Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19 Hearing dates: 12 December 2023 Date of orders: 12 February 2024 Decision date: 12 February 2024 Before: Payne JA at [1] Kirk JA at [130] Preston CJ of LEC at [131] Decision: (1) Appeal allowed. (2) Orders 1 and 2 made in the Land and Environment Court dated 5 May 2023 be set aside. (3) The Court declares the value of Lot 94 in Deposited Plan 1111430, as at the date of transfer on 18 May 2007, is determined in the sum of $110,000. (4) The respondent pay the appellant's costs of this appeal. (5) The question of the costs of the proceedings in the Land and Environment Court including the costs of the proceedings before Sheahan J be remitted to the Land and Environment Court. Notation: The Court notes the appellant's undertaking in Exhibit A1 to pay interest on the amount of $110,000 from the date of transfer, 18 May 2007, to the date of payment, 28 August 2017, pursuant to ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991. Catchwords: VALUATION OF LAND – Compulsory acquisition – land transferred to public authority as condition of development consent – Compensation – land valued according to principles of compulsory acquisition – Construction of s 56(1)(a) of Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – Determination of market value – decrease in land value attributed to public purpose – Statutory disregard – Identification of public purpose CAUSATION – whether public purpose caused decrease in land's value – where owners sought and obtained development consent – whether owners proved a decrease in value of land by comparison with hypothetical use which would have occurred but for public purpose Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Pt 4, Pt 5, ss 4.2, 7.11 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ss 3, 4, 37, 54, 55, 56 Land and Environment Court Act 1979 (NSW) s 58 Public Works Act 1912 (NSW) s 42 Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A). Cases Cited: Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 Coffs Harbour City Council v Noubia Pty Ltd (2020) 246 LGERA 56; [2020] NSWCA 142 Council of the City of Ryde v Azizi [2019] NSWSC 1605 Leichhardt Council v Roads & Traffic Authority (NSW) (2006) 149 LGERA 439; [2006] NSWCA 353 Lloyd v Robinson (1962) 107 CLR 142; [1962] HCA 36 Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495; [1947] HCA 58 Noubia Pty Ltd v Coffs Harbour City Council [2019] NSWLEC 113 RD Miller Pty Ltd v Roads and Maritime Services NSW (2020) 103 NSWLR 234; [2020] NSWCA 241 Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196 Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 Spencer v The Commonwealth of Australia (1907) 5 CLR 418 Sydney Metro v G & J Drivas Pty Ltd [2024] NSWCA 5 Tolson v Roads and Maritime Services [2014] NSWCA 161 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Category: Principal judgment Parties: Coffs Harbour City Council (appellant) Noubia Pty Ltd (respondent) Representation: Counsel: I Hemmings SC; A Pearman (appellant) R Lancaster SC; H Irish (respondent) Solicitors: Wilshire Webb Staunton Beattie Lawyers (appellant) Pikes and Verekers Lawyers (respondent) File Number(s): 2023/176861 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2023] NSWLEC 36 Date of Decision: 31 March 2023 Before: Pain J File Number(s): 2017/83167