BLACKTOWN CITY COUNCIL v CAUCHI AND ANOR [1994] NSWCA 27

BLACKTOWN CITY COUNCIL v CAUCHI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA

16 June 1994, 16 June 1994

[1994] NSWCA 27

RESUMPTION — COMPENSATION — NO QUESTION OF PRINCIPLE.

LOCAL GOVERNMENT — resumption of land — cost of drainage works — whether an error of law in assessment of compensation — held: no error of law shown — no question of principle.

Handley JA This is an appeal by Blacktown City Council against the assessment of compensation by the Chief Judge of the Land and Environment Court for the compulsory acquisition of some land belonging to the respondents. Her Honour determined that the proper compensation was the sum of $310,000, being substantially above the sum contended for by the Council. Under the Land and Environment Court Act the appeal to this Court is confined to an appeal on a question of law.

Mr Sweeney QC, appearing for the Council, struggled valiantly to isolate a question of law from the matrix of fact in this case. In my opinion, despite his best endeavours, he did not succeed. The respondents, Mr and Mrs Cauchi, owned a block of land within the municipality having a frontage to Holbeche Road, Arndell Park, close to Doonside Road and the Great Western Highway. It was zoned partly general industrial and partly special usage drainage.

As a result of the acquisition the Council acquired a lot approximately twenty five metres wide which cut a diagonal swathe across the land owned by the Cauchis prior to the resumption. It had the effect of dividing the original land into three lots: one lot to the north east of the resumed area and the other lot to the south west and, of course, the resumed lot itself.

Her Honour proceeded to determine the compensation for the resumption by comparing the value of the land in the hands of the respondents prior to the acquisition and the value of the remaining two lots owned by them after the acquisition. The first question which arose was to determine the highest and best use of the original land and no question turns upon her Honour's finding on that matter. She held that its highest and best use was for industrial purposes without subdivision but with a necessity for making adequate provision to drain the land and carry storm water across it along the lines of an existing watercourse.