JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	10–11 December 2018
DATE OF JUDGMENT:	7 February 2019
CASE MAY BE CITED AS:	Plunkett v Roads Corporation
MEDIUM NEUTRAL CITATION:	[2019] VSC 39

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VALUATION AND COMPENSATION – Amendment to Hume Planning Scheme – Imposition of Public Acquisition Overlay for Outer Metropolitan Ring/E6 Transport Corridor – Compensation for loss on sale under Pt 5, Planning and Environment Act 1987 – When applicants’ right to payment of compensation arose – Whether ‘sale of the land’ for the purposes of ss 99 and 106, Planning and Environment Act 1987 occurred upon entry into contract for the sale of land or upon completion of contract – Consideration of statutory purpose of Pt 5 – Held ‘sale of the land’ occurred upon completion of contract – Planning and Environment Act 1987 (Vic) ss 98(1), 99(b), 104, 106(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr J Gobbo QC and Mr G Peake	Rennick & Gaynor
For the Respondent	Mr S Goubran and Ms R Burd	Russell Kennedy

HER HONOUR:

Until recently, Kevin and Dorothy Plunkett were the owners of land at 120 Old Sydney Road, Mickleham. In August 2010 a Public Acquisition Overlay was introduced into the Hume Planning Scheme, reserving land to be acquired by the Roads Corporation (VicRoads) for the Outer Metropolitan Ring/E6 Transport Corridor.[1] The Public Acquisition Overlay affects part of the land at 120 Old Sydney Road.
[1]Amendment VC68 to the Victoria Planning Provisions, published in the Victorian Government Gazette on 6 August 2010.

Mr and Mrs Plunkett have a right to claim compensation from VicRoads for ‘financial loss suffered as the natural, direct and reasonable consequence’ of their land being reserved, under s 98(1)(a) of the Planning and Environment Act 1987 (Vic) (PE Act). There is a dispute about when the Plunketts’ right to payment of the compensation arose.

On 10 May 2017, Mr and Mrs Plunkett signed a contract for the sale of their land, for a purchase price of $2,705,000. In accordance with the contract of sale, the purchasers paid a deposit of $500,000. The contract of sale provided for the balance of the purchase price to be paid on settlement, which was to take place on 17 October 2017. The sale of the land was completed as agreed and by 17 October 2017 the Plunketts had received the full amount of $2,705,000. The purchasers did not become the registered proprietors of the land until 14 December 2017, when the transfer of title was recorded on the Register of Titles.

Mr and Mrs Plunkett submitted a claim for compensation under Pt 5 of the PE Act on 17 July 2017. VicRoads disputed the claim in a letter dated 11 October 2017, saying that the claim was premature because…

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.

Continue reading Plunkett v Roads Corporation

Details

AGLC: Plunkett v Roads Corporation [2019] VSC 39
Case: [2019] VSC 39
Decision Date: 7 February 2019

CaseChat Overview and Summary

In the matter of Plunkett versus Roads Corporation, the dispute centred on the compensation payable to the applicant under the Planning and Environment Act 1987 (Vic) following the imposition of a Public Acquisition Overlay on their land by the defendant, Roads Corporation. The dispute was heard by the Victorian Supreme Court. The Roads Corporation had imposed the overlay as part of an amendment to the Hume Planning Scheme to accommodate the Outer Metropolitan Ring/E6 Transport Corridor. This imposition led to the applicants seeking compensation for the loss incurred upon the sale of their property.

The legal issues that the court had to resolve were primarily concerned with the interpretation of sections 99 and 106 of the Planning and Environment Act 1987. Specifically, the court needed to determine when the applicants' right to compensation arose. The central issue was whether the right to compensation was triggered upon the entry into the contract for the sale of the land or whether it was triggered upon the completion of the sale. The applicants argued that the right to compensation arose upon the entry into the contract, whereas the Roads Corporation contended that the right arose only upon the completion of the sale.

The court considered the statutory purpose of Part 5 of the Planning and Environment Act 1987, which is to ensure fair compensation for landowners affected by planning schemes. The court concluded that the phrase "sale of the land" in sections 99 and 106 of the Act referred to the completion of the sale, rather than the entry into the contract. The reasoning was that the right to compensation should be tied to the actual transfer of ownership, as this is when the loss is realised. The court held that until the sale is completed, the owner retains the right to sell the land and the potential to mitigate any loss. The court found in favour of the Roads Corporation, determining that the applicants' right to compensation arose upon the completion of the sale.

Orders