease and has decided “not to attempt to negotiate any new lease until the road works have been completed” (Godden affidavit dated 5 February 2009 par 4). The lease expired in October 2007 (Exhibit R3, fol 8).
10 The walkway/arcade leads to a stairway located towards the rear of the development. At the top of those stairs, there is a laneway or minor road known as “Denny’s Lane”, 7.5m wide, leading north to the entrance of the complex, from King Street, with car parking provision. Part of the parent/residue parcel is west of the lane (99.98m2), and units 5 and 6 have single car garages, and their entrances, off it. The land on which the strata development is situated slopes down from the rear of the property towards the Highway, reflected in its design.
11 The acquired land was a flat parcel of grassed land between the Highway and the building, and included a concrete path leading from the Highway into the “arcade”. The grassed area also accommodated a roadside advertising “pylon”, comprising a white metal pole with 4 spaces on which to advertise in both directions. This pole appeared to be about 6 metres high, and Shep’s also had smaller, portable signage, which would be placed on the grass close to the Highway, to enable viewing in both directions. Shep’s also has a prominent advertisement erected on the north-facing wall of the development (see Exhibit A12; and Exhibit A13 photographs 1-3).
12 Vehicular traffic could access the land pre-acquisition from either direction by turning into King Street (the street located north of the subject land) or into Station Street (south of the subject land). As a result of the roadworks involved there will be no right turn into or out of King Street at its intersection with the highway.
13 The court had the benefit of a view of the land on the first day of hearing (9 February 2009). Construction on the Pacific Highway upgrade was, at the time of the view, well underway. Units 1, 2 and 3 were also inspected internally. The surface of the new road will now be approximately 2 metres away from the entrance to the walkway/arcade and a sandstone brick retaining wall has been installed around the entire front entrance, enclosing a small depressed courtyard area. A set of stairs in the middle allows for pedestrian access, and a ramp for disabled access has been built on the northern side. A 1.2m security fence is to be constructed on top of the sandstone wall, and an air-conditioning unit is to be relocated.
The JTC Act
14 Section 55 of the JTC Act relevantly provides:
“ In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division):
(a) the market value of the land on the date of its acquisition,
…
…
(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired .”
15 Section 59(f) of the JTC Act states:
- “ In this Act:
loss attributable to disturbance of land means any of the following:
…
(f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition.”
The applicant’s claims
16 The Class 3 application was filed 3 August 2007, and the applicant’s Points of Claim (“POC”) were filed on 28 September 2007.
17 The applicant seeks compensation for the market value of the 190.5m2 acquired, disturbance costs (including costs for a noise ameliorating glass enclosure on the first floor balconies), and “injurious affection” to the residue land.
Market Value and Disturbance
18 The valuers and the parties agreed during the valuers’ concurrent evidence, that the market value of the acquired land is $25,000.
19 On the items claimed for disturbance there is partial agreement, advised in a joint submission filed 24 April 2009, namely on legal costs of $2,879.80 and valuation costs of $4,950.00.
20 The parties also agree that the RTA should pay for the enclosure of the balconies of the residential units as a disturbance item under s 59(f), rather than as an “injurious affection” item under s 55(f), but the RTA says that cost should be $35,520 (Exhibit A10), and the applicant now claims $47,200, to include double glazing.
Injurious Affection
21 Apart from the amount to be allowed for the enclosure of balconies, the only other issue presently to be adjudicated is the injurious affection claim(s).
22 The applicant contends that carrying out the road proposal will adversely impact on the strata development, and the amenity of the units in it, by virtue of noise, loss of privacy, potential flooding of the ground floor, reduced security, reduced commercial visibility of the retail and commercial lots on the ground floor, and more complicated vehicular and pedestrian access arrangements. It purports to act as agent and trustee of the unit proprietors in claiming on their behalf for the “injurious affection” comprised and represented by these impacts. The applicant and its valuer (Mr Dick) claim that the remaining risk of flooding reduces the value of the ground floor units to zero.
23 The respondent acknowledges that there may well be such adverse impacts on the units, as well as on the common property, but asserts that the owners corporation can make under the JTC Act only such claims as that Act recognises, and only in respect of such of those claims as arise for the corporation as a whole, rather than for any or all of its unit holders, individually.
24 On 16 November 2007 the respondent filed a Notice of Motion to have par 15 of the applicant’s POC “struck out insofar as compensation is claimed under sec 55(f)” of the JTC Act. That claim was for the following “injurious affection”, on the basis of two alternative scenarios, (and omitting the balcony item):
- Alternative 1 Alternative 2
Units 1, 2 & 3 $250,000 $345,000
Unit 4 $38,500 $175,000
Unit 5 $35,000 $35,000
Unit 6 $33,250 $33,250
25 Alternative 1 assumes that the final road project design will eliminate ground floor flooding impact, and Alternative 2 that it does not, thus requiring a “total acquisition” scenario in respect of the ground floor.
26 The respondent filed Points of Defence (“POD”) on 7 December 2007, par 7 of which denied all of the entitlements claimed in POC 15.
27 The applicant filed Amended POC on 6 June 2008, in which the injurious affection claims in par 15 are particularised as follows (again omitting the balcony item):
- Alternative 1 Alternative 2
Units 1, 2 & 3 $250,000 $345,000
Unit 4 $126,500 $175,000
Unit 5 $35,000 $35,000
Unit 6 $33,250 $33,250
28 In the applicant’s final written submissions, those remaining injurious affection claims were again reformulated, as follows:
* If the court finds that the noise amelioration measures would be effective, these amounts are reduced to $20,000 and $19,000 respectivelyAlternative 1 Alternative 2
Units 1, 2 & 3 $255,000 $350,000
Unit 4 $121,500 $170,000
Unit 5 $35,000* $35,000*
Unit 6 $33,250* $33,250*
29 No amendment has been made to the respondent’s POD.
30 On a “total acquisition basis” (Alternative 2) further claims for disturbance will arise (approximately $24,000, particularised in the schedule filed on 24 April 2009), and the parties agree that such claims cannot be assessed until after judgment is given on the substantive matter.
31 The respondent’s Notice of Motion has not yet been determined, and was heard at the same time as the rest of the matter. It is appropriate to consider that threshold issue first.
The right to claim injurious affection to individual units
32 Section 33 of the Interpretation Act 1987 provides:
- “Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
33 See also Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]-[71] on the need to give effect to “harmonious” legislative goals, and to every word of each provision.
34 In Marshall v Director General, Department of Transport (2001) 205 CLR 603, at par [38], Gaudron J said:
“…The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute .”
35 The JTC Act has been held to be, and has been applied as, a comprehensive statutory scheme for the compensation of owners of land dispossessed by compulsory process.
36 Section 3(1)(b) of the Act provides that one of its objects is: “to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale”.
37 Section 37 provides that:
- “An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land.”
38 Section 4 defines “land”, “owner” and “interest in land” as follows:
- “land includes any interest in land.
owner of land means any person who has an interest in the land.
- interest in land means:
(a) a legal or equitable estate or interest in the land, or
(b) an easement, right, charge, power or privilege over, or in connection with, the land.”
39 Division 4 of Part 3 (ss 54-60) sets out how the amount of “just” compensation is to be calculated. Those sections speak often of the “person … entitled under this part”, and of “the land”. Section 55(f) speaks of “any other land of the person” adjoining the acquired land.
40 The JTC Act makes no specific provisions in respect of strata schemes.
41 The very comprehensive Strata Schemes (Freehold Development) Act 1973 (“the Strata Act”) provides, in s 5, that a “strata scheme” comprises both individual lots and common property. Section 18 makes the owners’ corporation the owner of the common property, and s 21 requires the common property to be dealt with strictly according to the relevant statutory provisions. Strata schemes are also regulated under the Strata Schemes Management Act 1996 (“the Management Act”).
42 Section 34 of the Strata Act provides:
- “ Severance of lots by resumption
For the purposes of any Act relating to the payment of compensation upon the resumption of land:
(a) where any part of a lot is resumed that part shall be deemed to be severed from every other part of that lot, whether or not that part and any such other part are contiguous, and
(b) where the resumed land or any part of the resumed land is common property, the beneficial interests of the proprietors in that common property shall, for the purposes of any claim for or the payment of compensation in respect of the resumption of those interests, be deemed to be vested in the body corporate to the exclusion of the proprietors.”
43 Sections 20 and 24 of the Strata Act provide:
- “20. Body corporate to hold common property as agent for proprietors
The estate or interest of a body corporate in common property vested in it or acquired by it shall be held by the body corporate as agent:
(a) where the same person or persons is or are the proprietor or proprietors of all of the lots the subject of the strata scheme concerned—for that proprietor or those proprietors, or
24. Dealings with lots include common property
- (1) In any dealing or caveat relating to a lot, a reference to that lot includes a reference to any estate or interest in common property which is vested in the body corporate as agent for the proprietor of that lot without express reference to the common property and without that dealing or caveat being recorded in the folio of the Register comprising the common property.
(2) The beneficial interest of a proprietor of a lot in the estate or interest in the common property, if any, held by the body corporate as agent for that proprietor shall not be capable of being severed from, or dealt with except in conjunction with, the lot.”
44 Mr Wright, counsel for the applicant, submitted that s 34 of the Strata Act does not, on a statutory construction that advances the purpose of the provision, operate to exclude any individual rights to compensation under the JTC Act; rather it operates so that a practical outcome can be achieved, with separate proprietors not having to each make separate and individual claims.
45 The applicant submitted that it would be anomalous if an entire class of affected properties were denied “just” compensation, as per the objects of s 3 of the JTC Act, due to an overly narrow interpretation of s 34 of the Strata Act.
46 The owners corporation may well act as agent of the proprietors, and may well be in some sense seen as a trustee for them. See Lin v Owners Corp-Strata Plan 50276 [2004] NSWSC 88, and the cases there discussed by Gzell J. However, individual unit holders own the constituent lots, and each has a title separate from common property. As held in Houghton v Immer (No.155) Pty Ltd (1997) 44 NSWLR 46, “common property and lots are mutually exclusive”. See also Lloyd J’s analysis in Page & Anor v Sutherland Shire Council [2000] NSWLEC 125.
47 Section 34 is quite specific. Subsection (a) deals with individual lots and subsection (b) with common property. Subsection (b) is clearly designed to simplify the process of compensating individual “beneficial interests” in common property by deeming those interests to be vested in the body corporate.
48 Mr Wright would have the court interpret that provision to deem also the lot owners’ “beneficial interests” in their own individual lots to be vested in the body corporate for the purpose of seeking compensation.
49 However, no “interest” in any “land” comprised of an individual lot in this strata scheme has been acquired, so none of that “land” (unlike the building and remaining common property on the residue land) can meet the definition of “other land” in s 55(f) of the JTC Act.
50 The words of both the Strata Act and the JTC Act are plain, clear, and unambiguous, and should be given their true meaning and effect. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, Gibbs J said (at 305):
“However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature.”
51 As Mr Tomasetti put it in submissions, Parliament “drew a line in the sand” and there will be “winners and losers”. Owners (and others) adversely affected by acquisitions made for a public purpose, and/or by the execution of such purpose, may have entitlements, but the JTC Act is quite specific as to which of them can seek their remedy through the statutory scheme, and in what circumstances. See York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391, and Dillon v Gosford City Council [2008] NSWLEC 186.
52 Circumstances relevantly similar to those of this present case arose in Owners of Strata Plan 30064 v Roads and Traffic Authority [2003] NSWLEC 248 and 368. Bignold J eventually determined compensation in the second of those judgments, but he was earlier asked to join, in the body corporate’s proceedings, three companies which leased lots in the scheme, in anticipation that the carrying out of the proposed roadworks may cause them “some loss or lack or absence of access”. The lessees sought to make their claims under s 59(f), not s 55(f).
53 His Honour was satisfied (par [5]) that they did not have, in their own right, a “compensable interest under the [JTC Act], by force of s 34 of the [Strata Act]”, despite “possessing an interest in the common property by force of ss 20 and 24” of the Strata Act.
54 His Honour noted (at [9]-[11]):
- “9. Whether their interests in claiming and pursuing compensation under the Just Terms Act is now vested in the body corporate pursuant to s 34(b) of the Strata Schemes Act and whether that interest is capable of being pursued in the present proceedings as formulated is a matter upon which there has been some debate today, and I say no more on it in view of the fact that the Senior Counsel for the lessees and the body corporate which is the moving party in today's proceedings has indicated that they would wish to claim alternative relief in the event of the joinder of the lessees failing, and that alternative relief will be in the nature of declarations to the effect that the lessees' interests in the common property compulsorily acquired, to the extent to which it gives rise to a claim for compensation under the Just Terms Act, is a claim vested in, and prosecutable by, the body corporate in the present proceedings.
10. Mr Maston on behalf of the Roads and Traffic Authority has not conceded that that is the ultimate fate of the asserted claims of the three lessees, and in those circumstances I should say nothing more about the matter, having regard to the fact that an amended claim in the Motion is anticipated.
11. The consequence of the failure of the joinder application is that it is not appropriate today, in my view, to deal with the application contained in par 4 of the Motion that the proceedings be stood over until 5 September 2003 because fundamentally that claim in the Motion is contingent upon the agitation in the proceedings of the claims asserted by the three lessees, and it now appears that the question of whether those claims, though not assertable in their own right, may be assertable by the body corporate on behalf of the lessees, must await an adjudication upon the anticipated amended claim to alternative relief.”
55 It appears that there were no further relevant applications made to this court in respect of those proposals prior to the matter, as originally constituted, coming on for hearing nearly twelve months later.
56 It is not a case of the acquiring authority being able to simply disregard the various impacts its road proposal may have on individual lots in the strata scheme. Public works will usually have impacts, favourable or deleterious, on nearby properties not involved in the pre-work acquisition programme. See Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authorityof New South Wales [2004] NSWLEC 612 per McClellan ChJ at [39]-[41].
57 However, the lot owners in this case have not had any of their property (apart from their interest in the common property, catered for under s 34) acquired, such as to give them an entitlement to claim under the JTC Act, either directly or via the corporation, compensation beyond what is properly payable to the corporation in respect of the common property.
58 I have concluded that the injurious affection claim made, and pleaded in the POC (and since amended as to constituent amounts), cannot be entertained in these proceedings.
59 The respondent’s strike-out Notice of Motion dated 16 November 2007 should be granted.
The Expert Evidence
60 The parties’ agreement on market value, and the decision I have reached on the Notice of Motion, mean that there is not much of a role for the expert evidence to play. However, there remains (1) the issue of the standard to which the glazed enclosure of the balconies should be executed, and (2) the question of the risk of flooding to the residue common property.
61 Both of the non-valuation experts (Mr Atkins on noise and Dr Joliffe on drainage/flooding) were relevantly engaged post-acquisition, and so engaged largely to assist in the disposition of the injurious affection claim.
62 However, theirs is the only evidence before the court on relevant issues within their expertise, and the respondent, regardless of the acquisition, showed at least some preparedness to deal with issues of concern to the applicant and its unit holders, even if arguing that injurious affection, as pleaded, could not be claimed successfully. See Affidavits of Christopher Dransfield sworn 5 June 2008 and 2 February 2009; Commissioner of Highways v George Eblen Pty Ltd (1975) 34 LGRA 207, Roads & Traffic Authority (NSW) v Peak [2007] NSWCA 66 at [13]-[20]; and Alan Hyam, “The Law Affecting Valuation of Land in Australia”, 3rd ed, 2004, Federation Press (at 339, and 371-7).
The balconies
63 Mr Atkins concluded that there were three options for the outer glazing of the balconies – (a) standard glass ($35,520), (b) laminated glass ($37,820), and (c) double glazing ($47,200). The RTA contends for option (a) and the applicant for option (c).
64 In a sense all three options operate as a form of double glazing, but in (a) and (b) there is the “large air gap” between the outer wall of the balcony and the windows/doors linking the internal living areas of the residential units to the balcony (see T10.2.09, pp32-40).
65 The possibility of louvred vents was also canvassed (T10.2.09, pp39-40), but no costing was provided, and no such submission was pursued.
66 The evidence did not indicate any need or justification for option (c), but the court will allow for the use of laminated glass, as per option (b) ($37,820).
The Flooding and Drainage Issue
67 The road works establish a depressed area immediately in front of the building at No.53, and the applicant expressed concern about possible flooding in storm events, as that area is the logical receptor of water from the service station, from the sloping space between the buildings, and from nearby roofs and the new ramp. Dr Joliffe recommended certain additional alleviation measures, and the RTA carried them out, on the advice of Philip Campbell of Sinclair Knight Merz (see Mr Dransfield’s evidence).
68 A major part of the injurious affection claim concerned possible flooding of the ground floor units, the floor level of which is 130-150mm above the common area internal courtyard/arcade. Whatever flooding risk remains following the alleviation measures, Dr Joliffe finds “acceptable”, including residual risk to the units as well as to that courtyard/arcade. No one can say categorically that the grate and pipe system will always perform perfectly, and never become blocked, but he opined that it is well-designed, and that one could normally rely upon the lot owners to keep the grates clear of litter (T11.2.09, p27, LL3-13).
69 Dr Joliffe testified that he “cannot say it is impossible to flood the ground fill (sic?). I believe that the risk has been reduced compared to that originally put forward, but I cannot say categorically that flooding could not occur” (T11.2.09, p24, LL5-7). In his report of 28 August 2008, he said that the risk of blockage was “minimal”. In Exhibit A6 he said “small”, and on the view he said to the court “negligible”. When tested during cross-examination, he said “not impossible” (see T11.2.09, p29, L11-p30, L16). In re-examination, this exchange occurred (T32, LL1-4):
Q. There remains a possibility does there not of litter gathering around both pits?
A. I’d like to say there’s a possibility, I think the probability of that is very unlikely, but it’s possible”.
70 I consider there is a remote possibility of minor flooding in the area of residue common property close to the drainage grates, but no claim was pressed in this regard on behalf of the applicant, and I am not convinced that it is a higher risk than existed pre-acquisition.
Conclusion
71 Agreement was reached prior to hearing on matters such as improvement of drainage design, and relocation of an air-conditioning unit (Exhibit A3, p3).
72 Agreement was reached during the hearing on the market value of the acquired land, and the need to enclose the first floor balconies.
73 There is little that can be done about the loss of opportunity for roadside advertising, formerly effective in both directions, nor about the revised traffic arrangements necessitated by the duplication of the highway and the needs of road safety. Further, I am not convinced that pedestrian access will be inferior to that which existed at the date of acquisition.
74 There have been concerns about security. Clearly there is less opportunity post the works for surveillance of the depressed area, via which access is gained to the front of the strata scheme, but the proposed security fence (Exhibit R4) should ameliorate other security concerns.
75 Given my decision on the injurious affection claims in respect of the units themselves, the orders of the court in respect of the applicant’s claim are:
1. The respondent’s Notice of Motion dated 16 November 2007 is upheld.
2. Compensation is payable to the applicant for the following:
(a) Market value $25,000.
(b) Legal and Valuation costs $7,829.80
(c) Enclosure of the balcony $37,820.
(d) Injurious affection Nil.
3. All questions of costs are reserved.
4. All the exhibits are returned.
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