David Fox v Planning Ministerial Corporation [2023] NSWLEC 109

Land and Environment Court New South Wales

Medium Neutral Citation: David Fox v Planning Ministerial Corporation [2023] NSWLEC 109 Hearing dates: 5 to 9, 13 to 15, 22 and 29 June and 14 July 2023 Date of orders: 20 October 2023 Decision date: 20 October 2023 Jurisdiction: Class 3 Before: Moore J Decision: See directions at [487] Catchwords: COMPULSORY ACQUISITION – determination of compensation – land compulsorily acquired on the Sydney Harbour foreshore at McMahons Point – necessity to determine the public purpose for which the land was acquired –public purpose to be disregarded for the purposes of assessing compensation – the Applicants propose that the public purpose was the creation of a foreshore park identified in 1948 and incorporated in the County of Cumberland Planning Scheme Ordinance 1951– Applicants propose underlying zoning at the date of acquisition was R3 Medium Density Residential after disregarding the public purpose – the Ministerial Corporation's position is that the acquisition was for the purpose of completing the already existing open space reserve surrounding the site – Ministerial Corporation proposes underlying zoning at the date of acquisition was B1 after disregarding the public purpose – public purpose was that advanced by the Ministerial Corporation – resultant underlying zone is B1 Neighbourhood Centre at the date of acquisition VALUATION – valuation of site on an underlying zoning of B1 Neighbourhood Centre – consideration of the extent of a hypothetical B1 development on the site – hypothetical development of three storeys with one ground floor commercial level with basement and a single level apartment above – hypothetical purchaser an owner/occupier not a developer looking to construct the hypothetical development and on‑sell it – consideration of value of commercial component – consideration of value of residential component – two-level hypothetical B1 development subject of quantity surveying evidence – necessity to derive a value after consideration of valuation and quantity surveying costing – necessity to make allowance for risk of obtaining development – valuation of acquired property on B1 underlying zoning basis to be derived from applying nominated adjustments to the valuation analysis of a three-level shop top housing development – directions given for calculating outcome VALUATION – contingent R3 valuation undertaken as a precaution if B1 Neighbourhood Centre incorrect underlying zoning – comparable sales method appropriate basis for valuation assessment –expert valuers consider multiple potential comparable sales – consideration of whether sales were truly comparable – only one sale truly comparable – analysis and adjustment of comparable sale results in valuation of acquired property on R3 underlying zoning basis of $17,200,000 DISBURSEMENTS – dispute as to limited range of disbursements made in support of preparation of Applicants case – disbursements made for the purposes of enabling legal advice to be given to the Applicants – disbursements to be reimbursed pursuant to s59(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 COSTS – consideration of costs entitlement of dispossessed owners – dispossessed owners' case not advanced unreasonably or in a fashion causing unnecessary expense – dispossessed owners entitled to costs, even if resultant B1 development less than Valuer General's determination Legislation Cited: Civil Procedure Act 2005, s98(1) County of Cumberland Planning Scheme Ordinance 1951 Environmental Planning and Assessment Act 1979, cll 30 and 31 of Pt 6 of Sch 2 Land Acquisition (Just Terms Compensation) Act 1991, ss 4, 7, 55, 56(1), 59(1)(a) and 66 Land and Environment Court Act 1979, s 38(2) North Sydney Local Environmental Plan 2013, cll 4.3, 4.6, 5.1, 5.10 ,6.9 and the Land Use Table North Sydney Development Control Plan 2013, cl 9.8.8 Trees (Disputes Between Neighbours) Act 2007 Uniform Civil Procedure Rules 2005, rr 1.5, 38.10, 42.1 and 42.15 and Sch 1 Cases Cited: AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325 Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 Banno v Commonwealth of Australia (1993) 45 FCR 32 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164 Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404 Buhach v Transport for New South Wales [2022] NSWLEC 148 David Fox v North Sydney Council [2016] NSWLEC 1366 Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553 Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 Eureka Operations Pty Ltd v Transport for New South Wales [2021] NSWLEC 41 Fox v North Sydney Council [2020] NSWLEC 1056 G&J Drivas Pty Ltd v Sydney Metro [2023] NSWLEC 20 Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWCA 361 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 oOh!media Fly Pty Limited v Transport for NSW [2023] NSWLEC 26 Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands [1947] AC 565 RD Miller Pty Ltd v Roads and Maritime Services NSW [2020] NSWCA 241 Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196 RTA v Perry & Anor (2001) 52 NSWLR 222; [2001] NSWCA 251 Sales v Transport for NSW (No 2) [2021] NSWLEC 96 Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391 Turner v Minister of Public Instruction (1956) 95 CLR 245 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Waters & Ors v Welsh Development Agency [2004] WLR 14 May 2004 Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 Category: Principal judgment Parties: David Fox and Josette Hazzouri (Applicants) Planning Ministerial Corporation (Respondent) Representation: Counsel: P Tomasetti SC/ D Robertson, barristers (Applicants) N Eastman/H Rogers, barristers (Respondent)