Roads Corporation v Love - [2010] VSC 32

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION VALUATION, COMPENSATION AND PLANNING LIST
No. 10147 of 2005
ROADS CORPORATION	Applicant
v
THOMAS JAMES LOVE	Respondent

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JUDGE:

OSBORN J

WHERE HELD:

Melbourne

DATE OF HEARING:

22 and 23 April, 27-29 April, 1 May, 4-8 May, 11-15 May, 18-21 May, 25-28 May, 18-20 August, 24-27 August, 31 August, 1-3 September, 7-11 September, 14-18 September 2009

DATE OF JUDGMENT:

23 February 2010

CASE MAY BE CITED AS:

Roads Corporation v Love

MEDIUM NEUTRAL CITATION:

[2010] VSC 32

As revised on 4 March 2010

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LAND VALUATION AND COMPENSATION - Compulsory acquisition of part of land utilised for agricultural and quarry purposes - Highest and best use of land - Claim for loss of landfill potential - Uncertainty of access not affecting prospects of land use approval - Low prospect of land use approvals for landfill use – Uncertainty of access not affecting market value at date of acquisition or thereafter - Market value reflecting future industrial value of land - Hypothetical development calculations rejected - Discounted cash flow analyses rejected - No special value in landfill potential - No severance claim reflecting landfill potential - No disturbance claim reflecting landfill potential - Special value of trees, residence and access tracks - Disturbance claims – Solatium - Environment Protection Act 1970, ss 4, 16, 38, 40, 44, 50E, 50F, 50G, 50H, 50R, 50RE - Extractive Industries Development Act 1995 - Land Acquisition and Compensation Act 1986, ss 30, 40, 41, 43, 44, 90, Part IV - Planning and Environment Act 1987, ss 4, 7, 149, Part 1A - Valuation of Land Act 1960, s 5A.

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_________________________________________________________________________________

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. J. Delany, SC with	Garland Hawthorn Brahe
Mr P. Chiappi and Mr S. Goubran
For the Respondent	Mr A. G. Southall QC with	McCluskys Lawyers
Mr D. O’Brien and Mr A. Fraatz

_________________________________________________________________________________

TABLE OF CONTENTS

GLOSSARY .........................................................................................................................................3

1 Introduction.............................................................................................................................4

1.1	Market value – introductory summary ............................................................................10
1.2	Access uncertainty – the first threshold difficulty ........................................................10
1.3	Planning prospects – the second threshold difficulty ..................................................12
1.4	Highest and best use............................................................................................................13
1.5	Landfill potential .................................................................................................................13
1.6	Special value – introductory summary ............................................................................15
1.7	Severance – introductory summary ..................................................................................18
1.8	Disturbance – introductory summary ..............................................................................20
1.9	Causation – the third threshold difficulty.......................................................................21
1.10	The course of the trial..........................................................................................................22
1.11	Legal concepts .......................................................................................................................26
1.12	The land .................................................................................................................................39
2	Market value – the effect of uncertainty of access – the first threshold difficulty..45
2.1	The prospects of obtaining land use approvals for a landfill - the second threshold difficulty ................................................................................................................................62
2.2	Need........................................................................................................................................63
2.3	The Cooper Street Precinct Strategy (‘CSPS’).................................................................95
3	Market value – valuation evidence.................................................................................102
3.1	Waste stream .......................................................................................................................121
3.2	Gate price.............................................................................................................................126
3.3	Compaction ratios ..............................................................................................................130
3.4	Costs of construction .........................................................................................................133
3.5	Cumulative risk ..................................................................................................................144
3.6	Discounted Cash Flow calculations................................................................................148
4	Special value and severance.............................................................................................176
4.1	Loss of trees (claim 2(g))....................................................................................................178
4.2	Loss of access facilities (claim 2(c), (d) and (e)) ............................................................182
4.3	Loss of amenity (claim 2(a)) .............................................................................................184
4.4	Loss of direct access to dwelling - the travel cost claim (claim 2(b))........................186
4.5	Special value conclusions.................................................................................................189
5	Disturbance – alleged consequential loss relating to landfill potential .................190
5.1	Further disturbance claims...............................................................................................210
5.2	The power surge claim (claim 2(f)) .................................................................................211
5.3	Loss of time claim – resolution of WA149 access (claim 2(i)) ....................................213
5.4	Time to reinstate water supply (claim 2(j)) ...................................................................214
5.5	The protective fencing claim (claim 2(m)).....................................................................214
5.6	Loss of time in liaison with the Corporation’s fencing contractors (claim 2(n)) ...214
5.7	The claim for time relating to preparation of the claim (claim 2(o))........................215
5.8	Disturbance conclusions...................................................................................................215
6	Solatium ...............................................................................................................................216
7	Conclusion...........................................................................................................................225

Appendix A – Mr Lonergan’s Discounted Cash Flow Valuation .........................................227

GLOSSARY

BPEM Best Practice Environmental Management Siting, Design,
Operation and Rehabilitation of Landfills document
CAPM capital asset pricing model
CSPS Cooper Street Precinct Strategy
Conundrum Conundrum Holdings Pty Ltd
DCF discounted cash flow
EPA Environment Protection Authority
EP Act Environment Protection Act 1970
EID Act Extractive Industries Development Act 1995
LAC Act Land Acquisition and Compensation Act 1986

Landfills SEPP

SEPP applied to all landfill sites receiving municipal wastes, including privately owned sites; municipal wastes were defined to include putrescible wastes.
MSS municipal strategic statement
NRWMG Northern Region Waste Management Group
P and E Act Planning and Environment Act 1987
RWMP regional waste management plan
the Corporation Roads Corporation
SEPPs State Environment Protection Policies
SPPF State Planning Policy Framework
VCAT Victorian Civil and Administrative Tribunal
VL Act Valuation of Land Act 1960
WA149 Works Authority 149
WCC Whittlesea City Council
WPS Whittlesea Planning Scheme

HIS HONOUR:

Introduction
On 15 November 2001, Roads Corporation (‘the Corporation’)[1] acquired a 3.34 hectare strip of land running along the southern boundary of a 210 hectare property in Cooper Street, Epping, owned and in large part occupied by the respondent, Mr Love.
[1] Also referred to in evidence as VicRoads.
The purpose of the acquisition was to facilitate the duplication of Cooper Street. The provision of an extra carriageway required the acquisition of land in order to widen the roadway reserve.
The principal dispute between the parties arises not with respect to the value of the land actually acquired, but because Mr Love contends that the acquisition resulted in a consequential loss of value to the balance of his land.
In particular, Mr Love contends the land suffered a loss of value as the site of a potential landfill within existing and proposed quarry holes in its western-most portion. The quarry operation was at the relevant time being conducted in accordance with Works Authority 149 (‘WA149’) pursuant to the provisions of the Extractive Industries Development Act 1995 (‘EID Act’). It was carried on by a company controlled by Mr Ron Kerr, known as Conundrum Holdings Pty Ltd (‘Conundrum’), which leased the WA149 land from Mr Love.
In June 2001 Mr Love’s land was proposed to be placed on a draft regional waste disposal plan prepared for the purposes of the Environment Protection Act 1970 (‘EP Act’).[2] This enlivened its potential for landfill use by designating it as potentially appropriate for works approval pursuant to the EP Act and by way of planning permit pursuant to the Planning and Environment Act 1987 (‘P and E Act’).
[2] On or about 26 July 2001 the WA149 site was included as a potential landfill site by the Northern Region Waste Management Group (‘NRWMG’) in a waste management plan schedule which was subsequently submitted to the Environment Protection Authority (‘EPA’) for approval as an amendment to an existing plan.
In July 2002, however, the EP Act was amended to require in effect that the site be included in a regional plan approved by the EPA as a pre-condition to the grant of a works approval. Mr Love’s land was not so included at the time and has not been so included since. As a consequence there was what was described on behalf of Mr Love as a window of opportunity for the obtaining of land use approvals for landfill use only between June 2001 and July 2002.
Mr Love’s case is that he missed this window of opportunity because during this period arrangements for vehicular access from the WA149 land to the realigned and duplicated Cooper Street were uncertain. He contends the uncertainty was such that no application for land use approval of a landfill was feasible.
The central question in this case thus concerns whether or not (and if so to what extent) the acquiring authority is required to compensate Mr Love for any lost landfill potential inherent in the WA149 land component of the Cooper Street land, by reason of the proposal for and the implementation of the Cooper Street duplication project.
The claim with respect to loss of landfill potential is expressed alternatively as one for market value, special value, severance or disturbance.
It is quantified in the sum of $10,507,000, a figure derived from the evidence of Mr Herdman, a valuer called on behalf of Mr Love.
Further claims for disturbance, severance or special value are also made with respect to a series of particular items, including loss of amenity, reinstatement of access and driveways, power surge damage, loss of trees, loss of Mr Love’s time, reinstatement of water supply and fencing.
These claims were particularised on behalf of Mr Love as follows:
2. Pursuant to section 41(1)(c), (d) and (e) LAC [Act] additional claims for disturbance, severance and/or special value

(a) Loss of amenity to dwelling & farming $60,000.00
facilities including disturbance during
construction
(b) Loss of direct access to dwelling $22,000.00

(c) New internal farm track to replace access $2,000.00
gate on gas line
(d) 410 Cooper Street heavy vehicle driveway $5,000.00
(e) 410 Cooper Street car driveway $5,000.00

(f) Costs associated with power surge on 30 $33,404.00
January 2003:

(g) Loss of Trees $279,550.00

(h) Deleted – incorporated under item 1 of Nil
claim

(i) Respondent’s time liaising with the $25,440.00

Applicant and Conundrum Holdings Pty Ltd to reinstate access being 212 hours at $120 per hour

(j) Costs associated with the proper $3,182.00
reinstatement of water supply to 410
Cooper Street Epping
(k) Costs arising due to the re-design of the Central Creek Culvert

(i) 62 hours at $120 per hour $7,440.00

(ii) Additional fill required[3] $2,925,000.00
[3] Footnote omitted.
(l)

Deleted – included in item 2(j) above Nil
(m)

Fencing – to protect replacement trees $10,585.00
(n)

Liaison with VicRoads fencing contractors – $4,320.00
16 hours at $120 plus 20 hours at $60
(o) Claim preparation costs:

172 hours at $120 per hour $20,640.00

TOTAL, say $3,403,000.00

The claim of some $2,932,440 in respect of drainage impacts was withdrawn in the course of the hearing.
A claim for legal valuation and other expenses pursuant to s 41(1)(f) of the Land Acquisition and Compensation Act 1986 (‘LAC Act’) has been agreed in the sum of $30,334.92.
Mr Love also claims solatium in an amount not exceeding 10 per cent of the market value of the ‘before’ land.
The total claim (net of interest) was expressed to be ‘say $16,267,000’ (inclusive of the drainage impacts claim).
A statement of issues dated 17 April 2009 filed pursuant to direction of the Court summarised the manner in which the Corporation joins issue with the claim as follows:
1. Each of the claims set out in the respondent’s amended particulars of claim as at 16 March 2009 is in issue.
Claim 1 Market value, severance, disturbance, depreciation and special value
2. The principal matters in issue are:

a. whether the proposed duplication of Cooper Street and/or the carrying out of the Cooper Street duplication had an impact on the value of the respondent’s land by adversely affecting:
i.            the prospect of obtaining approvals for the development and use of a putrescible landfill within the WA149 area on the respondent’s land;
ii            the ability of the respondent to market the WA149 landfill site (“the site”) whilst the reinstatement of access to the site remained uncertain and/or unresolved;
iii.          its value to the hypothetical purchaser (including special value to the respondent).

3.           The respondent says that:

a. the acquisition, and/or the carrying out of the duplication
works:
i.            prevented and/or hindered the respondent from applying for the approvals by creating uncertainty as to the access to the respondent’s land;
ii.           removed and/or adversely affected the ability of the respondent to market the site whilst the reinstatement of the access to the site remained uncertain and/or unresolved;
iii.          diminished the value of the site to the hypothetical purchaser (including special value to the respondent);

b. were it not for the acquisition or the carrying out of the duplication works, the respondent:

i. could have and/or would have applied for and obtained the approvals;
ii. the respondent could have and/or would have marketed the site to a prospective landfill operator;
iii. the value of the site to the hypothetical purchaser (including special value to the respondent), would have reflected a price for the site’s landfill potential.

4.           The Corporation says that:

a. neither the acquisition nor the duplication works created any uncertainty as to the access to the respondent’s land nor had any affect on the respondent’s ability to apply for or obtain approvals;
b. the respondent would not have been granted a planning permit for the development and use of a putrescible landfill.
5.           The parties disagree as to the value of the land including the value of a potential putrescible landfill in the “before”.
6.           In the “after”:

a. the respondent says that the land had no value referable to the operation of a landfill.
b. the Corporation says that the value of the landfill is unaffected from the “before”.
7.           The parties disagree as to the value of the land in the “after”.

Claim 2(a) Loss of amenity
8. The parties disagree as to the impact on amenity and the Corporation denies any liability for this claim.

Claim 2(b) – (e) Loss of access and other access issues
9. The parties disagree as to the affect of the duplication works on the access to the respondent’s dwelling and other access points to the respondent’s land.
10. The Corporation denies any liability for these claims.

Claim 2(f) Power surge
11. The parties disagree as to the cause of the power surge said to have occurred on 30 January 2003.
12. The Corporation denies any liability for the claimed event and disputes the amount of damage claimed.

Claim 2(g) Loss of trees
13. The respondent claims a value for trees on the acquired land in addition to the respondent’s before and after assessments of market and special value of the acquired interest in the land.
14. The Corporation disputes the entitlement to any part of this claim and its amount.

Claim 2(i), (j), (n) and (o) Time claims
15. The Corporation disputes the claims made for the respondent’s time in their entirety, both as to the time spent and the rate claimed.

Claim 2(k) Culvert claim
16. The respondent says:

a. The carrying out of the Cooper Street duplication works, including installation of the culverts at Central Creek have increased the flood level on the respondent’s land; and
b. the level of the respondent’s land will need to be filled as a consequence to enable development of his land.
17. The Corporation denies any liability for this claim and says:

a. the flood level is the same in the “before” and “after”;

b.

the amount claimed by the respondent for filling the land is excessive;

c.

the filling of the respondent’s land is theoretical and would not occur in practice, that is, there is no loss suffered.

Claim 2(m) Fencing
18. The respondent says that it will incur expense in fencing replacement trees for trees lost through the acquisition.

19. The Corporation denies any liability for this claim and says that the respondent has not replaced the trees or carried out the fencing and that accordingly there is no loss.

Professional costs and expenses
20. The respondent claims $30,334.92 in respect of legal, valuation and other professional costs necessarily incurred by reason of the acquisition.
21. The Corporation allows this amount less GST.

Solatium
22. The respondent claims an increase in the amount of compensation by way of solatium as is reasonable to compensate the respondent for intangible and non-pecuniary disadvantages resulting from the acquisition at an amount not exceeding 10% of the market value of the land, in the discretion of the Court.
23. The Corporation allows $10,000.

1.1	Market value – introductory summary
18	The most substantial claim is that made for loss of market value. This claim rests on a series of assumptions, two of which give rise to fundamental threshold difficulties.
1.2	Access uncertainty – the first threshold difficulty
19	The claim asserting loss of landfill potential is first put by way of a claim for loss of market value. There is a threshold difficulty confronting this claim. At the time of the acquisition there was no approval for landfill use upon the WA149 land. The evidence shows that such access complications as arose from the Cooper Street duplication project would not have prevented the grant of land use approvals for landfill. The resolution of access issues would have been regarded by the relevant authorities as constituting a question properly resolved by a permit condition and not the refusal of approval. If approval were granted both in the ‘before’ or ‘after’ situation, it would have been subject to a condition that access to the landfill be provided to the satisfaction of the Corporation (as the highway authority). This conclusion flows from the combined force of the evidence of the town planning, traffic engineering and other witnesses. It is circumstantially supported by the report of the panel which recommended the grant of a planning permit for an additional quarry on the central portion of Mr Love’s land (‘WA658 land’) subject to a condition in the following terms:

access to Cooper Street is to be to the satisfaction of VicRoads and the Responsible Authority and may include upgrading of the existing quarry access road and mitigating works at no cost to VicRoads and the Responsible Authority.

Whatever Mr Love may have perceived as the effect of uncertainty relating to access arrangements flowing from the duplication of Cooper Street, at the time, the hypothetical purchaser would not have regarded such uncertainty as existed, as preventing successful application for a planning permit and works approval either in the ‘before’ or ‘after’ situation.
In both the ‘before’ and ‘after’ situations Mr Love and the hypothetical purchaser:

• needed to demonstrate it was feasible to upgrade the existing access to the land if
a permit for landfill was to be granted;
• needed to finalise which of a number of alternatives for such access was pursued;
• needed a planning permit to create or alter access to Cooper Street to facilitate
access to the landfill; and
• needed if possible to obtain permanent access from the land via the optimal
solution, ie a signalised intersection serving land owned by Whittlesea City
Council (‘WCC’) immediately to the west.

A series of feasible alternative access points to the quarry road were available to a landfill located on the WA149 land in both the ‘before’ and ‘after’ situations. It was entirely feasible to create a new access point 300 metres to the east of the pre-existing quarry road access point on Mr Love’s land, opposite a break in the median strip.
The finalisation of access arrangements in the vicinity of the quarry road would not have been regarded by the hypothetical purchaser as a necessary pre-condition to the seeking of or obtaining of approval.
A properly advised purchaser would not have regarded the need to finalise access arrangements as materially affecting the landfill potential of the land.
A properly advised hypothetical purchaser acting prudently and reasonably would not have delayed making application for approval of a landfill by reason of the access uncertainty (although other considerations may well have delayed such application).
It follows that the claim for loss of market value fails in the first instance because I am satisfied that the hypothetical purchaser would not have regarded access uncertainty in the ‘after’ situation as having affected any value the land had by reason of its landfill potential (‘the first threshold difficulty’).

1.3

Planning prospects – the second threshold difficulty

Insofar as the claim for market value is concerned, the task in considering planning approval potential is not to decide whether planning approval would in fact have been granted, but whether and if so how, a hypothetical purchaser at the relevant date would have taken the prospects of obtaining approval into account as affecting the value of the land.[4]

There is a further threshold difficulty facing the claim for loss of market value. The hypothetical purchaser would have considered there was no real short term prospect of obtaining approval for a landfill at the date of acquisition either by way of planning permit or works approval (‘the second threshold difficulty’). This conclusion depends on an analysis of the planning and environmental evidence. Ultimately I prefer the view of Mr Milner that there was no real prospect of obtaining approval for a landfill in the short term if no need for such a landfill could be established and that the question of need was primarily to be resolved by reference to regional supply of tipping space.

There were other planning difficulties confronting development of a landfill and in particular the question of strategic planning for the Cooper Street precinct. I do not regard these as something the hypothetical purchaser would have considered determinative of the site’s landfill potential but they reinforce the view that the site faced very serious difficulties in obtaining planning approval for a landfill.

In my view the hypothetical purchaser would have regarded the prospect of obtaining land use approvals in the short term as no more than 10 per cent.

1.4

Highest and best use

The highest and best use generally of Mr Love’s land at the date of acquisition was for the purpose of future industrial use. Mr Brown and Mr Dudakov’s order of value is effectively unchallenged in respect of the potential of the land to be used for this purpose (although there was some criticism of Mr Brown by reference to his evidence in another case relating to the acquisition of land at Craigieburn and to the increase by him of his initial values).

Such value is deduced from analysis of comparable sales.

The valuers who advised Mr Love as to the value of the land for the purpose of future industrial use (Mr Hocking and Mr Kerr) were not called to give evidence.

The value arrived at by Mr Brown and Mr Dudakov is above that which the market demonstrates a buyer would generally pay for land with extractive industry and consequential landfill potential.

1.5

Landfill potential

What is fundamentally in issue in terms of the valuation evidence is whether the WA149 land had a higher value as a potential landfill than it had as future industrial land.

Mr Love’s valuers have undertaken hypothetical development calculations in order to demonstrate that it did. The Corporation’s position is that evidence of this kind does not demonstrate the highest and best value was for future landfill use and that the land should be valued as future industrial land by reference to comparable sales.

Whereas the future industrial value can be deduced from comparable sales with sufficient probability, I do not accept that either primary methodology adopted by Mr Herdman or Mr Lonergan on behalf of Mr Love can be used with any confidence.

I do not accept Mr Herdman’s methodology was shown to be that adopted in the market place with respect to comparable transactions at the relevant date.

I do not accept the assumptions made by Mr Herdman with respect to critical inputs into his calculation and in particular waste stream, gate price, compaction ratios, engineering costs and cumulative risk.

Mr Herdman’s ‘before’ calculation should be rejected because:

(a)	it does not reflect the approvals risk constituted by the second threshold difficulty;
(b)	I do not accept critical assumptions as to waste stream, gate price, compaction and engineering costs; and
(c)	I do not accept the cumulative risk involved in his sequential calculation is adequately taken account of.

Both Mr Meredith and Mr Lonergan undertook discounted cash flow (‘DCF’) calculations with respect to a hypothetical landfill development of Mr Love’s land. Both Mr Meredith and Mr Lonergan proceeded on the basis that the results of their DCF calculations should be discounted to reflect the probability of land use approvals. If that is done utilising the 10 per cent probability to which I have referred, the calculations do not generate a ‘before’ value higher than the future industrial value of the land.

Further, the DCF methodology requires adequate proof of its assumptions if it is to be accepted.

I do not accept capital or operating expenditure, waste stream or gate prices can be predicted with the confidence with which they could for an established business.

I do not accept Mr Lonergan’s assessment of the appropriate discount rate. I prefer that of Mr Meredith. I do not accept that the rate adopted by Mr Lonergan for valuation of an existing landfill in Sydney could be equally applicable to the present case.

I do not accept critical assumptions which favour Mr Love made by both Mr Lonergan and Mr Meredith with respect to waste stream, compaction, gate prices and costs.

I am satisfied the DCF analyses put forward are not sufficiently reliable in respect of critical parameters to demonstrate a positive value for the proposed landfill even if the risk as to land use approvals is disregarded.

1.6

Special value – introductory summary

It is contended that the land had special value to Love by reason of its potential for use as part of a co-ordinated package of land uses.

This submission is made within the framework of an overall business strategy which Mr Love described in evidence. His evidence was that from 1975 when he commenced management of the original Clonard property (which included the Cooper Street land owned by him at the date of acquisition) one of the key elements of this business strategy was:

[4] De Ieso v Commissioner of Highways (1981) 27 SASR 248, 253-254; Flotilla Nominees Pty Ltd v Western Australian Land Authority and Anor (2003) 27 WAR 403, [24].

(d) to seek other income sources including opportunities for the use of completed quarry areas for land fill waste disposal.

In addition Mr Love’s evidence was that after he took over management of the family property in 1975 he put in place the following broad business principles:
(a)         Whatever activities we engaged in were required to demonstrate a distinct commercial advantage: in that regard I adopted the business principle that when one enters a new market, you have the opportunity to select your competition and your position in that market; if one selects second place in such circumstances, the business is likely to fail;
(b)         We needed to bring on a new enterprise every five to seven years to give us sufficient time to absorb capital costs and to keep the initiative in the area;
(c)          The enterprises had to require low off property infrastructure costs, be of a complementary nature and be under the Love family’s control. The first two points were all about having the lowest cost base. The last was derived from our past experience where we had learned that it was important to have a high degree of control over on-site activities: by way of example, a clause was inserted in the Conundrum lease as a deterrent to the land being “land banked” if that company had sold out as Blue Metal Quarries had sold to Pioneer in 1969;
(d)         That business activities on or in relation to the land operate under high quality management, and preferably self-management. In this regard, the management by Whittlesea Council of the Cooper Street No 1 and No 2 landfills, and Pioneer’s management of our quarries, had been unacceptable and to our commercial disadvantage; that is by association, their activities gave us a bad name in the neighbourhood. In particular, by creation of high levels of dust and off-site waste in the local area;
(e)          To endeavour to maintain control over activities conducted at Clonard with regard to costs and our business goals. The funding of development activities was to be done by way of “off property” earnings (primarily mine), and progressively increasing “on property” earnings and borrowings where necessary. In this regard I had previously borrowed to purchase land in Violet Town, which was paid off by 1995. The method to finance a landfill would be to obtain relevant approvals and then put in place bankable “take or pay” contracts with waste collectors. The 1992 Conundrum WA149 quarry lease is an example of such a “take or pay” contract.
Mr Love’s evidence was that the timing of the strategy and business plan with respect to quarrying and landfill which he developed over time was in the ‘before’ situation as follows:
(a)         1978 to 1984 – remove Pioneer to regain control over our assets and stop that company from further damaging the image of our business:
(b)         1981 – sell the Cooper Street number 1 landfill to Whittlesea Council for $0.4 million;
(c)          1982 – have a geological assessment done of that part of the Clonard property zoned extractive and not quarried;
(d)         1984/5 – renovate the Clonard Homestead to preserve this historic iconic site and to provide an income stream until such future time that the Love family would return to live in it following other developments on the Clonard property. The Homestead site was separated from other future developments by a watercourse;
(e)          1982 to 1990 – find and contract a new quarry lessee (Conundrum Holdings) to quarry the small extractive zoned basalt deposit between the old Pioneer quarry sites so as to create the third Clonard Landfill site. The site was contracted to be completed by 2002;
(f)          1989 – sell the Cooper Street number 2 landfill to Whittlesea Council for $2.7 million;
(g)         1993 to 1995 – explore that part of the Clonard property not leased to Conundrum to define the next (number 4) quarry site;
(h)         1995 – advise Council of the intention to build a Livestock Exchange and a fourth quarry on the Clonard property, the Exchange being a highly complementary activity to the quarry and land fill (sic) sites on and adjacent to the property;
(i)          1995 to 1997 – complete the exploration of the property sufficient to apply for a Work Authority (WA 658);
(j)           1997 to 2002 – apply for and construct the first state of the Livestock Exchange;
(k)         1997 to 1999 – apply for a quarry rezone (later permit 704078) to quarry the defined WA 658 resource and begin site works such as bund wall creation;
(l)          1998 to 2001 – notify the Northern Region of Councils Waste Management Group that the Conundrum quarry and the WA 658 site be placed on the Region Schedule of landfills as a precursor to the gaining of an EPA licence;
(m)        2001 to 2003 – apply for a landfill permit for the Clonard Number 3 landfill (Conundrum quarry/WA 149 site) and Clonard Number 4 landfill (WA 658) sites;
(n)         2003 to 2013 – conduct the Clonard Number 3 landfill operation on the WA 149 land;
(o)         2002 to 2050 – joint venture or conduct the Clonard Number 4 quarry operation on the WA 658 site together with a concurrent solid-inert waste landfill commencing at around 2010;
(p)         2009 – construct stage 2 of the Livestock Exchange;
(q)         2010 to 2020 – joint venture or undertake the development of the eastern block of the Clonard property;
(r)          2013 to 2050 – run recycling and waste processing operations on the Clonard Number 3 site which would feed intractable by-product material which could not be commercially recycled into the Clonard Number 4 site. Set up and run or joint venture a transfer station on Clonard Number 3.
I do not accept that the landfill potential of the land was of special value to Mr Love.
Any landfill would have exploited the market value of such a use and not a characteristic of the land of special value to Mr Love. This was accepted by the valuers called to give evidence on his behalf.
Nevertheless it is open to Mr Love to claim that the land had special value to him in certain respects relating to its residential and agricultural use to which I shall return in detail.

1.7	Severance – introductory summary
54	In so far as the claim for severance is concerned Mr Love submits that the claim falls within the second limb of the statutory definition, being a claim for the loss of market value of ‘any interest of the claimant in other land used in conjunction with the acquired land which is caused by its severance from the acquired land.’[5]
55	The interest in other land asserted is the pre-existing one of right of access onto Cooper Street from the quarry road on Mr Love’s land.
56	At common law an owner of land adjoining a highway has a right to free and uninterrupted access to the highway from any point on the land contiguous with the highway and from the highway to any point on the land contiguous with it.[6]
57	In the ‘before’ situation this common law right was constrained by a planning scheme requirement for a permit to create or alter access points onto Cooper Street.
58	Nevertheless severance of the right of access to the highway potentially embraces a loss of market value in the balance of Mr Love’s land, occurring after the date of acquisition, and in the present case crystallising at the end of the window of opportunity which Mr Love alleges closed with the amendment to the EP Act in July 2002.[7]
59	In Tanner v Minister of Education and Training,[8] Bignold J held in respect of comparable legislation, that the right of an adjoining owner to not have an existing lawful access interfered with was:

[5] LAC Act s 40.

[6] Walsh v Ervin [1952] VLR 361, 362 and 368; McMahons Road Pty Ltd v Frankston City Council [2005] VSC 522 (unreported, Dodds-Streeton J, 4 May 2005), [20].

[7] Section 41(3) of the LAC Act does not necessarily cover such a claim in a case such as the present because it is concerned with the assessment of market value as at the date of the acquisition.

[8] (2002) 119 LGERA 321.

…relevantly an "interest in land" within the meaning of the Just Terms Act which was divested and extinguished by the compulsory acquisition of School Street, in respect of which divesting or extinguishment the applicant is entitled to compensation
pursuant to the Just Terms Act, s 37. [9]
[9] Ibid, 345.

I agree that interference with the pre-existing right of access onto Cooper Street from the quarry road was one potentially capable of causing loss falling within the statutory definition of severance.

The Corporation objects that there was in fact no practical severance of access to Mr Love’s land during the relevant period. The Conundrum Quarry continued to access Cooper Street from the WA149 land over the WCC land during the period in issue. The balance of Mr Love’s land also continued to have access to Cooper Street via driveways adjacent to his house. It seems to me however that subject to demonstration of the necessary causal link, it is open to Mr Love to contend that the severance of access to the WA149 land after the acquisition and during the window of opportunity occasioned delay in seeking approval for a landfill, which crystallised in loss of market value upon the change to the EP Act. Such a claim potentially falls within the concept of severance as statutorily defined.
This is not to say that the causal argument is free from difficulty. There are a series of problems in this regard to which I will return in connection with the claim for disturbance. Assuming however for present purposes that a severance claim may be raised, the fundamental problem confronting Mr Love is that severance sounds in loss of market value as at the date of the loss. Loss of market value means the amount of money that would have been paid for the relevant interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser.[10] Such a claim faces the same problems as the primary claim for loss of market value as at the date of acquisition. Access difficulties due to ‘severance’ did not in fact cause a loss of market value. The underlying potential for landfill use was unaffected by reason of the first threshold difficulty. Further, such potential was in any event very low having regard to the prospects of obtaining land use approval at that point in time and future landfill was not the highest and best use of the land.
[10] Section 40 LAC Act.
As I have already stated, pre-existing access required alteration or replacement with new access if a landfill were to be permitted. It follows that there was no severance of access which could itself have been utilised for a landfill. The real question is whether uncertainty as to the resolution of access issues led to a loss of market value. It did not, whether that question is asked as at the date of acquisition or at the end of the window of opportunity.

1.8

Disturbance – introductory summary

Despite the difficulties confronting a claim for loss of market value either as at the date of acquisition, or subsequently by reason of severance, it may be accepted that if Mr Love in fact failed to obtain land use approval for a landfill upon the WA149 land within the window of opportunity as a result of a course of conduct responsive to the acquisition, then he may potentially be able to formulate a claim for consequential financial loss. In effect such a claim is one for personal financial loss flowing from the process of acquisition as it was implemented as distinct from the effect of the acquisition on market value.

The Corporation submits that such a loss could not be regarded as a ‘natural direct and reasonable’ consequence of the acquisition because it was caused by Mr Love’s decision to pursue a better access solution for the WA149 land than that which existed prior to the acquisition.

Mr Love submits that it was reasonable for him to seek access of equivalent standards to that provided by the Corporation to the adjoining WCC land to the west. For reasons I shall elaborate I accept this submission.

1.9

Causation – the third threshold difficulty

Nevertheless, the consequential loss claim must fail because no landfill approval could have been obtained in the time available during the window of opportunity (‘the third threshold difficulty’). Mr Love’s strategy but for the acquisition was to obtain approvals in the period between 2001 and 2003. In practical terms it was necessary for him to resolve arrangements with Conundrum before a works approval application could be made to the EPA. In commercial terms it was also necessary for him to sort out some arrangement with a major waste source collector. In addition to these steps it was necessary to undertake site specific investigations before the works approval application was made to the EPA. In turn the EPA required time to consider the application and in the present case that consideration would have included consideration of the difficult issue of need. After the EPA’s decision the matter would on the balance of probabilities have gone to the Victorian Civil and Administrative Tribunal (‘VCAT’) either by way of appeal by Mr Love or by way of appeal by the WCC. The EPA’s approvals process would have been accompanied in parallel by an application for planning approval and the evidence supports the view that the WCC would have refused planning permission also requiring an appeal to VCAT.

Both the planning permit application and the works approval application would require co-ordination with the conditions governing the continuing operation of the quarry. The EID Act works authority governing WA149 would also require modification if a quarry and a landfill were to be operated on the same site simultaneously. Conditions relating to buffers between the two uses and constraints upon landfill use during blasting and similar matters would require resolution.

The evidence as a whole demonstrates that the landfill could not have obtained final land use approvals pursuant to the relevant legislation and most critically the EP Act in under two years.

Further, and in any event as I have already said, there was no practical prospect of obtaining land use approvals during this period by reason of what I have called the second threshold difficulty, namely, the requirement to demonstrate a need for the landfill having regard to the regional supply of landfill space at the relevant point in time.

Likewise, even if the consequential loss claim did not fail by reason of the second or third threshold difficulties I do not accept Mr Love’s case as to the value of the potential approvals which he has lost.

It follows that Mr Love’s claim for the loss of landfill potential must fail. I shall now set out my reasons for this conclusion in greater detail and also state my conclusions and reasons with respect to the further loss claims and the claim for solatium.

It is convenient first to set out some preliminary matters.

1.10

The course of the trial

This proceeding was commenced by the Corporation by way of a Notice of Referral issued on 16 December 2005 under Part IV of the LAC Act seeking determination of the amount of compensation payable to Mr Love as a consequence of the compulsory acquisition of the Cooper Street land.

Interlocutory steps were complicated by the progress of other proceedings in this Court, taken in respect of Mr Love’s land, and in particular, a challenge Mr Love mounted to the validity of the acquisition of part of his land for the purposes of the Craigieburn Bypass,[11] and proceedings instituted by the Corporation seeking the assessment of compensation under the LAC Act in respect of land acquired on 11 February 2002 for the purposes of the Craigieburn Bypass.[12] Both these proceedings related to a 25.6 hectare parcel of land, dividing Mr Love’s land from north to south between O’Herns Road and Cooper Street. In addition, on 27 November 2003, an area of 1.9999 hectares of Mr Love’s land was acquired for the purpose of an interchange with the bypass at O’Herns Road. In turn, compensation relating to this acquisition is also the subject of a Notice of Referral by the Corporation to this Court.

The progress of the proceedings as a whole has been complicated by pleading difficulties in relation to the acquisition validity proceeding, disputes over discovery in the proceedings generally, and disputes over expert evidence in both the bypass compensation proceeding and the present proceeding.

Ultimately, the trial in the present proceeding was conducted in the first instance by reference to affidavit material which was amplified to some extent in evidence-in-chief and extensively explored in cross-examination. The parties relied on some 69 volumes of very extensive documentary material and oral evidence was called in the course of a 10 week hearing.

The hearing was conducted on an ‘issues’ basis. The evidence relied on by each side was called in respect of a sequence of issues.

The witnesses called were as follows:

(1)

Occupiers

[11] Supreme Court proceeding No. 4504 of 2003 in respect of which Cavanough J delivered judgment rejecting Mr Love’s claim on 23 June 2009.

[12] Supreme Court proceeding No. 6693 of 2004.

(a) Mr Thomas James Love
Land owner, resource-based business owner/operator
(23, 27-29 April 2009; 1, 4, 26-27 May 2009)
(b) Mrs Love
Land owner, secretary (4 May 2009)
(c) Mr Mark Wagner
Marketing manager, Conundrum Holdings Pty Ltd (5 May 2009)

(2) Traffic Engineers
For Mr Love:

(a) Mr Andrew O’Brien
Traffic engineer and consultant, O’Brien Traffic (5-6 May 2009)
For the Corporation:

(b) Mrs Katherine Partenio
Traffic engineer, consultant and director of GTA Consultants
(6 May 2009)
(c) Mr John Sidney Piper
Traffic engineer and general manager of traffic and transport,
John Piper Traffic Pty Ltd (7 May 2009)
(3) Arborists
For Mr Love:

(a) Mr Leigh Stone
Horticulturalist and aboriculturist, Carney and Stone (7 May
2009)
For the Corporation:

(b) Mr Robert Galbraith
Arboricultural contractor, consultant and director of Galbraith &
Associates (8 May 2009)
(4) Town Planners
For Mr Love:

(a) Mr Jacob Kraan
Town and urban planner (8 May 2009, 11 May 2009)
(b) Mr Phillip Borelli
Town planner and town planning consultant, SJB Planning
(11-12 May 2009)
For the Corporation:

(c) Mr Robert Milner
Town planner (12-13 May 2009)
(5) Corporation’s Fact Witnesses

(a) Mr Mario Saliba
Engineer (14-15 May 2009)
(b) Mr Adrian Tofful
Engineer (15 May 2009)
(c) Mr Anthony Roberts
Surveillance manager (15 May 2009)
(d) Mr Graham Jones
Surveillance manager (15 May 2009)
(6) Land Fill Witnesses
For Mr Love:

(a) Mr Basil Natoli
Consultant geologist, Bell Cochrane & Associates (18-19 May
2009)
(b) Mr Ronald Kerr
Managing director, Conundrum Holdings Pty Ltd (19, 20 and
21 May 2009)
(c) Dr John Terrence Bellair
Environmental consultant (25 May 2009)
(d) Mr Kevin Hince
Retired civil and municipal engineer, currently employed as
executive officer of North East Victorian Regional Waste
Management Group (25 May 2009)
(e) Mr John Phillip Piper
Geotechnical engineer and director of Lane Piper Pty Ltd,
environmental and geotechnical consultants (26 May 2009)
(f) Mr Anthony Lane
Hydrogeologist, Lane Piper Pty Ltd (26 May 2009)
(g) Mr Ross Currie
Civil engineer (25 August 2009)
(h) Mr Martin Aylward
Consultant and director, Martin Aylward & Associates, specialist
waste management consultants (25 August 2009)
For the Corporation:

(i) Mr Roger Parker
Senior geotechnical engineer and principal, Golder Associates Pty
Ltd (‘Golders’) (27-28 May 2009)
(7) Quantity Surveyors
For Mr Love:

(a) Mr Rodney Alsop
Senior quantity surveyor, WT Partnership Quantity Surveyors
and Construction Cost Consultants (24 August 2009)
For the Corporation:

(b) Mr Christopher Robinson
Quantity surveyor and director of Rider Levett Bucknall (24-
25 August 2009)
(8) Valuers / Forensic Accountants
For Mr Love:

(a) Mr Darren Herdman
Valuer, chartered mineral surveyor and director – valuation and
advisory services resources and waste management, CB Richard
Ellis (26-27, 31 August 2009, 1 September 2009)
(b) Mr Wayne Lonergan
Accountant and economist (1-3 September 2009)
For the Corporation:

(c) Mr Leslie Brown
Valuer and director of m3property (7-9 September 2009)
(d) Mr Brian Dudakov
Valuer and director of Urbis Valuations Pty Ltd (9-10 September
2009)
(e) Mr Gregory Meredith
Chartered accountant and partner of Ferrier Hodgson
(10-11 September 2009)

1.11	Legal concepts
80	Section 30 of the LAC Act provides:

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.

In turn s 41(1) of the LAC Act provides:
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 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.

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.[13] Quoting from Scott LJ in Horn v Sutherland Corporation[14] in Transport for London v Spirerose, Lord Neuberger referred to the underlying concept in the following terms:
[13] Director of Buildings and Lands v Shun Fung Ironworks Limited [1995] 2 AC 111, 125; Waters v Welsh Development Agency [2004] 1 WLR 1304, 1307; Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1822.
[14] [1942] 2 KB 26, 49.
‘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.[15]
[15] Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1814.
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.
This provision reflects the test formulated by the High Court in Spencer's case[16] and articulated by Isaacs J:
[16] Spencer v Commonwealth (1907) 5 CLR 418.
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. 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 soever in the amount which one would otherwise be willing to fix as the value of
the property. [17]
[17] Ibid, 441.
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 the present case to be undertaken by way of a ‘before and after’ analysis. 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. 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).
Further, as s 5A of the VL Act envisages and s 41(2) of the LAC Act reflects, market value is to be assessed by reference to the potential highest and best use available to the land as at the relevant date. Such an approach is necessary to reflect the full value of the land to the owner.[18]
[18] Turner v Minister of Public Instruction (1956) 95 CLR 245, 264; March v City of Frankston [1969] VR 350, 356.
The question of highest and best use may involve enquiry into the probability of planning permission being obtained for such use. In Transport for London v Spirerose Limited the inferior tribunal had held that there was a probability of planning permission being obtained but for the compulsory acquisition and proceeded to translate that probability into a one hundred per cent certainty that approval would be obtained for the purposes of compensation. The effect of the decision was as Lord Walker said:
if there is at the valuation date a 51% chance of planning permission being
granted, that should be treated as a one hundred per cent certainty.[19]
[19] Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1811. See also Lord Neuberger at 1817; cf Malec v J C Hutton Pty Ltd (1990) 169 CLR 638, 642-3.

The House of Lords held that on the evidence valuation should be based on ‘hope value’[20] and not on assumed approvals. This resulted in a valuation of £608,000 being reduced to £400,000.
[20] A concept explained by Lord Collins at 1819.
Lord Walker observed that an assumption of the full value of permission was unsafe because such permission:
… may not enable a landowner to obtain the full development value eventually realised, both because of delay and because a developer would
expect to make a good profit for itself.[21]
[21] Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] 1 WLR 1797, 1810.
It was therefore necessary to distinguish between the ‘probability’ and the ‘realised probability’ of permission.
Lord Collins summarised his view (which was adopted by the other members of the House of Lords) as follows:
It seems to me to be plain on the basis of the statutory provisions and of authority going back more than 100 years, which is entirely in accordance with commercial common sense, that
(a)         the value of the land is the open market value;
(b)         any depression in the price which the land might be expected to fetch which is caused by the scheme is to be disregarded;
(c)          the valuation must take into account the potential of the land, including its potential for development; and
(d)         the development potential must be valued in the normal way, by discounting it for future uncertainties.
If that is right, it provides a clear answer to the question on this appeal,
namely that the valuation on the ‘hope value’ basis is the appropriate one. [22]
[22] Ibid, 1824.
The present case involves significant issues as to whether and how the value of the land’s potential for landfill use should be discounted for future uncertainties. As will appear, the most significant of those uncertainties might be thought to attach to the obtaining of requisite land use approvals. The resolution of the issues falls to be determined in accordance with the terms of the LAC Act and not notions of general principle.[23] Nevertheless the English authority usefully illustrates aspects of the concept of development potential. To generally similar effect Wells J stated in Crouch v Minister for Works:
[23] Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259, 269-272.
Where a court finds facts in issue in a civil case it is empowered to act, of course, on the balance of probabilities, but where the circumstances of a case yield only probabilities to a court’s evaluation, leaving open doubts and misgivings, a valuer must, when dealing with the same circumstances, reflect, in his reasoning, not only the probabilities, but also the doubts and misgivings. In short, if the purchaser-developer judges that planning approval is virtually certain, the price that he will pay will be higher than that which he will pay if planning approval is no more than probable, and is attended by a real risk that it will be refused.
In my judgment, therefore, a correct application of the Spencer’s[24] case test implies that, if the valuer is proceeding on the basis of a hypothetical subdivision contemplated by the willing, but not anxious, buyer and seller alike, the risk that approval of the subdivision would have been refused must be taken into account in determining the bargain price, and cannot be eliminated by attributing to the valuer the liberty to treat as certain that
[24] Spencer v Commonwealth (1907) 5 CLR 418.
which, in truth and in deed, would have been no more than probable. [25]
[25] (1976) 13 SASR 553, 560-561.
The development potential of the land may affect its highest and best use. In ISPT Pty Ltd v Melbourne City Council,[26] the Court of Appeal stated:
[26] (2008) 20 VR 447.
In Commonwealth Custodial Services Ltd v Valuer-General (NSW),[27] Biscoe J elaborated the concept by reference to relevant authority in the following terms:
[27] (2006) 148 LGERA 38, [15].
There is no statutory definition of “highest and best use”. It has been described in the High Court as “the most advantageous purpose for which [the land] was adapted”: Spencer v The Commonwealth.[28] It “is the present value alone of such advantages that falls to be determined”: Cedar Rapids Manufacturing and Power Co v Lacoste.[29] In Park v Allied Mortgage Corporation Ltd[30] Hill J said at [70]: “As Spencer’s case itself makes clear the valuation must proceed by reference to the best use of the property. For this purpose the valuer will take into account not only the present use to which the land is applied, but any more beneficial use to which it may reasonably be applied. This is the process which a purchaser negotiating to purchase the property would undertake. Thus, it is not inappropriate in valuing property to take into account a potential development of the property, for among the range of hypothetical purchasers can be assumed to be a person who would undertake such a development as would maximise the usage of the land”. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources[31] Jacobs J said:
[28] (1907) 5 CLR 418, 441 (Isaacs J).
[29] [1914] AC 569, 576 (Lord Dunedin).
[30] (Unreported, Federal Court of Australia, 5 July 1995).
[31] (1988) 65 LGRA 410, 415.
Common experience shows that land ideally suited for commercial development will fetch a higher price per unit of area than residential land, but it does not follow that the highest and best use of all land is a commercial use, for the highest and best use means exactly what it says — the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential. The first task of the valuer is to determine what that use is and then to value the land on that basis. It is not appropriate to determine the highest and best use by
reference only to value. [32]
[32] (2008) 20 VR 447, 458-9.
In applying this notion the potential highest and best use may itself be to hold the land for a potential future use. Thus, there is a distinction which may be drawn between land ripe for subdivision and land having the potential for future subdivision.[33]
[33] Crompton v Commissioner of Highways (1973) 5 SASR 301, 318-319.
In the present case there is a fundamental division between the parties as to the highest and best use of the western portion of Mr Love’s land as at the date of acquisition. Mr Love contends that the highest and best use of this portion of the land was as a future landfill. The Corporation contends it was for future industrial use. Neither contends that its highest and best use was its actual use as at the date of acquisition.
Section 43(1)(a) of the LAC Act provides that in assessing compensation the following matters must be disregarded:
any increase or decrease in the market value of the interest in land which is acquired arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired.
This section did not give rise to controversy in the present matter, save in one limited respect relating to the Cooper Street Precinct Strategy.
The section is to be interpreted in the light of the judgment of the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.[34] That judgment was concerned with analogous New South Wales legislation and focuses upon the causal requirement postulated by the parallel provision.
[34] (2008) 233 CLR 259.
Section 40 of the LAC Act also defines the concept of special value as follows:
special value, in relation to an interest in land, means the value of any pecuniary
advantage, in addition to market value, to a claimant which is incidental to his
ownership or occupation of that land.
The underlying concept was elaborated by Callinan J in Boland v Yates Property Corporation Pty Ltd:
The special value of land is its value to the owner over and above its market value. It arises in circumstances in which there is a conjunction or some special factor relating to the land and a capacity on the part of the owner exclusively or perhaps almost exclusively to exploit it. … There will in practice be few cases in which a property does have a special value for a particular owner. Obviously neither sentiment nor a long attachment to it will suffice. The special quality must be a quality that has an economic significance to the owner. A possible case would be one in which, for example, a blacksmith operates a forge in the vicinity of a race track on land zoned for residential purposes as a protected non-conforming use, the right to which might be lost on a transfer of ownership or an interruption of the protected use. Such a property will have a special value for its blacksmith owner, and perhaps another blacksmith who might be able to comply with the relevant requirements to enable him to continue the use but to no-one else.
The Australian Law Reform Commission report Lands Acquisition and Compensation, with some slight adaptations goes some way towards correctly defining special value as “that additional economic advantage which the owner obtains, by reason of his ownership … and which is not reflected in the market value”.[35] The example which I have given answers this
[35] Australian Law Reform Commission, Lands Acquisition and Compensation, Report No. 14 (1980), para 239.
description.[36]
[36] (1999) 74 ALJR 209, 269.
In Arkaba Holdings Limited v Commissioner of Highways (SA),[37] Bray CJ said:
[37] [1970] SASR 94.
Special value must, in my view, arise from some attribute of the land, some use made of it or to be made of it or advantage derived or to be derived from it, which is peculiar to the claimant and would not exist in the abstract hypothetical purchaser. Would a prudent man in the position of the claimant have been willing to give more for this land than the market value rather than fail to obtain or regain it if he had been momentarily deprived of it? … A typical case of special value is where the land is peculiarly adapted to a particular kind of use made of or intended to be made of it by the claimant, e.g. a doctor’s consulting rooms or agricultural land worked in
conjunction with a neighbouring residence or farm building …[38]
[38] Ibid, 404 (citations omitted).
In Coastal Estates Pty Ltd v Bass Shire Council,[39] Gobbo J said as to the concept of special value:
[39] [1993] 2 VR 566.
In some cases it [special value] may be an advantage, such as particular knowledge or expertise or associated good will, which advances this owner
and not another owner in the market.[40]
[40] [1993] 2 VR 566, 596.
In Collex Pty Ltd v Roads and Traffic Authority (NSW),[41] Talbot J observed:
[41] (2006) 149 LGERA 234.
Special value can only arise where, at the time of compulsory acquisition, the owner is actually putting the property to some use for which it is especially
well suited.[42]
[42] Ibid, 264, referring to the observations of Mahoney JA in Yeates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156, 162.
These observations illustrate the kind of pecuniary advantage which is potentially embraced within the definition of special value contained in the LAC Act. Ultimately however, that definition speaks for itself and the words ‘any pecuniary advantage’ are potentially broad ones.
Section 41(2) of the LAC Act potentially limits the concept of special value in cases where the highest and best use of land is not its present use:
If the market value of an interest in land is assessed on the basis that the land had potential to be used for a purpose other than the purpose for which it was used on the date of acquisition, compensation must not be allowed for—
(a) any special value in respect of any pecuniary advantage that would necessarily have been forgone in realizing that potential; and
(b) any loss attributable to disturbance that would necessarily have been incurred in realizing that potential.
Section 40 of the LAC Act also relevantly defines loss attributable to severance in relation to the acquisition of a claimant’s interest in land as meaning:
the amount of any reduction in the market value of any other interest of the claimant in the acquired land or any interest of the claimant in other land used in conjunction with the acquired land which is caused by its severance from the acquired land.
It can be seen that severance may potentially result in a loss of market value crystallising subsequently to the date of acquisition itself. Unlike the definition of market value it does not necessarily crystallise at the date of acquisition.
Lastly, s 40 of the LAC Act defines loss attributable to disturbance as a residual category of potential pecuniary loss. Loss attributable to disturbance is relevantly defined to mean any pecuniary loss suffered by a claimant as the natural, direct and reasonable consequence of the fact that an interest of the claimant in land has been divested or diminished, being a pecuniary loss for which provision is not otherwise made in Part IV of the LAC Act. Section 41(1)(c) is not limited by words equivalent to those found in s 41(1)(a) namely ‘on the date of acquisition’.
An interference with access may potentially give rise to a claim of this type.[43]
[43] Cf Benton v Road Construction Authority (No 2) [1990] 2 VR 495, a claim brought under s 11(1)(c) of the Lands Compensation Act 1958.
The application of the requirement that the relevant pecuniary loss be suffered as a ‘natural, direct and reasonable consequence’ of the divestment of an interest in land, may give rise to difficult questions of fact.[44]
[44] See Melbourne City Link Authority v Teford Pty Ltd (2001) 113 LGERA 102; Roads Corporation v Schembri [2009] VSC 369 (unreported, Osborn J, 21 August 2009).
The expression ‘the natural, direct and reasonable consequence’ is to be understood by the use of three adjectives in combination, to connote a very close and limited connection between the event giving rise to a right to compensation and the financial loss suffered.[45]
[45] Halwood Corporation Limited (Scheme Administrator Appointed) v Roads Corporation (1995) 89 LGERA 280, 297-305; in Melbourne City Link Authority v Teford Pty Ltd at [24] Batt JA held “In Halwood Corporation Ltd. v. Roads Corporation I considered the meaning of the expression “the natural, direct and reasonable consequence”. That decision, including the conclusion that it was not possible to say that the loss in question was suffered as such a consequence of a refusal to grant a permit, was affirmed on appeal, but without the need for any detailed consideration of the expression. I do not repeat the views I expressed in the case beyond noting the summary that the three adjectives in combination connoted a very close and limited connection between the imposition or proposal of the reservation there in question and the financial loss suffered.”
The notion of disturbance loss is ‘drawn very much from common law principles’.[46] As Batt J said in Halwood Corporation Limited (Scheme Administrator Appointed) v Roads Corporation,[47] the common law principles apply to causation except as modified or supplemented by statute.
[46] Studley Developments Pty Ltd v Department of Planning and Urban Growth [1994] 1 VR 643, 647; Studley Developments Pty Ltd v Department of Planning and Urban Growth [1993] 1 VR 15, 22; Halwood Corporation Limited (Scheme Administrator Appointed) v Roads Corporation (1995) 89 LGERA 280, 297.
[47] (1995) 89 LGERA 280, 297.
In Melbourne City Link Authority v Teford Pty Ltd, Batt JA with whom Tadgell and Chernov JJA agreed, proceeded on the basis that the question of whether a consequence is a ‘reasonable consequence’ within the meaning of the statutory definition requires the application of an objective test.[48]
[48] (2001) 113 LGERA 102; Roads Corporation v Schembri [2009] VSC 369 (unreported, Osborn J, 21 August 2009), [20].
The claimant must demonstrate an actual loss. In the present case this is contentious because a number of the disturbance loss claims relate to expenditure which has not been incurred some eight years after the acquisition. In Roads Corporation v Melbourne Estates,[49] Gobbo J observed:
[49] (1993) 2 VR 602.
It will be a question of fact in each case as to whether the expenses were in fact about to be incurred. Obviously a delay of over two years, coupled with no evidence as to ongoing search or preparations and no explanation for the
inactivity, cannot provide the necessary substratum of fact.[50]
[50] Ibid, 617.
It is also appropriate before going to the present case in greater detail to say something about the principles governing the proper ambit of valuation evidence.
A valuer like any other expert must reveal the factual and intellectual basis of an opinion. The general principle is that:
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R,[51] on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field
[51] (1999) 197 CLR 414, [41].
of expertise'.[52]
[52] Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 at 743-744, [85].
In Smith v Eurobodalla Shire Council,[53] McClellan AJA (with whom Mason P and Santow JA agreed) said:
[53] [2004] NSWCA 479.
There is no doubt that the foundation for an expert's opinion must be adequately proved. This will include the evidence necessary to qualify the person as an expert in the relevant field and proof of the facts in respect of which the expert is requested to give an opinion. As Heydon JA acknowledges, this can give rise to difficulties in areas such as land valuation where, in many cases, the available market evidence is limited and the expert's judgment must be based upon accumulated experience. Sometimes when evidence of comparable sales is not available, alternative but less satisfactory methods of valuation may be utilised. (Various methods are discussed in Alan Hyam, The Law Affecting the Valuation of Land in Australia, 3rd ed, p 113ff). But there will be many cases, particularly in relation to sales of "unique" property, where this may not be possible and a valuer will be required to exercise his or her judgment having regard to the objective material which is available, however inadequate. If there is simply no direct market evidence in relation to a particular property, this does not mean that a valuer cannot express an opinion as to its value. As McClure J points out in the Full Court of the Supreme Court of Western Australia case in Western Australian Planning Commission v Arcus Shopfitters,[54] Makita does not mean that an opinion will be excluded where the objective material is not complete "but the valuer must reveal as far as possible the reasoning process actually employed so as to
[54] (2003) WASCA 295.
enable the court to evaluate the evidence and the expert's conclusions." [55]
[55] [2004] NSWCA 479, [121].
I respectfully agree.

A valuer may express an opinion of value which is founded in part upon hearsay but he cannot give hearsay evidence of disputed facts which lie outside his own personal knowledge.[56]
[56] Wright v Sydney Municipal Council (1916) 16 SR (NSW) 348; English Exporters (London) Ltd v Eldonwall Ltd [1973] 2 WLR 435; Bromley v Housing Commission (NSW) (1985) 3 NSWLR 407.
Regard may be had to evidence of events subsequent to the acquisition as confirming or tending to confirm the foresight which the hypothetical purchaser would have had at the relevant date.[57]
[57] Housing Commission of New South Wales v Faulkiner [1981] 1 NSWLR 547, 558 and 563; Minister for the Army v Parbury Henry & Co (1945) 70 CLR 459, 514.
Other things being equal, if there is a doubt as to the amount properly payable by way of compensation that doubt should be resolved in favour of the more liberal estimate.[58]
[58] Commissioner of Succession Duties (SA) v Executive Trustee and Agency Co of SA Ltd (1947) 74 CLR 358, 374; Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547, 565.

1.12	The land
123	Mr Love’s land lies on the northern side of Cooper Street, Epping. It has been in his family’s ownership for a considerable period of time. It comprises part of a property known historically as Clonard.
124	It is comprised in two Certificates of Title:

Volume 10321 Folio 252 (410 Cooper Street); Volume 10321 Folio 255 (460 Cooper Street).

It may be regarded as falling into three parts. First, the western section known as 460 Cooper Street and being the land to the west of Vearings Road (an unused road at the relevant date) comprising some 56.62 hectares. This land included the WA149 land and was comprised in Certificate of Title Volume 10321 Folio 255. The title plan takes the following form:
The land may be thought of as comprising the north-western quadrant of a notional rectangle comprising the existing Conundrum Quarry pit (‘the northern pit’) and a south-eastern quadrant of the same notional rectangle containing land proposed for future quarry workings together with agricultural land.
It is helpful to also set out a current location plan of the western part of the site:[59]
[59] Plan obtained from State Government of Victoria website.
The adjoining portion of the south-western quadrant (of the notional rectangle which I have postulated) comprised land formerly part of the Love property, but owned by the WCC at the date of the acquisition. This land contained the completed Cooper Street No. 1 landfill and was used for a series of low level waste processing related industries.
The adjoining north-eastern quadrant (of the notional rectangle) again comprised land formerly part of the Love property and again owned by WCC at the relevant date. It contained part of the recently completed Cooper Street No. 2 landfill together with a council dog pound. This landfill had extended to the east of Vearings Road in an irregular shape.[60] It was accessed during the life of the Cooper Street No. 2 landfill over the neck of land owned by Mr Love which connected the north-western and south-eastern quadrants as I have described them.
[60] Vearings Road is the unmade road running north/south on the eastern boundary of the western section of Mr Love’s land and depicted on the location plan set out above.
Prior to the acquisition Conundrum accessed the northern pit from this neck of land and principally by way of what was called in evidence the ‘council tip road’, running over the south-western quadrant WCC land to Cooper Street. Conundrum also to some extent used what was called in evidence, the quarry access road (‘the quarry road’), being a road connecting the northern pit to Cooper Street within Mr Love’s property, and running generally parallel with the western boundary of the south-eastern quadrant. It is the treatment of this access in association with the duplication of Cooper Street which underlies the major dispute in this case.
Conundrum operated the northern pit in conjunction with a further quarry pit upon adjoining land to the north owned not by Mr Love but by a Mr Miller.
Further, at the date of acquisition a company associated with the Pioneer Hanson Group operated a solid inert waste landfill in land adjoining both the northern pit and Miller’s land to the west (‘Alvie’s pit’).
At the date of acquisition the northern pit was thus adjoined by a former WCC putrescible landfill to the south (Cooper Street No. 1) and to the east (Cooper Street No. 2), and by a solid inert waste landfill to the west (Alvie’s pit).
At the relevant date the western portion of the land was principally zoned Special Use Schedule 4 zone pursuant to the Whittlesea Planning Scheme (‘WPS’), a zone which facilitated extractive industry.
The south-eastern segment of the western portion of the land was further bisected from north to south by an urban floodway zone.
It is useful to set out a current zoning plan of the western land and its context.[61]
[61] Current zoning plan obtained from State Government of Victoria website, showing the zoning of the western portion of Mr Love’s land as it was at the date of acquisition and the road zone as it was after the creation of a new access road into the WCC land zoned Industrial 1.
The second section of Mr Love’s land comprised the central part which (save for the excision of the Cooper Street No. 2 landfill land) extended between Cooper Street to the south and O’Herns Road to the north, and between Vearings Road to the west and the location of what was then the proposed Craigieburn Bypass to the east. It comprised lots 23 and 24 on Certificate of Title Volume 10321 Folio 252 which described the land by the following plan.
This land was approximately 91 hectares in area in the ‘before’ situation and comprised stony grazing country used to breed Angus beef cattle. It also contained Mr Love’s family home and farm sheds in a complex located off Cooper Street in lot 24. It was zoned rural.
Prior to the acquisition an independent panel appointed pursuant to the provisions of the P and E Act had recommended the grant of a planning permit for a further substantial quarry upon this land and extending into what became the proposed Craigieburn Bypass alignment (the WA658 proposal). This permit was not thereafter granted because of the bypass proposal.
Nevertheless, the terms of the panel’s recommendations bear on aspects of this case. Further the proposal itself sought to bring quarry traffic diagonally back from the north-east to the south-west across the property, and utilise access into and from Cooper Street at the point of the quarry road access.
Prior to the acquisition the frontage of this central section of the land had substantial tree plantations on and adjacent to the southern boundary of Mr Love’s land. These also extended along the frontage of the western section of Mr Love’s land as I have described it. In the central section of Mr Love’s land the plantations complemented a further well developed set of plantations in the vicinity of Mr Love’s house and farm buildings.
The eastern portion of the land extended to the east of the route of the proposed Craigieburn Bypass. It comprised lot 22 on Certificate of Title Volume 10321 Folio 252. It had no frontage to Cooper Street and was not affected by the acquisition but extended along O’Herns Road, to the north of an industrially zoned parcel of land owned by Northpoint Industries Pty Ltd (a company associated with one Scanlon). This land was also zoned rural, but was proximate to urban land both to the south and the east. The eastern portion comprised approximately 62 hectares.
Market value – the effect of uncertainty of access – the first threshold difficulty
An underlying premise of Mr Love’s claim is that uncertainty concerning the reinstatement of access to his property at the point of the pre-existing quarry road, destroyed the prospect of obtaining land use approvals (planning permit and works approval) for a landfill as at the date of acquisition and/or thereafter.
I do not accept this premise. In summary:

(a)

I accept that an applicant for land use approval would need to demonstrate that satisfactory heavy vehicle access could be provided to the landfill, and I further accept that such access would most conveniently be provided from Cooper Street (although it might also at least theoretically have been provided from O’Herns Road).

(b)

If land use approvals were granted, access would be regulated by planning permit condition. That condition would require in substance that access to Cooper Street be provided to the satisfaction of the Corporation as the relevant road authority. The means of compliance with such a condition would be subject to a right of appeal to VCAT. Accordingly, if dispute arose thereafter as to the appropriate access treatment, the landowner would have the right to independent adjudication of the appropriate access treatment.

(c)

There was a primary uncertainty as at the date of acquisition as to whether and in what form the Corporation would reinstate the pre-existing quarry road access to the duplicate roadway of Cooper Street.

(d)

The pre-existing form of quarry road access to Cooper Street would not however have been regarded by the Corporation (or any independent adjudicator) as safe and adequate for the purpose of the primary access to a landfill. Accordingly, an alternative or materially upgraded access arrangement was required.

(e)

As at the date of acquisition there was secondary uncertainty as to what form of an alternative or upgrade to the quarry road access would be agreed to by the Corporation, and in particular whether direct access arrangements would be achieved for the WA149 land equivalent to those proposed for the access to the adjoining WCC land to the west (reinstating the council tip road access previously used by Conundrum as its primary access to the WA149 land).

(f)

There were a series of options available for the provision of access to the proposed landfill, using feasible access points alternative to the quarry road.

(g)

There was a prospect of some delay in resolving optimal access arrangements to the WA149 land but there was no realistic prospect that long term access could not be resolved.

I will now elaborate my reasons for these conclusions. It is useful first to describe the relevant traffic conditions.
In the ‘before’ situation:

(a)

Mr Love had a lawful right of access to Cooper Street at a series of points along the frontage of his property including the quarry road. In particular Mr Love had driveways to his house, and yards and sheds. The property was also bisected by Vearings Road, running north/south and providing potential access to Cooper Street (as was contemplated by Mr Kraan, Mr Love’s planning consultant at one point in time).

(b)

Conundrum’s Works Authority pursuant to the EID Act had, since 1998, contemplated access to the quarry either over the council tip road or the quarry road (prior to this the Works Authority had contemplated access over the council tip road only).

(c)

The council tip road had been used as the principal access to the Conundrum quarry for the period of 9 years.

(d)

A minor access to the WA149 land was also provided by gates to the quarry road. This access was used by quarry traffic when the council tip road was closed, particularly in the late afternoon. On occasions this might involve 10 to 15 truck movements on a particular day.

(e)

Mr Love’s request to have the WA149 land included within the NRWMG regional waste disposal plan was made on the basis that access would be via ‘the existing commercial entrance’, being the quarry road access.

(f)

As Mr Love, Mr Wagner, Mr Ron Kerr and Mr O’Brien all stated, the quarry road access was not safe for heavy vehicles in the ‘before’ situation, because of inadequate sight lines to the west and inadequate turning arrangements within Cooper Street (there was no right turn lane for west bound traffic as there was for the council tip road, or other acceleration or deceleration lane arrangement).

(g)

Not surprisingly no evidence was led by Mr Love to support the view that the quarry road in the ‘before’ situation would have provided an acceptable access/egress point to a new landfill. Mr O’Brien’s evidence was that:
… if the access across to the tip access was not available at some point then – which at that time was on the cards, then access to this site as it stood as the quarry and in the future it became a landfill then that would have been inappropriate access.

(h)        Nevertheless it was potentially possible that the quarry road entrance could have been signalised at Mr Love’s cost in the ‘before’ situation and his evidence is that he contemplated this possibility at a cost in the range of $100,000 to $125,000. Three options were subsequently prepared in 2002 by the Corporation’s engineers for a signalised intersection at or about the location of the council tip road and the quarry road. Two options were principally located on Mr Love’s land but also partially located on the adjoining WCC land. One option was wholly on the WCC land. No evidence was led that a safe intersection could have been constructed wholly on Mr Love’s land utilising in part the quarry road alignment. Mr Saliba’s evidence was that if such a proposal had been put forward, detailed design would have been considered by the Corporation before it was approved. If the quarry road intersection was not itself capable of signalisation however, I accept that a signalised intersection could have been constructed on the frontage of Mr Love’s land east of Central Creek as Mrs Partenio described.
(i)         If a permit had been obtained for landfill use in the ‘before’ situation, the probability is that it would have been subject to a condition that access to Cooper Street be provided to the satisfaction of the Corporation in similar terms to the conditions suggested by the panel which examined Mr Love’s quarry permit application for the WA658 land in 1998. The final submissions made on behalf of Mr Love accept this to be so.
(j)         In turn the probability is that that condition would have been satisfied either by continuing an arrangement for access over the council tip road or by providing a new upgraded access/egress point at or about the quarry road gate or at least 100 metres to the east of the quarry road on Mr Love’s land on the other side of Central Creek. The latter alternative would have made it necessary to construct a new internal roadway to this point but the 1998 quarry application demonstrates that the construction of such a road was feasible (particularly for a landowner owning an adjacent quarry).

In the ‘after’ situation:

(a)

A government decision had been made in late 1999 to expedite the duplication of Cooper Street.

(b)

Initial plans prepared in 2000 and 2001 showed the construction of a new un-signalised intersection at the council tip road entrance.

(c)

It was also contemplated the minor road access on Mr Love’s land would be reinstated but with no special measures to accommodate heavy truck traffic. The quarry road could have been reinstated with a bell mouth. Mrs Partenio’s evidence (which I accept) is that it would not be appropriate practice on the part of the acquiring authority to delete it without negotiating an alternative.

(d)

There was a period of uncertainty as to what treatment should be adopted to provide access to the WA149 land. The Corporation entered into a contract to carry out the road duplication works which required the contractor (‘Cut and Fill’) to reinstate existing access points: ‘Access shall be reinstated to abutting properties to match existing locations and conditions unless otherwise specified.’ The contract plans provided to Cut and Fill showed the quarry road gate but substantially obscured it with the delineation of a new carriageway boundary. The position was sufficiently unclear for Cut and Fill to request clarification from the Corporation. A plan dated 19 April 2002 bears the annotation: ‘VicRoads to advise whether this access is to be reinstated, if so VicRoads to advise width and location.’ Mrs Partenio’s reading of the sequence of plans available was that at some point prior to the final resolution of this issue the access appears to have ‘dropped off’ the plans for the works.

(e)

The Corporation expressly indicated willingness to consider alternative access arrangements to the WA149 land. A letter of 20 February 2001 to Conundrum stated:
VicRoads would be willing to consider alternative access arrangements proposed by Conundrum Holdings that will provide no adverse impacts to the operation and safety of Cooper Street.

(f)         Ultimately a fully signalised intersection was constructed at the junction of Cooper Street with the council tip road. This accommodated pressure which had been caused by growth in traffic within Cooper Street.
(g)        In addition the Corporation acquired a nib of land containing the southern-most portion of the council tip road and abutting Mr Love’s land. This gave Mr Love direct permanent access onto Cooper Street via what had previously been the council tip road.
(h)        With the agreement of Mr Love and Conundrum the quarry road was not reinstated.
(i)         This was the optimal solution for the WA149 land. Mr O’Brien stated in his report:
In my view, the Roads Corporation has ultimately done what they should have done initially i.e. create a single signalised access point on Cooper Street shared between the Council No 1 landfill and the quarry.
From a traffic engineers (sic) perspective it is difficult to understand why this did not occur at or around the time of acquisition, particularly given that:

• the quarry was already using the access road to councils No1
landfill at the time;

•

this informal arrangement had been in place for many years (since around 1992) and was seemingly not being vigorously resisted by Council (beyond threats of expulsion);

•

the views of Mr Love on the matter of access to the subject site and previous failed efforts on his part to secure shared access over the Council land were well known;
• the initially-proposed legal access to Cooper Street limited to left
in and out was inadequate and unsafe.

In evidence Mr O’Brien said:
… the arrangements were still being worked out virtually during construction time in to me what should have been a fairly simple and straightforward process, say, look, we’ve got all this activity on that site, we’ve got accesses very near one another, pull them together and signalise them.

(j) Another solution hypothetically available would have been to provide a new access to the east, opposite a median break some 400 metres east of the council tip road and 300 metres east of the quarry road.
(k) Mrs Partenio further stated that in the duplicated road situation (which included a new pavement height with improved view lines):
The provision of Left in/left out would have been satisfactory as a minor access but not if it were the major access to a landfill due to the need for trucks to U-turn unless specific design measures at the U-turn breaks were made to enable trucks to complete the U-turn and merge with through traffic safely.

Mr O’Brien agreed with this opinion but was of the view that it would be difficult to achieve such design measures. I accept that this solution would be materially more difficult to obtain consent to from the Corporation than either the use of the council tip road or a new intersection opposite the median break to the east.
(l) There is no traffic engineering evidence which supports the view a condition of the type referred to above (requiring access to the landfill to be provided to the satisfaction of the Corporation) could not have been satisfied by one or other of the alternatives described above. Mr O’Brien said ‘… you could create an access yes.’

There are four principal matters which warrant an award of solatium in the present case. First, the acquisition compulsorily interfered with a family property upon which Mr Love had lived all his life and with which he had a strong emotional connection.
Secondly, Mr Love suffered significant frustration, stress and loss of time with respect to the resolution of access arrangements to the WA149 land. This issue was enlivened in March 2000 and not resolved with any certainty until October 2002. The new access was not fully constructed until 2004. In my view he is entitled to have the whole of the period of uncertainty in respect of this issue recognised as a factor justifying an award of solatium. In King & Ors v Minister for Planning and Housing,[148] Gobbo J said:
[148] [1993] 1 VR 159.
… upon the basis that I am not limited to the date of acquisition itself and that I can take into account relevant matters falling within both general and statutory guidelines for assessment of solatium if these matters flow from not merely the fact of actual acquisition but also the process of acquisition…
…In so far as I am entitled to take into account frustrations associated with the acquisition, I find that these frustrations occupied the whole period since the exhibition of the amendment. I further find that these frustrations were not caused by any unreasonable behaviour on the part of the claimants, but on the contrary, were caused by excessive and undue delay on the part of the authority in regard to the way in which it dealt with the legitimate inquiries
and representations of the claimants.[149]
[149] Ibid, 189-190.
I have likewise concluded that there was unreasonable delay by the Corporation in resolving this issue in accordance with what was on the traffic engineering evidence, the obvious optimal solution.
During the period of time in issue Mr Love signalled his concern relating to access to the Corporation at the meeting with Mr Negus and Mr Ipavec on 28 March 2000, in his submissions concerning amendment C8 to the WPS on 24 July 2000, and through the protracted negotiations and associated correspondence which occurred during 2001/2002. Mr Love’s submissions were also complemented by submissions from Conundrum during 2000/2001.
I accept that Mr Love experienced significant stress in achieving the outcome which was ultimately arrived at, and as I have already stated, the pursuit of that outcome was not unreasonable.
Thirdly, Mr Love suffered distress and frustration as a result of the partial destruction of an historic dry stone wall upon his property (although the stones were preserved). He believed this wall to be of particular significance because it could be identified on an 1866 survey plan and was a marker of the early white settlement of the area (an area with which as I have said, his family had a long connection).
Fourthly, Mr Love suffered ongoing loss of enjoyment of life during the period of the construction of the road works. He is not entitled to double compensation for those matters in respect of which I have upheld claims for loss of special value (including the residential value of his land). Nevertheless I accept that he suffered substantial loss of personal time and other frustrations which aggravated the sense of loss he felt at interference with the property upon which he and his family live. The Corporation expressly concedes that Mr Love and his family have had to deal with ongoing disruption as a result of the acquisition which is not otherwise compensable. This disruption was detailed in the evidence of both Mr and Mrs Love. Mrs Love described not only physical nuisances, but also frustration in terms of unsatisfactory and broken arrangements relating to noise limitation, fencing, water supply and telephone connections.
She highlighted the impact of the acquisition upon Mr Love between the ages of 50 and 60, a decade during which he should have been happy and highly productive, but was not because of the combined effects of compulsory acquisition of parts of his land.
She described the cumulative adverse effect of acquisition related issues upon Mr Love’s ability to participate actively in Apex, church and other local community activities.
Each of the matters I have highlighted affected Mr Love in a context where his land was also subjected to two other compulsory acquisitions by the Corporation, including the major acquisition for the Craigieburn Bypass. He is not entitled to compensation for those acquisitions in this proceeding, but they form part of the context in which he suffered the matters I have referred to.
Mr Love adverted to this context when explaining why access driveways had not been reinstated:
Your Honour I have – in the last three or four years I’ve had five Supreme Court proceedings. I have been through a drought. We’ve had to replace our cattle yards, we had to replace our water supply, we’ve had to replace our electric fencing associated with the bypass acquisition plus a myriad of other matters, including planning matters and there is only so much that any person can be expected to do and this particular matter is on the list, but its not one we’ve been able to get to yet and it would involve quite a bit of work, particularly with the car entrance because it’s adjacent to a slip lane of a freeway and there are quite a few safety issues regarding working there and the access to that site is also a little tricky and has to be worked through cleverly, so a substantial amount of the cost is involved in the buggerising around with the site to get it ready as opposed to the cost of the concrete.
As against the considerations I have highlighted, the underlying reality is that only a relatively small strip of Mr Love’s property was acquired. There is no evidence the acquisition materially affected the quarrying or agricultural activities carried out upon it, and I have separately assessed compensation in respect of special value including residential value.
Having regard to the circumstances of the case as a whole including the matters specified by statute and those I have highlighted I assess solatium at $30,000.
In these circumstances it is unnecessary to resolve the question of construction relating to the ceiling applicable under s 44(1) of the LAC Act.
Conclusion
For the above reasons the compensation payable to Mr Love should be assessed having regard to the following components:

(a) market value $310,000

(b) special value $72,655

(c) disturbance $782

(d) solatium $30,000

Total $413,437
Say $414,000

Plus agreed professional $30,334.92
expenses

TOTAL $444,334.92

The amount I have assessed is somewhat more than that offered by the Corporation by way of an open offer dated 17 April 2009 in the sum of $440,334.92. That offer was expressed to be calculated by way of $310,000 for market value, together with a rolled up figure of $90,000 for disturbance (which embraced some matters I have characterised as raising issues of special value) plus the amounts submitted in the statement of issues in respect of professional costs and solatium. The offer was not accepted and was ultimately withdrawn.
During the course of final addresses Mr Southall submitted that the offer with respect to disturbance should be treated as an admission. I do not accept it constituted an admission in terms, nor is it to be deemed one by statutory provision.
The offer was expressed to be subject to the following reservation:
The applicant reserves the right to increase or reduce the amount of its offer (if) further particulars of claim and evidence of claims are supplied by the respondent.
In the course of the trial the respondent subsequently withdraw the drainage impact claim and adduced extensive evidence with respect to the other disturbance claims. It seems to me that the withdrawal of the offer was thus one which occurred in circumstances contemplated by the terms of the offer.
In the course of the trial counsel for the Corporation also made clear that the amount offered for the disturbance claims was nothing more than a guess, a figure put forward to resolve those claims.
Ultimately I must assess Mr Love’s claims on the evidence in accordance with s 90(2) of the LAC Act.

(2) 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.

I will hear counsel as to the appropriate orders which flow from my conclusions.

Appendix A – Mr Lonergan’s Discounted Cash Flow Valuation

Love

ats

Roads

Corporation

Discounted

cash

flow

loss

assessment

LEA

valuation

adopting

Herdman's

initial

establishment

costs

Assumptions

Scenario

Alsop

fill,

Alsop

on-costs

CPI	factor	2.95%	Compulsory	acquisition	date	15-Nov-01
Compaction	factor	92.5%	Landfill	commencement	date	1-Jul-04

Tax

rate

30.0%

broadly consistent with competitor Hanson (Wollert) FY02 - see Herdman May 8

Gate

charges

per

inflow

tonne)

30.00

letter

(exc.

EPA

levy

and

GST)

Operating

costs

per

inflow

tonne)

7.40

Herdman

estimate

for

FY02

Year

30-Jun-02

30-Jun-03

30-Jun-04

30-Jun-05

30-Jun-06

30-Jun-07

30-Jun-08

30-Jun-09

30-Jun-10

30-Jun-11

30-Jun-12

Discount

period

.31

1.12

2.12

3.12

4.12

5.12

6.12

7.12

8.12

9.12

10.12

Waste

inflow

(tonnes)

100,000

150,000

200,000

Cumulative

waste

inflow

(tonnes)

100,000

250,000

450,000

650,000

850,000

1,050,000

1,250,000

1,450,000

Landfill

capacity

(tonnes)

3,772,058

Resource

Beginning

resource

924,000

1,074,000

1,374,000

1,674,000

1,865,892

2,003,730

2,087,514

2,171,297

2,255,081

2,338,865

2,422,649

Resource

transferred

from

quarry

150,000

300,000

303,900

Resource	used	-	-	-	(108,108)	(162,162)	(216,216)	(216,216)	(216,216)	(216,216)	(216,216)	(216,216)
Available	resource	1,074,000	1,374,000	1,674,000	1,865,892	2,003,730	2,087,514	2,171,297	2,255,081	2,338,865	2,422,649	2,510,332

Gate

charges

exc.

EPA

levy

and

GST

per

inflow

tonne)

30.00

30.89

31.80

32.73

33.70

34.69

35.72

36.77

37.86

38.97

40.12

Operating

costs

per

inflow

tonne)

7.40

7.62

7.84

8.07

8.31

8.56

8.81

9.07

9.34

9.61

9.90

Revenue

3,273,409

5,054,962

6,938,778

7,143,472

7,354,205

7,571,154

7,794,503

8,024,440

Operating

costs

(807,441)

(1,246,891)

(1,711,565)

(1,762,056)

(1,814,037)

(1,867,551)

(1,922,644)

(1,979,362)

Net

operating

cash

flow

2,465,968

3,808,072

5,227,213

5,381,416

5,540,167

5,703,602

5,871,859

6,045,078

Capital	expenditure	-	-	(9,230,470)	(1,279,336)	(1,498,145)	(1,724,012)	(1,759,880)	(1,796,050)	(1,832,530)	(1,869,331)	(4,823,324)
Tax	payable	-	-	-	-	-	-	(417,248)	(1,123,235)	(1,161,322)	(1,200,758)	(366,526)

Net	cash	flow	-	-	(9,230,470)	1,186,632	2,309,927	3,503,201	3,204,288	2,620,882	2,709,750	2,801,769	855,228
PV	factor	8.6%	.9747	.9116	.8394	.7729	.7117	.6554	.6035	.5557	.5117	.4712	.4338

(7,748,111)

917,188

1,644,033

2,295,872

1,933,679

1,456,366

1,386,508

1,320,066

371,036

NPV

17,044,121

Tax

calculation

Tax

losses

opening

balance

(9,230,470)

(8,043,837)

(5,733,911)

(2,230,710)

Depreciation

(=capital

expenditure)

(9,230,470)

(1,279,336)

(1,498,145)

(1,724,012)

(1,759,880)

(1,796,050)

(1,832,530)

(1,869,331)

(4,823,324)

Net

income

and

loss

utilisation

2,465,968

3,808,072

5,227,213

5,381,416

5,540,167

5,703,602

5,871,859

6,045,078

Net

taxable

income

(9,230,470)

(8,043,837)

(5,733,911)

(2,230,710)

1,390,826

3,744,118

3,871,072

4,002,528

1,221,755

Tax

payable

(417,248)

(1,123,235)

(1,161,322)

(1,200,758)

(366,526)

Capital

expenditure

deduct

incurred

Landfill

infrastructure

3,427,620

Landfill

edge

and

liner

(type

2,538,973

481,418

491,481

501,545

511,608

521,672

531,735

541,799

2,976,214

Landfill

capping

(type

311,251

475,336

645,061

656,341

667,620

678,900

690,180

701,460

Preliminaries

20.1%

510,334

159,326

194,330

230,468

234,758

239,048

243,338

247,628

739,212

Allowance

for

pits

not

being

square

Leachate

collection

and

management

scheme

original

resource

1,958,640

resource

transferred

(as

available)

794,903

327,341

336,997

346,939

357,174

367,710

378,558

389,725

406,438

- - 9,230,470 1,279,336 1,498,145 1,724,012 1,759,880 1,796,050 1,832,530 1,869,331 4,823,324

Page 2 of original

Love

ats

Roads

Corporation

Discounted

cash

flow

loss

assessment

LEA

valuation

adopting

Herdman's

initial

establishment

costs

Assumptions

CPI	factor	2.95%
Compaction	factor	92.5%
Tax	rate	30.0%

Gate

charges

per

inflow

tonne)

30.00

(exc.

EPA

levy

and

GST)

Operating

costs

per

inflow

tonne)

7.40

Year

30-Jun-13

30-Jun-14

30-Jun-15

30-Jun-16

30-Jun-17

30-Jun-18

30-Jun-19

30-Jun-20

30-Jun-21

30-Jun-22

30-Jun-23

30-Jun-24

30-Jun-25

30-Jun-26

Discount

period

11.12

12.12

13.12

14.12

15.12

16.12

17.12

18.12

19.12

20.12

21.12

22.12

23.12

24.12

Totals

Waste	inflow	(tonnes)	200,000	200,000	200,000	200,000	200,000	200,000	200,000	200,000	200,000	200,000	200,000	122,058	-	-	3,772,058
Cumulative	waste	inflow	(tonnes)	1,650,000	1,850,000	2,050,000	2,250,000	2,450,000	2,650,000	2,850,000	3,050,000	3,250,000	3,450,000	3,650,000	3,772,058	3,772,058	3,772,058

Landfill

capacity

(tonnes)

3,772,058

Resource

Beginning

resource

2,510,332

2,294,116

2,077,900

1,861,684

1,645,468

1,429,251

1,213,035

996,819

780,603

564,386

348,170

131,954

()

Resource

transferred

from

quarry

3,153,900

Resource

used

(216,216)

(131,954)

(4,077,900)

Available

resource

2,294,116

2,077,900

1,861,684

1,645,468

1,429,251

1,213,035

996,819

780,603

564,386

348,170

131,954

()

Gate

charges

exc.

EPA

levy

and

GST

per

inflow

tonne)

41.31

42.52

43.78

45.07

46.40

47.77

49.18

50.63

52.12

53.66

55.24

56.87

58.55

60.28

Operating

costs

per

inflow

tonne)

10.19

10.49

10.80

11.12

11.45

11.78

12.13

12.49

12.86

13.24

13.63

14.03

14.44

14.87

Revenue

8,261,161

8,504,866

8,755,759

9,014,054

9,279,969

9,553,728

9,835,563

10,125,712

10,424,420

10,731,941

11,048,533

6,941,694

165,632,323

Operating

costs

(2,037,753)

(2,097,867)

(2,159,754)

(2,223,467)

(2,289,059)

(2,356,586)

(2,426,105)

(2,497,676)

(2,571,357)

(2,647,212)

(2,725,305)

(1,712,284)

(40,855,973)

Net

operating

cash

flow

6,223,408

6,406,999

6,596,005

6,790,587

6,990,910

7,197,142

7,409,457

7,628,036

7,853,063

8,084,729

8,323,228

5,229,409

124,776,350

Capital	expenditure	(855,090)	(867,916)	(880,935)	(894,149)	(907,561)	(921,174)	(934,992)	(949,017)	(963,252)	(977,701)	(992,366)	(614,713)	-	-	(36,571,944)
Tax	payable	(1,610,496)	(1,661,725)	(1,714,521)	(1,768,932)	(1,825,005)	(1,882,790)	(1,942,340)	(2,003,706)	(2,066,943)	(2,132,108)	(2,199,259)	(1,384,409)	-	-	(26,461,322)

Net

cash

flow

3,757,823

3,877,358

4,000,549

4,127,507

4,258,344

4,393,177

4,532,126

4,675,314

4,822,868

4,974,919

5,131,603

3,230,287

61,743,084

factor

8.6%

.3995

.3679

.3387

.3119

.2872

.2645

.2435

.2242

.2065

.1901

.1751

.1612

.1484

.1367

PV	1,501,205	1,426,296	1,355,076	1,287,366	1,222,996	1,161,805	1,103,638	1,048,348	995,796	945,848	898,377	520,735	-	-
NPV

Tax

calculation

Tax

losses

opening

balance

Depreciation

(=capital

expenditure)

(855,090)

(867,916)

(880,935)

(894,149)

(907,561)

(921,174)

(934,992)

(949,017)

(963,252)

(977,701)

(992,366)

(614,713)

(36,571,944)

Net

income

and

loss

utilisation

6,223,408

6,406,999

6,596,005

6,790,587

6,990,910

7,197,142

7,409,457

7,628,036

7,853,063

8,084,729

8,323,228

5,229,409

124,776,350

Net

taxable

income

5,368,319

5,539,083

5,715,071

5,896,439

6,083,349

6,275,967

6,474,465

6,679,019

6,889,811

7,107,028

7,330,862

4,614,696

88,204,406

Tax

payable

(1,610,496)

(1,661,725)

(1,714,521)

(1,768,932)

(1,825,005)

(1,882,790)

(1,942,340)

(2,003,706)

(2,066,943)

(2,132,108)

(2,199,259)

(1,384,409)

(26,461,322)

Capital

expenditure

deduct

incurred

Landfill

infrastructure

3,427,620

Landfill

edge

and

liner

(type

9,096,444

Landfill

capping

(type

711,981

722,661

733,501

744,504

755,671

767,006

778,511

790,189

802,042

814,072

826,283

511,835

13,784,404

Preliminaries

20.1%

143,108

145,255

147,434

149,645

151,890

154,168

156,481

158,828

161,210

163,629

166,083

102,879

4,599,051

Allowance

for

pits

not

being

square

Leachate

collection

and

management

scheme

original

resource

1,958,640

resource

transferred

(as

available)

3,705,785

855,090 867,916 880,935 894,149 907,561 921,174 934,992 949,017 963,252 977,701 992,366 614,713 - - 36,571,944

Notes

Page

original

Landfill

infrastructure

Based

Herdman

(and

Meredith)

assume

incurred

prior

June

Herdman

(pg

28)

cost

per

FY02

3.50

3.60

3.71

Landfill

edge

and

liner

(type

See

below

costs

based

Alsop

(WT

Partnership).

Assume

Northern

Pit

924,000

FY04

with

balance

undertaken

during

period

FY05

FY12

Assume

Southern

Pit

undertaken

when

available

FY12.

Landfill

capping

(type

See

below

costs

based

Alsop

(WT

Partnership).

Capping

costs

assumed

incurred

relative

the

rate

which

void

space

used

Preliminaries

Costs

based

Alsop

(WT

Partnership).

Assume

applies

landfill

edge

and

liner

and

landfill

capping

costs

rate

20.1%.

Leachate

collection

and

management

scheme

Original

resource

based

Herdman

$2.00

per

resource

FY02

and

escalated.

Costs

for

resource

created

and

transferred

post

Nov

based

Parker

(Golder

Associates)

$1.00

per

resource

FY02

and

escalated

LEA

adopted

cost

per

original

resource

924,000

(Herdman)

LEA

adopted

cost

per

transferred

resource

Resource	transferred	from	quarry	3,153,900
Costs	adopted	by	LEA	3,705,785

30-Jun-02 30-Jun-03 30-Jun-04 30-Jun-05 30-Jun-06 30-Jun-07 30-Jun-08 30-Jun-09 30-Jun-10 30-Jun-11 30-Jun-12

.31 1.12 2.12 3.12 4.12 5.12 6.12 7.12 8.12 9.12 10.12

Landfill

capping

(type

Cost

per

based

Alsop

FY02

36.66

38.46

39.07

39.79

40.51

41.23

41.96

42.68

43.40

44.12

44.84

Area

capped

(m2)

7,822

11,733

15,644

- 701,460

Costs

incurred

311,251

475,336

645,061

656,341

667,620

678,900

690,180

Implied

cost

escalation

4.9%

1.6%

1.8%

1.7%

1.6%

Cost

escalation

FY05

FY12

annualised

.72

Adopt

for

FY13

onwards

1.5%

Total

area

capped

(m2)

-	Northern	Pit	220,743
-	Southern	Pit	74,300 295,043

Total

available

resource

(m3)

4,077,900

Ratio

cap

resource

13.82

Continued over

Page 2 of

Landfill

edge

and

liner

(type

original

Cost

per

cubic

metre

($)

-	volume	of	edge	filling	.01	.50	.51	.52	.53	.54	.56	.57	.58	.59	.60	.61
-	liner	area	at	bottom	.58	26.14	26.72	27.31	27.89	28.47	29.06	29.64	30.22	30.80	31.39	31.97

liner

area

slope

incl.

trim

batter

.65

29.12

29.77

30.42

31.07

31.72

32.37

33.02

33.67

34.32

34.97

35.62

Assume	costs	increase	evenly	over	period	FY05	to	FY12
Northern	Pit

Volume

edge

filling

total

FY12

189,935

- 924,000 m3 FY04 119,760 62,515

balance

over

years

FY05

FY12

70,175

annual

quantity

8,772

4,675

4,772

4,868

4,965

5,061

5,158

5,254

5,351

Liner

area

bottom

total

FY12

181,555

- 924,000 m3 FY04 62,326 1,701,874

balance

over

years

FY05

FY12

119,229

annual	quantity	14,904	415,647	424,336	433,025	441,714	450,402	459,091	467,780	476,469
Liner	area	on	slope	incl.	trim	batter	-	total	FY12	41,194

- 924,000 m3 FY04 25,463 774,584

balance

over

years

FY05

FY12

15,731

annual

quantity

1,966

61,095

62,373

63,652

64,930

66,208

67,486

68,764

70,042

Southern

Pit

All

work

undertaken

FY12

Volume	of	edge	filling	38,000	23,180
Liner	area	at	bottom	60,400	1,930,988

Liner

area

slope

incl.

trim

batter

13,200

470,184

Total

landfill

edge

and

liner

(type

2,538,973

481,418

491,481

501,545

511,608

521,672

531,735

541,799

2,976,214

9,096,444

Resource	transferred	from	quarry	3,153,900
Costs	adopted	by	LEA	3,705,785

30-Jun-13 30-Jun-14 30-Jun-15 30-Jun-16 30-Jun-17 30-Jun-18 30-Jun-19 30-Jun-20 30-Jun-21 30-Jun-22 30-Jun-23 30-Jun-24 30-Jun-25 30-Jun-26 Totals

11.12 12.12 13.12 14.12 15.12 16.12 17.12 18.12 19.12 20.12 21.12 22.12 23.12 24.12

Landfill

capping

(type

Cost

per

based

Alsop

FY02

45.51

46.20

46.89

47.59

48.31

49.03

49.77

50.51

51.27

52.04

52.82

53.61

54.42

55.23

Area

capped

(m2)

15,644

9,547

295,043

Costs	incurred	711,981	722,661	733,501	744,504	755,671	767,006	778,511	790,189	802,042	814,072	826,283	511,835	-	-	13,784,404
Implied	cost	escalation	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%	1.5%

Cost

escalation

FY05

FY12

annualised

.72

Adopt

for

FY13

onwards

1.5%

Total

area

capped

(m2)

-	Northern	Pit	220,743
-	Southern	Pit	74,300 295,043

Total

available

resource

(m3)

4,077,900

Ratio	of	cap	to	resource	13.82
Landfill	edge	and	liner	(type	2)

Cost

per

cubic

metre

($)

volume

edge

filling

liner

area

bottom

liner

area

slope

incl.

trim

batter

Assume	costs	increase	evenly	over	period	FY05	to	FY12
Northern	Pit

Volume

edge

filling

total

FY12

- 924,000 m3 FY04

balance

over

years

FY05

FY12

annual

quantity

Liner

area

bottom

total

FY12

- 924,000 m3 FY04

balance

over

years

FY05

FY12

annual

quantity

Liner

area

slope

incl.

trim

batter

total

FY12

- 924,000 m3 FY04

balance

over

years

FY05

FY12

annual	quantity
Southern	Pit

All

work

undertaken

FY12

Volume

edge

filling

Liner

area

bottom

Liner

area

slope

incl.

trim

batter

Total

landfill

edge

and

liner

(type

9,096,444

BPEM	Best Practice Environmental Management Siting, Design, Operation and Rehabilitation of Landfills document
CAPM	capital asset pricing model
CSPS	Cooper Street Precinct Strategy
Conundrum	Conundrum Holdings Pty Ltd
DCF	discounted cash flow
EPA	Environment Protection Authority
EP Act	Environment Protection Act 1970
EID Act	Extractive Industries Development Act 1995
LAC Act	Land Acquisition and Compensation Act 1986
Landfills SEPP	SEPP applied to all landfill sites receiving municipal wastes, including privately owned sites; municipal wastes were defined to include putrescible wastes.
MSS	municipal strategic statement
NRWMG	Northern Region Waste Management Group
P and E Act	Planning and Environment Act 1987
RWMP	regional waste management plan
the Corporation	Roads Corporation
SEPPs	State Environment Protection Policies
SPPF	State Planning Policy Framework
VCAT	Victorian Civil and Administrative Tribunal
VL Act	Valuation of Land Act 1960
WA149	Works Authority 149
WCC	Whittlesea City Council
WPS	Whittlesea Planning Scheme

(a)	Loss of amenity to dwelling & farming	$60,000.00
facilities including disturbance during construction
(b)	Loss of direct access to dwelling	$22,000.00
(c)	New internal farm track to replace access	$2,000.00
gate on gas line
(d)	410 Cooper Street heavy vehicle driveway	$5,000.00
(e)	410 Cooper Street car driveway	$5,000.00
(f)	Costs associated with power surge on 30	$33,404.00
January 2003:
(g)	Loss of Trees	$279,550.00
(h)	Deleted – incorporated under item 1 of	Nil
claim
(i)	Respondent’s time liaising with the	$25,440.00
Applicant and Conundrum Holdings Pty Ltd to reinstate access being 212 hours at $120 per hour

(a)	Mr Thomas James Love Land owner, resource-based business owner/operator (23, 27-29 April 2009; 1, 4, 26-27 May 2009)
(b)	Mrs Love Land owner, secretary (4 May 2009)
(c)	Mr Mark Wagner Marketing manager, Conundrum Holdings Pty Ltd (5 May 2009)

•	the quarry was already using the access road to councils No1 landfill at the time;
•	this informal arrangement had been in place for many years (since around 1992) and was seemingly not being vigorously resisted by Council (beyond threats of expulsion);
•	the views of Mr Love on the matter of access to the subject site and previous failed efforts on his part to secure shared access over the Council land were well known;
•	the initially-proposed legal access to Cooper Street limited to left in and out was inadequate and unsafe.

(a)	market value	$310,000
(b)	special value	$72,655
(c)	disturbance	$782
(d)	solatium	$30,000

Total	$413,437
Say	$414,000
Plus agreed professional	$30,334.92
expenses
TOTAL	$444,334.92