E J Cooper & Son Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 384

> Land and Environment Court of New South Wales

CITATION : E J Cooper & Son Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 384 PARTIES : E J Cooper & Son Pty Ltd (Appl) Baulkham Hills Shire Council (Resp) FILE NUMBER(S) : 30607 of 2003 CORAM: McClellan CJ Compensation :- Amount of compensation Objection KEY ISSUES: Whether prudent purchaser would have discounted price to be paid due to possibility of presence of protected land or protected waters on site Whether river within meaning of Rivers and Foreshores Improvement Act 1948 present on land Whether natural or artificial channel LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948 CASES CITED: Azzopardi & Ors v Gosford City Council (2002) 123 LGERA 118 DATES OF HEARING: 8-12 December 2003 EX TEMPORE JUDGMENT DATE : 12/10/2003

N Hemmings QC/C Leggat (Appl) Marsdens Law Group (Sol - Appl)

LEGAL REPRESENTATIVES: M I Bozic SC/M S Henry (Resp) Matthews Folbigg Pty Ltd (Sol - Resp)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30607/03

McCLELLAN J

WEDNESDAY 10 DECEMBER 2003 E J COOPER & SON PTY LIMITED Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent Judgment (as to whether land contains a river) 1 HIS HONOUR: The proceedings before me are a claim by the applicant for compensation in relation to a parcel of land being Lots 14 and 15 in DP 1041791 at Castle Hill. The resumed land has an area of approximately 4.3 hectares. 2 The land formed part of a larger holding owned by E J Cooper & Son Pty Limited. That company, as I understand it, through a family structure, used the land in former years for a major chicken breeding operation. Before that the land was for many years used for rural purposes including farming and grazing. The evidence does not disclose the point at which it came to be used more intensively for the chicken operation, although it is plain that this had occurred by 1961. There is in evidence an aerial photograph which shows that by that time the resumed land and other lands adjacent to it had been developed with a number of large chicken sheds, a large dam and a residence, which I understand was the residence of the manager. 3 The land is flat land with a fall of less than one per cent across it generally in a South to North direction. Inspection of the land reveals that there are some lower lying areas where after rainfall water will accumulate. In those areas there are reeds and other vegetation consistent with damp or at times swampy ground. There are also areas which have been obviously disturbed. There are man-made drains and there is a dam which is a siltation dam created for the purpose of containing run-off from adjoining lands. 4 The resumed land has now become virtually surrounded by residential development. There are some lots still undergoing development but the general picture in the area is of an urban landscape. A short distance from the land to the north a regional shopping centre has been developed. The nearby residential development comprises single dwellings, townhouses as well as development at a greater density. 5 There are a number of issues which the parties have identified relevant to the value of the compensation which should be paid for the resumed land. However the most significant issue which has emerged in the course of proceedings is whether a river, within the meaning of the Rivers and Foreshores Improvement Act 1948 is present on the land. If a river does exist, then before that river could be piped, as is contemplated by the applicant in the form of any hypothetical development of the land, permission would have been required under the Act. The land was resumed on 24 January 2003, at which time the relevant government department from which to seek permission was the Department of Land and Water Conservation. 6 It is submitted by the council that a river exists, and accordingly would have been identified by any hypothetical purchaser as a problem which would have proved to be an impediment to the immediate development of the land and may have ultimately caused difficulties in development of the whole property. It is submitted that as a consequence, because a river exists, the hypothetical purchaser would pay a lesser price than would have been the case if there was no river. 7 Because of its significance in the determination of appropriate compensation the parties have agreed that I should answer in effect nine preliminary questions. The parties are to be commended for adopting this course. This matter is complex and involves a significant money claim. By adopting this course it will be likely that the matter can be disposed of more efficiently than would otherwise have been the case. 8 The questions which the parties have agreed should be answered as separate questions are as follows: "Within the meaning of the Rivers and Foreshores Improvement Act 1948 (NSW) (the Rivers Act ).