WAINWRIGHT v THE MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974 [1990] NSWCA 180

WAINWRIGHT v THE MINISTER ADMINISTERING THE NATIONAL PARKS AND WILDLIFE ACT 1974

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 21,22 May 1990, 25 September 1990 [1990] NSWCA 180

COMPULSORY ACQUISITION — WHETHER trial judge erred in taking into account changes in zoning restrictions and planning policy — WHETHER assessment of compensation based on best comparable sale and highest and best use — EARLIER sale of resumed land — WHETHER valid basis for purpose of assessment of compensation — WHETHER further evidence admissible on appeal from Land and Environment Court — WHETHER error of law in assessment of compensation.

Held: (1) There had been no error of law on the part of the trial judge, and no failure to properly assess the impact of State planning legislation. (2) No error of law in finding that the prior sale of the resumed land ten years previously was not a comparable sale. (3) New evidence would not be allowed. Real Property Act (1900) s61(2) Public Works Act (1912) s124 Land and Environment Court Act (1979) s57(1) Spencer v The Commonwealth (1907) 5 CLR 441 Corrie v MacDermott (1914) AC 1056 Royal Sydney Golf Club v FCT (1957) 97 CLR 379 Chapman v The Minister (1966) 84 WN (Pt 1) (NSW) 417 McIntosh v Williams (1976) 2 NSWLR 237 Housing Commission v San Sebastian Pty Limited (1978) 140 CLR 196 Melwood Units Pty Limited v Commissioner for Main Roads (1979) AC 426

Priestley, Clarke and Handley JJA This is an appeal by Mr Harry Wainwright, the former owner of 589.87 ha of coastal land situated north of the Hastings River near Port Macquarie, from the judgment of Perrignon J of the Land and Environment Court. His Honour had assessed the compensation payable under s124 of the Public Works Act for the compulsory acquisition of the appellant's land which had been affected by notification in the Gazette on 30 September 1983. The appellant's land was acquired for the purpose of establishing a public recreation ground at Limeburners Creek to be vested in the Minister Administering the National Parks and Wildlife Act 1974. His Honour in an extremely full and detailed judgment assessed the compensation payable in the sum of $623,000. The appellant seeks a new trial of the action or that this Court might fix the amount of compensation payable.