Pastrello v Roads and Traffic Authority of New South Wales
[2000] NSWLEC 209
•09/28/2000
Land and Environment Court
of New South Wales
CITATION: Pastrello v Roads and Traffic Authority of New South Wales [2000] NSWLEC 209 PARTIES: APPLICANTS:
RESPONDENT:
Lorenzo Antonio Pastrello and Carla Liliana Pastrello
The Roads and Traffic Authority of New South WalesFILE NUMBER(S): 30005 of 1999 CORAM: Talbot J KEY ISSUES: Compensation :- no special order for costs where applicants recover compensation for market value of land not otherwise recoverable notwithstanding rejection of major argument
Costs :- no apportionment where applicants partially successful in claim for compensation for market value of resumed land not recoverable other than by resort to litigationLEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 CASES CITED: Maloney v Cowra Shire Council [2000] NSWLEC 107;
Nevitoro Investments Pty Ltd v Hawkesbury Shire Council [2000] NSWLEC 151;
Rukavina and Robertson v Wagga Wagga City Council (1993) 80 LGERA 8DATES OF HEARING: 12/09/2000 DATE OF JUDGMENT:
09/28/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANTS:
Mr J J Webster (Barrister)
SOLICITORS:
Levy Peatman
Mr J B Maston (Barrister)
SOLICITORS:
Crown Solicitor's Office
JUDGMENT:
IN THE LAND AND Matter No. 30005 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 September, 2000
Respondent
1. Following judgment in this matter on 3 August 2000 when the Court determined the amount of compensation payable to the applicants following compulsory acquisition of part of their land at Eagle Hawk Hill near Sutton, adjacent to the border between New South Wales and the Australian Capital Territory, the applicants seek an order that the respondent pay their costs of the proceedings. In response, the respondent says that each party should pay their own costs or alternatively, the respondent should be ordered to pay only one eighth of the applicants’ costs.
2. Like most compensation cases the historical background to the proceedings shows that various issues existed between the parties from time to time. Many of these were resolved by negotiation, either by agreement on the amount of compensation to be paid, or the respondent undertaking certain works on the applicants’ land.
3. Although the land was not acquired until 4 September 1998 the RTA made an offer to purchase the land subsequently resumed in a letter dated 30 June 1998.
4. The RTA offer to purchase the land was for a consideration of $230,000, made up of $53,400 for land value and $176,253 recognising the applicants’ costs and expenses and the value of work which the RTA would carry out without cost to the vendor. The offer was not accepted by the applicants.
5. The negotiations which took place in the middle of 1998 are important because at that time the RTA based its assessment of the value of the land taken on a valuation undertaken on its behalf by McCann and Associates in the sum of $53,400.
6. The Court assessed the market value of the land acquired as at the date of resumption as being $53,400, relying primarily on the McCann valuation.
7. By the time the matter came on for hearing both parties had altered their position in relation to the market value of the land acquired. The applicants mounted a claim for $950,000 whereas the respondent asserted that the part of the property acquired had no market value and that there was no decrease in the value of the remaining land.
8. The resolution of the major difference between the parties at the hearing depended upon whether the Court accepted the applicants’ argument, supported by expert opinion, that the roadworks detrimentally affected the conduct of the applicants’ business, particularly a service station, and further constrained or precluded the potential use of the land for other commercial purposes.
9. In one sense the applicants were totally unsuccessful on one aspect of this issue because the Court rejected the evidence of their expert witnesses and preferred the opinion of the respondent’s experts who contended there would be no impact upon the viability of the existing business.
10. Nevertheless, it must be noted immediately that the applicants would not have been successful in recovering $53,400, representing the market value of the land if they had not persisted with the referral to the Court.
11. Furthermore, the applicants were successful in recovering disturbance items totalling $131,135.50 over and above those items in respect of which agreement had been reached either before the commencement of the proceedings or during the course of the proceedings.
12. It would be a complex, time consuming and messy exercise to differentiate between the success of the parties on the issues related to compensation for disturbance. It is quite apparent to me that the applicants would have foregone a significant amount of compensation to which I held they were entitled as disturbance items if they had not litigated the claims. I see no reason to apportion the costs in respect of the disturbance claim.
13. The argument relating to the impact of the roadworks on the existing business was one upon which expert opinions can differ. Unfortunately for the applicants the Court decided that the opinion of the respondent’s witnesses was more acceptable than the opinion expressed by the applicants’ witnesses. The issue was resolved as an evidentiary issue based upon expert opinions. The criteria adopted by the respective experts was not significantly different, but the application of it to the subject site was where the respondent ultimately succeeded.
14. For the respondent to now turn around and say that the applicants should not have any order for costs in relation to the market value issue on the basis that they could have accepted the pre-acquisition offer is fatuous in circumstances where the offer was not maintained after acquisition and never raised by the respondent as a basis for compensation during the course of the hearing.
15. The issue of the value of the land taken and the effect on adjoining land was clearly one upon which the parties differed. In the result, the applicants were successful in recovering compensation under this heading which they would not have otherwise recovered. The Court’s task is to assess the amount of compensation payable in a lump sum.
16. There have been instances where the Court has been prepared to make a special order as to costs in the exercise of its discretion (See Rukavina and Robertson v Wagga Wagga City Council (1993) 80 LGERA 8 at 9; Maloney v Cowra Shire Council [2000] NSWLEC 107 and Nevitoro Investments Pty Ltd v Hawkesbury City Council [2000] NSWLEC 151). Although in Rukavina the Chief Judge was prepared to look behind the success of the applicant in three respects which had an impact on the value of the land, in Maloney and Nevitoro there was a clearly defined and separate issue upon which the applicants had totally failed. This is not such a case.
17. It has been said many times that the compulsory acquisition of land from an unwilling owner is a serious interference with that persons entitlement to quiet enjoyment and generally wide discretion to do with their own land as they see fit. It is a power of the state which is exercised for the public benefit. Very seldom does the resumption work to the benefit of the dispossessed owner. There needs to be a strong justification for awarding costs against an applicant where the effect of making that order is to erode the benefit of the just compensation recovered as a consequence of the Court’s determination. It is only in special cases that the Court will deprive the owner of the full benefit of the compensation which is determined as fair and just in the circumstances of the case.
18. An order for costs against the interests of the applicants in this case would clearly have a significant impact on the ultimate amount to be recovered by the applicants.
19. I agree with Mr Webster that the applicants were entitled to investigate the impact that the acquisition had on the market value of the land and to put forward cogent arguments for compensation. The arguments presented by the applicants’ experts and by the applicants themselves were not frivolous and fell within the contemplation of the relevant legislation.
20. This is not a case where there should be a special order for costs.
21. The Court makes the following orders:-Orders
2. The exhibits may be returned.1. The respondent is ordered to pay the applicants’ costs of the proceedings including this application.
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