Reported Decision: 175 LGERA 276
New South Wales
Court of Appeal
CITATION: Roads & Traffic Authority of NSW v McDonald [2010] NSWCA 236 HEARING DATE(S): 23 June 2010
JUDGMENT DATE:
15 September 2010JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Macfarlan JA at 146 DECISION: (a) Appeal dismissed;
(b) Cross-appeal allowed;
(c) Set aside the assessment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 in the sum of $781,669 made by Biscoe J on 8 July 2009 and in lieu thereof substitute compensation in the amount of $844,241;
(d) The appellant to pay the respondent’s costs of the appeal and the cross-appeal.CATCHWORDS: ENVIRONMENT AND PLANNING – acquisition of land – compensation – valuation – loss attributable to disturbance – whether disputed costs would necessarily have been incurred in realising subdivision potential of acquired land – whether disputed costs involve double-dipping – whether unreasonable to allow costs attributable to payment of rent LEGISLATION CITED: Hastings Local Environmental Plan 2001
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979CATEGORY: Principal judgment CASES CITED: AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; (2008) 163 LGERA 245
Commonwealth v Milledge (1953) 90 CLR 157
Gosford Shire Council v Green (1980) 48 LGERA 201
Horn v Sunderland Corporation [1941] 2 KB 26
Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45
McDonald v Roads & Traffic Authority of New South Wales [2009] NSWLEC 105
Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
Peter Croke Holdings Pty Ltd v Roads & Traffic Authority of New South Wales (1998) 101 LGERA 30
Roads & Traffic Authority of New South Wales v Collex Pty Ltd [2009] NSWCA 101; (2009) 165 LGERA 419
Roads & Traffic Authority of New South Wales v Muir Properties Pty Ltd [2005] NSWCA 460; (2005) 143 LGERA 192
Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66
Serbian Cultural Club Inc & Serbian Cultural Club Limited v Roads & Traffic Authority of New South Wales [2007] NSWLEC 673
Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298PARTIES: Roads & Traffic Authority of New South Wales
Karen Denise McDonaldFILE NUMBER(S): CA 2009/40372 COUNSEL: A: P Tomasetti SC / S Nash
R: J J Webster SC / M Seymour / M McMahon (Ms)SOLICITORS: A: Henry Davis York, Sydney
R: Barraclough Jones & Associates, TuncurryLOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): L&E 2008/30033 LOWER COURT JUDICIAL OFFICER: Biscoe J LOWER COURT DATE OF DECISION: 8/7/09 LOWER COURT MEDIUM NEUTRAL CITATION: McDonald v Roads & Traffic Authority of NSW [2009][ NSWLEC 105
CA 2009/298527
L&E 2008/30033Wednesday 15 September 2010GILES JA
TOBIAS JA
MACFARLAN JA
ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES
v KAREN DENISE McDONALD
Judgment
1 GILES JA: I agree with Tobias JA.
: On 31 August…
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Details
- Case
- [2010] NSWCA 236
- Decision Date
CaseChat Overview and Summary
Roads and Traffic Authority (NSW) v McDonald concerned a dispute over compensation payable to the respondent landowner following the compulsory acquisition of land by the appellant. The primary issue before the court was the assessment of compensation under the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW), specifically concerning the landowner's claim for losses attributable to disturbance.
The Court of Appeal of New South Wales was required to determine whether certain costs claimed by the respondent as part of the disturbance loss were costs that would necessarily have been incurred in realising the subdivision potential of the acquired land. A further question was whether allowing these costs would result in "double-dipping" and whether it was unreasonable to allow costs attributable to the payment of rent.
The court reasoned that the compensation awarded should reflect the actual loss suffered by the landowner. It applied principles of statutory interpretation to the *Land Acquisition (Just Terms Compensation) Act 1991*, focusing on the meaning of "loss attributable to disturbance." The court found that some of the disputed costs were indeed necessarily incurred in realising the land's potential, while others were not. The court also considered the concept of "double-dipping" to ensure that the landowner was not compensated twice for the same loss.
Ultimately, the appeal by the Roads and Traffic Authority was dismissed, and the cross-appeal by the landowner was allowed. The assessment of compensation made by Biscoe J was set aside and substituted with a higher amount. The appellant was ordered to pay the respondent's costs of both the appeal and the cross-appeal.
The Court of Appeal of New South Wales was required to determine whether certain costs claimed by the respondent as part of the disturbance loss were costs that would necessarily have been incurred in realising the subdivision potential of the acquired land. A further question was whether allowing these costs would result in "double-dipping" and whether it was unreasonable to allow costs attributable to the payment of rent.
The court reasoned that the compensation awarded should reflect the actual loss suffered by the landowner. It applied principles of statutory interpretation to the *Land Acquisition (Just Terms Compensation) Act 1991*, focusing on the meaning of "loss attributable to disturbance." The court found that some of the disputed costs were indeed necessarily incurred in realising the land's potential, while others were not. The court also considered the concept of "double-dipping" to ensure that the landowner was not compensated twice for the same loss.
Ultimately, the appeal by the Roads and Traffic Authority was dismissed, and the cross-appeal by the landowner was allowed. The assessment of compensation made by Biscoe J was set aside and substituted with a higher amount. The appellant was ordered to pay the respondent's costs of both the appeal and the cross-appeal.
Orders
Orders of the court
(a) Appeal dismissed;
(b) Cross-appeal allowed;
(c) Set aside the assessment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 in the sum of $781,669 made by Biscoe J on 8 July 2009 and in lieu thereof substitute compensation in the amount of $844,241;
(d) The appellant to pay the respondent’s costs of the appeal and the cross-appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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