PORT STEPHENS COUNCIL v FIDLER as Trustee for HOWSHIP HOLDINGS PTY LIMITED [1999] NSWCA 281

Reported Decision : 103 LGERA 335

New South Wales Court of Appeal CITATION : PORT STEPHENS COUNCIL v FIDLER as Trustee for HOWSHIP HOLDINGS PTY LIMITED [1999] NSWCA 281 FILE NUMBER(S) : CA 40710/98 HEARING DATE(S) : 26 July 1999 JUDGMENT DATE : 3 August 1999

PARTIES : PORT STEPHENS COUNCIL v Tony FIDLER as Trustee for HOWSHIP HOLDINGS PTY LIMITED JUDGMENT OF : Mason P at 1; Stein JA at 2; Davies AJA at 11

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 30156/97 LOWER COURT JUDICIAL OFFICER : Cowdroy AJ

COUNSEL : J F Kildea (Appellant) W R Davison SC (Respondent) SOLICITORS : Trevor Dunn Solicitors (Appellant) Clayton Utz (Respondent) CATCHWORDS : LAND AND ENVIRONMENT COURT - Class 3 - compulsory acquisition of land - Land Acquisition (Just Terms Compensation) Act 1991 - minimal residential subdivision - (implied) rejection of Council's valuation - investigation by trial judge of hypothetical value of subject land - whether appropriate - valuation principle - cross-appeal - Pointe Gourde principle ACTS CITED : Land Acquisition (Just Terms Compensation) Act 1991 s 56(1)(a) Land and Environment Court Act 1979, s 57 Yates Property Corporation v Darling Harbour Authority (1991) 24 NSWLR 156 CASES CITED: Turner v Minister of Public Instruction (1956) 95 CLR 245 Electricity Commission of NSW v Arrow (1994) 85 LGERA 418 Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 DECISION : Appeal allowed; Award of compensation set aside; Remit the proceedings to the Land and Environment Court to determine what compensation should be awarded for the minimum residential subdivision; The respondent to pay the appellant's costs of the appeal and have a certificate under the Suitors' Fund Act, 1951 if otherwise entitled; The order for costs made in the Land and Environment Court be set aside and the costs of the trial at first instance be determined by the Land and Environment Court on the remitter; Cross-appeal dismissed with costs.