Land and Environment Court of New South Wales CITATION : T & E BOURBOUS v MAITLAND CITY COUNCIL [2005] NSWLEC 483 APPLICANTS: T & E BOURBOUS PARTIES : RESPONDENT: MAITLAND CITY COUNCIL FILE NUMBER(S) : 30235 of 2004 CORAM: Bignold J KEY ISSUES: Compensation - Compulsory Acquisition of Land :- Rear of existing shop premises - whether acquired land flood affected - whether acuired land had any development potential - Special Value Land Acquisition (Just Terms Compensation) Act 1991 s66(1) LEGISLATION CITED: Water Management Act 2000 ss255, 256 CASES CITED: Pastoral Finance Association Ltd v The Minister (1914) AC 1083 DATES OF HEARING: 23 February 2005 Written submissions: 14 March 2005, 30 March 2005, 18 April 2005, 3 May 2005 DATE OF JUDGMENT: 09/05/2005 APPLICANT: Mr P. Barham, Barrister Solicitors: Stoikovich Macri LEGAL REPRESENTATIVES: RESPONDENT: Mr Williams, Solicitor Solicitors: Thompson Norrie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BIGNOLD J 5 September 2005 30235 of 2004 T & E BOURBOUS v MAITLAND CITY COUNCIL JUDGMENT CORAM: HIS HONOUR A. INTRODUCTION 1 This is an objection pursuant to s66(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) against the amount of compensation offered by the Respondent in respect of the latter's compulsory acquisition by Notice published in Government Gazette No.174 of 31 October 2003 of the rear part of the Applicants' land situate at No.396 High Street Maitland. 2 The Notice of Compulsory Acquisition identified the public purpose for which the Applicants' land and other neighbouring lands fronting High Street Maitland (together being Lot 1 on Deposited Plan 1044531) were acquired as "for the purpose of open space and river front improvements." 3 The part of the Applicants' land that was compulsorily acquired comprised an area of 86.6m 2 leaving the Applicants a residue area of 112m2 (comprised in Lot 10 DP 1044531). 4 DP 1044531 which was prepared by surveyors on behalf of the Respondent is a plan showing land (being an aggregated area of 4018m DP 1044531 which was prepared by surveyors on behalf of the Respondent is a plan showing land (being an aggregated area of 4018m 2 ) proposed to be acquired by the Respondent for the aforesaid public purpose being generally the undeveloped rear sections of some 33 existing lots each having frontage to Hight Street Maitland and generally developed at the street frontage by existing shops. The street frontage of these existing shops comprises the Heritage Mall (a section of Hight Street) and the rear sections of the lots comprise undeveloped land comprising the levee bank and slopes to the Hunter River. This rear land (including the rear section of the Applicants' land) was the subject of "an easement or right to use the surface and subsoil or undersurface for the purpose of the preservation or mitigation of menace from floods" which was created by Notification published in Government Gazette No.83 of 18 August 1944 pursuant to Division 1 of Part V of the Public Works Act 1912 (the existing Hunter River flood mitigation easement). 5 The amount of compensation offered to the Applicants in the Compulsory Acquisition Notice was $5,000, as determined by the Valuer General, representing $4,000 "marked value" and $1,000 "disturbance" in terms of s55 of the Just Terms Act. 6 In their Points of Claim filed in the proceedings the Applicants claimed compensation in the sum of $43,000 being $35,000 for market value and $8,000 for disturbance (both amounts being exclusive of GST). 7 According to the Points of Claim the basis for the claimed amount of compensation was the "before and after" valuation method having regard to the (i) General Business 3(a) zoning of the Applicants' land under the Maitland Local Environmental Plan 1993 (the LEP) with a prescribed maximum floor space ratio of 2:1, (ii) the existing Hunter River flood mitigation easement, and (iii) the provisions of ss255 and s256 of the Water Management Act 2000 being provisions included in Chapter 5 Part 2 of that Act under the headings "Public Works – Hunter Valley flood mitigation works". 8 I shall refer to these details later in these reasons when I come to consider the competing valuation evidence. 9 Although the amounts of the competing valuations of market value are modest ($35,00 according to the Applicants' Valuer and $4,000 according to the Respondent's Valuer (who was the same person who had undertaken the Valuer General's determination of compensation)) the divergence in those amounts is considerable. As will appear the key to understanding this extreme divergence in valuation opinion (which was maintained despite extensive joint conferencing by the valuers) is to be found in their respective opinions concerning the development potential (if any) of the acquired land having regard to the planning and other restrictions imposed upon its use by virtue of it being indisputably wholly affected by the existing Hunter River flood mitigation easement and the provisions of ss255 and 256 of the Although the amounts of the competing valuations of market value are modest ($35,00 according to the Applicants' Valuer and $4,000 according to the Respondent's Valuer (who was the same person who had undertaken the Valuer General's determination of compensation)) the divergence in those amounts is considerable. As will appear the key to understanding this extreme divergence in valuation opinion (which was maintained despite extensive joint conferencing by the valuers) is to be found in their respective opinions concerning the development potential (if any) of the acquired land having regard to the planning and other restrictions imposed upon its use by virtue of it being indisputably wholly affected by the existing Hunter River flood mitigation easement and the provisions of ss255 and 256 of the Water Management Act and it being disputably within the floodway (the extent is disputable). The Respondent's Valuer attributes no development potential to the compulsorily acquired land whereas the Applicants' Valuer attributes some development potential for the acquired land by contemplating some minor extension of the existing shop development on the residue land by way of a timber deck with sail shade comprising a suitable lightweight construction on the existing levee bank. 10 Before examining the crucial matters in dispute between the Valuers I should briefly note some relevant facts concerning the compulsorily acquired land and the Applicants' residue land. B. RELEVANT FACTS CONCERNING THE COMPULSORILY ACQUIRED LAND AND THE APPLICANTS' RESIDUE LAND 11 The whole of the Applicants' land immediately prior to the date of compulsorily acquisition was included in the General Business 3(a) Zone under the LEP. That Zone comprises the "core retail areas" of a number of designated centres in Maitland including Central Maitland (the location of the Applicants' land): vide cl.21 of the LEP. 12 Within this Zone most types of development are permissible with development consent but the Council must not grant development consent if the proposed development does not satisfy the stated Zone Objectives: vide cl.21. 13 Clause 22(1) of the LEP specifies a maximum floor space ratio of 2:1 in respect of development within Zone 3(a) ("floor space ratio" being defined as the ratio of the gross floor area of a building to the area of the site on which the building is proposed to be erected). 14 Part 10 of the LEP is headed "Flooding" and contains the following provisions: 40. What restrictions apply to development of land affected by the Hunter Valley Flood Mitigation Act 1956? 1) The Council shall not consent to the carrying out of development for any purpose within 20 metres of: (a) any work to which the Hunter Valley Flood Mitigation Act 1956 extends; or (b) the bank of any part of the lower river within the meaning of that Act, except with the concurrence of the Director of Public Works. 2) In considering whether to grant concurrence as referred to in subclause (1), the Director of Public Works shall take into consideration the likely effect of the proposed development in relation to the flooding of land in the vicinity of the land on which the proposed development is to be carried out. 41. What restrictions apply to development of land within floodways? 1) Not withstanding the other provisions of this plan, the Council may only grant consent to development which, after having regard to any relevant comments of the Council's Flood Plain Management Committee, will not result in either: (a) detrimental changes to the flow of floodwater; or (b) possible harm to human life, animal welfare, or property. 2) Applications for consent for development in the floodway must be accompanied by a report setting out: (a) any likely dangers to human life; and (b) the likely impact the development may have on the character of floodwaters in the event of a major flood. 15 It is to be noted in passing in relation to cl.40 that the Hunter Valley Flood Mitigation Act 1956 was repealed by s401 of the Water Management Act . (Although the matter was not adverted to at the hearing it may be that the equivalent provisions of Chapter 5 Part 2 of the later Act apply in substitution for the relevant reference to the repealed Act: vide Schedule 9 of the later Act.) 16 Sections 255 and 256 of the Water Management Act are in the following terms: 255 Restriction on use of lands adjacent to levee banks (1) If a levee bank has been constructed adjacent to the Hunter River, the Minister may, by notice in writing to: (a) the landholder of the land on which the levee bank has been constructed, or (b) the landholder of any land adjacent to the levee bank, or (c) the landholder of the whole or any part of the land lying between the levee bank and the Hunter River, impose such conditions and restrictions on the use of such levee bank or land as the Minister considers necessary or desirable to ensure the stability of the levee bank and in the interests of flood prevention or mitigation within the Hunter Valley generally. (2) The Minister may in the like manner revoke or vary any notice given in pursuance of this section. (3) If any landholder to whom such a notice has been given contravenes any condition or restriction imposed by the notice, the Minister: (a) may authorise any person to enter the land to which such notice relates, and to take such remedial measures on that land as the Minister considers necessary, and (b) may recover any cost incurred in so doing from the landholder in any court of competent jurisdiction as a debt due and owing to the Crown. (4) If under this section conditions or restrictions on the use of any levee bank or land are imposed by the Minister, the landholder of the levee bank or land is entitled to claim and be paid compensation for any loss sustained by reason of those conditions or restrictions. 256 Construction of fences, structures and flood works (1) A person must not: (a) construct any building, fence or structure in, on, or adjacent to, a levee bank, or (b) construct a flood work on a floodplain, except with the consent of the Minister. Maximum penalty: 2,500 penalty units (in the case of a corporation) or 1,200 penalty units (in any other case). (2) The Minister's consent may be given unconditionally or subject to conditions. (3) An authorised officer: (a) may enter any lands on which any building, fence or flood work has been constructed otherwise than in accordance with the Minister's consent, and (b) may take such measures as are necessary to demolish or remove the building, fence or flood work or to render the flood work ineffective. (4) The costs incurred by an authorised officer under this section are recoverable from the landholder as a debt in a court of competent jurisdiction. (5) The Minister may, by notice published in the Gazette, exclude any lands from a floodplain. (6) In this section, "floodplain" means any lands declared to be within the floodplain of the Hunter River by a proclamation in force under section 16 of the former (6) In this section, "floodplain" means any lands declared to be within the floodplain of the Hunter River by a proclamation in force under section 16 of the former Hunter Valley Flood Mitigation Act 1956 , other than lands excluded from the floodplain by a notice published under this section. 17 In relation to cl.41 it is to be noted that the LEP contains no definition of "floodway". 18 However the Hunter River Floodplain Management and Development Control Plan No.29 (DCP) applies to lands within the City of Maitland that have the potential to be inundated by floodwaters of the Hunter River up to 1% Annual Exceedance Probability (the 1% AEP flood event): vide cl.5. 19 The stated purpose of the DCP is "to give detailed guidance to people wishing to carry out development within the floodplain area …" (cl.6). 20 Clause 12 of the DCP contains a number of definitions including the following: Declared Floodplain means portions of land proclaimed as floodplains under the provisions of the Hunter Valley Flood Mitigation Act 1956, to allow unimpeded flows across floodways during times of floods. An approval must be sought from the Minister of the Department of Land and Water Conservation for any development within a Declared Floodplain in accordance with Section 16 of the Hunter Valley Flood Mitigation Act, in addition to any approval required from Council. If Council requires an application for works this will automatically be referred to the Department of Land and Water Conservation for their concurrence. Floodways are those areas where a significant volume of water flows during floods. They are often aligned with obvious naturally defined channels. Floodways are areas which, even if only partially blocked, would cause a significant redistribution of flood flow, which may in turn adversely affect other areas. They are often, but not necessarily, the areas of deeper flow or the areas where higher velocities occur. Floodways are identified on the DCP maps. 21 The DCP contains a series of maps depicting the following data: Flooding 1% flooding Declared floodplain 22 The relevant map is No.F6 showing Central Maitland including High Street and the Heritage Mall (which includes the Applicants' land). According to that map (which is drawn at the scale of 1 to 10,000) the lots (including the Applicants' land) situate on the northern side of the Heritage Mall are not shown as being affected by either (i) the floodway or (ii) the declared floodplain or (iii) the 1% flooding. 23 According to the affidavit of Ms Leanne Harris, a Strategic Planner in the employ of the Respondent (Exhibit G) "the relevant zoning map indicates that the subject property is within a "floodway" and this triggers cl.41 of the LEP … which requires specific consideration of any development application by the Council's Floodplain Management Committee" (pars 4, 5 and 6). 24 Paragraph 7 of Ms Harris' affidavit states: A. " Cl.40 (of the LEP) also requires a specific concurrence from the Public Works Department (now DIPNR) for any land under the Hunter Valley Flood Mitigation Act (now the Water Management Act )." 25 Apparently in support of Ms Harris' evidence an extract of the LEP map comprising sheets 33 and 34 was tendered (Exhibit D) which contains a number of references to the word "Floodway", superimposed on diagonal hatching (generally superimposed on land designated as Zone No 1(a) Prime Rural Land). The location of the floodway at its edges is very imprecisely delineated and an examination of the LEP Map Extract does not demonstrate whether any, and if so to what extent, the Applicants' compulsorily acquired land is affected by that imprecise delineation. In his oral testimony the Applicants' Valuer thought that a small section of that land (most proximate to the Hunter River) may be affected by the imprecise delineation of the "Floodway" land shown on the LEP Map Extract. 26 However it is to be noted that the LEP does not itself contain any definition of what constitutes "floodway" land. Its imprecise delineation of "floodway" land is to be contrasted with the more precise delineation of "floodway" land by the DCP (which as I have earlier noted does not affect the Applicants' land, including the rear land that was compulsorily acquired). 27 The Applicants' acquired the subject land by contract for the purchase price of $290,000 which contract was completed on 20 December 1991. It comprised an area of 198m 2 and included at street frontage a single storey and single fronted shop premises (with a floor area of 100m 2 ) which did not extend beyond the existing man-made levee bank forming the principal component of the Hunter Valley Flood Mitigation Works in that section of the Hunter River which passes through Central Maitland. 28 The compulsorily acquired land comprises an area of 86m2 being the rear section of the Applicants' land from and including the levee bank down the slope towards the Hunter River. The compulsorily acquired land (86m 2 ) includes most of the Applicants' land that was affected by the existing Flood Mitigation Easement (95m 2). The difference, namely 9m2 , lies between the levee and the rear of the shop premises, and is undeveloped. 29 The Applicants' shop premises are situate about midpoint in the Heritage Mall, a prime retail strip, being a section of High Street that is closed to vehicular traffic. C. THE VALUATION EVIDENCE 30 The Applicants' Valuer Mr Neskovski prepared 2 Valuation Reports (Exhibits 1 and 2) and participated in the preparation of a Joint Valuers' Report (Exhibit 3). In his initial valuation report Mr Neskovski adopted the before and after method yielding the following result: Before Valuation: $395,000 After Valuation: $360,000 Difference = compensation for market value: $35,000 31 In his second valuation report Mr Neskovski applied the "piecemeal" valuation method yielding a market value of $32,600. 32 The Respondent's Valuer, Mr Hartman, prepared one Valuation Report (Exhibit A) to which he added an explanatory statement and participated with Mr Neskovski in the preparation of the Joint Report. 33 In his valuation report Mr Hartman applies the "piecemeal" valuation method noting that the before and after method "is not appropriate … as the impact upon the residue is minimal and the difference is too small to indicate anything other than a nominal loss of market value." 34 He explains his valuation basis and rationale in the following extract from his Report: A. " It is considered that the subject land added little value to the property as a whole. The location of the land on the riverbank and the fact that it is flood liable prohibits any development of this land. The remainder of the commercial land is able to be developed separately to the subject land. The demand for retail and office development in Maitland is not sufficient for the addition land on the riverbank to add any development right or potential to the residue land." 35 His market value of $4,000 is derived from his analysis of sales of flood liable lands which were zoned either Rural 1(a) or 1(b) or 6(a) Public Recreation which are located in localities different from the Applicant's land. 36 In contrast to Mr Hartman's opinion that the compulsorily acquired land had no development potential either in respect of itself or in respect of adding to the value of the residue land is Mr Neskovski's opinion that the higher section of the rear land situate near the levee (i.e. approximately 33m 2 ) was capable of being used for some commercial purpose in conjunction with the existing shop premises. In his initial report (Exhibit 1) he describes the commercial use he contemplated as follows: The commercial uses envisaged for the rear vacant land (which are consistent with the General Business 3(a) Zone under the provisions of Maitland Local Environmental Plan No 1993) are outdoor café/ outdoor restaurant eating space, by the use of a suitably designed deck with appropriate shade, e.g. the use of a Sail Shade to protect the customers from sun and rain. The commercial use of part of the rear vacant land for the purposes of and outdoor café or an outdoor restaurant eating space, will not inhibit the flood plain and or redirect flood waters and this would be consistent with the Existing Easement for Hunter River Flood Protection Purposes and the NSW Flood Plain Management Manual 2001. 37 In his second report Mr Neskovski amplifies (at section 12.2.6) his opinion concerning the potential for the contemplated commercial use by referring to the proliferation of outdoor seating in cafes and hotels to provide for patrons who wish to smoke cigarettes. He also refers to the decisions made by the Respondent in respect of a development application it submitted to itself for the development of the compulsorily acquired land for public recreation purposes, including the provision of limited types of structures. 38 In their Joint Statement (Exhibit 3) the Valuers agreed that the "piecemeal" valuation method reflected the correct approach to determining the market value of the compulsorily acquired land. They agreed that they would not address the Applicants' claim to "disturbance" compensation (and that matter would be dealt with subsequent to the determination of market value). 39 However the Valuers maintained their respective and competing opinions on the market value of the compulsorily acquired land based upon their respective competing opinions of any development potentiality of the compulsorily acquired land itself or any loss by virtue of the compulsory acquisition of development potential of the residue land. 40 As earlier noted Mr Hartman attributes no development potentiality to the compulsorily acquired land having regard to the provisions of cll.40 and 41 of the LEP and the provisions of ss255 and 256 of the Water Management Act . He also attributes no loss to the development potentiality of the residue land by virtue of the compulsory acquisition because of his opinion concerning insufficient demand for retail and office development in Maitland. 41 Mr Neskovski's competing opinions are that there was development potentiality in the compulsorily acquired land in the form of a modest outdoor extension (eg an outdoor café facility) to the existing shop premises and that there is a loss of development potentiality in the residue land by virtue of the reduced floor space ratio available to that residue compared with the available, but underutilised, floor space ratio, referable to the compulsorily acquired land. 42 Whereas there may well be difficulties with the arbitrary method by which Mr Neskovski has estimated the value of these losses in development potentiality caused by the compulsory acquisition the most important difference in the competing valuation evidence that must first be resolved is whether there was or was not any development potentiality in the compulsorily acquired land prior to its acquisition by the Respondent and/ or any loss in the development potentiality of the residue land in consequence of the compulsory acquisition. 43 In my judgment Mr Neskovski's opinions on these questions are more sound than Mr Hartman's competing opinions. In this respect I am satisfied that Mr Neskovski's analysis of the relevant provisions of the LEP and the Water Management Act is more accurate and apt than Mr Hartman's competing analysis. (This conclusion is subject to one reservation, namely I do not accept Mr Neskovski's reliance (such as it was) upon the compensation provisions contained in s255(4) of the Water Management Act.) 44 In particular the implicit interpretation adopted by Mr Hartman of the relevant statutory provisions to the effect that all development involving the erection of a building on the compulsorily acquired land is absolutely prohibited is erroneous in point of law and should not be adopted as reflecting the opinion of the hypothetical parties to the hypothetical sale of the compulsorily acquired land. 45 Moreover for the reasons that I have earlier given there are textual problems with cll.40 and 41 of the LEP in view of the repeal of the Moreover for the reasons that I have earlier given there are textual problems with cll.40 and 41 of the LEP in view of the repeal of the Hunter Valley Flood Mitigation Act 1956 by the Water Management Act 2000 , and more importantly there are "application" problems with those provisions. Additionally there is more than considerable doubt that any of the Applicants' land (as it existed prior to the compulsory acquisition) was relevantly land within a "floodway" as delineated by the DCP. 46 Coming to a consideration of Mr Neskovski's opinion as to the development potentiality of the compulsorily acquired land as an adjunct or extension by way of a modest scaled and structured outdoor café facility to the existing shop premises (to be used for the same purpose) I am of the opinion that his attribution of this modest degree of potentiality would be reasonably entertained by the Applicants, and hence affect the price they would be prepared to give for the compulsorily acquired land sooner than fail to obtain it: cf Pastoral Finance Association Ltd v The Minister (1914) AC 1083. 47 The "Pastoral Finance" principle is a principle of the common law (see par 3.15 of D. Brown's Land Acquisition 5th ed) that is generally recognised by s57 of the Just Terms Act which provides: 57 Special value In this Act: special value of land means the financial value of any advantage, in addition to market value, to the person entitled to compensation which is incidental to the person's use of the land. 48 The following passage appears in the paragraph cited from Brown: Describing special value as that which exceeds market value in Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94 at 100, Bray CJ said that special value must: A. … arise from some attribute of the land, some use made or to be made of it or advantage derived or to be derived from it, which is peculiar to the claimant and would not exist in the case of the abstract hypothetical purchaser. This passage was approved by Gleeson CJ in Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [80]. At [83] he said that special value directs attention to the perspective of the vendor. At [292] Callinan J said that special value must be a quality that has an "economic significance". 49 Having established that there is some development potentiality in the compulsorily acquired land viewed from the perspective of the Applicants as vendors (and owners of the residue land) the remaining task is to quantify what is its value or in the language of Pastoral Finance what would the Applicants give for the land sooner than to fail to obtain it? Mr Neskovski's valuation of $32,600 is based upon his opinion that the rear land (with far less development potential, being contingent upon an outdoor extension to the existing shop premises, than that of the shop premises unaffected by any flooding consideration) would be worth only a small percentage of the value he attributes to the residue land containing the shop premises. In this respect he adopts a value representing 25% of the value per m 2 of the shop premises land for some 33m2 of the compulsorily acquired land (i.e. $600/m2 compared with $2,400/m2 ) being the area of, and proximate to, the levee and a value representing 10% of the value per m 2 of the shop premises land for some 53m2 of the steeply sloping section of the compulsorily acquired land (i.e. $240/m 2 compared with $2,400/m2). 50 Such opinions are obviously liable to criticism along the lines noted by Mr Hartman in the Joint Statement (Exhibit 3) that "there is no sales evidence in support of Mr Neskovski's estimates of the values he attributes to the different sections of the compulsorily acquired land". Nevertheless Mr Neskovski as an experienced Valuer has genuinely attempted to value the limited development potential he has reasonably attributed to the compulsorily acquired land viewed from the perspective of the Applicants as the vendors (and owners of the residue land). His resulting valuation of $32,600 represents $377/m 2 for the compulsorily acquired land compared with his estimated value of $2,400/m 2 for the shop premises land, i.e. 15%. 51 In my judgment this valuation is a reasonable attempt to value the development potentiality of the compulsorily acquired land, producing a modest valuation result, which I am prepared to adopt in the absence of any competing valuation opinion that is relevant to the question. 52 Although it may be considered that Mr Neskovski's attributed value at $240/m Although it may be considered that Mr Neskovski's attributed value at $240/m 2 of the steeply sloping land may be compared with Mr Hartman's attributed value of $45/m 2 for flood liable land, the difference in these values of some $10,000 in my opinion can reasonably be reckoned as the loss to the value of the residue land by the reduction in the floor space ratio caused by the compulsory acquisition. 53 In addition to this amount Mr Neskovski is of the opinion that the compulsory acquisition created a decrease in value in the residue lands because there remains between the rear of the shop premises and the levee bank and area of 9m 2 which is also affected by the existing Hunter River Flood Mitigation Easement and this area, in his opinion, is too small to accommodate any outdoor facility being an adjunct to the existing shop development. He estimates this decrease in value to be $3,270 (being the difference between his attributed value of $600/m 2 and $240/m2 for the different sections of the compulsorily acquired land.) 54 In my judgment this opinion, though also yielding a very modest amount of compensation by way of decrease in value of the residue, is not sustainable. To allow its recovery would, I think, be to unwittingly allow double compensation in view of the manner in which I have assessed the value of the compulsorily acquired land by applying the Pastoral Finance principle and in my assessment of loss of development potential to the residue by virtue of the reduced available floor space ratio. D. CONCLUSIONS AND ORDERS 55 For all the foregoing reasons I determine compensation in the sum of $32,600, plus disturbance (upon which amount I expect the parties will be able to agree). 56 Accordingly I make the following orders: 1. Determine compensation in the sum of $32,600 plus disturbance. 2. In the event of the parties not being able to agree upon the amount of disturbance the parties have liberty to restore that matter for determination by the Court. 3. Exhibits to be returned. 4. Question of costs be reserved. 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.