Shannon Luka v. Lake Macquarie City Council [1998] NSWLEC 94

NSW Caselaw

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Land and Environment Court of New South Wales

CITATION : Shannon Luka v. Lake Macquarie City Council [1998] NSWLEC 94 APPLICANT Shannon Luka PARTIES : RESPONDENT Lake Macquarie City Council FILE NUMBER(S) : 30124 of 1994 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Land Acquisition ( Just terms Compensation) Act 1991 Supreme Court Act 1970 Given v. Pryor (1979) 24 ACR 442; Geita Seba v. Territory of Papua (1941 67 CLR 477); Collins v. Council of the Shire of Livingstone (1972) 127 CLR 477; CASES CITED: Anthony v. The Commonwealth of Australia (1973) 29 CLR 477; Mulcahy v. Blue Mountains City Council (No.2) (1996) 89 LGERA 348; Bailey v. Marinoff (1971) 125 CLR 529 at 531; Smith v. NSW Bar Association (1997)176 CLR 257 DATES OF HEARING: 02/03/98, 05/03/98, 20/04/98, 08/05/98, 12/05/98, 18/05/98, 19/05/98, 20/05/98 DATE OF JUDGMENT: 07/24/1998

APPLICANT Mr. P McEwan SC Mervyn J Cathers LEGAL REPRESENTATIVES: RESPONDENT Mr. M Jacobs QC Mr. P Tomasetti Peter Rees, Council Solicitor

JUDGMENT: INTRODUCTION By her Notice of Motion filed on 20 October 1997 the Applicant seeks the following relief: "1. Leave be granted to adduce further evidence of the value at the date of acquisition of the road improvements. 2. Pursuant to S.56(1)(b) of the Land Acquisition (Just Terms) Act 1991, the value of the roadworks (improvements) ought to be included as a portion of the market value of the land, for the sake of compensation." On 18 February <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp6" name=disp7><IMG alt="<<" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextup.gif"></A>1998<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp8"><IMG alt=">>" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextdown.gif"></A> during the course of the hearing of the Applicant's Notice of Motion, the relief claimed in paragraph 1 was particularised as being confined to adducing the expert evidence contained in the report of Mr Lyle Marshall, Consulting Engineer and in the report of Mr Eric Prince, Registered Valuer, which reports were provisionally admitted into evidence as Exhibits 2 and 4 respectively on the hearing of the Applicant's Notice of Motion. Reference hereafter to the Applicant's Notice of Motion is to be taken as a reference to the Motion as so amended in respect of the relief claimed in paragraph 1. The Respondent (the Council) vigorously opposed the Applicant's Notice of Motion contending (i) that the Applicant's case had not justified any re-opening of the case which the Council contended had been concluded in this Court by my judgment delivered on 2 December 1996; (ii) that in any event such a re-opening would involve a futility in that the further evidence of Mr Marshall and of Mr Prince sought to be adduced by the Applicant did not establish the value of the road improvements at the date of compulsory acquisition; and (iii) that further evidence did not establish any entitlement in the Applicant to any additional compensation for the road improvements. Before examining the parties' competing cases on the Applicant's Notice of Motion, it is necessary to examine in some detail the history of the litigation which provides the immediate background and context to the present Motion. The following section is largely extracted from my earlier judgments in the proceedings delivered on 2 December 1996 and 23 June 1997 to which reference will hereafter be made. B. THE LITIGATION HISTORY The proceeding instituted in class 3 of the Court's jurisdiction involved an objection by the Applicant pursuant to s.66 of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">Land</A> <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">Acquisition (Just Terms Compensation) Act 1991</A> (the Just Terms Act) to the amount of $16,500 being the compensation offered to her as claimant under that Act in respect of the compulsory acquisition by the Council of land situate at Killingworth and known as lot 3 in Deposited Plan 582637 (the acquired land) by Acquisition Notice published in Government Gazette No. 124 of 12 November 1993 (the acquisition date). At the acquisition date, the Applicant was the registered proprietor of an estate in fee simple in the acquired land as recorded in Certificate of Title Volume 13258 Folio 277. According to the Acquisition Notice, the public purpose for which the acquired land was compulsorily acquired was "for the purposes of the Roads Act 1993". The acquired land comprises "roads and lanes in DP4339" being a grid-like road and lane system proposed in DP4339 which was prepared and signed by a licensed surveyor in September 1901 and which was lodged and registered in the Registrar General's office some time thereafter but prior to the Local Government Act 1906 and probably in July 1904 when Certificate of Title Volume 1548 Folio 88 was issued pursuant to Primary Application No. 12200. Deposited Plan 582637, which was registered in the Registrar General's Office on 24 January 1977 shows the acquired land as lot 3 (and the remaining section of the Killingworth subdivision situate to the north of the Broadway as lot 2). The Deposited Plan merely replicates the earlier Deposited Plan 4339 and shows lot 3 having a total area of 13.82 hectares (and lot 2 having a total area of 4.635 hectares). The physical condition of the acquired land at the acquisition date was that of roads of varying degrees of construction with a combined length of some 1.4 km being bitumen sealed and approximately 1km being gravel constructed and the remainder (some 3km ) unformed but generally being cleared providing rough tracks through the bush. The lanes were generally unconstructed and generally took on the appearance and land form of the residential lots which they adjoined. Although the Applicant claimed compensation as the registered proprietor of the acquired land (she having become so registered in November 1989) it became apparent from her testimony that she did not own the land beneficially but held the land on trust for her father Mr Edward Pryor, who in turn declared that he held the land on trust for his family - his wife, his two daughters (Mr Radnedge and the claimant) and his son. Mr Pryor, through his companies, acquired a large number of land holdings in the Killingworth village in 1979, at one stage owning or controlling 190 lots out of the entire Killingworth estate containing 335 lots. Mr Pryor's involvement with land holding and development in the Killingworth village has been a "roller coaster" experience. He substantially developed and sold the entire residential estate north of the Broadway and a large number of lots south of the Broadway fronting the Trongate and Throckmorton Roads. However, he experienced considerable financial difficulties and lost his interest in many lots south of the Broadway by virtue of the forced sale by a mortgagee in possession and by virtue of sales by the Council for unpaid rates. He has twice gone into bankruptcy. In 1979 he was convicted of charges under the Trade Practices Act for misleading advertising in respect of lots for sale at Killingworth (see Given v. Pryor (1979) 24 ACR 442) and in mid 1995, while the present proceedings were part heard, he was convicted of fraudulent land dealings in connection with the Killingworth land and was sentenced to two years imprisonment. The hearing of the proceedings, principally because of Mr Pryor being charged and convicted for land fraud, was the subject of extensive adjournments, having commenced in February 1995 (when the hearing occupied a few days) resumed in November 1995 (when the hearing occupied one week) and being completed in June 1996. On 2 December 1996 I published my reasons for judgment in the proceedings which pronounced the following orders (the Court's Order): "1. Objection upheld. 2. Subject to any further compensation that may be determined in respect of the value of road improvements referred to in order No. 3 compensation is determined in the sum of $334,600. 3. The question of any additional compensation in respect of the value at the date of compulsory acquisition of the road improvements is reserved with liberty to Applicant on 7 days' notice to apply for the purpose of making further submissions. 4. Payment of the sum of $334,600 and any further amount of compensation that may be determined in accordance with order No. 3 is to be made by the Respondent upon appropriate discharge and releases being given to the satisfaction of the Respondent in respect of all persons other than the Applicant claiming an interest in the compulsorily acquired lands and in the event of disagreement between the parties on the form of discharge or release, liberty to apply to either party on 7 days' notice for the purpose of the Court determining the questions. 5. Questions of costs and loss attributable to disturbance as referred to in s.59 (a) (b) and (d) of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">Land Acquisition (Just Terms Compensation)</A> <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">Act 1991</A> reserved. 6. Exhibits to be returned." In order to properly understand the basis for these orders it is necessary to refer extensively to my reasons for judgment. At pp. 14 to 17 (inclusive) I discuss the four written valuations that were in evidence ranging between $15,000 and $1.85 million. Next, at pp. 17 to 25 inclusive, I consider the status of the "roads" comprising the majority of the land area of the compulsorily acquired land concluding at p.25 that for the reasons elaborated therein "I must totally reject the principal thrust of the Respondent's case that the 'roads' component of the compulsorily acquired land is of no value.... This inevitably means that the only valuation evidence I have concerning the value of the roads is that provided in the valuations of Mr Turnbull and Mr Prince, both of which were the subject of sustained criticism by the Respondent and which for the reasons that I shall give, I am unable to accept in their entirety. However, there is some basis in their evidence upon which I can make relevant findings of value". Thereafter at pp. 25 to 33 (inclusive) I consider "The value of the Roads", noting that I accept from Mr Turnbull's and Mr Princes's valuation evidence (i) the principle that the highest and best use of the compulsorily acquired lands was as roads and that the Council was the obvious purchaser of those lands (Raja's case); and (ii) the principle of their attempt to value the roads by adopting an en globe value of that section of the Killingworth village that is located south of the Broadway and by apportioning that value to the roads on the basis of the relationship between the total land area of those roads and the total land area in that section of the Killingworth village. At p. 28, I conclude that the value of that part of the compulsorily acquired land located south of the Broadway is $243,000 reflecting a per hectare rate of $25,600. To that amount I added the value of a small closed-off section of Park Street in the sum of $41,000. At p. 29, I note that having so valued that part of the compulsorily acquired land there are three further matters requiring consideration, including the following: "(ii) whether there is additional value in the roads by virtue of their improved state or condition existing at the date of compulsory acquisition." It is now necessary to repeat what I said at pp. 30 to 33 inclusive in respect of that matter. "Re (ii)This question occupied the greatest amount of the hearing time and unfortunately it was not dealt with very satisfactorily in the respective cases. Mr Pryor asserted that he had spent something in the order of $600,000 on road construction of the roads south of the Broadway. Mr Prince simply adopted that amount as extra value of the land, without independently verifying the claim and without "valuing" the improvements. In this respect, I am unable to accept his approach. The evidence, unsatisfactory though it is, indicates that most of the roadworks, involving in some manner Mr Pryor, either in doing work through contractors or paying for the works to be executed by the Respondent, occurred in the early 1980s. Thus, even if there was no difficulty in establishing who was responsible for the road works, the relevant and crucial question to be asked as at the date of compulsory acquisition is whether those works improved the land and enhanced its value. In this case, some of the roadworks were up to 12 or 13 years old and it would not be an appropriate case to regard cost as equalling value. So far as Mr Pryor's claim to having expended some $600,000 is concerned, I do not accept his testimony and I do not accept his detailed list of expenditure (Exhibit 8). The question of the value of the roadworks simply was not adequately addressed in the proceedings where the overwhelming focus was directed to who was responsible for the works and the costs thereof. This focus may have been somewhat misdirected or misguided in the light of existing authority e.g. Geita Seba v. Territory of Papua (1941 <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/67clr477.html">67CLR 477</A>; Collins v. Council of the Shire of Livingstone (1972) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/127clr477.html">127CLR 477</A>; Anthony v. The Commonwealth of Australia (1973) 29LGRA 61; and Mulcahy v. Blue Mountains City council (No.2) (1996) 89LGERA 348. These decisions establish that, except where the statute otherwise provides, the value of resumed land includes the value of any improvements made to that land irrespective of who made the improvements. In each of the cited cases, the relevant improvements had been made to the land by the resuming authority and it was held that the compensation payable in consequence of the resumption included the value of the improvements. Unless statute has relevantly excluded or modified the principle established by these cases, I am of the opinion that they are relevant to the determination of compensation required in the present case. In so concluding, I would reject the Respondent's submissions based upon the fact that the Applicant (through Mr Pryor) had already gained the benefit of any contributions it had made to the road construction by obtaining development consent for the sale and development of lots benefiting from the provision of road access and other services. I appreciate the practical force of this submission. However, the Court's statutory task in determining compensation pursuant to the Just Terms Act simply does not involve applying considerations relevant to the law of unjust enrichment. However, it is possible that the common law principles established in the earlier decisions has been displaced or at least modified by the express terms of s.56(1)(b) of the Just Terms Act that I have earlier recited. The full answer depends upon the meaning to be given to the expression "the carrying out by the authority of the State, before the land is acquired, of improvements...." In particular, the question is whether the statutory modification of the common law principles is confined to relevant pre-acquisition improvements carried out by, and at the expense of, the authority of the State. The question of the possible application of s.56(1)(b) was briefly considered by Bannon J in Mulcahy the following passage at 354: 'On behalf of the respondent, Mr McEwen submitted that the applicant was not entitled to recover that money because of the provisions of s.56(1) of the Act. In my opinion, this submission should be rejected. The road was built well before the Roads Act came into force. The improvements were not carried out for the public purpose for which the road was acquired on 2 September 1994. Furthermore, I am not altogether convinced that <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/s56.html">s 56</A> of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">the Act</A> is intended to have a retrospective operation, although a countervailing argument is that this may cause difficulty, where the value of land has been depressed artificially by a planning scheme in operation before the commencement of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">the Act</A>, and the land is compulsorily acquired after the commencement of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">the Act</A> for the carrying out of that planning purpose. However it is unnecessary to decide that question.' It may be that his Honour's decision is simply to be understood as a finding of fact, namely that the improvements were not carried out for the public purpose for which the road was acquired. However that may be, I do not, with respect, share his Honour's concerns that the section was not intended to have a retrospective effect because the plain language of s.56(1)(b) speaks of improvements carried out "before the land is acquired". In the present case, I have not had the benefit of any argument on the meaning and possible application of s.56(1)(b) and I have already referred to the very unsatisfactory nature of the evidence, and in particular, to the absence of any evidence concerning the value of the road improvements as at the date of compulsory acquisition. In the circumstances, I think that it is only fair that I reserve the question for further argument and possibly for further evidence which may be thought necessary after my ruling on the meaning and application of s.56(1)(b). In parting with this matter, I should also note my opinion that if section 56(1)(b) is held to apply in respect of road works carried out before the date of acquisition, the Respondent would have at least the evidentiary onus of establishing what works it relevantly carried out. In saying this, I am of course aware of Mr Holland's evidence. However, that evidence does not establish that all relevant road works were carried out by the Respondent." Having adopted a value in respect of each of the two other matters that had been raised at p.29, I express the following "conclusions" at p.35 before pronouncing the orders that I have earlier set forth: "For all the foregoing reasons and subject to any further compensation that may be determined in respect of the value the road improvements, I determine compensation in the sum of $334,600 made up as follows: (i) value of roads situate south of the Broadway $243,000 (ii) ) value of unconstructed section of Park Street $ 41,000 (iii) value of roads situate north of the Broadway $ 25,600 (iv) value of lanes $ 25,000 _________ $334,600" On 10 December 1996 the Council filed a Notice of Appeal to the Court of Appeal (CA No. 40760 of 1996) stating multiple grounds for alleged errors of law and seeking orders setting aside my judgment delivered on 2 December 1996. It is only necessary to note two of the grounds of appeal which have some bearing upon the matters debated by the Council in opposing the Applicant's Notice of Motion. The two presently relevant grounds of appeal are: "(p) His Honour, in any event erred in holding that Appellant was entitled to the value of the roads in addition to compensation based upon the highest and best use of the roads part of the resumed part of the land i.e. as roads.... (r) Furthermore, His Honour's Order No. 2 to the extent that further evidence after both parties had closed their cases is permissible to determine the value of the roads and to allow the Respondent to claim additional compensation therefor is incompetent and impermissible in law." On 10 December 1996 the Council additionally filed a Notice of Motion seeking a stay of the Court's Orders 2 & 4 until the decision of the Court of Appeal in the appeal filed by the Council against my judgment. The Council's Motion came before me on 13 December 1996 when by consent it was adjourned until 28 February 1997 and by consent directions were given in relation to Order 3 of the Court's Orders in respect of filing additional evidence. By its further Notice of Motion filed 20 February 1997 the Council sought an order that I disqualify myself from the further hearing of the matter or in the alternative an order that orders 2,3 and 4 of the Court's Orders be vacated on the ground that they were beyond the Court's jurisdiction. On 28 February 1997 the Council's further Notice of Motion was, by consent, adjourned to a date to be fixed for hearing, and by consent the directions given on 13 December 1996 in relation to Order 3 of the Court's Orders were stayed, pending the Court's decision on the Council's further Notice of Motion. On 15 April 1997 the Council filed an amended Notice of Motion- to its further Notice of Motion, seeking an order that orders 2,3 and 4 of the Court's Orders be vacated on the ground that they were made beyond or without jurisdiction and an order vacating the directions given by the Court on13 December 1996. On the hearing of the Council's amended Notice of Motion the Court was informed that the Council no longer sought an order disqualifying myself from further hearing of the matter and the parties asked me to confine consideration at this stage to the Council's claim for the vacation of orders 2,3 and 4 of the Court's Orders. (This left in abeyance the questions in respect of matters reserved by my judgment delivered on 2 December 1996.) On 23 June 1997 I delivered reasons for judgment on the Council's amended Notice of Motion holding that the Council had failed to establish that the Court's orders made on 2 December 1996 had been made without jurisdiction and ordering that the Council's amended Notice of Motion be dismissed with costs. It is necessary for present purposes to refer to just two aspects of the Council's Motion to vacate orders 2, 3 and 4 of the Court's Orders made on 2 December 1996. Two of the grounds relied upon by the Council in support of its claim that the orders were made `beyond jurisdiction" were as follows: "Ground (v)the Court had no power to make an interim award of compensation; and Ground (vi)the Court having determined the market value of the compulsorily acquired land had no jurisdiction to make any additional award of compensation in respect of the value of the improvements (comprising road construction) to that land." At pp. 34 to 36 inclusive of my reasons for judgment delivered on 23 June 1997, I rejected the Council's arguments in support of these two grounds in the following terms: "Ground (v): No power to make an interim award. In my judgment the Council's argument is unsustainable. Orders 2 and 4 of the Court's Orders are not, and do not purport to be, an interim award of compensation. Even if they were held to operate as an interim award the power to so order would be available to the Court for reasons substantially similar to those that led me to conclude in Harvey that the Court had the power to order the payment of compensation it had determined in the proceedings. In this respect the absence of express power such as is conferred by Division 2 of Part V of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sca1970183/">Supreme Court Act 1970</A>, is in my judgment of no consequence. Ground (vi): No power to award compensation other than in respect of "market value" of the compulsorily acquired land. In my judgment the Council's argument is unsustainable principally because it misunderstands the manner in which compensation was determined in my earlier judgment in respect of the "market value" (vide <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/sca1970183/s56.html">s56</A> of the Just Terms Act) of the compulsorily acquired land. The amount of compensation in the sum of $334,600 as determined in Order 2 reflects the "market value" of the compulsorily acquired land. Likewise the potential for additional compensation in respect of the construction of roadworks on the compulsorily acquired land that is recognised by Orders 2,3 and 4 reflects the "market value" of the land. As my earlier judgment makes clear the assessment of market value proceeded in 2 discrete stages - the initial stage resulting in an award of compensation in the sum of $334,600 was to arrive at an en globo value of the compulsorily acquired land and the second stage (which has not yet been undertaken, and which was reserved in my original judgment), looks to the question whether there is an additional value in the land by virtue of the road construction works." (The reference to Harvey is a reference to the case of Harvey v. Burwood Municipal Council (1993) 83LGERA 102 cited and discussed earlier at p.33 of my reasons for judgment). Following delivery of my judgment on 23 June 1997, the parties informed the Court that there remained outstanding in this Court the following three questions:- (i) whether leave was necessary to re-open in relation to Order 3 of the Court's Orders made on 2 December 1996; (ii) If the answer to question (i) is in the affirmative, whether leave should be granted. (iii) what is the proper meaning of s.56(1)(b) of the Just Terms Act? These 3 questions were fixed for hearing on 20 October 1997 when the Applicant filed her Notice of Motion, conceding that leave to re-open was necessary, at least in respect of the adducing of further evidence on the reserved question of whether any additional compensation was payable to the Applicant in respect of "the value at the date of compulsory acquisition of the road improvements". C. THE APPLICANT'S MOTION TO RE-OPEN HER CASE The hearing of the Applicant's Notice of Motion commenced on 20 October 1997 and continued on 17 and 18 February <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp7" name=disp8><IMG alt="<<" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextup.gif"></A>1998<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp9"><IMG alt=">>" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextdown.gif"></A> and supplementary written submissions from both parties were filed in the period from 2 March to 20 May <A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp8" name=disp9><IMG alt="<<" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextup.gif"></A>1998<A href="http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/nsw/NSWLEC/1998/165.html?query=%7E%201998#disp10"><IMG alt=">>" border=0 src="SHANNON LUKA v_ LAKE MACQUARIE CITY COUNCIL [1998] NSWLEC 165 (24 July 1998)_files/contextdown.gif"></A>. In opposing the relief claimed in the Applicant's Notice of Motion, the Council did not call any evidence, but subjected each of the Applicant's witnesses (Mr Pryor, Mr Marshall and Mr Prince) to extensive cross-examination. The Council's cross-examination of Mr Pryor was directed to the question whether the Applicant's case established an entitlement to re-open the case whereas the Council's cross-examination of Mr Marshall and Mr Prince was directed to the question (assuming a case to re-open had been established by the Applicant) whether in its discretion the Court would refuse leave to re-open having regard to what the Council contended were serious misconceptions and deficiencies in the further evidence sought to be adduced by the Applicant in the form of the expert reports of Mr Marshall and Mr Prince. I should, at this stage briefly note the apparent effect of the evidence of Mr Marshall and of Mr Prince contained in their respective written reports (Exhibits 2 and 4 respectively) is that the added value of the roadworks improvements to the compulsorily acquired land as at the date of compulsory acquisition is in the order of $535,000, which Mr Prince opines should be added to the amount of $334,600 reflecting land value as determined by the Court in its judgment of 2 December 1996. It must be said that these opinions were strenuously criticised by the Council, but not on the basis of any contrary evidence that the Council has adduced. (I should note that the Council has submitted that should the Court grant leave to the Applicant to re-open her case, the Council "would be entitled to put on additional evidence"). I do not think it necessary, or appropriate at this stage, to delve into the Council's detailed criticism of this expert evidence , other than to say that I do not regard the Council's cross-examination of the expert witnesses and criticism of their opinions as significantly eroding or undermining their evidence. However, this conclusion is subject to my later consideration of the Council's assertion that to receive the further evidence would, in any event, result in legal futility. The Applicant, not surprisingly, emphasises the importance of this evidence to her entitlement to receive "just compensation". In my judgment, this is a significant factor weighing in favour of the Applicant, particularly in the light of the express language of the Just Terms Act which emphasises the entitlement of a claimant to receive "just compensation" where his or her land has been required by compulsory process e.g. s.3(1)(a) and (b); 37 and 54. Moreover, such entitlement lies at the very heart of the Court's statutory function conferred by s.66(2) of the Just Terms Act to "hear and dispose of a person's claim for compensation". The other evidence adduced by the Applicant in support of her Notice of Motion was that given by her father Mr Edward Pryor in his affidavit sworn on 13 October 1997. In his affidavit, Mr Pryor indicates his controlling role in providing instructions to the Applicant's legal representatives in the proceedings, spanning the period from before the commencement of the proceedings in March 1994 until the present day, notwithstanding his arrest in 1992 on the land fraud charges for which he eventually stood trial in September 1995 and following his conviction for which he was imprisoned from 29 September 1995 until his release on 28 December 1996. In his affidavit, Mr Pryor seeks to explain why he did not give instructions for retaining an engineer to give evidence in the proceedings as to the cost and value of the roadworks improvements to the compulsorily acquired lands, namely (a) that he knew (i) that he was principally responsible for carrying out those improvements and/or for paying for such improvements in an amount involving "several hundred thousand dollars" and (ii) that the Council had never claimed that it had constructed the road improvements at its expense and (b) that he was suffering financial problems in 1994 and 1995 and had difficulty in funding the ongoing expenses of the litigation. He also stated that following discussion with his lawyers, he believed that as an alternative to calling evidence from an engineer, he himself could give evidence of the monies that he had expended on the roadworks improvements and rely for corroboration upon the Council's records of these matters. In this respect he had his cheque book butts and brought them to Court but there they "went missing" after access had been given to the Council's representatives during the course of the trial. Mr Pryor was cross-examined on this evidence as a result of which I am left in considerable doubt as to precisely what were the reasons for Mr Pryor not giving instructions for the retention of the services of an engineer, such as Mr Marshall, to give evidence such as is now contained in Mr Marshall's report (Exhibit 2). Although it is apparent from Exhibit 1 that the Applicant's Counsel gave written advice to the Applicant's Solicitors on 30 January 1995 which included the suggestion that a civil engineer be retained to asses what roadworks had been done and a quantity surveyor be retained to estimate the value of those roadworks as at the date of compulsory acquisition, that advice noted that such contemplated expert evidence would be governed by the Rules of Court requiring expert reports to be served 14 days prior to the hearing. It is to be noted that this advice was given but 9 days prior to the commencement of the hearing. Having regard to the totality of the evidence, I find that the more probable explanation for the fact that engineering evidence such as is now provided in Mr Marshall's report (Exhibit 2) was not called by the Applicant at the hearing was the fact that the preparation of the Applicant's case was adversely affected and in some respects was wanting by virtue of the fact that it was substantially in the hands of Mr Pryor, who was understandably preoccupied with his upcoming criminal trial on the land fraud charges and who was experiencing serious financial difficulties in funding the present litigation. Moreover, by the time that Counsel had given advice for the retention of engineering evidence, it was simply too late, unless compliance with the Rules of Court requiring service of expert reports at least 14 days before the hearing was dispensed with. It was in these circumstances, I infer, that the constrained decision was taken to rely upon Mr Pryor's evidence on what he had done in carrying out the roadworks improvements and what he had paid for the roadworks improvements, (suggesting an amount of some $600,000) which was the approach adopted by Mr Prince in his original valuation report in estimating the added value of the roadworks improvements. In so proceeding, I accept that Mr Pryor believed that his evidence of what he had done and what he had paid for, in respect of the roadworks improvements, could be corroborated by the Council's records. D. THE JURISDICTION TO RE-OPEN THE COURT'S JUDGMENT OF 2 DECEMBER 1996 The parties have very helpfully referred me to a multitude of authorities on this question. The overwhelming weight of authority is that the Court possesses the power to permit a party to re-open his or her case or to call further or fresh evidence even in circumstances where a judgment or order has been given and perfected. However, the cases emphasise that in such extreme circumstances (i.e. particularly in the case of a perfected judgment or order), the power is "truly exceptional" and the power "is not lightly to be exercised". In my respectful opinion, the judgment of Kirby P (as he then was) in Haig v. Minister Administering the National Parks and Wildlife Act (1994) 85LGERA 143 at 152 to 154 (inclusive) provides a lucid and cogent justification for the existence of the exceptional power so that in that case, the Court of Appeal entertained an application to re-open an appeal which had been determined by the Court of Appeal some 4 years previously. The other members of the Court, Priestley JA and Handley JA, in agreeing with the President were content to assume the existence of the power. The application to re-open was, in the exercise of discretion, refused by the Court of Appeal. Kirby P expressed his opinion in the following passage at 153: "The question remains as to whether the jurisdiction to correct is available in the case of a perfected order. Whilst the Minister asserted that this Court had no such jurisdiction, at least in a case such as the present, it is my view that such a jurisdiction exists. It is confined to the most exceptional circumstances. It is true that earlier decisions doubt the existence of this jurisdiction, statute apart: see, eg, Bailey v Marinoff (1971) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/125clr529.html">125 CLR 529</A> at 531. However, later decisions have acknowledged the inherent jurisdiction in a court such as this to set aside a previous order in limited circumstances. As for example where the order did not conclude litigation but merely regulated procedure and where its execution would result in futility: see, eg, Wentworth v Attorney-General for the State of New South Wales (1984) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/154clr518.html">154 CLR 518</A> at 526. However, it has been emphasised that such inherent power, where it exists 'is not lightly to be exercised'. It is truly exceptional" Earlier, the President had referred to the undoubted existence of the power in situations where the Court's judgment or order had not been perfected, but emphasised that even in these cases, special circumstances must be shown to enliven the discretion because "(T)he purpose of the jurisdiction is 'not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases' or 'simply for the purpose of giving a party the opportunity to present a case to better advantage'": see Autodesk Inc v. Dyason (No.2) (1993) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/176clr300.html">176CLR 300</A> at 301, 312, 328; State Rail Authority of NSW V. Codelfa Construction Pty Ltd (1982) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/150clr29.html">150CLR 29</A> at 38, 45f; Wentworth v. Woollahra Municipal Council (1982) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/149clr672.html">149CLR 672</A> at 683; Permanent Trustee Co. (Canberra) Ltd v. Stocks and Holdings (Canberra) Pty Ltd (1976) 28FLR 195 at 201. In Smith v. NSW Bar Association (1992) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/176clr257.html">176CLR 257</A>, the High Court, although considering the power to re-open a judgment that had not been perfected, was chiefly concerned with the nature of the review to be undertaken once a case is re-opened. In that particular context the joint judgment contains the following passage at 266/267: "It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application (9). But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (10), or one in which reasons for judgment have been delivered (11). It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side (12). In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called." Many other cases confirm the existence of the power for the Court to permit a party to re-open at stages in the litigation before judgment is given. The off-cited decision of Sheppard J Joyce v. GIO (NSW) (unreported 21 July 1976) is such a case. In that decision Sheppard J stated that "(T)he essential principle which I should apply .....is that I should do justice to the parties". In exercising his discretion to permit the plaintiff to adduce further evidence after the case had closed, Sheppard J said: "I think in arriving at a conclusion as to what I should do I must take very much into account the need to ensure that cases are properly presented and, further, that if risks are taken by counsel consciously, strong reasons must be shown why their clients are, after all, to have a second chance. But I must also take into account the fact that the defendant in this case has expressly disclaimed that any prejudice will be occasioned to it by allowing the evidence in." In Urban Transport Authority of NSW v. Nweiser (1992) 28NSWLR 471 the question concerned an application to re-open the defendant's case to call another witness after the evidence had closed. The trial judge refused the application. In allowing an appeal, Clarke JA in giving the judgment of the Court of Appeal said at 478: "The principle which should guide the court in determining whether to grant the application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be" In Bearns v. Bearns-Hayes (unreported 4 September 1996) Young J in the Equity Division of the Supreme Court allowed the plaintiff to re-open her case, after the case had closed and his Honour had reserved his judgment, to read an affidavit which had been prepared in response to a question that his Honour had raised with the parties after reserving his judgment. On the question of re-opening, Young J said: "The application for reopening is an unusual one. Ordinarily one expects that the Court will be given the first time round the evidence which is available which the lawyers for the plaintiff think should be put before the Court in support of their case, and it is usually only if the evidence is not then available, or is available but is overlooked, that an application is made. However, the principle is wider than this and, as Sheppard J said in Joyce v GIO (NSW) 21 July 1976, unreported but noted in Ritchie's Supreme Court Practice Volume 2 case [13028], the prime consideration is the due administration of justice." In an earlier decision of Young J in Jesseron Holdings Pty Ltd v. Middle East Trading Consultants PtyLtd ( 1994) 13ASCR 455 (Leslie's "Equity and Commercial Practice" at E130.355) his Honour had said: "There are various degrees of scrutiny to which one puts a claim for re-opening, or to call fresh evidence. If one is calling fresh evidence on an appeal, then the requirements are fairly strictly laid out. If one is asking to re-open before the evidence is finished, then the matter depends on the justice of the situation. If one is asking to re-open at the final address stage, or after reasons for judgment, then the approach appears to be what is just in the situation, but normally the test of what is just will be rather close to what is applied in the appeal situation; see Urban Transport Authority of New South Wales v. Nweiser (1992) 28NSWLR 471, at p.478." Having regard to the decided cases I hold that the Court possesses the jurisdiction to permit the Applicant to re-open her case as sought in her Notice of Motion. The vital question is whether, in the exercise of its discretion, the Court should permit the re-opening. However, in undertaking that task it is necessary to first identify with precision the stage reached in the litigation to which the Applicant's application to re-open is addressed. This depends entirely upon a proper appreciation of the meaning and effect of my judgment delivered on 2 December 1996 and in particular of Orders 2 and 3 made in that judgment. The parties adopt diametrically opposing views of the meaning and effect of that judgment and orders, with the Applicant contending that the judgment is truly interlocutory in character and the Council contending that it is truly final in character, but that in any event whether it be interlocutory or final, the same principles governing the exercise of discretion to permit a re-opening must be applied, and without a re-opening being permitted there is nothing further to be done (or that can be done) by the Court in relation to the judgment and orders pronounced on 2 December 1996. E. IS THE COURT'S JUDGMENT OF 2 DECEMBER 1996 FINAL OR INTERLOCUTORY? Earlier in these reasons I have extensively analysed and quoted relevant passages from my reasons for judgment delivered on 2 December 1996. It is not necessary to repeat what I there said except to emphasise the express terms therein employed, which in my judgment, and with great respect to the Council's argument to the contrary, unequivocally bespeak of reserving the question of "whether there is additional value in the roads by virtue of their improved state or condition existing at the date of compulsory acquisition" (p.29). Thus at p.33 of the earlier judgment, I conclude my consideration of that question by stating: "In the circumstances, I think it is only fair that I reserve the question for further argument and possibly for further evidence which may be thought necessary after my ruling on the meaning and application of s.56(1)(b) of the Just Terms Act." Again at p.35 I express the following conclusion "For all the foregoing reasons and subject to any further compensation that may be determined in respect of the value of the road improvements, I determine compensation in the sum of $334,600..." before pronouncing orders which included the following: "2. Subject to any further compensation that may be determined in respect of the value (of) road improvements referred to in Order No.3 Compensation is determined in the sum of $334,600. 3. The question of any additional compensation in respect of the value at the date of compulsory acquisition of the road improvements is reserved with liberty to the Applicant on 7 days' notice to apply for the purpose of making further submissions." The Council, in its written submissions asserted that the Applicant was "blowing hot and cold" in relation to the question whether the Court's orders were final or interlocutory. However, with great respect to this argument, it is misconceived in that it fails to distinguish between matters that were finally determined by the judgment (eg. the determination of compensation for the en globo land value of the compulsorily acquired land) and matters that were expressly reserved (eg. whether there should be additional compensation in respect of the value of the road improvements existing on the compulsorily acquired land). There is, in my judgment, nothing inconsistent in saying that the former matter was finally determined by the Court's judgment but the latter matter was expressly reserved for further determination: cf Baulkham Hills Shire Council v. O'Donnell (1986) 66LGRA 367 at 372 where the Court of Appeal in its single judgment said: "Bignold J's reasons for decision, when examined, make it clear that he was not finally dismissing the whole of the opponent's application. On the contrary, both in the first and second decisions, he made it plain that he had reserved certain issues so that the entirety of the application was not disposed of until the second decision." Earlier at 371, the Court of Appeal referred to its earlier decision in Smith v. Tabain (1987) 10NSWLR 562 and in particular to the judgment of Mahoney JA who had "pointed out that, on an appeal against a final judgment, it has conventionally been open to the appellant to raise the correctness of interlocutory or other orders which have been made 'as a step in the proceedings leading up to the final judgment'". (In that case (a personal injuries action), the relevant interlocutory judgment was the trial judge's finding in favour of the plaintiff on the issue of liability which had been tried separately from the issue of damages). In O'Donnell the Court of Appeal at 371 held that although there had been no formal separation of an issue, the course that I had adopted at trial was equivalent thereto. It follows from the foregoing that the judgment and orders pronounced on 2 December 1996 must be held to be interlocutory in respect of the question whether any additional compensation (i.e. above the amount of $334,600 determined in respect of the en globo value of the compulsorily acquired land) was payable in respect of the value of the road improvements existing on the compulsorily acquired land at the date of compulsory acquisition. This interpretation, which appears to be inevitable from the very terms employed in my reasons for judgment and the orders pronounced on 2 December 1996, is sought to be avoided by the Council's submission that the true effect of that judgment was the Applicant had failed to prove her case that she was entitled to additional compensation in respect of the road improvements existing on the compulsorily acquired land. This failure had come about in circumstances where that issue had been litigated but where the Court had held that the evidence adduced by the Applicant had been unsatisfactory and in any event was misguided because it had addressed the costs of the road construction and not the value of the road improvements. The profound difficulty precluding acceptance of the Council's submission is that it simply flies in the face of the relevant reasons for judgment and the relevant orders pronounced on 2 December 1996. That the submission is patently at odds with my earlier judgment is, I think, implicitly recognised by the Council in formulating in its Notice of Appeal to the Court of Appeal the following ground (that I have earlier mentioned): "(r)Furthermore, His Honour's Order No. 2 to the extent that further evidence after both parties had closed their cases is permissible to determine the value of the roads and to allow the Respondent to claim additional compensation therefor is incompetent and impermissible in law". Moreover, in an earlier version of its written submissions that were filed, the Council actually submitted that there was no jurisdiction or power vested in the Court "to leave over an issue by giving a litigant an opportunity to re-agitate an issue in respect of which the litigant, on the evidence before the Court, must fail". The submission went on to assert that order 3 "amounts to nothing". Although these submissions were ultimately omitted from the Council's written submissions, their earlier existence provides the key to a proper understanding of the Council's opposition to the Applicant's Notice of Motion. In truth, the Council baulks at the notion that the Court's judgment of 2 December 1996 could reserve the question of whether additional compensation could be awarded in respect of any added value of the road improvements to the compulsorily acquired land. Yet somewhat surprisingly, this submission was not included in the seven separate grounds advanced in support of the Council's Motion to vacate orders 2, 3 and 4 made on 2 December 1996, which Motion was dismissed with costs in my judgment of 23 June 1997. Thus, the Council has deliberately set its course in respect of the asserted lack of power or jurisdiction in the Court to reserve the question of additional compensation in the Court's judgment and orders pronounced on 2 December 1996, namely to rely upon it as a ground of appeal (ground (r)) in its Notice of Appeal to the Court of Appeal and not to rely upon it in its Motion to vacate orders 2, 3 and 4 made on 2 December 1996, which Motion was dismissed with costs in my judgment of 23 June 1997. In these circumstances, it is not surprising that the submission of absence of power and jurisdiction which found expression in the Council's earlier filed version of its written submission in respect of the Applicant's Notice of Motion, was omitted from the Council's ultimate submissions. I take its omission to be both deliberate and well advised, it having earlier failed with its earlier Motion to set aside the orders on the ground of being "beyond jurisdiction" and accordingly being left to rely upon its appeal to the Court of Appeal. However, in these circumstances, it is neither appropriate nor just for the Council to revive the submission in its opposition to the Applicant's Notice of Motion under the guise of what, by any account, must be regarded as an obviously strained and unsupportable interpretation of the reasons for judgment and of the orders pronounced on 2 December 1996. Nonetheless, the Council, in its written submissions (para. 2.11) sustained its legal dissatisfaction with the Court's judgment and orders pronounced on 2 December 1996 by saying that the Court had "set in train a violation of fundamental principles" (i.e. (i) the public interest in the finality of litigation; and (ii) the principle that no person should be put to the hardship of having to defend the same matter twice) "and if pursued further would result in injustice and an abuse by the claimant and the interests which she claims to represent of the processes of this Honourable Court". This is undoubtedly a powerful submission, but its inherent weakness is that it conveniently ignores the meaning and effect of the Court's judgment and orders pronounced on 2 December 1996, which clearly did not finally conclude the litigation in this Court. The determination of the Applicant's Notice of Motion is not the occasion for considering the question of whether the Court had the jurisdiction and power, as it did in its judgment of 2 December 1996, to reserve the question of additional compensation on account of any added value of the road improvements. (That is a question which the Council may decide to pursue in its appeal against my judgment of 2 December 1996 but it does not bear upon my determination of the present Motion.) Nor is it the occasion to re-examine the reasons why the question was reserved in my judgment of 2 December 1996 other than to note that it was "considerations of fairness" that ultimately were invoked to justify reserving the question - see especially the final paragraph on p.33 of my reasons for judgment of 2 December 1996 - and that to adopt such an approach was consistent with authority. Thus, in my respectful opinion, it is considerations of fairness (or as Young J expressed it in Bearns v. Bearns-Hayes "the prime consideration is the due administration of justice") coupled with the absence of real prejudice to the other party, that explain the decisions to permit a re-opening of the case in Joyce, in Bearns v. Bearns-Hayes and in Urban Transit Authority. In Bearns Young J staunchly rejected the suggestion that the function or "aim of a Court is not to produce a just result, but is rather to try the issues tendered by the parties". Next, Young J encountered the submission "that if during the trial or at the end of the trial some problem of deficiency of evidence occurs, the judge should just adjudicate on the matter and not become involved". Again, Young J rejected that submission in the following words: "Again, that is right up to a point. I certainly considered very deeply in my chambers before I had my Associate write her memorandum, which is MIO8, because I agree that is the general rule. However, there does come a point where the Judge, who after all is trying to get a just result, if no one else is, has to intervene in a trial. In view of the great problems which I have already outlined in this case, it seemed to me that it was appropriate for me to intervene in this case and if no one else asked the questions, to ask the questions myself. There is authority for the proposition that if a Judge is hearing an application and is not satisfied with the evidence before him or her then the proper course is not to dismiss the proceedings but to stand them over for the evidence to be presented. That is the more modern way of looking at the matter and it is the attitude that is applied in family law cases and in this Division, especially in situations such as applications under the Family Provision Act." In passing, Young J referred to "another clear line of authority of which Re Hayes Williams (1926) 26SR (NSW) 383, 386 is a good example, that at any stage of a case a Judge may for his or her own satisfaction direct that further evidence be adduced. However, such a course would usually only be taken after suggesting that the relevant party apply to re-open". A similar question was considered by the Court of Appeal in Bassett v. Host (1982) 1NSWLR 206 where Mahoney JA declaimed the course of a trial which left the trial judge and the Court of Appeal to determine a vital factual issue on the basis of speculation rather than fact, a course his His Honour stated at 213 "ordinarily should not be allowed to happen". His Honour then proceeded to examine the powers available to a trial judge to prevent such a happening, stating at 213: "It is not necessary to consider whether or in what circumstances a trial judge may, without consent, call or direct a party to call a witness: Titheradge v The King (1917) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/24clr107.html">24 CLR 107</A>; see generally Cross on Evidence, 2nd Aust ed (1979), par 10.1, pp 211-212, Halsbury's Laws of England, 4th ed, vol 17, par 281, at pp 195, 196. But a trial judge faced with such a situation as faced the trial judge in this case should, in my opinion, consider carefully whether action should be taken by him to ensure that the necessary evidence is before the court. There are, in my opinion, circumstances in which a trial judge may and should exercise his influence to this end. What philosophy should inform a trial judge's participation in a trial (whether he should be an umpire of something more) will no doubt require reconsideration from time to time. But, whatever philosophy be adopted, a trial judge has the right and, in my opinion, the duty, in the proper case, to use his influence to see that the court has before it the evidence necessary for the proper determination of the issues. I do not mean by this that each judge must be a Sirica in pursuit of Watergate. But, whatever be the philosophy adopted, it places no premium on gaps in the evidence. I appreciate the niceties of trial practice and the right of parties to the presentation of the case of their choice. What a judge will do will depend upon the circumstances of the case and there will sometimes be reasons why he will not intervene. But often this will not be so." For all the foregoing reasons, I hold that the Court's judgment of 2 December 1996 is interlocutory in character to the extent that it expressly reserved the question of whether the Applicant was entitled to additional compensation in respect of any added value of the road improvements existing on the compulsorily acquired land. In other words, the subject matter of that expressly reserved question was not finally concluded by the Court's judgment of 2 December 1996. F. HOW SHOULD THE COURT EXERCISE ITS DISCRETION? This brings me to consider the question of how the Court's discretion should be exercised in respect of the Applicant's Motion to re-open her case for the purpose of calling the further or fresh expert evidence of Mr Marshall and Mr Prince in respect of any added value of the road improvements in the light of my conclusion that my judgment of 2 December 1996 expressly reserved determination of that question. Of all the cases cited in the course of argument (and I intend no discourtesy by not referring in these reasons for judgment to all cases cited) I think the judgment of Clarke JA (which had the concurrence of the other members of the Court of Appeal) in Urban Transport Authority provides the most relevant guidance for the exercise of judicial discretion called for in the present case. It is sufficient to quote the following two passages at 478 (noting his Honour's elaboration or illustration of the principles at 475 to 477 inclusive): "The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts, the case is more appropriately to be considered as one in which the application has resulted from an error by counsel. Similar views were expressed by Sheppard J in Joyce v GIO (NSW) (Ritchie's Supreme Court procedure, New South Wales, vol 2 [13,028]) and Jeffery J in Henning v Lynch [1974] 2 NSWLR 254. It is the fact, as Sheppard J observed in Joyce, that there are a number of decisions which support the view that the principles relating to the calling of fresh evidence on appeal are relevant when what is under consideration is an application to re-open. That view may be correct where the application to re-open is made after the delivery of judgment but I can see no justification for importing those principles into an application to re-open which is made before the hearing is concluded: see Smith v New South Wales Bar Association [No 2] (1992) 66 ALJR 605 at 608-609; 108 ALR 55 at 61-62 of the judgment of Brennan, Dawson, Toohey and Gaudron JJ." In respectfully adopting his Honour's views I would apply them to the present case upon the basis that the application to re-open on the expressly reserved question is in truth an application made "before the hearing is concluded". In other words, although the Applicant's Motion to re-open to adduce further or fresh expert evidence is obviously made after the judgment delivered on 2 December 1996, that judgment did not finally conclude all issues raised in the litigation, but expressly reserved the question of the determination of additional compensation on account of any added value in the road improvements. Thus, according to Clarke JA, the guiding principle is "whether the interests of justice are better served by allowing or rejecting the application to re-open". In the present case, the Applicant has established the great importance to her claim to "just compensation" of the further or fresh evidence she wishes to adduce. Mr Prince, her consultant valuer, opines on the basis of Mr Marshall's cost estimates, that the added value of the road improvements is some $535,000 in addition to the amount of $334,600 I have already determined in respect of the en globo land value of the compulsorily acquired land. If, as a result of not being allowed to rely upon this fresh evidence, the Applicant were to be deprived of that additional compensation, a grave injustice would be occasioned in the face of the statutory guarantees of "just compensation" and "compensation not less than market value" contained in the objects clause of the Just Terms Act. Accordingly, the prejudice to the Applicant of not permitting her to re-open her case on the expressly reserved question is obviously substantial and significant. On the other hand, the Council has not demonstrated any prejudice it would suffer if re-opening were permitted other than for the additional costs that would be incurred in the further hearing of the case in consequence of the re-opening. Thus, the comparison is between (i) the possibly irremediable substantial prejudice likely to be suffered by the Applicant and (ii) the infinitely more slight prejudice likely to be suffered by the Council by virtue of the additional costs of a re-opened hearing on the reserved question, being a prejudice that might be mitigated, if not totally eliminated, by the exercise of the Court's discretion on costs. Concerning the question of why the evidence, now sought to be adduced by the Applicant, was not adduced at the trial, I have earlier expressed my findings on this matter. For present purposes I can say that these findings are entirely consistent with a further finding that I am prepared to make, namely that the reason for not calling the evidence at the trial was not to serve some tactical advantage but probably reflected some mistake of fact and/or law either on the part of Mr Pryor (the Applicant's father) or the Applicant's legal representatives, that the evidence given by Mr Pryor of the monies be expended on the road improvements and the valuation evidence given by Mr Prince in reliance on Mr Pryor's evidence, would be sufficient evidence to found the Applicant's claim to additional compensation on account of the added value of the road improvements existing on the compulsorily acquired land at the date of compulsory acquisition. The Council has correctly drawn attention to the course of the trial and to the desperate, but ultimately unsuccessful, attempts by the Applicant's Counsel to buttress the Applicant's obviously deficient evidence by calling Council servants who were present in Court during the trial. However, the conduct of the Applicant's Counsel during the course of the trial, and in the heat of the moment, cannot be relied upon to utterly foreclose the Applicant's Motion to re-open her case. In my judgment the interests of justice are far better served in the present case by allowing the Applicant to re-open her case to adduce the further or fresh expert evidence on the reserved question of whether additional compensation is payable in respect of any added value of the road improvements. In so concluding, I do not think that I am giving an unsuccessful litigant "a back door method to re-argue her case" or "the opportunity to present a case to better advantage". These epithets, which are employed in the leading cases, are not applicable in the present case because the applicant has not been held to be an unsuccessful litigant. It is, of course, true that I found the evidence that she had adduced at the trial on the question of any added value of the compulsorily acquired land by dint of the existing road improvements to be unsatisfactory. But I did not conclude that on that account, the Applicant was not entitled to any additional compensation. Nor did I conclude that the road improvements were of no value for clearly they exist and are substantial and are entirely appropriate to the use of the compulsorily acquired land as roads. Nor did I finally conclude, that her claim for additional compensation must fail on account of the unsatisfactory evidence that she had adduced. Rather, I held that considerations of fairness dictated that I expressly reserve that question for further submissions on the meaning and effect of s.56(1)(b) of the Just Terms Act and possibly for further evidence in the light of my conclusions on the meaning and application of s.56(1)(b). In so concluding that I should exercise my discretion to permit the Applicant to re-open her case by calling the further or fresh expert evidence on the reserved question, I have rejected (for the reasons earlier stated) the Council's submission that so to do would involve a violation of important legal principles concerning the public interest in the finality of litigation and the public interest in holding a litigant bound by the manner in which his or her case has been conducted. I also must reject, as inapplicable to the present case, the Council's submission that to allow the Applicant to re-open her case violates the extended principle of res judicata as expounded by the High Court of Australia in Port of Melbourne Authority v. Anshun Pty Limited (1981) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/147clr589.html">147CLR 589</A>. However, my conclusion to exercise my discretion to allow the Applicant to re-open her case remains subject to my consideration of the Council's submissions that to allow the re-opening would be to involve a legal futility. It is this final question that I must now consider. G. WOULD THE APPLICANT'S RE-OPENING INVOLVE A LEGAL FUTILITY? As I understood it, the Council's submission that the re-opening would involve a legal futility was based upon the following grounds:- (i) the further or fresh evidence of Mr Marshall and Mr Prince was deficient, flawed or misconceived; (ii) the Applicant is not entitled to additional compensation on account of any added value of the road improvements because she did not undertake or fund the undertaking of those improvements which were undertaken either by Mr Pryor or by the Council at the request and on the payment of Mr Pryor; (iii) pre-resumption improvements undertaken by the acquiring authority with the consent or agreement of the land owner are not compensatable; (iv) any increase in the value of the compulsorily acquired land by virtue of road improvements undertaken by the Council prior to the compulsory acquisition are to be disregarded pursuant to s.56(1)(b) of the Just Terms Act ; and (v) to award additional compensation in respect of the value of the road improvements would violate the principle against double recovery because the compensation already determined is based upon a use higher and better than use as roads. It will be necessary to consider each of these grounds seriatim: Ground (i) The further or fresh expert evidence As I have earlier stated, it is not appropriate on an application for leave to re-open the Applicant's case for the purpose of adducing the further evidence of Mr Marshall and of Mr Prince to evaluate that evidence as if on a final hearing of the evidence. Both expert witnesses were rigorously cross-examined and their respective opinions were subject to extensive criticism in Council's comprehensive written submissions. However, at this stage, there is no contradictory evidence adduced by the Council. Moreover, as I have earlier found, the Council's cross-examination and criticism has not destroyed or demolished the opinions of Mr Marshall and of Mr Prince which are of course highly relevant to the reserved question. In order for the Council to succeed on this ground, it would have to show that the further evidence was so hopeless that it ought to be rejected peremptorily in similar fashion to what is required of a party moving the Court for summary dismissal of a cause of action or pleading etc. The Council's attack on the further evidence falls very far short of this high standard. Accordingly, I hold that this ground has not been established. Ground (ii) The Applicant is not entitled to compensation for the road improvements which she herself did not undertake or finance This ground, in my opinion, involves a fundamental misconception on the Council's part. Any entitlement to additional compensation on account of the roadworks improvements existing on the compulsorily acquired land is founded on the fundamental principle that where the improvements form part of the land compulsorily acquired, and where they add value to that land, compensation for the compulsory acquisition reflecting "market value" is payable in respect of the land as so improved. This feature of the Just Terms Act simply recognises a basic tenet of land law and the law of fixtures: see Anthony v. The Commonwealth (1973) 29LGRA 61; Brown's Land Acquisition 3rd Ed. at para 1.13. The fact that the claimant did not undertake or pay for the improvements is simply irrelevant to the principle. This ground has not been established by the Council. Ground (iii) The pre-resumption improvements which were effected with the agreement of the land owner are not compensatable The Council submitted that the following passage from my judgment of 2 December 1996 was obiter dicta, without having heard submissions on the point, and in any event formulated too wide a proposition: "The question of the value of the roadworks simply was not adequately addressed in the proceedings where the overwhelming focus was directed to who was responsible for the works and the costs thereof. This focus may have been somewhat misdirected or misguided in the light of existing authority e.g. Geita Seba v. Territory of Papua (1941 <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/67clr477.html">67CLR 477</A>; Collins v. Council of the Shire of Livingstone (1972) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/127clr477.html">127CLR 477</A>; Anthony v. The Commonwealth of Australia (1973) 29LGRA 61; and Mulcahy v. Blue Mountains City council (No.2) (1996) 89LGERA 348. These decisions establish that, except where the statute otherwise provides, the value of resumed land includes the value of any improvements made to that land irrespective of who made the improvements. In each of the cited cases, the relevant improvements had been made to the land by the resuming authority and it was held that the compensation payable in consequence of the resumption included the value of the improvements. Unless statute has relevantly excluded or modified the principle established by these cases, I am of the opinion that they are relevant to the determination of compensation required in the present case. In so concluding, I would reject the Respondent's submissions based upon the fact that the Applicant (through Mr Pryor) had already gained the benefit of any contributions it had made to the road construction by obtaining development consent for the sale and development of lots benefiting from the provision of road access and other services. I appreciate the practical force of this submission. However, the Court's statutory task in determining compensation pursuant to the Just Terms Act simply does not involve applying considerations relevant to the law of unjust enrichment." The Council submitted that the proposition so formulated in the second paragraph of the passage only applied in cases where the improvements have been made by the resuming authority, without authority. Reliance was placed upon the observation made by the Full Court of the Western Australian Supreme Court in R v. Compensation Board of Western Australia ex parte State Planning Commission Re Della-Vedova (1990) 2WAR 242 at 261 that the decisions in Geita Sebea and in Collins "establish that if a resuming authority makes unauthorised improvements to the land in anticipation of resumption, the land is nonetheless valued as improved and the owner gets the benefits of the improvements". The Council's submission also relied upon the decision of Perrignon J in Corben v. Commissioner for Main Roads (1983) 52LGRA 388 where his Honour held that the resumee was not entitled to compensation in respect of the value of pre-resumption roadworks carried out on the resumed land by the resuming authority under the authority of a lease granted by the owner to the resuming authority. His Honour, at p.395, distinguished Geita Sebea (upon which the resumee had relied to support his claim that the cost of the roadworks should be reflected in the value of the resumed land) on the facts by holding (by way of assumption) that the lease in Geita Sebea "did not contain provisions similar to those contained in the agreement for lease in the present case, whereby in anticipation of the acquisition of the claimant's land for road widening, the Commissioner and the claimant expressly contemplated the doing of the roadworks during the currency of the lease". Having distinguished Geita Sebea his Honour proceeded to hold that if the land had been resumed within the two year period stipulated for acquisition in the lease agreement "the compensation would not have included any amount that was referable to the cost of the roadworks" : 395. The reason for so holding was expressed as follows: "The works would in that event have been performed with the express permission of the claimants as owners of the lots in question and I think that a term or condition would have been implied in the agreement for lease to the effect that the cost of such works should not be reflected in the value of the land for compensation purposes": 395 This line of reasoning was sustained in the ultimate holding by Perrignon J at 396 where his Honour found that the parties had extended the time for the performance by the resuming authority of its obligation to acquire the subject land and that that obligation had been fulfilled by the resumption of the land. Although it is clear that the reason why the resumee in Corben was held not to be entitled to compensation in respect of the cost or value of the pre-resumption roadworks was the implication into the lease between the parties of "a term or condition to the effect that the cost of the roadworks should not be reflected in the value of the land for compensation purposes" (396) there is not to be found in the judgment any explicit explanation of precisely how the terms of the lease (including the implied term) operated to curtail the resumee's statutory entitlement to compensation under the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/pwa1912159/">Public Works Act 1912</A> which by s.124 requires compensation to be assessed by regard to, inter alia, "the value of the land taken". It may be that the unexpressed explanation is that the resumee was taken to have partially disclaimed or waived his entitlement to statutory compensation (i.e. to the extent of excluding from the value of the land any additional value attributable to the roadworks). However, be that as it may, I would not regard Corben as authority for the wide proposition advanced by the Council that pre-resumption improvements carried out by the resuming authority with the consent or agreement of the then owner of the resumed land, ipso facto disentitles the claimant for compensation under the Just Terms Act from claiming the "market value" of the compulsorily acquired land as so improved. This conclusion is, of course, subject to the operation of s.56(1)(b) of the Just Terms Act which had no bearing in Corben because the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/pwa1912159/">Public Works Act 1912</A> contained no counterpart. I shall shortly hereafter consider the effect of that section, but for the purpose of determining this ground of the Council's argument, s.56(1)(b) can be momentarily set aside. In my judgment, the decision in Corben does not cast any doubt on the principle established and applied in Geita Sebea; Collins; Anthony and Mulcahy. However, as I have mentioned, the Council submits that the principle only applies where the improvements carried out by the acquiring authority were unauthorised. For this proposition, reliance is placed on the decision of the Western Australian Full Court in Re Della-Vedova. It is true that in the joint judgment of Brinsden and Walsh JJ their Honours at p.261 cite the decisions in Collins and in Geita Sebea as establishing the proposition "that if a resuming authority makes unauthorised improvements to land in anticipation of resumption the land is nevertheless valued as so improved and the owner gets the benefit of the improvements". However, their Honours had immediately earlier relied upon those decisions as illustrating the "principle that land is to be valued in its actual condition at the date of acquisition" cf Yates Property Corp. Pty Ltd v. Darling Harbour Authority (1991) 73LGRA 47 at 65. It was this principle that the resuming authority relied upon to support its argument that "if the resumed land has been injuriously affected by events antecedent to the resumption and which were not part of the scheme of the resumption (as alleged here) the land must be valued in its injuriously affected state, but, taking into account any inchoate claim for compensation arising out of the injurious affection" (261/262). In the result the Court rejected the argument of the resuming authority (at 263) and held that the Compensation Court was correct to assess compensation on the basis that the land was available to the claimants without any restricting or depreciating effect of the pre-resumption works undertaken by the resuming authority (at 265). In my judgment, it is clear that the decision in Re Della-Vedova is not authority for the proposition that it is only in circumstances where the pre-resumption improvements have been carried out by the resuming authority without authority that the existence of the improvements is to be taken into account in assessing compensation payable in respect of the resumption of the land. Indeed, the actual decision in Re Della-Vedova is to the opposite effect. Moreover, the decision demonstrates that the fact of whether or not the pre-resumption improvements are carried out with or without the authority of the land owner is not the discrimens for determining whether the existence of the improvements on the compulsorily acquired land relevantly increases the amount of compensation to be paid in respect of the market value of the compulsorily acquired land. In my judgment, the relevant discrimens is whether the pre-acquisition improvements carried out to the compulsorily acquired land by the acquisition authority or whoever relevantly form part of that land: see in particular Anthony and cf. North Shore Gas Co. Ltd v. Commissioner of Stamp Duties (1940) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/63clr52.html">63CLR 52</A> and Commissioner of Main Roads v. North Shore Gas Co. Ltd (1967) <A href="http://www.austlii.edu.au/au/cases/cth/high_ct/120clr118.html">120CLR 118</A>. As the joint judgment in the last cited case makes clear at 127: "...the principle expressed in the maxim quicquid solo plantatur, solo cedit....primarily ... is applied to determine the right of the owner of land to things affixed to or embedded in the soil. Whatever is fixed to the freehold is said to become part of it and is subjected to the same rights of property as the land itself..... The presumption is said to be rebuttable and, it seems to us, it must be so when a statute empowers someone other than the owner of land to affix or to embed things in the soil and yet retain ownership of the things so affixed or embedded." The facts of the present case are entirely distinguishable from the determinative facts in Corben. Here there was (i) no lease granted by the owner of the land to the Council during the currency of which the pre-resumption road improvements were carried out; (ii) no agreement that the Council would acquire the resumed land; (iii) no agreement that the Council would carry out the roadworks preparatory to acquiring the subject land; and (iv) no agreement (express or implied) that if the Council acquired the subject land, the compensation payable therefor, would exclude the value of the road improvements. Accordingly, there is no authority that can be relied upon by the Council in support of the Council's submission that the value of the roadworks cannot be included in the compensation payable to the Applicant in respect of the market value of the compulsorily acquired land. Moreover, the Council's submission is contrary both to authority (the four cases cited in my judgment of 2 December 1996 at p.31) and to principle, and accordingly, I reject it. This ground has not been established. Ground (iv). Section 56(1)(b) of the Just Terms Act Section 56(1)(b) provides as follows: 56. (1) In <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/pwa1912159/">this Act</A>: "market value" of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) .................. (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired;" Two questions require determination - firstly what is the meaning of paragraph (b) and secondly, does it apply to the facts of the present case. Firstly, as to the meaning of paragraph (b) the parties are in dispute as to whether the paragraph is concerned with: (i) improvements carried out by the acquisition authority whether or not the authority paid for them (the Council's contention) or (ii) improvements so carried out at the expense of the acquisition authority (the Applicant's contention). The text of the section, of course, does not refer to any question of "at whose expense the improvements are carried out", and accordingly it clearly favours the construction advanced by the Council. On the other hand, the paragraph must be interpreted in the context of its place and role in the all important definition of "market value" contained in the Just Terms Act (vide s.3(1)(a) and s.55(a)) and in the light of the established principle of real property law quicquid solo plantatur solo cedit (recognised in the cases that I have earlier referred to). This principle is inherent in the definition of "market value" contained in s.56(1) because otherwise the three discrete matters to be disregarded from the assessment of value, and particularly the matters contained in paragraphs (b) and (c), would not need to be expressly excluded. Accordingly, it is in my judgment a legitimate approach to the proper construction of the fundamental concept of "market value" to enquire not only into the question what improvements are to be disregarded in assessing the value of the land but why they are to be disregarded. The answer to such a double enquiry is, in my opinion, tolerably clear, namely those improvements carried out by the acquisition authority at its expense. This produces the just result in the context of the Just Terms Act of modifying the quicquid solo plantatur, solo cedit principle by providing that the acquisition authority not have to compensate the claimant for the added value to the compulsorily acquired land by virtue of any improvements undertaken at the expense of the acquisition authority in contemplation of the public acquisition of the land, but otherwise leaving that principle to operate in favour of the claimant. To adopt the Council's construction which is indifferent to the question of at whose expense the pre-resumption improvements are undertaken, would involve a risk of producing an unjust result, namely of depriving the claimant of the benefit of the increased value in the land by virtue of the improvements which have been carried out by the acquisition authority but not at its expense. Why it may be asked in such a scenario should the acquisition authority enjoy the benefit that otherwise the common law would confer upon the land owner? The construction urged by the Applicant, which I favour, is one that promotes the purpose or object of the Just Terms Act and is to be preferred conformably to s.33 of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ia1987191/">Interpretation Act 1987</A> to that urged by the Council which does not promote that purpose or object. Moreover, it must be noted that paragraph (b) operates only in relation to "improvements for the public purpose for which the land is to be acquired". This limitation is particularly significant in the application of the section to the facts of the present case because although there is a finding in my judgment of 2 December 1996 concerning the nature and quality of the roadworks there is no finding that they were carried out for the public purpose for which the Applicant's land was acquired. It is to be noted that the public purpose for which the Applicant's land was compulsorily acquired was stated in the Acquisition Notice as "for the purposes of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A>" (p.2 of my judgment of 2 December 1996) and that on 28 June 1996 the Council notified pursuant to s.10 of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A> that all of the compulsorily acquired land was a "public road" (p.29 of my judgment of 2 December 1996) "Public purpose" is defined by s.4(1) of the Just Terms Act as meaning: "any purpose for which land may by law be acquired by compulsory process." Part 12 of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A> deals with the "acquisition of land". Section 177(1) authorises a council to "acquire land for any of the purposes of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">this Act</A>" and s.178(1) authorises land, authorised to be acquired, to be acquired by compulsory process in accordance with the Just Terms Act. By s.7(4) of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act</A> the council of a local government area is designated as the "roads authority" for "all public roads within the area" (other than a freeway or Crown road or public road for which the regulations declare another public authority to be the roads authority). Since the Council has no function under the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A> in respect of roads other than public roads, the declared public purpose of the compulsory acquisition of the Applicant's land "for the purposes of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A>" may be taken to mean for the purpose of declaring the lands as public roads, which is what occurred, subsequent to the compulsory acquisition, when the Council gave notice under s.10(1) of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/">Roads Act 1993</A> which provides inter alia that "a council may, by notice published in the Gazette dedicate any land held by it (including land acquired by it under Division 1 of Part 12) as a public road". Having regard to my findings (i) "that most of the roadworks involving in some manner Mr Pryor, either in doing work through contractors or paying for the works to be executed by the Respondent, occurred in the early 1980s" (p.30); and (ii) that "throughout the period of 1970s, 1980s and early 1990's the Respondent, in its dealings with the successive owners of the compulsorily acquired land and associated residential lots in the Killingworh Village, consistently held, and expressed the opinion that the roads were not dedicated public roads" (p.23), I find that the roadworks improvements were not carried out "for the public purpose for which the land is to be acquired" within the meaning of s.56(1)(b) of the Just Terms Act. Rather, the roadworks were carried out for the purpose of providing road access on privately owned land to approved residential development on existing lots in the Killingworth village. In so finding, I would construe the expression "for the public purpose for which the land is to be acquired" as qualifying the improvements that are to be disregarded in the sense that those improvements must (i) be for the purposes of the "public purpose" for which the land is to be acquired (i.e. in the present case "public roads") and (ii) be carried out at a time when the acquisition of the land is contemplated by the acquisition authority. In other words, the qualification on the "improvements" that are to be disregarded is both (i) purposive ("for the public purpose" and (ii) temporal (carried out at a time when it is contemplated that the land "is to be acquired for that purpose"). The Council's decision to acquire the Applicant's land for dedication as public roads did not come into existence until after "late 1990" when negotiations between the Council and Mr Pryor broke down: see p.23 of my judgment of 2 December 1996. In exploring the question of the possible application of s.56(1)(b) to the facts of the present case, I have determined the matter without reference to any consideration of onus of proof, upon which consideration, I had expressed an obiter opinion at p.33 of my judgment of 2 December 1996 that the Council had "at least the evidentiary onus of establishing what works it relevantly carried out". Having had the benefit of full argument on the question, I am reinforced in that opinion and hold that the onus of establishing the application of s.56(1)(b) falls upon the party (here, the Council) asserting its application. The Council has not discharged that onus. Accordingly, for all the foregoing reasons, this ground has not been established. Ground(v). The principle against double recovery The Council argues that having determined the en globo value of the compulsorily acquired land on the basis of a highest and best use as subdivisible residential lands, the possibility of granting additional compensation on account of the value of the roadworks improvements which are inconsistent with that highest and best use, offends the principle against double recovery. The relevant principle is firmly established and was succinctly stated and applied by Hemmings J Bergman v. Holroyd Municipal Council (1988) 66LGRA 68 at 80 when his Honour said: "Generally speaking, when land has been valued on a highest and best use which is different from the actual use, the claimant cannot claim the value of improvements which will no longer be required when the land is put to its new notional use. Such value of improvements is absorbed in the higher value of the subject land: Horn v Sutherland Corporation [1941] 2 KB 26 and Balquhidder v Minister for Environment and Planning, 40 SASR 63 at 78; 58 LGRA 339 at 353." The Council's present argument is, in truth, a variant of the argument that it unsuccessfully advanced when seeking to set aside for allegedly being "beyond jurisdiction", Orders 2, 3 and 4 made in my judgment of 2 December 1996. That argument was dealt with at pp.35 and 36 of my judgment of 23 June 1997 where I held that the Council appeared to have misunderstood the manner in which compensation had been determined in respect of the "market value". Again, with respect, it appears that the Council's present argument misunderstands the method employed in my judgment of 2 December 1996 in determining the value of the land component (i.e. excluding the roadworks) of the compulsorily acquired land. That method as explained at pp. 25 and 26 of my judgment of 2 December 1996, was founded upon three fundamental principles - (i) the highest and best use of the lands was as roads and the Council was the obvious purchaser of those lands; (ii) the value of the lands could be derived by adopting an en globo value of the entire section of the Killingworth Village located south of the Broadway (which includes the compulsorily acquired lands); and (iii) that en globo value could be derived by direct comparison (subject to appropriate adjustments) with the en globo value deduced from the sale of en globo land situate at Edgeworth, a nearby village, for a price of $2 million transacted on 11 August 1992. These principles indicate that the value determined in respect of the land component of the compulsorily acquired land was based upon my finding that the highest and best use of the land was as roads. It was because of this finding that the question of any additional value in the land by dint of the existing roadworks improvements, arose and was ultimately expressly reserved by my judgment of 2 December 1996. If the highest and best use of the compulsorily acquired lands was found to be roads, it is obvious that the existing roadworks improvements to those lands were improvements eminently relevant to that use, and any additional compensation that might be awarded in respect of the added value of those improvements obviously would not offend the principle against double recovery. In leaving this question, I should mention that the Council's separate criticism that my valuation approach of valuing the land component of the compulsorily acquired land and thereafter considering the question of whether the road improvements added value, was contrary to valuation principle, is in my opinion, misconceived. It is often found necessary when valuing improved lands to arrive at a value by separately valuing (i) the land component and (ii) the improvements. This is particularly so, in a case like the present, when not surprisingly, there is no evidence of comparable sales of existing roadways. Contrary to the Council's submission, this method of valuation is precisely that which was employed by Bannon J in Mulcahy and by Walsh J in Anthony (where his Honour referred to the land component value as the "unimproved land"). The Council has not established this ground. H. CONCLUSIONS AND ORDERS For all the foregoing reasons, I am satisfied that in the interests of justice, the Applicant should be permitted to re-open her case on the reserved question by adducing the further expert evidence of Mr Marshall and of Mr Prince. Accordingly, the relief claimed in paragraph 1 of the Applicant's Notice of Motion will be granted. The relief claimed in paragraph 2 is somewhat imprecisely formulated. I take it to be a claim to a declaration that the market value of the compulsorily acquired land includes any additional value to that land by virtue of the existence therein of the roadworks improvements. Having regard to my earlier conclusions on the meaning of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/s56.html">s.56</A>(1)(b) of the Just Terms Act and on its application to the facts of the present case, I am satisfied that the Applicant is entitled to such a declaration. The question of costs will be reserved although I should note that at the outset of the hearing of the Motion the Applicant conceded that she should have to pay the Council's costs of the Motion. It may be, as I have foreshadowed, that the question of costs of the re-opened hearing will need to be considered, and the costs of the Motion might conveniently be left to that occasion. If the parties require me to deal discretely with the costs of the Motion (including in the manner acknowledged by the Applicant on the hearing of her Motion) I shall do so when the matter shortly returns to the Court for directions for the conduct of the re-opened hearing (including any directions that the Council may seek in relation to any evidence that it may seek to call in rebuttal of the evidence of Mr Marshall and Mr Prince). Accordingly, for all the foregoing reasons, I make the following orders:- 1. Leave be granted to the Applicant to re-open her case on the reserved question of any additional compensation by virtue of the roadworks improvements on the compulsorily acquired land by adducing further evidence from Mr Marshall and Mr Prince. 2. Declare that the "market value" (within the meaning of <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/ra199373/s56.html">s.56</A> of the <A href="http://www.austlii.edu.au/au/legis/nsw/consol_act/latca1991442/">Land Acquisition (Just Terms Compensation) Act 1991</A>) of the compulsorily acquired lands includes any additional value to those lands by virtue of the existence therein of the roadworks improvements. 3. Reserve the question of costs. 4. Grant liberty to either party to restore on two days' notice for the purpose of obtaining directions for the re-opened hearing. 5. Exhibits to be returned.

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Land and Environment Court of New South Wales

APPLICANT Mr. P McEwan SC Mervyn J Cathers LEGAL REPRESENTATIVES: RESPONDENT Mr. M Jacobs QC Mr. P Tomasetti Peter Rees, Council Solicitor

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