Polegato v Griffith City Council - [1988] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION: Polegato & Anor v. Griffith City Council [1988] NSWLEC 162

PARTIES:
APPLICANTS
Giuseppe Polegato and Margaret Rose Polegato
RESPONDENT
Griffith City Council

FILE NUMBER(S): 30363 of 1981

CORAM: Stein J

KEY ISSUES: :-

LEGISLATION CITED: Local Government Act, (incorporating section 124 of the Public Works Act)
Public Works Act

CASES CITED: Supreme Court of New Zealand in Russell v. The Minister of Lands;
Stebbing v. Metropolitan Board of Works;
Russell v. The Minister of Lands ;
Moreton Club v. The Commonwealth ((1948);
Spencer v. The Commonwealth ((l907);
Wilson and the State Electricity Commission of Victoria (1921) ;
Pastoral Finance Association v. The Minister ((1914);
Commonwealth v. Reeve ((1948) ;
Kennedy Street Pty. Ltd. v. The Minister ((l963);
Chapman v. The Minister ((1966) ;
Arkaba Holdings Ltd. v. Commissioner of Highways (1969);
Commissioner of Highways v. Tynan ((1982);
Turner v. Minister of Public Instruction (1956);
Haddad v. The Minister (Unreported 27 July 1987);
Dangerfield v. Town of St. Peters (1972) ;
Bronzel v. State Planning Authority (1979);
Latimer v. North Coast National Agricultural Industrial Society (1938);
Baringa v. Manly Municipal Council (1965) ;
Castle Hill Brick Tile & Pottery Works v. Baulkham Hills Shire Council (1961)

DATES OF HEARING:

DATE OF JUDGMENT:
03/10/1988

LEGAL REPRESENTATIVES:
APPLICANT
Mr. Milne
RESPONDENT
Mr. Giles

JUDGMENT:

HIS HONOUR: This is a claim for compensation by Giuseppe Polegato and his wife Margaret Rose Polegato by virtue of section 536C of the Local Government Act, (incorporating section 124 of the Public Works Act), following the resumption of their land described as allotment 8, section 6, No. 4 Yambil Street, Griffith. The resumption was notified in the Government Gazette on 24 October 1980.

The principal disputes between the parties relate to the applicants' claim for special value and/or disturbance as well as a claim for consequential losses. There is a relatively small discrepancy between the respective valuers for the parties on the issue of the market value of the land.

Because of the manner in which the applicants present their claim for special value and disturbance it is necessary to relate the facts in some detail.

By contract dated 25 February l976 the applicants agreed to purchase the subject land for $24,000. The land was vacant apart from 2 old sheds. The land has a frontage to Yambil Street of l8.29m and a depth to Banna Lane of 60.96m. The area of the land is lll3m2. The settlement of the purchase was effected on 24 April 1976. The intention of the applicants was to construct shops and residential flats on the land. The applicants had previous experience with similar developments in the Griffith township. On 4 May 1976 the Council granted development approval to the applicants for the erection of 2 shops and 18 residential flats on the land and on 6 July 1976 a building permit was issued. However, following discussions with a Council officer, amended building plans were lodged which reduced the number of flats by two…

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.

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Details

Case: [1988] NSWLEC 162
Decision Date: 03/10/1988

CaseChat Overview and Summary

The case of Polegato v Griffith City Council involved a claim for compensation by the applicants, Giuseppe and Margaret Polegato, for the resumption of their land by the Griffith City Council. The principal disputes related to the applicants' claims for special value and/or disturbance as well as a claim for consequential losses. The key legal issues were whether the Council's conduct in delaying the resumption process constituted a compensable disturbance, and if so, the appropriate amount of compensation. The Land and Environment Court, presided over by Stein J, held that the Council's actions did amount to a compensable disturbance, as they had effectively frozen the applicants' development project. The Court found that the applicants were entitled to be compensated for the disturbance caused by the resumption process, which included the loss of opportunity to complete their project due to changes in Council's development requirements and increased building costs. The Court assessed the compensation for disturbance at $100,000, in addition to the agreed special value of $4,400, and awarded a total compensation of $219,550. The Court reserved all questions of costs.

Orders