Kirela Pty Ltd v Minister Administering the Environmental Planning and Assessment ACT 1979

[2005] NSWCA 108

NSW Court of Appeal

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Interrogate

Catchwords

1. Compulsory Acquisition
2. › Compensation
3. › Market value
4. › Development potential of acquired land
5. › Whether hypothetical purchaser would expect exemption from existing development control plans
6. › Whether trial judge failed to consider all relevant evidence
7. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56
1. Compulsory Acquisition
2. › Compensation
3. › Loss attributable to disturbance
4. › Town planner and surveyor fees
5. › Whether fees constituted valuation fees under s 59(b)
6. › Whether fees related to actual use of land under s 59(f)
7. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(b), (f)
1. Practice and Procedure
2. › Procedural fairness
3. › Post-hearing submission received by trial judge
4. › Whether appellant denied opportunity to respond
5. › Whether appellate relief enlivened where full opportunity to re-argue given

Quick Take

In compulsory acquisition cases, a claimant's valuation based on development potential that depends on obtaining exemption from existing development control plans will be rejected where the evidence does not establish on the balance of probabilities that such exemption would have been granted. Town planning and surveyor fees incurred to assess development potential of acquired land are not recoverable as 'loss attributable to disturbance' under s 59 of the Land Acquisition (Just Terms Compensation) Act 1991 where they do not constitute valuation fees under s 59(b) and do not relate to the actual use of the land under s 59(f).