Doueihi & Anor v Roads & Traffic Authority of NSW [2005] NSWCA 201

New South Wales Court of Appeal

CITATION: Doueihi & Anor v Roads & Traffic Authority of NSW [2005] NSWCA 201

HEARING DATE(S): Thursday 26 May 2005

JUDGMENT DATE: 17 June 2005

JUDGMENT OF: Mason P at 1; Tobias JA at 2; Bryson JA at 58

DECISION: (1) Leave to appeal against the orders made by Cowdroy J on 12 March 2004 be refused; (2) The appeal against Order 1 made by Cowdroy J on 5 March 2004 be dismissed; (3) The appellants to pay the respondent's costs of the appeal and the application for leave to appeal

CATCHWORDS: LAND AND ENVIRONMENT - Compulsory acquisition of land - Assessment of compensation in respect of value of business conducted upon land - Unauthorised use of part of the land for the purpose of the business - Highest and best use to which resumed land could be adapted - Whether there was a chance that Council would grant consent for totality of existing business to be lawfully conducted upon land - Whether open to Court to determine this question in absence of evidence from Council - Relevance of Land Acquisition (Just Terms Compensation) Act 1991 s 56(1)(c) - COSTS - Offer of compromise made for amount in excess of amount ultimately awarded by Court - Whether Court should exercise discretion to order otherwise than in accordance with Supreme Court Rules Pt 52A r 22(6)

Roads Act 1993 Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Rules 1996 Supreme Court Rules 1970

Lemworth Pty Limited v Liverpool City Council (2001) 53 NSWLR 371 CASES CITED: Royal Sydney Golf Club v Federal Commissioner of Taxation (1957) 97 CLR 379