Expandamesh Pty Ltd v Sydney Metro (No 3) [2022] NSWLEC 137

Land and Environment Court New South Wales

Medium Neutral Citation: Expandamesh Pty Ltd v Sydney Metro (No 3) [2022] NSWLEC 137 Hearing dates: 19, 20, 21, 26 and 27 September 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [236] Catchwords: COMPULSORY ACQUISITION ‑ substratum compulsorily acquired for the purpose of construction of a railway tunnel for the Sydney Metro project ‑ claim for compensation for market value of the substratum and for the decrease in value of the residual land retained by the dispossessed owner ‑ three jurisdictional tests as prerequisites to being permitted to seek compensation pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) set by Sch 6B of the Transport Administration Act 1988 (the Transport Administration Act) ‑ first test is whether "the surface of the overlying soil is disturbed" ‑ geotechnical evidence establishes test is satisfied ‑ alternative tests not satisfied ‑ ability to claim compensation pursuant to the Just Terms Act established MARKET VALUE CLAIM ‑ Applicant's valuer assesses market value of acquired substratum on the basis of "blot on title" ‑ Respondent's valuer assesses market value of acquired substratum as nil ‑ "blot on title" not an appropriate approach ‑ statutory requirement to consider a hypothetical transaction involving a willing, but not anxious, purchaser and a willing, but not anxious, vendor ‑ hypothetical vendor would not altruistically ascribe no value to the substratum ‑ only valuation evidence of appropriate compensation of $20,000 proposed by the Applicant's valuer ‑ appropriate to award the Applicant compensation for acquisition of the substratum in the quantum proposed by its valuer CLAIM FOR COMPENSATION FOR IMPACT ON RESIDUE LAND ‑ town planning evidence of increased development potential of the site ‑ consideration of how increase in development potential was caused ‑ increased development potential caused by the public purpose ‑ dispute as to cost of additional geotechnical monitoring to permit realisation of future development potential arising from the public purpose ‑ cost of additional monitoring to realise increased development potential determined as $140,000 ‑ valuers disagree about value of increased development potential ‑ Applicant's valuer says no increase in value to be ascribed ‑ Respondent's valuer proposes 10% uplift in value for future development potential ‑ Respondent's valuer's position preferred ‑ increase in value of residue land significantly greater than the cost of the necessary geotechnical monitoring ‑ no entitlement to compensation pursuant to s 55(f) of the Just Terms Act ‑ claim for compensation for decrease in value of residue land dismissed COSTS ‑ Applicant partially successful ‑ no unreasonable conduct by Applicant ‑ Respondent to pay Applicant's costs as agreed or assessed unless notification within 21 days of a party seeking an alternative costs order. Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991, ss 3, 54‑56, 59 and 62 State Environmental Planning Policy Infrastructure 2007 Transport Administration Act 1988, Sch 6, cl 2(1)(a) and (b) Cases Cited: AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325 Banno v Commonwealth of Australia (1993) 45 FCR 32 Barkat v Roads and Maritime Services [2019] NSWCA 240 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 Expandamesh Pty Ltd v Sydney Metro [2022] NSWLEC 43 Expandamesh Pty Ltd v Sydney Metro (No 2) [2022] NSWLEC 109 House of Peace Pty Ltd & Anor v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440; [2000] NSWCA 44 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Landan Development Pty Ltd v Sydney Metro; Opera Australia v Sydney Metro; Altomonte Holdings Pty Ltd v Sydney Metro [2019] NSWLEC 65 MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 Texts Cited: Macquarie Dictionary Category: Principal judgment Parties: Expandamesh Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: Mr T Hale SC/Mr D Robertson, barrister (Applicant) Mr R Beasley SC/Mr L Waterson, barrister (Respondent)