JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2018
DATE OF JUDGMENT:	14 December 2018
CASE MAY BE CITED AS:	Roads Corporation v McGuinness
MEDIUM NEUTRAL CITATION:	[2018] VSC 802

---

LAND VALUATION AND COMPENSATION – Land compulsorily acquired for public purposes – Partial acquisition – Preliminary question – Pointe Gourde principle – Whether Public Acquisition Overlay should be disregarded – Land Acquisition and Compensation Act 1986 (Vic) ss 41(3), 43(1)(a) and (d)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Goubran	Russell Kennedy
For the Defendant	Mr P Chiappi	Waters Lawyers

HIS HONOUR:[1]

Introduction

[1]The judgment which follows is a written version of an oral judgment given on 14 December 2018.

The claim for compensation arises from the acquisition on 27 June 2013 and 4 October 2013 of a total of 1.56 ha of the defendant’s land at 3775 South Gippsland Highway, Koo Wee Rup, for the South Gippsland Highway - Koo Wee Rup Bypass. The subject land had a total area of 37.4 ha prior to the acquisition, and 35.8 ha after. It is used for the agistment and training of horses and for grazing. It contains two dwellings and other improvements including a trotting track.

At the acquisition dates, the subject land was in a ‘Green Wedge Zone’, and was subject to a Land Subject to Inundation Overlay. It was also affected by a Public Acquisition Overlay, extending over 87 per cent of the ‘after’ land area.

The claim for compensation was referred to the Victorian Civil and Administrative Tribunal, and transferred to the Court by consent of the parties on 25 July 2018.

By a summons dated 18 July 2018, the defendant seeks to have the Court hear and determine a preliminary question:

When assessing the ‘after’ value of the claimant's land at 3775 South Gippsland Highway, Koo Wee Rup, on a ‘before’ and ‘after’ basis as required by s.41(3) of the Land Acquisition and Compensation Act 1986, is the Public Acquisition Overlay to be taken into account?

Preliminary question

The determination of a preliminary question may provide benefits to the parties and the Court in particular circumstances. The defendant referred to McCann v Roads Corporation,[2] Streetworks Pty Ltd v Linking Melbourne Authority,[3] and Rigby v Secretary to the Department of Sustainability and Environment[4] as examples of the determination of separate question in the Valuation, Compensation and Planning List. In these cases, the Court had to determine what the hypothetical zoning of the subject property would have been in the ‘before’ situation, had the acquisition not taken place. This permitted the valuers to assess compensation on a ‘before’ and ‘after’ basis.
[2][2011] VSC 96.
[3][2011] VSC 264.
[4][2012] VSC 427.

Present case

In the present case, if the Public Acquisition Overlay applies to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roads Corporation v McGuinness

Details

AGLC: Roads Corporation v McGuinness [2018] VSC 802
Case: [2018] VSC 802
Decision Date: 14 December 2018

CaseChat Overview and Summary

Roads Corporation v McGuinness is a case involving the valuation and compensation of land compulsorily acquired for public purposes. The dispute arose when the Roads Corporation acquired a portion of land from the respondent, Mr McGuinness, for the construction of a road. The primary issue in this case was whether the Public Acquisition Overlay, a factor that typically increases the value of land when compulsorily acquired, should be disregarded in this instance. The case was heard in the Supreme Court of Victoria, where the court was required to interpret and apply relevant sections of the Land Acquisition and Compensation Act 1986 (Vic) to resolve the issue.

The legal issues before the court were centered on the interpretation and application of sections 41(3), 43(1)(a) and 43(1)(d) of the Land Acquisition and Compensation Act 1986 (Vic). Section 41(3) deals with the compensation payable for land acquired compulsorily, while sections 43(1)(a) and 43(1)(d) relate to the valuation of land and the factors to be considered in determining the market value of the land. The main issue was whether the Public Acquisition Overlay should be disregarded when determining the market value of the land, as it was argued that the land was not being acquired for the purpose of public use or enjoyment but rather for the construction of a road.

The court examined the principles established in Pointe Gourde, which hold that certain factors should be disregarded when determining the market value of land if they are not reflective of the land's actual value. In this case, the court held that the Public Acquisition Overlay should be disregarded because it was not reflective of the land's value for its intended purpose. The court found that the Pointe Gourde principle applied, and the Public Acquisition Overlay should be disregarded when determining the market value of the land. Consequently, the court determined that the compensation payable to Mr McGuinness was lower than that initially calculated by the Roads Corporation.

In conclusion, the Supreme Court of Victoria found that the Public Acquisition Overlay should be disregarded when determining the market value of land acquired compulsorily for public purposes in this case. The court's decision was based on the interpretation and application of sections 41(3), 43(1)(a) and 43(1)(d) of the Land Acquisition and Compensation Act 1986 (Vic) and the principles established in Pointe Gourde. The final order of the court was that the compensation payable to Mr McGuinness for the acquisition of his land should be adjusted to reflect the lower market value determined by the court.

Orders