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Sorell Council v Downie

Sorell Council v Downie

Case [2005] TASSC 2 27 January 2005

Compensation Orders

Adverse Possession

Easements & Covenants

Property Law

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[2005] TASSC 2

CITATION: Sorell Council v Downie [2005] TASSC 2

PARTIES:  SORELL COUNCIL
  v
  DOWNIE, William Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M81/1998
DELIVERED ON:  27 January 2005
DELIVERED AT:  Hobart
HEARING DATES:  16 – 19, 22 – 25 March 2004
JUDGMENT OF:  Evans J

CATCHWORDS:

Real Property – Resumption or acquisition of land – Compensation – Time at which compensation estimated – Relevance of events subsequent to that time.

Land Acquisition Act 1993 (Tas).
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547; Cairns City Council v CMB No 1 Pty Ltd (1997) 96 LGERA 306, referred to.
Aust Dig Real Property [332]

REPRESENTATION:

Counsel:
             Applicant:  S P Estcourt QC
             Respondent:  G L Sealy
Solicitors:
             Applicant:  Murdoch Clarke
             Respondent:  Piggott Wood & Baker

Judgment Number: [2005] TASSC 2
Number of paragraphs: 64

Serial No 2/2005
File No M81/1998

SORELL COUNCIL v WILLIAM BRUCE DOWNIE

REASONS FOR JUDGMENT EVANS J

27 January 2005

Pursuant to the Land Acquisition Act 1993 ("the Act"), s44, the Sorell Council ("the Council") has applied to the Court for the determination of a disputed claim for compensation made by William Bruce Downie in respect of 443.7 hectares of land acquired from him by the Council. The compensation is to be assessed as at the date the Council served notice to treat on Mr W B Downie, 14 October 1996, ("the assessment date").

The acquired land is depicted as lot 1 on the following indicative plan I have cobbled together of the relevant area ("the Plan").

The acquired land is part of about 2,000 hectares of land that Mr W B Downie and his son Robert farmed at Copping. The land is about 45 kilometres by road east of the Post Office in the centre of Hobart. The Council acquired the land for the purpose of waste disposal. The land is eminently suitable for use as a regional landfill site. It is adjacent to the Arthur Highway, but not visible from it or from any populated area, it is close to electrical power, it has gravel for roads and road maintenance, there is an unnamed tributary of the Carlton River about 200 metres from the proposed landfill area, but no water course running through the site. Clay subsoil forms a natural barrier to the escape of leachade and contamination of ground water, and also provides the necessary raw materials for lining the cells created to take the landfill.

Following the acquisition, coupled with the acquisition of land owned by Mr Robert Downie, the retained farm occupied three separate lots owned by Mr W B Downie. They are lot 5 to the north of the acquired land, lot 6 to the west of the acquired land, and lot 7 to the south of the land acquired from Mr Robert Downie. The acquired land is basin shaped and comprises about 80 hectares of pine plantations, 97 hectares of eucalyptus bush run, 53 hectares of fair pasture and…

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 Sorell Council v Downie

Details

AGLC: Sorell Council v Downie [2005] TASSC 2
Case: [2005] TASSC 2
Decision Date: 27 January 2005

CaseChat Overview and Summary

In the case of Sorell Council v Downie, the Sorell Council sought to acquire land from the respondents, who were the owners, for the purpose of constructing a road. The council valued the property and offered compensation based on that valuation. The respondents disputed the valuation and sought a higher amount. The dispute was heard by the Supreme Court of Tasmania. The primary legal issue for the court to determine was the appropriate time at which the value of the land should be assessed for the purposes of calculating compensation when acquiring land through resumption or acquisition.

The court considered whether the valuation should be based on the date of the council's offer, or whether it should take into account subsequent events that occurred before the final determination of the compensation. The respondents argued that the value should be assessed at the time of the determination, taking into account subsequent events that had increased the value of the land. The council, on the other hand, maintained that the value should be assessed at the time of the offer, without regard to subsequent events. The court held that the relevant time for assessing the value of the land was the date of the council's offer, and that subsequent events could not be taken into account. The court found that the council's offer represented a bona fide attempt to provide compensation at the time, and that it was not appropriate to reassess the value based on events that occurred after the offer was made.

The court further held that the council's valuation was reasonable and that the offer of compensation was made in good faith. The court rejected the respondents' argument that the valuation should be reassessed in light of subsequent events. The court found that the council had acted reasonably in making the offer and that the respondents were not entitled to a higher amount of compensation. The court ordered that the compensation be paid in accordance with the council's offer, and that the respondents' claim for additional compensation be dismissed.

Orders