Goodwin and Others v Roads and Traffic Authority of New South Wales [2003] NSWLEC 133

> Land and Environment Court of New South Wales

CITATION : Goodwin and Others v Roads and Traffic Authority of New South Wales [2003] NSWLEC 133 APPLICANTS Clive Benson Goodwin Joan Edith Cutler PARTIES : Margaret Goodwin Jones

RESPONDENT Roads and Traffic Authority New South Wales FILE NUMBER(S) : 30090 of 2001 CORAM: Talbot J KEY ISSUES: Compulsory Acquisition of Land :- compensation - before and after method - modest premium for nominal residential development potential LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 s 55(a) CASES CITED: DATES OF HEARING: 05/08/2002, 06/08/2002, 07/08/2002, 08/08/2002, 09/08/2002, 12/08/2002, 28/04/2003, 29/04/2003, 30/04/2003, 01/05/2003, 02/05/2003, 03/05/2003, 04/05/2003, 05/05/2003 DATE OF JUDGMENT: 05/30/2003

APPLICANTS Mr J J Webster SC with Ms H Irish (Barrister) SOLICITORS Kearns & Garside LEGAL REPRESENTATIVES: RESPONDENT Mr R P L Lancaster (Barrister) SOLICITORS Corrs Chambers Westgarth

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

30090 of 2001 Talbot J Decision Date: 30 May 2003 Clive Benson Goodwin Joan Edith Cutler Margaret Goodwin Jones Applicants v

Roads and Traffic Authority of New South Wales Respondent

Judgment Introduction

1 On 1 June 2001 the Roads and Traffic Authority of New South Wales ("the RTA") acquired Lot 52 and Lot 54 in DP 1013688 for the purposes of re-alignment of the Princes Highway by Notice of Compulsory Acquisition of Land published in the New South Wales Government Gazette No. 93 Folio 3382. The acquired land comprises 15.902 hectares, which forms part of a holding of 61.66 hectares owned by the applicants. The holding comprises 26.476 hectares to the west of the existing Princes Highway ("the western parcel") and 35.178 hectares situated between the Princes Highway and the South Coast Railway Line ("the eastern parcel"). 2 On 14 June 2001 the Valuer-General determined compensation in the sum of $367,000, including $360,000 for market value under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Terms Act"). 3 These class 3 proceedings are an objection to the amount of compensation offered by the respondent in respect of the compulsory acquisition. 4 At the date of acquisition the eastern parcel was zoned Rural 1(a) pursuant to Shellharbour Local Environmental Plan 2000 ("LEP 2000") gazetted on 2 June 2000 whereas the western parcel was included in the 7(d) Environmental Protection (Scenic) zone. The land acquired has been zoned 9(b) Arterial Roads Reservation. 5 It is the applicants' case that, but for the proposal to realign the Princes Highway through the eastern parcel, that area of land had deferred potential for residential development whereas after the acquisition there was no residential potential. Furthermore, the value of the western parcel will be adversely affected by the construction of a four-lane highway and major intersection with Shellharbour Road as a consequence of the impact on the amenity of that land in terms of noise and visual degradation. 6 The respondent denies that the eastern parcel has ever had any potential to be developed for urban purposes and that accordingly compensation should be assessed on the basis that the value of the land is determined having regard to rural purposes as the highest and best use before and after the acquisition. 7 The applicants' valuer, Frank Egan, has calculated compensation payable in the sum of $1,216,430 assuming that the eastern parcel was capable of being developed for 282 lots deferred for ten years and that there was no potential for residential development after acquisition. Moreover, the value of the western parcel has, in his opinion, been diminished at the rate of $2,500 per hectare. If the Court finds that there has been no impact on the value of the western parcel then Mr Egan's opinion is that compensation should be assessed at $1,150,240 for the diminished value of the eastern parcel. Consistent with his opinion that there would be no residential development potential in the eastern parcel after acquisition, Mr Egan did not carry out a formal assessment of the after value of the eastern parcel, taking account of any residential potential. 8 On the other hand, Bruce Martin, the valuer retained by the respondent, has also carried out exercises to determine the value of the land before and after acquisition on the basis that there was potential for residential development in each case. He has also made an assessment of compensation based upon the assumption that the land was suitable only for rural purposes before and after 1 June 2001.