Tolson v Roads and Maritime Services

(2014) 201 LGERA 367; [2014] NSWCA 161

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Acquisition of land
3. › Compensation
4. › Increase in value of remaining land after acquisition
5. › Whether betterment under s 55(f) may be offset against market value of acquired land under s 55(a)
6. › Whether market value constitutes a guaranteed minimum
7. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56
1. Environment and Planning
2. › Acquisition of land
3. › Compensation
4. › Loss attributable to disturbance
5. › Whether disturbance costs under s 55(d) may be offset against betterment under s 55(f)
6. › Different nature of disturbance costs from land value matters
7. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59
1. Environment and Planning
2. › Acquisition of land
3. › Compensation
4. › Whether residual discretion exists under s 54 to ensure just compensation independently of s 55
5. › Just compensation override
6. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55
1. Appeal
2. › Error of law
3. › Challenge to fact-finding exercise
4. › Whether failure to provide reasons for preferring expert evidence constitutes error of law
5. › Whether misconception of facts demonstrates failure to exercise jurisdiction
6. › Land and Environment Court Act 1979 (NSW), s 57

Quick Take

Under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), betterment (increased value of retained land from the public purpose) may be offset against the market value of acquired land under s 55(a), even to the point of reducing compensation for land value to nil. However, disturbance costs under s 55(d) and solatium under s 55(e) are of a different nature from land value matters and cannot be offset against betterment. The dicta of Hodgson JA in AMP Capital Investors Ltd suggesting market value is a guaranteed minimum should not be followed. The concept of a 'just compensation override' under s 54(1) has no basis in the statutory language of the NSW Act, though the issue was left for final determination in a case where it squarely arises.