Land and Environment Court of New South Wales CITATION : Prasad v The Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWLEC 193 APPLICANT PARTIES : Asishwar Prasad RESPONDENT The Minister Administering the Environmental Planning and Assessment Act 1979 FILE NUMBER(S) : 30285 of 2009 CORAM: Sheahan J - Miller AC KEY ISSUES: COMPULSORY ACQUISITION OF LAND :- subdivided land with restricted development potential, and some ecological constraints - comparable sales approach - discounts - allowance for improvements - disturbance Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: State Environmental Planning Policy 1 – Development Standards State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Blacktown Local Environmental Plan 1988 Blacktown Development Control Plan 2006 Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249 Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358 Cook, Saad, Raguz & Ors v Roads and Traffic Authority of New South Wales [2007] NSWLEC 136 CASES CITED: Goodman v Roads and Traffic Authority [2000] NSWLEC 185 Hill v Blacktown City Council [2007] NSWLEC 108 Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 (2001); 130 LGERA 79 DATES OF HEARING: 1-4 March 2010 DATE OF JUDGMENT: 5 October 2010 APPLICANT Mr A Perkins, Solicitor Colin Biggers Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, Barrister SOLICITORS Hunt & Hunt JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Sheahan J 5 October 2010 30285 of 2009 Asishwar Prasad v The Minister Administering the Environmental Planning and Assessment Act 1979 JUDGMENT Introduction 1 His Honour: This is a claim for compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (JTC Act) consequent upon the compulsory acquisition of land located at Marsden Park. 2 The acquired land comprises 15 allotments – Lots 14-19, 29-33 and 35-38 of Section 8 of DP 1146 (the Land) – and has a total site area of approximately 6,070 square metres ('m2'). 3 The request for acquisition was made by the applicant on the grounds of hardship pursuant to Part 2 Division 3 of the JTC Act. Following approval from the Minister the acquisition occurred and was notified in the Government Gazette of 12 December 2008. 4 The applicant is the registered proprietor of the Land as a joint tenant with Sushil Lata Prasad and Sadhana Lata Prasad. The applicant is authorised to make this claim on behalf of all three registered proprietors, but, for convenience, I will generally refer only to "the applicant". 5 The court, in company with the parties, undertook a site view of the Land and comparable sales on the opening day of the trial. 6 I gratefully acknowledge the assistance provided by Acting Commissioner Miller in the determination of this claim. The Acquired Land and Surrounds 7 The Land was purchased by the applicant in April 2004 for $475,000 (which is equivalent to $78 per m2). 8 Each lot has a frontage of 10.058m and a depth of 40.235m – giving an area of 404.7 m2. Together, the 15 contiguous lots provide a total area of 6,070.5 m2. Although each lot is regular in shape, the subject parcel is irregular in shape, due to the fact that Lot 34, fronting Robert Street, is in different ownership. 9 The Land has street frontages to Robert Street (to the east), Grainger Street (to the west) and Walker Parade (to the north). Both Robert Street and Walker Parade are constructed roads of a rural standard, comprising a sealed carriageway for two-way traffic with gravel shoulders and no kerbing and guttering. Lots 14-18 have frontage only to the unmade Grainger Street which is parallel to and lies to the west of Robert Street. Lot 19 is located on the corner of Grainger Street and Walker Parade. 10 The Land is comparatively level with a slight fall from Robert Street to a lower lying area at the rear (near the unmade Grainger Street). It has been partially cleared of natural timber and presents as such to Robert Street, but remnant trees and bushes remain elsewhere. With the exception of two water tanks, which appear not to be fixtures, the acquired Land can be treated as vacant. 11 Electricity and water are connected to Lot 38 which is located on the corner of Robert Street and Walker Parade. Landline telephone service is also available. Sewerage is not provided throughout the Marsden Park area. 12 On land to the north of Walker Parade scattered residential development has taken place over the years. South of Walker Parade, extending to Garfield Road West, large areas of uncleared bushland predominate. 13 The Land was zoned 1(a) General Rural under the Blacktown Local Environmental Plan 1988 (gazetted on 28 October 1988) (the LEP). Although the Land was rezoned Environment Conservation on 28 July 2006 under the State Environmental Planning Policy (Sydney Region Growth Centres) 2006, the parties agree that, due to the operation of s 56(1)(a) of the JTC Act, the compensation must be assessed under the 1(a) General Rural zoning. 14 The zoning table in cl 9 of the LEP provides: Zone No 1(a) (General Rural Zone) 1 Objectives of zone The objectives are: (a) to ensure that actual or potential agriculturally productive land is not withdrawn unnecessarily from production, (b) to ensure that development in rural areas is carried out in a manner that minimises risks from natural hazards and does not unreasonably increase demand for public services, (c) to provide for urban support functions, and (d) to ensure that development within the rural zones does not hinder the proper and orderly development of any future urban lands. (emphasis added) … 15 The Land is located within an area referred to as the "Marsden Park Scheduled Lands". Due to concerns and reports of illegal dwellings, non-residential buildings and uses on Scheduled Lands, Blacktown Council adopted the Interim Policy on Existing and Further Development in relation to Scheduled Lands (Interim Policy) on 7 September 1994 (Exhibit A1 – tab 2.11). The evidence was that this policy was still current at the date of acquisition and has been continuously applied since its adoption, consistent with the Blacktown Development Control Plan 2006 (the DCP). However, on the view it appeared that some dwellings built after 1994 have escaped Council's attention. 16 The Interim Policy sought to suspend Council bringing civil enforcement proceedings in this court in relation to existing unauthorised dwellings, and non-residential buildings and uses, that were on Scheduled Lands as of 10 April 1994. The policy would not allow existing unauthorised dwellings or non-residential buildings to be rebuilt nor would it allow new dwellings or non-residential buildings to be approved. This is because the intent of the policy: "… is to stop the further erection of new dwellings in the 'Schedule Lands'. The toleration of further dwellings by Council will compound the existing unsatisfactory situation whereby a de-facto residential area, without any necessary urban services , is resulting. Further development will also act to inhibit future development options if the area is eventually released for full urban development ." ( Exhibit A1 –tab 2.11, p8) 17 A fact sheet released by the Department of Planning in January 2006 titled "Managing Sydney's Growth Centres" (Exhibit A1 – tab 2.22, p1) provides: " Marsden Park Scheduled Lands The Marsden Park Scheduled Lands cover around 180 ha and contain more than 4000 small allotments created as a "Paper Subdivision" in the 1890's. These allotments are zoned rural and landowners do not currently have the right to build dwellings. The NSW Government and Blacktown City Council own a significant number of the small lots, along with more than 500 private land owners. About half of the total area of the Marsden Park Scheduled Lands is flash flood affected, with the majority covered in Cumberland Plain vegetation of varying significance. The properties included in the Environmental Conservation Zone are those with the highest ecological value. They include a mix of publicly and privately owned properties. " 18 In a November 2007 discussion paper released by the Department of Planning entitled "Improving the NSW Planning System" (Exhibit A1 – tab 2.24), the issues of Paper Subdivisions and "Mum & Dad" investors are raised. The paper notes: " A number of premature or so called 'paper' subdivisions exist in New South Wales, originating from the late 1800s and early 1900s. They can comprise fewer than 100 lots to over 4,000 lots and are to be found in the Blacktown local government area (Riverstone and Marsden Park), as well as in Port Stephens (North Arm Cove) and Shoalhaven (Heritage Estate). Most of these subdivisions are without services such as formed roads, drainage, and reticulated water, sewer and electricity. The lots within them range in size from 270m 2 to 1,000m 2 and are usually held in separate titles. The lack of services and the long-standing rural zonings that are associated with these subdivisions land (sic) prevented or limited dwelling construction on what are predominantly residentially sized allotments. However, the properties also have limited rural value to the owners due to the small sizes of the holdings. Notwithstanding these restrictions, a market has emerged for this land and many properties have been traded over time. As a result, lots are now held in multiple ownerships, predominantly by 'mum and dad' investors. These landowners generally assume that, in time, the lots will be rezoned for residential purposes and that this alone will facilitate dwelling approval. Many landowners have also assumed that the infrastructure works required to facilitate rezoning and dwelling construction will be funded by government (local and State), in return for the rates and taxes that landowners have paid over many years. Many of the landowners have formed lobby groups in an attempt to have the land rezoned. Some owners have erected illegal structures on their land and have illegally cleared vegetation. Where the land has been found to be suitable for development the fragmented ownerships and lack of funding and development expertise has made the development process extremely difficult. Paper subdivisions usually become difficult issues requiring NSW Government intervention to resolve. Relevant Legislation 19 Relevant provisions of the JTC Act are ss 26, 54, 55, 56 & 59. They provide: " 26 Compensation for acquisition under this Division The special value of land, any loss attributable to severance or disturbance and solatium (as referred to in Part 3) need not be taken into account in connection with an acquisition of land under this Division, despite anything to the contrary in that Part. 54 Entitlement to just compensation (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. (2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis. 55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) solatium, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. 56 Market value (1) In this Act: 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) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (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, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition. 59 Loss attributable to disturbance In this Act: loss attributable to disturbance of land means any of the following: (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) valuation fees reasonably incurred by those persons in connection with the compulsory acquisition of the land, …" The Claim and the Issues 20 The applicant claims compensation for market value (s 55(a)) in the amount of $1,350,000. No claim is made for compensation as to the special value of the land (s 57), loss attributable to severance (s 58), or solatium (s 60). However, the applicant has pursued claims for disturbance items under s 59 (a) and (b), in the sums of $1,000 and $1,400 respectively. The applicant's claim is, therefore, for a total of $1,352,400. 21 The Minister contends that compensation should be limited to $485,000 under s 55(a) only, and that disturbance claims are precluded by virtue of s 26 of the JTC Act. Notwithstanding this provision, when acceding to the applicant's request for acquisition on hardship grounds, the Minister advised the applicant that matters referred to in s 26 would be taken into account (this is not confirmed in evidence before the court, particularly the Compensation Notice dated 12 December 2008, nor any documents between the parties, but was alluded to by Mr Hemmings, counsel for the Minister, and not denied by Mr Perkins, solicitor appearing for the applicant). 22 The fundamental issue underlying the determination of the claim is the current and future potential for the land. The applicant contends that a prudent purchaser would have expectations (adopting the underlying zoning and excluding the public purpose) that: (a) having regard to the context and constraints of the land, residential development could be carried out under the 1(a) General Rural zoning ( Potential for Residential Development ); and, (separately) (b) the land will be released for urban purposes in the " short to medium term " ( Prospects for Urban Release ). 23 On the issue of the Land's potential for residential development, the respondent raises the fact that it suffers from constraints arising from the presence of endangered ecological communities. The respondent relies on the uncontested evidence of ecological expert, Dominic Fanning (Exhibit R4) in relation to this issue. Potential for Residential Development 24 The potential for residential development must be considered on the basis of the underlying zoning, other applicable town planning instruments, and the Council's policy in respect of the construction of dwellings on Scheduled Lands, rather than the zoning at the date of acquisition. 25 The fact that the applicant's 2008 development application to Blacktown Council was refused is not relevant, as the Council was obliged to consider that application on the basis of the then current zoning, namely, Environment Conservation, which, in these proceedings, must be ignored. However, the Council's advice in its letter of 26 August 2008 (Exhibit A9), assuming that the land was zoned 1(a) General Rural, that "... the subject land has an area of only 6070.5 sq m, which is significantly less than the minimum permitted of 10 hectares, Council would not have granted its consent for a dwelling on the subject site", is relevant information for any hypothetical prospective purchaser. 26 The relevant limitation in respect of minimum land areas required for the construction of dwellings under the 1(a) General Rural zoning is contained in cl 12 of the LEP, which provides: " (1) In this clause: parcel , in relation to land, includes an area of adjoining land held in the same ownership. … (3) … a dwelling shall not be erected on a parcel of land within Zone No 1 (a) and marked "Clause 12 (3)" on the map unless the parcel of land has an area of not less than 10 hectares . " (emphasis added) The relevant map in the LEP identifies the subject Land (and much of the area in the Marsden Park North precinct) as " Clause 12 (3) " land ( Exhibit R10 ). 27 The subject Land does not meet or even come close to meeting the minimum land area requirements being only 6% of that minimum area. Faced with this situation, the hypothetical prospective purchaser of the subject Land, assuming its underlying zoning, would have contemplated making a development application for the construction of a dwelling (being a use permitted with consent), with an accompanying objection under State Environmental Planning Policy 1 – Development Standards (SEPP 1). As Lloyd J pointed out in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46 (2001); 130 LGERA 79 (Winten) at [26], there are many matters that need to be taken into account in considering an application under SEPP 1 (see also Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446, at [37] – [51]). 28 Town planning evidence was provided by Mr Stuart Harding on behalf of the applicant and by Mr Paul Grech on behalf of the respondent. The two experts conferred on the development potential of the Land and the opportunities for a dwelling to be approved by Council. 29 Mr Harding was of the opinion that the Land would be available for residential development, and that a SEPP 1 objection would not be necessary, due to the operation of cl 14 of State Environment Planning Policy (Sydney Region Growth Centres) 2006. The effect of that provision was to override the Environment Conservation Zoning and allow development in accordance with the underlying zoning. However, as the valuers already agree that the land should be valued on the underlying zoning of 1(a) General Rural, the operation of that 2006 SEPP is of little moment in this case. 30 Mr Harding then stated that, in the event that a SEPP 1 objection was required, the objectives of the zoning would not be hindered by a proposed residential development (T3.3.10, p78, LL4-22). 31 Mr Grech, on the other hand, was much less optimistic with regard to the ability for residential development and was of the opinion that a SEPP 1 objection would not be upheld. He stated that the Interim Policy was still being adopted by Council and that the prospects of successfully overcoming the policy and upholding a SEPP 1 objection would be "effectively nil" (T3.3.10, p80, L12). Under cross-examination, Mr Grech gave further evidence that allowing isolated dwellings is a "bad planning principle", because of the difficulty of providing for orderly and economic development and the provision of infrastructure, such as sewerage, roads and electricity in the future (T3.3.10, pp95-96). 32 Among the factors that would have to be taken into account in applying the Winten test is whether the proposed development subject to the SEPP 1 objection accords with objectives for the development standard in cl 9(1)(d) of the LEP as well as the objects under s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. 33 Although the court is only dealing with a hypothetical SEPP 1 objection in the present situation, I believe that a hypothetical proposal for a dwelling on the subject Land would not comply with such objectives, and would, therefore, fail the Winten test. To uphold a SEPP 1 objection for a dwelling house on the subject Land would further scatter residential development and limit the future urban development potential of the subject Land as well as surrounding properties (if they were to be amalgamated). For this reason, I agree with Mr Grech that a prudent purchaser would be 'pessimistic' about the success of a SEPP 1 objection to the 10ha requirement. For one thing it might be a prohibition, rather than a development standard. Further, in considering whether or not to make an objection under SEPP 1, the hypothetical prospective purchaser would also have become aware of Blacktown Council's Interim Policy in respect of Scheduled Lands, which stated that new dwellings would not be approved. 34 Accordingly, I have come to the opinion that a hypothetical prospective purchaser would have concluded that the subject Land did not have development potential for the construction of a dwelling at the date of acquisition. Prospects for Urban Release 35 Expert evidence dealing with the future potential of the Land and urban release was also provided by Messrs Harding and Grech. 36 They gave considerable evidence on the implications of the fragmented subdivisional and ownership nature of the Scheduled Lands, narrow allotment sizes and the relevance of the underlying zoning, of 1(a) General Rural, over many years, as an indicator of the future urban potential of the land. Ultimately, in proceedings such as this, the question is 'what is the market's reaction to available information, including the opinions of valuers?' 37 Part of the optimism regarding the prospects for urban release lies in the North West Subregion Draft Subregional Strategy. The document, released in December 2007, identifies the subregion as capable of accommodating 140,000 new dwellings by 2031 – 21,500 of which will be in the Blacktown local government area (Exhibit A1- tab 2.5, pp82 & 87). 38 Despite lengthy evidence led by both parties, the conclusions of the planners were that Mr Harding predicts the subject Land will be released for urban development within 3 to 5 years, while Mr Grech had entirely different expectations, predicting that release would not occur for at least 10-15 years. 39 In my opinion little can be gained by tracing the town planning history of the subject Land prior to 2002, including when the County of Cumberland Planning Scheme Ordinance was introduced in 1951, and the various reports and proposals (with the exception of those that specifically relate to the Land), that became part of the public domain. Messrs Grech and Harding helpfully created this chronology of significant planning events from 2002 (Exhibit R8): In 2002 a Metropolitan Strategy entitled " Managing Sydney's Urban Growth " broadly identified the Rouse Hill Development Area, but made no specific reference to the Marsden Park Area. In 2004 a report entitled " City of Cities " identified the North West Growth Sector which included Marsden Park North Precinct and within it the subject Land. In 2005 the Draft North West Growth Centre Structure Plan identified the Marsden Park Scheduled Lands, including the subject Land, as " Landscape and Rural Lifestyle Area ", and also noted that this area was " Under Investigation ". 40 A review conducted by the Department of Planning led to the publication, in January 2006, of a "fact sheet" entitled "Managing Sydney's Growth Centres" (Exhibit A1 – tab 2.22, p2), which included the following: " How will Land within the Environment Conservation Zone be brought into Public Ownership? A scheme of voluntary land swapping, managed by the government, is under consideration. Under the proposed land swapping scheme, private owners within the Environment Conservation Zone may be able to "swap" their land for government-owned land located elsewhere in the Marsden Park or Riverstone Scheduled Lands, i.e. outside of the Environment Conservation Zone. … The proposed land-swapping scheme is voluntary: land swapping is not compulsory, and landowners will be consulted before any decisions are made. The Government will also aim to make any such scheme cost-neutral for landowners. The draff SEPP recognises that the Government's land swapping initiative through clauses requiring that, where a landowner is not permitted to undertake a development on the basis of their rights prior to enacting of the SEPP, the Government must offer the landowner other land in the growth centre of similar value in exchange for the land. " 41 The respondent submits that one factor for a hypothetical purchaser to consider is that the subject (and surrounding) lands' narrow allotments would delay the release of the Marsden Park precinct, as it would not satisfy the DCP requirement for 12.5m frontages. Several documents were tendered by the respondent showing the costs of developing such property as well as initiatives for "land swaps" – where lots would be consolidated, and parts traded to Landcom in return for infrastructure works. 42 The respondent drew the court's attention to several indicators which might suggest that the release process would not be completed for another 10-15 years. The following summary of the growth centres was extrapolated in the respondent's closing submissions (at 35): In 2005, 16 precincts were identified; 10 of those precincts have been "released". Of those one has been identified as accelerated; Three of the released precincts have been rezoned. Of those, one was already well into the rezoning process prior to the commencement of the growth centre strategy 43 The respondent also draws to the court's attention other uncertainties as to the future potential of the Land such as: What zoning would ultimately be given; Whether the current lot layout would be maintained; Whether the current DCP or a new precinct specific DCP would be applied; When the land will be released; When the land will be rezoned after release; What infrastructure will be in place; What the development costs will be in conjunction with any contributions for infrastructure costs; Whether land swap or similar arrangements are available; and Ecological constraints 44 Although the issue of the development potential of the Land will ultimately be dependent on the valuer's opinion of the issue, the court (as would any prudent purchaser) finds, as the sales evidence below will suggest, that the market is purely speculative as to when any future potential would be realised. Ecological Constraints 45 Mr Dominic Fanning provided uncontested evidence (Exhibit R4; see [23] above) as to the ecological constraints of the Land in the Environment Conservation Zone. 46 His report concluded: " The subject site at Marsden Park contains patches of modified regrowth native vegetation, some of which constitutes an example (albeit degraded) of an "endangered ecological community" listed on the [Threatened Species Conservation Act 1995]. Further, whilst no threatened flora or fauna species were recorded on the subject site during the brief site investigations conducted to date it can be anticipated that at least some individuals of a few threatened flora and/or fauna species could be present ." 47 Having been included within the Environmental Conservation Zone, the Land must be regarded as having 'some' ecological value. In my opinion Mr Fanning's report would lead the hypothetical prospective purchaser to the conclusion that ecological constraints which may impact upon the subject Land would not create any more problems than for other land in the vicinity, and particularly north of Walker Parade, so as to render the land either "restricted", or incapable of urban development, if or when that opportunity arose. This would mean that no discount would be applied, in value terms, on account of this issue. 48 Mr Dyson, who provided valuation evidence for the respondent, reached a similar conclusion (p11 of his report), and said "I have assumed the subject land has the same ecological constraints as the 1(a) General Rural lands used as comparable sales evidence". Approach to Valuation 49 In Cook, Saad, Raguz & Ors v Roads and Traffic Authority of New South Wales [2007] NSWLEC 136 ('Cook'), the following observations were made by Jagot J: " 12 The views of the hypothetical buyer and seller about the development potential of the land are relevant (E J Cooper & Son Pty Limited v Baulkham Hills Shire Council (2003) 131 LGERA 226 at [9], referred to as "the correct approach" in Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331 at [20] per Handley JA, Tobias JA and Brownie AJA agreeing. See also De Ieso v Commissioner of Highways (1981) 27 SASR 248 at 252). Whether the hypothetical parties to the transaction would have obtained expert advice is a question of fact. If they would have obtained such advice, then the expert opinions are relevant "through the judgment of the hypothetical buyer and seller" (De Ieso at 252). 13 In this case, I consider that the views of the hypothetical buyer and seller about the development potential of the properties are best ascertained through the comparable sales. Accordingly, I deal with the relevant aspects of the planning evidence in the context of the comparable sales. … 34 The definition of market value in s 56 of the Just Terms Compensation Act relates to the price which a buyer would give and a seller take for the land in all the relevant circumstances at the acquisition date, assuming the hypothetical buyer and seller are parties "… willing to trade, but neither of them so anxious to do so that [they] would overlook any ordinary business consideration", and both being "perfectly acquainted with the land, and cognizant of all circumstances which might affect … [its] value" (Spencer v The Commonwealth of Australia (1907) 5 CLR 418 at 441). 35 Comparable sales are the conventional technique to ascertain the market value of land. Adjustments are likely to be required, as "no two parcels of land are identical in all respects…Before using any allegedly comparable sale, therefore, the valuer must consider whether, having regard to the circumstances (using that word in its broadest sense) appertaining to the parcel of land in question, and to the transaction of sale, there are sufficient similarities to the circumstances appertaining to the subject land and to the notional sale presupposed by the test formulated in Spencer v Commonwealth (1907) 5 CLR 518" (Brewarrana Pty Ltd v Commissioner of Highways [No. 1] (1973) 32 LGRA 170 at 179-180 per Wells J). Wells J observed that the relevant circumstances in relation to the transaction of sale required the valuer to weigh such things as "the character, business and relationships of the parties, their motives, the terms and conditions in their contracts of sale, and any other special considerations that induced or may have induced them to conclude the contract at the selling price agreed…" (Brewarrana at 179-180). 36 In Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335 at [15], Handley JA (with whom Mason P and Bryson JA) agreed) emphasised that: The basic principle of compensation law is that the land must be valued at the relevant date in its existing condition with all its potentialities as potentialities: Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 175–176; 73 LGRA 47 at 65-66 citing Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 313 and Turner v Minister for Public Instruction (1956) 95 CLR 245 at 268–289. … 39 Where a genuine doubt relevant to value remains, that doubt should be "resolved in favour of a more liberal estimate" (Boland v Yates Property Corporation Pty Ltd and Another (1999) 167 ALR 575 at [356], citing Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358 at 373 – 374) ." 50 In the circumstances of this case, where there exists a sufficient number of post-July 2006 sales of land, which may be regarded as reasonably "comparable" (in the valuation sense of that word, i.e. zoned in accordance with the underlying zoning of the subject Land and located in its general proximity), the determination of the market value of the subject Land can be approached, with confidence, using the comparable sales approach. 51 Subject to any of those sales being found to be "out of line", it can be said that the market has spoken, and, as compensation is to be paid for the market value of the Land, there is no need to go any further than carefully reviewing those sales and then making whatever adjustments are necessary, having regard to all relevant features of the property sold, for comparison with the subject Land. Comparable Sales? 52 Evidence was given by expert valuers Peter Phippen (for the applicant) and Michael Dyson (for the respondent) in relation to comparable sales. The valuers also gave their opinions as to the market value of the Land, having regard to its development potential, its prospects of urban release, and its ecological constraints. 53 The valuers nominated thirteen properties as "comparable", and the court was taken to these properties, in the presence of the parties, as part of the site view. The list of comparable sales and comments on each property are annexed to this judgment in Annexure A. 54 Having regard to the sales evidence, Mr Dyson arrives at a figure of $80 per m2 ($485,000), whilst Mr Phippen arrives at the applicant's claimed figure of $220 per m2 ($1,350,000). 55 The evidence as to the market for Scheduled Lands in the Marsden Park area is dominated by three features: 56 Firstly, Mr Phippen agreed with Mr Hemmings' proposition (T3.3.10, p149, LL29-32) that: "… the market is made up of unsophisticated purchasers, … mums and dads, unsophisticated purchasers buying land with a hope in the future it will have a higher potential". 57 Mr Phippen had earlier said (LL19-20): "I don't think for one minute that most of these buyers would consult a planner. They just read documents …". 58 Second, Mr Dyson's evidence was that higher prices are paid for smaller blocks "because they're more affordable, people can (sic) have that sort of money. Talking to local agents they say there is much more demand for the smaller blocks than there is for the larger areas" (T4.3.10, p6, LL45-46). 59 Thirdly, Mr Phippen expressed the view in cross-examination that in the unsophisticated market, which prevails in respect of Scheduled Lands, the buyers consider the number of lots to be an indicator of the potential of the property in question. 60 The court considers that it defies commonsense to dismiss all the comparable sales that have been identified by the valuers because the purchasers were "unsophisticated", and, therefore, not "perfectly acquainted with the land and cognizant of all circumstances which may affect… [it's] value" (per Jagot J in Cook, at [34]), on the basis that the sales fail the Spencer test. It would lead to the market value of the subject Land having to be decided in a vacuum, devoid of any comparable sales evidence in the vicinity. 61 As noted above (in [31]-[34]), in the eyes of the hypothetical prospective purchaser, the Land had no development potential for the construction of a dwelling as at the date of acquisition. That finding dictates that those sales which did not have a dwelling entitlement must be considered as the most comparable, as fewer subjective adjustments must be made. On this basis the most comparable sales in Annexure 'A' are the following: - Lots 55-56 & 201-202, Sec 8 DP 1229, Milton Road, Riverstone (West) ( Milton Road 1 ) (sale 8) - Lots 54-56, Sec 7 DP 1229, Milton Road, Riverstone (West) ( Milton Road 2 ) (sale 9) - Lots 16-17, Sec 23 DP 1480, Princes Street, Riverstone ( Princes Street ) (sale 12) - Lots 34-35, Sec 17 DP 1480, Sydney Street, Riverstone ( Sydney Street ) (sale 13). Sales 8 & 9 62 The two sales in Milton Road are to the north of Walker Parade and in relatively close proximity to the subject Land. Milton Road 1 has an area in respect of 1189 m2 (comprising four lots), and Milton Road 2 has an area of 853.5 m2 (three lots). The prices paid reflect $93 and $99 per m2 respectively. The sales were made in November and September 2007 some 13 and 15 months respectively prior to the acquisition date. While general economic conditions deteriorated in 2008, and particularly in the last five months of that year, no compelling evidence was given that the prices paid for these two properties could not be taken as representative of the market at the date of acquisition, namely, 12 December 2008. 63 Compared with the two Milton Road sales, which are located in a quiet, out of the way street, the subject Land is located on the corner of two prominent streets. For that reason, the subject Land would appeal to a wider cross-section of prospective purchasers. Notwithstanding that advantage, the market for a property of 6,070.5m2 is quite different to that for properties with an area in the vicinity of 1,000m2. A prospective purchaser of the subject Land would see, as a feature, the ability to sell down some of the lots if or when time and circumstances were opportune. By comparison, that option would not, realistically, be available in respect of the two comparable sales. 64 While no specific evidence was adduced in respect of adjustment for size, I have come to the conclusion that a combined discount, for location and size, of at least 15%, but no more than 20%, would be appropriate, indicating, based on the land value of $99 per m2 for Milton Road 2 (being the higher rate of the two Milton Road sales), a value range between $79 (20% discount) and $84 (15% discount) per m2 for the subject Land. Sales 12 & 13 65 The two other Riverstone sales (sales 12 and 13) are also of vacant parcels of land, each with an area of 1,112.8 m2. These lots do not have a frontage to sealed roads. The sale prices were $102,000 and $100,000, representing a value of $92 and $90 per m2 respectively. Both sales occurred after the land had been released (September and May 2008) – that being the first step in the process of the land becoming available for residential development. The provision of serviced land suitable for such development will present a number of challenges. In addition, the process leading to rezoning had actually begun, whereas, even adopting Mr Harding's optimistic view, release of the subject Land is three to five years away at the earliest. 66 These two Riverstone sales indicate that the land values for the two Milton Road sales could not be classed as being too low or 'out of line'. They are clearly superior to Milton Road in several respects. They are considerably closer to Riverstone Railway Station, local shops and schools; they are further advanced in the process by which suitable land becomes available for residential development; and they are considerably smaller in size. I accept the evidence that there is a higher demand on parcels of such sizes. These two sales therefore provide evidence that the Land would not command a market a value of $90 per m2 or above. Robert Street 67 During his evidence, Mr Dyson introduced a sale in Robert Street which was not included in the list of properties inspected on the view, as the sale occurred in August 2009. Mr Dyson had thought the sale "too late after the valuation date", but I do not agree that it should be set aside for that reason. Sufficient information (including aerial photographs) was provided to enable it to be properly considered as a comparable sale, along with the court's impressions of the area, gained on the view. 68 The sale involved two lots of Scheduled Lands with a total area of 809.4m2 located on the western side of Robert Street, approximately 100m north of Garfield Road West, approximately 300m south of the subject Land and "pretty much opposite Cherry Street". Significantly, the property is outside of the Environmental Conservation Zone (being the same underlying zoning with the subject Land being zoned 1(a) General Rural). The land in question was unimproved, timbered, and did not have a dwelling entitlement, being subject to the same minimum area requirement as the subject Land. It was first sold in April 2003 for $85,000 and then in August 2009 for $75,000 (this latter sale indicating $93 per m2). This property is generally comparable to the subject Land. For comparison with the Land, a discount for location is not necessary, but a discount must be applied for size. In my opinion, the minimum discount is 10%, indicating a value for the subject Land of $84 per m2, but possibly as high as 15%, indicating a value of $79 per m2. "Improved" Sales 69 Mr Dyson's analysis of "improved" sales shows "deduced" land values in respect of (1) a sale located diagonally opposite the subject Land, on the corner of Walker Parade and Robert Street (sale 2 in Annexure A) of $96 per m2, and (2) a sale at 46 Wealtheasy Road, Riverstone West (North East of the subject Land) (sale 5) of $93 per m2, which reflect the fact that a dwelling entitlement would lead to a higher land value in each case. 70 However, the process of arriving at a deduced land value (in respect of improved properties) introduces a subjective element, namely, the estimation of the added value of improvements. These deductions are often made difficult (or unreliable) by the fact that, in many cases, an internal inspection of those improvements is not possible. For this reason deduced land values must be treated with caution and preference always given to the analysis of vacant land sales. 71 Mr Hemmings submits that these two last-mentioned sales yield the "absolute maximum" value among possibly comparable sales, and, once adjustments for size, current potential and shape are made, the two sales are capable of demonstrating a value of $80 per m2 on the subject site (respondent's submissions at pars 73–75, and T4.3.10, p91, LL12–23). 72 Mr Hemmings also submits that another sale identified by Mr Dyson at 69 Milton Road (sale 10 in Annexure A) is further supporting evidence that the value of $80 per m2 for the subject Land is justifiable. This property (Lots 66-75 and 182-191, Sec 8 of DP 1229) was sold in February 2009 for $610,000, comprises 20 lots with a total area of 5,944 m2, is cleared of vegetation, of regular shape and is subject to the same zoning. This sale is relied upon, despite the fact it has an existing dwelling with development consent (and therefore not subject to the Interim Policy), because it is an open market transaction, of a site similar in size to the subject Land. 73 The difficulty of relying on the property at 69 Milton Road is that again a value cannot be easily ascribed to the improvements. Mr Dyson values the improvements at $115,000, but Mr Phippen suggests the improvements are worth nil, as there would be costs of up to $50,000 to remove the sheds and cottage (which costs may increase to $100,000, if there be asbestos in the buildings). Noting that caution should be applied to any per m2 rates showing "deduced" values, the court does not regard this sale as directly comparable, despite its similarities to the Land. The subject Land itself 74 As noted above ([7]), the applicant purchased the Land in April 2004 for $475,000 (a rate of $78 per m2). Although Mr Phippen told the court that this purchase was as a result of an anxious vendor selling at a discounted price (T3.3.10, p142, LL20-35), there is no evidence to confirm this assertion – aside from the fact that the applicant himself said so in the hardship application to the Minister (Exhibit R7). Without evidence to confirm the assertion, the sale of the subject Land in 2004 must be treated as a market sale, under the test outlined in Spencer, as quoted in Cook (above at [49]). Mr Philppen's evidence 75 The respondent submits (submissions, par 51) that "the Court would be dissatisfied with Mr Phippen's approach to the valuation task. He appears to have relied upon advice from his client rather than making independent investigation". I also note that, in relation to the sale of 43 Walker Street (diagonally opposite the subject Land), he based his evidence on his being "told it was a deceased estate with an absentee beneficiary that would have accepted whatever price because it was a boon (sic)." (See T3.3.10, p145, LL29-31). I found much of his "expert" evidence unsatisfactory (as I made plain at T4.3.10, p52, L37–p53, L3), but will turn now to consider some of it more specifically. Mr Phippen's other sales 76 The first sale relied upon by Mr Phippen is 93 Barton Street, Marsden Park (the Hill Property) (Sale 3 in Annexure A). The property was a parcel of four lots (Lots 29-32, Section 6 of DP 1146) giving a total of 1,618 m2. The property was compulsorily acquired for $385,000 (not including disturbance costs) in June 2009, but had been the subject of earlier litigation in this court, in which Bly C gave consent for the rebuilding of a dwelling: Hill v Blacktown City Council [2007] NSWLEC 108. Mr Dyson, who valued the Hill property for the acquiring authority, gave evidence that the valuation was conducted on the basis that it benefited from a dwelling entitlement. Although there was disagreement between the valuers as to the proper apportionment of the value of improvements to the property (Mr Phippen arrived at a rate of $239 per m2, as he holds the improvements are worth nil, whereas Mr Dyson deduces a rate of $173 per m2 after deductions on account of them), I have concluded that the property is not truly comparable, due to its dwelling entitlement. 77 Another sale relied upon by Mr Phippen was a property that was sold by the applicant in July 2004 for $300,000. Curiously, the applicant's purchaser resold the property on 22 October 2004 (following exchange on 31 August 2004) for $620,000. The property, Lots 16-19 & 35-38 Sec 5 in DP 1146 (sale 4), is located approximately 300 metres west of the subject property along Walker Parade, and is a parcel of eight lots of 404.7 m2 each (giving a total of 3,237 m2). Four of the lots front Loftus Street (presently an unmade road) whilst the other four front Park Road. Walker Parade abounds the northern boundary of the property. This section of Walker Parade is also sealed, but with no kerb and guttering, as is Park Road. The property slopes away from Walker Parade to the south with some areas low-lying and poorly drained. It is unimproved and does not have an entitlement to build a dwelling due to its small size. Mr Phippen opines that this is the property most comparable to the Land, but slightly inferior to it (Exhibit A2, p17). 78 Mr Dyson gave evidence that when first sold this property was listed with two different agents, and sold for the applicant's asking price of $300,000 (T3.3.10, p158, LL4-14), which reflects the market value of similar properties (such as the Milton Road sales). No explanation has been advanced for the doubling of its sale price within weeks. The first sale produces a per m2 rate of $93, and the second sale $193 per m2. Mr Phippen then adjusts the value at a rate of 5% per annum, and arrives at a per m2 rate of $232. 79 Both Mr Phippen and Mr Dyson accept that the inflated resale price might have been due to a speculative buyer (T4.3.10, p51, LL9), but the second sale simply does not accord with the market trends in the area for properties without dwelling entitlements. Mr Phippen was, however, comfortable to rely on the second sale as it accords with the Hill property, which I have already found not to be a good comparable, due to the dwelling entitlement. Without evidence that the resale is reflective of the market, it should not be relied upon. Whilst the first sale would attract more weight than the second, it is also not relied upon for the sake of caution, due to its having occurred four years prior to the subject acquisition. 80 Two other sales relied upon by Mr Phippen were lands at: Corner of Cleveland Road and Walker Parade, Riverstone West (Lots 1&2, Sec 9 of DP1229) (sale 6); and at Cleveland Road, Riverstone West (Lots 7-9, Sec 9 of DP 1229) (sale 7). 81 Both properties were only 594 m2 in area, and the sales evidence suggests that a higher price is commanded for smaller properties. Further, despite having what appear to be illegal dwellings, the prices paid for the properties indicate what buyers are willing to pay for lower priced dwellings in the Greater Sydney Region. Mr Phippen's valuation 82 Mr Phippen justifies his higher valuation ([54]) of the subject Land by reference to its having 15 lots. Rather than adopting Mr Dyson's analysis that a larger parcel will be valued at a lower rate per square metre than a smaller parcel of comparability, Mr Phippen says that the subject Land "on a lot basis … should have a similar potential" (T3.3.10, p152, L41), and that "the unsophisticated market out there buys, based on a number of lots, because they deem that to be … the guide for the potential that you can build a house on a block of land" (T3.3.10, p168, LL39-41), and values the subject Land on a per lot basis. However, the subject Land suffers from its comprising narrow allotments, which limit its development potential unless consolidated as prescribed in the DCP. Further, the per lot basis did not hold up in respect of calculations undertaken during the hearing in relation to Sale 4 (T4.3.10, p58, LL12-22). Conclusion on Market Value Claim 83 It should be clear from what I have written, that I prefer the valuation evidence of Mr Dyson over that of Mr Phippen. 84 In the absence of a "perfect" comparable sale, I accept the respondent's submission (par 75) that a value of $93 per m2 (cf. $80 at [71]-[72]) provides the absolute ceiling, having regard to properties that are both smaller and have the benefit of a legal dwelling, and I believe that the two properties at Riverstone provide a ceiling rate of $90 per m2 ([66]). They are further advanced in the process of realising residential development, so the court falls back on the evidence regarding the Milton Road and Riverstone properties (sales 8 & 9, and 12 & 13), which indicates a rate of $79-$84 per m2 ([64] and [68]). 85 Dixon J observed in Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358, at 374, that the court, in cases of doubt, should opt for the "more liberal estimate" (see also Cook at [39], quoted in [49] above). That Dixon dictum, according to the NSW Court of Appeal, is qualified by "the need to engage with and evaluate evidence and competing witnesses": Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [5] per Allsop P. 86 I, therefore conclude, following a thorough evaluation of the valuation evidence, that the applicant should be compensated for the market value of the Land, at the rate of $84 per m2, which brings the court to a market value, pursuant to s 56 of the JTC Act, at the date of its acquisition, of $509,922. Disturbance Claim 87 The applicant claims disturbance costs in respect of legal and valuation fees under ss 59(a) and 59(b) of the JTC Act respectively, in the amounts of $1,000 and $1,400. 88 As noted in [19], s 26 of the JTC Act indicates that such items "need not be taken into account … despite anything to the contrary" in the relevant part of the Act. 89 The applicant submits that the words "need not" in s 26 give the Court, on appeal, a discretion as to whether such compensation be paid and that such a discretion to pay the claim is appropriate in the circumstances. 90 In Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175; (2006) 146 LGERA 249, Talbot J found (at [108]) that the words "need not" should not be read as "shall not". 91 In Goodman v Roads and Traffic Authority [2000] NSWLEC 185, Talbot J noted (at [46]–[47]) that s 26 afforded a discretion which "… will depend upon the circumstances of each case before compensation for those additional matters will be awarded to an owner who requires the public authority to acquire the land on grounds of hardship". 92 Mr Hemmings submits that the discretion should not be applied in favour of the applicant because it has already been exercised by the Minister, when he acceded to a request from the applicant for an advance payment of $3,000 in respect of valuation fees, more than would have been available in a market transaction. The court accepts that submission. 93 Accordingly the court rejects the applicant's claim for disturbance (beyond what the Minister has paid). Conclusion 94 For the reasons set out above, the orders of the court are: 1. The applicant's claim for market value compensation under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of Lots 14-19, 29-33 and 35-38 of Section 8 in Deposited Plan 1146 is determined in the amount of $509,922; 2. The applicant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is refused; 3. The costs of the proceedings are reserved; 4. The exhibits are returned. Annexure A – Comparable sales (i) The following sales were considered by the valuers in their joint report to be their most relevant comparables ( Exhibit A6 ). (ii) Each sale was inspected. (iii) With the exception of sale number 11 all of the sales comprise " Scheduled Lands" (iv) With the exception of sale number 3 , the zoning at the date of each transaction was 1 (a) General Rural . (v) All sales are subject to the minimum area requirement for the construction of a dwelling, namely 10 ha, with the exception of sale number 11 where the minimum area is 4000 square metres (vi) Pertinent details of each sale (not in order of importance or relevance) are set out hereunder. 1.The Acquired Land Details of the purchase by the applicants are set out in the judgment under this heading. 2. 43 Walker Street, Riverstone West Date of Sale – June 2009 Sale price – $430,000 The Land – 4047 square metres subdivided into two equal sized lots being lots 1 and 2 of DP 10319. The land is level. Both streets are sealed but absent kerbing and guttering. Improvements – Dwelling accepted as legal improvements to the land by resolution of the Blacktown City Council of 7 September 1994. Weatherboard cottage (which faces Walker Parade) and some shedding. Mr Dyson valued the improvements at $40,000 which figure is accepted. Features and remarks – Rectangular shaped parcel located diagonally opposite the subject property on the corner of Walker Parade and Robert Street. Deduced land value by Mr Dyson is $390,000 which is the equivalent of $96 per square metre. 3. 93 Barton Street Marsden Park Date of acquisition – June 2009 Acquisition price – $385,000 (which figure the valuers agreed excluded disturbance costs) Zoning – Environment Conservation Zone but acquired by the Minister Administering the Environmental and Planning Assessment Act on the basis of the underlying zoning of 1 (a) General Rural. The land – 1618 square metres subdivided in 4 equal size lots each of 404.7 square metres being lots 29-32, section 6 DP 1146. The land falls slightly to a low area at the rear. Street frontage approximately 40 m. Barton Street is sealed but absent kerbing and guttering. Improvements – The improvements were accepted as legal improvements by resolution of Blacktown City Council on 7 September 1994. Some years later, perhaps in 2004, the owner of this property, Mr William Hill, sought development approval from the Council to replace an existing residence with a new single storey detached dwelling . The application was refused. Mr Hill appealed to The Land and Environment Court . Bly C upheld the appeal and granted consent with the following condition "The landowner enter into a deed of release with the Department of Planning prohibiting the land owner and their successors in title from claiming compensation for the works associated with this development consent prior to the issue of a construction certificate to the extent that the works increase the value of the land and its improvements over and above its present value." Hill v Blacktown City Council [2007] NSWLEC 108 at [52] . The new building was never constructed but it would seem certain improvements were subsequently made to the existing home. The structure had been demolished at time of inspection but Mr Dyson (who inspected and valued the property on behalf of the acquiring authority prior to its demolition) gave evidence was that it comprised a cement rendered brick building containing at least one bedroom , living room , kitchen and bathroom, detached carport, a garden storage shed, aboveground swimming pool and other sheds. All improvements were vandalised shortly after the acquisition. Mr Phippen inspected the improvements in that state and considered them to have no value. Features and remarks – A rectangular shaped parcel located on the western side of Barton Street within 120 m, in a direct line, from the subject property and 60 m from the corner of Walker Parade and Robert Street. Deduced land value by Mr Dyson, $173 per square metre. Deduced land value by Mr Phippen, $239 per square metre. 4. Corner of Park Road and Walker Parade, Marsden Park Dates of sales – July 2004 and 31 August 2004 Sale prices – $300,000 and $620,000. A local agent was involved in the July sale but no agent or solicitor was involved in the August sale. Prior to the August sale some land clearing had been undertaken. The land – 3237 square metres. Subdivided into 8 lots each of 404.7 square metres being lots 16-19 and 35-38, section 5 DP 1146. The land falls generally from Walker Parade to the south and includes, on the basis of the vegetation, some low-lying and a poorly drained land. Four lots front Loftus Street which is parallel to Park Road. Improvements – Nil. The land does not have a dwelling entitlement. Features and remarks – Both Walker Parade and Park Road are sealed but absent kerbing and guttering. Loftus Street is completely unmade. Deduced land value – $93 per square metre in respect of the first sale and $192 per square metre in respect of the second sale. The vendors in the first sale are the applicants in these proceedings. No evidence was adduced indicating that the first sale was anything but at arm's length. However, the second sale does appear to be out of line. 5. 46 Wealtheasy Road Riverstone West Date of sale – August 2008 Sale price – $450,000 The land – 4047 Square Metres. Subdivided into two lots being lots 46 and 47 DP 10319. The land is level. Improvements – Brick residence, said to contain three bedrooms with shed at rear. Dwelling accepted as legal improvements to the land by resolution of the Blacktown City Council of 7 September 1994. Improvements valued by Mr Dyson at $73,600 which is accepted. Features and remarks – Located on the northern side of Wealtheasy Road which is sealed but absent kerbing and guttering. Deduced land value by Mr Dyson – $93 per square metre. 6. Corner of Cleveland Road and Walker Parade Riverstone West Date of sale – April 2008 Sale price – $97,500 The land – 594 square metres comprising two equal sized lots, namely, lots 1 and 2, section 9, DP 1229. The land is level. Improvements – Two very poor quality and illegal buildings said to be transportable with colour bonded steel boundary fencing valued at $45,000 by Mr Dyson which figure is accepted. Features and remarks – Both Cleveland Road and Walker Parade are sealed but absent kerbing and guttering. The land does not have a dwelling entitlement but from the streets it is quite apparent that the property has been occupied for residential purposes for some years. Deduced land value – Mr Phippen assigns no value to the improvements and arrives at a deduced land value of $164 per square metre while Mr Dyson, after making deduction for improvements arrives at a deduced land value of $88 per square metre. 7. Cleveland Road, Riverstone West Date of sales – March 2007 and December 2009 Sale prices –$87,500 and $190,000 The land – 594 square metres comprising two equal sized lots being lots 7 and 8, section 9 DP 1229. The land is level. Improvements – A small house said to be transportable which, in the case of the March 2007 sale, may have been the subject of a separate contract which may explain the substantial difference between the two sale prices or, alternatively, the improvements may not have been constructed at this time. The residence appears to be in good condition. The land does not have a dwelling entitlement and the house must be treated as being illegal. Mr Phippen makes no allowance for the value of improvements while Mr Dyson values the improvements at $40,000. Features and remarks – Adjoins sale number six. Cleveland Road is sealed but absent kerbing and guttering. Deduced Land Value – Mr Phippen gives $147 per square metre in March 2007 and $320 per square metre in December 2009. Mr Dyson after making allowance for the value of improvements gives a value of $80 per square metre. 8. Milton Road Riverstone West Date of sale – November 2007 Sale price – $111,000 The land – 1189 square metres comprising four lots each of 297 square metres (lots 55, 56, 201 and 202, section 8 DP 1229). The two lots which front Milton Road have a total frontage of 14 m. The two lots at the rear have an equal frontage to the unmade Chaucer St. Improvements – Nil. The land does not having a have a building entitlement. Features and remarks – Rectangular shaped parcel located in a low-lying section of Milton Road located north of Marsden Lane. Milton Road is sealed but absent kerbing and guttering. An agent was involved in the sale. Land value by Mr Dyson – $93 per square metre 9. Milton Road Riverstone West Date of sale – September 2007 Sale price – $85,000 The land – 853.5 square metres comprising three lots with an average area of 284.3 square metres (lots 54-56, section 7 DP 1229). The land is level and does not have a dwelling entitlement. Improvements – A quite impressive, but illegal weatherboard house and garage has been constructed since the date of sale. Features and remarks – Located opposite sale number 8. Milton Road is sealed but absent kerbing and guttering. An agent was involved in the sale. Land value by Mr Dyson – $99 per square metre 10. 69 Milton Road Riverstone West Date of sale – February 2009 Sale price – $610,000 The land – 5944 square metres comprising 20 lots, namely, 66-75 and 182-191, section 8 DP 1229 with 10 lots having frontage to Milton Road and 10 lots having frontage to Chaucer Rd at the rear. The land is somewhat elevated above adjacent properties but it is comparatively level at the Milton road frontage. Milton Road is sealed but absent kerbing and guttering. Exhibit A 12 indicates that Chaucer Road is not made and would appear to be little more than a track. Improvements – A 4-bedroom brick home with tiled roof. Additional improvements include four industrial buildings and a timber framed building clad with fibro sheeting used for residential purposes. The industrial buildings stand immediately adjacent to the rear boundary. The land has a dwelling entitlement and enjoys existing use rights represented by the buildings. Mr Dyson assigns a value $115,000 to these improvements. Features and remarks – This sale would appear to be significant because of its size and date of sale. The land is only 126 square metres smaller than the subject property and the sale took place two months after the date of acquisition. However, as a comparable it suffers from the fact that the land has a dwelling entitlement and existing use rights while analysis of the sale is made difficult because of the need to assign a value to the substantial improvements. It is located on the western side of Milton Road to the north of sale number 8. Deduced land value – After allowing for the value of improvements Mr Dyson concludes this to be $83 per square metre. Mr Phippen expressed the view that even though the property was marketed by an agent it was a forced sale and thus should be disregarded for this reason. Secondly, he considers that the sale is out of line. 11. 14 Fermoy Road, Marsden Park Date of sale – January 2008 Sale price – $2,812,500 The land – 25,290 square metres (2.529 ha) being lot 17 DP 1358. A rectangular shaped parcel which rises from Street frontage to the rear. The land has a building entitlement and is not "Scheduled Lands". Improvements – Brick residence located at the western end of the property close to Garfield Rd West. Mr Phippen assigns a value of $150,000 to the improvements. Features and remarks – The land was purchased by the adjoining owner, on two sides, (Blacktown Council) for what was described as an undisclosed "strategic purpose". Mr Phippen's evidence was that the sale price was supported by valuations prepared by two separate valuers. The property was purchased following an approach made to the then owner by the eventual purchaser in an off market transaction and was sold subject to a six-month option. Fermoy Road is sealed but absent kerbing and guttering. Deduced land value – Mr Phippen $105 per square metre with no allowance being made for the six-month option. 12. Princes Street Riverstone Date of sale – September 2008 Sale price – $102,000 The Land – 1112.8 square metres comprising two lots, namely, lots 16 and 17, section 23, DP 1480. Only one lot has Princes Street frontage. The land falls from street frontage to the rear. At the date of sale land did not have a building entitlement but had been released, although not rezoned, for urban development. It is anticipated that rezoning will occur out in 2010. Improvements – Nil Features and remarks – Princes Street is not sealed beyond William Street and from there to the subject property could be described as a poor dirt road. In fact, access to the Street frontage of the property along this dirt road was not possible. Without the benefit of inspection it would appear that the land is comparatively level at street frontage but falls to the rear. Circumstances relating to the release and proposed rezoning of the land are entirely different to the subject property. Land on the southern side of Hamilton St opposite Princes Street was developed many years ago for industrial purposes. Distance to Riverstone Railway Station, local shopping facilities, primary and high schools is less than half that of the subject property. Land value by Mr Dyson – $92 per square metre 13. Sydney Street Riverstone Date of Sale – May 2008 Sale Price – $100,000 The land – 1112.8 square metres comprising two lots, namely, lots 34 and 35, section 17, DP 1480. Only one lot has Sydney Street frontage. The land falls to the rear. At the date of sale the land did not have a building entitlement but had been released, although not rezoned, for urban development. It is anticipated that rezoning will occur in 2010. Improvements – A temporary residential building, some sheds and boundary fencing has been erected on the land subsequent to the date of sale. Features and remarks – Sydney Street is not sealed. It can be described as a poor dirt road. This property is at least 50% closer to Hamilton St than sale number 12 and in addition, is also substantially closer to Riverstone railway station. Circumstances relating to the release and proposed rezoning of the land are entirely different to the subject property. Land on the southern side of the intersection of Sydney Street and Hamilton St was developed some years ago for low-density housing. Distance to Riverstone Railway Station, local shopping facilities, primary and high schools is considerably less than that of the subject property. Land value by Mr Dyson – $90 per square metre DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.