Land and Environment Court of New South Wales CITATION : Torrisi, M.G. v Roads and Traffic Authority of NSW [2005] NSWLEC 743 APPLICANT: M.G. Torrisi PARTIES : RESPONDENT: Roads and Traffic Authority of NSW FILE NUMBER(S) : 31527 of 2003 CORAM: Bignold J KEY ISSUES: Compensation :- Application to vacate hearing date due to Applicant putting forward alternative basis for claim DATES OF HEARING: 10/10/2005 EX TEMPORE JUDGMENT DATE : 10/10/2005 APPLICANT: F. Sinclair SOLICITORS: Stoikovich Macri LEGAL REPRESENTATIVES: RESPONDENT: J.B. Maston SOLICITORS: Blake Dawson Waldron JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 10 October 2005 31527 of 2003 M G TORRISI v ROADS AND TRAFFIC AUTHORITY OF NSW JUDGMENT 1 HIS HONOUR: This is an application to vacate a hearing date of a claim for compensation under the Land Acquisition (Just Terms Compensation) Act, the hearing of which has been fixed for three days of next week. 2 The matter has been before me three times in the last week in preparation for final hearing. It emerged on the first occasion early last week that, when the Applicant filed amended points of claim it became apparent to the Respondent, for the first time in any definite sense, that the Applicant's claim for compensation would be based upon a view as to the drainage implications for the land affecting its potential and hence its value, as reflected in by Mr Boucher's report, filed and served by the Applicant on 9 September. 3 In pars 19 and 20 of that report, Mr Boucher expresses an opinion concerning his hypothesis that but for the orbital road proposal, land in this section of Prestons, that is situate between Skipton Lane and Ash Road, would probably have been developed for residential purposes. Following on that opinion, he goes on to express an opinion about the likely form of the drainage corridor and channel as it traverses the subject land, generally following the course of Maxwells Creek which traverses the middle of these parcels of land. 4 This is an opinion which is different from opinions previously expressed in a series of cases involving compensation claims of lands so affected by the orbital proposal situate in this particular section of Prestons, that is affected by Maxwells Creek. 5 I am told that this is the last of the cases to be litigated and doubtless the Applicant, coming last in the sequence, has, to speak colloquially, gone to school on the outcome of the previous cases. It is true, as Mr Macri, on behalf of the Applicant has said today, that the 45 metre drainage channel and corridor is not a new fact. That is undoubtedly the case because the relevant lands upon the release LEP were affected by drainage, special uses, zoning, generally the 45 metre width corridor, together with adjacent open space and then the rest residential. However in the previous cases, though this fact has been accepted as part of the background facts and part of the planning evidence, generally speaking the hydrological experts retained by the parties, normally Mr Boucher, for the respective Applicants and Associate Professor Ball for the Respondent, have jointly adopted, for the purpose of determining the amount of land available for residential development, a seventy metre corridor for drainage, generally traversing the site in the fashion of Maxwells Creek. 6 So it is that in this case, for the first time, although Mr Boucher proffers the opinion previously proffered in the cases of the seventy metre wide corridor, proffers for the first time an alternative, based upon the hypothesis that the land would have been developed in the late 1990s, in which event the council's then prevailing views on trunk drainage, as reflected in prevailing policies and plans, may have sponsored the 45 metre corridor width. 7 It is because of this new fact and its belated raising in the amended points of claim last week that the Respondent's application to vacate the hearing dates is, in my view, irresistible. That is not to criticise the Applicant in the preparation of the case but simply to acknowledge the inevitable consequences of the belated raising of the matter. 8 The Respondent should have the opportunity to explore the alternative drainage scenario, based upon the 45 metre wide drainage corridor. This, as I pointed out in the course of argument today, opens up, as I would understand it, a line of inquiry which has hitherto not been encountered in any of the cases. The Applicant has been given the opportunity, proffered by the Respondent initially but one that I have adopted, of the option to hold the fixture next week and conduct the case upon the agreed assumption that the drainage corridor would be accommodated within the seventy metre wide corridor, that is as I would understand it, upon the assumption ultimately adopted in all the other cases. 9 The Applicant, as is his right, has chosen not to forego the case based upon the alternative 45 metre wide drainage corridor and the inevitable consequence of that, given its belated arrival in the case, is that next week's fixture cannot be held and the parties, especially the Respondent, will need to have the opportunity to explore this matter. 10 For those reasons, the application to vacate must be granted. The question of costs on the application should be reserved. To that end I make the orders and give the directions as set forth in the Minute Of Orders and Directions that has been prepared by the Respondent, which the Applicant does not oppose, now that the decision has been made to vacate next week's fixture. For those reasons, I make the orders and give the directions as set forth in the short minutes which I have signed and placed on the Court papers. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.