Land and Environment Court of New South Wales CITATION : Nasser v Roads and Traffic Authority (No 2) [2006] NSWLEC 561 APPLICANTS PARTIES : Fred Nasser, Michael Nasser and George Nasser RESPONDENT Roads and Traffic Authority of New South Wales FILE NUMBER(S) : 30162 of 2003 CORAM: Pain J KEY ISSUES: Compulsory Acquisition of Land :- amount of compensation payable CASES CITED: Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 100 25/07/2006 DATES OF HEARING: 02/08/2006, 04/09/2006 Applicants' written submissions 18/08/2006 Respondent's written submissions DATE OF JUDGMENT: 09/08/2006 APPLICANTS Mr P McEwen SC with Mr A Pickles SOLICITORS LEGAL REPRESENTATIVES: Allens Arthur Robinson RESPONDENT Mr J Maston SOLICITORS Corrs Chambers Westgarth JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 8 September 2006 30162 of 2003 Fred Nasser, Michael Nasser & George Nasser v Roads and Traffic Authority (No 2) JUDGMENT ON COMPENSATION 1 Her Honour: I gave my decision in Nasser v Roads and Traffic Authority; Millstar Holdings Pty Limited v Roads and Traffic Authority [2006] NSWLEC 100 on 6 June 2006. I did not finalise the amount of compensation payable in relation to the Nasser claim as further information was needed from the parties before doing so, as raised in [151]. 2 Further to [150] of my earlier judgment, I consider that a prudent hypothetical purchaser would consider that 20 per cent of the Nasser land would be subject to ecological constraints in the "before" scenario. I adopted Mr Rowbottom's scheme for flood filling ([110]). Consequently 5,500m2 of constrained land must be allowed for flood storage/filling in the "before" scenario. I also held at [136] that 50 per cent of the significant vegetation in the north-western corner of the Nasser land would be considered to be constrained by a prudent hypothetical purchaser, an area of 2,760m2. 3 While there have been several submissions from the parties attempting to resolve the issue raised in [151] of my earlier judgment, it has not been possible to do so and it is time this matter was finalised. I agree with the Applicants' written submissions dated 4 September 2006 in relation to scenario 2 discussed therein that a prudent hypothetical purchaser would consider 20 per cent of the Nasser land to be ecologically constrained land and that the constrained land due to flooding would be available for the provision or retention of native vegetation areas so that the two areas would overlap. 4 The area of ecologically constrained land in the north-western corner (2,760m2) and the area identified for flood storage by Mr Rowbottom's scheme (5,500m2) provide a total area of ecologically constrained land of 8,260m2, or 20.4 per cent of the Nasser land in the "before" scenario. 5 In relation to the "after" scenario for the Nasser land, which I discussed at [193] of my earlier judgment, I agree with the Applicants' written submissions of 2 August 2006 that there is no need to conclude that there is any constrained land due to ecological constraints, apart from an area of 2,760m2 of environmentally significant land in the north-western corner of the Nasser land. 6 I must also clarify one value to be applied in relation to the Nasser land. In my earlier judgment at [184] I found that a rate of $40/m2 should apply to developable land in the "after" scenario and applied that rate to the Millstar land. The valuers arrived at a different view in relation to the Nasser land in the "after" scenario – valued on the basis of Rural 1(e) – Future Urban zoning with future industrial potential as identified in their joint report at p 15 (exhibit Q). I will adopt Mr Lunney's figure of $80/m2 in that context. 7 It is now possible to calculate the amount of compensation payable for the Nasser claim. 8 "Before" value Market value of whole parcel before acquisition on basis of industrial zone. The capital letters refer to areas of land identified in the plan attached to my first judgment. Total area: 40,470m2 (T+D) Market value of whole parcel before acquisition on basis of industrial zoning: (a) developable land – 32,210 m2 x $190/m2 (flood free) $6,119,900 (b) constrained land – 8,260 m2 x $20/m2 $165,200 less fill costs 1,300 x $8/m2 $10,400 $ 6,274,700 The 8,260m2 of constrained land consists of 2,760m2 – part of environmentally significant land (north-west corner) and 5,500m2 – (flooding buffer zone (per Rowbottom plan exhibit 6, Fig 5.1) and vegetation zone) "After" value Market value of remainder of parcel after acquisition Total area: 25,190m2 (T) (a) developable land –22,430m2 x $80/m2 $1,794,400 (b) constrained land – 2,760m2 x $10/m2 $27,600 $ 1,822,000 Compensation "Before" less "after" $6,274,700 - $1,822,000 $4,452,700 9 Final orders must await the outcome of my decision on the Applicants' disturbance claim. 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.