EL-BAYEH v BLACKTOWN CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and POWELL JJA 25 February 1997, 19 March 1997 [1997] NSWCA 101 Resumption of land — compensation for — Land Acquisition (Just Terms Compensation) Act 1991, s56(1). FACTS The appellant appealed the quantum of an award of compensation for resumption of the appellant's land by the respondent made 3 September 1993 by Bannon J. The appellant argued that the quantum was not a proper sum having regard to the market value of the land, as provided for in the Land Acquisition (Just Terms Compensation) Act 1991, at s56(1) because (a) the trial judge should have considered the adjustment of comparable sales by the appellant's valuers and disallowed the adjustment made by the respondent's valuer; and (b) evidence of the value of the land adjacent to that of the appellant's and resumed at the same time for the same purpose should have been relied upon despite the absence of description as to that land's size, shape, dimensions or utility. HELD (1) Appeal to the Court of Appeal lies only in respect of a question of law, and here, where his Honour's decision is correct and no question of law is involved, the appeal must fail. (2) S56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 prohibits consideration of comparable sales as formulated by the appellant's valuers and the alleged comparable sale figure of the respondent's valuer was accepted as a notation of an anomaly, not an adjusted value. (3) Without description of the adjacent land, the trial judge could not find its value of any, or even little, assistance. Mason P I agree with Meagher JA. Meagher JA This is an appeal from an award of compensation made by Bannon J. Part of the appellant's land at Blacktown was on 3 September 1993 resumed by the respondent Council. The land in question was zoned Light Industrial 4(6) under the Blacktown Local Environment Plan. The resumption was for a public purpose, being the implementation of a drainage scheme for part of the industrial area at Huntington. The respondent Council has a Development Contribution Plan under s94AB of the Environment Planning and Assessment Act 1979 to finance the drainage scheme. Bannon J's function was to judge what was a proper sum to be paid by the respondent to the appellant under the Land Acquisition (Just Terms Compensation) Act 1991. This involved a determination of the land's "market value" within the meaning of that Act. That term is defined in s56(1) of the Act as follows: "56(1) In this Act: »"market value" of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): 2 UNREPORTED JUDGMENTS "(a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired;" His Honour ultimately came to the conclusion that the sum which should be paid was $333,700. The appellant submits this figure is wrong. An appeal to the Court of Appeal lies only in respect of a question of law. In my view this appeal must fail because his Honour's decision is correct, and no question of law is involved. However, to understand why I am of this view it will be necessary to outline the course of the trial before his Honour and the issues which were debated before this Court. Evidence was adduced from three valuers: Mr Carr on behalf of the respondent Council, and Messrs Bowen and Large on behalf of the appellant. Mr Carr brought in a value of $45.00 per m2; the other two, $48.50 per m2 and $46.00 per m2 Of vital importance for the purposes of the present appeal is the manner in which the two sets of valuers used their lists of comparable sales Mr Carr's list consisted mainly of properties unaffected by the drainage scheme or the Plan adopted in respect of that scheme. Mr Carr relied on a list of "comparable sales", all the items on which, except one, were sales of land unaffected by either the scheme or the Plan. In respect of those sales of unaffected land, he came to the conclusion of $45 per m2. However, in respect of the one lot which was affected, he found a figure of $39.00 per m2. He noted the difference (ie $6) as being explicable by the existence of the Plan. He did not suggest that any figures be "adjusted"; he did not argue that the affectation of the subject land by the Plan should in any way be taken into account. The $6.00 figure was a mere check to explain an apparent inconsistency. Mr Bowen on the other hand, relied on a list of "comparable sales" all of which except one, were of land affected by the scheme. Moreover, he did take the scheme into account (not directly, because of the statute; but because he thought it was prudent to take an identical but hypothetical scheme into account). Mr Large had no separate list of "comparable sales" but contented himself with commenting on the two lists relied on by each other valuer. It is evident that both Messrs Bowen and Large disregarded s56(1) of the Act. Not surprisingly the appellant disowned them on appeal. The conduct of the appeal seems to me to be wholly bizarre. There were two grounds relied upon in the appellant's Amended Notice of Appeal. The first was in the following terms: "His Honour erred in law in that he ignored the effect of a Contribution Plan pursuant to s94 of the Environmental Planning & Assessment Act, 1979 on the use of comparable sales." As was pointed out in argument, that ground as formulated was a nonsense. It alleged that his Honour was in error in failing to take into account a matter which his Honour was forbidden by statute from taking into account. However, the appellant argued the ground in a manner which was not covered by the ground itself. It was that Mr Carr's figure had been accepted "subject to an adjustment", whereas the figure of Messrs Bowen and Large had not been "adjusted". This carries no conviction. Mr Carr's figure of $6.00 was not an "adjustment", it was a rough check to explain an apparent anomaly. This ground must therefore fail. The second ground was as follows: URJ EL-BAYEH v BLACKTOWN CITY COUNCIL (Powell JA) 3 "His Honour erred at law in that he rejected for no rational reason the use of a comparable sale (agreement) being the agreement reached as to the value of Lot 1 DP 123750." This second ground of appeal refers to certain land adjacent to the subject land. It was owned by the State Bank of New South Wales. it was reserved at the same time as the appellant's land. In proceedings in the land and Environment Court, Waddell ~J awarded compensation on the basis that the land was worth $52.00 per m2. The judgment of Waddell J was tendered and admitted into evidence. His Honour's finding was pursuant to an agreement between the parties to that litigation. That is all we know. No wonder Bannon J found it of little or no assistance. Nobody sought to explain any of the details of the land - its size, shape, dimensions or utility. No documents were tendered with respect to it other than the judgment. That ground must also be rejected. The result is that no error of law has been demonstrated, and the facts cannot be subject to our scrutiny. The appeal must be dismissed with costs. Powell JA I agree with Meagher JA. Appeal dismissed with costs. Counsel for the appellant: PM Hall QC/J Webster Solicitors for the appellant: John Sarroff & Co Counsel for the respondent: J Ayling Solicitors for the respondent: Taylor Kelso