Michele Melino and three others in their capacity as executors of the Estate of the late Costanzo Melino v Roads and Maritime Services [2017] NSWLEC 118

Land and Environment Court New South Wales

Medium Neutral Citation: Michele Melino and three others in their capacity as executors of the Estate of the late Costanzo Melino v Roads and Maritime Services [2017] NSWLEC 118 Hearing dates: 24, 25, 26 and 27 July; 4 September 2017 Decision date: 14 September 2017 Jurisdiction: Class 3 Before: Moore J Decision: See directions at [239] Catchwords: RESUMPTION COMPENSATION - injurious affection - claim for injurious affection to land used for sugarcane production – applicants' valuer considered injurious affection to be at the same rate across the whole of the eastern portion of the landholding – respondent's valuer agreed with injurious affection rate for portion of the eastern landholding but disagreed about the land which was cane fields or which was wetland – respondent's valuer contended that there was no injurious affection to these elements - consideration of respondent's valuer's comparative sales evidence concerning acquisition of sugarcane production land - evidence discloses valuation element in those sales for ambience and outlook - ambience and outlook of the cane fields in the acquisition affected lands impacted by the road project - injurious affection established for the cane fields - injurious affection at half the agreed rate for the agreed lands - no injurious affection to the lands classified as wetlands RESUMPTION COMPENSATION - injurious affection - injurious affection claim for western element of the applicants landholding - statutory requirement for land to adjoining acquired land - western element of landholding separated from eastern element of landholding by 330 m - western element functionally connected to eastern element by "grace and favour" track through adjoining property - track used for human and cattle movement between two landholding elements - two landholding elements also connected by an impassable paper road - having regard to the landholding and land use pattern, the western element of the landholding did not adjoining the eastern portion - claim for injurious affection to the western element of the landholding rejected RESUMPTION COMPENSATION - injurious affection - consideration of the extent of injurious affection to the western element of the landholding if it should be regarded as adjoining the eastern element for statutory purposes - competing evidence of the valuers - evidence of the respondent's valuer to be preferred - no injurious affection to the western element of the landholding RESUMPTION COMPENSATION - claim for compensation to permit construction of a new dwelling, new cattle yards and new Colorbond shed - proposed structures to replace those acquired by the respondent and demolished as part of the compulsory acquisition - compensation for acquired land included full value compensation for fixtures acquired and demolished - no basis for claim - claim rejected RESUMPTION COMPENSATION - claim for provision of services and improved access to proposed new dwelling and constructed replacement Colorbond shed - provision of services and access necessary as a consequence of the need to relocate dwelling and farm management facilities as a consequence of the acquisition - compensation properly claimable under the statutory disturbance provisions - claim allowed RESUMPTION COMPENSATION - separate basis for consideration of improved access to Colorbond shed for farm management purposes - claim for access maintainable on a separate basis RESUMPTION COMPENSATION - claim for cost of investigation of removing existing dwelling to new location on the retained property – dwelling not moved – costs not claimable RESUMPTION COMPENSATION - claim for cost of plans and associated statutory and administrative fees - claim separate from the claim for the cost of the new dwelling - proper basis to claim these costs - claim allowed. RESUMPTION COMPENSATION - claim for lost rent - claim for reduction in rent because of proposed acquisition of dwelling for the public purpose - claim for compensation for reduction in rent valid - claimed reduction to be adjusted to ensure compensation was for the net loss of rent after having regard to past gross rent including agent's fees and commission - claim for lost rent after acquisition for period up to proposed resumed occupation of dwelling by owner - income from resumed dwelling not compensable as acquisition price encompasses all future income potential from acquired land and fixtures thereon - second element of claim (for future potential income foregone) rejected. RESUMPTION COMPENSATION - costs of loan establishment and drawdown interest for construction of replacement facilities on retained property - statutory regime provided for the payment of interest - statutory regime is exhaustive - interest and loan establishment fee claim rejected Legislation Cited: Ballina Local Environmental Plan 2012 Civil Procedure Act 2005, s 63(1)(a) Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms) Act 1991, ss 49, 55 and 59(1) Land Acquisition (Just Terms Compensation) Amendment Act 2016 Land Acquisition (Just Terms Compensation) Bill 1991 Land Acquisition (Just Terms Compensation) Bill (No 2) 1991 Cases Cited: Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Konduru T/as Warringah Road Family Medical Centre v Roads and Maritime Services; Konduru v Roads and Maritime Services; Konduru v Roads and Maritime Services [2017] NSWLEC 36 McDonald v Roads & Traffic Authority of NSW (2009) 169 LGERA 352; [2009] NSWLEC 105 Moloney v Roads and Maritime Services (No 2) [2017] NSWLEC 68 Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 Roads & Traffic Authority of NSW v McDonald (2010) 175 LGERA 276; [2010] NSWCA 236 Speter v Roads and Maritime Services [2016] NSWLEC 128 Sydney Water Corporation v Caruso [2009] NSWCA 391 Tolson v Roads and Maritime Services (2014) 201 LGERA 367; [2014] NSWCA 161 Category: Principal judgment Parties: Michele Antonio Melino (First Applicant) Tonina Maria Melino (Second Applicant) Domenica Margherita Fox (Third Applicant) Anna Colomba Bufalino (Fourth Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: Mr I Hemmings SC/Ms A Pearman, barrister (Applicants) Dr S Pritchard SC/Mr N Eastman, barrister (Respondent)