Azizi v Council of the City of Ryde; Alnox Pty Limited v Council of the City of Ryde

Representation

1. The Azizi interests were represented by Mr I Hemmings SC and Mr T Poisel, barrister whilst the Council was represented by Mr M Hall SC and Ms J McKelvey, barrister. Written opening and closing submissions were provided for the Azizi interests and for the Council. I note that these submissions were comprehensive and permitted the hearing to be conducted in a time effective fashion.

The hearing

1. Although originally scheduled to be heard over seven days, the entirety of the allocated time was not necessary to be used. First, commencement of the hearing was pushed back by a day because of the late provision of the joint expert valuers' report. This delay did not impact on the conduct of the hearing as the valuers had reached agreement on the valuation outcomes for various potential planning scenarios. The only difference between them was an 18 square metre difference in the site area used for their calculations (see later discussion on this topic).
2. The hearing commenced on Tuesday 22 June with opening addresses by counsel for the parties. The site inspection took place on the morning of the following day with the oral evidence of the town planners commencing after the completion of that inspection. The oral evidence of the town planners then continued for the whole of the third day.
3. At the conclusion of the town planners' oral evidence, the proceedings were adjourned until the following Monday in order to permit the preparation of written closing submissions. Closing addresses for the parties commenced on the following Monday and were concluded before lunch on Tuesday 29 June when I reserved my decision. I am indebted to counsel for the efficient way the proceedings were conducted given that, with the exception of the site inspection, the proceedings were conducted remotely (as a consequence of Covid-19 pandemic restrictions) using Microsoft Teams software with no physical attendance on behalf of the parties in the courtroom.

Introduction

1. Provisions of both the Land Acquisition Act and the Environmental Planning and Assessment Act 1979 (the EPA Act) underlie matters that require consideration in these proceedings. However, it is not necessary to set out all of the provisions of this legislation that are engaged as the detail of many of them have not given rise to controversy requiring to be addressed in these proceedings (although they may have been matters of controversy in earlier related proceedings).
2. In addition, although processes associated with potential changes to the 2014 LEP also require to be described, none of the detailed provisions of the 2014 LEP require consideration and, therefore, no provisions of this environmental planning instrument require to be set out in detail.

Relevant provisions of the Land Acquisition Act

1. Only five provisions of the Land Acquisition Act require to be set out for the purposes of this judgement. The first of them is s 56, the provision that sets out how the market value of compulsorily acquired land is to be determined for the purposes of paying compensation to the dispossessed owners for the compulsory acquisition. This provision is in the following terms: 56 Market value (1) In this Act - market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid) - (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) … (3) …
2. The second provision of the Land Acquisition Act engaged is that which underpins the claim by Mr Azizi for a stamp duty equivalent compensation payment arising from his necessary relocation as a consequence of the compulsory acquisition of his home at 88 Blenheim Road, being part of the site acquired by the Council. This claim is made pursuant to s 59(1)(d), a provision in the following terms: 59 Loss attributable to disturbance (1) In this Act - loss attributable to disturbance of land means any of the following - (a) …, (b) …, (c) …, (d) stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired), (e) …, (f) … (2) …
3. The third provision of the Land Acquisition Act engaged for consideration in this judgement is s 48. I have earlier noted, at [34], the proceedings (both before me and in the Court of Appeal) concerning the statutory requirement for a 90% advance payment to the interests of the compensation sums determined as appropriate by the Valuer General.
4. As a consequence, the potential arises that there may be an obligation pursuant to s 48(4) of the Land Acquisition Act falling on Mr Azizi and/or Alnox to repay some portion of the 90% advance payment (and statutory interest) already made to either or both of them. How this possibility is to be addressed is a final element of the substantive matters arising in these proceedings. However, for present purposes, it is appropriate to reproduce the relevant elements of s 48 of the Land Acquisition Act. This is in the following terms: 48 Advance payments of compensation etc (1) An authority of the State may, at any time after land is acquired, make an advance payment of compensation to any person who the authority considers is entitled to the compensation. (2) …. (3) …. (4) A person who receives an advance payment of compensation which exceeds the amount of compensation to which the person is entitled must repay to the authority of the State the amount of the excess. (5) …. (6) Any amount due to an authority of the State under this section may be recovered as a debt in any court of competent jurisdiction.
5. The fourth provision of the Land Acquisition Act engaged for consideration in this judgement is s 60, a provision entitled Disadvantage resulting from the relocation. This head of compensation, formerly known as solatium, is also the basis of a separate compensation claim on behalf of Mr Azizi arising from him needing to relocate his residence as a consequence of its acquisition by the Council as part of the overall compulsory acquisition of the site. This provision is in the following terms: 60 Disadvantage resulting from relocation (1) In this Act - disadvantage resulting from relocation means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person's principal place of residence as a result of the acquisition. (2) The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000. (3) In assessing the amount of compensation in respect of the disadvantage resulting from relocation, all relevant circumstances are to be taken into account, including - (a) the interest in the land of the person entitled to compensation, and (b) the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and (c) the inconvenience likely to be suffered by the person because of his or her removal from the land, and (d) the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land. (4) … (5) … (6) … (7) …
6. The final provision of the Land Acquisition Act engaged for consideration in this judgement is s 61(b), this being in the following terms: 61 Special provision relating to market value assessed on potential of land If the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of - (a) …, and (b) any financial loss that would necessarily have been incurred in realising that potential.

The evidence

1. Two areas of expertise required to be addressed for the purposes of these proceedings. These were the disciplines of town planning and land valuation. The expert town planners who gave evidence were Mr Juradowitch (for the Azizi interests), and Mr Mead (for the Council). The valuers were Mr Dempsey (for the Azizi interests) and Mr Preston (for the Council).
2. The documentary evidence was extensive. Virtually all of it was provided electronically. Initially, the vast bulk of the electronic material was provided on a USB stick. Further electronic material was added to the primary material after it had been emailed to my Associate. The exhibits in the proceedings comprised the following: 1. Exhibit A was the Court Book. This comprised the pleadings and other formal documents; 2. Exhibit B was the Evidence Book. This comprised material behind 13 tabs totalling 1573 folios. The town planning report of Mr Juradowitch for the Azizi interests was at tab 4 in this exhibit with supplementary calculation correcting reports from him being at tabs 7 and 8 in this exhibit. The town planning report of Mr Mead for the Council was at tab 5 of this exhibit. The joint report of Mr Juradowitch and Mr Mead was at tab 6 of this exhibit. The joint expert report of the valuers was at tab 11 of this exhibit. Mr Dempsey's individual expert valuation report was at tab 9 with Mr Preston's individual expert valuation report being at tab 10. 3. Exhibit C was the combined tender bundle. This exhibit contained documents behind 111 tabs comprising 5078 folios in total. Only some of these documents were the subject of evidence of the planners and/or submissions for the parties. Relevant documents will require later consideration; 4. Exhibit D was the Statement of Agreed Facts; 5. Exhibit E comprised a list of the dramatis personae involved in the proceedings; 6. Exhibit F comprised agreed notes of the site inspection. These notes were settled by the legal representatives of the parties; and 7. Exhibit G comprised aerial photographs showing the location of the three sites on the southern side of Epping Road where medium density residential development had been approved (two of these approvals being pursuant to the (now repealed) Pt 3A of the EPA Act and one pursuant to an approval by the Joint Regional Planning Panel through a gateway process). It is to be noted that all three of these developments were opposed by the Council.
3. It is to be noted that the air photographs in Exhibit G noted immediately above were part of materials sought to be tendered on behalf of the Azizi interests during closing oral submissions in reply. Tender of the material was objected to with this objection being upheld in part. As a consequence, only the air photos described above were admitted into evidence.
4. Mr Patrick Azizi, Construction Project Manager, deposed two affidavits. These were dated 25 September 2020 and 16 June 2021. Mr Patrick Azizi is the sole director of Alnox. He was not required for cross-examination.
5. Of the experts, Mr Juradowitch and Mr Mead gave concurrent oral evidence.
6. Mr Preston and Mr Dempsey were not required to give oral evidence given that they had reached agreement on a range of alternative potential valuation outcomes, outcomes only dependent on my determination of the underlying town planning issues and, as later discussed, resolution of the calculation of the land area of the site.

The issues

1. As noted above, the valuers had reached agreement on the rates per square metre to be accorded to the site with the rate to be applied varying to reflect the outcome arising from resolution of the town planning issues in dispute. The town planning issues, therefore requiring to be determined were: 1. Is it appropriate, absent the public purpose, to assume that high density residential development would have been rendered permissible on the site? 2. If not, absent the public purpose, is it appropriate to assume that medium density residential development would have been rendered permissible on the site? 3. If development more intense than low density residential development is appropriate to be assumed, what would be the floor space ratio and height controls that could be expected to be applied to such a theoretical development for the site in order to calculate the gross floor area to which an agreed valuation factor should be applied? 4. Assuming higher density residential development is to be the basis for calculating compensation to the Azizi interests for acquisition of the site, what is the resulting total compensation to the Azizi interests for the land value arising from the compulsory acquisition of the site?
2. With respect to this final point, as later discussed, the expert planners' joint report sets out a range of agreed yield outcomes - the one to be adopted depending on the answer to the earlier questions.
3. There are also two subsidiary disputes arising from the acquisition of Mr Azizi's home as part of the acquisition of the complete site by the Council. These are: 1. Is Mr Azizi entitled to receive a payment pursuant to s 59(1)(d) of the Land Acquisition Act for the stamp duty liable to be incurred in the acquisition of a replacement residence and, if so, how is this to be calculated? 2. How much is it appropriate to require the Council to pay Mr Azizi pursuant to s 60 of the Land Acquisition Act? Payment entitlement pursuant to this provision (formerly known as solatium) arises from the terms of the provision which were earlier set out at [45].
4. Although the Azizi interests have agreed on the apportionment between themselves of the compensation arising from the compulsory acquisition of the site, it will be necessary for the parties to agree on the precise terms of the orders to be made. These will need to reflect the outcome of the proceedings to take account of advance payments already made (including such statutory interest as has already been paid), with incorporation, in the orders resolving Mr Azizi's proceedings, of the determined stamp duty outcome (if any) pursuant to s 59(1)(d) and the amount payable as solatium pursuant to s 60.

General attributes of the site

1. The site is generally rectangular in shape with its northern and southern boundaries being a little longer than those of its east/west dimensions. Taken together, the overall elements of the site have a frontage to Epping Road to the north.
2. Of the three allotments which comprise the site, 88 Blenheim Road (owned by Mr Azizi individually) also has a frontage to Blenheim Road with access to the dwelling on this allotment being from the turning head of that roadway. Access to each of the other allotments is via a driveway directly from Epping Road, a major arterial thoroughfare.
3. The southern and western boundaries of the site abut the Council's Blenheim Park with the southern boundary running along the northern side of the parking area within Blenheim Park serving users of that recreation facility.
4. It is to be observed that I have adopted a conventional orientation reference being that the site's frontage to Epping Road is toward its north. It is appropriate, in the matters requiring consideration in this judgement, that this conventional orientation be adopted for reference purposes.
5. The site generally slopes from Epping Road toward the car park (flattening somewhat toward that car park). The site also has a cross-slope, this being gently upward to the west along its Epping Road frontage.
6. Two signalised pedestrian crossings of Epping Road are in general proximity to the site. On the northern side of Epping Road is located the North Ryde Metro Station precinct, a precinct which includes significant high-rise residential development (as also later discussed).

The site inspection

1. On the morning of the second day of the hearing, I undertook an inspection of the site and of other locations that were considered relevant by the parties. We met in the Blenheim Park car park, a car park accessed from the turning head of Blenheim Road. Present were the legal representatives of the parties and the town planning experts advising them. Appropriate social distancing was observed and masks were worn.
2. The first phase of the site inspection comprised:

• observing the car park and the off-leash, fenced dog exercise portion of Blenheim Park immediately adjacent to the car park;
• walking up Blenheim Road to its intersection with Morshead Street then walking a short distance along Morshead Street and looking back to the site across Blenheim Park - with the viewing being over or between the dwellings in this street;
• returning to the vicinity of the car park by walking across Blenheim Park, observing the distribution of the various trees between the Morshead Street residences and the site - including the various heights of these trees and the extent of their canopy cover acting as filters for viewing of the site (Blenheim Park sloping downward from the rear fences of the Morshead Street dwellings to the dog park and car park area);
• observing the extent of the use of the car parking in the turning head of Blenheim Road and up Blenheim Road toward its intersection with its own diverted connection to Epping Road. It is to be noted that this car parking is not time-limited, a matter subsequently addressed in the oral evidence of the town planners;
• walking from the car park along the eastern edge of the site to the footpath adjacent to the southern side of Epping Road. It is to be noted that a short flight of steps leads from Blenheim Road to the side of Epping Road, this being reflective of the fact that the site slopes from the car park up to Epping Road;
• walking along the Epping Road frontage of the site observing, to the extent possible through the vegetation in the front setbacks of each of the three allotments, the setbacks of the present dwellings. It is to be noted that, for the two dwellings on the allotments which were compulsorily acquired from Alnox, each of them had vehicle driveway access direct from Epping Road (driveway access to Mr Azizi's dwelling was from Blenheim Road); and
• after reaching the western end of the site, we turned into Blenheim Park and walked back to our vehicles.

1. We then proceeded in convoy along Epping Road to the west to visit two apartment developments on the southern side of Epping Road. The first of these apartment developments (the Allengrove site) was a part five/part two storey development located between Allengrove Road and Epping Road.
2. The second apartment development visited (the Whiteside site) was also a part five/part two storey development located between the rear boundaries of residences on its southern side (these addressing Parklands Road) and Epping Road, to its north.
3. Each of these sites will be discussed later, both as to their physical attributes and as to the evidence given by the town planning experts concerning them. It is sufficient to note, for present purposes, that these developments were approved pursuant to (the now repealed) Part 3A of the EPA Act with the approvals being given despite opposition from the Council to each of them.

The area of the site

1. As the value of the land is to be determined on the basis of its development potential (if I determined that the site should not be regarded as having an ongoing R2 Low Density Residential zoning), it is necessary to know the area of the site for such a calculation. Unusually in these proceedings, the information relied upon by the expert valuers did not include an agreement as to the area of the site. Mr Preston, the Council's expert valuer, relied on calculations derived from documents sourced from the Registrar General showing the official areas for each of the allotments comprising the site. These added to a total of 2004.4 square metres. Mr Dempsey, the expert valuer for the Azizi interests relied on a survey document. This survey document put the area of the site at 2022.4 square metres.
2. The source documents disclosing the 18 square metre difference were contained in appendices to the joint expert valuers' report (Exhibit B, tab 11).
3. On the final morning of the hearing, I indicated to Mr Hemmings and Mr Hall that I would need a settled figure for the area of the site to enable me to make a final determination after considering all the factors necessarily engaged up to that point. I invited the parties to agree on a process by which the area of the site, for the purposes of these proceedings, could be settled between the parties by reaching an agreed outcome.
4. On 30 June, the day after I had reserved my decision, my Associate received an email from the Council's legal representative advising that the parties had agreed to "split the difference" for the purposes of my determination and had, therefore, agreed to have me resolve the matter on the basis that the site had an area of 2013.4 square metres. I have proceeded to determine the outcome of these proceedings on that agreed basis.

The "statutory disregard" - emergence of the public purpose

Introduction

1. It is convenient, before turning to address matters of substance in the evidence and submissions concerning what is to be concluded to be the development potential of the site, to address the dispute between the parties as to the timing of emergence and the impact of the "statutory disregard" contained in s 56(1)(a) of the Land Acquisition Act.
2. For the purposes of the Land Acquisition Act, the emergence of knowledge of the public purpose plays a potentially significant part as a consequence of this engaging the operation of what is referred to as the "statutory disregard". The "statutory disregard" is provided for in s 56(1)(a) of the Act, a provision earlier set out at [41].
3. Different positions were advanced for the Azizi interests and for the Council as to when I should conclude was the appropriate time to regard the "statutory disregard" as being triggered. The competing positions are discussed below followed by my conclusion on this point.
4. The contest that arises, in effect, is whether or not the evincing of the public purpose occurred at some date prior to the resolution of the Council's Planning and Environment Committee (the Council Committee) in March 2016 to recommend to the Council that the site be acquired for the purpose of adding it to Blenheim Park or whether, at some earlier date (potentially as early as 2012), an intention (or implied intention) on behalf of the Council can be discerned that would permit the drawing of a conclusion that the statutory disregard did not solely arise in the context of the Azizi interests' planning proposal that was considered by the Council Committee (and the Council) and recommended for rejection but also in conjunction with the resolution to seek to acquire the site for incorporation into Blenheim Park.
5. In this context, it is convenient to set out, as encapsulating the matters required to be considered in this area of disagreement, a short extract from the closing oral submissions of Mr Hall. Before doing so, it is appropriate to note that this extract is to be viewed in the context of Mr Hall's references to the decision of the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2007) 233 CLR 259; [2007] HCA 5, an appeal against the decision of the Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; [2005] NSWCA 251. As Mr Hall observed (Transcript 28 June 2021, page 232 lines 47 and 48), the High Court did not disagree with the reasoning of Basten JA in the Court of Appeal. The relevant summary to be drawn from Mr Hall's oral closing submissions is in the following terms (Transcript 28 June 2021, page 233 lines 2 to 41): The first is that his Honour Basten J, by reference to prior authority, draws a clear distinction between decisions that are taken by public authority - the acquiring authority, on planning grounds I'll call them legitimate planning grounds, your Honour doesn't have that qualifier versus those are taken for the purpose of advancing the public purpose. The second is that he says that as a matter of fact, you must take account of the fact that even without an intention to acquire the land, you would still have had a consent authority sitting there opposing the proposed value increasing change to zoning for which the owner is contending, because they have demonstrated that that is the view they take on planning facings of the merits of the relevant application. Both of those illustrate, we respectfully submit, that you do not go through this exercise..(not transcribable)..by the applicants of somehow ignoring decisions on reasoning of the consent authority just because they happen to also be the acquiring authority, and also to hold in their minds the public purpose. The only thing that you're obliged to reject, it'll change in the value of the land caused by the carrying out of the public purpose. Here, there is this linguistic conundrum is facing us in respect of the section, which is that what the council did was refuse to support an upzoning, thereby denying the owners of the land their potential increased value, rather than taking any step or doing anything which would have caused a decrease in value. Nonetheless, I respectfully accept that it must be the case that a decision of whether or not to prevent an upsell, which is exactly what was before the Court in both Murphy's case and Walker's case, can still be caused by the section in some way, so that if you were persuaded that but for the existence of the public purpose, the council in this case would either themselves have permitted a rezoning of the land or would have lent their weight to the planning proposal in 2015, then I accept that that - the..(not transcribable)..56(1)(a), but you cannot on the evidence, I respectfully submit, be persuaded of either of those propositions. That is because there is nothing in the material to indicate that council was holding out on a rezoning just because they thought the proper use of this land was for a park extension. All of the material put forward by the council at each of the phases of their and the department, the JRPP's refusal to upgrade the land, put on the basis of the appropriate planning outcomes for the south side of Epping Road.

The Azizi interests' position on the emergence of the public purpose

1. In essence, the written and oral submissions on behalf of the Azizi interests is that the public purpose can be discerned as existing from as early as 2012. The consequence of this, it was submitted, was as set out in paragraphs 94 and 95 of the written closing submissions on behalf of the Azizi interests: 94. The Court would be satisfied that the influence of the proposal to carry out the public purpose had its genesis in at least 2012. As a result, that influence is in the background of every decision made by the Council in relation to a different outcome for this land since 2012. 95. In the Applicants' submission, that poses great difficulty for the Council seeking to place any reliance upon those subsequent decisions. That is because it is simply not possible to know whether Council officers, councillors or the Council itself might have come to different conclusions in any decision if the officers, the councillors or the Council were not seeking, at the same time, to have the land incorporated into Blenheim Park.
2. The factual basis upon which an earlier date for discerning the existence of the public purpose was set out at paragraphs 92 and 93 of the closing written submissions on behalf of the Azizi interests. These paragraphs were in the following terms: 92. However, according to the Council's own materials, it is apparent that the proposal to incorporate the land into public open space informed the Council's approach to the land from as early as 2012. This can be seen from the submission from Ryde Council to the JRPP. At Folio 628, the Council is critical of the Department's report for failing to "comprehensively assess the strategic planning process undertaken regarding the need/provision of open space in this area of Ryde." Similarly, the last bullet point advances the advantages of Council's Planning Proposal (which it suggests have been ignored). That Planning Proposal was the parallel Planning Proposal to rezone the land for the purposes of open space at the same time as the 45m Planning Proposal was being considered. 93. In support of those concerns, and under a heading "Open Space" at Folio 629 express reference is made to each of the Integrated Open Space Plan 2012 and the 2014 Draft Open Space Future Provision Plan 2034. It is apparent from the submission that each of those two plans specifically considered the incorporation of the Applicants' land into Blenheim Park.
3. In his oral closing submissions, Mr Hemmings referenced (Transcript 28 June 2021, page 211 lines 5 to 30) the terms of the passage of Council' submission to the JRPP citing the Integrated Open Space Plan 2012 upon which he relied. The relevant paragraphs of the submission to the JRPP read: Further, the objectives of the [2012 Open Space] Plan discuss the need for a strategic approach to extending the existing quantum of open space, based on consolidation, stand-alone acquisitions and rationalisation. The Plan identifies Blenheim Park as a potential option for land consolidation: "Consolidation: identifying properties or spaces that are not currently zoned as public open space either within reserves or adjoining reserves, the consolidation of which would extend the capacity of that reserve; an example would include identifying residences adjoining or interjecting into park spaces for acquisition when they come to market, permitting extension of an existing reserve or joining of two separated parks (e.g. Blenheim Park)" In 2014 Council prepared a Draft Open Space Future Provision Plan 2034 which had recommended that the site be acquired as open space, to increase the size of Blenheim Park. The reasons for this were to increase park size in an area of high population growth and to provide improvements to habitat and recreation connections to Myall Reserve by reconfiguring road access to the Park. (N.B. This Plan is yet to be endorsed by Council or publicly exhibited).
4. It is to be noted that the 2014 Draft Open Space Future Provision Plan 2034 does not appear to be in evidence.
5. The conclusion to be drawn from all the above, Mr Hemmings submitted (Transcript 28 June 2021, page 211 line 32 to page 212 line 6), is that: … this plan [the 2014 Draft Open Space Future Provision Plan 2034] is yet to be endorsed by council or publicly exhibited, but nevertheless it plainly, because council brings it to the attention of the JRPP, it plainly was informing the council's approach to its decision making processes, otherwise it would not have suggested that it was relevant to the JRPP's consideration. That is why we say your Honour goes back to 2012, not merely starting at 2016. At 94 of our submissions, we make that proposition, and so as we say, there is an influence in the background of every decision made by the council in relation to a different outcome for this land since 2012, and we note it poses a great difficulty for council to place any reliance upon those decisions, and that's because in our submission, it's simply not possible to know. We distinguish between the three different decision making processes, or council officers, or council laws, or the council itself, whether they - and we spell this out later as well - but they would have come to different conclusions, but for the proposal to carry out the public purpose, and - or may have expressed different reasons for opposition to steps that we were attempting to take. But for the proposal to carry out the public purpose, and the - to use the vernacular, the decision and the decision process is infected by the proposal to carry out the public purpose. And it's just not possible in our submission to quarantine part of the decision making process from another, and so the Court simply cannot place reliance upon these historical decisions.

The Council's position

1. Mr Hall submitted that the proposition that the 2012 Integrated Open Space Plan should be interpreted as providing evidence of specific emergence of the public purpose so as to trigger the "statutory disregard" should be rejected.
2. The submissions were to the effect that:

• although the Integrated Open Space Plan had been adopted by the Council in 2012, it merely proposed that extension of Blenheim Park was a matter which might be part of a future process of identifying properties or spaces where consideration for acquisition could be appropriate when such properties were offered for sale;
• no inference of the desirability of compulsory acquisition could be said to arise from this 2012 report;
• the Draft Open Space Future Provision Plan 2034 prepared in 2014, although prepared within the Council, had not been considered by or adopted by the elected Council, nor had it been put on display for public consultation;
• although the Council's submission to the JRPP may have noted that the Draft Open Space Future Provision Plan 2034 may have recommended acquisition of the site for incorporation in Blenheim Park, this recommendation had no status relevant for present purposes because it had not been considered and adopted by the Council in circumstances where the totality of the plan containing any such recommendation had never been put to the Council for consideration or adoption by the elected Council.

1. In this latter regard, Mr Hall's submissions in support of rejecting the Azizi interests' position on this point are summarised below:

• the 2014 document had no formal status within the Council;
• the 2014 document had not been put on public display for public consultation;
• there was no evidence the elected Council of the day was aware of, let alone had considered and adopted, the 2014 document as a policy; and
• there was no evidence of any other activity with respect to Blenheim Park (let alone the site) arising from the 2012 Open Space Study during the period after 2012.

1. However, it was accepted for the Council that the appropriate starting point for triggering the "statutory disregard" arose from two meetings held in March 2016. The first of these, a meeting on 8 March 2016 of the Council Committee considered the position to be adopted by the Council concerning the Azizi interests' planning proposal - opposing it proceeding to a Gateway Determination. It will later be necessary to discuss this planning proposal and its fate in more detail. It is, however, sufficient for present purposes to note that the Committee adopted a fifteen-point resolution for recommendation to a full Council meeting for adoption as the Council's reasons for opposing the Azizi interests planning proposal (Exhibit C, tab 33, folio 500).
2. However, in addition to the above noted resolution to be proposed to the Council, the Committee also adopted the following further resolution to be recommended to the Council meeting: b) That the General Manager be delegated to investigate and action the acquisition of the land for open space to be incorporated into Blenheim Park.
3. At a meeting of the Council held on 22 March 2016, the Council adopted the recommendations from the Committee without amendment (Exhibit C, tab 34, folio 511).
4. Mr Hall submitted that the Committee's second recommendation and the subsequent adoption of it by the Council constituted clear evidence of the first emergence of the public purpose in the fashion necessary to trigger the "statutory disregard".

Consideration

1. I am satisfied that the appropriate date for emergence of the public purpose should be that proposed by the Council. My reasons for reaching this conclusion can be stated simply.
2. To the extent that the Integrated Open Space Plan 2012 (Exhibit C, tab 111, commencing at folio 4846) referenced Blenheim Park as an instance where residences adjoining or interjecting into a park space might be appropriate to be investigated for future acquisition, this document made it expressly clear (folio 5020) that this was envisaged as a potential path for acquisition only when such properties came to market.
3. There is no suggestion that the authors of that 2012 plan, in envisaging Blenheim Park as an example of a recreation space potentially appropriate for future expansion, was doing that other than in the context of identifying a possibility only as and when such an expansion opportunity arose by an offering of any relevant property for sale (rather than by compulsory acquisition).
4. Even then, the terms of the discussion on folio 5020 did not specifically reference the site - the 2012 Plan merely discussed a conceptual framework for identification of properties where acquisition might be contemplated if they were offered for sale.
5. Even in the context of this bland and broad discussion, there is no suggestion that there was any subsequent policy consideration of this nor any decision by the elected Council (prior to the March 2016 resolution) that could remotely be construed as demonstrating that the collegiate body had ever turned its collective mind to opportunities for expansion of Blenheim Park, let alone expansion specifically by any acquisition (let alone the compulsory acquisition of the site).
6. Indeed, a contraindication can be gleaned from paragraph (h) of the resolution of the Council on 12 March 2013 (adopting the recommendations for finalisation of the 2014 LEP) that the elected Council had not adopted any determined position, at that time, that contemplated the addition of the site to Blenheim Park at any future time. The relevant paragraph of the resolution is at Exhibit C, tab 28, folio 306.
7. The relevance of this resolution in the broader context of the likely potential future use of the site are separately considered later.
8. However, for the purposes of the emergence of the statutory disregard, this resolution coming in time after the adoption of the 2012 Open Space Report is an indication against any conclusion that the elected Council had turned its collective mind to any suggestion that the site be incorporated into Blenheim Park.
9. I am also unable to accept that the 2014 Future Open Space Study can be regarded as an appropriate trigger. As was put for the Council, this study had no formal status within the Council. It had not been put on public display in order to undertake a public consultation process that might ordinarily be expected to be a precursor to adoption of a document such as this as a policy of the Council. There is no evidence that the Future Open Space Study was ever communicated to the elected Council of the day, let alone any evidence that it had been considered and adopted by that body.
10. There is also no evidence of any activity with respect to the Future Open Space Study during the period from 2014 until early 2016, when the Committee recommended the resolution to the Council in the terms earlier set out.
11. The lack of status of the 2012 or 2014 open space studies and the lack of activity concerning them following their preparation belies, in my view, any possibility that they could be regarded as evincing, in the Council, any intention to adopt and give effect to the public purpose, being the acquisition of the Azizi interests' land for addition to Blenheim Park.
12. As was conceded by Mr Hall, the steps taken in the Council's processes in March 2016 provides clear evidence of the emergence of the public purpose (and therefore the triggering of the "statutory disregard") from 8 March 2016.
13. My conclusion is, therefore, consistent with the position submitted by Mr Hall on behalf of the Council. It is also consistent with the opinion expressed by Mr Juradowitch in his individual expert report (at Exhibit B, tab 4, folio 1034, paragraph 13).
14. Although I have concluded that the public purpose first emerged in March 2016 for the purpose of the statutory disregard, it seems to me that, for the valuation process in which I am engaged, the dispute between the Azizi interests and the Council concerning the emergence of the public purpose has no relevant significance. This is because, although the Council's process leading to the development of the 2014 LEP appeared to contemplate the possibility that the Council might consider an increased development density for the site, any such potential was swept aside by the Azizi interests' determination to press ahead with a planning proposal for a development which their own witness in these proceedings, Mr Juradowitch, now concedes was of inappropriate height and scale.
15. Further, although the Council now opposes (and has consistently opposed) any up-zoning of R2 Low Density Residential zoned properties immediately to the south of Epping Road, that position is to be understood in the context where the Council would not be relevant determining body for any hypothetical planning proposal engaged for consideration in my judicial valuation exercise. That body would be the Joint Regional Planning Panel (the JRPP).
16. In this regard, as later discussed as a relevant factor, the JRPP's principal rejection of the Azizi interests' planning proposal as actually advanced for consideration, was based not on the Council's general position of opposition to any up-zoning, but on the specific (and unrelated basis) of the extent of the anticipated likely overshadowing impact of a development of the height proposed on the existing ambience of Blenheim Park.
17. In my determination of what would have been the likely planning outcome for the site, in circumstances where the statutory disregard was engaged from March 2016, it is to be assumed that the Council's in principle opposition to up-zoning south of Epping Road would, consistent with Mr Mead's evidence, have been maintained.
18. However, as such opposition would have been advanced by way of submission for such hypothetical planning consideration (as has been done through Mr Mead's evidence), such opposition (as was the Council's position with respect to the three increased density proposals that had been approved immediately to the south of Epping Road) would not have been determinative, but would merely have been a factor be taken into account by the JRPP.

Introduction

1. It is convenient, given the fashion in which the issues have unfolded, to turn first to the valuation evidence. The joint expert valuation report of Mr Dempsey and Mr Preston (dated 18 June 2021) is in evidence at Exhibit B, tab 11. In the introduction to the report, the experts note that the report deals with the following topics: 1. land areas; 2. town planning and development controls; 3. the basis of their respective valuations contained within their statements of evidence; 4. the market value but for the public purpose if R2 zoned; and 5. the market value but for the public purpose for each scenario considered in the joint planners report dated 7 May 2021.

Site area

1. To the extent that this joint report deals with the difference in the area of the site (between the documents relied upon by each of these experts), that matter was separately earlier dealt with in this decision and has been resolved by agreement between the parties as there discussed.

Basis for determination of site value

1. Under the heading of 3. Town Planning and Development Controls, the valuers noted: Because of these significantly different opinions as to zoning and development controls but for the public purpose, we agreed that it was impossible for us to arrive at an agreed position as to single valuation figure as there would be different valuation outcomes depending on which of the expert planners' opinions is adopted by the Court. In other words, we have agreed that the valuation of the land in these proceedings is significantly a planning and development control matter for the judicial valuer.

The alternative valuations on various development scenarios

Introduction

1. Under the heading 4. Basis of Our Respective Valuations Contained Within Our Statements Of Evidence, the valuers noted the following agreed position: We agreed that would be useful to assist the Court in these proceedings if we could consider and agree upon opinions of market value for each of the land use (zoning) and development control scenarios discussed and considered by both NJ and JM in the joint planning report dated 7 May 2021.

Valuations based on the joint planners' report of 7 May 2021

1. Given that I have concluded that the site is not to be valued on the basis of maintaining the R2 Low Density Residential zoning, the agreed position in section 5 of the valuers' joint report on this basis does not require consideration.
2. However, in section 6 of the valuers' joint report, they address and agree upon a range of outcomes, for valuation purposes, depending on what conclusion I would reach concerning the future development potential of the site disregarding the public purpose and the site's resultant acquisition by the Council. The joint report said, in this regard, at page 6: We have set out in the table below our agreed opinions of market value based on the zoning and development control scenarios considered by the town planners in the joint town planning report. In the process of agreeing the valuations in the table below we have also agreed:- 1. To adopt the land area of 2022.4 m² based on the surveyed areas as discussed earlier herein; 2. To adopt the GFA's set out within the joint town planning report for each of the scenarios put by NJ and JM, despite the fact that they don't result from the exact multiplication of the land area and the stated FSR to 2 decimal places; 3. To adopt, as the main valuation approach, the multiplication of the GFA under each scenario by the agreed rate per square metre of GFA derived from sales evidence as opposed to a rate per developable dwelling site; 4. That the market rate per square metre of developable GFA would increase slightly through the scenarios as the development outcome diminishes in size and scale to account for matters such as the reduced development timing and reduced cost of debt. We also note that PD had considered the R3 scenario with the least developable GFA at an FSR at 0.8:1 which he states he was advised was the case from an email received from iNJ. GP noted that he had adopted the R3 with the least developable GFA at a floor space ratio of 0.5:1 based on the opinion of JM at paragraph 2.4.50 of the joint planning statement. For the purposes of joint valuation statement we agreed to include both scenarios as depicted in the table below. We agree a floor space ratio of 0.5:1 results in an agreed market value below the minimum market value as represented by our agreed R2 zone assessment.
3. On page 7 of the joint valuers' report, Mr Dempsey and Mr Preston set out, in tabular form, their agreement as to the market value to be derived from each of the zoning and development control scenarios addressed in the joint town planners report. A copy of this table is reproduced as Annexure A to this decision.
4. Mr Dempsey and Mr Preston concluded their joint report by observing that: We also agreed that should the Court rule that the alternative land area is to be adopted and/or that a zoning and FSR other than that stated in the table above should apply it may be necessary for us to reconvene and attempt to agree on any alternative scenario the Court may direct us to consider.

Discussion

1. I later set out, at [194], the conclusions of Mr Juradowitch and Mr Mead at the end of the joint expert planners' report. Those conclusions informed the valuations that are set out in Annexure A. Some brief observations warrant being made concerning the material set out in that table: 1. the values in lines 2, 3 and 4 attributed to Mr Juradowitch are derived from 2.4.47 and 2.4.49 of the joint expert planners' report; 2. the value set out at line 5, as can be seen from the table, appears to be derived from the FSR adopted by the Valuer General for determining the compensation assessed as due to the Azizi interests through the statutory determination process (I have not immediately been able to find any documentation in either Exhibits A or B that establishes the basis for this. However, given my final conclusion on the development potential absent the public purpose, nothing turns on this); 3. The values in lines 6, 7 and 8 attributed to Mr Mead are derived from 2.4.48, 2.4.50 and, again, 2.4.48 of the joint expert planners' report; 4. the value at line 9 was derived by Mr Dempsey as noted in the third last paragraph of the valuers' joint report quoted above at [112]; and 5. the value in line 10 was derived by Mr Preston as noted in the second last paragraph quoted from the joint valuers' report at [112]. It is also consistent with what Mr Mead wrote at 2.4.50 of the joint planners' report.
2. As later explained in my consideration of, and conclusion concerning, the competing views of Mr Juradowitch and Mr Mead, I have nominated the zoning and FSR from the table which I consider appropriate to be applied for the purposes of deriving the market value compensation pursuant to s 56 of the Land Acquisition Act. In this context, it is to be observed that the relevant value set out in Annexure A will require to be adjusted, in a minor respect, to reflect the agreement between the parties as to what should be the area of the site for the purposes of these proceedings.
3. However, subject to that minor adjustment, the overall market value can be obtained by applying my conclusion later discussed in the context of consideration of the evidence of Mr Juradowitch and Mr Mead (and the submissions of Mr Hemmings and Mr Hall with respect to this evidence) from the relevant line in the annexed table.

The written expert evidence concerning development potential of the site

Introduction

1. Before turning to relevant elements of the oral evidence given by Mr Juradowitch and Mr Mead in response to questioning, it is first appropriate to set out in summary, the positions taken by each of them in the individual expert reports and, to the extent that those positions were modified by, or expanded upon, as a consequence of joint expert conclave and its resulting joint report, to set out relevant portions of that material.

Mr Juradowitch's individual expert report

1. Mr Juradowitch's individual expert report (Exhibit B, tab 4, folios 1028 and following) commenced by setting out a description of the site and its locality. It is not necessary to reproduce any of this material.
2. He next set out the history of the Council's acquisition of the site, noting at folio 1034, his adoption (in paragraph 13) that the public purpose having first emerged in March 2016.
3. After discussing the zoning and primary controls set out in the 2014 LEP, the DCP, State Environmental Planning Policy 65 - Design quality in residential apartments (and the Apartment Design Guide) and the North Ryde Station Precinct Master Plan (it not being necessary at this point to reproduce the provisions of any of these), he then turned to address, in section 5, the question of the underlying zoning at the date of acquisition. In paragraph 46, he set out, in summary, his position on this topic, saying: While I am of the opinion of the underlying zoning of the land is R4 High Density Residential, should this position not be supported, the[n] I consider underlying zoning would be R3 Medium Density Residential, rather than the Respondent's proposition of a R2 Low Density Residential zoning.
4. He then summarised three matters which he regarded as providing support for this primary proposition. These were:

• the substantial development of the North Ryde - Macquarie Park corridor since the opening of the Epping to Chatswood rail line in 2009. This development, he opined, had increased (and by inference, would continue to increase) with the development of the North West Metro line and its incorporation of the Epping to Chatswood line;
• the submission, in 2012, for development of the site by Mecone Urban and Environmental Planning to the Council as part of the process for the Draft LEP that the planning controls for the site should be based on an R4 High Density Residential zoning with an appropriate maximum building height and increased floor space ratio; and
• the response by the Council at the conclusion of the process leading to finalisation of the 2014 LEP (when the Council identified a number of sites where higher densities might be contemplated). Mr Juradowitch noted that the site had been so identified. He described the purpose for this in paragraph 49 of his report saying: In my experience, this is frequently the process applied with submissions to an LGA-wide draft LEP proposes substantive site-specific changes to an exhibited draft LEP. This approach avoids delaying finalisation of the draft LEP and enables more detailed consideration of site-specific substantive changes to development controls.

1. Mr Juradowitch then set out history of the planning proposal submitted on behalf of the Azizi interests in June 2015 and the steps taken with respect to it (as well as the parallel processes initiated by the Council to acquire the site for the public purpose of addition to Blenheim Park).
2. At paragraph 60, Mr Juradowitch expressed his agreement with the assessments of the Council, the Department of Planning and the JRPP that the planning proposal submitted in 2015 on behalf of the Azizi interests was not appropriate for the site. In this context, he noted: This is not to say that the subject land is not suitable for rezoning to R4 High Density Residential, with a more modest building height and FSR, as recommended by the Council officers in 2015 and by the DPE in July 2016.
3. He then explained why a more modest R4 rezoning proposal and associated development (maximum building height of 25m and maximum FSR of 2.8:1) was likely to have been achieved (or, if not achieved, to be regarded as imminent and certain) by the date of acquisition of the site by the Council.
4. For these purposes, he relied on the 2012 plans from Mecone Urban and Environmental Planning (later discussed by him in more detail). He said, at paragraph 68: Even the most pessimistic view of rezoning prospects for the subject land would at the date of acquisition, have the rezoning to R4 High Density Residential zone imminent and certain, with a maximum building height of at least 22 m (7 storeys) and a maximum FSR of at least 2.5:1.
5. This, he proposed, was the basis as to why the R 2 Low Density Residential zoning as at the date of acquisition would not have been maintained in the future.
6. He then explained why the medium density developments at Allengrove Crescent and Whiteside Street (both visited during the course of the site inspection, as earlier discussed) were of relevance in demonstrating the appropriateness of medium density infill development on the southern side of Epping Road. He set out the maximum interface height of these two developments with their neighbouring residential development as permitting a boundary interface maximum height of 3 storeys increasing to 5 storeys away from that interface. He said, in paragraph 71: The subject land is some 150 m from the nearest low density dwelling. In such cases, a 3 storey interface limit would be unnecessary, allowing a 5 storey apartment building on the subject land, readily capable of achieving and FSR of at least 1.9:1.
7. He then noted that the moratorium on rezoning processes in the Council's local government area commencing in June 2018 would not have had relevance to the site given that any rezoning proposal (absent the public purpose) would have been lodged in 2017 well before this moratorium (report at paragraph 73)
8. Mr Juradowitch then set out a detailed examination of the nature of the hypothetical development based on the Mecone Urban and Environmental Planning document of July 2012 as providing an appropriate template for what should be regarded as would have arisen absent the public purpose. In support of this proposition, he relied upon:

• the indicative footplate of Mecone Urban and Environmental Planning;
• the absence of any substantive overshadowing of the Mecone Urban and Environmental Planning proposal after 10 AM on Blenheim Park;
• his opinion that the Mecone Urban and Environmental Planning building form would have been appropriate for the site;
• the setbacks proposed in the Mecone Urban and Environmental Planning proposal were appropriate with noise attenuation fencing on Epping Road;
• vehicle access to such a hypothetical development would be via Blenheim Road, removing two existing driveways accessing Epping Road; and
• a potential reduction of the western side boundary setback as a consequence of there being no neighbouring dwelling on that side.

1. He noted that the planning report of August 2018 prepared by Turnbull Planning International Pty Ltd had reached a similar conclusion to that which he had earlier expressed but with a more modest development yield with a maximum of 7 storeys and a maximum FSR of 2.1:1.
2. However, at paragraph 82, he confirmed that he remained of the opinion that the Mecone Urban and Environmental Planning proposal was an appropriate potential development response for the site. He qualified this by saying, in paragraph 82: However, if it is determined that a height limit of 7 storeys in a maximum FSR of 2.5:1 should apply, there will be some reduction in apartment yield, as a consequence of deleting the top floor level to reduce height to 7 storeys and ensure FRS [sic] does not exceed 2.5:1. In this scenario. I estimate that apartment floor space would reduced to approximately 6200 m², with apartment yield reduced to 80 X 2 bedroom dwellings.
3. He then turned to address, briefly, two alternative matters. The first was that of what would be the position with respect to an R3 Medium Density Residential zoning and, second, what was the development potential if an R2 Low Density Residential zoning was to be retained. It is to be noted that, in light of the agreed position of the valuers that such an R2 retention outcome had no present relevance, it is not necessary to summarise his conclusions in this regard.
4. However, it is appropriate to set out what Mr Juradowitch said with respect to a potential R3 Medium Density Residential zoning. He opined, at paragraphs 84 and 85: Adopting an underlying zoning of R3 Medium Density and having regard to the site being within 550m2 [sic] walk of North Ryde Metro Station, and well separated by at least 150m2 [sic] from the nearest low density residential development, I am of the opinion a 16m maximum height (5 storeys) and a maximum FSR of 1.9:1 would apply. In the above scenario, building form would be similar to the Mecone Urban and Environmental Planning proposal for an 8 storey apartment building, but reduced in height to 5 storeys and with a reduced floor plate only for the fifth story. At an FSR of 1.9:1 an assessable GFA of 3842.56 m² could be achieved, providing for a total apartment floor area space of 3450 m², yielding 43 X 2 bedroom apartments.

Mr Mead's individual expert report

1. Mr Mead's individual expert report was at Exhibit B, tab 5, folios 1054 and following.
2. Mr Mead commenced his expert report by setting out the nature of the instructions he had received from the Council's solicitors; the documents to which he had had regard in the preparation of his expert report; and the four further sections which he had addressed in the document.
3. It is appropriate to note the two questions which he had been requested, specifically, to address in his instructions from the Council's solicitors. These were: 1. As at the acquisition date, determine the zoning of the site, but for the proposal to carry out the public purpose, for which the properties have been acquired. 2. Assuming the Applicant's [sic] claim that, as at the acquisition date, but for the proposal to carry out the public purpose, the property would have been zoned R4 - High Density Residential under the Ryde Local Environmental Plan 2014, what height limit and floor space ratio would have been assigned to the site?
4. Mr Mead then set out matters under the heading "The land and the locality", dealing first, at 2.1, with the regional context he regarded as relevant for the site. It is appropriate to set out this material (which is comparatively brief) in full (omitting Figure 1, a regional air photograph identifying the site). His regional context analysis was in the following terms: 2 THE LAND AND THE LOCALITY 2.1 Regional Context The Site is located towards the centre of the suburb of North Ryde, approximately 16km from the Sydney CBD, close to the junction of Pittwater Road, Epping Road and the point at which the M2 diverts north (from Epping Road which continues to the north-west). The Site sits to the south-west of the North Ryde Station Precinct (Urban Activation Precinct) which incorporates major mixed use development adjoining North Ryde Station (5 & 9-11 Delhi Road, North Ryde) and under construction at the Lachlan's Line mixed use development. The Site is within the area identified by the State Government in A Metropolis of Three Cities as the Eastern Economic Corridor, current at the date of acquisition, however notably that Corridor encompasses a vast tract of land that straddles Macquarie Park, North Ryde Station Precinct and continues to the Sydney CBD and Sydney Airport. The Corridor is a focus of economic growth and is earmarked to leverage its strong financial, professional, health, education and innovation sectors. It is not a housing delivery initiative. The North Ryde Station Precinct is the subject of B4 zones north-east of the M2 Motorway and subject to height limits of 45m & 92m and FSR of 2.3:1 and 3.5:1. There is a triangle of land directly adjoining Bundara Reserve, not dissimilar to the Site which has retained its R2 zoning. The Site is about 600m walking distance from North Ryde Station entrance, with pedestrians having to cross Epping Road and continue along Delhi Road to the station entrance. Bus stops are located on both sides of Epping Road and along Blenheim Road. In a regional sense, the northern and southern sides of Epping Road/M2 motorway can be readily distinguished. • South of Epping Road, a predominantly low density residential area extends from Shrimpton's Creek in the west to the Lane Cove River in the east. • On the northern side of the arterial road system is the emerging North Ryde urban renewal area, focused on the railway station and then extending north-west through Lachlan's Line into Macquarie Park and south-west into an established commercial and high-tech industrial precinct including uses such as Microsoft and CSIRO.
5. Mr Mead then set out more detailed material describing the locality within which the allotments formerly owned by the Azizi interests were situated. He followed this with a detailed description of the site and a series of photographs illustrating aspects of the site (aspects we were able to observe during the course of the site inspection, as earlier described). It is not necessary to reproduce any of this material.
6. The third section of his report was entitled "The planning controls". He here set out relevant elements from the Land Acquisition Act, then setting out provisions of the relevant local planning controls (prior to the RE1 rezoning of the site) which gave rise to the acquisition request made by the Azizi interests pursuant to s 23 of the Land Acquisition Act. Although Mr Mead noted provisions in local planning instruments prior to the making of the 2014 LEP, they play no part in these proceedings. He then set out, from the 2014 LEP, extracts in their entirety from the land use table for seven of the zones in that LEP. Of those seven, the R2 Low Density Residential; R3 Medium Density Residential and R4 High Density Residential play a role in these proceedings.
7. He also noted controls which would be applicable if the R2 Low Density Residential zone was to be regarded as continuing and the possibility of what development might be permitted under those circumstances. As with the position in Mr Juradowitch's report, this position requires no further consideration given the conclusion agreed to by the valuers in this regard.
8. Finally, in this section of his report, Mr Mead noted that there were no relevant draft planning controls requiring consideration as at the date of acquisition.
9. Section 4 of his report was headed "Consideration of zoning". He commenced his analysis by setting out the uses permissible in the R2 zone and making a planning comment with respect to each of them. For the reasons noted above, it is unnecessary to give any consideration to this material. However, his conclusion (at folio 1082) was in the following terms: When I disregard the RE 1 Public Recreation zone in accordance with my instructions, I conclude that the Site would have continued to have been zoned R2 Low Density Residential pursuant to the Ryde LEP 2014. My conclusion is informed by the zoning history of the Site, its physical context and location on the southern side of Epping Road and the following considerations which were relevant at the time of acquisition.
10. Mr Mead then turned to deal with the matters which he considered were relevant at the time of acquisition. The first of these was addressed under the heading "4.1.1 Regional Planning (A Metropolis of Three Cities and North District Plan)".
11. He expressed the opinion that these documents did not support an R4 High Density Residential zoning. He gave a number of reasons for this conclusion, these being: the plans specifically targeted locations which did not include the site owned by the Azizi interests;

• four precincts were specifically identified by these plans and the site was not within any of those precincts;
• whilst the site has some proximity to two of those identified precincts, it is physically divided from them by Epping Road and by the M2 Motorway.

1. As a consequence, Mr Mead opined (also at folio 1082): These locations will continue to be the focus of higher density residential development which will in turn preserve lower density residential precincts outside these localities.
2. He noted that, for land on the southern side of Epping Road, a major road, this road formed a natural, physical and (in his opinion) planning barrier for high-density development to its south and that there was no land on the southern side of Epping Road zoned for high-density residential purposes.
3. With respect to the housing targets set by the NSW Government for the Ryde local government area, he observed that his enquiries disclosed that it was the Council's expectation that these housing targets could readily be met by areas within the local government area which had already been identified for higher density residential development.
4. He analysed what he took from the relevant localities identified in the two nominated plans for higher density residential development. He explained why, in the context of identified high-density locations in the vicinity of the North Ryde Station, this did not provide support for higher density on the site because of the physical and statutory planning boundaries created by Epping Road.
5. Mr Mead next turned to local planning matters. He did so in the broad context outlined above. At folio's 1085 and 1086, he said: In my opinion, Epping Road (and M2 Motorway) provides a geographic and physical barrier between localities with vastly differing land use pattern attributes. That is, a division separating logically the low density suburb of North Ryde and the much more dense development surrounding North Ryde Railway Station. In my opinion, the subject Site forms part of a vastly different (and physically separated) character area to the North Ryde Station Precinct. In my planning experience, it is not uncommon that major infrastructure provides a division or barrier between two vastly different character areas, subject to different zoning provisions and planning controls. In my planning experience, it is not unusual that a physical barrier of such significant width and function provides a "hard line" between zones without transition on either side of it. In planning terms, to provide a transition in circumstances such as the subject Site may blur the division between areas of different character and form. Whilst the high-density development on the northern side of Epping Road is visible from some parts of the Site and the surrounding area, the site is not adjoining or at the edge of this high-density locality. It is separated from it and have [sic] different characteristics. There is, in my opinion, no strategic planning basis or reasonable expectation for higher density zoning of the Site.
6. It is to be noted that maps relevant to and interspersed within the above quotation have not been reproduced.
7. In addition to the above discussion, he quoted from the Finalisation Report for the North Ryde Precinct (Urban Activation Precinct) concerning land on the southern side of Epping Road, which had been removed from that precinct. He noted that, amongst the report's reasons for doing so was: … Medium density housing would set a precedent for increases in density on the southern side of Epping Road, which would be a poor planning outcome in terms of residential amenity and potential access constraints to Epping Road [emphasis added by Mr Mead].

Introduction

1. Mr Juradowitch and Mr Mead provided a joint expert report dated 7 May 2021. They noted that the report addressed four topics, these being:

• discussion of the site and locality;
• discussion of background the claim;
• underlying zoning; and
• planning controls that would apply.

The site and its locality

1. The description of the site and its locality is unexceptional with only paragraph 2.1.3 (folio 1309) warranting being repeated as providing information not already extracted from earlier dealt with material. This paragraph is in the following terms: The site has a modest slope to the southwest towards the existing car park in Blenheim Park. This car park adjoins the southwest boundary of the site. The site is not subject to development hazards such as flooding, land slip, steep topography, bushfire, mine subsidence and the like. Given the long history of residential use, land contamination is unlikely. All necessary urban services are available to the site.
2. It is also to be noted that there are two further paragraphs which summarise relevant contextual information, these being paragraphs 2.1.9 and 2.1.10. These are in the following terms: The nearest residential properties (in lineal terms) are the southern-most apartment buildings within the North Ryde Station Precinct and single detached dwelling properties at 21, and 21A Epping Road. These apartments and dwellings are located between 70 m to 100 m from the site. However, they are separated from the site by a major arterial road containing Epping Road/M2 Motorway. Direct access across that arterial road is not available in walking distance to the R2 zoned land on the north-east side of Epping Road would be of the order of 350m to the nearest dwelling. The nearest residential properties to the west or south-west of the site are numbers 59 Blenheim Road in Nos 1, 3, 5, 7, 9, 11 and 13 Morshead Road. These properties contain single detached dwellings and are located between 130m and 150m walking distance from the subject land.
3. With respect to zoning on the northern side of Epping Road, paragraph 2.1.12 records that: Nearby land on the eastern side of the Epping Road/M2 corridor is zoned B4 Mixed Use and B3 Commercial Core and provides for high-rise commercial and mixed-use development. The B4 Mixed Use zone directly to the east of the subject land provides for maximum building height of 92m and a maximum floor space ratio at (FSR) of 3.5:1. A reduced building height up to 45m and reduced FSR of up to 2.3:1 applies to the B4 zoned land fronting Delhi Road. Adjoining land to the south-east within the B3 zone is permitted to be developed to a maximum height between 30m [and] 37m and maximum FSR [of] 2:1.
4. The experts agree that on the side of Epping Road where the site is located, R2 zoned land predominates.
5. There were no matters of disagreement between Mr Juradowitch and Mr Mead on matters under the heading "Site and locality".

Background to the claim

1. The joint report then sets out an agreed, lengthy background to the claim pursued by the Azizi interests in these proceedings. The matters of agreement are uncontroversial and are encompassed in matters already set out in this decision. There was limited disagreement between the experts arising from this background material. It is, however, appropriate to set out the terms of this disagreement from the joint report as it has later relevance. The material is set out under the heading "Points of disagreement" at 2.2.43 in the following terms: 2.2.43. The planners did not agree as to whether the November 2010 Architectus Masterplan is relevant to the proceedings. NJ considers the Architectus Masterplan has some relevance. JM considers the Architectus Masterplan is not relevant to the proceedings.
2. Then follows the opinion of Mr Juradowitch as to the relevance of the Architectus Master Plan document. His opinion on it was in the following terms: 2.2.44. The North Ryde Station Precinct Masterplan (30 November 2010) prepared by Architectus for NSW Planning, was released in December 2010. The Masterplan was intended to provide a framework for the development of new planning controls for the North Ryde Station Precinct. This Masterplan applied to land around the North Ryde Station, predominantly on the northeast side of Epping Road but did include the tennis World site on the southwest side of Epping Road, some 150m north of the subject land. 2.2.45. The North Ryde Station Precinct Plan (NRSPP) sets out urban design principles, with a focus on transit orientated development taking advantage of the new rail service. Accessible locations were identified as those sites within an 800m radius, or a 10 minute walk of the railway station. 2.2.46. The NRSPP includes recommendations relating to land use, building heights and floor space ratios and proposed a significant increase in building heights and floor space ratios (FSR) within the Station Precinct. FSR's up to 3.6:1 and building heights up to 30 storeys were recommended. In the case of the Tennis World site, an FSR of between 1.5: and 2.4:1 and building height of up to 8 storeys was recommended. Following significant community objection to the potential loss of the Tennis World site as a recreation facility the Tennis World site was deleted from the final adopted NRSPP. NJ does not agree that opposition to the loss of a recreational facility can be interpreted as an objection to increased development density south of Epping Road. 2.2.47. NJ notes JM's contention that where a PP is lodged within 5 years of an LGA wide comprehensive LEP coming into force, the PP must demonstrate that it clearly meets the Strategic Merit Test. NJ is of the opinion that a PP for a 7 to 8 storey building on the site would meet this test. He notes that in assessing the original 16 storey PP, DP&E concluded that this PP had strategic merit - a building of 7 to 8 storeys would have no less strategic merit. Further, DP&E in rejecting the 16 storey proposal, invited the proponent to submit a new PP (implied with reduced height and FSR) reinforced the proposition that the site clearly had strategic merit for increased development density.
3. Mr Mead, on the other hand, explained at 2.2.48 why he considered that the Architectus Master Plan had no relevance. His opinion was in the following terms: 2.2.48. JM requested of NJ, the status of the 2010 Architectus document, which could not be confirmed. A review of State Government online resources shows that this Architectus report does not appear to have been relied upon as part of the assessment and determination of the precinct. The public files section for the documents that were exhibited and assessed do not include the Architectus document. It may well have been a preliminary document, but would appear to have been superseded by the time the rezoning was exhibited by subsequent built form analysis undertaken years later and it was further superseded by the Finalisation Report which rejected upzonings south of Epping Road at that time. If it were exhibited as part of early consultation materials which are now no longer available online this needs to be clarified. NJ could not assist. In my opinion, no weight can be placed on this document. Further the final planning outcome for the Precinct ie. the LEP controls, bear no resemblance of the Architectus document for land south of Epping Road.

The underlying zoning

1. Under the heading 2.3 Underlying zoning, the joint report set out, briefly, the agreement that the underlying zoning would have been a residential one (although differing as to which residential zoning would have been appropriate). There points of disagreement were summarised in 2.3.5 and 2.3.6 of the joint report in the following terms: 2.3.5. The planners could not agree as to the specific residential zone that would have been the underlying zoning of the subject land, as at the date of acquisition. JM is of the view that the most likely underlying zoning would have been R2 Low Density Residential. NJ is of the view that the most likely underlying zoning would have been R4 High Density Residential and at a minimum R3 Medium Density Residential. 2.3.6. The planners could not agree as to whether the subject land is or is not within the Urban Renewal Area, as shown by cross-hatching in Figure 11 of the North District Plan.
2. In support of his opinion, Mr Juradowitch summarised his reasons for this conclusion that had been set out in his individual expert report. It is unnecessary to set out the entirety of this summarised reasoning. However, a number of paragraphs do warrant extraction. The first of these is 2.3.9 of the joint report, a paragraph in the following terms: 2.3.9. The subject land is strategically located within a 200m to 250m radius of the centre of the North Ryde Station Precinct, a major high rise mixed-use and commercial centre and within 550m walking distance of the North Ryde Metro Station entrance and surrounded by Blenheim Park, which provides a generous buffer to low-density residential development. NJ is of the opinion that absent the public purpose the subject land would have be approved for a substantial increase in development density (building height and FSR), prior to the date of acquisition in August 2018.
3. In 2.3.18 to 2.3.20, Mr Juradowitch explained why he considered an R4 zoning accommodating an eight storey apartment building would have been appropriate (setting aside the public purpose). These paragraphs are in the following terms: 2.3.18. In my opinion the 2015 Mecone concept plans for a 7 storey apartment building (FSR 2.7:1) on the subject land more than adequately responds to the above deficiencies of the original 2015 PP. These plans demonstrate that a 7 storey building provides an appropriate height transition, is substantially screened by tree canopy and has minimal shadow impact on Blenheim Park. Shadows are generally confined to the car park within Blenheim Park, after 10am. 2.3.19. I have considered the Mecone concept plans in some detail and having regard to the SEPP 65 Apartment Design Guide (ADG), consider that the most appropriate building form is an 8 storey apartment building stepping down in height to the west and south, above the 6th storey, with reduced floorplates for the 7th and 8th storeys.. Such a building is capable of accommodating an FSR of 2.8:1, without adversely impacting on Blenheim Park, either visually or in terms of solar access and suitably responds to the slope and context of the site. 2.3.20. Absent the public purpose, following on from the rejection of the original PP for a 16 storey apartment building, I would have advised the Applicant to prepare and lodge a new PP to re-zone the subject land to R4 High Density Residential to accommodate an apartment building of up to 8 storeys in the form outline above, with a maximum height of 25m and maximum FSR of 2.8:1. This PP would in my opinion, have been assessed and brought into force prior to Council's June 2018 moratorium on new PP's involving residential land use and prior to the date of acquisition in August 2021, had the Council not resolved to acquire the land for public open space and rezoned the site to RE1.
4. He then turned to address, on a contingent basis, what would be the potential for an R3 zoning if an R4 zoning would not hypothetically have been achieved. He explained this at paragraphs 2.3.22 to 2.3.25. These paragraphs were in the following terms: 2.3.22. In the unlikely event an R4 High Density Zoning was rejected, it would have been open to the Applicant to revise their PP to provide for an R3 Medium Density Zone over the subject land. Having regard to similar infill sites on the southwest side of Epping Road, I consider a maximum building height of at least 5 storeys would have been supported for the site under an R3 zoning scenario. 2.3.23. It should be noted that the other infill sites on the southern side of Epping Road, permitted to be developed for apartment buildings, are more distant from metro stations and directly interface with low-density housing in R2 Low Density Residential zones. In these cases, a 3 storey height limit applied to the interface with low density housing, with 5 storeys allowed for the balance of the development. This is not the case with the subject land, hence a building of 5 storeys across the developable portion of the site (with a reduced floorplate size for the 5th storey), would be entirely appropriate and likely to be approved. This building height, when considered in conjunction with the convenient 550m walking distance to the North Ryde Metro Station, suggests that an FSR of 1:9:1 would be readily achievable on the site. 2.3.24. Should the above development scenario not be accepted, at a very minimum, given the context of the site and associated planning history, I consider the R3 Zone scenario would provide for a building height of at least 4 storeys (14m), with an FSR of at least 1.6:1. This is a relatively pessimistic view of the development potential of the land and does not represent an efficient use of land so close to a town centre and metro station. 2.3.25. Given that an R3 zoning would have arisen from a rejection of a PP for an R4 Zone, it is likely that a revised PP for an R3 Zone would not have been lodged until around mid-2017. A period of 12 months would in my opinion be adequate to assess, determine, and gazette the revised PP for an R3 Zone. On this basis it is likely that such a PP would be in force just prior to the date of acquisition in August 2018, or in a worst-case scenario its gazettal would be imminent and certain.
5. Finally, Mr Juradowitch explained why his conclusions were not inconsistent with the planning documents to which Mr Mead had referred in his individual report. In particular, Mr Juradowitch explained why, in his opinion, these documents were not inconsistent with an apartment building of 7 to 8 storeys on the site.
6. Mr Mead's opinion, on the other hand, explained why he remained firmly of the view that the appropriate underlying zoning (ignoring the public purpose) as at the date of acquisition would have been R2 Low Density Residential.
7. He explained why he remained of that opinion because:

• the Metropolitan Plan (A Metropolis of Three Cities) and the North District plan did not identify the site for up-zoning, or for future investigation for such purpose;
• although in proximity to the North Ryde Station Precinct and the Macquarie Park urban renewal area, the site was not with within them, being divided from them by Epping Road and the M2 Motorway. This, as he had explained in his individual expert report, acted as a "planning barrier" which had led to the exclusion of land to the south of Epping Road when those precincts were identified;
• the interpretation given by Mr Juradowitch to Figure 11 in the North District plan as supporting an underlying higher density zoning for the site was an inappropriate conclusion to draw from what was intended to be illustrative rather than a cadastrally precise depiction;
• although the site was within walking distance of North Ryde station, such a transit required crossing Epping Road and the Motorway. He opined, in 2.3.43: 2.3.43. The site is within walking distance of North Ryde Station, however that journey is across Epping Road and the M2. In any case, the distance of the Site to North Ryde Station alone would not support an underlying zone of R4 High Density Residential. There must be other legitimate planning grounds, which are not there in the present case, to support an underlying R4 zone and not just distance (or proximity) to the station.

1. He noted that the housing targets for the Ryde local government area were able to be met by land already zoned for increased density with there being no need to find additional land so to be zoned for this purpose.
2. Mr Mead then discussed the removal of land on the southern side of Epping Road from further consideration for increased density in the Finalisation Report for the North Ryde Precinct (Urban Activation Precinct). He explained why this removal supported the proposition that, until comprehensive strategic planning occurs for land south of Epping Road, up-zoning would not be considered. He observed: No such planning had occurred prior to the date of acquisition, and therefore it is, in my opinion, highly unlikely that rezoning of the subject site would have occurred.
3. At 2.3.53, he noted that: 2.3.53. There is no strategic planning study, in my opinion, that supports the rezoning of the site.
4. He then explained why the past history of consideration of land use planning parameters encompassing the site since 2012 had not resulted in any support from the Council for increased density for the site and that the various bodies which had considered the possibility of increased density had not supported an R4 outcome for the site.
5. He noted that, if the R2 Low Density Residential zone was not to be maintained (maintenance being, in his opinion, appropriate), any up-zoning would have been limited to an R3 Medium Density Residential zoning.
6. He explained why the 2018 reports supporting up-zoning of the site were, in his opinion, defective and did not provide support for the present up-zoning contentions advanced on behalf of the Azizi interests.
7. He did, however, address the Whiteside Street and Allengrove Crescent developments at 2.3.71 and 2.3.72 (these developments being relevant for reasons I later explain). These paragraphs were in the following terms: 2.3.71. The two other examples that were used in the Ethos Urban Report of 5 Whiteside Street and 14-16 David Avenue, North Ryde, and Allengrove Crescent, North Ryde established maximum FSR controls of 1:1 and 1.19:1 respectively and maximum heights of up to 5 storeys. This is much lower than the 1.7:1 and 23m (7 storeys) propounded for the acquired land. These planning controls were established through a Part 3A Concept Approval, a planning approval pathway that is no longer available in NSW and was not available at the time of acquisition of the acquired land. 2.3.72. No rational or reasonable planner could use these examples to support the development standards that the Ethos Urban Report puts forward for the acquired land. The 1.7:1 FSR development standard propounded by the Ethos Urban Report for the acquired land is 54.5% greater than the 1:1 FSR development standard for 5 Whiteside Street and 42% greater than the 1.19:1 FSR development standard applied to 14-16 David Avenue. In my opinion, there is no rational basis in planning documents or controls to support this conclusion and in my opinion the conclusions are internally inconsistent.

Planning controls and potential development yields

1. In 2.4 "Planning controls and potential development yields", relevantly, there was agreement concerning what would be development outcomes if a denser residential development up-zoning was concluded to be appropriate. Mr Juradowitch and Mr Mead set this out in 2.4.5 of the joint report (folio 1333) in descriptive terms and in a table setting out the various outcomes derived from their calculations. It is not necessary to set out the descriptive material and the table as the planners set out, in their conclusions reproduced below, precise potential outcomes available to be considered by me.

The joint report's conclusions

1. However, for addressing the question of development potential for market value compensation in light of the agreed position between the expert valuers relating to various hypothetical development scenarios (as earlier noted at [115]), the critical element of the joint report of Mr Juradowitch and Mr Mead can be understood, in comparatively brief compass, from the summary of their conclusions set out, relevantly, in the following extract from the joint report (Exhibit B, folios 1342 and 1343): 2.5 CONCLUSION Underlying Zoning 2.4.44. NJ concludes that the underlying zoning of the subject land, absent the public purpose, at the date of acquisition, would have been R4 High Density Resolution. Should an R4 Zone be rejected, NJ is of the opinion that at a minimum, the subject land would have had an underlying zoning of R3. 2.4.45. JM concludes that the underlying zoning of the subject land, absent the public purpose, at the date of acquisition, would have been R2 Low Density Residential. Should that be rejected, it would have been R3. Planning Controls and Development Yield in the 3 Zoning Scenarios 2.4.46. The planners provide their opinions in relation to the primary planning controls and development yield that would have applied in each of the 3 potential underlying zoning scenarios - R4, R3 and R2. R4 Scenario 2.4.47. NJ concludes that in the R4 Scenario a maximum building height of 25m and maximum FSR of 2.77:1 would have applied, enabling the construction of an 8 storey apartment building with a maximum assessable GFA of 5,610m2. At a very minimum NJ is of the opinion that an R4 Scenario would provide for a maximum building height of 23m and maximum FSR of 2.48:1 with a maximum assessable GFA of 5,010m2. 2.4.48. JM concludes that in the R4 Scenario FSR would most likely be 11.5m and 1:1 respectively. That would yield 2,022m2 of GFA. At an absolute maximum, height would be no more than 4-5 storeys and on that basis, a maximum FSR of approximately 1.5:1 would have applied. That would yield a GFA of 3,033m2. R3 Scenario 2.4.49. NJ concludes that in the R3 Scenario a maximum building height of 17m and maximum FSR of 2.48:1 would have applied, enabling the construction of a 5 storey apartment building, with a maximum assessable GFA of 3,810m2. 2.4.50. JM concludes that in the R3 Scenario a maximum building height of 11.5m and FSR of 0.5:1 would have applied. If I am wrong and the density were to have changed, it is my opinion that it would not have increased beyond an FSR of 1.2:1. That would result in a GFA of 2,426m2.
2. Mr Juradowitch and Mr Mead then moved on to explain their respective positions concerning what would be the appropriate controls applicable if an R2 underlying zoning was to be adopted. Given that I have concluded that this would not be appropriate for the reasons later set out, it is unnecessary to set out any of this material.

The oral expert evidence concerning development potential of the site

Introduction

1. The oral evidence of the planners commenced on the afternoon of the second day after the luncheon adjournment following the site inspection. Mr Juradowitch and Mr Mead were affirmed to give concurrent oral evidence. Although arranged to be concurrent, the evidence was largely sequential by topic covered and by witness. The topics that were covered were, first, the broad issue of whether there was any strategic merit supporting the proposition that a hypothetical up zoning of the site would be appropriate with, second, matters of site strategic appropriateness (including what controls might be applied to the site), following on from that. Within that approach, Mr Hemmings first questioned Mr Mead, followed by Mr Hall questioning Mr Juradowitch.
2. In addition to the notes which I took of the oral evidence of the planners, I have also reviewed the transcript of that evidence. It is fair to observe, in my assessment, each planner's evidence was consistent with what I have earlier set out as extracted from their individual expert reports and the joint expert report following their conclave. Although the questioning of the witnesses took place over approximately a day and a half, it is only necessary to refer to limited elements of the oral evidence in supplementation to my earlier summaries of the written material.
3. As consequence, I have confined my discussion of the oral planning evidence to those matters which I consider appropriately supplement their written evidence to enable me to address the matters I earlier set out as requiring determination from the planning evidence overall.

Mr Juradowitch's oral evidence

1. Mr Hall questioned Mr Juradowitch about his approach to distinguishing between strategic merits and site‑specific merits. Mr Juradowitch proposed that the process was a two-step one in which it was necessary, first, to pass the strategic merit test before going to matters in satisfaction of the site‑specific merit test. Mr Hall took Mr Juradowitch to paragraph 14 of his expert report (Evidence Book, Tab B4, folio 1034), a paragraph in the following terms: I note that in Council's submission of the 26th May 2016 the only reference to strategic planning justification for the proposed additional public open space was the Council's Integrated Open Space Plan 2012. This Open Space Plan identified the need for additional public open space in North Ryde - Macquarie Park but did not specifically identify the subject land for this purpose. Council's correspondence of May 2016 in my opinion appears to present the selection of the subject land in the Draft PP as a response to "another Planning Proposal for the site, submitted by the property owner, which proposed zoning the land R4 High Density Residential.
2. Mr Juradowitch agreed with the proposition that the strategic element identified by the Council in its open space study was a need for an increase in such open space. He accepted that every piece of land in the North Ryde and Macquarie Park area pass that strategic merit test (Transcript 23 June 2021, page 94, lines 20 to 28).
3. He then agreed that a strategic merit aim of providing more housing and more diversity of housing choice would, in the present context, encompass any site within 10 minutes walking distance of a relevant strategic centre, here the North Ryde Metro Station. Sites on Morshead Street that were zoned low density residential (Transcript 23 June 2021, page 94, lines 30 to 46) and Blenheim Park itself would also satisfy the strategic merit test (at line 50) (as would any area within ten minutes' walking distance of the North Ryde Metro) (Transcript 23 June 2021, page 95, lines 4 and 5).
4. It is also to be noted that Mr Juradowich did concede that, depending on the nature of the strategic merit tests at a general level, it was possible that a particular location could have multiple strategic merits (Transcript 23 June 2021, page 26 line 5).
5. Mr Hall took Mr Juradowitch to the Architectus Master Plan. Before being questioned in detail concerning any of its contents, Mr Juradowitch indicated that he did not consider that the document was a strategic planning document but was a master plan, being a much more specific planning document (Transcript 23 June 2021, page 98, lines 1 to 6).
6. Mr Hall drew Mr Juradowitch's attention to the third paragraph of the document (Exhibit C, Tab 18, folio 74) and proposed to him that what "the author of the document is doing here, is it not, is identifying strategic ambition, namely the activation of the precinct around North Ryde station?"
7. Mr Juradowitch responded that the Architectus Master Plan was one of implementation of the elements of the Plan which had identified the Macquarie corridor; was implementing part of that planning strategy; and with this document directed to the North Ryde precinct.
8. Mr Juradowitch accepted, however, that the Architectus Master Plan was one which was a subsidiary document seeking to implement the strategic principles in the Plan.

Mr Mead's oral evidence

1. Mr Hemmings commenced his questioning of Mr Mead by asking if he accepted that, for the purposes of assessing any potential for upzoning, two matters needed to be considered, the first being strategic merit at a general level, and the second being site‑specific merit. Mr Mead confirmed that he agreed with this approach (Transcript 23 June 2021, page 72, line 13).
2. Mr Mead also agreed that (Transcript 23 June 2021, page 73, lines 8 to 13): HEMMINGS: Is it fair to say that the most significant contributor to your ultimate conclusion that the zoning would have remained R2 and not have been upzoned is because of the fact that it is only proximate and not in either the Macquarie Park Urban Renewal Area or North Ryde Station Precinct? WITNESS MEAD: Yes, that's correct.
3. Mr Hemmings next questioned Mr Mead about the conclusions drawn by the Department of Planning in its pre-gateway assessment when measured against the Department's December 2014 document entitled A Plan for Growing Sydney (the Plan), being a long-term strategic plan for the Sydney metropolitan area. The departmental assessment set out (Exhibit C, Tab 41, folio 574) five points as to why an up-zoning of the site would be consistent with the Plan. These were in the following terms: The proposal is consistent with the following directions and actions in the Plan: • Direction 2.1 and Action 2.1.1 as it would Increase the local housing supply and choice in close proximity to jobs and serviced by frequent public transport; • Direction 2.2 and Action 2.2.2 as it would facilitate urban infill and increase housing production around a strategic employment centre and transport corridors; • Direction 2.3, Actions 2.3.2 and 2.3.3 as it would provide a range of housing choices to suit different needs and lifestyles; • Direction 3.3 as it would support a healthy built environment by providing housing in walking distance to existing employment and services; and • North Subregion priority to accelerate housing supply, choices and affordability and build great places to live.
4. Mr Mead accepted, as I understood his evidence, that those conclusions expressed by the Department were appropriate, but only at a very high level of generality.
5. As I also understood his evidence, this position should not lead to a specific conclusion concerning up-zoning potential for the site, despite this being the position discussed in the departmental assessment.
6. Mr Hemmings next turned to matters specific to the site. In this regard, Mr Mead was questioned specifically about the various parking arrangements for Morshead Street, the Blenheim Park car‑park and the parking spaces at or in the immediate vicinity of the turning head of Blenheim Road. He agreed that these were consistent with demonstrating used for commuter car‑parking and that, as a matter of reality, these demonstrated that the site was proximate to jobs and transport services (as the parking available for commuter purposes was actually being used for such purposes) (Transcript 23 June 2021, page 75, line 45 to page 76, line 26).
7. Mr Mead explained why he considered that a broad‑brush strategic approach was not sufficient, saying (Transcript 23 June 2021, page 77, lines 4 to 10): WITNESS MEAD: Well, in terms of the detail, as I say, these are locational criteria in terms of - best measured - for example, in terms of lineal distance to transport, lineal distances to services and a centre. My opinion is that that does not mean that every site that falls within that radius - and typically in planning, an 800 metre radius has been used in terms of walking distance to public transport. In my view, just meeting those quantitative criteria does not make the site suitable for densification.
8. In response to questioning from Mr Hemmings as to why the Plan had not been referenced in either his expert report or in the Joint Planning Expert Report, Mr Mead indicated that later planning documents (A Metropolis of Three Cities and the Northern District Plan made under it) had been referred to, and not the Plan about which Mr Hemmings had questioned him. Mr Mead then accepted that: 1. an amended planning proposal on behalf of the interests would have been prepared and lodged in mid-to-late 2016; 2. at that time, the document that provided the strategic planning framework was the Plan; 3. the replacement documents did not come into effect until March 2018; 4. a hypothetical planning proposal on behalf of the Azizi interests would possibly have been determined by that time; and 5. the primary document for an assessment of the strategic merit of the amended planning proposal being lodged in mid-to-late 2016 would have been the Plan for Growing Sydney (as to this, Transcript 23 June 2021, page 79, lines 11 to 15).
9. Mr Hemmings then took Mr Mead back to the complete set of dot‑points in the departmental analysis at folio 574. The transcript then records, relevantly, the following exchange (Transcript 23 June 2021, page 87, line 47 to page 88, line 5): … Which of those directions, actions or other matters of consistency do you say are not met? WITNESS MEAD: As I said earlier, direction 3.3 goes a lot further than the one sentence suggests. It starts to talk about contextual things, like the impact of the proposals on open space in public domain, for example. So it starts to go beyond just the mere questions of proximity to transport and services, employment and so on, and starts to talk about the quality, or the nature, of a built environment.
10. The transcript also records the following exchange concerning Direction 3.3 (Transcript 23 June 2021, page 88, line 18 to page 89, line 7): HEMMINGS: What is it about the description of the direction or the action that you identify, not having done so relating to anywhere to date, speaks against the upzoning of the subject land? Notwithstanding, otherwise, finding consistency with the actions and directions we talked about. WITNESS MEAD: As I said, the dot points under where it says, "the built environment can encourage healthy communities by" and then "a range of things". It talks to, for example, creating attracting public spaces, improving the quality of the public domain through better design, and so on. So, I'm not suggesting for a moment that it goes into detail about the built environment, but it's starting to turn its mind to specific considerations for land when considering rezoning. The first actions that we've talked about simply go to proximity, lineal distance. Effectively, the location of a site, it starts to talk or think about built environment aspect. HEMMINGS: This can be that it's drawing attention to, say, "No, the land should be an attractive public space", because that would be to assume that it's going to be for public purpose. That's not what you're suggesting, is it? WITNESS MEAD: No. Saying it's starting to talk about contextual relationships, in my view. HEMMINGS: Right. That's turning to the site-specific merits, it's working out whether or not any proposal on the land, otherwise being appropriate strategically to upzone, has acceptable impacts. Would you agree with that? WITNESS MEAD: In my view, there's this fine line or a blurred line between the strategic and site-specific merits to the extent that if one simply looks at where a site is located, that being distance to railway station and distance to employment and services, in my view, like I said in my earlier answers, that does not necessarily get across the test of the site to be strategically appropriate for development. In my view, the more site-specific location or characteristics, such as in this case, the very different character context of each site of Epping Road, is also a strategic consideration. That's a strategic consideration that's been dealt with through many of the reports. Both by council and also in the resolution of the joint regional planning panel when it considered the review. So, as I said, it's a blurred line between strategic and site-specific merit, but I think those location characteristics go to the strategic test.
11. Mr Mead then explained that the matters raised in the Plan to which he had earlier been taken were matters being dealt with at a broad‑brush principle level. He expressed the view that, although these provided a basis for detailed planning at a local level, further detailed local investigation was required. In this instance, the local level planning concerning the area to the south of Epping Road had been undertaken and had "reached, different conclusions to the site-specific planning proposal" (Transcript 23 June 2021, page 90, line 24).

The submissions concerning the development potential of the site

Introduction

1. I now turn to summarise the submissions advanced on behalf of the parties concerning whether or not I should conclude that there was, as at the date of acquisition, a prospect of up-zoning the site requiring to be taken into account for the purposes of assessing the basis for a compensation valuation and, if there was such a potential, what would be the development parameters to be applied for the assessment of such compensation.
2. I note that, in addition to extensive written closing submissions from Mr Hemmings and Mr Hall, each of them also made comprehensive oral submissions in support of the respective positions they advanced on the matters requiring determination (with these submissions addressing not only the development potential of the site, but also the two specific subsidiary matters later discussed concerning Mr Azizi's specific claims for a stamp duty equivalent compensation payment and for a disturbance payment pursuant to s 60 of the Land Acquisition Act. These two matters are later, separately addressed).

Introduction

1. In the written and oral submissions advanced on behalf of the Azizi interests as to why I should conclude that the appropriate future development potential for the site should be based on an R4 zoning (or if this was not to be accepted, at least an R3 zoning) with compensation assessed reflecting such an outcome, the case advanced on behalf of the Azizi interests by Mr Hemmings was one which can be distilled into a series of matters arising from the planning evidence and from various of the documents in Exhibit C, the bundle of tendered documentary material.
2. Meaning no disrespect to the extensive and detailed written submissions provided on behalf of the Azizi interests or the comprehensive oral submissions made by Mr Hemmings in support of them and in criticism of the position advanced on behalf of the Council, for present purposes, the position advanced for the Azizi interests is as summarised below. In my analysis of what I consider are the appropriate conclusions to be drawn with respect to the positions advanced on behalf of the Azizi interests and on behalf the Council, it will later be necessary to delve further into the detail of some of the documentary material referenced below.
3. A document to which Mr Hemmings took me in his opening submissions was a report dated 30 November 2010 from Architectus (Exhibit C, Tab 18.). This document, said to have been prepared for the Council, is entitled North Ryde Station Precinct Master Plan. The study areas encompassed by this document address landholdings owned by the Transport Construction Authority, the Department of Planning and ING (a major landholder in the area in the proximity of the train station). Although the site is not identified as being part of this study, the document identifies the site as being within a 400‑metre walking catchment of the station (folio 79).
4. As Mr Hemmings noted, the document was addressing transport‑oriented development (TOD). Mr Hemmings specifically drew attention to folio 86, saying (Transcript 22 June 2021, page 10, line 50 to page 11, line 6): Then lastly at 86, in talking about urban design principles, a key TOD - transport-oriented development principle - is to provide the greatest densities of a mix of activities within the closest proximity to significant public transport. This principle can see the creation of a 200 metre radius TOD core, where highest density residential and most employment commercial retail uses occur; within 400 metres, high density residential and a mix of community, recreation and commercial uses are appropriate.
5. Next, it is appropriate to set out in summary form, the position advanced on behalf of the Azizi interests on three matters. These are:

• the broad strategic planning position;
• how the past dealings of the Council with the site are to be regarded; and
• how matters of site-specific merit are to be viewed.

The broad strategic planning position

1. I have earlier set out my analysis of the written and oral evidence of Mr Juradowitch and Mr Mead on the town planning issues involved in these proceedings. The essential submission put by Mr Hemmings concerning this evidence was that I should prefer the opinions expressed by Mr Juradowitch and reject those advanced by Mr Mead - particularly as I understood the case advanced for the Azizi interests, the proposition that Epping Road acted as an absolute "planning barrier" to acceptance of the proposition that up-zoning for more dense residential development purposes was appropriate to be contemplated in areas to the immediate south of Epping Road.
2. Although the written submissions for the Azizi interests accepted that Epping Road could be regarded as constituting a barrier for strategic planning purposes (at paragraphs 29 to 31), these paragraphs explained why Epping Road did not constitute a planning barrier of the absolute nature advanced by Mr Mead. These paragraphs were in the following terms: 29. It may be accepted that for strategic planning purposes Epping Road has been used as a barrier. However, that is a barrier of a particular kind. 30. That is, it is apparent that the relevant proximate major centres - the Macquarie Park Centre and the North Ryde Rail Priority Precinct - both confine themselves to the north side of Epping Road. They identify that the extent of land considered strategically appropriate for significantly higher intensity development in terms of use (including commercial uses), height and FSR are to be confined to the northern side. That is both clear from the instruments and accepted by Mr Juradowitch20. 31. However, a very different question is whether it performs any similar barrier function for the restraint on the increase in residential densities for land on the south.
3. It is appropriate to note that, as submitted on behalf of the Azizi interests, the high-level strategic planning document against which the hypothetical development outcome for the site should be assessed was "A Plan for Growing Sydney 2014" (the Plan). It was submitted that the Plan did not limit the potential strategic merit of sites for the provision of additional residential development (including of increased density) to sites that were in centres identified in the Plan.
4. Although the Plan did provide for objectives for identified sub-regions (including the sub-region within which the site can be regarded as located) and detailed matters concerning identified precincts in such a sub-region (including here relevant Macquarie Park Priority Precinct and the North Ryde Station Priority Precinct), the Plan, it was submitted, also addressed matters which could arise in the vicinity of such precincts.
5. It was submitted for the Azizi interests that Mr Mead had agreed that, as a matter of fact, relevant parking arrangements in the vicinity of the site (including in the turning head of Blenheim Road adjacent to Epping Road) were clearly designed to reflect the likely demand for commuter car parking by persons seeking to access the North Ryde Station. This, as I understood this submission, supported the proposition that additional residential intensity on the site would support economic activity in the vicinity or for commuters travelling from the station to other locations.
6. The written submissions for the Azizi interests (and Mr Hemmings' oral submissions in their support) addressed the proposition advanced by Mr Mead that Epping Road constituted a "planning barrier" for higher intensity development on its southern side. Although it was accepted for the Azizi interests that the specific planning documents addressing the precincts were confined to the areas on the other side of Epping Road from the site and addressed significantly higher intensity on the northern side of Epping Road (a position accepted by Mr Juradowitch), it was submitted that this did not lead to the necessary inference that Epping Road must be regarded as a "planning barrier", in the fashion proposed by Mr Mead, to increases in residential densities on the southern side of Epping Road.
7. The written submissions on behalf of the Azizi interests put, at paragraph 32, that: Although Mr Mead was given ample opportunity to attempt to find some reference in the strategic planning documents, he was not able to do so. Indeed, by ultimately accepting a description that the subject site is near, around and within walking distance of the train stations provided support to the contrary.
8. The conclusion advanced on behalf of the Azizi interests as appropriate to be drawn was that Epping Road could not be regarded as a planning barrier in the strategic planning fashion proposed by Mr Mead and that appropriate support was available in the strategic planning documents that up-zoning of the site would not be contrary to the strategic objectives envisaged by the Plan or the relevant more geographically confined subordinate strategic planning documents associated with it.
9. The overall conclusion therefore to be drawn was that general strategic merit had been established on behalf of the Azizi interests that further up-zoning of sites on the southern side of Epping Road might be appropriate.

Past matters concerning the site

1. The relevant past specific matters concerning the site and their derivation are:

• the approach taken by the Council in its development of the local environmental planning framework which subsequently became the 2014 LEP did not express a concluded determination as to what was the appropriate future zoning for the site. This was evidenced in paragraph (h) of the Council's resolution in March 2013 indicating that the Council would consider planning proposals for five identified sites/purposes (including the site owned by the Azizi interests);
• the inference to be drawn from this was that the Council "had already turned its mind to the prospects of the appropriateness of the up zoning" (written submissions at paragraph 109). The paragraph in the resolution immediately following that which evidenced this invitation could not be regarded as foreclosing the possibility that such planning proposals might be approvable;
• although the specific planning proposal subsequently advanced on behalf of the Azizi interests was strongly opposed by the Council (and ultimately rejected by the JRPP), the position adopted within the Council by its open space manager concerning the potential impact of a 45m development on the site was not to reject it but only to suggest that the extent of the proposal was one which would have an adverse impact on Blenheim Park. The internal assessment from this Council officer merely suggested that the scale of the proposal should be reduced to ameliorate the potential impacts on Blenheim Park;
• in mid-2015, Think Planners, an environmental and planning consultancy, prepared and lodged with the Council and the Department a planning proposal on behalf of the Azizi interests seeking up zoning of the site to permit, relevantly, a 45m high residential development (or, potentially, mixed-use development) on the site with the site to be zoned R4;
• a meeting held in September 2015 involving senior council staff and Mr Patrick Azizi discussed the planning proposal which had been lodged with the Council on behalf of the Azizi interests. The communication to Mr Patrick Azizi sent after this meeting did not, in terms, expressly reject the possibility of up-zoning for the site and, indeed, an available inference from its terms was that a more limited planning proposal than that advanced by Think Planners might potentially be acceptable;
• in March 2016, the Council's Planning and Environment Committee adopted (and proposed to the elected Council for adoption) two resolutions concerning the site. The first proposed detailed bases is as to why the Council should oppose the Think Planners prepared planning proposal should it go to Gateway determination and, separately, that the elected Council should resolve to commence the process for acquisition of the site to be added to Blenheim Park;
• at the subsequent Council meeting in March 2016, the Council adopted both of the resolutions proposed to it by its committee. (It is to be noted that I have earlier discussed this process in conjunction with my consideration as to when the public purpose should be regarded as emerging for the purposes of the statutory disregard. However, separately, this resolution and the Council's submissions to the Department and the JRPP also require consideration as part of the broader submissions on development potential advanced on behalf of the Azizi interests);
• although the Council wrote to the Department in May 2016 opposing the Azizi interests' planning proposal (and noting the second resolution of March 2016 concerning the acquisition of the site), the position advanced to the Department concerning the Azizi interests' planning proposal was equivocal by proposing that, if rejected, the Azizi interests should be invited to have further discussions with the Council about the possibility of a revised planning proposal;
• the Department prepared an assessment of the Think Planners' proposal. The assessment was finalised in mid-July 2016 for submission to the JRPP when undertaking its pre-Gateway review. This departmental submission expressly supported the concept of greater density and height for the site (although not supporting the height and FSR in the specific proposal). Importantly, the departmental review considered the question of broad strategic merit of up-zoning of the site and concluded that it was appropriate because it was consistent with the then applicable broad planning framework contained in "A Plan for Growing Sydney 2014"; was not inconsistent with any relevant state environmental planning policy; and was, in the Department's opinion, consistent with the Council's local strategy. However, the Department did consider that the specific Think Planners' proposal had not adequately addressed potential impact on Blenheim Park and the low-density residential area in the vicinity of Morshead Street;
• consequent on finalisation of the departmental assessment report, the Deputy Secretary of the Department advised Think Planners that it was appropriate that the planning proposal be referred to the JRPP for assessment. As a consequence, the JRPP was to undertake a review of the Azizi interests planning proposal;
• on 31 August 2016, the JRPP undertook that review and recommended that the planning proposal should not proceed further;
• it is to be inferred that the JRPP was aware of the Council's proposal that the site be acquired for addition to Blenheim Park (although this is not expressly referenced in the JRPP's document setting out the result of its review;
• the basis upon which the JRPP recommended that the Think Planners' planning proposal should not proceed further did not provide any basis for concluding that the JRPP unequivocally rejected any possibility of up-zoning and further development potential being afforded to the site, merely that the specific proposal did not warrant being advanced further.

Matters of site-specific merit

1. The Azizi interests' submissions also responded to the various matters specific to the site that were raised by Mr Mead in criticism of any proposal to conclude that a higher density development might be appropriate for the site. This was in addition to relying to the broad propositions advanced by Mr Juradowitch as to why, on a sub-regional strategic planning basis, it was appropriate to conclude that the increased density up-zonings could be appropriate south of Epping Road and that, in the specific instance of this site, such an up-zoning was contextually strategically appropriate. The five site specific matters identified in the submissions for the Azizi interests as being raised by the Council were (at paragraph 158 of the Azizi interests' written submissions): 1. overshadowing; 2. visibility; 3. passive surveillance; 4. traffic; and 5. character.
2. The Azzi interest's responses to these matters are summarised below: 1. With respect to the first of these, consistent with what was disclosed in the Mecone proposal drafted for the Azizi interests, the overshadowing impact on Blenheim Park would be a temporally confined one and that, in this regard, Mr Juradowitch's evidence that it was acceptable should be adopted. 2. With respect to matters of visibility from residences on Morshead Street, it was submitted that, as was able to be observed during the course the site inspection, any viewing of development of the scale proposed on the site would be both through intervening vegetation in Blenheim Park or on the southern edge of the site and that the height of the buildings on the opposite side of Epping Road in the North Ryde Station precinct, acting as the backdrop to a hypothetical development on the site, would not give rise to any adverse visibility impacts of a hypothetical development of the nature of that advanced on behalf of the Azizi interests. Although the hypothetical development would, in itself, be visible from within Blenheim Park, the same position applied as would arise with respect to viewing from the Morshead Street residences. In any event, it was submitted, concerns of this nature would also be to be addressed in any consideration of a hypothetical later detailed design that might be proposed for the site. 3. It was noted in the submissions for the Azizi interests that Mr Mead had conceded that overlooking of Blenheim Park was not a basis for opposing the hypothetical development outcome advanced on behalf of the Azizi interests (citing Mr Mead's agreement - at transcript 24 June 2021, page 160 lines 36 to 40 - that a planning proposal would not be refused because occupants of a residential flat building on the site would be able to observe the park). 4. The Azizi interests' written submissions also, briefly, addressed the issue of traffic generation, noting that Mr Mead did not, from a planning perspective, press any concerns about traffic issues - as it would be outside his area of expertise to do so (Transcript 24 June 2021, page 189 lines 24 and 25). 5. Finally, the Azizi interests' submissions addressed questions of visibility of a residential apartment building on the site., Strategic acceptance of the appropriateness of an up-zoning development potential for the site, as I understood the submissions, necessarily accepted the proposition that there would be taller development on the site, then the existing residences; that this would be visible both from the road and from the park; and that matters of detail as to visibility would necessarily have been required to be resolved at the stage of submission of a detailed design rather than at the level of generality here engaged.

The submissions for the Council

1. Much of what Mr Hall addressed in his oral closing submissions was directed to matters I have earlier discussed concerning the timing of the emergence of the public purpose. Some of those submissions are also relevant on the broader issues requiring my consideration.
2. The Council's position concerning the underlying zoning that should be applied for present compensation purposes was addressed in both the Council's written closing submissions and in Mr Hall's oral closing submissions. There was no dispute, as I understood these submissions, that the first step in the process was that of considering the broad strategic position as to whether, relevantly, higher density development south of Epping Road was appropriate.
3. As a matter of broad proposition, the position advanced was that the Azizi interests had not established any basis as to why a hypothetical planning proposal for the site to be up-zoned would have succeeded as at the date of acquisition (although, as I understood the position, it was accepted that any such hypothetical planning proposal would have been determined or that determination would have been imminent and certain as at that date).
4. The submissions addressed the proposition advanced on behalf of the Azizi interests that any hypothetical planning proposal needed to be established as being appropriate at a general strategic level and, if so established, be acceptable in the context of any constraints which applied to the specific site.
5. The Council put, at paragraph 71 of its written closing submissions, that: … The Council accepts that such a distinction exists, and that a planning proposal must satisfy both. The Applicants so submit, of course, because they wish to argue that the 2015 planning proposal failed because of matters peculiar to its application to the particular site and not because of its strategic failings. It is submitted below that that is factually wrong, and that the 2015 proposal was rejected in roughly equal part for strategic reasons unrelated to the number of floors or the height of the building. But the argument should also be rejected because it misuses the 'strategic vs site specific' distinction. The applicants implicitly adopt a definition of 'strategic merit' so devoid of concrete meaning that they render that part of the test for assessing a planning proposal meaningless.
6. Mr Hall submitted that, despite the Council's desire to acquire the land for addition to Blenheim Park, it still had a separate role to consider and comment upon specific planning proposals such as that which would here require hypothetical determination. It was in this context that Mr Hall noted that the Council had continuously advanced the proposition that Epping Road was a relevant planning boundary and that precedent for higher density development on the site was not to be regarded as supported by the higher density development in the North Ryde Station Precinct on the opposite side of Epping Road.
7. The Council submitted that a document such as A Plan for Growing Sydney, being one of a high-level strategic nature, needed to be supported by subordinate planning documents that enabled a better and more precise understanding of what should be interpreted for the purposes of more local application. It was conceded that documents, such as the North District Plan, a document not in use prior to March 2018 was very unlikely to have informed consideration of a hypothetical planning application in 2016 or 2017 (footnote 67 to the Council's written closing submissions). However, it was submitted that a draft of that document, and other specific applicable more localised planning documents such as that applying to the North Ryde Station Precinct would be necessarily considered in any assessment of the hypothetical planning proposal.
8. These planning documents, although explaining why there would be a need for the provision of additional housing in what I understood to be a broader regional context, did not, the Council submitted, provide any support for increased density development generally south of Epping Road or, more specifically, on the site. Although the Council conceded that additional housing (other than in the specifically identified planning areas) was not excluded, it was submitted that this fact could not provide positive assistance in support of the proposition that such housing would be appropriate to be provided on the site. The Council submitted that, as a consequence, nothing in any of the strategic planning documents, at any level, could be shown to provide such positive support.
9. The Council, it was noted, had consistently adopted the position of resisting increased housing development proposals south of Epping Road. This had being the position taken by the Council in developing the local government area wide proposals that had led to the adoption of the 2014 LEP.
10. The Council's written reply submissions noted, at paragraph 77: Mr Juradowitch agreed that that strategy had been consistently applied. "Yes, all planning authorities have been consistent in confining Macquarie Park to the area north of Epping Road."
11. Mr Hall addressed the process which the Council had undertaken concerning the Think Planners' planning proposal advanced on behalf of the Azizi interests. Mr Hall addressed, in his oral closing submissions (in the context of the emergence of the public purpose), the Council's approach to that planning proposal lodged with the Council in mid-2015 and the subsequent interaction between Council's senior officers and Mr Azizi (as set out in the Council's letter of 21 September 2015 - Exhibit C, tab 32) should be regarded. That which was put by Mr Hall (at Transcript 28 June 2021, page 238, line 6 to page 239 line 1) explained why, he said, in the context of Council's consideration of a 45m high development proposal advanced for the site, the Council's response at the meeting as recorded in the letter merely reflected what should be regarded as the Council's proper statutory planning obligations. These were to advise an applicant that, although the specific proposal was considered unacceptable by the Council, some alternative more modest proposal, if advanced, would be considered by the Council in the fashion required of the Council by its statutory obligations. Nothing adverse to the Council should be drawn from this, as I understood him.
12. It is not necessary to set out the entirety of these submissions, but it is appropriate to extract the criticism made by Mr Hall of the propositions advanced by Mr Hemmings as part of this passage. These submissions commence at line 42 on page 238 continuing to the end of the referenced passage. Mr Hall said: But Mr Hemmings tries to build on it far more than the foundation will support. It is just council officers doing what council officers do, which is to say, "You're not getting support for this one. We'll work with you, if you wish us to, to see if there is something in here, if there is a development in here that might be supportable, but you've got to give us some assistance yourself with that." But when the officer was saying that to Mr Azizi and his colleagues, they don't come back with a four storey recommendation; they come back doubling the number of storeys and saying, "It's 25 or bust." And they therefore just don't see what the effect would have been of the three, four or five storey proposal, if it had ever been put forward.
13. Although put in the context of the statutory disregard, these submissions are equally relevant to how, in the Council's case, the Azizi interests specific planning proposal should be approached in determining whether or not any support could be gleaned from the Council's or the JRPP's approach to that planning proposal.
14. In this regard, the Council submitted that Mr Juradowitch had acknowledged that part of the basis of the JRPP's rejection of the Think Planners' proposal was not only the bulk and scale of that proposal, but also encompassed strategic reasons (paragraph 81 of the written submissions - citing Mr Hall's cross-examination of Mr Juradowitch where he had agreed that the JRPP saying that the higher scale development on the northern side of Epping Road did not provide a basis to support increased density on the southern side involved an expression of a strategic conclusion).
15. The cross-examination quoted also included Mr Juradowitch's agreement that building heights in Macquarie Park could not be used to justify a 16-storey building to the south of Epping Road.
16. It was also submitted for the Council that the rejection of the Think Planners' proposal on the basis of its specific impacts on Blenheim Park was not merely to be regarded as specific to that proposal but was also evidencing a general proposition about potential impacts on the park by higher density development proposals for the site. Such a position, it was submitted, was consistent with the Council's position that any such adverse impacts on the park were absolutely unacceptable.
17. In the course of my earlier analysis of the expert planning evidence, I had recorded that Mr Juradowitch and Mr Mead had not discussed The Plan for Growing Sydney but had relied on a subsequent (and conceded not to be relevant) document which had subsequently replaced it. That failure, Mr Hall submitted, fell equally on the cases advanced for the Azizi interests and for the Council (Transcript 28 June 2021, page 242 lines 27 to 30). Both these documents, however, Mr Hall submitted, were at such a high level of generality that they could not be used at the granular level necessary for them to be able to provide support for specific strategic merit being applied to a proposal for increased density attribution on the site.
18. Mr Hall addressed the question of whether subordinate documents such as the draft North District Plan (to be taken into consideration in the hypothetical sense here engaged) provided support, at a strategic level, for the propositions advanced on behalf of the Azizi interests for the development potential of the site. It was submitted that there was no such foundation, as the strategic emphasis was on identified corridors and centres (which did not include the site) and that Epping Road acted as a barrier from the nearest identified location (Transcript 28 June 2021, page 243 lines 18 to 32).
19. During the course of his oral submissions, I asked Mr Hall as to how I should regard the concluding element of the JRPP's reasons for rejection of the Think Planners' proposal being because the panel placed major weight on the adverse impacts on Blenheim Park.
20. Mr Hall responded by submitting that, first, the proximity to North Ryde Station was to be discounted because of the distance needed to be traversed to reach the station and the higher density development on the northern side of Epping Road and because a crossing of the six lanes of Epping Road (with no shelter Island in the middle) constituted a strategic impediment. He observed, second, the JRPP did not consider it acceptable that there be increased density of the scale sought on the southern side of Epping Road.
21. Mr Hall also addressed the three higher density developments which had been approved for R2 zoned sites south of Epping Road, saying that the planning barrier had been breached only three times and had been breached only to the minor extents that we had seen on those three sites (as we had inspected, as I understood the position advanced, two of them during the course of the site inspection). He observed (Transcript 28 June 2021, page 246 lines 44 to 48): It is clearly the case that Epping Road continues to operate as an effective barrier. Both development below it beyond the R2 standard being difficult to obtain. Never obtained with consent of the council. Always constrained when it is obtained, and always closely linked to the standards that do apply on the R2 zone.
22. The three sites provided no sort of template, as I understood him, with him proposing that: …. so there is no basis for saying that this site has always had merit for upgrade zoning, has only failed because of the particular proposals put forward (page 247 at lines 2 and 3).
23. Mr Hall also addressed matters specific to the site. He submitted that, even though the Think Planners' proposal had been rejected, it should not be assumed that, as was now being advanced for the Azizi interests, a hypothetical development based on the Mecone proposal would warrant approval. It was not, he submitted, that 25m constituted some magical height limit above which a development would be become unacceptable, but that a lower one was not to be so regarded.
24. He next submitted that the broad position adopted by the Council's open space manager concerning overshadowing and overlooking of the park was, although of lesser extent, than that which would have occurred arising from the Think Planners' proposal nonetheless still arose as an unacceptable impact of a development of the scale now advanced as the appropriate hypothetical outcome by the Azizi interests.
25. Mr Hall's submissions proposed that there had been a consistent position adopted whenever any proposal for higher density development on the site had been postulated that such development was unacceptable and that this position had been adopted no matter what height might have been contemplated for such development (whether at the lower level now advanced as the hypothetical outcome for the site, or for the far higher proposed development actually advanced on behalf of the Azizi interests in the Think Planners' proposal).
26. In his oral closing submissions, Mr Hall put that the assessment process undertaken by the departmental officers concerning the Think Planners' proposal was not one which was addressing whether or not such a proposed development should be approved but was confined to addressing whether there was sufficient basis for that proposal to be put to the JRPP for Pre-Gateway Review. He submitted (Transcript 29 June 2021, page 253, lines 29 to 34): It is only charged with the role of determining whether it has enough about it to warrant independent review by the panel. Therefore, the assessment was undertaken by the DPE before determining that it should go forward to the panel, is a much more light touch, much less detailed, much less deep analysis than would be required before one could determine that the proposal, in fact, had merit.
27. However, Mr Hall also submitted that the factors which led to the rejection by the JRPP of the Think Planners' proposal at the Pre-Gateway Review stage would have been equally damning had there, in fact, been a decision-making process determining whether or not the rezoning should actually occur. I should conclude, he submitted, that the same reasons for rejection would have remained applicable at a more determinative stage.
28. In his closing oral submissions, on the morning of 29 June, Mr Hall drew particular attention to, and placed emphasis on, paragraph 86 of the Council's written closing submissions. It is appropriate, before turning to address Mr Hall's oral submissions concerning that which was contained in that paragraph, to set out the terms of that paragraph of the written submissions. The paragraph read: The Court cannot find that, on the balance of probabilities, a planning proposal would have been prepared and lodged in 2016 seeking an FSR of 2.77:1 and a height limit consistent with a 7- to 8-storey flat building, or that such a proposal would have succeeded when all before it had failed. The Applicants were still wedded to the R4, 4.3:1 FSR tower block which they still plead as the underlying zoning. They were not converted to believing in a more modest proposal until planning evidence was filed. The evidence is clear that such a proposal would have been opposed by Council for planning reasons "whether or not they wanted to acquire the land". It would also have been opposed by the community. The only path open to the applicant would have been an application for pre-gateway review. That would necessarily involve referral to the JRPP (not necessarily, of course, to an identically constituted panel) that had already rejected the principal arguments put in its support. The Applicants require the Court to believe that the JRPP would no longer give reduced weight to the alleged strategic merit of proximity to the railway station because of the major road crossing; that it would no longer consider Epping Road a major physical and planning barrier; that it would no longer consider the higher intensity development north of Epping Road to be discrete from and not relevantly to influence development to the south and that it would no longer give major weight to the impact on the park. The JRPP is required to have regard to the planning history of the site and would have had its own recent unanimous decision before it. There is no warrant for assuming that it would act entirely contrary to its earlier conclusion.
29. Mr Hall said, relying on paragraph 86 quoted above as the foundation for this submission, that there was no basis upon which I could conclude that, but for the public purpose, a rezoning proposal founded on a far more modest development than that rejected by the JRPP would ever have been advanced by the Azizi interests. There was no evidence that could lead me to reach such a conclusion, and that, expressly, the fact that Mr Patrick Azizi did not, in his affidavit evidence, provide any support for a proposition that a more modest proposal would, in the hypothetical circumstances arising for my consideration, have been advanced reinforced the appropriateness of such a conclusion.
30. Mr Hall then turned to matters of detail concerning the site.
31. First, he proposed that little weight should be given to the fact that a development of the hypothetical type, having its access from the turning head of Blenheim Road, would remove two driveways from Epping Road was a factor that warranted little consideration and that, in the past, this had not been accorded significant weight by the Council or by the JRPP.
32. Next, he then turned to take me to the analysis which Mr Mead had undertaken of the other R4 zone sites within the Council's local government area and proposed that I should give, as I understood him, significant weight to the controls which applied to them and that, under the circumstances, those controls (which, on my reading of them, did not act in the fashion of generosity of development potential as proposed here on behalf of the Azizi interests) would be appropriate to adopt. This would give a consistency of approach here if any development potential higher than that permitted in and R2 Low Density Residential zone was to be accepted as appropriate.
33. Mr Hall then turned to what he proposed should be drawn from the sites at Allengrove Road and Whiteside Street seen during the course of the site inspection. The important matters to be drawn from these sites, he submitted, was that they stepped down to lower elevations toward the R2 zones to their south. He submitted (Transcript 29 June 2021, page 258 line 15 to line 21) that: … and it is that the controls that have been imposed, particularly the stepping down the lower elevation on the southern side, which, on both occasions, was where we stood to observe the developments, is a clear indication that the planner who designed the controls to be applicable was drawing the visual and other cues from the R2 zone to the south and was not emanating or imitating any high density development to the north.
34. In this context, he proposed that, if I was minded to consider that some more intense development potential was appropriate for the site, any transition between the R2 zone (at Morshead Street, as I understood him) and the North Ryde Station Precinct should be by having particular regard to the former rather than the latter and stepping up slightly from Blenheim Park to the north, rather than adopting the height of the high density residential development on the northern side of Epping Road and stepping down from it. This, he submitted would be an approach consistent with that which was observed during the course of the site inspection.
35. Mr Hall next turned to the issue of potential overshadowing of Blenheim Park. He criticised the Mecone proposal as not being drawn to scale with there being no survey evidence to support what was contained in that report. He submitted that, in this regard, the document had not been subjected to the degree of planning scrutiny that would be appropriate if it were, indeed, to inform either a zoning decision or a construction decision (at transcript page 259, lines 20 to 22).
36. The submission to be drawn from this, as I understood him, was that there was no proper evidentiary basis for understanding the extent of overshadowing of Blenheim Park by the hypothetical development now advanced on behalf of the Azizi interests (or any lesser hypothetical development of lower scale as had also been addressed by the planners in their joint expert report). Overshadowing of the park was critical to the JRPP's rejection of the Think Planners' proposal and any overshadowing of Blenheim Park arising from any hypothetical development to be contemplated as an outcome of these proceedings would also be unacceptable.

The Reply submissions for the Azizi interests

1. Mr Hemmings' oral submissions in reply dealt, primarily, with matters that had been raised by Mr Hall concerning aspects of the Azizi interests' claim which were specific to Mr Azizi. These, being matters relating to the claim for stamp duty equivalent compensation and for disturbance pursuant to s 60 of the Land Acquisition Act are dealt with in later sections of this decision.
2. The submission that no actual amended planning proposal had been lodged by the Azizi interests was not a matter to be weighed against those interests in the compensation assessment here being dealt with. He submitted (Transcript 29 June 2021, page 273 lines 45 to 50) that: … it's bordering on the absurd to suggest that in circumstances where, at the same time as not supporting my client's only proposal for 45 metres, they resolve to commence the acquisition process and then do acquire it - and, sorry, do rezone it, it borders on the absurd to suggest that any reasonable person would have followed that up by the making of an amended planning proposal.
3. It is also appropriate to record an exchange, which I had with Mr Hemmings concerning this response. The exchange (Transcript 29 June 2021, page 274 lines 9 to 20) was in the following terms: HIS HONOUR: Are you putting to me by implication in that last submission that your clients would have considered it a futility to spend a further up to $100,000 on making a planning proposal which they would know would be futile? HEMMINGS: In the actual circumstances, yes. In the hypothetical circumstances for the 56(1)(a) disregard, when there is no planning proposal to make it open space, it's only that my 45 metre planning proposal has been rejected with invitation to modify - that invitation would be accepted and the modified planning proposal would have been lodged and as we know from the agreed position between the experts, would have been prepared, considered and determined in time, prior to the compulsory acquisition date.
4. Mr Hemmings next submitted that the planning control survey undertaken by Mr Mead derived from the other R4 zone sites in the local government area did not respond to, or answer the proposition advanced in the written closing submissions for, the Azizi interests that the Council had not carried out any strategic assessment across its local government area and that the absence of any such assessment meant any submission founded on controls applied to other R4 zone and locations should be given no weight;
5. Mr Hemmings submitted that material advanced on behalf the Council that had inappropriately been identified as applying to the site but which, in fact, related to the Blenheim Road Hill shopping centre (said by Mr Hemmings to be a kilometre away from the site), provided no assistance to, or support for, the Council's submissions founded on material prepared for the evolution of the 2014 LEP. It is unnecessary to address that matter, in any detail, in my assessment.
6. The final matter which Mr Hemmings addressed in reply was the submission advanced on behalf of the Council concerning overshadowing and the criticism levelled at the accuracy or utility of the Mecone shadow diagrams. As will later be obvious from my discussion of potential shadow impact on Blenheim Park and the limitation that would necessarily impose on the development potential of the site, it is appropriate, although somewhat lengthy, to set out in full the transcript of Mr Hemmings' reply submissions on overshadowing. His submissions (29 June 2021, page 277 line 18 to page 278 lines 1) were in the following terms: Of course, that was a matter that I cross examined Mr Mead on. Can I just give you the reference, please? It's at transcript, p 166 from lines 14 to line 36, where, as your Honour might recall, he said, "My expectation was that it did not affect the land because the Mecone study had not shown those potential impacts. No, I haven't tested it myself." And I asked him; "Q. In order to express an opinion about the appropriateness, or otherwise, of the shadow from the planning proposal, if a concern was overshadowing, you'd want to know that, wouldn't you? A. Yes, if I were assessing the planning proposal. Q. Yes, that is, documentation will be necessary to be provided. And if Mecone is expressing the opinion that it is not providing any inappropriate shadows then, as its report said, shadows were coming off the park by 10am. One can understand why there's no further justification that the site - no further justification the site should cross the Epping Highway. A. Yes, that's the conclusion they reached by not testing it further. Q. Do you still suggest the potential for overshadowing?" And then he didn't like the overshadowing, in any event. In our submission, your Honour, shadowing was done, the shadowing was adequate to demonstrate that the shadow impacts came off the park by 10am. There's no evidence to suggest that, in fact, those shadow impacts are wrong. And although it's a frequent inference, can I put it only as highly as that, that the Court's invited to make by the council. It's never the task of an applicant in proceedings such as these to actually prepare a planning proposal and submit the planning proposal to your Honour so that your Honour is carrying out the de facto planning proposal. Of course, the evidence does need to be satisfactory to allow your Honour to come to a conclusion on the balance of probabilities. In our submission, with the materials that you have you're able to do that, with respect.
7. Although, after the conclusion of these submissions on overshadowing, there was more detailed argument concerning Mr Hemmings proposed tender of air photograph material, given the ruling which I made limiting the tender to the photographs that became exhibit G, t is not necessary to do more than note that the additional photographic material was rejected.

Consideration - the development potential of the site

Introduction

1. I have earlier set out the issues that require to be determined in these proceedings as a consequence of the Council's compulsory acquisition of the site from the Azizi interests. It is now appropriate to determine what conclusion I should reach on the town planning issues about which I have received evidence from Mr Juradowitch and Mr Mead.
2. The outcome I determine on these issues will automatically lead to a basis upon which the market value of the site for the purposes of s 59(1)(a) of the Land Acquisition Act can be calculated. This is because, as earlier noted, the valuers are in agreement as to how the market value for the site is to be calculated if I was to adopt one of the potential future development scenarios for the site from the range canvassed by Mr Juradowitch and Mr Mead in the written evidence.
3. As I have concluded that: 1. as at the date of compulsory acquisition, the site did have a future development potential at a density greater than its R2 Low Density Residential zoning (being a hypothetical R3 Medium Density Residential zoning of the nature addressed by line 6 of Annexure A - although as an R3 zoned proposition); and 2. the appropriate development potential value to be adopted can be derived from the valuers' table derived from the conclusions in the planners' joint expert report and the agreement as to the area to which the valuers' rate is to be applied as I understand it, it will not be necessary to seek further advice from the valuers.
4. It is now appropriate that I explain why I have reached the conclusion that this is the basis upon which the market value of the site should be calculated.

Three strands from the evidence requiring consideration

1. It is appropriate, I consider, to undertake the necessary analysis by addressing three separate strands arising out of the evidence and submissions concerning the future development potential of the site. Those strands are: 1. matters arising antecedent to, or in connection with, the specific planning proposal actually advanced by the Azizi interests and ultimately rejected. In considering the evidence relating to this, it is appropriate to determine whether or not there is any broad adverse conclusion to be drawn that should stand against all the hypothetical development potential propositions for the site advanced by Mr Juradowitch on behalf of the Azizi interests; 2. at a broader level, what is to be drawn strategically from the overall sub-regional planning context within which the possibility of any hypothetical up-zoning proposal for the site should be determined; and 3. the specific attributes of the site and whether they would be a barrier to higher development potential if it was otherwise strategically appropriate.
2. I now turn, separately, to consider each of the above strands.

The Azizi's planning proposal

1. I now address the framework of activities within which the planning proposal advanced by the Azizi interests and rejected by the JRPP in August 2016 can be understood.
2. Prior to the three 2011 purchases by the Azizi interests effecting acquisition of the three parcels comprising the site, the Council had embarked on a process for developing a new local environmental plan for its local government area. As part of this process, the Council conducted an extensive community consultation. During this process, Mecone, an urban and environmental planning consultancy, lodged a submission on behalf of the Azizi interests concerning the draft local environmental plan. (Exhibit C, tab 24 commencing at folio 117).
3. The Mecone submission proposed that the draft LEP be amended so that the controls on the site would become (at folio 127):

• R4 - High Density Residential zoning;
• Building Height of up to 25m; and
• FSR of 2.8:1.

1. It is to be noted that the Mecone submission, in addressing potential adverse impacts of permitting a change to the zoning controls in the form advocated, addressed the potential impact on the amenity of nearby residential dwellings in the context of the expected backdrop of the higher proposed development on the other side of Epping Road in the North Ryde Station precinct (Exhibit C, tab 24 folio 122).
2. In his oral submissions, Mr Hemmings drew attention to this submission's comments concerning the juxtaposition of the site and its being surrounded by Blenheim Park. He said (Transcript 22 June 2021, page 12, lines 18 to 28): … And then, it says, "Being a site surrounded by a major arterial road - Epping Road - and parkland, the site is far removed from near low density residential, and is considered to be an island site on the edge of Blenheim Park." And we pause there, because this concept of "island site", in our submission, is an important one, because we see it as a benefit of this site being capable of accommodating higher density residential. It appears to be relied upon by Mr Mead in the opposite, and with respect, wrong way, to suggest that the fact that it's an island means somehow it should remain a small pocket of R2 nestled between the parkland and Epping Road. …
3. He noted that this submission to the Council proposed that the site (Exhibit C, Tab 24, folio 120): … it [the site] does not share a contextual relationship with other low density residential land, south of Epping Road. There is some 130 m between the site and the nearest residential dwellings on Blenheim Road.
4. The Mecone submission reproduced a schematic sectional diagram showing an eight-storey development on the site and its local context.
5. The Architectural Analysis at Appendix 1 to the Mecone submission, at folio 136, reproduced for a second time a diagram conceptually depicting a development of the height proposed in its local context. That diagram is reproduced below:
6. The Mecone submission then made the following comments with respect to the potential shadow impact of this proposed development, saying (also at folio 136): The shadow impact survey 7 storey building envelope are greatest at 9.00a.m., shadowing the carpark and quickly move around to Blenheim Road to the south (refer to diagram 3). By slightly after 10 AM on the shortest day of the year, there is no shadow impact on the park itself. It is intended that the eighth level be set back away from the park boundary so that it does not make any additional shadow impact.
7. It is appropriate to reproduce the three shadow images shown in diagram three of the Mecone submission (at folio 137). These are reproduced below:
8. The next step in the Council's process involving the site arose in the presentation to the Council, for its meeting of 11 December 2012, of comments prepared by Council staff addressing submissions which had been made to the 2011 draft LEP (including the Mecone submission).
9. The response proposed by the Council staff to the Mecone submission was that the changes advanced on behalf of the Azizi interests should not be supported. The comment addressing this recommendation (Exhibit C, tab 26 folio 298) was in the following terms (as written): The site is island site surrounded by parkland and located on Epping Road - the site is not contextually associated with Macquarie park Corridor and not in line with Council's strategic approach of providing increased densities in Centres.
10. On 12 March 2013, the elected Council adopted a lengthy series of recommendations concerning the draft Ryde LEP 2011 (a plan which when made became the 2014 LEP). Adopted paragraph (b) read: That the Council forward to the Department of Planning and Infrastructure draft LEP 2011, as amended, with a Section 68 report requesting that the Minister make the plan.
11. Relevant for these proceedings, paragraph (h) was in the following terms: That planning proposals be accepted for consideration by Council for the properties: • 12A, 14 Epping Road/86 Blenheim Road, North Ryde [together with three other specific sites and a potential additional land use in the IN2 zone at Gladesville].
12. These paragraphs are at Exhibit C, tab 28, folios 305 and 306.
13. The Azizi interests clearly accepted that the nomination of the site in paragraph (h) of the Council resolution noted above was to be construed as an invitation from the Council to prepare a planning proposal for the site. This preparation was undertaken on behalf of the Azizi interests by Think Planners with the planning proposal being finalised in mid-2015. A copy of that planning proposal is in evidence at Exhibit C, tab 30 folios 443 to 494. The planning proposal was a comprehensive one addressing a wide range of matters - including those of strategic merit and detailed potential issues relating specifically to the site. It is not necessary for present purposes to delve into those aspects of the planning proposal. It is sufficient, for present purposes, to note that that which was advanced on behalf of the Azizi interests was described in the executive summary of the Think Planners document as seeking amendments to the 2014 LEP (to be effected by alterations to three of the maps incorporated in the LEP). The planning proposal said, at folio 446: The planning proposal seeks amendments to - • Zone Map (proposing a single R4 - High Density Residential zone to the subject land); • Floor Space Ratio Map (proposing an FSR of 4.3:1 to the subject land); and • Height of Building Map (proposing 45m to the subject land).
14. The next available contribution to the information about the Council's processes concerning the planning proposal comes from a memorandum from the Council's Acting Manager, Open Space to a senior strategic planner in the Council (who obviously had a relevant coordinating role within the Council's planning staff concerning the planning proposal). This memorandum was dated 23 July 2015 (Exhibit C, tab 31 folio 495). The memorandum addressed the Azizi interests' proposal under the headings:

• overshadowing;
• negative impacts to the natural area;
• limited open space; and
• traffic and parking

1. For the purposes here engaged of understanding broad planning issues relating to the development potential of the site, the Acting Manager, Open Space observed: Overshadowing. The proposal currently casts a constant shadow over a significant portion of the Parks (Blenheim Park and Myall Reserve). There will be an unacceptable level of shade onto these parks.
2. In light of this, he made the following relevant recommendation: that the building be modified to allow for solar access and to resolve overshadowing to adjoining owners/properties.
3. In this context, it is expressly to be observed that the Acting Manager, Open Space (who can be inferred to be responsible for management of Blenheim Park) did not raise an absolute objection to development of a higher density on the site than that which was then located on the site.
4. The next information contained in the documents that is relevant in this part of my discussion is a letter from the Council's Acting Group Manager - Environment and Planning to Mr Patrick Azizi. The letter is dated 21 September 2015 (Exhibit C, tab 32 folio 497). The letter commences by referencing a meeting which had been held on 11 September 2015 with the Council's General Manager, its Team Leader - Strategic Planning and the author of the letter. The letter noted that Mr Azizi had been advised that the Council considered that the planning proposal of the scale advanced, in the proposed location, was premature. Importantly, the letter then set out five matters that were described as options for his consideration. These were:

• presenting the planning proposal as submitted to Council for a decision;
• deferring consideration of the planning proposal until the North Subregional strategy has been finalised;
• amending the planning proposal to reduce the scale significantly (up to 4 storeys in height);
• lodging a pre-Gateway review with the DoPE; or
• withdrawing the planning proposal and lodging a development application that fully complies with the current R2 zoning.

1. The letter observed that it had been agreed that Mr Azizi needed to indicate the Azizi interests preferred option by mid-October of that year if he wished to have it considered by the Council in November 2015 (or the current proposal could be withdrawn-.
2. It is obvious from the sequence of documents that follow from this that the Azizi interests appear to have elected that the Council consider the proposal as advanced.
3. A meeting on 8 March 2016 of the Council Committee recommended that the elected Council oppose the Azizi interests' planning proposal. In doing so, the Committee adopted a fifteen-point resolution for recommendation to the Council meeting as the Council's reasons for opposing the planning proposal (Exhibit C, tab 33, folio 500).
4. The Committee also recommended: That the General Manager be delegated to investigate and action the acquisition of the land for open space to be incorporated into Blenheim Park.
5. On 22 March 2016, the Council adopted the recommendations from the Committee without amendment (Exhibit C, tab 34, folio 511).
6. That which subsequently follows, from the material in Exhibit C, arises in the context of the Azizi interests as having approached the Department seeking to have a pre-Gateway Review undertaken of the Think Planners planning proposal. The precise timing is noted in the chronology earlier set out as being that, on 28 April 2016, the Azizi interests lodged a request with the Department for a such rezoning review.
7. The request for the review was obviously granted and appropriate officers of the Department were tasked to prepare an Information Assessment and Recommendation Report for consideration by the Deputy Secretary of the Department and, subsequently, by the JRPP to which the request would be referred.
8. The Council was also obviously notified that this review was to be undertaken. As a consequence, on 26 May 2016, the Council's Manager, Strategic City, forwarded a nine page submission on behalf of the Council to the relevant senior officer of the Department within whose purview the Information Assessment and Recommendation Report's preparation fell. The Council's letter is at exhibit C, tab 38 folios 550 to 558.
9. The letter noted that, although the Azizi interests had lodged supplementary information in November 2015 indicating that a proposal with reduced height and FSR might be pursued, the Council had subsequently been advised, in January 2016, that the Azizi interests proposed to proceed with the Think Planners' planning proposal as originally submitted. The letter then noted that the Council's primary concerns with the Think Planners' proposal included: 1. bulk and scale; 2. site context; shadowing of adjacent public open space; 3. lack of policy context; and 4. traffic issues
10. Relevant for present consideration, on folio 551, the letter said: Bulk and scale issues include the lack of urban design rationale to justify the excessive height and FSR, the visual bulk when viewed from the adjacent low density residential area in the inconsistency with other similar developments approved by the state government on the southern side of Epping Road, as outlined below.

Conclusion to be drawn from the Think Planners' planning proposal

1. I have set out in some considerable detail above the history of what took place concerning the process (from evolution to rejection) of the Azizi interests' specific planning proposal developed by Think Planners.
2. That which is to be drawn from consideration of all the material set out concerning the various steps in this process leads, I am satisfied, to the inevitable conclusion that there has never been any determination by, or expression of a general opinion from, any organisation or body (other than the Council) adopting, in absolute terms, a proposition that Epping Road acted as an impenetrable planning barrier to higher density on the southern side of that road in the fashion proposed by Mr Mead.
3. In a strategic sense, the relevant considerations discussed above lend weight to the contrary conclusion I later derive that there can, subject to consideration of relevant site-specific issues, be strategic merit in contemplating higher density development on sites to the south of Epping Road.

Introduction

1. Mr Mead accepted during questioning by Mr Hemmings (Transcript 23 June 2021, page 77 line 43 to page 79 line 15) that the primary document for assessment of the strategic merit of the hypothetical amended planning proposal for the site which would have been lodged in mid to late-2016 would have been the Plan - that is A Plan for Growing Sydney 2014.
2. However, the joint expert report had discussed the State's later strategic planning document, A Metropolis of Three Cities and its subsidiary document, the North District plan and not the Plan. This was because, Mr Mead indicated during the questioning noted above, that these documents were likely to have been in place at the time of gazettal of any rezoning of the site. Mr Mead also acknowledged that he had not referred to the Plan in his individual statement of evidence.
3. As a consequence, I am satisfied that this is the document which provides the appropriate planning framework within which the hypothetical development potential is to be assessed.
4. I have earlier set out, at insert, the broad five conclusions about strategic consistency in the departmental pre-gateway assessment of the planning proposal advanced by the Azizi interests (but ultimately not approved by the JRPP).
5. I noted Mr Mead's response to the reasons why the Department considered that that proposal was strategically appropriate were there set out.
6. Although Mr Mead's response to these were that the conclusions expressed by the Department were appropriate but only at a very high level of generality, it is appropriate to return to consideration of these matters given that the Plan was the applicable relevant broad strategic document to which regard is to be had for present purposes.
7. Prior to setting out these five points, the Department had, as an introduction to them, described the nature of the plan and identified the location of the site (including, as Figure 7, an indicative location shown on a diagrammatic extract taken from the Plan).
8. In addition to the five general points earlier set out explaining why the Department considered that the proposal was, in a strategic merit assessment sense, consistent with the Plan, the Department also set out two additional aspects on a more localised strategic basis (Exhibit C, tab 41, also folio 574): The proposal is consistent with priorities for the Macquarie Park centre, including: • working with council to concentrate capacity for additional mixed-use development around train stations, including retail, services and housing; and • investigating potential future opportunities for housing in areas within walking distance of train stations.
9. It is also to be noted that Mr Mead accepted that, for the purposes of the Plan, the site was not in the North Ryde Station Priority Precinct but was around or near to it (Transcript 23 June 2021, page 86, lines 29 to 37).
10. Although not conclusive, I am satisfied that these general propositions advanced in the departmental pre-gateway assessment report on the Azizi interests' rejected planning proposal are applicable to, and supportive of, a more modest hypothetical density increasing up-zoning, for present valuation purposes.

The 2018 density increase moratorium

1. Although Mr Mead expressed the opinion, as earlier noted, that the moratorium on increased density planning proposals for the Ryde local government area was in place as at the date of acquisition and this militated against any hypothetical R4 zoning (or other higher density zoning), I accept the evidence from Mr Juradowitch that any planning proposal to effect higher density for the site would have (absent the public purpose) have been lodged and, if not effected, at least be in advanced process by the date of the moratorium's commencement in June 2018 (thus being preserved rather than subject to the moratorium). Because of this, I am satisfied that the moratorium plays no role in my consideration of what would be the underlying future zoning of the site.

The Architectus Master Plan

1. I have earlier noted that Mr Hemmings had taken me to the Architectus Master Plan in support of the proposition that there had been an examination of potential higher density development sites on the southern side of Epping Road. This examination, as I understood his position, demonstrated that there had been some support for breaching what Mr Mead had described as the "planning barrier" created by that thoroughfare.
2. I had raised with Mr Hemmings and Mr Hall my concern that the Architectus Master Plan had been one based on particular land tenure parameters rather than on a broader prospect of evaluation without having regard to the side of Epping Road on which the land was located (Transcript 23 June 2021 at page 105).
3. I am satisfied that the Architectus Master Plan does not provide any significant support for higher density development potential, on the southern side of Epping Road but is to be regarded as neutral on this point. There are two reasons for this. First, all the land which was the subject of this report was owned either by a state government entity or by ING (a significant landowner in the vicinity of the North Ryde station). Second, the Tennis World site on the southern side of Epping Road, although in public ownership, was removed in response to public opposition to its removal as a public recreation facility by being identified as publicly owned land potentially to be sold for residential development.
4. Under the circumstances, I am satisfied that the Architectus Master Plan should be regarded as neutral on the question of whether or not higher density residential development potential existed on the southern side of Epping Road in the vicinity of the site as at the date of acquisition.

Development south of Epping Road

1. First, it is to be acknowledged that, although the earlier described discussions between representatives of the Council and those of the Azizi interests in 2016 might be taken as some encouragement for the Azizi interests to pursue a planning proposal for the site (at a significantly lesser density than that advanced in the planning proposal actually pursued and refused), it is also appropriate to conclude that the present position advanced on behalf the Council (that the Council would not support any higher density upzoning from the R2 Low Density Residential zoning south of Epping Road) would be maintained into the future by the Council.
2. However, despite what is to be assumed to be the consistency of the Council's position on this point, it is clear that this position has not been maintained, as a matter of practical outcome, despite the Council's "bright line" desire that Epping Road act as an inviolable planning barrier to increased residential density.
3. The fact that the earlier discussed three sites south of Epping Road have been granted approvals for residential development at an increased density from that which would otherwise apply had the development limits otherwise applicable in the R2 zone been maintained demonstrates that, in appropriate cases, the planning system may permit acceptable (but not uncontrolled) density increases south of Epping Road.
4. Whilst it is to be appreciated that two of these three approved higher density residential development south of Epping Road arose as a consequence of applications dealt with pursuant to the now repealed Part 3A of the EPA Act and only one of them was as a consequence of a planning proposal process (as would have been the necessary process applicable as at the date of the Council's compulsory acquisition of the site), nonetheless these three developments have breached the density "planning barrier" of Epping Road desired to be maintained by the Council.
5. The Council, although being a significant voice to be heard concerning any such hypothetical application, would not, in itself, be the consent authority. That role would lie with the JRPP for any future planning proposal which went to a Gateway determination. Thus, although the Council's desire to maintain the planning barrier it asserts exists would be a matter to be taken into account in any future decision, it is not something which would necessarily mandate the outcome of such a process.
6. Two of these developments have already been completed (being the Allengrove and Whiteside sites). These were visited during the course of the site inspection as earlier described. Nothing was suggested by either Mr Juradowitch or Mr Mead that these two developments were not respectful of, and afforded appropriate relevant impact protections to, their neighbouring areas which had retained their R2 Low Density Residential zoning (with these neighbouring areas having the inherent characteristics of the areas which had been developed many decades earlier for single dwelling residences on generous suburban allotments - as can be discerned from the air photos in Exhibit G, this exhibit including the air photos showing these two developments and their surrounding residential contexts).
7. These approved developments (particularly the two which have already been constructed) establish that, as a matter of broad planning principle, increased density on sites to the south of Epping Road (and having a frontage to that road) can be appropriately considered for the possibility of residential redevelopment at a density greater than that which would apply if the development constraints resulting from the retention of the R2 Low Density Residential development planning controls were maintained for such a site.

Conclusion on the broad strategic position

1. I am satisfied that further medium density development South of Epping Road (and having frontage to Epping Road) is provided support by the three determinations discussed above. This breaching of the dyke, as I described it during the course the hearing, demonstrates that there is no absolute planning barrier, in a strategic sense, to considering the possibility of such development at the time of the compulsory acquisition of the site (despite the Council's long-term and continuing objection in principle to such higher density development).
2. This conclusion on the broad matter of principle then makes it appropriate to consider whether, in its context, the site compulsorily acquired from the Azizi interests should be regarded as capable of supporting such development and, if this examination resulted in an affirmative conclusion, what would be the resulting specific constraints defining the extent of such development potential. I now turn to addressing the first of these matters.
3. I earlier set out Mr Hall's submissions that I could not have any proper basis for concluding that a more modest planning proposal of the nature now advanced on behalf of the Azizi interests would ever have eventuated had the public purpose not intervened.
4. I am unable to accept that proposition in circumstances where, at least at a sufficient level of encouragement, the Council's letter of 21 September 2015 provided such encouragement (at least in the eyes of the Azizi interests) for a more modest proposal. Although material potentially providing a basis for such a more modest proposal was advanced by the Azizi interests later in 2015 after the meeting referred to in the letter (but not acted upon by the Azizi interests further), this was an indication that the Azizi interests were sufficiently minded to be aware of such possibilities.
5. Although not pursued at that time, I am satisfied that the terms of the JRPP's subsequent Pre-Gateway Review rejection and the reasons explaining it, when seen in the context of the specifically encouraging comments in the departmental assessment report supporting the potential of a more modest proposal, would have collectively provided a basis upon which the Azizi interests, properly and competently professionally advised, would have sought, absent the public purpose, to advance a more modest proposed development in the expectation that there was a significant prospect of it being successful.

The appropriateness of the site for increased density

Introduction

1. I am satisfied that, subject to a suitability assessment of this site, it is appropriate to conclude that greater residential density than the R2 Low Density Residential zone might be appropriate to be contemplated for the site as at the date of its compulsory acquisition. It is in this context that the specific attributes of the site are to be examined as the second step in this land use assessment process I am satisfied I should undertake.
2. In doing so, I address the matters of site-specific merit below, but do not do them in an order which should be taken as ranking them in importance.

An eight-storey development would not be appropriate

1. Although Mr Juradowitch advanced the proposition that his proposed hypothetical 8 storey apartment building for the site would, when viewed from the Blenheim Park car park (particularly) or in a filtered fashion through the trees in Blenheim Park from dwellings on the northern side of Morshead Street would merge into the much higher built form of the apartment blocks on the opposite side of Epping Road in the North Ryde Station Precinct, I am unable to accept the proposition that the hypothetical built form at that height would be rendered imperceptible and/or completely subordinate to the built form across Epping Road.
2. This is particularly the position when such a hypothetical built form would be viewed from Blenheim Park, either from the car park or from the dog exercise area and other elements of Blenheim Park nearby these locations. Although existing trees could act to moderate the impact of the hypothetical built form on the site when viewed from Morshead Street or, to a significantly lesser extent from within Blenheim Park close to the site, I do not consider that this impact softening would be sufficient to permit contemplation of what might be a site yield if the underlying zoning was to be R4 High Density Residential.

The R2 zoning heights are not appropriate

1. On the other hand, I am not persuaded that the position advanced by Mr Mead that the height limits which would remain applicable if the R2 Low Density Residential zoning was maintained would be appropriate. In this context, the benefit of the backdrop arising from the development on the opposite side of Epping Road, when coupled with relevant aspects of the vegetation softening effect from both Blenheim Park and, further to the south, from the Morshead Street dwellings, does provide, in my assessment, sufficient contextual cueing to render a modest increase in permissible density (resulting in the hypothetical adoption of an R3 Medium Density Residential hypothetical up-zoning for the site.

The site is near the North Ryde activation precinct

1. Although the site is separated from the North Ryde Activation Precinct by Epping Road (as to pedestrian access to North Ryde Station, see below), it is also separated, by a broadly similar lateral distance from the R2 residential precinct which commences at Morshead Street. Although this proximity to the Activation Precinct is not a strong point in favour of concluding that any up-zoning might be appropriate (absent the public purpose), this equidistant and countervailing pair of proximities renders the nearby zoning contexts neutral in my assessment. In reaching this conclusion on this point, I have weighed the competing positions advanced by Mr Juradowitch and Mr Mead. Each of them has a deal of validity without either opinion being so dominant to necessitate its adoption over the opposing view.

The site is within walking distance of the North Ryde Metro station

1. It is agreed by Mr Juradowitch and Mr Mead that, to walk to the North Ryde Metro station, a path of some 500m or so needs to be traversed. It is also not disputed that the walk from the site to the station, would involve an "at grade" crossing of Epping Road at the location to the west incorporating a signalised pedestrian crossing facility.
2. The difference between the position taken by Mr Juradowitch and that taken by Mr Mead on this point is that the distance and comparative complexity of the pedestrian path, in Mr Mead's view, means that it should not readily be accepted that, in planning terms, a more dense hypothetical residential development on the site should not be regarded as being within a walkable distance for employment commuting terms.
3. Indeed, as Mr Hall submitted, such a travel path would involve a signalised crossing of six lanes of a major arterial road with no pedestrian safety island at its midpoint.
4. I accept Mr Juradowitch' evidence that the site should be regarded as being within a reasonable and acceptable walking distance of the North Ryde station for commuter purposes. There are two reasons why this position should be accepted.
5. First, although there is an element of complexity to the walking path, there is nothing unreasonable about this and the length of the path needing to be travelled is within that which would conventionally be regarded as acceptable for such purposes.
6. Second, as a matter of practicality, as observed during the course of the site inspection, the turning head at the northern end of Blenheim Road (located immediately adjacent to and a little below Epping Road), is already clearly used for commuter parking on a regular and frequent basis.
7. Indeed, the Council's kerb parking arrangements and signage clearly accept that this is the position and, in so doing, make provision to facilitate it.
8. The extent to which these spaces were obviously being used for this purpose during the course of the site inspection demonstrates that, from immediately to the east of the boundary of the site, the walk from these parking locations does not act as any form of functional barrier to walkability for commuting purposes.
9. Indeed, although the crossing of the major arterial road is one needing to be effected at a brisk pace (as advanced by Mr Hall during the hearing), there is obviously a significant population who considers the walk to the station and accepting the challenge of that crossing to be entirely reasonable for commuter purposes.

Removal of driveways from Epping Road

1. At present, the two residential sites that had been owned by Alnox had single vehicle entrances direct from Epping Road. Any hypothetical more dense residential development on the site would have, as Mr Juradowitch and Mr Mead accepted, its vehicle access from Blenheim Road (as is presently the position for the dwelling formerly owned by Mr Azizi).
2. It was clear from what could be observed during the walk along Epping Road across that frontage of the site, vehicle access and egress from the two residential properties which had been owned by Alnox would have necessitated "rear out" vehicle movements from Epping Road. It was able to be observed that there did not appear to be any possibility of a turning facility within either of the properties which had been acquired from Alnox so as to be able to create some front in/front out movement for residents.
3. In this regard, it is clear from cl 101 of State Environmental Planning Policy (Infrastructure) 2007 that it is undesirable to have single dwelling driveways accessing a major roadway (such as Epping Road). Self-evidently, from what could be seen during the course of the site inspection, a rearward movement from either of these driveways (being up a slope and with the driver being on the side opposite the flow of traffic on Epping Road), would be highly undesirable and potentially significantly dangerous.

Overshadowing of Blenheim Park

1. Mr Juradowitch's evidence was that the development he supported, based on an R4 High Density Residential hypothetical zoning and as shown in the Mecone report, would ensure that there was no overshadowing of the usable areas of Blenheim Park after 10 AM also requires consideration. This is in the context of whether what would be a major discretionary concession about development potential being hypothetically available to the Azizi interests was acceptable.
2. I am satisfied that it would not be appropriate to conclude that this would be an acceptable basis upon which to base the hypothetical development potential of an up-zoning of the site. The inference that overshadowing of usable areas of Blenheim Park would be acceptable up to 10 AM, although potentially acceptable if the site was already zoned for higher density development is not appropriate when what is proposed is a significant departure (uplift) for the hypothetical development potential of the site. Under those circumstances, ordinary overshadowing planning considerations of the time periods during the day when overshadowing might be appropriate are significantly less relevant.
3. The concerns expressed in the departmental assessment report concerning overshadowing of Blenheim Park and the weight given to that impact in the JRPP's Pre-Gateway Review report is a factor to be seen as weighing against any hypothetical development which might be considered for the site that permitted such overshadowing.
4. Although not determinative, I am satisfied that the possibility of overshadowing of Blenheim Park until 10 AM in the morning is a factor weighing against the conclusion that a higher density residential development potential of the scope proposed by Mr Juradowitch should be regarded as appropriate.
5. However, this only provides a limiting parameter on a higher hypothetical development and not an absolute barrier to such a development.

Blending into the backdrop

1. Although I have earlier explained why I reject Mr Juradowitch's proposition for an eight storey hypothetical development outcome, this does not mean that a less tall hypothetical development could not be regarded as acceptable for the site having regard to the higher density on the northern side of Epping Road in the North Ryde Station Precinct as a background and the extent of the softening of any potential development on the site afforded by the extensive vegetation in Blenheim Park and on the southern edge of the site. A combination of these factors would permit a hypothetical development on the site being somewhat above the height of that vegetation when viewed from dwellings on the northern side of Morshead Street to be acceptable. Such a built form height, however, would not be appropriate if it dominated the vegetation or was not perceived to be significantly subordinate to the higher density backdrop development to its north across Epping Road.
2. As Mr Hall put it in the course of his closing submissions on a contingent basis, any hypothetical more dense development model which I might contemplate should be one based on stepping up from, and being respectful of, a transitional context from the Morshead Street residential development and Blenheim Park rather than one is appropriate to be regarded as stepping down from the significantly taller high density residential development on the opposite side of Epping Road.

An island site

1. I am satisfied that the fact that the site is an island without direct interface frontages to other residential development is a specific factor to be weighed in favour of concluding that a higher density hypothetical development is appropriate. This is because there is no need for the sort of respectful interface shown at the Allengrove and Whiteside development sites observed during the course the site inspection, interfaces which mandated development limits to afford respect the neighbouring dwellings in the retained low density residential areas. The fact that the site is an island permits a degree of greater freedom in this regard (subject to other constraints already discussed above).

Conclusion on general site suitability

1. The above discussed factors weighing in favour of a strategic planning conclusion that a hypothetical increased density development on the site might be concluded to be appropriate, nonetheless, do not provide support for the basal proposition advanced on behalf of the Azizi interests for an R4 zoning as being appropriate as the broad strategic outcome.
2. Such an outcome would be inconsistent with the broad state level strategic approach (discussed concerning the other specific sites below) that have permitted higher density development to be approved on the southern side of Epping Road.
3. For the reasons I have explained above under this broad heading, I am satisfied that there is sufficient site strategic merit (subject to the specific development parameters discussed below) only to conclude that it is appropriate to adopt a hypothetical R3 Medium Density Residential development potential for the site.

The appropriate development parameters for valuation purposes

Introduction

1. Having explained why, in both a general and site-specific context, the case advanced for the Azizi interests warrants a town planning conclusion that a hypothetical up-zoning to permit R3 Medium Density Residential development is the appropriate outcome for broad site valuation purposes, it is now appropriate to turn to consider what such hypothetical development would look like. This is so that the appropriate valuation point from the agreed positions determined by the valuers can be applied.
2. I therefore now turn to consider which element from the above-noted table from the joint expert planners' report should be adopted.
3. In this context, Mr Juradowitch accepted (at least for his R4 hypothetical development model) that there should be stepping back of the uppermost two levels of the hypothetical built form with the top level further setback somewhat than the level immediately below. Such a treatment is consistent with that advanced for the Azizi interests in the Mecone proposal, the proposal for which Mr Juradowitch advocated in an R4 hypothetical up-zoning context.
4. Although Mr Mead's evidence was clear that he did not resile from his proposition that the R2 zoning should prevail, nonetheless, he did observe that, if any hypothetical planning proposal outcome departing from this was to be contemplated, the theoretical outcome should be confined to that which would be derived within a hypothetical R3 up-zoning scenario.

Cues from the Whiteside Drive and Allengrove Cresent sites

1. I have earlier explained why the Whiteside Drive and Allengrove Cresent sites provided important elements in understanding why the Epping Road strategic "planning barrier" had been fractured. In addition, it is also appropriate to have regard to the Whiteside Road and Allengrove Cresent sites (viewed during the course of the site inspection) as providing important cues requiring consideration for the hypothetical site-specific matters applicable to development on the land compulsorily acquired from the Azizi interests.
2. In this context, the two developments inspected could be seen to be respectful of the lower density residential development to their south (whether across the road or across a boundary fence not being presently relevant).
3. However, having regard to the significantly greater separation of the site from the dwellings on the northern side of Morshead Street and the fact that these dwellings are, themselves, upslope from the low point in Blenheim Park, adoption of a similarly respectful hypothetical built form would be an appropriate hypothetical design response in this context.

Conclusion on the basis for determining the market value of the site

1. I have earlier noted that, in the joint planners' report, at 2.3.24, Mr Juradowitch had expressed what was his "relatively pessimistic" view of the development potential of the site on the basis of an R3 Medium Density Residential zoning as being one which provided a building, height of at least four storeys with an FSR of at least 1.6:1. In conjunction with this, he expressed the opinion that the process for such an R3 proposal would have been completed or sufficiently completed to be taken into account for acquisition valuation purposes.
2. As earlier set out in my consideration of Mr Mead's evidence, this timing aspect was agreed to by him.
3. However, I have, earlier, explained why the three "planning barrier" breaching sites provide an appropriate basis for being satisfied that, at a broad strategic merit level, it is not unreasonable to assume that a similar position should be adopted for the purposes of my assessment of the development potential of the site.
4. In the context of my consideration of the site specific elements requiring assessment for the hypothetical yield for present purposes, I am satisfied that direct application in the fashion discussed would not be appropriate to be applied precisely.
5. I have earlier set out the agreed position of the valuers and how they have derived agreed values from that which was earlier set out as being the concluding positions adopted by each of the planners as the relevant potential outcomes for the site if I was to conclude (as I have) that a higher hypothetical development outcome was appropriate for the purposes of determining the compensation to be paid to the Azizi interests.
6. In considering the factors that weighing in favour of such a conclusion, it necessarily follows that they must be tempered and moderated to give appropriate regard to the constraints necessary to be adopted for a hypothetical development respectful of the specific attributes of its potential location. In particular, I am satisfied that this necessitates the adoption of a hypothetical outcome which would not result in any overshadowing of any portion of the active use areas of Blenheim Park. Absent having hypothetical design outcomes (and, particularly, hypothetical building envelopes) that might enable some assessment of what could be achieved if there was to be no such overshadowing, it is appropriate to adopt, I am satisfied, a modestly precautionary approach. In doing so, I proceed on the implicit assumption that, at the uppermost level of any such hypothetical development, that uppermost level would be stepped back from the interface with Blenheim Park and toward Epping Road (this being consistent with the position adopted, as I understood it, throughout the evidence of each of the planning experts).
7. Although Mr Mead's development yield set out in line 6 of Annexure A to this decision is described as being that which he envisaged under an R4 outcome, it is a development outcome less intense as to height and FSR than that proposed by Mr Juradowitch as being his R3 outcome at 2.4.49 in the conclusion of the joint expert report.
8. Adopting the precautionary approach that I consider appropriate, I am satisfied that (subject to adjustment to reflect the agreed position concerning the area of the site), the outcome proposed at line 6 of Annexure A, being the second outcome discussed by Mr Mead in 2.4.48 of his conclusion at the end of the planner's joint expert report, should be adopted and applied.

Mr Azizi's stamp duty equivalent compensation claim

Introduction

1. A further head of compensation to which Mr Azizi may be entitled (but Alnox is not) arises by virtue of the operation of s 59(1)(d) of the Land Acquisition Act. This provision was earlier set out at [42].
2. In this context, it is to be observed that Mr Azizi had not acquired a replacement residential property following the compulsory acquisition of his residence as at the date I reserved my decision in these proceedings. He had continued to reside in his home and was not expected to move out until some time later.
3. As a consequence, Mr Azizi's entitlement (if it exists) to a stamp duty equivalent payment pursuant to the provision would not be one of reimbursement of stamp duty costs actually incurred for a replacement residence but would be one arising in the context of the future necessity for him to relocate his residence. There would, thus, be no actual purchase amount potentially limiting the stamp duty quantum to be calculated for such purposes.
4. However, the Council challenges Mr Azizi's claim pursuant to s 59(1)(d) of the Land Acquisition Act, submitting that Mr Azizi has no such entitlement as the operation of s 60(b) of the Act operates to exclude such a claim.
5. As a consequence, two matters arise for determination concerning Mr Azizi's stamp duty equivalent payment claim. First, it is necessary to consider whether the Council is correct in its submission that such a claim is not maintainable. Second, although I have concluded that the Council is correct on this point, I have nonetheless proceeded to determine this dispute between Mr Azizi and the Council as to the basis upon which such a claim, if established, should have its quantum calculated. I have done this against the eventuality that I might be held to be wrong in my determination that Mr Azizi has no such entitlement.

Does Mr Azizi have a stamp duty equivalent compensation claim?

Introduction

1. The Council advances the proposition that Mr Azizi does not have any entitlement to a stamp duty equivalent compensation payment pursuant to s 59(1)(d) of the Land Acquisition Act. It advances this position on the basis that s 61(b) of the Act operates to bar such a claim if I was to conclude (as I have) that the site should be valued on a basis which did not maintain the R2 Low Density Residential zoning for assessing the compensation quantum to which the Azizi interests were entitled.
2. Given the way that this matter evolved at the closing submissions phase of the hearings, it is appropriate to commence this discussion by turning, first, to the basis upon which the Council advances its case founded on s 61(b) of the Land Acquisition Act. This provision was earlier set out at [46].
3. I have adopted this approach, because it was not foreshadowed as a basis of dispute in the Council's opening written submissions. At paragraph 59 of those opening submissions, the Council said: The Respondent also accepts that Mr Azizi is entitled to stamp duty in connection with the purchase of land for relocation pursuant to s 59(1)(d) of the Just Terms Act, however, such claim has not yet been quantified.
4. The written closing submissions on behalf of the Azizi interests noted this at paragraph 205, saying: Mr Azizi is entitled to the stamp duty costs he is likely to reasonably incur in connection with the purchase of land for relocation under s 59(1)(d). The stamp duty amount must not exceed the amount that would be incurred for the purpose of land equivalent to the value of Lot C. The Council accepts that Mr Azizi is entitled to stamp duty costs, however contends that such a claim has not been quantified: RS at [59].
5. As Mr Hemmings observed (Transcript 28 June 2021, page 229 lines 27 to 31): This is an interesting closing submission. It hasn't been pleaded, wasn't raised in opening - hasn't been uttered at all, but in closing submissions, addressed the operation of s 61 for the payment of stamp duty. I might leave it for detailed submission, until I've heard Mr Hall's submissions ……
6. Under these circumstances, it is appropriate to commence by setting out the Council's submissions on this point.

The Council's submissions on s 61(b)

1. The Council's written closing submissions dealt with this briefly at paragraph 113, a paragraph in the following terms: The s 61(b) issue arises only if the Court awards market value on the basis of redevelopment potential greater than the R2 zoning. To realise such potential Mr Azizi must relocate. Even with the distinction between 'costs' and 'losses' drawn in United Petroleum in mind, the principle remains that an applicant cannot recover the same compensation twice.
2. The reference to United Petroleum was a reference to the decision of the Court of Appeal in Roads and Maritime Services v United Petroleum Pty Ltd (2018) 236 LGERA 389; [2019] NSWCA 41.
3. Given that the position adopted in closing as described above departed from that which had been advanced for the Council at the commencement of the hearing, it is no longer relevant to refer to anything said by Mr Hall in his opening of oral submissions.
4. The position advanced in Mr Hall's oral closing submissions on this point was contingent on my determination that an R2 zoning was not be appropriate basis upon which to assess the market value of the site. As earlier explained, I have reached such a conclusion.
5. In anticipation of this possibility, Mr Hall submitted (Transcript 29 June 2021, page 262 lines 10 to 20): If you do determine that the redevelopment potential would be there and it should be rewarded, then the inevitable consequence is that Mr Azizi and his wife would have been required to leave the premises because this is not a proposal where you would somehow build a tower behind the house overshadowing them. The proposal is that you would demolish the existing improvements and redevelop, or that you would sell the property to a developer for the purpose of demolishing the existing improvements and redeveloping, and in either circumstance, it is inevitable that the financial loss proposed to be addressed by these two having compensation, disadvantage caused by relocation and stamp duty on replacement property …(not transcribable)… incurred.
6. In response to a proposition advanced by me on my understanding of the way Mr Azizi's claim was advanced on the costs associated with buying him a new dwelling, Mr Hall submitted (Transcript 29 June 2021, page 263 lines 24 to 33): In that case the point collapses back into the point that I wished to address..(not transcribable)..that is to say the only way to realise the potential is to clear the site of its current improvements. That involves Mr and Mrs Azizi relocating and incurring that disadvantage, and they have to relocate to somewhere, and the evidence put forward by the applicants on that point is that they relocate to another house purchased for that purpose, and so unless you are being asked to assume that they will - like King Lear or like the Flying Dutchman move from location to location and never need to settle down again they must incur the cost of obtaining alternative accommodation if they are to realise the advantage that underpins their case on market value.
7. Finally, on the point concerning s 61(b) acting as an insurmountable barrier to Mr Azizi's stamp duty equivalent compensation claim, Mr Hall submitted in response to a question from me (Transcript 29 June 2021, page 263 line 42 to page 264 line 17): HALL: But your Honour, there will be the expense of relocation, so it can't be that s 61(b) ceases to have any effect, because a person has a choice between incurring one financial loss or another. If they inevitably are going to incur one financial loss or another, then the financial loss that they are going to incur by reason of having to relocate in order to build the new building is necessarily incurred to realise that value. Otherwise the section would never have any operation, because every time someone would say you can't have that cost, Mr Hall, because it doesn't add - because s 61(b) applies, I would say well, if I'd chosen to, I could have relocated overseas or I could have lived in a tent for the rest of my life, or I could have done this, or I could have done that. But if there was always going to be an expense - a financial loss, I should say really, incurred by reason of realising the potential, and here there is, there's always going to be the cost of alternative housing for Mr and Mrs Azizi senior. And 61(b) operates to preclude a recovery of that because that would be a double compensation. And the precise characterisation chosen by the applicants, "I choose to incur stamp duty, I choose to incur rental costs," is a contingent fact, which the parliament could not have controlled for here. And so, they have chosen to use the general term "financial losses not necessarily incurred." And I do urge of you, the consideration that there would be a plain double counting compensation if they were allowed to, effectively, be rewarded for living in the house and, effectively, be rewarded for demolishing it at the same time.

The response for Mr Azizi

1. Although Mr Hemmings did, as already noted, defer his substantive response to the Council's submissions on s 61(b) until after Mr Hall's oral closing submissions, Mr Hemmings did make a preliminary response in the following terms (Transcript 28 June 2021, page 229 line 31 to page 230 line 10): a submission in a matter like this, which rejects the payment of stamp duty on the basis of s 61 is, with the greatest of respect, just flawed. Section 61, if your Honour has it in front of you, of course, is, if the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it's currently used … … HEMMINGS: So, if market value is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of." Well, the reason this land is upzoned and has planning controls that apply to it and therefore has potential, has got nothing to do with a potential higher and better use. It has everything to do with the application of the s 56(1)(a) disregard and so is working relevantly in the words, "market value", not "potential", in the balance of the chapeau of s 61. Section 61 is simply not triggered in a matter like this, where the approach to compensation is determined by working out as a fact, by application of the s 56(1)(a) disregard, what the underlying zoning and planning controls of the land are. I'll hear what my friend says otherwise, but in our submission, that's the approach to 61b. The other conundrum which is almost too disheartening to even talk about is to work out whether a stamp duty financial cost, in s 59(1)(d) is something captured by a s 61(b) financial loss, because the Court of Appeal keeps telling me, losses and costs are different things, so even if he was right and we get through the chapeau, I'm not sure that he'd get through 61b.
2. After Mr Hall's oral submissions, in his oral reply submissions Mr Hemmings addressed the proposition that s 61(b) acted as a barrier to Mr Azizi's stamp duty claim, proposing that it was not applicable in these circumstances. He submitted (Transcript 29 June 2021, page 269 line 34 to line 40): The incurring of stamp duty on the purchase of a replacement property may well be something, and is something, that Mr Azizi intends to incur. But that's not the test in s 61b and it uses language deliberately, in our submission that's - as your Honour notes, that would necessarily have been incurred and I think - I don't intend to take your Honour to it, but I think the authority most precisely on point would be Albistani in the Court of Appeal.
3. Mr Hemmings then outline the facts in the case, to which he referred (the correct citation of which is El Boustani v The Minister administering the Environmental Planning and Assessment Act 1979 [2014] NSWCA 33 (El Boustani), a case to which further regard will need to be had in my consideration of the applicability or otherwise of s 61(b)).
4. After that factual outline, Mr Hemmings continued (Transcript 29 June 2021, page 270 lines 1 to 8): Can I accept, as I'm duly bound to do, my friend hasn't gone to any authorities for this point, but in Caruso in the Court of Appeal, we have made a submission that s 61 did not apply to stamp duty in that case. The Court rejected that submission, but it was not a submission that had been made in the finessed way that we do here about the necessarily incurred as opposed to costs that might be incurred by reference to the other provisions, but I do note that on the broader general application of the provision, Caruso would speak against our position.
5. It is to be noted that "Caruso in the Court of Appeal" is a reference to Sydney Water Corporation v Caruso and Ors (2009) 170 LGERA 298; [2009] NSWCA 391 (Caruso)(a case to which I will also need to turn in my consideration of this issue).

Consideration

1. Although earlier set out, it is appropriate to repeat here the relevant terms of s 61 of the Land Acquisition Act: 61 Special provision relating to market value assessed on potential of land If the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of - (a) …, and (b) any financial loss that would necessarily have been incurred in realising that potential.
2. In El Boustani at [88] to [115], Preston CJ of LEC (Beazley P and Gleeson JA agreeing) relevantly provided a comprehensive analysis of how s 61 of the Act was to be understood and applied.
3. At [91], his Honour explained why the market value for the purpose of the chapeau to the section was that determined by the judicial valuer, saying: 91. … Only the Court's finding as to the market value of the land constitutes the assessment of the market value of the land for the purposes of s 61.
4. At [95] and [96], his Honour addressed the relevant temporal element necessary for a potential future use to engage the section, saying: 95. … Thus the potential for the land to be used for the requisite other purpose must exist as at the date of the acquisition of the land, notwithstanding that the assessment of the market value of land, in the case of the Court's finding as to the market value of the land following an objection to the amount of compensation offered, necessarily occurs at a later time. 96. For the purposes of s 61, therefore, the Court needs to find not only that the land had the required potential to be used for that other purpose on the date of its acquisition but also that the Court's assessment of the market value was on the basis that the land had that potential to be used for the other purpose.
5. For the purposes of these proceedings, I have determined that the hypothetical future zoning of the site was for R3 Medium Density Residential development and that it should be valued on that basis. I have also determined that, in a temporal sense, that potential existed as at the date of its compulsory acquisition by the Council. As a consequence, the elements of temporal proximity discussed by his Honour in [97] to [99] do not require further consideration in light of the earlier explained position based on the evidence of Mr Juradowitch and Mr Mead that such a hypothetical up-zoning would have occurred by the date of acquisition (or if not, would have been imminent in certain as at that date), thus satisfying the question of "ripeness" of the potential for development.
6. His Honour turned to the meaning of the words in s 61(b) at [106] and following.
7. At [107], his Honour observed: 107. A number of points can be made about this paragraph. First, the words "financial loss" have been held to include "financial costs" of the kind falling within four of the subparagraphs of s 59 of the Act: see Sydney Water Corporation v Caruso at [186] per Tobias JA (with whom Sackville AJA agreed at [190]).
8. At this point, it is appropriate to turn, for completeness, to the decision in Caruso. It is to be noted that, in Caruso, a stamp duty equivalent compensation claim would have arisen under the then numbered s 59(d) of the Land Acquisition Act. Although s 59(d) has now been renumbered as s 59(1)(d), the wording has remained unchanged. In Caruso, Tobias JA said, at [185] and [186]: 185. Of course, it does not necessarily follow that if s 61 applies it trumps each of the sub-paragraphs of s 59. Relevantly to the present case, it only denies compensation for disturbance where the relevant costs in respect of which a claim is made under s 59 would necessarily have been incurred in realising the potential to which s 61(b) refers. Thus, s 61 would not prevent a claim for disturbance under ss 59(a) and (b). But where stamp duty is incurred by persons entitled to compensation in connection with the purchase of land for relocation where that relocation is necessary to enable the potential to which s 61 refers to be realised, then in my view s 61 denies a claim under s 59(d). 186. In expressing the above opinion, I have not lost sight of the change in language between s 59 and s 61 in that the former in sub-paragraphs (c), (d), (e) and (f) refers to "costs" reasonably incurred whereas s 61(b) refers to the incurring of financial "loss". However, I agree with Pain J in Costantino that there is no relevant difference between the use of the word "costs" in four of the sub-paragraphs of s 59 and the use of the word "loss" in s 61. Her Honour's construction is supported by the opening words of s 59, which provides that "loss attributable to disturbance" means, amongst other things, the incurring of financial costs, or stamp duty costs [emphasis added].
9. I now return to the analysis in El Boustani.
10. At [109] and [110], Preston CJ of LEC addressed, here, relevantly, two further elements of the phrasing of s 61(b), saying: 109. Thirdly, the words "in realising" mean "making real or giving reality to": see Macquarie Dictionary (4th ed, 2005) meaning 2. of "realise". Hence, the phrase "in realising that potential" refers to making real or giving reality to the potential of the land to be used for a purpose other than that for which it is currently used; in short, it refers to the transformation from the potential for, to the reality of, using the land for a purpose other than that for which is currently used. 110. Fourthly, the financial loss must be a loss that would "necessarily have been incurred" in realising that potential. The adverb "necessarily" means: "1. by or of necessity; 2. as a necessary result". The word "necessity", in turn, means: "1. something necessary or indispensable": Macquarie Dictionary (4th ed, 2005). Hence, the financial loss must be incurred inevitably or as a necessary result in realising the potential to use the land for a purpose other than that for which it is currently used: see also Roads and Traffic Authority of New South Wales v McDonald at [94].
11. In the context of the temporal conclusion as to the potential of the site to be used for development for medium density housing as earlier described, the submission advanced on behalf of the Council by Mr Hall that realisation of that potential for the site would have necessarily involved Mr Azizi needing to relocate as a consequence of the requirement to demolish his dwelling in order to permit an R3 Medium Density Development means that, for the reasons explained in El Boustani as set out above, s 61(b) is engaged so as to preclude Mr Azizi from having an entitlement to a stamp duty equivalent compensation payment pursuant to s 59(1)(d) of the Land Acquisition Act.
12. It necessarily follows that this aspect of the claim advanced on Mr Azizi's behalf must be dismissed.

The quantum of Mr Azizi's stamp duty equivalent compensation claim

Introduction

1. Although I have concluded that Mr Azizi's claim for a stamp duty equivalent compensation payment is barred by the operation of s 61(b) of the Land Acquisition Act, as already noted, I have concluded that it would be appropriate, on a contingent basis, to determine how such compensation might be calculated if I am wrong on this statutory interpretation.
2. The necessity for such a determination arises because the Council contests the calculation basis advanced on behalf of Mr Azizi, submitting that a specified amount, based on the affidavit evidence of Mr Patrick Azizi would be the appropriate outcome rather than one having regard to Mr Azizi's apportioned market value compensation quantum. I therefore turn to address and resolve these competing positions.

The position advanced for Mr Azizi

1. Mr Hemmings submitted that, once I had determined the overall market value compensation for the entirety of the Azizi interests arising from the Council's compulsory acquisition of the site and that amount is apportioned between Mr Azizi and Alnox in the fashion proposed for the Azizi interests (an apportionment not contested by the Council), Mr Azizi's entitlement pursuant to s 59(1)(d) is to be determined by calculating the stamp duty which would be payable as if Mr Azizi was to purchase a new residence at a cost equal to, but not greater than, his portion of the market value of the Azizi interests compensation entitlements.
2. It is appropriate to set out paragraph 206 and 209 of the closing submissions for the Azizis as relevant on this point: It is not in dispute that Mr Azizi has not purchase a replacement land as yet. The evidence demonstrates that attempts have been made to purchase land for Mr Azizi but to no avail (Ex B, Tab 3, 1002-1003 at [7]). The offers that have been made for the potential purchase of replacement land have been in the range of $1,450,000 to $3,450,000. The Applicants submit that the failure by the Council to pay 90 per cent of the amount specified in the compensation notice has prevented Mr Azizi from making offers for land in the amount of the market value of Lot C contended for in these proceedings. … Having regard to all the circumstances, the Applicants submit that it would be reasonable for Mr Azizi to incur stamp duty costs in the amount that would be incurred for the purchase of replacement land up to the market value of Lot C following the final determination of compensation by this Court and the payment of that compensation to Mr Azizi. As such, the Applicants submit that the Court should award stamp duty costs in the amount that would be payable for the full market value of Lot C. This will ensure that Mr Azizi is no worse off as a result of the acquisition of Lot C (Apokis v Transport for NSW [2020] NSWCA 39 at [66]).
3. It is unnecessary to expand further on these simply stated propositions advanced for Mr Azizi.

The Council's position

1. The position advanced by Mr Hall for the Council is a more nuanced one.
2. First, the Council disputes that the amount of compensation of this type to which Mr Azizi is entitled should be calculated in the fashion advanced by Mr Hemmings but proposes that it should be calculated by having regard to the broad price range of properties about which Mr Patrick Azizi gave evidence in his affidavit of 16 June 2021. This affidavit was in evidence at Exhibit B, tab 3, (relevantly) folios 1000 to 1004.
3. In the affidavit noted above, Mr Patrick Azizi (one of Mr Azizi sons) gave evidence of a number of properties which he had inspected on behalf of his father as potential replacement properties for Mr Azizi's residence at 86 Blenheim Road. Details of the six properties considered by Mr Patrick Azizi as possible purchases for his father and relevant sale information as is to be were set out in his affidavit.
4. The position advanced by Mr Hall as to how this information should be regarded for the purpose of determining Mr Azizi compensation pursuant to s 59(1)(d) was addressed in the Council's written closing submissions at paragraph 114 in the following terms: The quantum issue arises from the evidence of Mr Patrick Azizi in his affidavit of 16 June 2021.His father is in fact looking to purchase a home for about $1.5 million. The highest offer he has submitted was $1.85 million. If stamp duty tax is awarded it should be on the basis of the actual plan to spend $1.5 million, perhaps with a small buffer, say $1.6 million, not the market value of the Acquired Land.
5. During the course of his oral submissions, Mr Hall addressed this topic, submitting (Transcript 29 June 2021, page 264 line 48 to page 265 line 5) that: Now, you can't be, and I don't propose that you could be, precise about this, but you have to prefer the concrete evidence before you over the speculation that is inherent in valuing stamp duty on the basis of the same value as the land replaced. That is only a device that the Court uses when it doesn't have specific evidence, either you have specific evidence that the property below 2 million, I would say significantly below 2 million, is the target market range for the replacement, and that is the point upon which you would calculate the …
6. This is immediately followed by the following exchange between me and Mr Hall (lines 6 to 15): HIS HONOUR: Is your position on that not, in my consideration of it, to be tempered by the fact that your client has declined to pay the full 90% as obliged and that Mr Azizi senior might be obliged to cut his cloth according to what money is presently available to him rather than that which might potentially be available to him had they received the 90%. HALL: Once again, I have to make the point about the state of the evidence that is before you. The applicants choose to put forward the witness and to depose him on the issues that they think will support their case. And there's no hint of that.
7. Thus, the Council's position can clearly be understood to be that the amount of compensation to which Mr Azizi should be entitled under this heading should be limited by me having regard to the value range of the properties inspected by Mr Patrick Azizi as potential replacement residences rather than by having regard to the amount represented by Mr Azizi's portion of the market value compensation to which the Azizi interests are entitled pursuant to s 59(1)(a) of the Land Acquisition Act.
8. As can be seen from the primary portion of this judgement determining what the overall market value compensation entitlement for the Azizi interests, Mr Azizi's portion of that may be greater than the range of values addressed in Mr Patrick Azizi's affidavit as earlier set out.

Consideration of quantum

1. If the position advanced by Mr Hemmings is to be adopted, the stamp duty equivalent payment to which Mr Azizi would be entitled may be greater than that which would be derived from the Council's approach.
2. The Council's position is to be rejected and Mr Azizi's entitlement (if it exists) to compensation pursuant to s 59(1)(d) would be calculated solely by reference to the amount of market value compensation to which Mr Azizi is entitled.
3. The reasons for this conclusion can be simply stated. 1. First, although the evidence of Mr Patrick Azizi, relevantly, is as earlier set out, no property has actually been purchased as a replacement residence for Mr Azizi. Reducing the quantum to which Mr Azizi would be entitled under this head of compensation in the fashion proposed for the Council would mean that if Mr Azizi did purchase a replacement residence at a price equal to his full market value compensation, he might be left significantly out of pocket by what would be the necessarily arising quantum of compensation on the Council's approach compared to the actual quantum of stamp duty that would thus be incurred. 2. Second, the inspections undertaken by Mr Patrick Azizi were based not on the case advanced for the Azizi interests in these proceedings (or on the basis determined by me to be the actual outcome) compared to the case advanced for the Council. It was not unreasonable, under the circumstances, for Mr Patrick Azizi to adopt a pessimistic approach on behalf of his father when inspecting potential replacement residences. 3. Third, it is long settled that there is no necessity for the whole of the quantum of a market value determination to be applied to the purchase of a replacement property. This is clear from the element of the statutory provision where the words "not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired" are used. 4. Fourth, Mr Hall was unable to cite any authority (appellate or first instance) that supported the proposition advanced on behalf of the Council. Indeed, although there have been many judicial determinations concerning entitlements to compensation pursuant to s 59(1)(d) (or earlier cases where such claims were pursuant to s 59(1)(f)), I have been unable to find any authority that would support the proposition advanced for the Council concerning this head of compensation.
4. If he has a valid claim (as I have earlier determined, for reasons set out, he does not), Mr Azizi would therefore be entitled to compensation pursuant to s 59(1)(d) calculated on the basis of the full quantum of Mr Azizi's market value compensation derived from the earlier set out apportionment basis of the total market value compensation to be paid by the Council to the Azizi interests for the compulsory acquisition of the site.

Introduction

1. It has long been recognised that, when a person's residence is compulsorily acquired for a public purpose, an additional compensatory payment may be appropriate to account for the life disruptions resulting from relocation which arises for the dispossessed person.
2. Historically, such a payment has been known as solatium. This term is from "solatium", the Latin word meaning "solace" (Follett Latin-English Dictionary). Solace, in turn, is contemporarily defined with its primary meaning being: Comfort, consolation; alleviation of sorrow, distress, or discomfort (Oxford English Dictionary); and Comfort in sorrow or trouble; alleviation of distress or discomfort (Macquarie English Dictionary).
3. In provisions applying in the EPA Act pursuant to the then s 116(2), solatium was considered to be for the following purposes (per Perrignon J in Robertson v Commissioner for Main Roads (1987) 63 LGRA 420 at 426)( Robertson): In the present case, I am of the opinion that the words "solatium for the necessity to relocate his residence" refer to subjective and imponderable factors such as nuisance, annoyance, inconvenience and distress which might be caused to an owner who, as a consequence of the compulsory acquisition of his place of residence, finds himself under the necessity of relocating his residence.
4. With the coming into effect of the Land Acquisition Act in 1991, the concept of solatium was provided for, now, with respect to all public purpose compulsory acquisitions by s 60 of the Act. This provision was in the following terms: 60 Solatium (1) In this Act: solatium means compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition. (2) The maximum amount of compensation in respect of solatium is: (a) except as provided by paragraph (b) - $15,000, or (b) such higher amount as may be notified by the Minister by notice published in the Gazette. (3) In assessing the amount of compensation in respect of solatium, all relevant circumstances are to be taken into account, including: (a) the interest in the land of the person entitled to compensation, and (b) the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and (c) the inconvenience likely to be suffered by the person because of his or her removal from the land, and (d) the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land. (4) … (5) … (6) … (7) …
5. In 2014, the NSW government received the report from a review of the Land Acquisition Act undertaken by Mr D Russell SC. One of the provisions of the Act addressed by Mr Russell's review was s 60. Mr Russell's report recommended changes to the Act. Amongst the changes recommended was that the maximum compensation for solatium be increased significantly (to $50,000). Although the government of the day generally accepted Mr Russell's recommendations, the policy decision was made that his proposed increase was insufficient and that the maximum compensation for solatium was appropriate to be increased to $75,000 and that this sum would be subsequently regularly adjusted.
6. In 2016, the Land Acquisition Act was amended by the passage of the Land Acquisition (Just Terms Compensation) Amendment Act 2016. These amendments included changes to s 60.
7. In introducing the amending legislation in the Legislative Council on 20 October 2016, the Hon Duncan Gay MLC (Minister for Roads, Maritime and Freight, and Vice-President of the Executive Council) said, with respect to solatium: The fifth legislative change recognises the significant stress and personal difficulty in going through the land acquisition process. The Government will amend the Act to increase the maximum solatium payment from $27,235 to $75,000. The Act provides for compensation, or solatium, to be paid for non-financial disadvantage arising from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition. As I have already said, the Government appreciates that losing the family home can be one of the most stressful experiences in life. It has been compared, in some circumstances, to bereavement. People need to relocate, find new schools and build new social and possibly work networks. The maximum amount was originally set at $15,000, or any higher amount set by the Minister responsible for the Act. The maximum amount has been indexed annually by the consumer price index [CPI] by the Government, and currently stands at $27,235. Solatium is paid in addition to compensation for other matters such as the market value of the land that has been acquired and legal and valuation costs. As members of this House may be aware, Mr Russell in his report discussed the difficulty in applying a financial figure to what is compensation for non-financial impact - but that it should be increased from its current level. The Government agrees with Mr Russell that the maximum solatium compensation should be increased. However, in light of the impacts of land acquisition on families and individuals, the Government considers the amount should be increased even more substantially than the $50,000 in Mr Russell's report. The Government will change the Act to make the maximum non-financial impact payment $75,000, indexed annually to the CPI. The increased solatium compensation payment, or the pro-rata amount, will also apply retrospectively to former residential landowners and tenants whose acquisitions were settled on or after 26 February 2014, the date Mr Russell's report was provided to the Government. For clarity, the Government will amend the term "solatium" to "disadvantage resulting from relocation", which more clearly articulates what this form of compensation relates to.
8. The 2016 amendments to replaced s 60 with the following reworked section: 60 Disadvantage resulting from relocation (1) In this Act - disadvantage resulting from relocation means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person's principal place of residence as a result of the acquisition. (2) The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000. (3) In assessing the amount of compensation in respect of the disadvantage resulting from relocation, all relevant circumstances are to be taken into account, including - (a) the interest in the land of the person entitled to compensation, and (b) the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and (c) the inconvenience likely to be suffered by the person because of his or her removal from the land, and (d) the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land. (4) … (5) … (6) … (7) …
9. Two things are to be observed when considering this amended provision. The first is that the name of the head of compensation to be available to a person whose residence is compulsorily acquired for a public purpose is no longer to be known as solatium but is now to be known as "Disadvantage resulting from relocation". This, it is readily to be assumed, reflects an ongoing trend in Parliamentary drafting processes to adopt more readily understood Plain English language in lieu of technical expressions not readily capable of being understood in the broader community.
10. However, for present purposes, it is appropriate to note that the practical effect of the implementation of this change is that the quantum of compensation available for disadvantage resulting from relocation was increased to $75,000 (s 60(2)) from the date of coming into effect of the revised provision.
11. Following adjustments made for inflation since that time, the maximum compensation now available for disadvantage resulting from relocation is more than $78,000.
12. However, for present purposes, it is to be noted that the assessment criteria set in the now applicable s 60(3) are identical to those which had applied in the terms of the section as it was prior to the revision affected by the 2016 amendments (as can be seen from the pre-2016 version of s 60(3) earlier reproduced).
13. As a consequence, although the quantum of compensation available for disadvantage resulting from relocation has changed significantly as a consequence of the 2016 amendments to the Land Acquisition Act, the basis upon which the quantum of such compensation is to be assessed has not.
14. The Valuer General's determination was that the maximum amount of compensation for disadvantage resulting from location (over $78,000) was appropriate to be awarded to Mr Azizi. It is to be noted that the Council's position is that up to that amount was available to be ordered but that it was not appropriate for that maximum amount to be awarded in these circumstances. It is in the context of that contest that it is now appropriate to turn to the parties' submissions on that point.

Past s 60 determinations

1. Although Mr Hemmings noted that this determination pursuant to s 60 would be, as he understood it, the first contested determination for disadvantage resulting from relocation following the enactment of the 2016 amendments, for the reasons I have explained above, the evaluative framework for my determination has not changed in any functional fashion since the coming into effect of the Land Acquisition Act originally in 1991 when this head of compensation was known as solatium.
2. On the basis of the research I have undertaken, there appear to be only two judicial determinations arising from contests pursuant to the Land Acquisition Act as to the appropriate level of compensation to dispossessed owners to reflect disadvantage resulting from relocation. Both these decisions were given by Talbot J. In the first of them, Terrence John Fitzgerald & Wendy Patricia Fitzgerald v Blacktown City Council [1994] NSWLEC 40 (Fitzgerald), his Honour described the purpose of a compensatory payment pursuant to s 60 as being for: Historically solatium refers to a sum of money paid over and above the actual damages as solace for injured feelings and to cover the distress caused by the taking of the person's home. Pursuant to s 60(3)(d) the period after the acquisition of the land during which the person is allowed to remain in possession is one of the relevant circumstances to be taken into account in assessing the amount of compensation in respect of solatium. The non-financial disadvantage referred to in s 60 is related to the inconvenience factor attributable to the move. This is made further apparent from the circumstances included in s 60(3)(a),(b) and (c) which appear to have regard to the extent of physical and emotional attachment that a residential occupant has to the land. The extent of the loss or inconvenience will be the greater according to whether the occupier is an owner or a tenant and to their length of occupation. The assessment of such imponderables, which are not specifically provable, means that each case should be decided on its own merits without reference to a gradation by assessing it against other cases.
3. In a subsequent decision, Stephen Anthony Horton and Kay Elizabeth Horton v Wyong Shire Council (No.2) [2005] NSWLEC 45 (Horton), his Honour adopted the above formulation, citing it as being consistent with the decision in Robertson and a decision of Cripps CJ in Roberts v Commissioner for Main Roads (1987) 63 LGRA 428, at 431-2, where the description of the purpose of solatium earlier set out in Robertson was endorsed.
4. For present purposes, although it is to be noted that the decisions in Robertson and Roberts were made pursuant to the then applicable s 116(2) of the EPA Act, no matters of principle additional to matters dealt with by Talbot J arise from those decisions.
5. It is, however, appropriate to note that, in each of them, the then applicable evaluative processes were undertaken by their Honours in determining the appropriate level of compensation for solatium to be awarded.
6. A similar approach was adopted by Talbot J in his determination of the appropriate level of compensation to be awarded for solatium in each of Fitzgerald and Horton. Obviously, each of those determinations was made by his Honour on the basis of his consideration of the application of the now applicable criteria requiring consideration by me for the purposes of assessing Mr Azizi's claim for disadvantage resulting from relocation in these proceedings.
7. It is sufficient to note that Talbot J addressed those criteria by having regard to the facts and circumstances arising in each of the instances with which he was faced.
8. It seems to me that the only guidance potentially to be taken comes from his Honour's decision in Horton is that his Honour did not accept the proposition that compensation for disadvantage resulting from relocation should automatically be awarded in the full quantum available for that purpose.
9. In Fitzgerald, his Honour did award the full amount as appropriately reflecting the circumstances in which the Fitzgeralds found themselves, particularly as a result of Mrs Fitzgerald's long association with the residence which was compulsorily acquired. However, in Horton, his Honour discounted the amount of compensation for disadvantage resulting from relocation only because of the comparatively limited temporal association between the Hortons and the residence which was compulsorily acquired from them.

The submissions for Mr Azizi

1. The position advanced by Mr Hemmings on behalf of Mr Azizi on this point was a simple one. In summary in his closing written submissions, Mr Hemmings noted (with respect to the matters set out in section 60(3) (written submissions at paragraphs 219 to 222): 1. Mr Azizi owned the freehold title to his property as at the date of compulsory acquisition; 2. he had resided there, as his principal place of residence, for some seven and a half years as at the date of compulsory acquisition and, but for that acquisition, it would have remained his home; 3. consideration of Mr Azizi age and his medical condition demonstrate that he will suffer significant inconvenience as a result of him being required to move from his home and that these personal attributes did not warrant reduction from the maximum amount available to be ordered; and 4. underpinning Mr Azizi remaining in residence after acquisition had a proper statutory basis in s 34 of the Land Acquisition Act because, at the time of making these submissions, the compensation payment elements set out in that provision had not been satisfied.

The Council's position on Disturbance resulting from relocation

1. First, in paragraph 118 of the Council's written closing submissions, it was noted that: Notwithstanding that the discretion in s. 26 of the Just Terms Act arises in this case because the acquisition was as a result of hardship, the Respondent does not deny that Mr Azizi should be paid some compensation under s. 55(e). Rather the position is that the Respondent denies the Mr Azizi is entitled to the maximum statutory sum for disadvantage resulting from relocation because Mr Azizi remains in occupation of Lot C (see s. 60(3)(d) of the Just Terms Act).
2. The Council's written submissions then addressed the available earlier case law concerning payment of solatium (discussed earlier). However, it is appropriate to note that the amount set by s 60(1) is a legislatively imposed cap on such compensation under this head even if my judicial assessment was that a greater sum might be warranted. No such hypothetical greater sum was proposed on behalf of Mr Azizi.
3. The Council's position was summarised, in its written closing submissions, at paragraphs 122 and 123 in the following terms: In this case, Mr Azizi has owned Lot C, had resided there for 10 years and has continued to reside on the property since the date of acquisition. While it is axiomatic that Mr Azizi will endure a degree of inconvenience in having to eventually move from Lot C, the Applicant has not demonstrated any reason beyond a bare statement as to why it is said that such inconvenience would be "significant" as suggested by Mr Azizi's son, nor has the Applicant identified any particular aspects of Mr Azizi's life on Lot C that would justify the maximum sum being paid. His additional 3 years of post-acquisition occupation is also relevant. If it were the case that the simple act of having to move was sufficient to warrant the maximum sum being paid, s. 60 of the Just Terms Act would simply state that as the criteria. Rather, an evaluative judgment is required to be made as to the appropriate sum in the circumstances of a particular case. In this case, the Applicant has failed to provide sufficient evidence such that the Court would be satisfied that the maximum sum should be paid.
4. Mr Hall's oral submissions noted that this aspect of Mr Azizi claim was subject to the threshold proposition that eligibility necessitated me finding that there was an up-zoning potential for the land (I note that, given that I have concluded such an up-zoning potential existed, it is not necessary to address this submission).
5. In his closing oral submissions, Mr Hall noted that my role was not one confined merely to adopting the maximum statutory amount mandated by s 60 of the Land Acquisition Act to make an assessment of the appropriate amount of compensation under this heading but that I was limited to the amount I could order by the statutory cap.
6. There were two matters, in summary, pressed by Mr Hall in his oral closing submissions as to why less than the statutory maximum should be awarded. In this regard, it was submitted, with respect to the continuing occupation of the acquired property by Mr Azizi (Transcript 29 June 2021, page 265 line 48 to page 266 line 18): HALL: And you are given a series of factors to be taken into account, I say, to be taken to account. One of which is subs (d), the period after the acquisition of the land during which the person has been, or would be, allowed to remain in possession. So, that there is a clear indication that the amount of compensation will vary according to the opportunity that the dispossessed owner has to remain in occupation. And that cannot simply be the extremely rare case in which they are given, effectively, a life estate or a perpetual continuation, which was the only example that Mr Hemmings could conjure. It must be an indication that, in the ordinary range of cases where there is a significant variation sometimes between the speed with which the acquisition takes place and the disposition takes place That is a factor that..(not transcribable)..play here, and you would readily accept, I respectfully submit, that a person who is bundled unceremoniously out of their house within days of notice of the intended acquisition suffers significantly greater disadvantage than a person who was given a significant period; in this case three years, to plan their affairs, can choose the options, which they participate, can choose the properties that they seek to purchase as a replacement.
7. The second matter, which Mr Hall revised was the absence of any evidence by Mr Azizi or on his behalf as to the basis of why the inconvenience suffered by Mr Azizi would warrant the maximum amount being awarded. In this regard, Mr Hall submitted (Transcript 29 June 2021, page 267 line 28 to page 268 line 6): HALL: And the final point that I wanted to make is this: again, you are told in the section that the job of the Court is to assess the amount of compensation under this head and that, amongst the factors you take into account in that is, the inconvenience likely to be suffered by the person because of the removal from the land. So, it's not a single factor that - the fact of removal, cost due to the inconvenience, the inconvenience of the factor to be assessed and that means that in the modern jurisprudence or the modern praxis in this field, a person who wishes to claim the maximum amount under this heading, must give evidence and does give evidence, regarding the subjective impact on them of inconvenience of moving. Now, I do accept that there may well be reasons why Mr Raymond Azizi himself could not be the witness to say that, but Mr Patrick Azizi has come forward to speak on his father's behalf and does nothing. It's simply avoiding the evidence. Does not say anything about - I shouldn't go too far here, because I'll supply the want that the witness has so clearly lacked - but nothing about emotional connection, nothing about family history on the house, nothing about difficulty of relocation or adaptation of the house to special needs, or any of the things that we know routinely, cannot..(not transcribable)..to depose to. And that absence, you must infer, is just because there is nothing additional that Mr Patrick Azizi could have said on that topic that would have persuaded you that there was real, or specific, or concrete disadvantage in this case, beyond what I accept is, the statutory presumption that there will be some..(not transcribable)..environment in each case. And for that reason, you must, I submit, depart from the maximum and you must depart from the maximum to a sufficient degree to note the two factors that I have put forward, namely, a significant period of post acquisition occupation, and the absence of evidence indicating the particular circumstances of these applicants.

The response for Mr Azizi

1. First, Mr Hemmings addressed the second of the above propositions saying (Transcript 29 June 2021, page 268 lines 43 to page 269 line 1): HEMMINGS: Your Honour, can I just deal with that last point firstly, because, as your Honour will recall, there were discussions going on - Mr Hall, you might need to listen to this, because I'm talking about conversations that we may have had. Obviously, if there was to be evidence put on in relation to this, it would have come from Mr Azizi senior, and we discussed this with the counsel. Mr Azizi senior has dementia and so he didn't put on an affidavit, it was put on by his son. That was done without objection and without the necessity for him to be cross examined. It's a very difficult ask, with respect, to suggest there's a problem with the lack of evidence from Mr Azizi senior.
2. Mr Hemmings later addressed the topic further saying (Transcript 29 June 2021, page 270 lines 26 to 49): In terms of the disadvantage resulting from relocation amount, in our submission, the respondent approaches this in wrong way, with respect. We've made some submissions about the matter already, and I don't repeat those submissions, but to the extent it's suggested that we have failed in some evidentiary sense to fill holes necessary for s 60(3), in our submission, particularly having regard to the approach or an understanding that one gets of the approach to this provision from things like the second reading speech, the $75,000 is a maximum, but it's the starting point. It's not a matter of a dispossessed landowner in our submission convincing the Court that we are entitled to the maximum because that is the starting point, rather evidence may be lead which can diminish, for example, the amount of compensation that should be entitled to. We have put on some evidence. We have talked about the conduct that we were suffering even prior to - sorry, you remember the boarding up and the changing of locks and that sort of thing, But if the respondent wanted to take some advantage of something like s 60(3)(d), there is no onus expressed through that provision as to who it is that's informing the Court as to what or why that problem arises, but otherwise in terms of the period of time that we're there, there's nothing. As we've already submitted, there's nothing about the period of time that we are staying in occupation other than that which is anticipated by the legislative scheme. It's certainly not something which would result in a watering down of the otherwise maximum.

Introduction

1. For present purposes, in my consideration of the claim made by Mr Azizi pursuant to s 60 of the Land Acquisition Act, I must undertake an assessment of the facts and circumstances here applicable considered in light of the criteria now contained in s 60(3) of the Act, namely: (a) the interest in the land of the person entitled to compensation, and (b) the length of time the person has resided on the land (and in particular whether the person is residing on the land temporarily or indefinitely), and (c) the inconvenience likely to be suffered by the person because of his or her removal from the land, and (d) the period after the acquisition of the land during which the person has been (or will be) allowed to remain in possession of the land.
2. As can be seen from the above terms of s 60(3) of the Land Acquisition Act, the list of criteria mandated to be considered in determining the quantum of compensation to be awarded for disadvantage resulting from relocation requires a cumulative assessment of all four factors set out the provision. I now turn to do so (addressing all matters - not merely those pressed by Mr Hall as warranting some discount from the maximum statutory amount).

Mr Azizi's interest in the site

1. Mr Azizi had a freehold interest in only portion of the site compulsorily acquired by the Council. His interest was confined to his ownership of 86 Blenheim Road, his place of residence. The material made available to the Council in support of the application by the Azizi interests pursuant to the hardship provisions of the Land Acquisition Act requesting that the Council compulsorily acquire the site made it clear that Mr Azizi's ownership of his portion of the site was as his principal place of residence and was subject to a mortgage - an entirely conventional and unexceptional position.

Mr Azizi's length of occupancy

1. Mr Azizi purchased 86 Blenheim Road in 2011, some years prior to lodgement of the rejected planning proposal on behalf of the Azizi interests for a 45 m high apartment building. However, his purchase was at the same (general) time as Alnox commenced its acquisitions of the other two properties which, together with Mr Azizi's property comprise the site.
2. It can readily be assumed that Mr Azizi accepted that it was appropriate for the advantage of himself and his sons (collectively the persons comprising those behind the Azizi interests) that he was prepared to fold his ownership of 86 Blenheim Road into an aggregated site and, if the planning proposal had been successful, to move his residence elsewhere. Mr Azizi was, at the time of the compulsory acquisition, a man of significantly mature years. There is no evidence of him having any significant social, emotional or other ties with his residence at 86 Blenheim Road in the fashion to which Talbot J had adverted in Fitzgerald when addressing this head of compensation.
3. For present purposes, I am satisfied that the comparatively short tenure of Mr Azizi of his portion of the site; the timing of his acquisition of his residence in the context of the assembling of the total Azizi interests' holdings of the site; together with the absence of any evidence of specific ties to his residence weighs, to a minor extent, in favour of the Council's contention that Mr Azizi ought not be awarded the full amount of compensation for disadvantage resulting from relocation.

Inconvenience to Mr Azizi arising from relocation

1. I am satisfied that, in addition to what would ordinarily be expected to be the inconvenience to Mr Azizi (and his wife) arising from the necessity for them to relocate their residence as a consequence of its compulsory acquisition by the Council, Mr Azizi's age and health are factors in his favour to be taken into account as increasing the extent to which there will be disruption to his life when he needs to relocate from 86 Blenheim Road as a consequence of the finalisation of these proceedings and, thus, completion of the compulsory acquisition by the Council of his residence.
2. I decline to draw any inference adverse to Mr Azizi's claim for this compensatory element because of his son not giving evidence about the impact on Mr Azizi of requiring his relocation.

Post-acquisition occupation

1. Mr Azizi has remained in occupation of his residence since its compulsory acquisition by the Council. Whilst, ordinarily, his continuing occupation over the intervening period might potentially be regarded as a factor weighing in favour of some discounting from the maximum available amount to be awarded pursuant to this head of compensation, I am satisfied that, in the singular circumstances of this acquisition, that would not be appropriate.
2. I have so concluded because the attitude adopted by the Council resisting the making of the full mandated statutory advance payment to the Azizi interests has imposed a significant barrier on Mr Azizi acquiring a replacement residence satisfactory to him and his wife to which they could relocate. These unusual circumstances mean that there is no circumstance arising pursuant to this criterion which would warrant any discounting from the maximum quantum set for this head of compensation.

Conclusion on compensation under s 60 of the Land Acquisition Act

1. As can be seen from the above analysis, the only factor weighing in favour of any discount from the current statutory maximum compensation available pursuant to s 60 of the Land Acquisition Act arises only from my assessment of the second of the four cumulative criteria set by the statutory provision.
2. However, the statute merely imposes a cap - it is necessary to determine if a discount is warranted under these circumstances. Absent that cap, had it been open to me to do so, I might well have concluded the impact of involuntary relocation given Mr Azizi's age and medical condition warranted more than the statutorily capped quantum. Under this circumstance, I am satisfied that the weight to be given to the minor negative to be drawn from the second factor does not warrant a discount from that maximum potential amount under this head of compensation.
3. Under the circumstances, I am satisfied that the appropriate compensation to be awarded to Mr Azizi pursuant to s 60 of the Land Acquisition Act should be the statutory maximum.

Costs

1. The decision of Wilcox J in Banno v Commonwealth of Australia (1993) 45 FCR 32 (Banno) that compulsory acquisition of private real property, when subject to curial proceedings to determine the quantum of compensation to be paid to the dispossessed owner, will usually be followed by a costs order in favour of the dispossessed owner has been adopted as applicable in this jurisdiction pursuant to the Land Acquisition Act by the Court of Appeal in Dillon v Gosford City Council (2011) 184 LGERA 179; [2011] NSWCA 328 (Dillon) at [70] to [72].
2. Even in circumstances where the result is a mixed one, where a dispossessed owner does not achieve complete success, but only succeeds on some elements, nonetheless, it is appropriate to make a costs order in favour of the dispossessed owner (Brock v Roads and Maritime Services (formerly Roads and Traffic Authority of NSW) (2012) 191 LGERA 267; [2012] NSWCA 404).
3. Here, although the Azizi interests have only partially succeeded (as their claim for R4 High Density Residential zoning has not been successful), nonetheless, they have, collectively, succeeded to the extent that I have not upheld the Council's position that the R2 Low Density Residential zoning as at the date of acquisition should be sustained.
4. However, Mr Azizi has not succeeded on the contested position arising from his stamp duty equivalent compensation payment claim but has on his claim pursuant to s 60 of the Land Acquisition Act.
5. Although the positions of Mr Azizi and Alnox differ in their individual outcomes, it seems to me that the effective overall result of the proceedings (being heard, together with evidence in one being evidence in the other as relevant) should result in a common costs position arising in each instance.
6. As a consequence, unless the Council wishes to contend for some alternative position in Mr Azizi's and/or Alnox's proceedings, I am satisfied that the appropriate order should be, in each matter, that the Council pays the cost of the dispossessed owner.

Offsets for overpayment (if any)

1. In [34], I noted the outcome of the proceedings before me concerning the requirement in s 68(2)(a) of the Land Acquisition Act for a 90% (total) advance payment (plus statutory interest) to be made to Mr Azizi and to Alnox based on the Valuer General's compensation determination. I also there noted the Council's unsuccessful appeal against that determination. The decision of the Court of Appeal in that appeal also discussed whether or not I had power to make an order pursuant to s 48 of the Land Acquisition Act to order repayment of any overpayment which might arise after my compensation determinations with respect to Mr Azizi and Alnox were compared to these 90% (plus statutory interest) advance payments. The Court of Appeal's discussion and conclusion on this point that this Court had those powers were set out at [33] and [34] of that decision.
2. At [44], I set out the relevant elements of s 48(6) of the Land Acquisition Act potentially engaged for such purposes. They do not require repetition here.
3. I am satisfied that, for the purposes of finalising all aspects of the compensation claims made by Mr Azizi and Alnox, such orders as may be necessary should be made to give effect to the appropriate overall outcome in these proceedings. It therefore follows that the directions given below for the finalisation of these proceedings encompass any requirement for orders to address this potential repayment issue with respect to Mr Azizi and/or Alnox as appropriate.

Conclusion

1. In summary, I have concluded that: 1. the appropriate underlying development potential for the site owned by the Azizi interests as at the date of acquisition was as a site zoned R3 Medium Density Residential resulting in the development yield to be derived as set out at line 6 of Annexure A to this judgement; 2. Mr Azizi is entitled to compensation of the relevant maximum amount for "Disadvantage resulting from relocation" pursuant to s 60 of the Land Acquisition Act; 3. Mr Azizi is not entitled to a stamp duty compensation payment pursuant to s 59(1)(d) of the Land Acquisition Act as a consequence of the operation of s 61(b) of the Act. However, if I am wrong in this conclusion and he is so entitled, such a payment would be calculated on the basis of the sum representing the complete quantum of his portion of the market value compensation to which the Azizi interests are entitled; 4. any obligation pursuant to s 48 of the Land Acquisition Act on Mr Azizi and/or Alnox to repay any portion of the 90% advance payments already made is to be addressed in the overall orders to be settled by the parties' legal representatives pursuant to the directions made below for the finalisation of these proceedings; and 5. the Council is to pay the costs of the proceedings for Mr Azizi and for Alnox unless it wishes to contend for some alternative costs order.

Directions

1. The parties are directed to settle orders to give effect to all elements noted under the heading "Conclusion" above. If settled orders signed by the legal representatives of the parties are provided to my Associate by the close of business on Friday, 28 January 2022, I will make orders in chambers the following Monday, at the commencement of the 2022 law term, to give effect to them.
2. If there is any dispute between the legal representatives of the parties as to the orders appropriate to give effect to this decision or the Council wishes to propose an alternative costs' outcome, the matter is to be listed for mention before me at 8.30 AM on Friday 4 February 2022 with the parties to notify the Registry by on-line court of the necessity of such a mention.
3. If the Council wishes to seek some alternative costs order other than that it pays the costs of Mr Azizi and/or of Alnox, the process for listing the matter for mention before me on Friday 4 February 2022 is to be triggered by the Council's legal representatives with notice to be given to the legal representatives of the Azizi interests of the necessity for such a mention.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2022