Roads Corporation v Love - [2013] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
valuation, compensation & planning list

No. 10146 of 2005

ROADS CORPORATION	Plaintiff
v
THOMAS JAMES LOVE	Defendant

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JUDGE:	McMILLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26, 30, 31 July and 2 August 2012
DATE OF JUDGMENT:	17 May 2013
CASE MAY BE CITED AS:	Roads Corporation v Love
MEDIUM NEUTRAL CITATION:	[2013] VSC 176

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LAND VALUATION AND COMPENSATION – Defendant’s land compulsorily acquired – Defendant claimed compensation for loss of land and loss of value to the unacquired land – Claimed loss of market value and severance, disturbance loss and solatium – Whether the hypothetical purchaser of the land at the relevant date would expect that an overpass at O’Herns Road was to be constructed – The extent of any access difficulties to the unacquired land – Whether the Modified Burnley Method of Amenity Tree Evaluation is an appropriate valuation method in the circumstances of this case – Disturbance loss claims not based on pecuniary loss – Appropriate allowance for solatium – Land Acquisition and Compensation Act 1986 ss 41, 43, 44.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Delany SC and Mr S. Goubran	Garland Hawthorn Brahe
For the Defendant	In person

HER HONOUR:

Introduction

Mr Thomas James Love is the owner of land in Epping, in the State of Victoria, part of which has been subject to three compulsory acquisitions by the Roads Corporation. In respect of the three acquisitions, he is entitled to compensation.

The amounts of compensation payable for the first and second compulsory acquisitions were disputed and both were the subject of separate proceedings in the Supreme Court.[1]
[1]See below [7] and [8].

This proceeding concerns the amount of compensation payable to Mr Love for the third compulsory acquisition. This land was acquired by the Roads Corporation on 27 November 2003 and the acquisition was referred to this Court as a ‘disputed claim’ under s 80 of the Land Acquisition and Compensation Act 1986 (‘the Act’).[2]
[2]Notice of Acquisition, Victorian Government Gazette dated 27 November 2003, 48.

Mr Love claims that he is entitled to compensation of $3 667 190, whereas the Roads Corporation says he is entitled to $422 115.52.[3]
[3]Note: In his particulars of claim dated 1 August 2012, Mr Love states that his total claim is $3 673 305, however, when each individual item claimed is added together, the total claim arrived at is $3 667 190. See below [13].

All heads of Mr Love’s claim for compensation are contested by the Roads Corporation, apart from a claim for professional expenses of $6115.52.

Factual Background

In the last two decades, Epping has emerged as a major growth area for employment and residential development. The three compulsory acquisitions of Mr Love’s land in Epping have been a by-product of this growth.

The Acquisitions

The Roads Corporation first acquired land owned by Mr Love on 15 November 2001. This land was located at 410…

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: [2013] VSC 176
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of Roads Corporation v Love involves the compulsory acquisition of the defendant's land. The defendant sought compensation for the loss of land and diminution in value of the remaining land. The claim included loss of market value, severance, disturbance loss, and solatium. The primary issue was whether a hypothetical purchaser would expect an overpass at O'Herns Road to be constructed, the extent of any access difficulties to the unacquired land, the suitability of the Modified Burnley Method of Amenity Tree Evaluation for the valuation, and the appropriateness of the solatium claim.

The court considered whether the hypothetical purchaser would expect the overpass to be constructed. This involved examining evidence related to the planning and construction of the overpass and its implications for the land's value. The court also assessed the extent of any access difficulties to the unacquired land, taking into account the impact of the compulsory acquisition on the defendant's ability to access and use the remaining land. Additionally, the court evaluated the appropriateness of the Modified Burnley Method of Amenity Tree Evaluation for the circumstances of this case, considering factors such as the type and number of trees, their location, and their impact on the land's value. Finally, the court considered the solatium claim, determining whether an appropriate allowance for solatium should be made.

The court concluded that the hypothetical purchaser would not expect the overpass to be constructed, given the evidence presented. It found that there were limited access difficulties to the unacquired land. The court deemed the Modified Burnley Method of Amenity Tree Evaluation appropriate for the circumstances and made an appropriate allowance for solatium. Based on these findings, the court determined the appropriate compensation for the defendant.

Orders