(1) In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.

(2) Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on -

(a) in the case of an interest taken for a railway or other work authorised by a special Act - the first day of the session of Parliament in which the Act was introduced; or

(b) in the case of an interest taken by agreement under section 168 - the date of the execution of the agreement, unless the agreement provides otherwise; or

(c) in the case of an interest to which paragraphs (a) and (b) do not apply - the date of the taking,

and discounting any increase or decrease in value attributable to the proposed public work.

(3) If a notice of intention was registered in relation to the interest on a date before the date referred to in subsection (2), and a transaction relating to the land made between those dates affected the value of the interest, regard may be had to the value of the interest assessed as at the date referred to in subsection (2) and discounting the effect of the transaction.

(4) No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of a notice of intention.

(5) Subject to subsection (4), in the case of a railway or other work authorised by a special Act, the value of any improvements made after the first day of the session of Parliament in which the Act was introduced but before the registration of the taking order are to be allowed, not exceeding their actual cost.

(6) Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of -

(c) the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or

(d) architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or

(e) any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.

(7) If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant -

(a) due to the severing of the land taken from that adjoining land; or

(b) due to a reduction of the value of that adjoining land,

however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).

(8) If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.

(9) The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.

(10) If the interest in land taken produces any rent or profits, then at the option of the acquiring authority, either -

(a) the amount of the rent or profits received by the acquiring authority, less the reasonable cost of collection, for the period from the date of registration of the taking order to the date of the payment of compensation or the date of the award, whichever is earlier, is to be added to the compensation payable; or

(b) interest is to be paid on the amount of compensation for the same period, at the rate of 6% per annum, or such higher rate as the acquiring authority, the court, or the State Administrative Tribunal considers adequate having regard to the circumstances of each case,

but if the interest in land ceases to produce any rent or profits after the taking, interest is to be paid in accordance with paragraph (b).

(11) If the interest in land taken does not produce any rents or profits, interest is to be paid at the rate prescribed under section 8(1)(a) of the Civil Judgments Enforcement Act 2004 as at the date of entry for construction or carrying out of the work or the date of registration of the taking order, whichever is earlier, and the interest is payable from -

(a) the date of the service of the claim on the acquiring authority; or

(b) the date of entry for construction or carrying out of the work,

(c) when the offer was served on the claimant, if the compensation awarded by the State Administrative Tribunal or the court of competent jurisdiction is not more than the amount offered by the acquiring authority; or

(d) of settlement of the claim, in any other case[.]

1. The Supreme Court has now, on a number of occasions, set out the principles that apply in the exercise of assessing compensation for the acquisition of an interest in land pursuant to s 241 of the LA Act.
2. Firstly, Beech J (as his Honour then was) in McKay v Commissioner of Main Roads [No 7] (McKay),[22] set out the relevant principles completely and authoritatively.
3. Secondly, Kenneth Martin J in Italiano v Water Corporation [No 2],[23] set out an extensive explanation of, at least some, of these relevant principles and repeated this exercise more recently in DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority (DBW).[24]
4. Thirdly, Edelman J in Lenz Nominees Pty Ltd v Commissioner of Main Roads (Lenz),[25] set out what he terms as a number of 'basic legal propositions' being 'propositions which are generally relevant to the determination of the valuation of' interests in land taken for the purposes of the LA Act. It is not necessary to set out all of these statements of principle.
5. For the purposes of these reasons, I extract the following statements from Lenz:

(1) Assessment of compensation must be conducted with regard only to the matters contained in s 241 of the LA Act.[26]

(2) No regard is to be had to the value of any improvements made without the consent of the Minister after the registration of the notice of intention on 13 December 2005.[27]

(3) The purpose of the assessment of compensation for resumed land is to ensure that the person to be compensated is given a full money equivalent of his or her loss.[28]

(4) Compensation for the value of the resumed land should be assessed in a theoretical, albeit artificial, fashion by assuming that the land had been sold on the date of its acquisition by the resuming authority.[29]

(5) This theoretical approach to assess compensation for the resumption of the land requires the court to identify the price which would be paid under a hypothetical bargain between a person 'desiring to buy the land ... to a vendor willing to sell it for a fair price but not desirous to sell'.[30]

(6) In assessing the price payable in this hypothetical sale, it must be assumed that the hypothetical purchaser would be purchasing the land for the most advantageous use for which it is adapted.[31] This 'most advantageous use' is commonly referred to as the 'highest and best use' of the land.[32]

(7) The highest and best use of the land may be a single use, or it may be a package of alternative uses.[33] However, in the instance of a package of alternative uses, care must be taken to ensure that those alternative uses are not inconsistent.[34]

(8) The hypothetical purchaser must be assumed to have regard to all relevant available information, and to be cognisant of all circumstances which might affect the value of the land.[35]

(10) However, the hypothetical sale and the determination of the value of the plaintiff's interest in the land taken, and the compensation payable to the plaintiff must be conducted by 'discounting any increase or decrease in value attributable to the proposed public work'.[36]

(11) In conducting the valuation exercise it has been iterated and reiterated that a court must not usurp the skill and experience of a valuer. In other words, the court must not allow itself to become a 'third valuer'.[37]

(12) However, the prohibition against a court becoming a 'third valuer' does not, and cannot, prevent the court from making its own adjustments to the valuations, particularly where a valuer's adjustments to comparative sales are not wholly accepted. Judicial adjustment to the valuation may sometimes be unavoidable because a court cannot adopt adjustments which it has rejected; the court would otherwise be left with no basis to assess the value of the subject land.[38]

(13) If any doubts exist in assessing the compensation payable, then those doubts should be resolved by a liberal estimate in favour of the dispossessed owner.[39]

1. In this matter, the parties have both filed documentary evidence on which they rely as well as witness statements. The following witnesses were called:

(d) Tim Reynolds, acoustic engineer in relation to rail noise; and

(a) Daniel Lloyd, acoustic engineer in relation to road noise;

1. Mr Avila's family acquired the Land in approximately 1995. His family planted native vegetation, in particular, trees at the southern and eastern boundaries of the Land to screen both Thomas Road and the railway reserve. He and his wife then purchased the Land in 2002 and erected a single dwelling upon it. Over the years, the trees have matured, and some now exceed 30, even 40, metres in height.
2. After moving into his house, Mr Avila says he became aware of what he terms 'gully winds' affecting the local area. Some of these gully winds were, he says, so intense as to knock over a brick wall during the dwelling's construction. Each and every year, the gully winds 'batter' the Land. Trees have been uprooted and large branches have broken off. Trees also have a lean as a result of these winds. The gully winds can be felt most acutely at night and early in the morning between November to March. They blow from the east-south-east.
3. Despite attempts to mitigate the impact of these winds, it was only when the trees planted in the 1990s reached a sufficient height that the gully winds dissipated in 2015-2016. Mr Avila says he noticed 'a real and noticeably diminished impact'.[40] The cracking within the dwelling was happening less often. In 2016, the dwelling was repaired and was brought up to being in an excellent state of repair. He says that can only be attributed to the mature trees shielding the dwelling from the gully winds.
4. However, the acquisition of the Taken Land, and the removal of the trees, has resulted in the damaging gully winds again being an issue. Mr Avila says that from November to February the dwelling experiences 'gale-force' winds which are distressing and make sleep difficult.[41]
5. Mr Avila says the trees were an important asset that 'have been taken away by [the Respondent]'.
6. Mr Avila also refers to the pool and cabana/studio he erected on the Land between 2017 to 2021 as well as extensive landscaping. The total cost of these improvements exceeds $500,000. The design includes a 3­metre-high wall which was built to add protection to the cabana/studio and the original dwelling. Walls were 300 millimetres solid rammed earth to mitigate the impacts of the gully winds.
7. Mr Avila outlines that the Respondent conducted a pre-construction dilapidation survey of the Land in 2021 which noted the substantial cracking in one room (which was not repaired in 2016) only. However, since that time, there are now cracks in the lounge room, bedrooms, entryway and living room and the cornice joints are separating. This is, he says, due to the removal of the wind break provided by the trees, especially in the south-east corner of the Land. Mr Avila says he, and his wife, are enduring sleepless nights as a result of the gully winds battering the home, shaking windows and felling trees.[42] The cabana also appears to be affected as ceiling panels and fixing (screws) have been dislodged.
8. The long, tall concrete wall associated with the Public Work is not at the same height as the trees that were removed and thus, the Residual Land is more exposed than it was prior to the acquisition of the Taken Land. Trees remaining on the Residual Land have also fallen over, or have had branches fall off, which may be caused by intrusion on their root zones.
9. The impacts from the gully winds have increased since the construction of the Public Work and is 'terribly distressing'.[43] Cracks have reappeared throughout the house. Mr Avila says the intensification of the impact of the gully winds is due to the removal of the trees associated with the Public Work.[44] Mr Avila says it is difficult to express the distress caused by the gully winds.[45]
10. Mr Avila's witness statement includes photographs of the damage he says has been caused by the gully winds. He considers that the damage arising from the gully winds is likely to persist for 25 years until any replacement trees reach sufficient maturity so as to be an effective wind break.

1. Mr Biagioni-Froudist is a civil engineer who costed the construction of an acoustic wall on the eastern boundary to shield the Residual Land from railway noise. He estimates the cost of constructing a 2.4­metre­high noise wall would be in the range of $312,940 to $356,530.
2. Mr Biagioni-Froudist also inspected the dwelling and noted its condition in relation to cracking etc as identified by Mr Avila. He says the impacts of the prevailing wind regimes on existing structures on the Residual Land 'need further consideration'.[46]

1. Mr Cuddihy is a consultant arborist. In his primary report,[47] he has valued the trees which were on the Taken Land using the Helliwell System. The Helliwell System is based on six criteria[48] and allows an assessor to ascribe a visual amenity to a tree or woodland on a points scale. By multiplying a conversion factor, an appropriate monetary value can be derived. Mr Cuddihy opines on the benefits of trees in social, economic and environmental terms.
2. Using this system, Mr Cuddihy values the 45 trees that were on the Taken Land, and which have been removed to accommodate the Public Work, at $139,538.75.
3. Mr Cuddihy prepared a further report[49] which outlines that the tree protection zones of a further 13 trees on the Residual Land appear to have been breached. This is based on the measures outlined in Australian Standard (AS) 4970-2009. Using the Helliwell System, he values the potential loss of the 13 trees at $42,024.

1. Mr Reynolds is an acoustic engineer. He evaluated the noise that would arise from the increased use of the rail as part of the Metronet project.[50]
2. Having regard to State Planning Policy 5.4 - Road and Rail Noise (SPP 5.4), Mr Reynolds considers that the Public Work (being an extension of the railway network) would be regarded as 'a new railway line' under that policy, and thus should be treated as such in these proceedings. Mr Reynolds predicts, based on the Armadale train schedule from 2020, that the railway movements will increase to 107[51] new movements past the Residual Land each day once the Byford rail extension becomes operational.[52]
3. In addition, the train type will increase from 4-car and 2-car services that currently operate to 6-car and 3-car services in the future. That is to say, trains will be longer in the future.
4. Based on SPP 5.4, Mr Reynolds considers the applicable acoustic criteria for the increase in noise resulting from the use of the rail as part of the metropolitan rail network to be:

Day Maximum 55 dB(A) LAeq (Day)[53]

Night Maximum 50 dB(A) LAeq (Night)[54]

1. Mr Reynolds is of the opinion that the noise received at the dwelling and outdoor living spaces on the Residual Land would comply with the above criteria (Mr Reynolds says the applicable criterion should be the day period given this is when most trains will operate).
2. Mr Reynolds' assessment indicates that the current noise levels (LAeq(Day)) at the premises would be 40 dB but will increase to an LAeq(Day) of around 53 dB in the future.[55] Mr Reynolds considers such an increase in noise to be 'significant'.[56]
3. To reduce the noise received at the premises, he observes that a 2.4­metre-high noise wall could be constructed along the eastern boundary of the Residual Land, adjacent to the railway reserve. This is the noise wall that was engineered and costed by Mr Biagioni-Froudist.

1. Mr Cameron is a real estate valuer. He prepared a valuation report[57] and also participated in a joint conferral with the Respondent's valuers.[58] In summary, Mr Cameron assesses that the compensation that is due to the Applicant as a result of the acquisition of the Taken Land, having regard to the provisions of s 241 of the LA Act is:

1. Mr Cameron's primary methodology was via comparable sales (otherwise known as a before and after approach or direct comparison approach). He also employed what he termed a secondary methodology, being the summation approach. Under that approach, the value of each component of the asset (being the Land and improvements) are assessed separately and then added together. The 'added value' of the improvements and the underlying land values can then be derived.

1. In the before scenario, Mr Cameron observes a broad range of values in the Darling Downs and Oakford localities which are typically characterised by special rural and rural residential lifestyle properties.
2. Sales range from slightly below $1 million (for lesser quality properties with low value improvements) to $1.65 million for high quality properties or good quality properties with a high level of ancillary improvements. Larger properties with more expansive improvements have values that exceed $2 million.
3. In terms of land values, Mr Cameron assesses land values in the range of $435,000 to $630,000. At the lower end, Mr Cameron assesses the sale of 7 Ballack Place[59] as a dated sale, immediately post the COVID­19 pandemic period and before a resurgence in the property market and situated at an inferior location, more removed from services and the Byford town centre. At the upper end was a sale in a cul­de­sac to the south-east of the Land that sold in late 2020. More proximate to the Land is a tighter bandwidth of sales which evinces land values in the range of $530,000 to $630,000 for similarly sized parcels of land.[60]
4. Mr Cameron considers that properties within Darling Downs and Oakford with a high level of improvements command values between $1.4 million to $1.65 million. Properties with a dated residence and limited landscaping typically command market values in the order of $1 million to $1.15 million.[61]
5. Mr Cameron considers that the Land commanded a value at, or slightly in excess of, the upper limit of the local market range, particularly due to the high standard of presentation, the high-quality cabana and pool as well as landscaping.
6. Mr Cameron highlights the following comparable sales:[62]

A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.

A higher value applied to the Land due to cabana, pool area and landscaping but offset by more modern residence on sale property.

A higher value applied to the Land due to cabana, pool area and landscaping but offset by ancillary aspects of sale property such as granny flat and tennis court.

A higher value applied to the Land as against other sales due to cabana, pool area and landscaping.

1. Mr Cameron considers that, in the before scenario, the Land would have commanded a value of $1.8 million.

1. In the after scenario, Mr Cameron identifies the following issues:[63]

(b) increased commuter rail traffic, increased noise;

(c) visual blight of Public Work, including 10 metre high concrete wall at south-east corner;

(d) light spill and traffic noise from traffic bridge;

(e) potential for anti-social behaviour, vagrancy along commuter railway line; loss of privacy;

(f) compromised amenity for garden areas (loss of opportunity to host garden weddings);

(g) loss of trees and associated impacts from gully winds, although flyover may offer some protection;

(h) impacts of increased gully winds resulting in property maintenance costs; and

(i) overall result that the Land is now overcapitalised due to high­end nature of cabana and pool area. Prospective purchasers may prefer alternate locations away from the Public Work.

1. The sales evidence indicates that the value of modern homes with a reasonable level of amenities in this locality lies in the range of $1.4 million to $1.45 million. However, such properties are not impacted by the blight associated with a flyover and a railway line.
2. Mr Cameron considers the value of the Land in the after scenario is 'more in the order of' $1.2 million.[64]

1. As a check exercise, Mr Cameron also undertook a summation of the added value of the improvements and underlying land value.[65] In employing such an approach, in the before scenario, he considered that the underlying value of the Land was $650,000 and in the after scenario it was $350,000.
2. Mr Cameron then ascribes a separate value to all improvements (although there is, quite literally, no analysis of how each component was valued) as follows in the before and after scenario:

1. Adding the value of the land with the value ascribed to the improvements in the before and after scenario yields the following results:

1. Mr Cameron then considers the effect of the Public Work on the Residual Land (the adjoining land) for the purposes of injurious affection. He values injurious affection - that is, the damage to the Residual Land due to the Public Work, to be $270,400.
2. His reasoning is as follows:

$600,000 (as per before and after calculations above).

$270,400 (41.6% of unaffected value of the Land of $650,000)

1. Mr Cameron reasons that the combined effect of the flyover, the railway line, the gully winds, the loss of trees and the need for a noise wall make an award of injurious affection of $270,400 appropriate.
2. Mr Cameron also prepared a supplementary report[67] which, in effect, is a review of the supplementary report prepared by Mr Molony for the Respondent.[68] In his supplementary report, he agrees that Mr Molony's estimation of the loss in value to the Residual Land arising from rail noise of $75,000 is reasonable.[69]

1. Mr Lloyd is an acoustic engineer. He was engaged by the Respondent to model the noise impacts of the flyover over Thomas Road. His Noise Assessment report[70] indicates that the noise levels for the flyover will comply with the prescribed criteria for noise sensitive premises adjacent to the Public Work based on SPP 5.4.[71] The noise targets for roads are as follows:

1. Mr Lloyd was questioned by Mr McGowan, counsel for the Applicant, as to whether the modelling had regard to the number of heavy vehicles that would be using the flyover and, in particular, had he accounted for the application of air brakes.[72] Mr Lloyd explained his modelling was based on Thomas Road before the works, rather than the flyover, and also based on a single carriage way.[73] Outside of the general assumptions that underpin the modelling, the use of Thomas Road by heavy vehicles was not specifically modelled.[74]
2. Mr Lloyd also prepared a technical memorandum specifically focused on the Residual Land.[75] Mr Lloyd predicts that the Public Work will reduce the noise levels at the residence. The pre-works noise levels were 55.7 dB LAeq (Day) and in 2041 would have been 58.9 dB LAeq(Day). After the Public Work the noise received at the premises will be 50.9 dB LAeq (Day).

1. Ms Bingham is a real estate valuer. She prepared a report for the Respondent which assesses the compensation owed to the Applicant by reason of s 241 of the LA Act.[76] Ms Bingham adopted a before and after approach.
2. In terms of that compensation, she assesses it as follows:

1. Ms Bingham explains that the Land features a single level detached residence, built in around 1995,[77] which features five bedrooms, two bathrooms and a double garage. Ancillary accommodation includes a wraparound veranda, below ground pool, cabana/studio, large shed/workshop, orchard and nursery. The new pool cabana/studio is of a particularly high quality and includes an alfresco with built-in outdoor kitchen and barbeque. The Land also features extensive landscaping, with paddocks.
2. While the high level of the ancillary improvements is noted, the residence is also becoming dated and has a relatively small living area (235m2). She observes this smaller living is evident once comparisons are made with properties selling at levels above $1 million.

1. In the before scenario, the Land comprises a battle axe lot with access from Kentucky Drive. Thomas Road is at its rear (southern) boundary. Thomas Road has always been a significant regional road. There are trees planted at the southern boundary which reduces noise and visibility.
2. In terms of comparable sales, Ms Bingham highlights the following:[78]

A more modern residence (circa 2017) with a larger living area (323m2). Sale features a similar sized site area and is accessed via a battle axe leg. However, given the quality of the ancillary accommodation and more shed area, the Land would have a higher overall value. Analysed rate of $59m2.

Residence with a similar age to the Land, with a significantly larger living area (363m2). Ancillary improvements include a large veranda, patio, pool, workshop, remote control gate and bore. The sale also features a separate fully self­contained granny flat (circa 2015). Having regard to its location in a battle axe configuration and adjacent to Thomas Road, a lower value would apply to the Land. Analysed rate of $69m2.

Residence with a similar age to the Land, with a significantly larger living area (377m2). There are significant ancillary improvements including a below ground swimming pool, barn style shed and a matching stable with two walk in/walk out horse facilities, a round yard, aviary and chicken run. The property is also in a quieter location. Overall, the Land would have a lower value. Analysed rate of $71m2.

1. Ms Bingham considers that the above sales provide a market value range for the Land in the before scenario. She adopts a value of $1.3 million.[79]

1. Ms Bingham opines that in the after scenario, there is a flyover bridge cutting through the rear of the Land which will have a significant impact on the market value of the Land. That includes the visual impact, noise impact and the loss of land.
2. In terms of comparable sales for the after scenario, Ms Bingham highlights the following:[80]

Sale reflects a slightly smaller site, with more modern improvements. The site adjoins Tonkin Highway to the rear (busier than Thomas Road). However, the flyover is elevated which has a greater adverse impact. The Land's superior ancillary accommodation gives it a slightly higher value in the after scenario. Analysed rate of $42m2.

Sale reflects a slightly smaller site, with a main residence of a similar age to the Land. The sale also features significant ancillary improvements, including a below ground pool, bar and BBQ area, self-contained granny flat, bore, electric gate, 112m2 shed with two stable and two walk in/walk out yards. The ancillary improvements appear slightly older than the subject but are overall broadly comparable. The sale is in a superior location compared to the after scenario. A lower value will apply to the Land. Analysed rate of $54m2.

1. Ms Bingham considers that these sales provide a market range for the Land between $900,000 and $1 million. Ms Bingham has adopted a mid­point value of $950,000.[81]

1. In broad terms, Ms Bingham ascribes a value to the Taken Land of 25m2 @ 875m2 = $21,875 (the basis for which is left largely unexplained)[82] and injurious affection of 25% ($1.3 million x 25% = $325,000). Ms Bingham rounds $346,875 up to $350,000.

1. Mr Molony is a real estate valuer. He prepared a valuation for the Respondent outlining the compensation that is owed to the Applicant by reason of s 241 of the LA Act.[83] He also employs a before and after approach. His overall assessment of compensation is as follows:

1. In assessing the value of the Land in the before and after scenarios, Mr Molony has had regard to a wide range of sales. In the before scenario, he focuses on the sales in the table below which he describes as 'particularly relevant'.[84]
2. He outlines that his sales evidence is generally focused towards the higher end properties within Darling Downs. Given that there are fewer sales above $1 million in Darling Downs, he has included sales from nearby Byford and Oakford. He also notes that between 2012 and 2022 in the Darling Downs locality, there were 29 sales of improved lots between 1.5 hectares and 2.5 hectares. Twenty of these were below $1 million and only one exceeded $1.2 million.[85]
3. He has particular regard to the following sales in the before:[86]

Very well-presented residential property benefitting from substantial lifestyle attributes, quality horse improvements and quiet, tranquil position within the suburb. The sale price was a record price for a 2 hectare lifestyle property. The previous record was $1.3 million from 2007.

There are a number of sales in the 'low 1 millions' in Darling Downs in superior locations to the Land, but not with the same quality of ancillary improvements.

A hypothetical buyer would be prepared to pay a premium for the Land, above $1 million, but not so as to exceed $1.4 to $1.4 million.

Arguably one of the most desirable/substantial properties to transact in Darling Downs in the years prior to the Taking Date. The sale at $1.2 million was during weaker market conditions in the early phases of the COVID-19 pandemic, and before the significant upswing in value in the 11 months leading to the Taking Date. This sale justifies his view that the Land would not sell for more than $1.4 million in the before scenario.

A very good quality sprawling single level residence with a granny flat and a second residence, erected in a quiet tranquil rural lifestyle block. The property transacted 2 months after the Taking Date in a similar market.

This sale is superior to the Land, mainly due to a superior location and larger improvements. This property suggests a before value in the range of $1.3 to $1.4 million.

Why the Land has a value of $1.4 million in the before scenario

1. In considering these sales, Mr Molony considers that the evidence supports an 'unaffected value' of between $1.3 million to $1.4 million. Taking a view favourable to the Applicant, Mr Molony adopts the upper end of this range of $1.4 million.[87] His reasoning is as follows.
2. While the improvements on the Land are good, particularly the pool/cabana/studio area, the Land was impacted in the before scenario by Thomas Road and the Perth-Australind railway line, with the rail having far less impact than Thomas Road. The impact of Thomas Road would influence price in a market for quiet, tranquil lifestyle properties. Thomas Road was only 70 metres from the main residence and 60 metres from the cabana. Noise was an issue affecting the Land in the before scenario. While the trees partially alleviated these issues, most of which remain, the most exposed part of the Land to traffic was the eastern paddock.
3. While the market was buoyant as at the Taking Date, buyers in the 'mid 1 millions' are very discerning (and increasingly so as price trends closer to and above $1.5 million) and Mr Molony considers that the Thomas Road 'frontage' would weigh on the degree of any premium that could be expected in the open market for the Land, despite its very appealing ancillary improvements. He reasons that there is a general desire for a quiet rural lifestyle amenity to justify the financial outlay.
4. The main residence is neat and reasonably modern, but not large and retains mostly original fixtures and fittings. The residence is not considered to be the same quality as the majority of sales in the $1.2 to $1.5 million price category. This is countered somewhat by the studio/cabana/pool, but the Land lacks any horse improvements which are highly sought after by the target market, and generally attract premiums, as evinced in the sales evidence.
5. The evidence suggests that sales that exceed $1.2 million in Darling Downs 'thins out significantly', with buyers in this price category attracted to other special rural locations such as better regarded and quiet pockets of Oakford, Banjup and Wandi.

1. In the after scenario, the Residual Land has retained its appealing improvements, however the Public Work will negatively influence its value for a number of reasons, including the reduction in lot size, the loss of trees, and most significantly the elevating of Thomas Road such that the southern boundary now neighbours a raised section of Thomas Road as it 'ramps up' over the rail line to the south-east. The visual impact of the flyover is the most influential variable, despite the improved noise outcome. This visual impact is made worse by the loss of trees. Mr Molony expressly states his after value is conscious of both these factors.[88] He considers this impact as injurious affection.
2. Mr Molony reviewed the Applicant's arborist report by Mr Cuddihy, in relation to the loss of trees, but does not consider that it is a market­based assessment. That is to say, he is of the view that purchasers do not price up individual trees to be added together as an improved value.[89] Rather, Mr Molony has assessed the value of the Residual Land in the after reflects the loss of the trees and the effect this has on the impacts of the flyover.
3. On his re-inspection on 23 March 2023, it confirmed for Mr Molony that the bulk of the bridge is most prominent at the rear south­eastern corner moiety of the Residual Land. This is a most important factor, as in this instance the primary improvements - the dwelling and cabana/studio/pool - are located on the western half of the Land.[90] The dwelling and the cabana/studio/pool are located such that they are partially screened from the bridge by trees located on the Residual Land, as well as a minor number in the road reserve. In addition, the flyover is not as elevated in this portion (the eastern portion) of the Land. This would influence what a hypothetical purchaser would pay in the after scenario.
4. In the after scenario, the Land still appeals as a rural lifestyle property, with the ancillary improvements and the landscaping being the main drawcards. In particular, while the residence is smaller than a number of others in the local '$1 million plus category', the studio/cabana/pool and landscaping improves the appeal of the Land. These features would still appeal to a prospective buyer in the after scenario and would weigh-up the negative effect of the bridge.[91] The land loss is the least significant influencing factor.[92]
5. The real estate market was strong as at the Taking Date. This applies in the after scenario, as it does in the before.[93] However, in the after, the price would have to be discounted.
6. Mr Molony references the following sales for his after-scenario analysis, which focuses on the 'high $900,000s to low $1 millions' price bracket:[94]

A lesser improved property than the Land with inferior ancillary items and a smaller house. Fronts Thomas Road but without flyover. The sale occurred in the same month as the Taking Date. This property would have sold for less than $1 million prior to the post COVID 19 market buoyancy.

The differences in overall value with the Land are minor. In ascertaining a price, the market would have mostly balanced out the differences of the impact of Thomas Road (bridge or at grade) versus the differences in quality, scale and size of the accommodation. I believe this property is superior than the Land.

A 2-hectare lot with lesser quality improvements. In terms of overall presentation, and improvements, the sale property is considered to be inferior to the Land.

With regards to location, the sale property backs onto the busy Rowley Road and is opposite a future industrial precinct (Forrestdale). However, the overall location is considered superior to the Land. Overall, this sale is slightly superior to the Land in the after.

In terms of overall presentation and improvements, the sale property is considered far inferior. With regards to location, the sale property backs onto Thomas Road, but an at-grade section. Overall, a higher after value is appropriate for the Land.

1. Mr Molony considers that the market evidence points to an after value of between $1 to $1.1 million. Mr Molony adopts the most favourable valuation to the applicant (being the lowest) of $1 million. In doing so, he has had regard to the loss of the trees and the impact of the flyover.
2. The result being that the difference between the before and after valuations is $400,000. Mr Molony then apportions this compensation value into the various heads of claim.

1. Mr Molony assesses nine sales to attribute a value to the Taken Land. He says to do so is generous because rural residential land is not valued on an area-proportionate basis. So long as the lot in question is large enough to provide the buyer with the lifestyle attributes and the building envelope they seek, that will be sufficient.
2. He is of the view that there is not a great degree of difference between 2 hectare lots compared to 2.5 hectare lots. Even lots at 1 hectare can command values not too dissimilar to 2 hectare lots.[95]
3. Mr Molony is of the view that a fair land rate for the Land is in the range of $22.50 to $25 per square metre. Because the market was buoyant as at the Taking Date, Mr Molony adopts the upper end of this range at $25 per square metre (x 875m2) = $22,000.
4. Therefore, Mr Molony allocates compensation as $22,000 for the purposes of s 241(2) and $378,000 as injurious affection under s 241(7).

1. Mr Molony prepared a supplementary report.[96] This additional report assumed the Public Work included not only road works, but also 'the upgrading of the adjoining rail line to accommodate the Byford Metronet line which will significantly increase the frequency of rail traffic'.[97]
2. In preparing this advice, Mr Molony had the benefit of the Applicant's acoustic report prepared by Tim Reynolds.
3. In his review of the evidence, Mr Molony considers that the increased utilisation of the railway line will have a further downward effect on the value of the Land beyond that considered in his primary report.[98] The degree of that impact is influenced by the location of the primary improvements on the Land relative to the rail line. He estimates the dwelling is 155 metres away from the rail line, the cabana/studio is some 130 metres away.
4. Having regard to these additional factors, Mr Molony would reduce his after value from $1 million to $925,000. The result is, in effect, an increase in the compensation of $75,000.
5. As I will come to explain, I largely accept the evidence of Mr Molony.
6. Having given an overview of the evidence, I turn next to consider the issues in contest. I will address why I will not allow the Applicant's claims for trees 'as improvements' nor for damages alleged to have been caused by an increase in gully winds. I will also explain why I will not allow for the costs of construction for an acoustic wall on the eastern boundary. I will then conclude by outlining the compensation that is owed to the Applicant.
7. However, before any of that, I must first address the question of identifying what is the Public Work.

1. The Taking Order specified that the designated purpose of the Taken Land was the Byford Rail Extension - Thomas Road over Rail. The Public Work entails delivering pedestrian railway services to Byford to accommodate the fact that the population is expected to double to 35,000 by 2036. That will ultimately involve 107 new train movements per day past the Residual Land. Currently, there are only four rail services per day using the railway line as part of the Perth to Australind service.
2. As a consequence of that increased rail traffic, the existing Thomas Road level crossing was reconfigured to a road-over-rail bridge. The Taken Land forms part of the elevated road bridge that now crosses the railway line. The concrete wall that forms the bridge rises to 13 metres high adjacent to the Residual Land. As was apparent at the site view attended with the parties, the Public Work is, in general terms, highly visible from the Land.
3. The Respondent submits that the Public Work for which compensation is payable is only the road traffic bridge over Thomas Road. The Applicant submits that the Public Work includes the proposal to extend pedestrian rail services to Byford such that the damage that may arise from the increased use of the railway line is also compensable. The Respondent does not agree and submits that the Taking Order was perhaps 'unfortunately worded'.[99]
4. The question of 'what is the public work?' was squarely addressed by Tottle J in Kilmaley Investments Pty Ltd v City of Wanneroo (Kilmaley).[100] I gratefully adopt, without repeating, his Honour's analysis of the relevant provisions of the LA Act.[101] In Kilmaley, his Honour also stated:
   1. A test for identifying the 'proposed public work' for the purposes of s 241 of the Act (or equivalent provisions in comparable legislation), has proved elusive. No test emerges from the authorities. Putting to one side the defendant's submissions that the 'proposed public work' is defined by the notice of intention to take, the parties do not identify a test in their submissions. There is no ready analogue to be derived from other areas of the law.
   2. I agree, with respect, with the conclusion expressed by Hodgson JA in Road Traffic Authority of New South Wales v Perry, that there are no clear rules for determining the relevant purpose or the appropriate level of generality with which it is to be defined (in the context of this analysis 'public purpose' in the New South Wales legislation may be equated with 'proposed public work' in the Act). The absence of a test or clear rules reflects the widely differing circumstances in which courts are called upon to identify the proposed public work or, as the case may be, the public purpose.
   3. Conformably with the view expressed by Lord Nicholl in Waters v Welsh Development Agency, in my view, identification of the 'proposed public work' requires a consideration of the primary facts as determined objectively. An evaluative judgment is required to select the primary facts and to determine the level of generality at which the proposed public work is to be identified. The guiding principle is that the land owner is to receive fair compensation but not more than fair compensation having regard, of course, to the provisions of s 241 of the Act.
   4. For the purposes of determining the facts it is open to the court to have regard to the documents of the acquiring authority, which in this case is the defendant. (Citations omitted)
5. In this instance, the Metronet documents present the Byford Rail Project as but one public work. It is a project that is centred on delivering a pedestrian train network to Byford by the extension of the two-track electrified rail network, changes to the Armadale Rail Station and a new Byford Rail Station. As part of the delivery of the public work, it states:

To improve safety and connections in the area, and improve traffic flow, the Thomas Road level crossing will be reconfigured to a road­over-rail bridge.

And:

The Byford Rail Extension will include: Thomas Road crossing will be reconfigured to a road-over-rail bridge.

1. Counsel for the Respondent, Mr Tom Ledger, submitted that:

... So I guess the question for the tribunal is is it fair for Main Roads to be up for broader changes to a much bigger, wider project, when all they've done is done one part of that project?[102]

1. With respect to Mr Ledger, I do think it is fair that [Main Roads] pays the compensation that is due to the Applicant having regard to the terms of s 241 of the LA Act, without regard to the identity of the Minister who signed the Taking Order or the authority undertaking the public work.
2. The terms of s 241 do not discriminate between different ministers or agencies that are authorised to undertake public works. It simply cannot be the case that just because it is the Commissioner of Main Roads, which is the Respondent, that any compensation payable to the Applicant must be limited to the road works which the Commissioner undertook.
3. Compensation is available for the impact of the public work in question, regardless of the identity of the agency ultimately responsible for the Taking Order. As Tottle J stated in Kilmaley, the evident purpose of s 241 is to provide fair compensation to the dispossessed landowner.[103] That purpose would be defeated if compensation for the public work was anchored to the identity of the acquiring authority.
4. If the public work in question, properly construed, has the result that adjoining land owned by the Applicant is damaged via severance and/or injurious affection,[104] then compensation for that damage forms part of the fair compensation which they are owed under s 241 of the LA Act.
5. In Kilmaley, Tottle J noted that, in considering the provisions of Pt 9 of the LA Act, care has been taken to draw a distinction between the purpose of the public work, set out in a notice of intention, and the public work itself. His Honour concludes that 'the identity of the proposed public work for the purposes of s 241(2) of the LA Act is not determined by the particulars of the purpose of the public work stated in the notice of intention'.[105]

The Public Work includes the increased utilisation of the railway line

1. For the following reasons, each of which overlap, I am satisfied that the Public Work includes the upgrade, and increased utilisation of, the railway that adjoins the Residual Land to the east.
2. First, the Taking Order is not directed to simply being a road upgrading project. It is identified as being the 'Byford Rail Extension - Thomas Road over Rail'. I, as I must, accept the analysis from Kilmaley that the identity of the Public Work cannot be determined by the content of the NOITT.
3. However, nowhere does his Honour suggest that that content is irrelevant. In this instance, the Public Work, was presented in the NOITT as being for the express purpose of the Byford Rail Extension - Thomas Road over Rail. That is to say, the purpose was primarily a rail extension project with consequential road works. The NOITT does not confine either the purpose of the Public Work, or the Public Work, to being only the upgrade of Thomas Road.
4. Second, the Metronet documents also present the Byford Rail Extension as a project that entails, primarily, the extension of the pedestrian railway line to Byford together with related road works to improve traffic flow.
5. The Public Work encompasses the works necessary to deliver that rail infrastructure to cope with an anticipated doubling of the population in Byford to 35,000 people by 2035. Such works include consequential road works such as the Thomas Road over Rail. The Metronet documents explain that the Thomas Road over Rail is a project to 'accommodate the Byford Rail Extension'.
6. Third, and following on from above, in my view, there is no room for argument that this Public Work is merely a road upgrade project. The purpose of the road upgrade is to facilitate and accommodate the greater use of the rail line as part of the metropolitan rail network. It is a project that is primarily targeted at increasing the utilisation of the existing railway. In the language of Kilmaley, I find it should be identified at that level of generality.[106] The Thomas Road over Rail works is a corollary, but nevertheless part, of that broader project. On no reasonable view could the Public Work be regarded as a standalone road project.
7. It follows that if I am satisfied that the increased utilisation of the railway line on the eastern boundary of the Land will damage the Residual Land being 'adjoining land') by reason of the increased rail noise, then then that damage is compensable.

1. The Applicant advances a claim, in effect, that in ascertaining the market value of the Taken Land, that the loss of 45 mature trees on that land 'should be brought to account'.[107] In effect, the Applicant seeks to value the trees independently (or separately) from the Taken Land. The claim for the trees on the Taken Land arise under s 241(2) of the LA Act.
2. The Applicant further contents that 13 trees remaining on the Residual Land are now at risk due to breaches of their tree root zones by the Public Work. This aspect of the claim is made as damage to adjoining land under s 241(7) of the LA Act. Although not articulated in the Applicant's written submissions, I agree with Mr McGowan that this claim properly falls under s 241(7)(b) as it is damage due to the reduction in value of the Residual Land.[108] The Applicant's point being that the presence of trees on the Residual Land adds a value and, therefore, the potential loss of 13 trees will result in a loss of value.
3. The total amount of this claim is $139,539 for the 45 trees that were on the Taken Land and a further $42,024 for the encroachment into the tree root zones for 13 trees that remain on the Residual Land. The total is therefore $181,563.

Why I will not allow a separate award for the loss of the trees on the Taken Land

1. The compensation that is available under s 241(2) of the LA Act is for 'the value of the land with any improvements'. As a matter of law, the trees are a fixture. That is to say, they form part of the Taken Land.
2. In Lenz, a case which involved the loss of 501 pine trees which straddled the Forrest Highway, Edelman J was dealing with a claim for compensation for the loss of the trees as an aspect of severance damage (under s 241(7)(a) of the LA Act). His Honour was considering five alternate ways in which compensation for the trees might be awarded. The evidence established that the notional value of the pine trees was estimated to be in the order of $137,500.[109]
3. His Honour commented that the various methods of assessing the value of the pine trees, including by their notional value, should not be permitted on the basis that such an approach elides the fact that trees are, as matter of law, part of the land. His Honour stated:

First, to award compensation to Ms Glasson on the basis of (1) or (4) is inappropriate in these circumstances. These measures of compensation seek to attribute value to the trees independently of the land upon which they are affixed. But, in law, trees are a fixture. They are part of the land. Their value enhances the value of the land.[110]

1. Regardless of the fact that the Applicant's claim in this case is made under s 241(2), it is still plain that the Applicant seeks to, in my view, value the trees independently of the Taken Land by employing what is, in this context, an artificial methodology.
2. As I will come to explain, in terms of 'bringing the trees to account', I accept the Applicant's criticism made of Ms Bingham that she did not, at least expressly, address the fact that the Taken Land contained mature trees; that these trees added something to the amenity enjoyed by the Land in the before scenario and that the loss of these trees will impact the Residual Land.[111]
3. However, unlike Ms Bingham, Mr Molony made express reference to the trees and to the benefits that the trees added to the Land. In his analysis of the after scenario he again goes on to say that the loss of the trees has had both noise and visual implications for the ongoing enjoyment of the Residual Land. Mr Cameron merely adopted Mr Cuddihy's findings.
4. Furthermore, the approach urged on me by the Applicant, in my view, seems rather out of step with the test that is required under s 241(2) which was set out by Griffith CJ in Spencer v The Commonwealth.[112] That theoretical exercise is to identify the price which would be paid under a hypothetical bargain between a person:

... desiring to buy the land ... to a vendor willing to sell it for a fair price but not desirous to sell[.]

1. The authorities emphasise that the buyer is assumed to be 'perfectly acquainted' with the land being valued and its potential.[113] In this instance, it can be accepted that the hypothetical purchaser has taken account of the trees and, in a rural living context in particular, is cognisant of the fact that the presence of trees adds value to those who seek a rural residential lifestyle property.
2. Even so, I agree with Mr Molony that, so far as trees are concerned, purchasers (including hypothetical purchasers) do not scrutinise each tree on a parcel of land and independently ascribe it a value that is then to be added as an extra amount on top of the underlying soil. Mr Molony took note of the fact that the Taken Land contained mature trees and returned to the Residual Land after the Taking Date to ascertain the impact of the loss of those trees.
3. In terms of 'bringing the trees to account', what is relevant is that the presence of the trees, and any value that they add as part of the land, are properly contemplated. As I have stated, while I am not satisfied that Ms Bingham has properly taken these into account, Mr Molony certainly did. He clearly and carefully valued the Taken Land on the basis that it was well treed in what is a rural residential context.
4. I find that the value that the presence, and the loss, of the mature trees falls to be considered by the valuers under s 241(2). It is not an item that is simply added-on after the land has been valued. It is an inherent part of the value of the Taken Land.
5. While the Helliwell System may seek to ascribe a monetary value for trees, in my view, it is not an instrument that assists in the valuation exercise required by s 241(2), at least in this instance. In its own terms, it was not designed as a means to attribute value to trees in compensation cases.[114] Furthermore, it also states that the valuation exercise is subjective and that the system is best used as a guide, rather than as a precision instrument.[115] However, in this instance, the Applicant does not rely on the system for broad and general purposes. Rather, he seeks to use the system as a means to a precise amount of compensation which he says he is owed.
6. Moreover, in the valuation exercise contemplated by s 241(2) and the case authorities (such as Spencer v Commonwealth), as was the case in Lenz, I find there is no warrant in this case to value the trees independently from the Land which, as a matter of law, they form part of.
7. I decline to award the compensation for the loss of 45 trees as assessed by Mr Cuddihy.

Why I will not allow the claim for the potential loss of trees on the Residual Land

1. The claim for the potential loss of up to 13 trees on the Residual Land fails for the reason that the loss has not yet, and may never, actually be incurred.
2. As I raised with Mr McGowan in oral argument, the trees the subject of this claim may ultimately turn out to be unimpacted by the Public Work. Mr McGowan, fairly in my view, described this claim as a 'contingency' and that he could not 'put it higher than that'.[116]
3. Section 241(7) speaks to losses 'suffered' by the owner of adjoining land due to the Public Work. That is to say, losses already incurred at the time that compensation falls to be assessed. It does not speak to hypothetical, possible or contingent losses. This aspect of the claim cannot be accepted.

1. The next issue which I must address is the Applicant's claim for maintenance damage to his residence caused by gully winds. This particular aspect of the claim arises under s 241(7)(b) of the LA Act.
2. This head of compensation is commonly referred to as 'injurious affection', a somewhat protean term that does not appear in the LA Act.[117]

1. The origin of the term 'injurious affection' derives from the Land Clauses Consolidation Act 1845 (UK) (LCC Act) which used the term in relation to physical injury or disturbance of enjoyment caused by the construction of works on resumed land.[118]
2. Nevertheless, the label 'injurious affection', in the context of the LA Act, has been described as a 'neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner's land'.[119] While the convenience of a label is inviting, the words of the statute are paramount.[120]
3. In Brisbane City Council v Mio Art Pty Ltd,[121] Fryberg J explained, in the context of sufficiently similar Queensland legislation, that an assessment of compensation for injurious affection can take account of matters that post-date the Taking Date. This stands in contrast to the assessment of the market value of the land acquired under s 241(2) which generally excludes regard to post-taking events.[122] His Honour stated:

Two points follow from the text of s 20. The first is that value of the land taken is quite separate from damage caused by severance or injurious affection and disturbance costs. They are not elements of land value under the Act. The second is that, unlike compensation for the value of the land taken, compensation for severance, injurious affection and disturbance is not explicitly required to be assessed by reference to the date of acquisition. They are indirectly connected to that date by the requirement for causation ("damage ... caused by", "costs attributable to"), but the section gives no indication of the appropriate test of remoteness of damage. Whether that test is one of foreseeability by the hypothetical purchaser, as suggested in the Council's submission, need not be determined in this appeal. It is sufficient to observe that compensation for severance, injurious affection and disturbance is awarded in respect of matters which often will arise or be quantified after the taking.[123]

1. The Applicant claims $115,493.31 as proportional repairs to be undertaken on the dwelling until the replacement trees are of sufficient maturity to act as an effective wind barrier. As stated above, this head of the Applicant's claim is made as injurious affection.
2. I find the claim for maintenance damage fails on the evidence. Mr Avila may well be correct in his view that there are 'notorious' gully winds that affect the locality, and the Land.[124] However, on the evidence before me, I am not satisfied on the balance of probabilities of any of the following:

(a) that there are gully winds that seasonally affect the Land;

(b) that these gully winds have been made worse by the Public Work; and

(c) that the gully winds are causing damage to the dwelling which, as a result, will need painting and cracking repairs every two years into the future.

1. The evidence in this case proves no more than Mr Avila has a belief that gully winds have long been an issue, that in the past the dwelling has needed repair because of the winds, but that the winds have dissipated as the trees matured and has been made worse by the Public Work.
2. With respect to Mr Avila, more evidence, in the form of expert evidence, is needed in order to be able to make an award for this kind of maintenance damage. That is, to causally link the damage shown in his photographs to the gully winds which he believes affected the Land and which have increased following the Public Work. I therefore accept the Respondent's submissions that there is no expert evidence to independently support this claim.[125]
3. While Mr Biagioni-Froudist recorded in his 'general observations' that the Applicant explained to him the strong gully winds and their damaging effects, this itself is not independent expert evidence that would satisfy the matters identified in [168] above.[126]
4. By his own admission, Mr Biagioni-Froudist is not a wind engineer.[127] Furthermore, he undertook no independent study on such questions. To the extent that he offers an opinion on winds, it is an opinion based on his general observations during a site view following these matters being drawn to his attention by Mr Avila. The 'damage' shown in Mr Avila's photographs could simply be wear and tear from a dwelling that is now 20 years old. I just do not know. More evidence would be needed in order to substantiate the Applicant's claim for maintenance costs for the dwelling.
5. In making this finding, I acknowledge that proving the matters listed at [168] above would not be straight-forward and the cost of such technical studies may well come close to, or even outstrip, the value of the claim itself. I am also mindful that the objectives of the State Administrative Tribunal Act 2004 (WA) (SAT Act)[128] should inform how I approach such questions having regard to act speedily, with as little formality as possible and to minimise the costs to the parties.
6. However, against that, I simply cannot allow an award of $115,000 in the absence of any real probative evidence that the Public Work has exacerbated wind gullies so as to cause damage to the dwelling on the Land.
7. Accordingly, I award no compensation for maintenance costs for the improvements on the Residual Land.

1. The Applicant claims up to $274,133 for the cost of a 3-metre-high acoustic wall to be erected on the eastern boundary of the Residual Land to, in effect, screen the railway.[129] The wall would reduce the acoustic impact of rail noise and would also provide a visual screen. This claim is also made as injurious affection.

Why I will not allow for the cost of an acoustic wall

1. It is relevant, in my view, that, in the before scenario, the Land was somewhat perilously located from an amenity perspective. It abuts two major infrastructure corridors: Thomas Road and the railway line.
2. In the ordinary course, especially in relation to Thomas Road, it can reasonably be assumed that the traffic along that infrastructure corridor was always likely to increase. That is a function of wider urbanisation which, as is apparent from attending the site view, is occurring across the broader region. Likewise, in the context of the railway, at any time, it could have been used more intensively with no prospect of compensation being made available under the LA Act.
3. The point being that the amenity of the Land was always at risk, indeed a high risk, that there may be increases in noise and disturbance arising from increased utilisation of those public infrastructure assets.
4. To me, that informs the approach that I should take in assessing any injurious affection arising from the railway line. It is not the case that the Applicant has lived on the Land for many years and a new railway line is proposed to be constructed adjacent to him. The reality is that the Applicant chose to live next to a railway line and has had the fortunate benefit of very mild use of that rail line for an extended period of time. It follows that railway noise was an aspect of the amenity of the Land in the before scenario.
5. However, the State Government now wishes to make more use of that railway to connect, via Metronet, the metropolitan rail network to Byford. As part of that project, a portion of the Land has been taken to provide a flyover over the railway line.
6. There can be no doubt that the upgraded and increased utilisation of the railway line will have an impact on the amenity of the Residual Land. It will increase the noise across the Residual Land by about 13 dB(A). In his oral evidence, Mr Reynolds described that increase as 'quite significant from what is there now'.[130]
7. Mr Reynolds is an experienced acoustic consultant and is, I find, not a witness prone to exaggeration or gloss. I accept his evidence as to the likely increase in rail noise arising from the Public Work.
8. Nevertheless, Mr Reynold's evidence is that the increase in noise (to 53 dB(A)) arising from the increased use of the railway line does not exceed the requirements set out in Table 2 of SPP 5.4. Furthermore, I also note that the Environmental Protection (Noise) Regulations 1997 (WA) (Noise Regulations) do not apply to rail or road noise.[131]
9. While there was some debate at the applicability of SPP 5.4 in a land compensation case, as a State planning policy, made pursuant to the requirements under Pt 3 of the Planning and Development Act 2005 (WA) to address, inter alia, the impacts of unreasonable levels of transport noise on the community, I find it provides an appropriate lens through which to assess and evaluate the degree of amenity impact that will result.
10. In the circumstances of this case, I find that the increased use of the railway is an aspect of the Public Work. That increase will adversely affect the amenity enjoyed on the Residual Land by reason of increased railway noise. That increase in noise is compensable as injurious affection.
11. However, as a matter of fact, the cabana/studio and dwelling are located on the western side of the Residual Land, away from the railway line. It is also the case that the increased use of the railway line will not exceed the requirements of SPP 5.4. Mr Reynolds' evidence in this regard was also very measured. While he did suggest an acoustic wall could be constructed to reduce noise, he stopped short of saying it was actually required.[132]
12. Finally, as I have explained, it is relevant that the railway line did exist in the before scenario. It is not without some significance that railway noise is exempt under the Noise Regulations. While I am not administering the Noise Regulations, I am dealing with a scenario where the Applicant's complaint is, in effect, his acoustic amenity is going to be further eroded by increased railway noise.
13. However, in my view, the statutory regime for railway noise is such that there can be no presumption, from those who chose to live adjacent, or close, to a railway line, that the amenity they can reasonably expect will be devoid of all noise associated with its use.
14. I find that the appropriate result is for the compensation for injurious affection to be such that it encompasses the increased frequency of railway noise. However, I do not consider it to be fair compensation for the Applicant to be awarded the costs of an acoustic wall to, as it were, seek to completely insulate himself from that noise. The railway line existed in the before scenario, and it is a noise source which, ultimately, the Applicant has chosen to live adjacent to.
15. For these reasons, I do not accept that the Respondent should be liable for the cost of an acoustic wall.
16. Mr Molony, with whom Mr Cameron agrees, suggests an amount in the order of $75,000 as additional injurious affection is appropriate in this regard.
17. I turn next to assess the valuation evidence to determine the compensation that is owed to the Applicants in terms of the market value of the Taken Land as well as injurious affection.

1. The paramount duty of expert valuers in providing a valuation opinion to a court or tribunal is to establish criteria enabling the evaluation of their expert conclusions.[133]
2. Opinions expressed by expert valuers must be comprehensible and conclusions drawn must be rationally based. The process of inference leading to a conclusion must be stated, revealed or otherwise discernible in a way that enables those conclusions to be tested and a judgment made about their reliability.[134]
3. Unless the process of inference by which a valuer's opinion is reached is expressed in a manner which permits conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight.[135]

1. The conventional valuation methodology for determining market value in land acquisition cases is that of comparable sales. That is to say, the market value of the land is determined by evaluation of other sales that are considered to be comparable to the subject and the amounts actually paid.[136] As I have explained, each of the valuers in this matter adopted this approach, although Mr Cameron also undertook a summation approach as a check exercise.
2. The comparable sales method generally involves four steps:[137]

(a) first, accumulate a pool of potentially comparable sales evidence;

(b) second, analyse the pool in order to convert them into a common measurement (for example, a price per square metre);

(c) third, adjustments must be made in order to reflect the differences between the comparable property and the subject property; and

(d) fourth, apply the adjusted unitary rates to the subject property.

1. Valuers may have different views about the comparability or relevance of different sales. However, there is no requirement that a valuer identify which sale is to be regarded as the most important or comparable.[138]

1. In this matter, I had the benefit of three expert valuers. However, as I will explain, I prefer and largely accept the evidence of Mr Molony.

1. In an overall sense, I found Ms Bingham's evidence to be of assistance, especially in the before and after scenarios as her range broadly overlaps with that of Mr Molony.
2. However, in my opinion, Ms Bingham's report did not, at times, sufficiently disclose her reasoning process in deriving her valuation opinion. At times, her analysis was brief, indeed too brief. It was not always easy to follow her reasoning and, ultimately, her conclusions.
3. For example, Ms Bingham attributes a land value for the Taken Land of $25 per square metre to the Land in the before scenario. However, there is no analysis or discussion as to how she arrived at that value. It just appears in her compensation assessment.[139] I have had to work through and assume, without being certain, that it comes from her analysis of two other land sales where she states, in relation to analysed rates of $22 per square metre and $24 per square metre that 'similar' rates would apply to the Land.[140] I accept Mr McGowan's criticism of her evidence in this regard.
4. As I have explained, I also agree with Mr McGowan that Ms Bingham has not properly explained how it is she has taken account of the fact that the Taken Land included 45 mature trees.[141] In circumstances where Ms Bingham was aware, or ought to have been aware, that the Applicant pressed that the value of the trees as improvements needed to be 'brought to account', she should have made it clear that her valuation had regard to the loss of the mature trees.
5. While Ms Bingham is, of course, entitled to hold the view that the loss of the trees would not impact the overall value, in my view, she needed to say as much. In the context of this particular case, that opinion should not be left to be inferred from her conclusion. I find it is not enough to explain in oral evidence that it simply formed part of the before and after scenarios.[142]
6. However, having said that, and putting the trees to one side,[143] I find that Ms Bingham's overall analysis of the before and after scenarios was generally well reasoned, and explained, and did assist me in assessing the compensation that is owed to the Applicant. Her ability to draw comparisons between the sales evidence and the Land was helpful and, in large part, her valuations reasonably aligned with those of Mr Molony.

1. I do not accept Mr Cameron's evidence. In particular, I do not accept: (i) his assessment of the value of the Land in the before scenario; (ii) his valuation of the Residual Land in the after scenario; and (iii) his use of the summation approach.
2. Dealing with the before scenario, based on my review of the sales evidence, there is no reasonable basis on which the Land could be valued at $1.8 million. Mr Cameron's heavy reliance on sales from Oakford to derive this figure is misplaced. I accept the opinion of Mr Molony that Oakford is a superior location than Darling Downs, from a rural lifestyle point of view.[144]
3. Furthermore, I can see no apparent justification for the $1.8 million valuation from his basket of sales. The nearest sale price was that of 110 Foxton Drive, Oakford which sold for $1.65 million. That property was 2.5 hectares (in a superior location), included a four­bedroom dwelling (circa 1989), a granny flat, a flood lit tennis court, exterior entertainment area, landscaping, below ground pool, greenhouse, rainwater tanks and a paved driveway.
4. Mr Cameron says this property was 'slightly inferior' than the Land. However, his before valuation of the Land is almost 10% more than $1.65 million. In my view, it is not enough to simply point to the cabana and pool area as justifying that higher value. More analysis, reasoning and justification would be needed to place an additional $150,000 in addition to this sale price. In my view, his assessment takes no real account of the location of the Land in the before in terms of proximity to both Thomas Road and the railway line.
5. The record price paid in Darling Downs for a property is $1.5 million, yet his before value exceeds that by 20% without, in my view, adequate explanation or justification.
6. In an overall sense, I am not satisfied that Mr Cameron's analysis in the before scenario it is logical or reasonable, even having regard to the high quality of the ancillary improvements on the Land.
7. Those same concerns relate to his value in the after scenario. He simply concludes what he considers the value will be 'more in the order of $1.2 million'. He also says the after value is difficult to determine as the full impact of the Public Work is not yet known.[145] At some level that may be accepted. However, as is evident from the other valuers, there were sales that could have been used as reference points to articulate the basis for a value in the after scenario. Rather than undertake any real analysis, Mr Cameron rather just arrives at an after value of $1.2 million. The intellect process leading to that opinion is not set out.
8. The final concern I have with Mr Cameron's analysis is his summation assessment. I accept that valuation evidence includes many evaluative (and subjective) judgments, some of which are difficult to describe in detail or reduce to words. Even accepting that, Mr Cameron's summation assessment includes, literally, no analysis as to how he has valued all the improvements on the Land and the basis on which he adjusted those values in the after.
9. For example, there is no explanation as to why the main residence decreases in value only $60,000 in the after scenario, but the cabana decreases by $200,000. Furthermore, I am not sure why the (near-new) pool decreases in value by 33% in the after (from $75,000 to $50,000). No explanation or justification is offered.
10. Ultimately, in my view, Mr Cameron's summation exercise appears to be a somewhat contrived and artificial device concocted to justify and bolster his before and after valuation, rather than as a checking exercise per se.
11. Ms Bingham considers that, in this instance, the summation method to be too subjective to be utile. The subjectivity arises due to the lack of knowledge of the individual characteristics of the sales evidence and their various building components in comparing them with the subject property.[146] I am inclined to agree.

1. Mr Molony's evidence was the most thorough and comprehensive of the three valuers. His evidence was also the most considered.
2. His report provided detailed analysis of his comparable sales, with detailed analysis of the residence and improvements as well as multiple photographs of each, which made it easier for me to follow his line of reasoning. He included a comprehensive analysis of the before and after scenarios and expressly took into account the fact that the Taken Land was planted out with mature trees.
3. In oral evidence, he was firm but candid but had clearly considered, at some depth, the sales which his valuation report referred to. In an overall sense, he was balanced, measured and reasonable. Furthermore, he was very fair. For example, when dealing with valuation ranges, he always adopted the value that was most favourable to the Applicant. I find he was an impressive witness.
4. Save for one adjustment that I will make; I accept and adopt his valuation evidence.

1. All three valuers utilised the sale of 225 Masters Road, Darling Downs (sale price of $1.2 million) (225 Masters Road) and the sale of 191 Masters Road, Darling Downs (sale price of $1.5 million) (191 Masters Road). In my view, these two sales set the range for the value of the Land in the before. Both sales are in Darling Downs, of a similar size and were relatively recent.
2. I agree with Mr Molony and Ms Bingham that the sale at 191 Masters Road is superior to the Land. Mr Cameron considers the Land was superior due to the cabana/pool area and landscaping. I disagree.
3. 191 Masters Road is better located and, in an overall sense, its improvements are superior than the Land. The residence was built in 2014 with quality fixtures and fittings and the ancillary improvements included a heated below ground pool. There is a 150,000-litre rainwater tank, a barn with horse improvements. The property also had immediate access to bridle trails which are valued in this locality. It is also in a quieter location.
4. By reference to this sale, I find that the value of the Land in the before scenario is below $1.5 million.
5. The sale at 225 Masters Road provides, I find, the most comparable sale. The residence was newer (2017) and was high quality. The ancillary improvements included a below-ground pool, double garage, central courtyard and fireplace, alfresco and fenced paddocks. It is very comparable to the Land in the before scenario but in a superior location. However, market conditions improved between July 2020 and July 2021 (the Taking Date) such that the adjusted sale price would be closer to $1.39 million.
6. Mr Molony considers that this sale provides the ceiling for the value of the Land in the before of $1.4 million. Ms Bingham considers that the Land was slightly superior, but Ms Bingham did not adjust her sale price upward to take account of the changed market conditions as at the Taking Date. Mr Cameron considered this sale, but not closely. He simply described it as 'inferior'.
7. I have also closely considered the sale at 11 Rustic Place, Oakford in August 2021.[147] The residence was built in 2000, extended in 2007 with a self-contained granny flat. A second residence was constructed in 2015. The property also includes an underground pool, extensive verandas and a workshop. It is in a quiet precinct away from major roads. I agree with Mr Molony, and so find, that this property is superior to the Land. The sale price of $1.475 million supports a valuation of the Land in the before at $1.4 million or less.
8. Likewise, the sale of 127 Foxton Drive, Oakford (referred to by Ms Bingham) supports a value for the Land at or below $1.4 million. The sale price of $1.380 million in September 2020 was for a 1997 residence comprising five bedrooms and two bathrooms. Ancillary features include a wrap-around veranda, an alfresco patio and a 10 metre x 5 metre pool. A further dwelling was added in 2015. I find that this sale is also superior to the Land.
9. Overall, I agree with and accept Mr Molony's analysis in the before scenario. His valuation was the most thorough, balanced and well­reasoned. In my view, a hypothetical prudent purchaser would not pay more than between $1.3 - $1.4 million for the Land in the before scenario. While the ancillary improvements on the Land are very high quality, the main residence is not large, and the overall location is somewhat compromised by the proximity of (at grade) Thomas Road and the railway line.
10. I adopt a value of $1.4 million for the Land in the before.

1. In the after scenario, Mr Cameron adopts a value of $1.2 million. Ms Bingham adopts $950,000 and Mr Molony adopts $1 million (later reduced to $925,000).
2. Mr Molony's sales in the after are all properties that back onto major roads (Thomas Road and Rowley Road). The sale at 114 Kentucky Drive West, Darling Downs for $960,000 was in the same month as the Taking Date. The improvements are inferior to the Land but in a superior location. Nevertheless, Mr Molony considers that the Land would have a higher value in the after due to the quality of the improvements.
3. The sale at 33 Barip Place, Oakford has improvements that are inferior to the Land but is, in an overall sense, better located even though it backs onto Rowley Road. Because of its superior location, Mr Molony considers its value at $1.150 million would exceed that of the Land.
4. Ms Bingham refers to the sale of 70 Bangap Place, Oakford for $850,000 as an inferior property. It abuts Tonkin Highway to the rear (at grade). Because of the elevated flyover, a higher overall value would attach to the Land in the after due to the quality of the improvements.
5. Ms Bingham considers the sale at 134 Wungong South Road, Darling Downs at $1.05 million to be superior to the Land in the after. It is similar sized, the residence is of a similar age and the ancillary features include a below ground pool, bar and barbeque area, self­contained granny flat, bore, electric gate, stables with walk in/walk out horse facilities. These facilities are broadly comparable to the Land. However, the property is in a superior location compared to the Land in the after scenario.
6. Mr Cameron does not refer to any specific sales to establish or rationalise his after value. What he does say is that the value of the Land in the after lies below that of properties with modern homes, with a reasonable level of ancillary accommodation and devoid of negative impacts which attract prices of between $1.4 - $1.45 million. Rather he considers the value of the Land in the after is 'more in the order of $1.2 million'.
7. I have already explained that I find Mr Cameron's analysis of the after scenario difficult to follow as his reasoning process is not explained. While it can be accepted that the Land in the after is worth less than $1.4 million, more analysis is needed to establish just how much below that value the Land sits. I find that his blunt conclusion that a value 'more in the order of $1.2 million' does not suffice when there are plainly sales that could have been referred to, compared and more fully analysed to justify that opinion.
8. In an overall sense, Mr Molony has a range of $1.1 to $1 million based on the sales evidence. Ms Bingham was between $900,000 to $1 million. Mr Molony adopted the bottom end of his range (being $1 million) while Ms Bingham picks her midpoint of $950,000. After being instructed to consider the effects of the railway line, Mr Molony reduced his after value to $925,000.

1. In my mind, the impact of the after scenario on the value of the Land needs to be very carefully considered. Having attended the Land together with the parties, there is little doubt the Public Work will have a significant deleterious effect on the value of the Land. However, I do accept Mr Lloyd's evidence that road noise will be reduced by the Public Work, due to the range of acoustic treatments that have been included.
2. Nevertheless, Thomas Road has gone from being a busy (at grade) road to a steep concrete flyover with a large, and imposing, concrete wall that faces the Residual Land. I find the visual impact is quite stark. In my view, it erodes, in a quite a fundamental sense, the rural living amenity of the Residual Land.
3. While it must be acknowledged that the Land abutted Thomas Road, a busy regional road in the before, it is quite another thing for the outlook onto that busy (at grade) road to be replaced with a flyover structure of the scale of the Public Work. The view across Thomas Road has been replaced with a stark concrete wall that rises to 13 metres in height along its length.[148]
4. It is also plain that the Applicant has taken steps to shield himself from, or to mitigate the impact of being adjacent to, Thomas Road. That is evident by the planting of a significant number of trees along the boundary, 45 of which were located on the Taken Land and must be assumed to have been removed in the after. It is also evident in the manner in which the pool and cabana have been sited on the Land, with the cabana facing away from Thomas Road overlooking the pool area. The decision to locate and orientate the cabana/pool area is negated somewhat by the height (and length) of the concrete wall that now rises behind the cabana (when viewed from the pool area).
5. Added to this will be the significant increased use of the railway line and the consequential amenity impacts in terms of increased noise.
6. It is at this point where I feel compelled to adopt what is commonly termed a 'liberal estimate'. I will explain why.

Why I will apply a liberal estimate to the after value

1. It is accepted in compensation cases that any doubts as to the compensation that is owed to a disposed owner must be resolved in favour of 'a liberal estimate'.[149]
2. As I have set out at [39(13)], the leading authorities on the principle are Executor Trustee which was affirmed in Boland v Yates. Perhaps the best statement of the principle was from Osborn J in Roads Corporation v Love[150] where he stated:

Other things being equal, if there is a doubt as to the amount properly payable by way of compensation that doubt should be resolved in favour of the more liberal estimate.

1. The principle needs to be carefully applied, and it is uncertain whether it can be applied to all heads of compensation. However, it is beyond question that it does apply to the valuation of land.[151]
2. The principle applies having regard to the fact that the reality of valuing a hypothetical sale in the face of a compulsory acquisition is an artificial construct which is inherently difficult and uncertain, where there are conflicting valuations and ultimately where the fact finder is left in some doubt.
3. It is beyond doubt that the Public Work is going to have a series deleterious impact on the value of the Residual Land. As I have stated, Ms Bingham's and Mr Molony's valuations are reasonably aligned. Together, their values for the after scenario establish a range between $1.1 million and $900,000. Mr Molony adopted the value of $925,000 taking account of the impact of the railway, Ms Bingham adopted $950,000 without any regard to the impact of the rail.
4. While I generally prefer, and have largely adopted, the valuation evidence of Mr Molony, in the context of the after scenario, I will adopt a more liberal estimate that favours the Applicant. I do so because I am ultimately left in some doubt as to what the appropriate after value is for the Residual Land having regard to the impact of the Public Work. Ultimately, I am concerned that $925,000 may be a value that is slightly too high. Therefore I will adopt the floor of Ms Bingham's range for the after valuation, being $900,000.
5. I therefore find that the difference between the value of the Land in the before scenario and of the Residual Land in the after scenario is $500,000.

1. Mr Molony's approach was to take that difference in value between his before and after assessments and then apportion it between the value of the Taken Land and injurious affection. He apportioned $22,000 as the value of the Taken Land and the remaining amount is to be treated as injurious affection.
2. Mr Molony adopted a land value for the Taken Land of $25 per square metre to derive a value of $22,000. This land value aligns with that found by Ms Bingham. Mr Cameron adopted a rate of $32.32 per square metre, equating to $26,500. However, that value derives from his before value which, as I have explained, I do not accept.
3. I find that the value of the Taken Land is $22,000.

1. Having made those findings on the before and after value, and having fixed the value of the Taken Land as an aspect of that, I apportion the compensation owed to the Applicant as follows:

(a) value of the Taken Land, s 241(2): $22,000.

(b) injurious affection to Residual Land, s 241(7)(b): $478,000.

1. The Applicant claims $28,335.60 in professional fees from their arborist, valuer, engineer and lawyer. These fees do not include the litigation fees associated with the Tribunal hearing. The claim is made pursuant to s 241(6)(d) of the LA Act.
2. Section 241(6) of the LA Act is what is known as a 'disturbance' or 'consequential losses' head of claim. As with injurious affection, this label does not appear in the LA Act. The opening words speak to 'loss or damage sustained by a claimant' and govern the nature of what may be compensable pursuant to s 241(6). Such matters include removal expenses, disruption and reinstatement of a business or losses resulting from the halting of works in progress as at the date the interest was taken.
3. The claim for these professional fees under s 214(6)(d) must fail. The fees claimed are plainly not fees 'in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest'.
4. For the avoidance of doubt, I will also explain why compensation for such fees is not available under s 241(6)(e) of the LA Act either. That provision states I can have regard to 'any other facts which [the Tribunal] considers it just to take into account in the circumstances of the case'.
5. In Cereni v The Minister for Transport,[152] Parker J held that a claim for such professional fees under s 241(6)(e) must fail. There, his Honour followed the decision of Virtue J in Konowalow, where it was held that the statutory predecessor[153] to s 241(6) is to be read ejusdem generis.
6. That is to say, s 241(6) establishes, and is confined to, a genus which is described as 'compensation for loss or damage resulting from interference with the activities being carried on by a plaintiff on the land'.[154] Professional fees in anticipation of, or in response to, the taking of an interest in land do not fall within that genus. More recently, this view was followed by Edelman J in Lenz.[155]
7. It follows that it is not for me, as a Senior Member of an administrative tribunal, to depart from what is now, and has been for some time, settled law in relation to the application of s 241(6)(e) of the LA Act.
8. In so finding, I feel compelled to say that, as a matter of principle, I am sympathetic to the Applicant's claim for such fees. The taking of 875m2 of his Land for the Public Work was imposed on him, was not of his doing and, quite naturally, has disrupted his life to a significant degree, and will continue to do so into the future. No one in this case has suggested otherwise.
9. It is also relevant, in my view, that the Applicant has been required, by an Act of Parliament, to compulsorily yield part of his Land for the benefit of the broader public interest embodied in the Public Work. As a matter of principle, it seems reasonable that persons in the position of the Applicant should be entitled, within reason, to access some professional advice to guide them through the stresses and uncertainty associated with the acquisition and compensation process.
10. I would also observe that the compensation position in relation to professional costs incurred in obtaining legal and valuation advice under the LA Act, as against its eastern states' counterparts, seems to be something of an outlier. The equivalent legislative provisions at Commonwealth[156] level, as well as in New South Wales,[157] Victoria,[158] Queensland,[159] and South Australia[160] each expressly provide for the recovery of some professional fees in consequence of the taking of an interest in land.
11. However, I accept that the extent and scope of compensation that is to be made available to those impacted by the compulsory acquisition of interests in land is, quite properly, a matter for the legislature.

1. For the foregoing reasons, the compensation for the Taken Land is $22,000 and injurious affection results in a further $478,000. Therefore, I have found that the Applicant is owed $500,000 for the taking of the Taken Land having regard to the relevant provisions of s 241 of the LA Act.
2. Added to that should be solatium fixed at 10% and interest also needs to be paid at the rate provided for in s 241(11) of the LA Act. The advance payment of $385,000 (plus interest) made on 12 April 2022 will, of course, need to be taken account of in assessing any compensation that remains outstanding.
3. The parties should confer on the orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[7] Being, generally, the Minister for Lands under the LA Act. However, the Minister's powers under Pts 9 and 10 of the LA Act can be delegated to the Minister responsible for administering the Main Roads Act 1930 (WA) (MR Act): LA Act, s 159(b). Furthermore, the Minister responsible for the MR Act may then subdelegate their power under s 159 to the Commissioner or any officer of the Commissioner: LA Act, s 160(1)(b).

[8] LA Act, s 170(1). As set out at [7], the Notice of Intention in this matter was dated 2 December 2020.

[22] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [156]-[158], [162]-[163], [175-176], [179]-[198], [213], [228], [339]-[379], [478]-[479], [1503], [2213]; see also the Court of Appeal in McKay v Commissioner of Main Roads [2013] WASCA 135 [137], [139]-[147] (Murphy JA, with whom Martin CJ and Buss JA agreed).

[23] Italiano v The Water Corporation [No 2] [2020] WASC 112 [73]-[77] (Kenneth Martin J).

[24] DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 [71] (Kenneth Martin J).

[25] Lenz Nominees Pty Ltd v The Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 [65] (Edelman J).

[26] LA Act, s 241(1); Konowalow & Felber v Minister for Works [1961] WAR 40, 41; (1960) 8 LGRA 75, 76­77 (Virtue J) (Konowalow).

[28] Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Co of South Australia Ltd [1947] HCA 10; (1947) 74 CLR 358 at 373-374 (Dixon J) (Executor Trustee).

[29] Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209, [265], [271] (Callinan J) (Boland v Yates).

[30] Spencer v Commonwealth (1907) 5 CLR 418, 432 (Griffith CJ) (Spencer v The Commonwealth); Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 [25] (the Court).

[32] ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447; (2008) 162 LGERA 59 [40] (the Court) (ISPT); Commonwealth Custodial Services Ltd (as Trustee for Burwood Trust Fund) v Valuer-General (NSW) (2006) 148 LGERA 38, 45 [15] (Biscoe J).

[34] Love v Roads Corporation [2011] VSCA 434 [63]-[66] (the Court).

[35] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 (2008) 233 CLR 259; (2008) 170 LGERA 345 [51] (the Court); Boland v Yates [271]-[274] (Callinan J).

[37] Bronzel v State Planning Authority (1979) 21 SASR 513, 523; (1979) 44 LGRA 34, 44 (Wells J); Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541, 544-545; (1973) 32 LGRA 170, 173-174 (Wells J); Arcus Shopfitters Pty Ltd v Western Australian Planning Commission [2002] WASC 174; (2002) 125 LGERA 180 [76] (Pullin J) (Arcus).

[39] Executor Trustee, 373-374 (Dixon J); Boland v Yates [100] (Gaudron J); [111] (Gummow J); [356] (Callinan J).

[48] The six criteria are: (i) tree size; (ii) expected duration of visual amenity; (iii) importance of position in the landscape; (iv) presence of other trees; (v) relation to setting; and (vi) form.

[51] ts 77, 88-90, 16 May 2023. The 'day period' is 6.00 am to 10.00 pm; the 'night period' is 10.00 pm to 6.00 am.

[52] 91 during the day and 16 in the evening. Based on model year 2044, estimated at 140% of 2020 Armadale services.

[53] The LAeq is the equivalent steady-state, A-weighted sound level which in a specified time period contains the same acoustic energy as the time-varying level during the same period. The LAeq (Day) is the 16-hour time period 6.00 am to 10.00 pm; SPP 5.4, section 7.

[54] The LAeq (Night) is the 8-hour time period between 10.00 pm and 6.00 am.

[66] 21,440 x $30.32 = $650,000; Mr Cameron's before land value.

[71] The outdoor noise target is to be placed 1-metre from the most exposed, habitable façade.

[77] Ms Bingham says this was a typographic error. Ms Bingham agrees the dwelling was constructed in 2002; ts 144, 17 May 2023. However, the typographical error was repeated throughout her report.

[100] Kilmaley Investments Pty Ltd v City of Wanneroo [No 2] [2017] WASC 307 (Kilmaley).

[101] Kilmaley [102] - [112].

[104] I will explain the concept of injurious affection below at [164] to [166].

[105] Kilmaley [152] to [168], see particularly [161].

[107] ts 160, 17 May 2023; ts 280, 18 May 2023.

[112] Spencer v The Commonwealth, 432.

[113] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [162] (Steyler J, Templeman J, Simmonds J).

[114] Although it states it has been used for this purpose as well as to calculate fines payable.

[117] The concept of 'injurious affection' is also used in the context of Pt 11 of the Planning and Development Act 2005 (WA) (PD Act). In the context of the PD Act, injurious affection is, in effect, the damage that is caused to land by the making or amendment of a planning scheme, most often by way of a reservation for a public purpose.

[118] Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 78 ALJR 1022; 134 LGERA 99 [24] (McHugh, Gummow, Hayne, Callinan & Heydon JJ); Lenz [302].

[119] Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603; (2001) 114 LGERA 389 [32] (Gleeson CJ, Gummow, Kirby & Callinan JJ).

[120] Boland v Yates [174] (Hayne J); Lenz [304].

[121] Brisbane City Council v Mio Art Pty Ltd [2011] QCA 234; (2011) 183 LGERA 352 (Mio Art) [30]; Lenz [239].

[122] McKay [337] - [338]; see also Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478 [118] (Pritchard J).

[124] Application to the Tribunal, page 10.

[129] A 2.5-metre-high wall was costed at $246,435.

[133] Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [59] (Heydon JA).

[134] Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370, 390 (Anderson J).

[135] Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).

[136] RiverBank Pty Ltd v Commonwealth (1974) 48 ALJR 483, 483-484; (1974) 31 LRGA 244, 246 (Stephen J).

[137] Chircop v Transport for New South Wales [2014] NSWLEC 63 (Biscoe J); applying Adams v Valuer General [2014] NSWLEC 1005 (Parker AC).

[138] Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 [52] (McLure J, Anderson J and Steytler J agreeing).

[141] Although I do accept in her 'brief description' in her valuation report, she notes that there are mature gum trees on the Taken Land.

[143] I do note, however, that Ms Bingham's valuation of the Taken Land at 25m2 actually did match the valuation by Mr Molony. However, the concern about the absence of that explanation remains.

[149] Refer [34(13)] above by reference to Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd (373-374) (Dixon J); Boland v Yates Property Corporation Pty Ltd [100] (Gaudron J), [111] (Gummow J), [356] (Callinan J).

[150] Roads Corporation v Love [2010] VSC 32; (2010) 173 LGERA 1 [122]

[151] Newton, G & Connolly, C (2017) Land Acquisition, 7th Edition, Lexis Nexis, [3.18].

[152] Cerini v The Minister for Transport [2001] WASC 309.

[153] Being Public Works Act 1902 (WA), s 63(aa)(v).

[155] Lenz [409] - [420]; see also Caltex Petroleum Pty Ltd v The Commissioner for Main Roads [2004] WASC 239 [28] - [34] (McKechnie J).

[156] Lands Acquisition Act 1989 (Cth), s 55(2)(e).

[157] Lands Acquisition (Just Terms Compensation) Act 1991 (NSW), s 59(1)(a) and (b).

[158] Lands Acquisition and Compensation Act 1986 (Vic), s 41(1)(f).

[159] Acquisition of Land Act 1967 (Qld), s 20(5)(a).

[160] Land Acquisition Act 1969 (SA), s 26B(1).