Roads Corporation v Love
[2010] VSC 537
•26 NOVEMBER 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
No. 6693 of 2004
| ROADS CORPORATION | Applicant |
| v | |
| THOMAS JAMES LOVE | Respondent |
---
JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 10-13, 17-20, 26-27, 31 MAY; 1-3, 7-10- 15-17, 21-24 JUNE; 2-5, 9-12, 16, 30, 31 JULY 2010 | |
DATE OF ORDER: | 26 NOVEMBER 2010 | |
DATE OF JUDGMENT: | 26 NOVEMBER 2010 | |
CASE MAY BE CITED AS: | ROADS CORPORATION v LOVE | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 537 | |
---
Land Valuation And Compensation – Compulsory acquisition of part of land used for agricultural purposes – Highest and best use of the land – Claim for loss of future quarry and landfill – Prospect of grant of planning permit for a quarry beyond that recommended by a permit planning panel – No realistic prospect of grant of planning permit beyond that recommended by permit planning panel – No realistic prospect of future landfill use – Point Gourde principle considered - Market value to reflect future industrial use of the land – Discounted cash flow method - Capitalisation of earnings method - Hypothetical quarry development calculations rejected – Capitalisation of earnings method - Respondent’s claims for time rejected – Agricultural infrastructure replacements and motor vehicle claims accepted in part – Injurious affect claim allowed – Solatium – Land Acquisition and Compensation Act 1986, ss 40, 41, 43, and 44 – Valuation of Land Act 1960, s 5A.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Delany SC Mr D J Batt Mr PF Chiappi | Garland Hawthorn Brahe |
| For the Respondent | Mr Love appeared in person |
TABLE OF CONTENTS
INTRODUCTION................................................................................................................................ 1
The Principal Issue........................................................................................................................... 2
Mr Love’s Other Claims................................................................................................................... 4
The Compensation Claim and the Corporation’s Offers................................................................. 5
The Course of the Proceedings........................................................................................................ 7
Notional Planning Permit.............................................................................................................. 10
The Craigieburn Bypass................................................................................................................. 11
Mr Love’s Land.............................................................................................................................. 14
Lease of the WA149 Land to Conundrum..................................................................................... 19
Other Quarrying Adjacent to Mr Love’s Land.............................................................................. 19
Zoning............................................................................................................................................ 20
The October 1997 Permit Application........................................................................................... 20
The Quarry Permit Panel............................................................................................................... 22
Use of Mr Love’s Land After the Acquisition............................................................................... 23
The Acquired Land and the Effect of the Acquisition on the WA658 Land................................. 24
The Effect of the Acquisition on Clonard...................................................................................... 24
CHRONOLOGY OF KEY EVENTS................................................................................................... 25
LEGAL CONCEPTS............................................................................................................................ 26
Statutory Framework – General Principles.................................................................................. 26
Caselaw Framework – General Principles..................................................................................... 28
Market Value................................................................................................................................. 28
Full Relevant Knowledge of Purchaser......................................................................................... 30
Part of Land Acquired – “Before and After” Analysis.................................................................. 30
Highest and Best Use..................................................................................................................... 31
Potential Use and Avoidance of “Double Counting”.................................................................... 37
Matters to be Disregarded............................................................................................................. 37
Point Gourde Principle.................................................................................................................... 39
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority................................................... 43
Construction of Section 43(1)(a)..................................................................................................... 45
Discounted Cash Flow Analysis.................................................................................................... 50
Capitalisation of Earnings Method................................................................................................ 57
Loss Attributable to Disturbance................................................................................................... 58
Solatium......................................................................................................................................... 60
Valuation Methodology................................................................................................................. 62
Valuation Evidence........................................................................................................................ 68
PLANNING PERMIT AND WORKS APPROVAL ISSUES............................................................ 70
Requirement for a Permit and Work Authority for a Quarry and Landfill.................................. 71
Application for a Planning Permit................................................................................................. 72
MR NATOLI’S WORK PLAN............................................................................................................ 74
ASSESSMENT OF PLANNING PROSPECTS FOR QUARRYING ON THE WA658 LAND....... 77
Mr Love’s Contention as to Assumed Facts.................................................................................. 78
Whether the Quarry Permit Panel’s Limitations “Arose from” the Craigieburn Bypass
Proposal?........................................................................................................................................ 80
Planning Instruments Before the Planning Permit Panel.............................................................. 80
The “Epping Bulge” Position Statement (1995)............................................................................. 80
The Cooper Street Precinct Strategy (October 1996)..................................................................... 81
Amendment L143 Planning Panel Report (1 October 1997).......................................................... 86
Reasoning of the Quarry Permit Panel.......................................................................................... 89
Amendment C12 Planning Panel Report for Epping North (October 2001)................................. 92
Prospects of Obtaining a Full Planning Permit in the Future....................................................... 94
Status of a Planning Permit Panel’s Recommendations................................................................ 94
Mr Maclellan’s Evidence................................................................................................................ 95
The Quarry Permit Panel’s Process............................................................................................. 101
The Substance of the Quarry Permit Panel’s Report................................................................... 101
The Position Taken by the Council in Submissions to the Quarry Permit Panel........................ 102
The New Format Planning Scheme for Whittlesea (the MSS and SPPF).................................... 102
The State Planning Policy Framework (“SPPF”)......................................................................... 104
The Local Planning Policy Framework (“LPPF”)........................................................................ 106
Mr Borelli’s Evidence as to Extraction......................................................................................... 108
Mr Kraan’s Evidence.................................................................................................................... 113
Mr Milner’s Evidence................................................................................................................... 121
PROSPECT IN THE “BEFORE SITUATION” OF A QUARRY OPERATION BEYOND THE SCOPE OF THE QUARRY PANEL REPORT..................................................................................................... 127
Net Community Benefit and Sustainable Development............................................................. 130
THE PROSPECT OF CONDUCTING AN EXTRACTIVE INDUSTRY IN THE “AFTER” SITUATION............................................................................................................................................................ 130
USE OF THE WA658 LAND AS A LANDFILL............................................................................... 131
Regional Waste Management...................................................................................................... 131
EPA Policy for Landfills.............................................................................................................. 132
Whittlesea Planning Scheme – State Section............................................................................... 134
Northern Waste Management Plan (May 1997).......................................................................... 134
Evidence of Mr Borelli as to Landfill.......................................................................................... 136
Evidence of Mr Kraan as to Landfill........................................................................................... 138
Evidence of Mr Milner as to Landfill......................................................................................... 140
Evidence of Mr Parker as to Landfill.......................................................................................... 143
Assessment of Prospects for Obtaining Planning Approval for a Landfill................................. 148
Evidence of Mr Herdman............................................................................................................ 149
Mr Herdman’s Methodology..................................................................................................... 152
Assessment of Mr Herdman’s Valuation Inputs......................................................................... 158
Assessment of Mr Herdman’s Evidence as to Production Capacity.............................................. 158
Assessment of Mr Herdman’s Evidence in the Light of Mr Kerr’s Evidence as to Sale
Price and Production Cost........................................................................................................ 160Mr Kerr’s Costs of Production.................................................................................................. 162
Mr Kerr’s Offers to Purchase.................................................................................................... 164
Mr Herdman’s $13 per Tonne Average Selling Price.................................................................. 164
Mr Herdman’s $7 per Tonne Cost of Production Price............................................................... 167
Mr Herdman’s Capitalisation Rate............................................................................................ 168
Mr Herdman’s Rate Compared with Mr Meredith’s................................................................... 170
THE HIGHEST AND BEST USE OF MR LOVE’S LAND............................................................. 173
The Evidence of Mr Brown.......................................................................................................... 174
The Evidence of Mr Dudakov...................................................................................................... 179
Conclusion as to Sales Evidence.................................................................................................. 184
Other Witnesses........................................................................................................................... 187
Geology.................................................................................................................................... 188
Hydrogeology........................................................................................................................... 193
Loss of the Clonard Homestead.................................................................................................. 197
The Corporation’s Submissions................................................................................................... 199
Time Claims................................................................................................................................. 202
Agricultural Infrastructure Replacements................................................................................... 203
Motor Vehicle Claims.................................................................................................................. 207
Injurious Affect on 410 Cooper Street.......................................................................................... 208
Solatium....................................................................................................................................... 209
CONCLUSION AND ORDERS....................................................................................................... 214
ANNEXURE A...................................................................................................................................... 1
Geology Witnesses................................................................................................................................ 1
George Arthur McLellan.................................................................................................................. 1
Graeme Frederick Newman............................................................................................................. 2
Christopher Martinson Gray........................................................................................................... 2
Hydrogeology Witnesses...................................................................................................................... 2
William John Roger Blake................................................................................................................ 2
John Leonard.................................................................................................................................... 3
John Stephen Hancock..................................................................................................................... 4
Blasting and Quarrying Witnesses...................................................................................................... 5
Adrian John Moore.......................................................................................................................... 5
Peter Alessandro Barro.................................................................................................................... 6
Nick Elith......................................................................................................................................... 6
Michael Phillip Ellsmore.................................................................................................................. 7
Michael Maraspin............................................................................................................................ 7
Landfill Witnesses................................................................................................................................ 8
Mark Richard Liemant..................................................................................................................... 8
Costs, Capex and Infrastructure Witnesses......................................................................................... 9
Graeme Lewis Martin...................................................................................................................... 9
Darrell Leigh Mitvalsky................................................................................................................... 9
Adolf Herman Tschappeller.......................................................................................................... 10
Mukesh Kumar Bhatia................................................................................................................... 11
Colin Robert Mason....................................................................................................................... 11
Kate Partenio.................................................................................................................................. 12
Elizabeth Hamila........................................................................................................................... 12
ANNEXURE B..................................................................................................................................... 14
Chronology of Key Events.................................................................................................................. 14
HIS HONOUR:
INTRODUCTION
Volcanic eruptions have shaped the landscape of Victoria throughout its geological history.[1] The Tertiary period began about 65 million years ago with the demise of the non-avian dinosaurs and was followed by the Quaternary period which commenced about 1.8 million years ago.[2] During the late Tertiary and early Quaternary periods, a great amount of violent volcanic activity took place in the State. It was not the place to be. Eruptions surfaced continuously or at intervals from Seymour in central Victoria to the coast west of Portland belching molten lava, cinders, steam, and gases over thousands of kilometres. In the Quaternary period alone, some 15,000 square kilometres were covered with lava.[3] In hundreds of spectacular primordial events, large sheets of this lava flowed freely over earlier flows. Some of it settled in the vicinity of an area north of Melbourne, now known as Epping, where it solidified to form a range of volcanic rocks, including what has become the stone resource now valuable to humankind known as basalt.
[1]“Volcanoes in Victoria”, Dr William D. Birch, Royal Society of Victoria, 1994, Senior Curator of Minerology and Petrology at Museum Victoria.
[2]2009 Geologic Time Scale of the International Commission on Stratigraphy.
[3]“Introducing Victorian Geology”, ed. GW Cochrane, GW Quick and D Spencer-Jones, Geological Society of Australia (Victorian Division), 1991, Chap. 4, p. 164.
Two such lava flows provide the genesis of these proceedings: an earlier flow, the “lower flow” and a later flow, the “upper flow”. They range in age from the late Pliocene epoch (or the Piacenzian age, which spanned a period 3.6-2.588 million years ago) to the mid Pleistocene epoch (which occurred between 0.781-0.126 million years ago).
Moving forward. On 11 February 2002 (the “acquisition date” or the “relevant date”), by notice published in the Government Gazette, the Applicant (“the Corporation”) compulsorily acquired part of the land of the Respondent, Mr Love (“Mr Love”), comprising 25.62 hectares of land at 410 Cooper Street, Epping (“the acquired land”). Mr Love was the sole registered proprietor of the acquired land, which, at the time of the acquisition, he used for cattle grazing. The land holding had been in his family for decades, since 1915, and Mr Love understandably has a great attachment to it.
The acquisition was undertaken in the exercise of statutory power pursuant to Part 2 of the Land Acquisition and Compensation Act1986 (“the LAC Act”). The land was compulsorily acquired for the purposes of the “Craigieburn Bypass” (the “Craigieburn Bypass” or the “Bypass”).
The Principal Issue
Mr Love claims $30,420,000.00 by way of compensation for loss of market value of his land. The Corporation says that compensation for loss of market value should be in the sum of $2.5 million.
What is the explanation for this massive gulf? The answer lies in the vastly different positions taken by the parties in relation to the highest and best use to which Mr Love’s land might be put.
Mr Love contends that the land acquired formed part of a site which had potential to be developed as a quarry for the extraction of basalt and for subsequent use as a landfill, and that this was its highest and best use. Accordingly, he contends that the market value for the land acquired should be assessed on this basis. The potential he perceives for the use of his land could have been exploited for the benefit of himself and his family, and he is aggrieved at its loss.
Mr Love submitted that prior to the acquisition, in the “before” acquisition situation, the resource was large enough to attract interest from large vertically integrated quarry operators as a capital purchase. However, after the acquisition date, in the “after” situation, the resource would only have been of interest to small operators who could not afford a capital purchase but would instead operate the quarry on a leasehold basis, if it was viable to conduct a quarry operation at all.
Consequently, at the centre of Mr Love’s claim is the proposition that the acquisition of the land for the Craigieburn Bypass has brought about the loss of a major quarry site on his land. He submitted that this has been caused by:
§The loss of the land taken, which was through the heart of Mr Love’s proposed quarry site; and
§The land buffers to neighbouring properties required for any future quarry operation have been lost.
Mr Love’s case does have an obvious attraction on physical inspection. The area surrounding the site of his proposed quarry operation does have a number basalt quarries and landfill sites which are presently operating or have in the past been operating, exploiting the extensive basalt resources in the area.
On the other hand, the Corporation contends that the highest and best use of the acquired land at the date of acquisition was for the purpose of future industrial use. The Corporation’s case was that, on the assumption that the highest and best use of Mr Love’s land was as future industrial land, the market value of the acquired land as it was immediately prior to the acquisition date would have been $15 million. It contended that, following the acquisition, the future industrial value of Mr Love’s land would be $12.5 million. On this basis, the Corporation contended that compensation for loss of market value should be assessed at $2.5 million (broadly, $15 million in the “before” situation - $12.5 million in the “after” situation).
Neither party contended that the highest and best use of the subject land was its actual use as at the date of acquisition, that is, cattle grazing.
Accordingly, the fundamental issue in assessing the market value of the acquired land and the compensation due to Mr Love in this case, is whether Mr Love’s land had any and what potential as a future basalt quarry and landfill site and whether, on the assumption it did have any such potential, it had a higher market value than it had as future industrial land.
Mr Love’s Other Claims
Mr Love made further claims for compensation. These claims were particularised in his final address as follows:
(a) Loss of the Clonard Homestead valued at $420,000.00;
(b)Replacement agricultural infrastructure, motor vehicle and travel expenses, respondent’s time claims, and injurious effect on the 410 Cooper St residence. In the course of the trial Mr Love abandoned his claim in respect of a new drainage system at 275 O’Herns Road initially claimed at $517,000. The claims made for the remaining items pressed at the conclusion of the case were as follows:
(i) agricultural infrastructure replacements ($244,662.81)
A breakdown of these claims in their final form and the Corporation’s responses to each claim are set out in the table below:
Item
Amount claimed ($)
The Corporation’s
response ($)
Eastern cattle yards 21,827.50 12,059.50 Western cattle yards 96,907.61 46,203.81 Western water bore 28,795.00 14,414.04 Eastern water bore 8,843.70 7,391.70 Electric fence system 3,408.62 2,682.62 Lane way 8,817.03 1,976.75 Eastern bull holding paddock 14,911.00 2,438.39 Western bull holding paddock 11,343.35 2,485.58 New hay shed with crushed rock floor 14,809.00 0 New storage shed with concrete floor 35,000.00 0 TOTAL: 244,662.81 89,652.39 (ii) Motor Vehicle and travel expenses.
A breakdown of these claims in their final form and the Corporation’s responses to each claim are set out in the table below:
Item
Amount claimed ($)
The Corporation’s response ($)
Registration of off-road vehicles and additional plant 5,118.00 1,118.93 Costs associated with stock transport 2,380.00 700.00 TOTAL: 7,498.00 1,818.93 (iii) Mr Love’s Time Claims
A breakdown of these claims in their final form and the Corporation’s responses to each claim are set out in the table below:
Item
Amount claimed ($)
The Corporation’s response ($)
Eastern access time costs 68,160.00 0 Infrastructure claim 30,060.00 0 Time spent on legal issues 245,300.00 0 TOTAL: 343,520.00 0 (iv) Injurious effect on 410 Cooper Street residence ($45,000.00)
Mr Love claims $45,000 as “injurious affect on his home at 410 Cooper Street, Epping”.
The Corporation contends that any claim for injurious affection to Mr Love’s home falls for consideration as part of compensation for loss of market value in the application of section 41 (3) of the LAC Act. It makes no separate allowance for this item of claim in this case.
(c) Solatium
Under section 44 of the LAC Act, Mr Love claimed solatium of $5,712,000.00. This figure represents 10 percent of the market value of the whole of Mr Love’s land “before” acquisition as valued by Mr Love’s expert quarry and land valuer, Mr Herdman. Following the adjustment of the claim for loss of market value, Mr Love reduced his claim for solatium to $4,945,000.00.
In support of his claim, Mr Love relies on the longevity of ownership of his family of the land (since 1915), his attachment and that of his family to the land, he having been born and raised on the land and having actively worked it since 1990, and upon the time and stress associated with the acquisition and implementation of the Bypass proposal.
The Corporation contends that the starting point for solatium is to determine an appropriate monetary allowance, taking into account the specific factors in section 44 (2) of the LAC Act as they apply to the case. The second step is to make an award accordingly unless the amount considered appropriate exceeds the applicable ceiling.
The Corporation has offered $98,000 in this case, reserving to itself the right to contend that a lesser award is appropriate. It contends that the applicable “ceiling”, for the purpose of an award of solatium, is $185,571. That is, 10 percent of the market value of the 25.62 hectares of land actually acquired.
(d)Total valuation and other professional expenses as at 3 April 2006 of $142,895, a sum which has already been paid by the Corporation.
(e)Under Section 53 of the LAC Act, penalty interest from 11/2/02 to the date of judgement.
The Compensation Claim and the Corporation’s Offers
This proceeding was commenced on 28 June 2004 by way of a referral by the Corporation under s 80 of the LAC Act of a disputed claim for compensation made by the respondent, Mr Love.
Mr Love initially claimed $38,120,000.00 by way of compensation for loss of market value. In his final address he confirmed that he had reduced this claim to $30,420,000.00 to allow for the moving of a gas pipe line which runs through his hypothetical quarry site ($2,000,000.00) and the deferral of the landfill development on the site by five years ($5,700,000.00) to allow for filling of the void under the landfill with clean fill.
Both before and after referral, the parties exchanged offers and claims for compensation. Compensation offered by the Corporation has been advanced to Mr Love as contemplated by s 51 of the LAC Act.
On 26 July 2002, the Corporation made an initial offer of compensation in the sum of $2,488,295.
On 7 November 2003, Mr Love made an interim claim for compensation in the sum of $132,782. On 6 March 2004, Mr Love made a claim for “infrastructure replacement works” and “disturbance” in the sum of $22,061.
Following referral and on 10 September 2004, Mr Love made a claim in the sum of $8,947,855.
On 15 October 2004, the Corporation made a revised offer in the sum of $2,707,000 in lieu of its earlier offer.
Progressing, the whole of the amount of $2,707,000, the subject of the offer made 15 October 2004, was advanced to Mr Love well prior to trial. On 1 December 2003, Mr Love requested an advance of the initial amount offered in the sum of $2,488,295. On 9 January 2004, that amount was advanced. On 31 December 2005, Mr Love requested an advance of a further $218,705. On 25 January 2006, that amount was advanced.
The Course of the Proceedings
The trial of the proceeding commenced on 10 May 2010 and thereafter occupied 33 days of evidence and two days of final address.
The Court conducted a view of Mr Love’s land. The view also included neighbouring and proximate quarry landfill operations.
Save for an appearance on his behalf by Mr G Uren of Her Majesty’s counsel with Mr O’Brien of counsel during the trial of the separate questions hereinafter described, Mr Love appeared in person to prosecute his case. The Corporation throughout was represented by Mr J Delany, Senior Counsel, with Mr DJ Batt and Mr PF Chiappi of counsel.
In conducting the case I was conscious of the observations of Bell J in Tomasevic v Travaglini[4] as to the duty of a trial judge in these circumstances to ensure a fair trial;[5] of the duty to assist a self-represented litigant by providing such information as is necessary to enable him to have a fair trial[6] and to address the imbalance as far as possible; and in so doing, bearing in mind that what a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[7]
[4][2007] VSC 337.
[5]Ibid at [86]–[88].
[6]Ibid at [89]–[96]; MacPherson v R (1981) 147 CLR 512 at p.524 per Gibbs CJ and Wilson J; and Dietrich v R (1992) 177 CLT 292.
[7]Ibid at [97]–[143]; Abram v Bank of New Zealand (1996) ATPR 41–507, 433,341, 43,347.
However, a balance must be achieved as far as it is possible to do so. In the course of ensuring a fair trial for the self-represented litigant, an advantage cannot be conferred on that party. This was recently emphasised by Kyrou J in Slaveski v State of Victoria & Ors[8] where his Honour said:
During the first and second phases of the trial, I explained to Mr Slaveski and Mrs Slaveska, respectively, the rules of evidence and procedure on various issues, and provided other assistance to them, in accordance with my duty to ensure a fair trial. This duty was discussed by Bell J in Tomasevic v Travaglini (2007) 17 VR 100, 129-30 [139]-[142] (“Tomasevic”) in the context of a self-represented litigant. The current proceeding, and its unusual course, has highlighted the need to ensure that the principles governing a trial judge’s duty to conduct a fair trial where one of the parties is self-represented are flexible and pragmatic so that the trial judge has sufficient latitude to manage the proceeding in the interests of all the parties and of the administration of justice. It is vital that the principles are formulated and applied in a manner that does not tip the balance too far in favour of self-represented litigants, impose too high a burden on the trial judge or result in prejudice to opposing parties.[9]
…
[8]Slaveski v State of Victoria & Ors [2010] VSC 441 (1 October 2010) at [57].
[9] Cf Pamamull v Albrizzi (Sales) Pty Ltd [2010] VSCA 185 (16 July 2010) at [29].
The general principles governing the role of a judge in civil proceedings involving a litigant in person were earlier stated by the New South Wales Court of Criminal Appeal in Rajski v Scitec Corporation Pty Ltd (“Rajski”),[10] in which Samuels JA said:[11]
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[12]
Mahoney JA in Rajski made observations to the same effect:
Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.[13]
[10]Supreme Court of New South Wales, Court of Appeal, unreported, 16 June 1986; cited by Bell J in Tomasevic v Travaglin, ibid at [110]–[111].
[11]Rajski v Scitec Corporation Pty Ltd Supreme Court of New South Wales, Court of Appeal, unreported, 16 June 1986 at [57].
[12] Rajski v Scitec Corporation Pty Ltd ibid at 14; citing from Minogue v Human Rights and Equal Opportunity Commission[1999] FCA 85; (1999) 84 FCR 438, 446.
[13]Ibid at 27.
In Tomasevic, Bell J expressed the principle in the following terms:
The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[14]
[14]Ibid at [142].
In the present case, I found Mr Love to be an intelligent man with an excellent grasp of the factual and technical details relating to the issues canvassed at trial. He graduated with a Bachelor of Engineering from Monash University in 1970 and obtained a Master of Administration from that university in 1976. He described himself as:
…a professional engineer, business strategist, negotiator and manager with tertiary business qualifications ... [with] considerable experience working as a project engineer in heavy industry including the mining industry.
He conducted himself admirably as a litigant in person during the proceeding.
As to legal issues which arose during the hearing, Mr Love was given the opportunity, when he sought it, to obtain legal advice on specific matters and was granted leave to be represented by both senior and junior counsel in presenting his submissions on the trial of the separate legal questions stated by the Court for determination. It was also observed that the Corporation, as a model litigant, gave assistance to Mr Love in the course of the trial.
Further, during the course of the hearing, topics for final address were progressively settled by the Court in conjunction with the parties, including Mr Love. Final addresses were directed to be delivered in two parts, namely:
(a)a written draft judgment in which each party was called upon to submit their best case on the findings of fact and law which each party invited the Court to make on each of the topics as finally settled by the Court; and
(b)an optional component which was to include any further or alternative submissions by way of a supplement to each party’s draft judgment.
This approach worked to reduce the likelihood of Mr Love ignoring subject matter of importance in the presentation of his case and to optimise the opportunity for each party to address the case of the other.
Notional Planning Permit
During the course of his opening of his case, Mr Love made it clear that a foundation for part of the case which he sought to advance was an admission which he said had been made by the Corporation in the course of the proceeding. The admission was to the effect that its position for the purposes of the proceeding was that, as at the acquisition date of 11 February 2002, Mr Love would have had a planning permit to conduct a quarry operation on his land and that the case was to proceed on that basis. The Corporation, however, denied making any such admission. Alternatively, if it did, it said that no estoppel arose preventing it from departing from any such representation, or if any such representation was to be treated as an admission for the purposes of the proceeding, it was free to resile from such admission.
Because of the apparent fundamental importance of the question of the admission to the case which Mr Love wished to advance, I determined that it would be appropriate to state questions for determination following a separate trial pursuant to Rule 47.04 Supreme Court (General Civil Procedure) Rules 2005. A further factor which weighed heavily in the exercise of the discretion to state questions for a separate trial was the discrete nature of the issues raised. The factual matrix against which the questions were to be determined, arose from procedural steps taken in the proceeding, rather than any substantive issues which were to be determined in the proceeding at trial.
On 2 June 2010, upon a trial of separate questions, as they were eventually formulated, the Court ruled as follows:[15]
[15]Roads Corporation v Love [2010] VSC 238.
(a)Did the Corporation make a representation that its position, for the purposes of the proceeding, was that:
(i) as at the acquisition date, 11 February 2002; and/or
(ii)within a reasonable time after delivery of the planning panel’s report of October 1998;
Mr Love would have had a planning permit in existence to conduct a quarry operation on the subject land on terms in accordance with the report of the planning panel of October 1998, and that the case is to proceed on that basis (“the representations”)?
Answer: yes, in both cases;
(b)If the Corporation did make one or other of the representations, is it now estopped from departing from the representations?
Answer: no;
(c)Has the Corporation made an admission to the effect of one or other of the representations?
Answer: in relation to both representations 1(a) and 1(b), yes;
(d)If the Corporation has made one or other of the admissions, may the Corporation resile from that admission?
Answer: no in relation to both representations.
Following the determination of the separate trial on 2 June 2010, the trial proceeded on the basis of the ruling delivered that day, that is that as at the acquisition date, 11 February 2002, and within a reasonable time after delivery of the planning panel’s report of October 1998, Mr Love would have had a planning permit in existence to conduct a quarry operation on the subject land but issued on terms that were subject to conditions reflecting the findings of the quarry permit panel in its report of October 1998 (the “notional planning permit”).
During the trial of the separate questions, as earlier noted, Mr Love was represented by senior and junior counsel.
The Craigieburn Bypass
The City of Whittlesea (the “WCC”) is located in the metropolitan fringe approximately 20 kilometres to the north of Melbourne. Covering an area of approximately 487 square kilometres, the City is physically one of the largest municipalities in metropolitan Melbourne.
The Western Ring Road traverses the southern section of the City provides an important passenger vehicle and freight link to the Hume Highway, Melbourne Airport and the port of Melbourne.
The Hume Highway is a major arterial road that links Melbourne to a number of Victorian and New South Wales provincial cities, together with Sydney and the Australian Capital Territory. It is a National Highway and part of the National Highways System. Over the past 20 years the Federal Government (through the Federal National Highway Program) has funded the upgrading of the highway to divided highway and freeway standard. As part of the upgrade, it was intended to provide a freeway connection between Hume Freeway at Craigieburn and the Metropolitan Ring Road, to bypass a heavily congested section of the Hume Highway between these points. This particular section of the Hume Highway carried a large volume of traffic with a high proportion of heavy trucks. It became increasingly congested, with major traffic delays and a high accident rate.
The initial reservation for a connection between the Metropolitan Ring Road at Thomastown and the Hume Freeway at Craigieburn, was created in 1975. It was situated near the Merri Creek, well to the west of Mr Love’s land.
However, the reservation passed through the 400 hectare Craigieburn Grasslands, which were later recognised as being of national significance, and the 70 hectare Cooper Street Grasslands, which are of State significance. These grasslands are some of the only remnant areas of self-sustaining native grasslands on the northern fringe of Melbourne. They were initially included on the Interim List of the Register of the National Estate and on 27 October 1998 they were added to the Register of the National Estate under the Australian Heritage Commission Act 1975.
In March 1996, the Victorian Minister for Conservation and Natural Resources announced the Government’s Conservation and Environment Policy, “A Clean and Green Victoria”, which provided for the creation of the Craigieburn Grasslands Flora and Fauna Reserve with a commitment to move the freeway reservation.
Recognition of the significance of the grasslands required the consideration of an alternative alignment for the Craigieburn Bypass.
On 15 May 1997, an advisory committee was appointed to consider and hear submissions regarding the relocation of the Hume Freeway Reservation between Craigieburn and the Western Ring Road. It held public hearings in May 1999 and published its report in October 1999. The committee considered seven options for modifying the alignment of the reservation.
The Committee found that there was a need for a freeway from Craigieburn to the Metropolitan Ring Road arising from both a strategic need and traffic needs. It found that a “no construction” option was not a viable alternative.
The committee concluded that Option 5 was the preferred option. Option 5 passed through 360 Cooper St and through that part of Mr Love’s land adjoining 360 Cooper Street to the north.
Subsequently, a working party, comprising officers from the Department of Infrastructure, the Department of Natural Resources and Environment and VicRoads, identified three new route alternatives, options X, Y and Z. The members of the advisory committee were reappointed as a second advisory committee to consider, amongst other matters, those options.
The second advisory committee reported in December 2000.[16] The committee recommended option Y. That alignment ran through Mr Love’s land. It subsequently became the acquired land resumed by the Corporation.
[16]BCCB 15.5339.
On 21 February 2001, the Premier announced that option Y had been selected.
On 11 February 2002, the acquisition date, by notice published in the Government Gazette, the Corporation acquired part of Mr Love’s land for the purpose of the Craigieburn Bypass.
Mr Love’s Land
Prior to the acquisition, Mr Love’s land comprised 207.09 hectares in 2 titles: Volume 10321 Folio 255 (460 Cooper Street); and Volume 10321 Folio 252 (410 Cooper Street).
The two titles were separated by an unmade and unused government road known as Vearings Road. Prior to January 2001, it had been licensed to Mr Love for use for agricultural purposes. However, as at the acquisition date on 11 February 2002, no such licence was extant.
To the west of the unmade Vearings Road was the land in Certificate of Title Volume 10321 Folio 255, being Lot 2 on Plan of Subdivision 50451G, known as 460 Cooper Street (the “western land”). It had an area of 55.89 hectares. A title plan of the western land is set out below.
To the east of Vearings Road was the bulk of Mr Love’s holding being the land in Certificate of Title Volume 10321 Folio 252, being Lot 22 and part of Lots 23 and 24 on Plan of Subdivision 5819, known as 410 Cooper Street (the “eastern land”). It had an area of 151.2 hectares. A title plan of the eastern land is set out below.
Thus Mr Love’s land, which remained in his ownership on the acquisition date, was an irregular shape, enjoying substantial frontage to Cooper Street, Epping and broadly running between Cooper Street to the south and O’Herns Road to the north. The irregular shape of the land was the legacy of sections of the original Love family holding having been earlier sold.
In 1981, Mr Love’s family sold land previously quarried for basalt under lease to Blue Metal. This site was located between the eastern land and the western land. It was sold to WCC for the purposes of a putrescible tip (“the WCC No.1 tip”).
In 1989, Mr Love’s family sold a further parcel of land to the north with frontage to O’Herns Road. This again was sold to the WCC for use as a putrescible tip (“the WCC No.2 tip”). This land had earlier been quarried for basalt by Pioneer and its predecessors under lease from Mr Love’s family.
By the acquisition date, both the No.1 and No.2 tips had ceased to accept fill and had been capped. The WCC dog pound was located on the WCC No.2 tip site. An access licence previously granted by Mr Love in favour of the WCC permitting it access to the WCC No.2 tip site from Cooper Street across the WA149 land had been terminated in about January 2001.
In his submissions, Mr Love helpfully described the physical conditions of his land by reference to an aerial photograph, a copy of which is set out below:
I accept the further observations made by Mr Love in describing his land as follows:
(a)The western land, being 55.89 hectares, was the subject of an existing extractive industry operation under Work Authority WA149 (the “WA149 Land”). As detailed below, this land was worked as a basalt quarry by Conundrum Holdings Pty Ltd (“Conundrum”), under the directorship of a Mr Kerr, pursuant to a lease and licence granted by the Love family. The land was zoned Special Use Schedule 4 Extractive and Stream and Floodway.
(b) Most of the eastern land (which in total comprised an area of 151.2 hectares), was the subject of a Work Authority application WA658 (the “WA658 land”). The WA658 land comprised 88.44 hectares. The northern portion of this land was zoned Special Use Schedule 4 Extractive while the balance of the land was zoned Rural. A groundwater bore and windmill located in the centre of the WA658 land provided stock water for that part of the Love property.
(c) At the acquisition date, improvements to Mr Love’s eastern land included two dwellings.
(d) The first was Mr Love’s main farm dwelling at 410 Cooper Street with an access driveway to Cooper Street to the south, out-buildings and a water bore wind-mill (together referred to as the “homestead dwelling”). At the acquisition date and to date, Mr Love and his wife have continued to live in the homestead dwelling. The homestead dwelling was situated to the south west of the WA658 Land. The complex included a home, garage/workshop, machinery shed and three storage sheds. A groundwater bore and windmill located in that complex provided stock water for that part of the Love property and the WA149 land. The complex was located on high ground with a commanding easterly view.
(e)The second dwelling was a weatherboard house, nearby cottage and associated out-buildings (together referred to as the “Clonard dwelling”), with a frontage to O’Herns Road to the north. At the acquisition date, the Clonard dwelling was tenanted. The Clonard dwelling is situated to the northeast of the WA658 land. It is separated from the WA658 land by a water course, designated 4447, which was a tributary of Edgars Creek. The complex includes a home, cottage and garage which were leased to the residential tenant and a large set of cattle yards surrounded by various farm buildings including a milking shed/storage shed, a dairy/storage shed and a hay shed all of which were used by the Love family. A groundwater bore and bore pump located within the cattle yards provided stock water for that part of the Love property. The complex had adjacent to it two bull paddocks for the housing of Angus bulls when they were not in service.
(f) The balance of the eastern land, comprising some 62 hectares, was used for the grazing Angus beef cattle. From time to time, Mr Love’s cattle also grazed on the WA149 land.
(g) The balance of the eastern land also contained the driveway entrance to the Clonard Homestead. A water course named Edgars Creek crossed the north east corner of that land. A groundwater bore and windmill located to the west of Edgars Creek and approximately 100 metres from the land’s northern boundary provided stock water for that part of the Love property. The land surface was dominated by stony rises and, together with all of the Love property, had been the subject of geological exploration for basalt quarry rock in 1970. It and the balance of the Love property not contained within the area covered by WA149 were the subject of further geological exploration in 1995.
(h) The land to the south of the Love property and south of Cooper Street was zoned Special Use Schedule 4 Extractive, Rural and Stream and Floodway. The Special Use land had in place an extractive industry Work Authority WA381 and was leased or owned by a quarrying company, Hanson PLC (“Hanson”). The Special Use land was not being quarried but was being considered for reopening as a quarry and landfill site by Hanson.
Mr Love’s freehold title to the eastern land described in Certificate of Title Volume 10321 Folio 252 was encumbered by a gas pipeline easement running in a north-south direction and bisecting Lot 24 (“the gas easement”). The gas easement served as a de facto planning boundary or divide in town planning strategy documents. The gas pipeline was buried within the gas easement (“the gas pipeline”).
Adjoining Mr Love’s land on Cooper Street to the east is the land known as 360 Cooper Street. This is owned by interests associated with Mr Scanlon (the “Scanlon Land”). Part of Mr Love’s land known as Lot 22 is to the north of the Scanlon land.
Lease of the WA149 Land to Conundrum
As to the lease and licence in respect of the WA149 land, on 14 September 1990, Mr Love’s family granted a lease and an associated licence (“the quarry lease”) over much of the western land in favour of Conundrum, a company of which Mr Kerr is a director. The area of land leased to Conundrum more or less corresponded to the land the subject of work authority number 149 issued pursuant to the Extractive Industries Development Act1995 (“the EID Act”). The quarry lease area was extended by letter dated 28 May 1998 and, shortly prior to the acquisition date, had a total area of 40.24 hectares. The quarry lease as varied expired by the passage of time on 28 January 2002 but, as at the acquisition date, Conundrum continued to occupy and to quarry the leased land for basalt. Extraction took place and continues above the water table with Conundrum having sales of 227,698 tonnes of basalt products in the 2001 to 2002 year.
Other Quarrying Adjacent to Mr Love’s Land
As well as quarrying the WA149 land under lease from Mr Love, Conundrum had, since 1996, been lessee of land to the north of WA149 known as the Miller land (the “Miller land”), to which work authority WA445 applied. At the acquisition date, some excavation for basalt had occurred on the Miller land. The basalt resource on the Miller land comprised 7 million tonnes above the water table. A further 1 million tonnes of basalt rock was above the water table but within a section of the Miller land zoned “Urban Floodway Zone” under the Whittlesea Planning Scheme.
To the west of the Miller land, toward the Merri Creek, was land known as “Alvies” (the “Alvies land”). This land had also been previously quarried. However, at the acquisition date, the Alvies land was occupied by Hanson (previously Pioneer). It was operated by Hanson at that time as a tip licensed to receive both putrescible and solid inert fill.
Zoning
At the acquisition date, most of Mr Love’s land was zoned “RUZ – Rural Zone” under the Whittlesea Planning Scheme (the “WPS”).
As to other zonings of Mr Love’s land, the WA149 land was zoned “Special Use Zone 4”under the WPS. A small area of land approximately north of Mr Love’s homestead dwelling adjoining the former WCC No.2 tip was also zoned “Special Use Zone 4”. A narrow strip of land to the west of Vearings Road was zoned “Urban Floodway Zone”.
In all of the zones which applied to Mr Love’s land, a “quarry” was a permitted use, subject to a grant of a permit.
Following the decision to use option Y for the bypass alignment, on 4 September 2001 Amendment C23 to the WPS was approved. This reserved the acquired land for the purposes of the Craigieburn Bypass by imposing a Public Acquisition Overlay for the reservation of the necessary land for the option Y alignment. Included in Amendment C23 was an environmental significance overlay (“ESO 3”) which was introduced in respect of a small part of the WA149 land on its south western corner near the Merri Creek.
As part of the February 2002 acquisition a design and development overlay (“DDO 2”) was introduced. This applied to land 150 metres either side of the proposed Craigieburn Bypass. DDO 2 provided for a splay road formation in the vicinity of the Cooper Street interchange.
The October 1997 Permit Application
In October 1997, Mr Love applied to the WCC, by application number 704078, for a planning permit for the use and development of part of the eastern land for the purposes of a basalt quarry. The October 1997 application sought to extract on both sides of the gas easement down to, but not below, the water table and, at a much later time, potentially to extract below the water table but on the western side of the gas easement only.
The land the subject of planning permit application 704078 was, as expressed in the application, said to have an “indicated mineral resource” of 15.1 million tonnes of basalt rock. Of this, some 7 million tonnes was said to be above the water table and about 8 million tonnes below.
Well after the acquisition date and in 2007, further drilling, and thereafter further testing, of basalt cores was carried out. The 2007 drilling revealed a total resource estimated at 53.6 million tonnes in the central portion of Mr Love’s land, being the land in Lot 24 and part of Lot 23. This included basalt rock within the gas easement. Of the total “indicated resource” 4.77 million tonnes was estimated to comprise the better quality “upper flow”, for the most part above the water table, and 48.8 million tonnes was estimated to comprise the lesser quality “lower flow” (45.2 million tonnes of it being below the water table). Of the upper flow, 3.4 million tonnes was above the water table west of the gas easement and 0.2 million tonnes was above the water table to the east of the gas easement.
At about the time of seeking planning permission, Mr Love also applied for a work authority under the EID Act to the Department of Natural Resources and Environment to quarry either side of the gas easement down to, but not below, the level of the water table. The application for the work authority was designated “WA658” and covered a substantial part of Mr Love’s eastern land (the “WA658 land”).
On 1 July 1998, planning application 704078 was “called in” by the relevant Minister, Minister Cooper, at Mr Love’s request. In a letter dated 1 July 1998 the Acting Minister for Planning and Local Government advised the Whittlesea City Council as follows:
I consider that this application raises a major issue of policy and that the determination of the application may have substantial effect on the achievement of planning objectives.
I have therefore determined to utilise section 97B(1) of the Planning and Environment Act 1987 and direct the responsible authority (City of Whittlesea) to refer the application for Planning permit No. 704078 to me for determination.
The Quarry Permit Panel
On 31 July 1998, the Minister established a panel (“the quarry permit panel”) to consider the application. After conducting hearings and receiving submissions, the quarry permit panel sent its report to the Minister on 18 October 1998. The Minister, then Minister Maclellan, decided that the report should not be published at that time.
The quarry permit panel was informed by Mr Love that Conundrum was the likely quarry operator. The panel report records that:
It was anticipated that the site would be operated by Conundrum Holdings who currently operate quarries further to the west. The actual sales volumes were estimated to be in the order of 350,000 tonnes per year.
The panel also noted: “It is important to appreciate that any activity proposed under the planning permit will not be initiated for a further 15 years or thereabouts”. This accorded with Mr Love’s understanding that a 15 year delay was what was being proposed, with the result that no quarrying of the WA658 land would commence until 2013.
The quarry permit panel, while recognising that significant basalt resources existed and major quarry operations were being conducted in the municipality, observed that constraints were needed to limit any quarrying operation on Mr Love’s land so as not to inhibit the growth of the anticipated urban development in the area. In this respect the panel noted that two constraints should operate to ensure that, by 2025 or thereabouts, quarrying on Mr Love’s land should cease. The two constraints were: (a) confining quarrying to the area of Mr Love’s land which was west of the gas pipeline; and (b) further confining any future extraction operation by recommending that no quarrying should occur below groundwater level.
The combined impact of these conditions, if acted upon, would have been to limit extraction to a total of about 4 million tonnes of basalt from the resource then estimated to be in total 15.1 million tonnes.
The reasoning of the quarry permit panel will be dealt with in more detail later in these reasons.
The far eastern block, forming part of Mr Love’s land, being the land comprised in Lot 22, was not included in the WA658 or 704078 applications. The rock resource on this part of Mr Love’s land was said in the 704078 application documents to comprise 3.6 million tonnes. This area was not the subject of further drilling in 2007 and whatever rock lies within it may be ignored for the purposes of the proceeding.
On 25 November 1999, the Minister signed a refusal to grant the application 704078 permit. Three reasons were stated for the refusal, namely:
1.The proposed use is not considered appropriate to the location and would prevent proper future development of the area.
2.The proposed site is not an appropriate use for the land having regard to the Whittlesea Planning Scheme.
3.The proposed use is not an appropriate one for the land because of its effect on the amenity of the neighbourhood.
Accordingly, at the acquisition date, there was known to be a further rock resource within the 70748 application area, however, because application 704078 had been refused, no planning permit was in existence. There was similarly no work approval under the EID Act in place to quarry the land. That was so despite the lodging of the 10 March 1998 work approval application and an updated August 2000 version which proposed the relocation of the gas easement being lodged for approval.
Use of Mr Love’s Land After the Acquisition
Apart from the WA149 land to the west of Vearings Road, which, at the relevant date, was improved by various quarry assets owned by Conundrum, the balance of Mr Love’s land was being farmed by him. The improvements upon the balance of Mr Love’s land were consistent both with that use and the fact that most of the land was zoned “RUZ – Rural Zone” under the relevant planning scheme.
Immediately after the acquisition, there was no change in the physical condition of Mr Love’s land. After possession was taken in early 2003, leaving to one side the “protected area” which included the improvements known as “Clonard”, works were carried out to construct the Craigieburn Bypass. Those works commenced on approximately 15 January 2003 on the acquired land and were concluded in late 2005 with the Bypass itself being opened to the public on 20 December 2005. As part of the Bypass works, O’Herns Road, which is to the north of Mr Love’s property, was re-constructed as an elevated road over the divided bypass.
The acquisition severed Lot 22 of Mr Love’s land so that direct access across the farm was no longer available once possession was taken of the acquired land. However, access continued to be available via O’Herns Road between the main part of Mr Love’s land after acquisition and the Lot 22 land.
The Acquired Land and the Effect of the Acquisition on the WA658 Land
As a result of the acquisition, a strip of Mr Love’s land, about 1.6 kilometres long, in a north-south direction more or less parallel and to the immediate east of the gas easement was taken by the Corporation. The land in Lot 22 immediately north of the Scanlon land was severed from the balance of Mr Love’s land remaining.
The acquired land bisected the area of Mr Love’s land where he proposed to conduct his quarry operation. I am satisfied that this rendered any quarrying of basalt on the WA658 land unsustainable.
The Effect of the Acquisition on Clonard
The Clonard dwelling is situated within the acquired land. Mr Love contends that “Clonard” is of historic significance and, following the identification of proposed routes for the bypass potentially passing through it, he opposed both the acquisition of it for the purposes of the Bypass and its demolition for the implementation of the project. On 28 February 2003, the Corporation received conditional consent from Heritage Victoria to demolish the homestead.
For approximately 12 months after the acquisition, Mr Love and the tenant of “Clonard” remained in occupation of the acquired land. On 15 January 2003, the Corporation took possession of the acquired land pursuant to a warrant of possession. On 14 February 2003, Mr Love commenced proceeding 4504 of 2003 by writ (“the writ proceeding”). On 6 March 2003, an interlocutory injunction was granted by Nettle J in that proceeding restraining the Corporation from, amongst other things, taking steps to demolish “Clonard”.
The injunction remained in place until discharged following the trial of the writ proceeding by order made 23 June 2009.[17] In the intervening period, the homestead and the cottage were occupied by members of the Donovan family who, from time to time, assisted Mr Love with farm work.
[17]Order of Cavanough J made on 23 June 2009 in Supreme Court proceeding number 4504 of 2003. Mr Love applied for leave to appeal out of time from that decision so far as the “protected area” identified by Nettle J is concerned. The matter was argued before the Court of Appeal on 30 July 2010. The application was dismissed.
At the date of trial, “Clonard”, in fact, remains in tact. “Clonard”, together with various aspects of Mr Love’s land, including the WA149 land, and Conundrum’s quarry upon the WA149 and WA445 land, were the subject of a view by the Court in the course of the trial. It was observed that the homestead was boarded up and uninhabited.
CHRONOLOGY OF KEY EVENTS
I have set out a chronology of key events which I find occurred prior to the date of acquisition, namely 11 February 2002, and shortly after that event.
The chronology is attached as “Annexure B” to these reasons.
LEGAL CONCEPTS
Statutory Framework – General Principles
The present proceeding invokes the exercise of a statutory jurisdiction conferred upon the Court pursuant to Part 10 of the Land Acquisition and Compensation Act 1970 (“the LAC Act”). Section 89 requires the Court to determine the amount of compensation to be paid in respect of the claim, in this case, constituted by the current claim made by Mr Love dated 16 November 2007, as amended in the course of this proceeding.
Section 90(2) of the LAC Act provides that:
In determining the compensation payable the Tribunal or the Court is not bound by the exercise of any discretion of the Authority or by any opinion or determination of the Authority, but must determine the compensation payable in the particular circumstances of the case having regard to the provisions of this Act.
Section 30 of the LAC Act provides a right to compensation for acquired land:
30 Right to compensation on acquisition
Subject to this Act, every person who, immediately before the publication of a notice of acquisition, had an interest in land that is divested or diminished by the acquisition of the interest to which that notice relates has a claim for compensation.
Section 41(1) of the LAC Act provides for the general principles upon which compensation is to be based:
41. General principles on which compensation is to be based
(1)Except as otherwise provided in this Part, in assessing the amount of compensation payable to a claimant in respect of an interest in land which is acquired under this Act, regard must be had to the following factors—
(a) the market value of the interest on the date of acquisition;
(b) any special value to the claimant on the date of acquisition;
(c) any loss attributable to severance;
(d) any loss attributable to disturbance;
(e)the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the implementation of the purpose for which the land was acquired;
(f)any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition of the interest.
Section 5A of the Valuation of Land Act 1960 (“VL Act”) provides an underlying statutory framework for the valuation of land in the following terms:
5A Determining value of land
(1)Unless otherwise expressly provided where pursuant to the provisions of any Act a court board tribunal valuer or other person is required to determine the value of any land, every matter or thing which such court board tribunal valuer or person considers relevant to such determination shall be taken into account.
(2)In considering the weight to be given to the evidence of sales of other lands when determining such value, regard shall be given to the time at which such sales took place, the terms of such sales, the degree of comparability of the lands in question and any other relevant circumstances.
(3)Without limiting the generality of the foregoing provisions of this section when determining such value there shall, where it is relevant, be taken into account—
(a)the use to which such land is being put at the relevant time, the highest and best use to which the land might reasonably be expected to be put at the relevant time and to any potential use;
(b)the effect of any Act, regulation, local law, planning scheme or other such instrument which affects or may affect the use or development of such land;
(c)the shape size topography soil quality situation and aspect of the land;
(d)the situation of the land in respect to natural resources and to transport and other facilities and amenities;
(e)the extent condition and suitability of any improvements on the land; and
(f)the actual and potential capacity of the land to yield a monetary return.
Caselaw Framework – General Principles
An owner is to be compensated for no less and no more than the loss suffered by the acquisition, except where the legislation otherwise provides. As Osborn J observed in Roads Corporation v Love (the “Cooper Street proceeding”):[18]
… the notion of compensation envisages that an owner is entitled to be compensated fairly and fully for his loss, but is not entitled to receive more than fair compensation.[19] Quoting from Scott LJ in Horn v Sutherland Corporation[20] in Transport for London v Spirerose, Lord Neuberger referred to the underlying concept in the following terms: “the principle of equivalence which is at the root of statutory compensation, the principle that the owner shall be paid neither less nor more than his loss”, save, I should add, where the legislation otherwise provides.[21]
[18][2010] VSC 32 at [83].
[19] Director of Buildings and Lands v Shun Fung Ironworks Limited[1995] 2 AC 111, 125; Waters v Welsh Development Agency[2004] UKHL 19; [2004] 1 WLR 1304, 1307; Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1822.
[20][1942] 2 KB 26, 49.
[21]Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1814.
However, it is well established by authority that, other things being equal, if there is a doubt as to the amount properly payable by way of compensation, the doubt should be resolved in favour of the more liberal estimate.[22]
[22]Roads Corporation v Love [2010] VSC 32 at [122]; Commissioner of Succession Duties (SA) v Executive Trustee and Agency Co of SA Ltd [1947] HCA 10, (1947) 74 CLR 358, 374, Gregory v Federal Commissioner of Taxation [1971] HCA 2, (1971) 123 CLR 547, 565.
Market Value
Section 40 of the LAC Act defines “market value” in relation to any interest in land on a particular date as meaning: the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser.
Market value is an objective rather than subjective standard. Accordingly, the test adopted in the law to assess market value is hypothetical: the hypothetical price at which the hypothetical seller and buyer are prepared to agree will be the value of the asset on the day in question. Thus special value to the actual owner is excluded from market value because that person is not the hypothetical seller. On the other hand, special value to hypothetical purchasers is included in market value since no potential purchasers are to be excluded. The market as a whole needs to be considered, including segments of the market which might require the land for specialised uses, and differently resourced potential purchasers which may exist within those specialised markets.
It is only the facts considered on the day of acquisition which are relevant in undertaking the assessment of value. As Isaacs J said in Spencer v Commonwealth[23] (“Spencer”):
All circumstances subsequently arising are to be ignored. Whether the land becomes more valuable or less valuable afterwards is immaterial. Its value is fixed by Statute as on that day. Prosperity unexpected, or depression which no man would ever have anticipated, if happening after the date named, must be alike disregarded. The facts existing on 1st January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted. The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he has sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.
[23](1907) 5 CLR 418 at 440-441.
Griffith CJ emphasised the hypothetical nature of the exercise when he wrote in Spencer:[24]
In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring "What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?"
[24]Ibid at 432.
These concepts are now the subject of statutory recognition in the LAC Act. Section 40 provides:
40 Market Value
In relation to any interest in land on a particular date, means the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser.
Full Relevant Knowledge of Purchaser
The hypothetical seller and buyer are assumed to have full knowledge of the land in question. As Isaacs J continued in Spencer:[25]
We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason so ever in the amount which one would otherwise be willing to fix as the value of the property.
[25]Ibid at 442.
These principles have been recently confirmed by the High Court. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[26] the Court cited with approval the summary of the judicial exegesis in Spencer provided by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd,[27] where his Honour McHugh J said:
Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:
"We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."
The market for the property is, therefore, assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property.
[26][2008] 233 CLR 259 at 276.
[27](1999) 199 CLR 413 at 436 [49]–[50].
Part of Land Acquired – “Before and After” Analysis
Section 41(3) of the LAC Act provides:
If less than the whole of the land in which a claimant's interest subsists is acquired or less than the whole of that interest is acquired, the market value of the acquired interest is the difference between the market value of the interest before the acquisition and the market value of the interest after the acquisition.
This sub-section requires the assessment of market value in a case such as the present to be undertaken by way of a “before and after” analysis. Thus: Market Value where part of land acquired = A (value of whole of the land before acquisition) – B (value of what remains after acquisition). A before and after analysis will embrace not only the loss of the value of the land acquired but also the effect of the acquisition upon the value of the balance of the land at the date of acquisition. As Osborn J observed in Roads Corporation v Love:[28]
Loss attributable to severance as defined in the LAC Act is thus potentially embraced by the before and after analysis (at least insofar as the notion of severance applies to the balance of the acquired land).
[28][2010] VSC 32 at [87].
Highest and Best Use
A proper market value should also reflect the highest and best use of the asset. It is the highest and best use for the subject land which is to be measured. In Spencer, Isaacs J expressed the measure of compensation in these terms:[29]
… the question for the tribunal is, what is the point at which the parties would meet; what is the sum the one would be willing to give and the other to take? That is practically the same as asking what is the highest sum such a purchaser would give, because we must assume the owner would be willing to take the best he can get. The best he can get in those circumstances is the test of what he loses, and it is his loss which must be replaced.
On 24 October 1997, Mr Love instructed Mr Kraan to withdraw an earlier application made to the Whittlesea Council for a permit for a joint quarry/cattle saleyards development, and lodged instead application 704078 for a permit to quarry only. At that time, the land in question was zoned “Special Extractive A and General Farming B”.
On 27 October 1997, Mr Love wrote to Mr Kraan setting out the reasons why he considered an application should be made at that time for a permit for a quarry on what became known as the WA658 land. Those stated reasons included staving off the Roads Corporation. The following day, 28 October 1997, Mr Kraan responded, noting that, in his opinion, the rock resource on WA658 was not of State significance such as would warrant a call in by the Minister for Planning.
On 29 October 1997, permit application 704078 was lodged, supported by a major submission prepared by KLM Planning Consultants (Mr Kraan) in conjunction with Bell Cochrane and Associates. A permit was sought to extract rock from the central eastern portion of the property only, being the portion said to have an “indicated mineral resource” of 15.1 million tonnes of basalt rock. Seven million tonnes was said to be above the water table and about 8 million below. The proposal was to dig, initially, on both sides of a gas easement and, at a considerably later stage, potentially to seek approval to go below the water table but only on the western side of the gas easement. It was asserted in the submission that commercial extraction was intended to commence within five to seven years, on the basis of discussions with the proposed quarry operator, Conundrum.
On 9 February 1998, a modified form of amendment L143 was approved by Minister Maclellan. Amendment L143 rezoned the Scanlon land to “Reserved General Industrial” except for a strip 150 metres wide along the western boundary.
1998 Mar - 1998 Draft Work Authority WA658 is endorsed by Minerals and Petroleum Victoria.
1998 - Mr Love first raises with the NRWMG the potential for WA149 to be a future landfill.
On 28 April 1998, Mr Love wrote to the DNRE in support of his WA658 application, informing the Department that:
It is my intention to use the first 5 to 10 years of the quarry’s life to do boundary masking activities (ie creation of bund walls and tree planting) with no extraction contemplated.
In May 1998, the panel appointed by the WCC to report upon the new format of planning scheme recommended a suite of changes to the City’s proposed MSS. The panel recommended that all sites previously zoned “Special Extractive A” under the current planning scheme be included within the “Special Use Zone”, however, sites currently seeking planning permits or work authorities were recommended to be subject to a separate future rezoning and that the balance of Mr Love’s land remain rural. The panel took into account the submission prepared by Mr Kraan, on behalf of Mr Love.
On 14 May 1998, Mr Kraan requested that the Minister for Planning and Local Government exercise his power under s 97B of the P & E Act to “call in” Mr Love’s application 704078 for a quarry permit. The Acting Minister (Mr Cooper) did so on 1 July 1998.
On 1 June 1998, a contract was signed between NRWMG and Pioneer Australia Waste Management Pty Ltd (now Hanson), being a contract for the receipt of municipal waste to the Wollert landfill and for the receipt of solid inert waste at the Alvies site in Cooper Street.
On 31 July 1998, the Minister established a panel to consider Mr Love’s quarry permit application number 704078.
The quarry permit panel sent its report to the Minister on 18 October 1998. Minister Maclellan decided that it should not be published until after the report of the FAC was received. It was not published until November or December 1999.
On 5 March 1999, the Parliamentary Secretary for Planning and Local Government wrote to Mr Love to advise:
The Minister has indicated in Parliament that he does not intend to make a decision on the Call In relating to Extractive Industry at 410 Cooper Street until he has received advice from the Advisory Committee considering options for the alignment of the F2 Hume Freeway.
The quarry permit panel recommended that the application for planning permit number 704078 should be approved, subject to certain significant conditions, including that all operations at the site cease by the year 2025. One condition was that only land to the west of the gas transmission easement should be utilised for quarrying operations. Another was that any quarrying operations must be set back a minimum buffer distance of 40 metres from the western edge of the gas transmission easement. And another was that quarrying should only be permitted above the existing groundwater level. The combined impact of these conditions would have been to limit extraction to a total of an estimated 4 million tonnes only.
On 27 October 1998, the WCC endorsed the outline development plan that had been submitted in respect of the Scanlon land pursuant to L143. The plan covered not only the Scanlon land but also Mr Love’s land in Lot 22 to the north of the Scanlon land.
On 28 October 1998, the Corporation released for public comment a lengthy planning assessment report relating to the proposed Bypass. It set out five options for the Bypass.
In December 1998, the revised MSS, adopted by the WCC, included the following strategy:
place a moratorium upon consideration of further application for extractive industry within the Cooper Street Precinct area and the Epping North Strategic Plan area pending finalisation of the Rural Review, definition of the Hume Freeway alignment and preparation of the Epping North Strategic Plan.
In February 1999, work authority WA149 was extended to 40.24 hectares, Mr Love having earlier agreed to extend the area of the existing lease by letter to Mr Kerr of 28 May 1998.
On 21 April 1999, Mr Kerr made an offer, in writing, to Mr Love to purchase 106 acres of Mr Love’s land including the extended WA149 area and land having frontage to Cooper Street for the sum of $1.42 million, with proposed settlement by 30 June 1999. The offer equated to a land value of $13,396 per acre or $33,000 per hectare.
The new VPP format WPS was published in the Victorian Government Gazette on 8 July 1999. A transitional permit to quarry issued in respect of the WA149 land. Mr Love’s land was not included within the “Extractive Industry Interest Area” (“the EIIA”) within the WCC planning scheme and no permit, transitional or otherwise, issued in respect of the WA658 land.
The land previously zoned “General Farming B” became “Rural” in the new planning scheme while the land zoned “Special Extractive A” became “Special Use”. Quarrying was no longer an as of right use in either zone as it had been under the earlier “Special Extractive A” zone but now a permit was required in both zones.
On 1 November 1999 the FAC published its report. It made nine recommendations. They included:
1.The Hume Planning Scheme and the Whittlesea Planning Scheme should be amended, without the need for further exhibition, to include the route of Option 5 in a Road Zone (or any other appropriate zone or overlay). The route should be the same as shown in the PAR, except for the section north of Craigieburn Road East. This should be moved further east in order to minimise, so far as possible, any intrusion on the Craigieburn East Grasslands or impact on the Curly Sedge Creek.
2.Provision should be made for a future interchange in the vicinity of O’Herns Road and this should be included in the amendment to the Whittlesea Planning Scheme.
In November 1999, the WCC and on 11 November 1999, Mr Scanlon wrote to Mr Thwaites, the then newly appointed Minister for Planning, requesting him to refuse Mr Love’s quarry permit application which had been “called in” by the previous Minister.
By memorandum dated 16 November 1999, the DOI recommended to Minister Thwaites that Mr Love’s quarry permit application be refused. The memorandum canvassed the quarry permit panel’s report. It stated that, since the completion of that report, the WCC had prepared plans for future residential development for approximately 40,000 persons in Epping North. It stated that if Mr Love’s application were approved “future development in parts of Epping North and development of proposed industrial land to the south of Cooper Street and west of the site would be delayed until completion of extraction in 2026”. It also said that existing and proposed quarries north of Craigieburn Road would meet long term needs for stone resources. Further, it stated that while development in the relevant area had been slowed by uncertainty about the Bypass alignment and servicing issues, it was anticipated that when those issues were resolved there would be considerable interest in the relevant area for a range of industrial uses. The memorandum noted that the WPS strongly favoured the retention and development of the relevant land for a range of employment purposes. It observed that the WCC had reiterated its opposition to Mr Love’s proposal and had stressed that the proposal was contrary to the Cooper Street precinct strategy that had recently become part of the WPS. It referred to “extensive and sustained public opposition” to the proposed quarry by a range of public and private interests, including local residents and landowners, Mr Haermeyer MP, the Merri Creek Management Group and the Northern Hospital.
Mr Thwaites accepted the DOI’s recommendation. On 25 November 1999 the Minister signed a refusal to grant the permit. A copy of the refusal was sent to Mr Love on 25 November 1999. The Minister issued a media release about his decision on 1 December 1999.
On 23 June 2000, the WCC completed tipping operations at the WCC No. 2 tip.
On 5 July 2000, the Inspector of Mines and Quarries, informed Mr Love that the Department required that waste disposal was to take place outside quarry work authority boundaries and that, where waste disposal was to be carried out on land the subject of an existing work authority, then the land in question must be excised from the work authority area, be separated from it with a security fence and be provided with a separate access road.
The draft Whittlesea rural review was completed in 2000. The review provides a summary of the SPPF as it relates to extractive industry, the EID Act and the EIIAs. The EIIAs provides for both the long term protection and strategic planning of resources across the State. One EIIA is identified within the WCC, located in the north west of the city. The rural review noted that:
The EIIAs were chosen by considering the geological parameters within the bounds of the planning constraints of particular areas ... the EIIA should therefore not be regarded as totally inclusive of all attainable stone resources.
The rural review noted that recent strategic planning initiatives, including the Cooper Street strategy and Epping North strategic plan, would significantly constrain access to extractive industry resources south of Craigieburn Road. The review promoted the phasing out of extraction within the locality of Mr Love’s land to allow for the identified strategic growth:
It is estimated that the existing supplies in the south will meet demand in the short to medium term and, as such, it is recommended that, in order to further the objectives of planning in the area, no further extractive industries be permitted south of Craigieburn Road East and west of Epping Road …
In the concluding “strategic approach to extractive industry”, references are made to the Cooper Street area as follows:
·discourage the establishment of additional proposals for extractive industry in the areas south of Craigieburn Road East and within the Cooper Street Precinct area;
·review the Cooper Street strategy to discourage the establishment of new extractive industries, and supporting the rezoning of land in Cooper Street for employment purposes.
From about 2000, the Hanson group of companies (formerly Pioneer) sought to develop the former quarry (quarrying having ceased in 1992) to the south of Cooper Street opposite Mr Love’s land for use as a solid inert tip. That is, with a view to it replacing the tip on the Alvies land once it was full. Attempts to obtain approvals were not successful, in particular, because the site was not on the NRWMG plan and it was considered there was no “need” for a further site in the region. Efforts to secure relevant permissions not being successful, Hansons sold the site in 2005.
On 11 August 2000, Mr Love’s then solicitor, Mr Stevens, submitted to the DNRE a further work plan prepared by Bell Cochrane for the proposed quarry (extractive industry work authority number 658). The August 2000 work plan proposed to relocate the gas pipeline and easement. It anticipated access to Cooper Street via an internal road travelling around the southern boundary of the WCC No. 2 tip and linking up with the Conundrum WA149 access road through to Cooper Street.
In August 2000, proposed amendment C12 to the WPS which sought to rezone land and to implement development plans and local structure plans to facilitate a large residential/urban development in Epping North, including land now referred to as “Aurora”, was placed on exhibition. The amendment C12 land is on the north side of O’Herns Road, across the road from Lot 22, part of Mr Love’s land. The amendment was considered by a panel in October 2001 and eventually adopted and gazetted in September 2002.
On 21 August 2000, the SAC was appointed in relation to the proposed Bypass alignment under s 151 of the P & E Act.
On 4 December 2000, Mr Stevens, on behalf of Mr Love, sent a submission to Minister Thwaites requesting that he reconsider quarry permit application 704078. On 19 December 2000, Mr Stevens wrote to DNRE attaching a draft work plan prepared by Bell Cochrane for the proposed new basalt quarry. The draft plan advised that GPU GasNet Pty Ltd had agreed in principle to the relocation of the gas pipe line and easement to the eastern boundary of the application area.
After hearings, in which Mr Love participated, the SAC delivered its report to Minister Thwaites on 3 January 2001. The SAC expressed a preference for the F2 Freeway route known as “Option Y” passing through Mr Love’s land.
Also, in January 2001, a panel appointed to consider proposed amendment C8 to the Hume and Whittlesea planning schemes reported and recommended in favour of the duplication of Cooper Street on an alignment which involved the acquisition of a 3.34 hectare strip of land along the southern boundary of Mr Love’s land for that purpose and the provision of an intersection at the point of entry to the WCC No. 2 tip and the Alvies tip share access road.
On 21 February 2001, the Premier of Victoria announced, in a media release, that Option Y had been selected as the route for the Bypass.
On 26 February 2001, the Urban and Regional Land Corporation purchased land to the immediate north of Mr Love’s land from Mr Long. This land was within the area of then proposed amendment C12 and was rezoned for industrial development in September 2002.
On 28 May 2001, a meeting occurred between Mr Barro and Mr Hocking in relation to the proposed purchase of basalt quarry land from Kilpatrick at Cobbledicks Ford Road, Wyndham Vale. The contracts of sale, which were entered into following these discussions, are dated 11 June 2002.
On 4 June 2001, Mr Hince, on behalf of the NRWMG, advised Mr Love that the void on the WA149 land had been included in the list of prospective landfill sites submitted to the EPA for putrescible waste. The letter included a list of additional prospective sites including Bolinda Road, for putrescible fill, the Hanson site south of Cooper Street with a 1.5 million to 2 million cubic metre void for solid inert waste, the “GB landfill” at Bundoora with a 2.5 million cubic metre void for inert waste and engineered fill, which sites were immediately available. Each of the sites in respect of which an expression of interest had been lodged for landfill had been assessed, using a standard set of criteria and ranked accordingly. The preliminary assessment and schedule of prospective sites was submitted to the EPA. The prospective landfill site schedule was never approved by the EPA and none of the prospective sites ever obtained works approval. No expression of interest had been lodged in respect of the WA658 site and it was not included.
On 5 July 2001, the SEPP was gazetted. Section 16(1) of the EP Act gives explicit legislative recognition to gazetted SEPPs. Sections 38, 40 and 44 require that a discharge or deposit of “waste” complies with all relevant SEPPs.
By contract of sale dated 25 July 2001, Barro Group Pty Ltd purchased the Point Wilson quarry, of which it had been lessee, from Orica. Mr Dudakov acted for Orica, Mr Hocking for Barro Group.
On 27 August 2001, amendment C8 to the WPS was approved, facilitating the acquisition of land for the proposed duplication of Cooper Street.
On 4 September 2001, amendment C23 to the WPS was approved, facilitating the acquisition of land for the proposed Bypass by the imposition of a public acquisition overlay.
In October 2001, the EPA adopted the BPEM, section 4 of which stated:
Screening for potential landfill sites … The hierarchy of aspects to be considered when screening for potential landfill sites is: 1. Community needs; …
Community needs … A landfill should not be located where it is not needed for the disposal of a community’s waste. Regional waste management groups are responsible for providing a framework for the orderly development of waste management facilities for both the public and private sectors, and ensure that a reliable system of waste management, including landfill air space, is maintained within the Region.
The BPEM also specified the need for proposed landfills to be provided for within a reasonable time frame – regional plans were required under the EP Act to be reviewed every five years:
Best practice siting considerations … EPA may refuse to issue a works approval for a landfill if the site is not provided for in the relevant RWMP, or not provided for within a reasonable time frame. EPA will require this section of the guideline to be implemented in each RWMP at its next review. Where a landfill is not provided for in a RWMP, or is to be developed before the next review of the relevant RWMP, this section is to be implemented in the developmental stage of the landfill.
On 11 November 2001, the WCC resolved to prepare documentation to progress an amendment to rezone the Cooper Street precinct to facilitate urban (business and industrial) development. This resolution eventuated in the preparation of amendment C31, which was exhibited in 2004. The provisions of amendment C31 were gazetted in May 2007 as ministerial amendment C100.
On 15 November 2001, by notice published in the Victorian Government gazette, under ss 19 and 24 of the LAC Act, 3.34 hectares of Mr Love’s land was compulsorily acquired for the purposes of the duplication of Cooper Street.
By a letter dated 7 December 2001, the Corporation gave formal notice to Mr Love of its intention to acquire 25.62 hectares of land for the purposes of the Bypass.
On 20 December 2001, the NRWMG forwarded a proposed amendment to the regional plan incorporating a schedule of prospective landfill sites to the EPA. The schedule included the WA149 site and a site in Bolinda Road, Campbellfield as prospective putrescible waste sites. It included the Hanson site south of Cooper Street in the schedule of potential solid inert sites. Later, EPA works approval was sought for the Bolinda Road site for a solid inert tip. Like the efforts made to secure approvals for the Hanson site south of Cooper Street, attempts to obtain works approval for Bolinda Road as a solid inert tip also failed. The NRWMG document did not include Mr Love’s land. It reported that air space capacity available in existing landfills is sufficient for at least the next 10 years and likely to be 25 years.
2001- The NRWMG recognises the WA149 landfill in its draft plan amendment.
On 11 February 2002, a notice of acquisition of 25.62 hectares of Mr Love’s land for the purposes of the Bypass was published in the Victorian Government Gazette under ss 19 and 24 of the LAC Act.
2002 October - The City of Whittlesea Municipal Strategic Statement comes into effect.
2003 January - Possession of the Love land for the Craigieburn Bypass is given to the Corporation.
---
10
9
0