Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391

New South Wales Court of Appeal

CITATION: Sydney Water Corporation v Caruso and Ors [2009] NSWCA 391

HEARING DATE(S): 6 October 2009

JUDGMENT DATE: 3 December 2009

JUDGMENT OF: Allsop P at 1; Tobias JA at 30; Sackville AJA at 190

DECISION: Appeal and cross-appeal dismissed with costs

CATCHWORDS: REAL PROPERTY – Compulsory Acquisition of land – Compensation – Assessment – Market value – Injurious affection or betterment of adjoining property – Whether increase in value of residue land was by reason of the carrying out of or proposal to carry out the public purpose for which land was acquired - Highest and best use – Acquired land located in flood zone – Council had adopted policies to use land for trunk drainage scheme involving detention basins – Whether hypothetical purchaser would be prepared to add value on the basis that a cut and fill scheme was likely to be approved by the Council and implemented so to enable development on flood affected land - Error on a question of law – Whether error of law constituted by statement of primary judge that where expert evidence is conflicting, doubts are to be resolved in favour of claimant – Whether finding vitiated by error of law - Whether an inherent characteristic of the acquired land was that it be used only for trunk drainage - Whether primary judge erred in determining underlying zoning of acquired land - Stamp duty – Claim under s 55(d) and s 59(d) of Land Acquisition (Just Terms Compensation) Act 1991 for loss attributable to disturbance due to stamp duty costs incurred in connection with purchase of a replacement property – Effect of s 61 of Land Acquisition (Just Terms Compensation) Act 1991 on stamp duty claim where market value is assessed on basis of potential use that is more valuable than actual use of land prior to acquisition