RTA v Maggiotto & Anor - [2007] NSWCA 24

NEW SOUTH WALES COURT OF APPEAL

CITATION: RTA v Maggiotto & Anor [2007] NSWCA 24

FILE NUMBER(S):
40128/06

HEARING DATE(S): 8 February 2007

JUDGMENT DATE: 26 February 2007

PARTIES:
Roads and Traffic Authority of New South Wales
Angelo Maggiotto
Maria Maggiotto

JUDGMENT OF: Hodgson JA Tobias JA Campbell JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 30188/03

LOWER COURT JUDICIAL OFFICER: Cowdroy J

LOWER COURT DATE OF DECISION: 22/2/06

LOWER COURT MEDIUM NEUTRAL CITATION:
Maggiotto v Roads and Traffic Authority [2006] NSWLEC 54

COUNSEL:
A: J Griffiths SC / P Tomasetti
R: N Hemmings QC

SOLICITORS:
A: Henry Davis York, Sydney
R: Allens Arthur Robinson, Sydney

CATCHWORDS:
REAL PROPERTY – Resumption or acquisition of land – Compensation – Assessment and related matters – Valuation of land – Conflicting methods of valuation used by Expert Witnesses - Deductions for constraints on land – Where valuation of one Witness ostensibly adopted but method used by that witness not followed through

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979
Suitor’s Fund Act, 1951

CASES CITED:
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGERA 409
Melwood Units Pty Ltd v Commissioner for Main Roads (1978) 52 ALJR 593; 37 LGERA 387
Roads & Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335
Roads & Traffic Authority (NSW) v Muir Properties Pty Ltd [2005] 143 LGERA 192
Yates Property Corp (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; 73 LGERA 47

DECISION:
(a) Appeal allowed
(b) Set aside Orders 1 and 2 of Cowdroy J made on 22 February 2006
(c) Remit the proceedings to the Land and Environment Court for the respondents’ claim for compensation to be assessed according to law
(d) The respondents to pay the appellant’s costs of the appeal with respect to Ground 1 of its Amended Grounds of Appeal filed on 1 August 2006 but to have a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified
(e) The appellant to pay the respondents’ costs of preparation of the appeal with respect to Grounds 2, 3 and 4 of the Amended Grounds of Appeal

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40128/06
HODGSON JA
TOBIAS JA
CAMPBELL JA
Monday 26 February 2007

ROADS AND TRAFFIC AUTHORITY OF NSW v ANGELO MAGGIOTTO & ANOR

Judgment

HODGSON JA: The background to this appeal and the issues involved are set out in the judgment of Tobias JA. I respectfully disagree with pars.[60]-[69] of his judgment, and in the result. I have no other disagreement with his judgment, and I will otherwise adopt what Tobias JA says.
The gravamen of the appellant’s complaint, upheld by Tobias JA, was that the primary judge failed to take into account and deduct the cost of flood management works of $1,665,200.00 in arriving at the before acquisition value of the land; or at least, failed…

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.

Keep reading for free

Create a free CaseChat account to read RTA v Maggiotto & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWCA 24
Decision Date: 26 February 2007

CaseChat Overview and Summary

The appellant, the Roads and Traffic Authority (RTA), appealed to the Court of Appeal against the primary judge's assessment of compensation awarded to the respondents for the compulsory acquisition of their land. The dispute concerned the market value of the acquired land and the amount determined for disturbance, with the appeal being confined to questions of law. The subject land was subject to various zonings, including Residential 2(a) and Future Urban, and was impacted by aircraft noise contours and flood risk classifications.

The Court of Appeal was required to determine whether the primary judge erred in principle when assessing the market value of the acquired land. Specifically, the appeal focused on whether the primary judge had correctly applied the valuation methods of the expert witnesses, particularly concerning deductions for constraints such as flooding and aircraft noise, and whether the adopted valuation rate adequately accounted for the costs of filling and developing the land to realise its residential potential. The Court also considered the impact of these constraints on both the "before" and "after" valuations.

The Court found that the primary judge erred in principle by adopting a base rate for the 2(a) land that did not adequately account for the constraints of flooding and aircraft noise. The judge had ostensibly adopted a valuation method but failed to follow it through by not deducting the costs associated with filling and developing the land to make it suitable for residential use. This failure meant that the difference between the "before" and "after" valuations, which formed the basis of the market value assessment, had overcompensated the respondents. The Court also noted that the compensation for disturbance would need recalculation as it was based on the flawed market value assessment.

Consequently, the appeal was allowed, and the primary judge's orders were set aside. The proceedings were remitted to the Land and Environment Court for the respondents' claim for compensation to be assessed according to law. The costs of the appeal were divided, with the respondents to pay the appellant's costs concerning the first ground of appeal, while the appellant was to pay the respondents' costs for preparing the appeal in relation to the other grounds.

Orders

Orders of the court

(a) Appeal allowed; (b) Set aside Orders 1 and 2 of Cowdroy J made on 22 February 2006; (c) Remit the proceedings to the Land and Environment Court for the respondents' claim for compensation to be assessed according to law; (d) The respondents to pay the appellant's costs of the appeal with respect to Ground 1 of its Amended Grounds of Appeal filed on 1 August 2006 but to have a certificate under the Suitor's Fund Act, 1951 if otherwise qualified; (e) The appellant to pay the respondents' costs of preparation of the appeal with respect to Grounds 2, 3 and 4 of the Amended Grounds of Appeal

Background

Background to the litigation

Pursuant to s 57(1) of the Land and Environment Court Act 1979 (the Court Act) the appellant appealed to this Court against the primary judge’s assessment of compensation with respect to both the market value of the acquired land as well as the amount determined by him with respect to disturbance. Such an appeal is confined to questions of law.The background characteristics of the subject land At the time of acquisition the subject land fell within a number of different zonings under Liverpool Local Environmental Plan 1997 (the LEP). The majority of Lot 17 and a small portion of Lot 18 were zoned Residential 2(a) (the 2(a) land). The remaining portion of Lot 18 and the whole of Lot 19 were zoned 1(e) Future Urban (the 1(e) land). That part of Lot 17 which bordered Hinchinbrook Creek was zoned partly Special Uses – Drainage 5(a) and partly Recreation Public 6(a). Whereas prior to acquisition the unmade portion of Government Road constituted the northern boundary of Lots 17, 18 and 19, after acquisition only a small portion of Lot 19 remained so bounded. The boundary between the 2(a) and 1(e) land corresponded to the location of an Aircraft Noise Exposure Forecast (ANEF) contour. The 2(a) land was within the 20-25 ANEF contour whereas the 1(e) land was within the 25-30 ANEF contour. Those contours were determined by the Commonwealth Civil Aviation Authority. Clause 18 of the LEP prohibited the erection of dwellings in areas where the ANEF exceeded 25. In areas where the ANEF contours were between 20 and 25, dwelling houses could be erected provided they met Australian Standard AS2021-1994 (Acoustics – Aircraft Noise Intrusion – Building Siting and Constructions) (AS2021). Furthermore, pursuant to s 117 of the Environmental Planning and Assessment Act 1979 (the EPA Act), the Minister had made Directive G16-Aircraft Noise which, relevantly, provided that draft local environment plans prepared by councils should not rezone land for residential purposes where the ANEF from time to time advised by the Civil Aviation Authority exceeded 25, except where the council satisfied the Director that any particular provision or area should be varied or excluded from that prohibition. Furthermore, at the date of acquisition 82% (according to the appellant) or 65% (according to the respondents) of the subject land was identified as flood liable on the Flood Liable Land Map (FLLM) prepared by Liverpool City Council (the Council).The relevant findings of the primary judge So far as the assessment of the market value of the acquired land was concerned, the major issues contested before the primary judge were as follows:(a)Whether the 2(a) land could be developed for residential purposes given that it fell within a high hazard flood risk classification under the FLLM and might also be within a floodway;(b)Whether the 2(a) land could be filled and thereby rendered flood-free. (c) Whether flood-free access could be provided to the 2(a) land.(d)Whether the 1(e) land was likely to be rezoned to 2(a) and, if so, when.(e)The impact upon the residential potential of both the 2(a) and 1(e) land of the ANEF contours with reference to either the possibility of the airport being closed or those contours being reviewed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant was requested to indicate to the Court whether there was any evidence from Mr Wood to support the proposition that the development of the land in accordance Scenario 3 was commercially unviable. It was unable to do so. In my opinion it follows that the second ground of appeal was at all times misconceived and it should be rejected.Conclusion The appellant has succeeded on it first ground of appeal in establishing that his Honour erred in principle when adopting Mr Wood’s base englobo 2(a) rate of $180/m² which was a rate applied to land which was unconstrained by flooding and/or airport noise by failing to deduct in both the “before” and “after” valuations the costs associated with the filling and development of the land to enable its residential potential to be realised. As it was common ground that the costs post-acquisition were at least to the extent of $146,000 less than the costs pre-acquisition, it follows that his Honour’s assessment of the market value of the acquired land, being the difference between the “before” and “after” valuations, has over compensated the respondents at least to that extent. I would also add that although the respondents are entitled to compensation under s 55(d) of the Just Terms Act, the amount assessed by his Honour of $127,258 will need to be recalculated as that figure is based upon his assessed market value of $2,497,585.60. It will therefore need to be adjusted to apply to the ultimate determination of the market value of the acquired land. As to the costs of the appeal, in my view the respondents should pay those costs only with respect to Ground 1 of the appellant’s Amended Grounds of Appeal whereas for the reasons referred to in [43], [44] and [73] above, the appellant should pay the cost of preparing the appeal with respect to Grounds 2, 3 and 4. I would therefore propose the following orders:(a) Appeal allowed.(b) Set aside Orders 1 and 2 of Cowdroy J made on 22 February 2006.(c)Remit the proceedings to the Land and Environment Court for the respondents’ claim for compensation to be assessed according to law.(d)The respondents to pay the appellant’s costs of the appeal with respect to Ground 1 of its Amended Grounds of Appeal filed on 1 August 2006 but to have a certificate under the Suitor’s Fund Act, 1951 if otherwise qualified.(e)The appellant to pay the respondents’ costs of preparation of the appeal with respect to Grounds 2, 3 and 4 of the Amended Grounds of Appeal. CAMPBELL JA: I agree with Justice Tobias.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.