Wollong Pty Ltd v Shoalhaven City Council
[2001] NSWLEC 151
•07/17/2001
Land and Environment Court
of New South Wales
CITATION: Wollong Pty Ltd v Shoalhaven City Council [2001] NSWLEC 151 PARTIES: APPLICANT:
RESPONDENT:
Wollong Pty Ltd
Shoalhaven City CouncilFILE NUMBER(S): 30322 of 1998 CORAM: Talbot J KEY ISSUES: Compulsory Acquisition of Land :- potential for residential development
Compensation:- based on rural zoning being continuedLEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Roads Act 1993CASES CITED: DATES OF HEARING: 12/06/01, 13/06/01, 14/06/01, 15/06/01, 18/06/01, 19/06/01, 20/06/01, 21/06/01, 22/06/01, 25/06/01, 27/06/01, 28/06/01, 9/07/01 (written submissions), 13/07/01 (final written submissions). DATE OF JUDGMENT:
07/17/2001LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr J E Robson (Barrister)
SOLICITORS:
Blake Dawson Waldron
Mr J J Webster (Barrister)
SOLICITORS:
Morton & Harris
JUDGMENT:
IN THE LAND AND Matter No. 30322 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 17 July 2001
Respondent
The Application
1. By way of a notice published in the NSW Government Gazette on 28 August 1998, the council acquired land which is described as Lots 49, 50 and 51 in DP 862697 and Lots 71 and 85 in DP 874040 in Vincentia (“the subject land”).
2. Lots 49, 50, 71 and 85 were acquired for the purposes of a road along the frontage of the applicant’s land to the Wool Road. Lots 49, 50 and 71 were acquired strictly for road widening purposes, whereas Lot 85 was acquired for the purpose of providing access from the Wool Road to an existing Crown road within part of the applicant’s remaining land situated at the corner of the Wool Road and Naval College Road (subsequently Jervis Bay Road).
3. Lot 51, comprising 13.46 hectares (excluding roads), was acquired for the purposes of a district community and recreation centre (“the leisure centre site”).
4. Although Lots 49 and 50, previously delineated in DP 874040 as Lots 86 and 87, were acquired for road widening purposes, it is appropriate and convenient to consider the compensation payable for those lots in conjunction with and as if they were part of the leisure centre site. Accordingly, the total area for the leisure centre site should be regarded as being 13.8259 hectares.
5. The remaining land acquired for road purposes, namely Lots 71 and 85, comprise a total area of 8,670m 2 .
6. The total area of the applicant’s land, the subject of the compulsory acquisition, therefore is 14.6929 hectares.
7. The acquired land forms part of a larger holding owned by Wollong Pty Ltd, being Lot 5 in DP 816315 which originally had an area of 419.4 hectares. Part of this land was acquired by the National Parks and Wildlife Service (“NPWS”) leaving a residue parcel of 112.6 hectares after the compulsory acquisition by council.
8. At the date of acquisition Lots 49, 50, 71 and 85 were zoned No. 1(b) (Rural B Zone) under the Shoalhaven Local Environmental Plan 1985 (“the LEP”). Lot 51 was in the No. 1(a) (Rural A Zone) and 1(b) (Rural B Zone).
9. Lots 49, 50 and 71 were, at the date of acquisition, in proposed zone 5(e) Special Uses (Road Widening) under the 1997 revised Vincentia Draft Local Environmental Plan (“the revised draft LEP”).
10. Lot 51 was in proposed zone 5(c) Special Uses (Community Facilities) in the revised draft LEP. Lot 85 was in proposed zone 3(g) Business Development.
11. The applicant’s valuer has valued Lots 71 and 85 on the basis of their deemed highest and best use, potentially, as part of the Business zone. On the other hand, the respondent’s valuers have not regarded Lots 71 and 85 as having any potential for commercial development.
12. There is a significant dichotomy between the respective experts in regards to the underlying zoning to be adopted for the assessment of compensation in respect of the leisure centre site. On the one hand, the applicant’s experts contend that this land was “ripe” for residential development at the time of acquisition, whereas the respondent’s witnesses contend that the planning history and the physical constraints of the site preclude such a prospect.
The relevant planning regime to be attributed to the leisure centre site at the date of acquisition
13. At the date of acquisition, pursuant to the LEP, part of the leisure centre site nearest Wool Road was in zone 1(b) Rural. The land at the rear was within zone 1(a) Rural.
14. Amendments, by way of the proposed Vincentia Draft Local Environmental Plan (“the draft LEP”), were the subject of a study published in July 1991. It was proposed, at that time, that the leisure centre land would be within zone 5(a) Special Uses and zone 6(c) Open Space (Proposed). The Special Uses proposed were not identified except to the extent of the site being incorporated within a district centre concept plan with particular reference to community facilities.
15. The land on the opposite side of Wool Road to the subject site is identified for high school use in the district centre concept plan included with the 1991 study. The land immediately west of the proposed high school running down to Jervis Bay Road is identified as having residential potential. Further land to the north-west of the leisure centre site is also identified as having a potential residential use at that time. The July 1991 report refers to the proposed community facilities as follows:-
Part of the District Centre is formed by a seven hectare community facility site located adjacent to the commercial area on the eastern side and bounded in the north by the district recreation area.
This site is large enough to provide for the higher order services in a central and highly accessible location. It also concentrates services so they can be used in association with a shopping trip and provides an economical way of organising transport such as community transport or transport to the High School opposite.
The site is envisaged for child care, youth facilities, community centre, library etc. The Health Service have also indicated that a site in the order of 5,000 square metres may be required for a polyclinic to service the district.
16. Moreover the 1991 report took account of public submissions made in response to the Vincentia structure plan published in December 1988. The structure plan had identified the leisure centre site as a community facility recreation site with an active recreation area shown at the rear.
17. In June 1996 a further report, in respect of the draft LEP, was published. This study maintained the proposed 5(a) and 6(c) zoning for the leisure centre site. However, it should be noted that areas of land previously proposed as zone 2(c) Residential, namely the areas to the north-west, to the east and on the other side of Wool Road behind the high school and the TAFE sites, were substantially reduced.
18. Figures in the 1991 and 1996 studies identified areas “with development potential from ecological constraint” and areas “with some ecological value, though with development potential”. They included the subject land in an area identified as having development potential on ecological grounds.
20. Cl 16 of the JBREP states :-19. The Jervis Bay Regional Environmental Plan 1996 (“the JBREP”) was gazetted on 10 January 1997.
- Any new land releases for urban development should be located in the areas indicated on map 4 .
21. Map 4 of the JBREP indicates areas identified as “opportunities for urban development”.
22. Although the scale of the map is not conducive to accuracy, nevertheless, it is accepted that the subject land is included in the urban development area.
24. The aims of the JBREP are stated in cl 4 as follows:-23. The JBREP does not, in terms, seek to deal specifically with future residential development.
- (a) to protect the natural and cultural values of Jervis Bay, and
(b) to allow proposals that contribute to the natural and cultural values of the area.
26. In a report of the Policy and Planning Committee on 16 September 1997 the General Manager made the following comment in response to the specific issue raised, namely whether there should be greater flexibility of uses within the zone 3(a) (District Centre):-
25. In September 1997 the council adopted the revised draft LEP which included the leisure centre site in zone 5(c) Community Facilities. The frontage of the subject site along Wool Road was in a proposed zone 5(e) Road Widening. Ultimately the site was zoned in this way when the LEP (Amendment No 131) was made some 15 months after the date of acquisition on 17 December 1999.
- _ It has long been envisaged the District Centre (apart from the community facility) would be able to cater for a range of uses other than strictly commercial, for example medium density or aged persons accommodation. This has not included, however, low density residential use. It is accepted therefore that the proposed 3(a) zone would not meet this objective. In lieu it is suggested the most appropriate zone would be a Business 3(g)(Development Area) zone. The objectives of a 3(g) zone are:
“To provide a strategic development area providing both for a variety of uses and for varying combinations of such uses including higher density residential, commercial and tourist combinations but not including ordinary retail uses that would compete with the local retain [sic] centre. The development is subject to a development control plan which will give guidelines for the type and scale of development.”
- _ It will be noted, however, that the objectives exclude “ordinary retail uses”. As such should Council adopt the use of the 3(g) zone, there would need to be a “notwithstanding” clause created specifically for the site which would ensure the proposed district centre could proceed in its entirety. This could include a review of appropriate uses at the same time.
28. The following paragraph appears in the report:-27. In the report to council on the revised draft LEP the General Manager notified the council that the preparation and exhibition of the draft LEP was deferred to allow the preparation of the JBREP. It was also noted in the report that all existing and proposed national park areas identified in the JBREP were deleted from the provisions of the draft LEP.
- The area proposed for urban development under the draft LEP is consistent with the area shown in the JBREP, as shown on Plan “C”. Adjoining areas defined as Habitat Corridors by JBREP are shown on Plan “D”. No part of the draft LEP contains habitat corridor(s).
29. The General Manager also responds to an expressed concern that there should be consistency with the JBREP as follows:-
- As stated in the background to this report, preparation/exhibition of the draft LEP was deferred to allow prior preparation of the JBREP. As such, DUAP would not allow exhibition of the draft LEP without being satisfied of its consistency with the JBREP. All existing and proposed National Park areas under JBREP were deleted from the provisions of the draft LEP, and were shown on the draft exhibited plan for information purposes only. Their boundaries as shown on the draft LEP had to match those shown on the JBREP. The final map to be sent to DUAP will not show 8(a) or 8(b) zones. It will instead make a reference to map 5 of the JBREP. Map 5 contains the 8(a) and 8(b) zones. The provision of new urban areas under the draft LEP are consistent with the areas identified in the JBREP. In this respect the JBREP states:
- “Note: New housing areas can add to the value and attractiveness of Jervis Bay and contribute to the overall quality of the built environment. Any new land releases for urban development should be located in the areas indicated on map 4”.
- 1. The environmental consideration that potentially affected the zoning and the use of the subject land.
2. The development and scale of the concept of a district centre and its components.
31. In summary, he considers that the underlying zoning of the site would have been “environmental protection” based on the reported value of the sedgelands and the fact that it contains habitat of the Eastern Bristlebird. Had the land not been required by the council for community and related purposes it is Mr Murray’s opinion that it would not have had any potential for urban use or rezoning to facilitate development.
32. Mr Murray is the council officer primarily responsible for preparation of the draft LEP. He told the Court that any inquiries by a prospective purchaser at the relevant date in 1998 would have been referred to him or the environmental planner in respect of policy matters. Mr Murray makes the comment that it is not altogether appropriate to have regard to the council’s consideration of its own application for construction of the leisure centre. Arguably the leisure centre might have a comparable physical impact to residential development in several respects. However, he considers it appropriate to balance the environmental detriment as a consequence of the construction of the leisure centre against the community benefits attached to the centre. Residential housing is not, in his opinion, necessarily in the same category as a leisure centre. The opinion of Mr Murray must be given considerable weight in this case having regard to the position he held in council in 1998.
33. Mr Neil Ingham is a consultant town planner retained by the applicant. He relies upon various investigations carried out in relation to the environmental suitability of the land, the contents of the draft LEP as it was in 1998, the history of the locality and the long term intention of the council to create a district centre in the general location of the subject site. In his opinion it would be reasonable to assume that a hypothetical purchaser of the leisure centre site would have expected that it would be rezoned as part of the district centre. He further believes this would have brought about a situation where a significant increase in the potential development opportunities would have existed. There would have been an opportunity to meet the demand for residential accommodation. It is probable, in his view, that the perimeter of the area around the district centre, including the leisure centre site, would have been re-zoned as 2(c) Residential had it not been resumed for the community facilities purpose.
34. Mr Ingham accepts that a hypothetical subdivision of the leisure centre site into 110 residential lots, ranging in area from 500m 2 to approximately 6,000m 2 , would have been an appropriate form of development if the land had been rezoned 2(c) Residential. According to Mr Ingham, the only part of the site that would have been excluded from residential development is in the south-west adjacent to the 3(a) Business (Retail) zone. He cites the date of the making of the LEP (Amendment No 131), namely 17 December 1999, as the date the rezoning would have occurred. From that, I infer, he concludes the hypothetical purchaser would have assumed the rezoning would be introduced at the date the draft amendments to the LEP were made. Furthermore, the applicant’s witnesses assume that at the relevant date there was a reasonable expectation the LEP would be gazetted within 18 months from the date of acquisition.
35. It is clear from Mr Ingham’s response to the evidence of other witnesses that he had regard to the perceived greater potential of the leisure centre site than most other areas identified in the JBREP because of its location and proximity firstly, to Vincentia and secondly, the future district commercial centre. Furthermore, he had regard to its relationship with the primary school, high school and future TAFE college.
36. Mr Ingham assumes that because the site is within one of the areas identified as presenting an opportunity for urban development that all the land within those areas would have been released for urban development. Conversely, a proper reading of the JBREP reveals that the intention was to restrict any urban development to within the indicated areas. Mr Ingham’s conclusion that the lands identified in the JBREP are the sites which have now been released for urban development does not necessarily lead to the conclusion that the leisure centre site would have been included in any residential release.
37. The Court has not been referred to any concise or specific study, report or statement that can be attributed to the council or, for that matter, any other relevant authority which confirms the leisure centre site was being ear-marked specifically for residential development. The intention reflected in the JBREP provision was exclusory rather than inclusive, the object being to exclude urban development from all other areas covered by the JBREP.
38. Mr Ingham is right when he says that the JBREP identified certain lands and those lands are the sites which have now been released for urban development in Vincentia. However it is not necessarily correct to equate all urban development with residential development.
39. It is clear that Mr Ingham’s reasoning is based upon the proposed location of the district centre. This indicates to him that the leisure centre site is suitable and appropriate for retail, commercial and residential uses. He concludes “it is probable that the perimeter of the area including the subject leisure centre site would have been zoned as Residential 2(c) land”. That appears to lead him to the view that “if the land had not been resumed for community purposes, the land would almost certainly have been developed for residential purposes within the immediate foreseeable future”. Accordingly, Mr Ingham is prepared to make the leap from “it is probable” that the site would have been zoned as Residential 2(c) to the final conclusion “the land would almost certainly have been developed for residential purposes”. Mr Ingham’s conjecture is rejected as it is unsupported by the facts.
40. The council’s consultant planner, Stephen O’Connor, also had regard to the number of studies and reports made between September 1991 and August 1998. After reviewing the 1996 study in respect of the revised draft LEP, Mr O’Connor concluded that it was obvious the leisure centre site and the land surrounding it are considered to be environmentally sensitive. In his view, any development would have to be carefully assessed because the land basically forms a buffer between the national park and the proposed district centre. He notes that a report prepared by Leyshon Consulting Pty Ltd in August 1997 concludes that criticism raised in submissions about inappropriate zoning for the district centre are not valid, thereby enhancing the prospect of the rezoning proposal being agreed to by Department of Urban Affairs and Planning (“DUAP”). After identifying the proposed change from 3(a) Retail zone to the 3(g) Development Area zone for the district centre site, he notes that there is only one proposed change which relates specifically to the leisure centre site, namely the merging of the Open Space and Special Uses zones into one zone.
41. In Mr O’Connor’s opinion, if the pursuit of the Special Uses zoning by the council is to be ignored then the leisure centre site was likely to have retained its rural zoning for some considerable time. Recognising the adjacency of the Proposed National Park 8(b) zone he opines that the site may have eventually been rezoned 8(b) and incorporated into the Jervis Bay National Park. Although the land to the west is, in his opinion, sufficiently large enough to accommodate demand for that type of development well into the future, he accepts nevertheless that the potential may have existed to also rezone some of the subject site for some commercial purpose. On balance, he supports the maintenance of the rural zoning as the appropriate expectation.
42. Finally, he argues that the likelihood of the site being rezoned for residential purposes was always remote having regard to its proximity to the national park, the existence of threatened species on site, the need to retain buffers and wildlife corridors within the land and the drainage characteristics of the land. The Court will consider the physical constraints separately as they have been dealt with in some detail by other experts.
43. Mr O’Connor makes the point that whilst the playing fields and the leisure centre can be considered a form of urban development, it cannot be implied that any other form of urban development is equally well suited to the site.
44. In answer to Mr Ingham’s criticisms of his evidence Mr O’Connor maintained his opinion that given the concerns being raised by many submissions, and in particular comments made by the NPWS, the Department of Land and Water Conservation (“DLWC”) and the Environmental Protection Authority (“EPA”), the leisure centre site probably had good potential to be developed at some time in the future for community facilities and recreational purposes consistent with the proposed Special Uses 5(c) zoning. He considers the highest and best use for the site, under the actual zoning in place in 1998, could potentially have been a motel or tourist facility within the Rural 1(b) zone.
The relevant site constraints of the leisure centre site
45. It is the respondent’s case that the 6(c) Open Space (Proposed) zoning is consistent with the environmental constraints on development of the leisure centre site.
46. At the time of acquisition, two threatened species, namely the Eastern Bristlebird and the Glossy Black Cockatoo were known to be on the site. The Eastern Bristlebird habitat comprises at least 20 per cent of the site in the south. The habitat of the Glossy Black Cockatoo is a comparatively smaller area in the north-west. The council and the NPWS have identified what they consider to be sensitive environmental areas on the site. These contain the habitats referred to above. They require protection together with the wildlife corridors which need to be retained.
47. Although there is some disagreement between the experts as to the extent to which a residential development of the site would impact upon the areas to be protected and also the proportion of vegetation which it is acceptable to remove, nevertheless, the point remains that a purchaser who made prudent inquiries to the NPWS and the council, at or about the time of acquisition, would have been made aware of these potential constraints.
48. Questions about whether a species impact statement (“SIS”) would have been required in support of any development application are not directly relevant to the present inquiry. It is not necessary for the Court to determine whether or not the outcome of an eight part test would have resulted in a demand for a SIS. It is sufficient for the Court to be aware that upon inquiries the prudent purchaser would have been informed the site contained habitat and areas designated as a wildlife corridor and that a buffer along the national park boundary could be expected.
49. There is also some disagreement, between the experts retained by the respective parties, in relation to geo-technical constraints and the drainage properties of the site. A prospective purchaser in 1998 should have become aware of a report on the geo-technical investigations undertaken by Coffey & Partners Pty Ltd in 1988 (“the Coffey report”). This report showed that the site has areas classified as units A, C and D. It does not appear to be disputed that the site could be developed to the potential claimed for it by the applicant’s experts.
51. The major differences between the respective feasibility studies were identified by the respondent’s consultant surveyor, Mr Terry Watkinson, as follows:-50. It appears, however, that a purchaser may have received conflicting advice about the cost of preparing the site for development depending upon which expert was consulted at the time. Even the most optimistic expert would have alerted the prospective purchaser to problems associated with the land and advised that they could act as a constraint on the extent of development or the cost of it, although not as an ultimate bar or prohibition. A prudent purchaser, properly advised, would have carried out further investigation following a perusal of the Coffey report. It is foreseeable that the purchaser would have allowed a contingency for costs over and above that foreshadowed by the applicant’s consultants.
- _ Differential in cost of road and drainage to modify site,
_ Stormwater Management Systems, Water Quality Control Ponds,
_ Access road,
_ Contribution to cost of Sewer Pumping Station and Rising Main,
_ Contribution to cost of Water Main.
52. It is the opinion of the respondent’s expert witnesses that the cost of development of the leisure centre site would lead a purchaser to regard residential development potential as marginal. Taking account of the respondent’s witnesses, on the balance of probabilities, a purchaser could have concluded the site would be something less than suitable for development as a residential subdivision to the extent proposed by the applicant’s witness. The fact that this line of advice was a real prospect in 1998 has a significant bearing on the question that the Court must answer, namely whether a prospective purchaser would have regarded the site as having potential for residential development. The raising of the argument by itself and the prima facie veracity of the respondent’s witnesses leads the Court to the conclusion that the properly informed prudent purchaser would have been diffident about the cost of carrying out residential development and allowed a significant amount on that account. In some important respects the estimates provided by the respondent’s witnesses are in the order of 100 per cent over the construction estimates provided by the applicant’s witnesses.
53. Whilst none of the issues raised in respect of the constraints upon the development of the land for residential purposes would necessarily preclude the approval of a development application they would nevertheless have a bearing on the hypothetical purchaser’s intention to purchase the land for that purpose.
54. A further matter, which apparently had not been taken into account by the applicant’s witnesses, is the fact that the leisure centre site is intercepted by a number of Crown roads. In order to achieve the full development potential of the site it would have been necessary for the prospective purchaser to acquire the roads from the Crown. In theory it is feasible that the Crown would require the payment of compensation, notwithstanding the council’s practice prior to the introduction of the Roads Act 1993 to, in effect, exchange the area of existing roads for new roads created by subdivision. Apart from conjecture, there is no evidence, either way, whether there would have been any offsetting benefit to the developer for the road acquisition costs in 1998. Although the applicant submits that the current regime is consistent with the council’s previous practice, there has been no formal recognition to the Court that this would occur.
55. Furthermore, the respondent raises an issue about the provision of fuel free zones and fuel reduced zones around the eastern and northern perimeters of the site in order to provide an adequate bushfire prevention regime.
56. Finally, the means of providing access to the site from the Wool Road is uncertain. Although conceptual plans prepared in the course of studies undertaken for the draft LEP show a roundabout type facility at or near the boundary in the south-west corner, the identified habitat of the Eastern Bristlebird along the frontage to Wool Road creates a problem of direct access off that road. The evidence shows that in 1998 the prospective purchaser would have appreciated that only temporary access could be provided initially and that ultimately, upon the construction of the district centre, access would become available through the land to the west of the subject site. Until such time as the district centre became imminent the hypothetical purchaser would be aware that the full cost of providing temporary access was the responsibility of the owner of the subject site.
57. Although the utility of maintaining a habitat linkage with the TAFE site across the Wool Road might in fact be regarded as tenuous, nevertheless, the purchaser of the subject land would be aware of council’s ambition to maintain that wildlife corridor.
Valuation Approach for the leisure centre site
58. The applicant’s consultant valuer, Mr Craig Miller, proceeded to value the leisure centre site solely on the basis that a yield of 110 residential lots could be achieved more or less in accordance with the conceptual design developed by the applicant’s surveyor, Mr Peter Price. Mr Price made his assessment on the basis that the site would, in due course, have been zoned 2(c) for Residential development under the provisions of the LEP. Mr Miller allowed for a period of 18 months after the date of acquisition before a development application could be lodged following re-zoning.
59. Mr Price recognises that the constraints on the land include the suitability of the variable subgrade material on the site, flooding, drainage and endangered fauna. He further recognises, and assumes, that access and services would eventually be provided at the western boundary although temporary access to the subdivision could be obtained by constructing a temporary road leading off the Wool Road. He is not persuaded that the additional cost foreshadowed by the respondent’s witnesses, nor the extent of constraints relied upon by the respondent, would adversely impact upon any potential development of the land for residential subdivision into approximately 110 lots, generally in accordance with his concept plan.
60. The Court finds that, on the balance of probabilities, the site would not be zoned for residential purposes at the relevant date and it would not be reasonable for a hypothetical purchaser to assume that a rezoning to permit residential development would take place in the foreseeable future, more particularly within 18 months. Indeed, the facts show that the site has never been directly recognised as having development potential for housing. Instead all of the studies and reports undertaken up to 1998 recognise the areas to the north-west, the east and to the south on the other side of Wool Road. It cannot be said therefore that the site was “ripe” for residential development at the relevant date. The hypothetical purchaser would have discarded any real prospect of developing the land for dwelling houses, even more so if it was proposed in accordance with the concept presented by Mr Price. That is not to say that the land would never become available for residential development. However, population trends up to 1998 show that the other land specifically ear-marked for residential development would be well and truly sufficient to meet anticipated demand for many years to come.
61. In the Court’s opinion it is appropriate to adopt the zoning as it was in 1998 as the underlying zoning for the leisure centre site recognising that there may have been some prospect for limited peripheral commercial use derived from the construction of the district centre, whenever that occurred.
62. The applicant’s valuer, Mr Miller, has made no attempt to value the leisure centre site as other than with residential development potential.
63. The respondent’s valuer, Mr Stephen Dickson, has valued the leisure centre site at the date of acquisition at $200,000.
64. Mr Dickson expressly rejected the potential for residential development or industrial development as not being economically feasible. In his opinion, the geotechnical problems and habitat constraints made the leisure centre site less physically attractive for development for a community purpose than other available sites. It is also his view that the habitat constraints of the site and the high cost of development, because of geotechnical problems with the land combined with its undesirable location, made the development of a motel or tourist facility not feasible. He arrived at a value of the land as a rural homesite having regard to sales of rural holdings in the area.
65. Mr Raymond Jones, from the State Valuation Office, considered the before and after method of valuation of the whole of the applicant’s land on a broad brush basis for extracting a level of value at $780,000, assuming the potential for a residential development on the site. Expecting the rural zoning would be maintained, Mr Jones valued the leisure centre site as a rural residential site at $200,000. After allowing for a higher use, such as a residence with a nursery, he derived a value of $250,000.
66. On the basis that the dispossessed owner is entitled to generous but just compensation and given the faint possibility that some benefit could ultimately flow from the establishment of the district centre on the adjoining land to the west, it is appropriate for the Court to adopt a marginally higher figure than that determined by Mr Jones on the basis of the rural zoning, namely $300,000.
Valuation approach to Lots 71 and 85
67. The respondent’s valuers either failed to take into account the identification of these lots as being part of the proposed site for the district centre or simply regarded them as part of the total holding. One of the respondent’s valuers even went so far as to determine that it would, in his opinion, be incorrect, in principle, to compensate the company for the loss of the district centre zoned land because the boundary of that land could have been extended in another direction.
68. The Court agrees with the approach taken by Mr Miller, on behalf of the applicant. He has valued Lots 71 and 85 on the basis of their deemed highest and best use potentially as part of the Business zone. Even though Lot 85 may ultimately prove to be for the benefit of the district centre, by providing part of the access from the Wool Road, nevertheless the purpose of the acquisition is to formalise access over existing Crown roads to the leisure centre site. Although these lots are shown on the 1992 structure plan as part of a passive recreation environmental and buffer area, the land is primarily shown as being within a proposed zone 5(e) Special Uses (Road Widening) in the revised draft LEP. It is the fact that the western extremity of Lot 71 appears to intrude into the zone 7(d2) Environmental Protection (Special Scenic). The Court is satisfied that a purchaser making relevant inquiries in August 1998 would have been informed that Lots 71 and 85 formed part of a larger parcel which, it could be reasonably predicted, would be rezoned for business purposes when, in due course, the amending LEP was made. The prudent purchaser would also have anticipated that it may take a period of 18 months before the re-zoning could take place. The Court agrees with Mr Miller that it would be reasonable to assess the value of the potential Retail/Commercial area at a rate per square metre. There is no concrete evidence to contradict the value adopted by Mr Miller based on sales evidence at the rate $45/m 2 .
Compensation for decrease in the value of adjoining land
69. According to Mr Miller, this claim arises from the loss of potentially developable retail land at the south eastern corner of Lot 79 (the district centre site) as a result of council’s proposed imposition of an environmental area in association with its development of the leisure centre site on Lot 51. The evidence relied upon in support of the claim is said to be provided by the applicant’s environmental consultant, Dominic Fanning.
70. It is difficult for the Court to understand how this claim arises. The affected land is identified as a wildlife corridor. The existence of a wildlife corridor or habitat preservation area does not arise as a consequence of the use of the adjoining land for the acquired purpose, namely a leisure centre. It would be something inherent in the nature of the land itself if it does form part of such a corridor, and thus it would be liable to be set aside for that purpose irrespective of the nature of development on the leisure centre or district centre sites. This claim is rejected.
71. Compensation for the acquisition of Lots 49, 50Determination of compensation
- and 51 on the basis of an underlying zoning being
maintained as Rural 1(a) and Rural 1(b) $300,000
Compensation for the acquisition of part Lot 71 and
85 - 6,719m 2 at $45/m 2 deferred for 18 months at 15
per cent per annum $244,574
Part Lot 71 within zone 7(d2) - 1,951 m 2 at $5000/hectare $ 1,000
Legal fees (agreed) $ 5,000Cost of fencing claimed under s 55(d) of the Land
Acquisition (Just Terms Compensation) Act 1991
is partly satisfied by a written undertaking furnished
by council to contribute one-half of the cost of the
construction of a sufficient dividing fence along
the common boundary of Lot 51 and the adjoining
land of the applicant - allow one half of the cost which
the owner would not otherwise have incurred but for
the acquisition $ 14,500
- Total $565,074
72. The sole remaining question to be determined, in respect of which the Court at this stage has no evidence, is the amount payable for valuation fees.
74. The exhibits may be returned.73. The question of costs is reserved.
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