Bowmont Pty Limited v Transport Infrastructure Development Corporation [2004] NSWLEC 118

Land and Environment Court of New South Wales

CITATION : Bowmont Pty Limited v Transport Infrastructure Development Corporation [2004] NSWLEC 118 APPLICANT Bowmont Pty Limited (ACN 003 989 982) PARTIES : RESPONDENT Transport Infrastructure Development Corporation FILE NUMBER(S) : 30793 of 2003 CORAM: Cowdroy J KEY ISSUES: Compulsory Acquisition of Land :- adjoining owner influence LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 Cretazzo v Lombardi (1975) 13 SASR 4; Croghan v Hawkesbury City Council (1998) 99 LGERA 375; CASES CITED: Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; Hughes v Western Australian Cricket Association (1986) 8 ATPR 40-748; Maloney v Cowra Shire Council (2000) NSWLEC 33 ; Mood and Anor v Cowra Shire Council (1999) 103 LGERA 260 DATES OF HEARING: 08/03/2004; 09/03/2004 EX TEMPORE 03/09/2004 JUDGMENT DATE :

APPLICANTS Mr J. Maston (Barrister)

SOLICITORS McGlynn and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr R. Lancaster (Barrister)

SOLICITORS Clayton Utz

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30793 of 2003

Cowdroy J

9 March 2004 Bowmont Pty Limited (ACN 003 989 982) Applicant v Transport Infrastructure Development Corporation Respondent Judgment 1 In these proceedings the applicant claims an award of compensation pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Act") in respect of the compulsory acquisition of its land at 154-158 Church Street, Parramatta ("the land"). The land is also known as lot 1 in Deposited Plan 128471. 2 The respondent was granted leave today to amend these proceedings by substituting the entity known as the Transport Infrastructure Development Corporation instead of the State Rail Authority of New South Wales. 3 During the first day of the hearing of these proceedings the parties resolved the compensation to be awarded in respect of the market value of the land pursuant to s 55(a) of the Act. The expert valuers, namely Mr Terence Large and Mr Garry Humphries agree that such value at the date of acquisition, namely 24 April 2003 was $8,650,000. 4 The parties also agree the quantum of the items of disturbance pursuant to s 55(d) of the Act is $52,000 plus stamp duty to be determined. If no other sum is awarded it is agreed that the amount of stamp duty will be $461,240. 5 The remaining issue concerns the applicant's claim that a premium of ten per cent should be allowed in respect of the alleged "adjoining owner influence" on market value. The applicant submits that the "adjoining owner influence" arises as a result of the land forming part of a larger parcel acquired by the respondent. 6 Prior to the date of acquisition the respondent had purchased properties in close proximity to the land, namely 85 Argyle Street, 87 Argyle Street and 148 Church Street, Parramatta. Although these properties were separated from the land the applicant submits that they were nevertheless adjoining in the context described by Kirby P in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429. 7 Additionally the land was located opposite the respondent's railway line. Accordingly, the applicant contends that the respondent would most likely have been the future purchaser and would have paid a premium to obtain the land. The applicant makes such submission irrespective of the need to compulsorily acquire the land. 8 The applicant's claim is predicated upon the recognised basis for an award which may be made pursuant to s 56(1)(a) of the Act as explained in Croghan v Hawkesbury City Council (1998) 99 LGERA 375 at p 387. Similar allowances were made by Talbot J in Mood and Anor v Cowra Shire Council (1999) 103 LGERA 260 at p 263 and Maloney v Cowra Shire Council (2000) NSWLEC 33 especially at para 71. 9 Alternatively the applicant submits that the adjoining owner influence arises because Westfield, the owner of a large neighbouring shopping complex had made an expression of interest in acquiring the land as part of the consolidated parcel of land which had been acquired by the respondent up to the date of acquisition. Such expression of interest was made in late 2003, namely several months after the compulsory acquisition and only followed after the respondent had indicated that the purpose of the acquisition was to be curtailed. 10 The respondent submits that there is no basis for the finding of an adjoining owner influence. It submits that there has been no evidence of any special potentiality to justify such an award: see Bignold J in Croghan at p 387. Further it submits that the findings of Talbot J in Mood and Maloney are distinguishable since those cases involved part of a roadway being mistakenly constructed on private land. 11 Further the respondent submits that the Court is required by s 56(1)(a) of the Act to disregard the public purpose for which the land was acquired in assessing market value: see Roads and Traffic Authority of New South Wales v Perry and Anor (2001) 52 NSWLR 222.