Streetworks Pty Ltd v Linking Melbourne Authority - [2011] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5737 of 2010

STREETWORKS PTY LTD	Applicant
v
LINKING MELBOURNE AUTHORITY	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11-13 April 2011
DATE OF JUDGMENT:	17 June 2011
CASE MAY BE CITED AS:	Streetworks Pty Ltd v Linking Melbourne Authority
MEDIUM NEUTRAL CITATION:	[2011] VSC 264

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LAND VALUATION AND COMPENSATION – Trial of preliminary questions – Highest and best use of land – Hypothetical zoning – Claimant’s land part of a larger parcel otherwise rezoned for residential purposes in 1991 – Proposed freeway the real and substantial cause of failure to rezone claimant’s land – Consequences in respect of value of claimant’s land arising from freeway proposal – Decrease in value arising from the freeway proposal to be disregarded – Section 43 Land Acquisition and Compensation Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gobbo QC with Ms L Hannan	Norton Rose
For the Defendant	Mr J Delany SC with Mr P Chiappi	Garland Hawthorn Brahe

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The Statutory Framework............................................................................................................ 3
Preliminary Questions.................................................................................................................. 5

The land............................................................................................................................................... 8

Planning History.............................................................................................................................. 11

The Outline Development Plan................................................................................................. 17
The Amendment L8 Panel Report............................................................................................ 26
The Department of Planning and Housing Letter................................................................. 30

Factors relied on by the authority................................................................................................. 32

The section 43(1)(a) argument........................................................................................................ 39

Conclusion......................................................................................................................................... 42

HIS HONOUR:

Introduction

On 29 October 2009 (‘the relevant date’), the Southern and Eastern Integrated Transport authority (‘the authority’) compulsorily acquired land at 180 Golf Links Road, Frankston South from the owner (‘the claimant’) in order to construct a section of the proposed Mornington Peninsula Freeway.

The acquired land comprised part of Lot D on Plan of Subdivision 404446G totalling 5.659 hectares with a 345.6 metre frontage onto Golf Links Road.[1] In 1991, the claimant’s land formed part of a larger parcel known as the Tahnee Lodge Land (‘the TL land’), the balance of which was rezoned Residential 3 in 1991, and later under a new format planning scheme, Residential 1. The claimant contends, and I accept, that the claimant’s land, unlike the balance of the parcel, was not rezoned in 1991 from a rural to a residential zone because of the proposal for a freeway which has ultimately led to the acquisition forming the basis of this proceeding.
[1]Lot D totals 5.722 hectares in area.

The acquired land straddles the boundary of two municipalities; the eastern part of the site being located in the Mornington Peninsula Shire, and the western part in the City of Frankston. The Urban Growth Boundary is aligned with the municipal boundary in question. That part of the land included within the municipality of Frankston lies within the Urban Growth Boundary while that part located within the municipality of the Mornington Peninsula does not.

At the relevant date, the acquired land was partly zoned Residential 1 under the Frankston Planning Scheme (‘FPS’) and partly included in the Green Wedge Zone under the Mornington Peninsula Planning Scheme…

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.

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Details

Case: [2011] VSC 264
Decision Date: 17 June 2011

CaseChat Overview and Summary

Streetworks Pty Ltd contested the valuation and compensation awarded by the Linking Melbourne Authority for land acquired under the Land Acquisition and Compensation Act 1986. The court was tasked with determining the highest and best use of the land, particularly whether the claimant's land should be considered as part of a larger parcel that had been rezoned for residential purposes in 1991. The dispute hinged on whether the decrease in value caused by the proposed freeway should be disregarded under Section 43 of the Act.

The legal issues centred around the application of hypothetical zoning and whether the freeway proposal was the real and substantial cause of the failure to rezone the claimant's land. The court had to examine the impact of the proposed freeway on the land's value and whether this impact could be excluded from the compensation calculation. Additionally, the court considered whether the freeway proposal was a material factor in the decision not to rezone the claimant's land.

The court concluded that the proposed freeway was indeed the real and substantial cause of the failure to rezone the claimant's land. As a result, any consequences in respect of the value of the claimant's land arising from the freeway proposal, including the decrease in value, were to be disregarded under Section 43 of the Act. This decision meant that the valuation and compensation awarded to Streetworks Pty Ltd would not include the impact of the freeway proposal on the land's value.

Orders