Peak v Roads and Traffic Authority - [2006] NSWLEC 3

Land and Environment Court

of New South Wales

CITATION: Peak & Anor v Roads and Traffic Authority [2006] NSWLEC 3

PARTIES: APPLICANTS:
Donald Richard Peak
Judith Gwen Peak
RESPONDENT:
Roads and Traffic Authority

FILE NUMBER(S): 31027 of 2004

CORAM: Pain J

KEY ISSUES: Compulsory Acquisition of Land :- whether compensation payable for relocation of dwelling on residue land where noise affected by the public purpose
Words and Phrases :- meaning of "land" in s 59(c) and s 59(f)

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 s 54, s 55, s 59, s 66

CASES CITED: Besmaw Pty Limited v Sydney Water Corporation (2001) 113 LGERA 246;
Blacktown City Council v Fitzpatrick Investments Pty Limited [2001] NSWCA 259;
Fitzpatrick Investments Pty Limited v Blacktown City Council (No 2) [2000] NSWLEC 139;
Gosford Shire Council v Green (1980) 48 LGRA 201;
Johnston v Roads and Traffic Authority [2000] NSWLEC 111;
Marshall v Director-General of the Department of Transport (2001) 205 CLR 603;
McBaron & Ors v Roads and Traffic Authority (1995) 87 LGERA 238;
Peter Croke Holdings Pty Limited & Ors v Roads and Traffic Authority (1998) 101 LGERA 30;
Richardson v Roads and Traffic Authority (1996) 90 LGERA 294;
Roads and Traffic Authority v Muir Properties Pty Limited [2005] NSWCA 460

DATES OF HEARING: 07/11/2005
08/11/2005
09/11/2005
10/11/2005
11/11/2005

DATE OF JUDGMENT:
01/12/2006

LEGAL REPRESENTATIVES: APPLICANTS:
Mr J Webster SC
SOLICITORS:
Stacks
RESPONDENT:
Mr P Tomasetti (barrister)
SOLICITORS:
Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

12 January 2006

31027 of 2004 Donald Richard Peak and Judith Gwen Peak v Roads and Traffic Authority
JUDGMENT

1 Her Honour: These are Class 3 proceedings brought by the Applicants appealing against the offer of compensation by the Roads and Traffic Authority (“the RTA”) for acquisition of land owned by the Applicants. The RTA acquired the land on 30 April 2004 (“the date of acquisition”). The Applicants have appealed to this Court under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (“the Just Terms Act”).

Background

2 The Applicants are the registered proprietors of a property known as 14112 Pacific Highway, Nabiac. By compulsory acquisition, the RTA acquired part of the Applicants’ property being Lots 13 and 14 in DP 106465 (“the acquired land”) for the purposes of works to be undertaken on the Pacific Highway. The acquired land has a total area of 4.005ha. The residue land being Lot 11 DP 1060465 has an approximate area of 14.59ha (“the residue land”). The Valuer-General determined compensation payable to the Applicants for the acquired land plus disturbance to be an amount of $429,564. The compensation ultimately claimed by the Applicants in final submissions was $617,918.50.

3 The Applicants’ property is a rural parcel of land located on the eastern side of the Pacific Highway, south of Nabiac. Part of the property lies on the western side of the highway with access under the existing highway bridge into…

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.

Keep reading for free

Create a free CaseChat account to read Peak v Roads and Traffic Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWLEC 3
Decision Date: 01/12/2006

CaseChat Overview and Summary

The applicants, Donald Richard Peak and Judith Gwen Peak, sought compensation from the Roads and Traffic Authority (RTA) for the compulsory acquisition of part of their property in Nabiac. The applicants appealed to the Land and Environment Court of New South Wales under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991. The Court was required to determine the amount of compensation payable to the applicants in relation to the acquisition of part of their land, improvements on the land, and any disturbance caused by the acquisition. The Court had to interpret the meaning of "land" in s 59(f) and "actual use" of land in s 59(f) of the Just Terms Act, and whether the applicants were entitled to compensation for the costs of relocating their dwelling on the residue land.

The Court held that the applicants were not entitled to compensation for the costs of relocating their dwelling on the residue land under s 59(f) of the Just Terms Act. The Court found that the term "land" in s 59(f) referred to the acquired land, and the "actual use" of land referred to the use of the acquired land prior to acquisition. The Court also held that the applicants were not entitled to compensation for the costs of relocating their dwelling on the residue land under s 59(c) of the Just Terms Act because the financial costs reasonably incurred in connection with relocation under s 59(c) referred to relocation from the acquired land. The Court found that the applicants' case as claimed was misconceived in relation to s 59(c). The Court held that the applicants were entitled to compensation for the replacement of the bails/dairy show complex in the amount of $64,000 as an item of disturbance under s 59(f), and for the new access road up to the existing house in the amount of $2,000. The Court determined that the total compensation payable to the applicants was $499,940, subject to the final assessment of legal costs and valuation costs.

Orders