El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979

(2014) 199 LGERA 198; [2014] NSWCA 33

NSW Court of Appeal

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Interrogate

Catchwords

1. Compulsory Acquisition
2. › Compensation
3. › Loss attributable to disturbance
4. › Relocation costs
5. › Whether s 61 of the Land Acquisition (Just Terms Compensation) Act 1991 precluded compensation
6. › Proper construction of s 61
7. › Whether market value assessed 'on the basis' of potential use other than current use
8. › Distinction between market value influenced by potential use and market value based on potential use
9. › Temporal proximity of potential use
10. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 56, 59, 61
1. Compulsory Acquisition
2. › Compensation
3. › Loss attributable to disturbance
4. › Lost profits
5. › Number of years of lost profits allowable
6. › Whether finding of one year to find replacement property had evidentiary foundation
7. › Constructive failure to exercise jurisdiction
8. › Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d), 59(f)
1. Appeal
2. › Appeal on question of law
3. › Land and Environment Court
4. › Error of valuation principle as error of law
5. › Finding without evidentiary foundation as error of law
6. › Constructive failure to exercise jurisdiction
7. › Land and Environment Court Act 1979 (NSW), s 57(1)

Quick Take

Section 61 of the Land Acquisition (Just Terms Compensation) Act 1991 requires that the potential use be the fundamental foundation of the court's assessment of market value, not merely an influence on it. Where land is not ripe for development for the alternative purpose and the market value is assessed primarily on the basis of the current use with an addition for hope value, s 61 is not engaged and disturbance costs including relocation costs remain compensable. The court determining compensation must identify the basis of its own assessment of market value, not the basis of the valuers' assessments. The potential use must be characterised at an appropriate level of generality — generic descriptions such as 'urban development' or 'town centre' are insufficient.