Bezzina Developers Pty Limited v Leichhardt Municipal Council

Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1980) 147 CLR 297; CASES CITED: CSR Ltd v Fairfield City Council (2001) 117 LGERA 77; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 13/02/2006-16/02/2006; 20/02/2006-24/02/2006; 01/03/2006-03/03/2006; 08/03/2006

APPLICANT Mr M G Craig QC with Mr I J Hemmings (barrister) SOLICITORS Deacons Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T F Robertson SC with Mr J E Robson SC SOLICITORS Pike Pike and Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

31415 of 2004 Bezzina Developers Pty Limited v Leichhardt Municipal Council

JUDGMENT 1 Talbot J: Until the publication of a Notice pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Terms Act") in the NSW Government Gazette on 30 July 2004 the applicant was the proprietor of three lots of land comprising 1523m2 in one parcel known as 2-8 Weston Street adjacent to the Balmain East (Darling Street) Ferry Wharf and adjoining Illoura Reserve on the South and a bus turning-circle near Thornton Park on the North. The land was acquired by Leichhardt Council for the purpose of open space following a request made pursuant to cl 26(1) of Leichhardt Local Environmental Plan 2000 (LEP 2000) which provides: The owner of any land within the Open Space Zone that is identified for acquisition in the Table below may request the relevant public authority identified in that Table to acquire the land. The request must be in writing. On receipt of the request, the relevant public authority must acquire the land. 2 At the date of resumption the major part of the resumed land was zoned Open Space (to be acquired) LEP 2000. Two small areas were zoned Residential. By that date draft amendment No. 2 to LEP 2000 had been exhibited on 17 October 2001. Pursuant to the draft amendment it was proposed that part of the land be rezoned Residential together with part of the neighbouring Illoura Reserve. It was intended that the remainder of the land be rezoned Open Space. Before LEP 2000 was made the land was controlled by LEP 20 and was in the Residential 2(b2) zone. 3 From 14 May 1999 the land had the benefit of a development consent D/1998/330 (as modified by M/1995/307) granted by the Court under which a scheme for the demolition of some existing buildings and the construction of 6 apartments one of which was proposed in a heritage listed building to be maintained on the land and known as Bell's Store. The Court-approved scheme ("the Rosecorp Scheme") provided for access to the subject land off a bus turning circle at the foot of Darling Street. The Rosecorp Scheme was never relevantly commenced. The respondent has raised issues regarding the lapse of the development consent. 4 By the date of resumption the applicant had lodged a further development application (D/2002/167) in respect of an alternative proposal to demolish the existing buildings (other than Bell's Store) and to construct five apartments on the subject land and the adjoining Illoura Reserve. This proposal included the development of a restaurant in Bell's Store. The applicant had successfully negotiated with the Department of Planning and the State Transit Authority who reportedly supported the application. A report to council by its officers on 26 August 2003 also supported the proposal. The approval of the development application depended upon a successful rezoning of the land and a land exchange with the Department of Planning. This later proposal ("the Bezzina Scheme") also maintained access off the bus turning circle at the foot of Darling Street. The resumption of the land occurred before the development application for the Bezzina Scheme was determined. 5 Immediately prior to the commencement of these proceedings the applicant caused to be generated a further set of plans providing for the development of six apartments, including one, comprising two storeys, in the Bell's Store ("the Amended Scheme"). In this proposal access would be gained from Weston Street by means of a car lift. The whole of the proposed development is contained within the subject land and generally adopts the footprint of the Rosecorp Scheme. 6 The applicant has submitted the Amended Scheme as the "springing point" for determining the highest and best potential use of the subject property at the date of acquisition. The respondent has reserved its position in respect of the Amended Scheme on the basis it would contend development consent would not be obtained for that scheme. 7 The respondent ultimately proceeded on a basis that the Bezzina Scheme could be modified by placing a dwelling unit in Bell's Store instead of a restaurant and that it would then be the proposal most likely to obtain a development consent ("the Modified Bezzina Scheme"). 8 In each case provision is made for dedication of a strip along the Harbour front with the effect that none of the units in any scheme would have direct access to the water. 9 The expert valuers have each provided several opinions of the market value of the subject site at the relevant date based upon the Court-approved Rosecorp Scheme, the modified Bezzina Scheme and the Amended Scheme respectively. The market value of the land has been determined at $14.5 million by the applicant's valuer Mr Kent Wood. On the other hand Mr Craig Miller, the valuer retained by the respondent was unable to support a figure beyond $7.125 million and then only in the event that the highest and best use is reflected in the Modified Bezzina Scheme. 10 Claims for disturbance have been made pursuant to s 59(a), (b) and (f) of the Just Terms Act in respect of legal costs, valuation fees, mortgage costs, stamp duty and other costs associated with financing and holding charges. There are significant differences regarding the entitlement of the applicant to the disturbance claim particularly for financial costs under s 59 of the Just Terms Act. Direct Sales Comparison 11 The two valuers, Mr Kent Wood for the applicant and Mr Craig Miller for the respondent, eventually primarily relied on two sales in the Balmain area for the purposes of seeking to determine the market value of the land at the date of acquisition. The particulars of these two sales at 36-42 Louisa Road, Birchgrove and 50 Louisa Road, Birchgrove are set out below. 12 The parties essentially concentrated on the sale of 36-42 Louisa Road, Birchgrove as the best indicator of the market price at the date of acquisition although the valuers respectively analysed that sale to deduce a significantly conflicting result. They agreed, however, that it was the most comparable sale for the direct sales approach. 13 The primary dispute in regard to the development site sales relates to the adjustments to be made not only for time but also as to whether the different characteristics of the respective sites justify further adjustment. Adjustments in respect of the attribution of the benefit of development consent, or not, are also an issue. 14 Both valuers analyse the sales of 50 Louisa Road and 36-42 Louisa Road firstly to determine an equivalent unit or land value for the subject site depending on the scheme adopted for redevelopment and secondly for the purpose of adjustment for special costs applicable only to the acquired land. 15 Mr Miller adopts the highest and best use as being reflected in the Modified Bezzina Scheme. On that basis he applies the comparable sales information to establish a value of $2m for each equivalent unit site. He established a figure of $1.7m for an equivalent unit value based on the Rosecorp Scheme or the Amended Scheme. Conversely the values deduced by Mr Wood on an area basis are effectively $2.4m based on the Rosecorp Scheme and $2.7m based on the Modified Bezzina Scheme. 50 Louisa Road, Birchgrove 16 This property comprising an area of 411m2 sold for $3,850,000 on 15 November 2002. 17 Mr Wood makes an adjustment of 1% per month (19%) for the time up to the date of resumption on 30 July 2004 and then deducts the value of the improvements to deduce a per m2 value for the subject based on an achievable FSR of 1.03:1 on the sale. 18 Mr Miller disagrees that the value of the improvements should be deducted after the full purchase price is adjusted for time. He also contends that the appropriate rate of interest to be applied for the 19 month period is 0.5% per month compound. Mr Miller also disagrees with the use of a per m2 value, but says rather that comparison should be made on the basis of a price per unit. 19 Ultimately Mr Wood appeared not to persevere with the 1% simple interest allowance and reluctantly seemed to recognise that the 0.5% compound interest figure put by Mr Miller was in line with best practice. The difference in any event is marginal being in the order of $350,000. 20 Logically, in determining an unimproved land value and adjusting for time it is appropriate to reduce the purchase price of the sale by the value of any improvements before adjusting for time. This is because the adjustment is being made in respect of the land value alone and not the improvements. The value of improvements is not common to the properties being compared. 21 Although the prospective theoretical purchaser of the resumed land would be likely to be a developer it is nevertheless my view that the developer would assess the potential for realisation of profit based on the number of units that could be built on the site rather than attempting to fathom a m2 value (of little meaning in the circumstances) or a m2 total floor space value. 22 Mr Wood adds ten per cent for the location of the subject site. Notwithstanding Mr Miller's disagreement I accept Mr Wood's assessment that the subject site is in a far superior location to 50 Louisa Road. Although both sites enjoy magnificent water views the Weston Street site has an outstanding aspect across the inner harbour to Luna Park, the Harbour Bridge, the city skyline, the North Sydney CBD and Lavender Bay. 23 Much has been said about the disadvantages of noise from busy harbour traffic and the bus termination and starting-up at the foot of Darling Street. I am not persuaded that the busyness of the Harbour is a detriment and accept that most purchasers are likely to regard it as interesting and a positive feature of the site. The bus activity is a detriment compared to the quieter environment at Louisa Road. On balance I am prepared to attribute the whole of the 10% allowance made by Mr Wood in respect of location.

36- 42 Louisa Road, Birchgrove 24 This sale appears to provide the most comparative evidence. Both valuers agree that it best reflects market value for the resumed land subject to adjustment. 25 The property comprises an area of 1309m2. It was the subject of an option to purchase for $13,700,000 on 14 August 2003. The option to purchase was exercised when a contract was signed on 2 August 2004. 26 Mr Wood inflates the contract price by the sum of $1,500,000, which he claims (without formal proof) was paid for the option to purchase the property. He relies solely on a conversation he had with a representative of the purchaser who has not been called to test the claim either that the payment was made or how it was attributed. The respondent is not prepared to acknowledge the payment as a fact without evidence beyond the conversation reported by Mr Wood. The applicant is required to establish facts upon which its expert's opinion is based (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). Without proof to a reasonable standard, notwithstanding that the rules of evidence do not apply in these class 3 proceedings in the circumstances, I am not prepared to include the additional sum of $1,500,000 as part of the purchase price. Adjustment for Development Consent 27 At the date of the sale in August 2003 36-42 Louisa Road had improvements comprising a non-contemporary block of 31 residential units incompatible with the character of the neighbourhood. The potential to replace the existing development represented an incentive for the council to favourably consider an application for development of the site in excess of the FSR standard 0.8:1. Having heard the evidence from several experts in this respect I accept that a hypothetical purchaser would have proceeded to purchase 36-42 Louisa Road with a reasonable expectation that a redevelopment for 10 units would be approved. However it would also be reasonable to expect that there would be a time delay of up to a year after settlement before consent could be obtained. 28 50 Louisa Road was purchased with the benefit of existing development consent for 2 residential dwelling units. If 50 Louisa Road is to be maintained as a relevantly comparable sale notwithstanding that the potential for development of that site was limited to 2 units the sale would require an adjustment to reflect the benefit of the actual development consent held in that respect of that site. Primarily this would be based on the time for obtaining the development consent for the Modified Bezzina Scheme as well as a small adjustment for the risk of obtaining that consent against the security of a consent already held in respect of 50 Louisa Road. 29 A purchaser of the subject site relying on the Modified Bezzina Scheme as the highest and best use would have purchased with the benefit of the knowledge that the Bezzina Scheme was supported by the Department of Planning as owner of part of the land within Illoura Reserve to be utilised under the land swap agreement, the STA in respect of the bus turning circle and the council officers who had assessed the proposed development. 30 In a joint statement by experts made on 23 January 2006 following directions under the Expert Witness Practice Direction the town planners gave the following advice to the Court in relation to the prospect of approval of the Bezzina Scheme: [The planners] agree that the Bezzina Scheme (and the complementary Bus Turning Circle DA) were appropriate DA's for the subject land (including land swaps and rezonings etc), and that the Bezzina Scheme would have received consent from Council, generally in the terms detailed in the report to the Council meeting held on 26 August 2003. [The planners] agree that the Bezzina Scheme was reliant upon the contemporaneous approval of the Bus Turning Circle DA, which also would have received a consent from Council, generally in the terms detailed in the report to Council meeting held on 26 August 2003. [The planners] agree that the Bezzina Scheme could have been amended by changing the proposed restaurant to an apartment, thus creating six apartments and, whether undertaken by way of a Section 96 Modification Application or a new DA, would have been approved by the Council or the Court. 31 On 20 February 2006 in a further joint statement after being asked to assess the prospects of achieving the Bezzina Scheme with a dwelling in Bell's Store at the date of resumption the planners provided the following answer: Reasonable prospect of approval from Council and the Court. Refer to Joint Statement dated 23 January 2006. 32 I find that there was at the date of acquisition a reasonable expectation that development consent for the Bezzina Scheme could be achieved but an adjustment would have been made for time to finalise the assessment and to consider the modification to allow for the use of Bell's Store as a dwelling instead of a restaurant. Altogether a time of twelve months would have been foreshadowed in regard to the expected delay for a final consent for the Modified Bezzina Scheme. Accordingly there is no need for an adjustment to the sale of 36-42 Louisa Road as the times to be allowed for an approval to the necessary development applications can be equated to each other. 33 The applicant claims that it had the benefit of a subsisting consent for the Rosecorp Scheme. 34 The consent granted by this Court on the 14 May 1999 to Rosecorp Pty Limited was a deferred commencement consent stated to be pursuant to the former s 91AA of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). The deferred commencement condition provided that the development was not to operate until the applicant satisfied the council as to a number of specified matters. The condition has never been satisfied. 35 Section 91AA provided as follows: (1) A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. (2) Such a consent must be clearly identified as a 'deferred commencement' consent (whether by the use of that expression or by reference to this section or otherwise). (3) A 'deferred commencement' consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions. (4) A consent authority may specify the period in which the applicant must produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters. (5) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period. (6) If the applicant produces evidence in accordance with this section, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires. 36 Section 80(3) now provides as follows: A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 37 Clause 100(4) of the Environmental Planning and Assessment Regulation 2000 is in the following form: In the case of a development consent granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition: (a) the date from which the consent operates must not be endorsed on the notice of determination, and (b) if the applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the applicant of the date from which the consent operates. 38 The schemes for the grant of a deferred commencement development consent and for the operation of that consent appear to be identical in their effect for present purposes. 39 Section 83(2) and (4) of the EPA Act presently provide: (2) Subject to subsection (3), if a determination is made by the granting of consent or the granting of consent subject to conditions, and an appeal has been made under section 97 or 98, the consent: (a) ceases to be, or does not become, effective pursuant to subsection (1), and (b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent. … (4) If a determination is made by refusing consent or if an application is taken by section 82 to have been so determined, and the decision on the appeal made pursuant to section 97 in respect of that determination has the effect of granting consent, the decision is taken to be a consent granted under this Division and that consent is effective and operates from the date of that decision. 40 Apart from some grammatical changes, the former s 93(2) and (4) of the EPA Act were to the same effect. 41 The abovementioned amendments made to the EPA Act became effective on 1 July 1998. A general saving provisions was inserted into Part 6 of Schedule 6 to the EPA Act by the Amending Act as follows: 18 General saving (1) If anything done or commenced under a provision of this or any other Act that is amended or repealed by the amendment or repeal of the provision and could have been done or commenced under a provision of such an Act if the provision had been in force when the thing was done or commenced: (a) the thing continues to have effect, or (b) the thing commenced may be completed. (2) This clause is subject to any express provision of this Act or the regulations on the matter. 42 Although the Rosecorp development application was lodged prior to the introduction of the amendments it was not refused by the council until 27 October 1998. After an appeal was lodged the Court granted the deferred commencement consent on 14 May 1999. Notwithstanding doubt as to whether the general savings provision, as a matter of construction, had the effect of applying the unamended provisions to the development consent granted by the Court the parties proceeded on the basis that the determination of that question, for practical purposes in the circumstances of this case, is irrelevant as the effect of the respective provisions is to the same effect for present purposes. 43 The difficulty that arises is that pursuant to s 99, which arguably applied at the date the Rosecorp consent was granted, and s 95, which now applies, "a development consent lapses five years after the date from which it operates". There are exceptions to those provisions but those exceptions have no application to this case. 44 Accordingly the essential matter to be determined is "the date from which [the development consent] operates". Mr Robertson SC, who appears for the council, takes the view that the legislative scheme providing for the operation of a development consent and its lapse is in plain words which ought to be applied in accordance with their ordinary meaning. On the other hand Mr Craig QC, for the applicant, contends that the legislation should be construed by employing a purposive approach thereby treating the determination of a development consent by the grant of a deferred commencement consent as being in a special category whereby the date of operation of the consent is deferred until the deferred commencement conditions are satisfied. That is so, according to Mr Craig, irrespective of whether the consent is granted by the council or the Court notwithstanding that the words of the sections do not make any provision for deferral of the date from which the consent operates where the consent is granted by the Court. On the basis of the applicant's argument therefore it is a situation envisaged by the High Court in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1980) 147 CLR 297. 45 The decision of the High Court in Cooper Brooks makes it clear that in construing a statute it is necessary to begin with the assumption that words mean what they say, particularly when, read as part of the whole instrument, the meaning is clear and unambiguous. Specific provision is made whereby a council is precluded from giving notification that a deferred commencement consent operates until such time as the deferred commencement condition has been satisfied. No such provision has been made in respect of a deferred commencement consent granted by the Court. 46 In CSR Ltd v Fairfield City Council (2001) 117 LGERA 77 Pearlman J in the course of determining a preliminary question of law in a class 1 appeal dealt with the question whether an appeal against the refusal to extend the period after which consent lapsed was competent as being made before the period expired in accordance with s 95A, as it then was. Her Honour explained the effect of ss 93(2)(b) and 91AA as follows: [17]… Once the development consent was granted by the Court, then, pursuant to s 93(2)(b), it would normally "become effective and operate" from the date of the Court's decision. But s 91AA empowers a consent authority (and the Court on appeal) to impose a condition which requires the consent not to operate until the applicant has satisfied specified requirements. It is clear that the actual grant of development consent is not itself made conditional by the operation of these sections. Section 91AA expressly states that development consent "may be granted" subject to a deferred commencement condition, and s 93(2)(b) is predicated, of course, upon the grant of development consent having been made.

[18] Section 99(1) relevantly provides that a development consent, once granted, will lapse after the expiration of five years "after the date from which it operates". (It will not lapse if the use of any land, building or work is actually commenced before the date upon which the development consent would otherwise lapse -- s 99(4A).) The period of five years may be varied by the consent authority in granting the development consent -- s 99(2). It is clear, in my opinion, that the period of five years stipulated in s 99 has not yet commenced to run in relation to the development consent the subject of these proceedings. That is because the development consent has not yet commenced to operate. 47 The decision by Her Honour clearly has the consequence of treating a development consent granted by a consent authority and a deferred commencement consent granted by the Court consistently. Unfortunately, as Mr Robertson points out, the decision of Her Honour is on its face inconsistent with the clear words of s 83. It is not entirely clear from the judgment whether the apparent inconsistency was drawn to Her Honour's attention. Moreover, the observations are obiter because the question was disposed of on the basis that the relevant condition of development consent did not reduce the period after which the consent lapsed and accordingly s 95A had no application. It was therefore unnecessary for Her Honour to decide whether the consent had already lapsed. Although the obiter remarks by Pearlman J support the applicant's case, nevertheless I am not bound to adopt them. 48 Pearlman J in CSR Ltd expressed the view that the consequence of non-fulfilment of the requirements of a deferred commencement condition was "simply that the development consent remains permanently inoperative". 49 In order to make the distinction between a deferred commencement consent granted by a council and a consent of the same kind granted by the Court, Mr Robertson makes the point that a grant of development consent by the Court is a final order. He argues that it is inconsistent with the jurisdiction of the Land and Environment Court, as a Superior Court of Record, to make final orders, that its orders be "consigned to planning purgatory". 50 It is my opinion that the distinction between the grant of consent by a council and an order made by the Court was deliberate because the mechanism for issuing a notice of determination of the development application and the giving of notice pursuant to cl 100(4) of the Regulation (previously s 91AA(6)) involves procedural administrative steps which are not ordinarily the function of the Court. 51 It is not solely an issue regarding the finality of the Court's orders but rather the Court has made a final order that is conditional upon the applicant satisfying specified contingencies. Notwithstanding the contingency, the statutory provision stipulates the date of lapse by reference to a specified date for operation of any consent in the case where it is granted by the Court. No distinction is made for the circumstance of the grant of deferred commencement consent. 52 I have already explained that there is logical reason for the different treatment of a court-approved scheme as opposed to a consent granted by a consent authority. I am therefore satisfied that the result conforms to the legislative intent. 53 If the legislature had intended that a court-approved deferred commencement consent should operate from the date when the condition was satisfied then it would have provided specifically that the consent operate either from a date when the Court could be satisfied the condition had been complied with or following compliance with the deferred commencement condition to the satisfaction of a third party. It did not do so. It thereby avoided a potentially unsatisfactory circumstance whereby the parties could be required to return to the Court for a further hearing after the application had been finally determined (see Weal v Bathurst City Council (2000) 111 LGERA 181). 54 Arguably the Court may have avoided the dilemma by stating that the consent would not operate until the deferred commencement condition had been satisfied. However in that event questions of the Court's jurisdiction to override the express statutory provision would arise. That did not happen in the instant case and therefore does not require to be considered further at this point. 55 Essentially what Mr Craig is saying is that the word "operates" in s 83(2) is not to be interpreted in the same manner as the verb "to operate" as it appeared in s 91AA and now appears in s 80(3). According to Mr Craig, the two provisions namely s 83 (formerly s 93) and s 80(3) (formerly s 91AA) must be read together. That is, a court-granted consent may include a deferred commencement condition. Once such a deferred commencement condition is imposed pursuant to the requirements of s 80(3) (s 91AA) the consent will not "operate" until the deferred commencement condition has been satisfied. 56 Gibbs CJ pointed out in Cooper Brooks at 304 that no part of a statute can be considered in isolation from its context. The whole must be considered. In this case there is a synergy between s 95 (formerly s 99) and s 83(2) and (4) (formerly s 93(2) and (4)) which both use the same language, namely that the consent "operates" from the date of the Court decision and then lapses 5 years after the date from which it operates. There is no ambiguity. The distinction between a council-granted consent and a consent granted by the Court is readily understood in the context. I therefore find that when the land was compulsorily acquired by publication in the NSW Government Gazette on 30 July 2004 the Court consent, which approved the Rosecorp Scheme, had expired on 14 May 2004; being five years after the date the Court delivered its judgment. 57 It follows that notwithstanding the Rosecorp Scheme upon which the Amended Scheme is based had been approved by the Court a greater adjustment for risk than the allowance for risk in respect of the Modified Bezzina Scheme would be required if the unassessed Amended Scheme is recognised as being the most likely proposal for the site to be adopted by the prospective purchaser. 58 I find that as the Rosecorp deferred commencement consent had lapsed the prospective hypothetical purchaser would have elected to rely upon the prospect of obtaining consent for the Modified Bezzina Scheme as the most likely to gain development consent. However the Rosecorp Scheme as amended avoided the complicating issues associated with the bus turning circle and Illoura Reserve. Accordingly the Amended Scheme would have been more attractive appeal to the prospective developer purchaser. That would have to a significant extent offset the more elevated risk of obtaining development consent.

Bell's Store 59 The applicant contends that although there will be special costs incurred on account of the heritage status of Bell's Store nevertheless those costs should be regarded as part of the overall development cost of the total project. However I agree with Mr Miller that the additional costs associated with the development of Bell's Store as an heritage item properly should be taken into account for the purpose of adjusting any comparable sale. The requirement to carry out restoration and rehabilitation works is a constraint upon the development of the subject site and amounts to an additional cost of development that the prudent purchaser would recognise. If Bell's Store was not an heritage item the additional costs would not be incurred or contemplated. The additional costs on that account do not add value realisable on a sale. Notwithstanding the additional cost for the particular unit constructed within the Bell's Store building it will also have a reduced amenity as a consequence of the restricted fenestration and door openings, particularly those facing the Harbour and city views. However an additional adjustment made by Mr Miller for loss of interest on the additional cost does not appear to me to be justified, as I can see no reason why the relevant heritage work would not be contemporaneous with other construction work on the site. 60 The additional cost will be $420,000 including contingencies. Remediation 61 It is not in issue that the subject site is contaminated as a consequence of its historical use and will require remediation before residential development can take place. The contract documents in relation to purchase of the subject site disclose remediation requirements arising from the former industrial use of the site and include a formal report by Sinclair Knight Merz. 62 There is no direct evidence that a prospective purchaser could have been aware of a contamination issue in respect of 36-42 Louisa Road at the date the purchase price was determined by the option agreement entered into on 14 August 2003. However, before the option to purchase was executed and a contract for sale exchanged on 2 August 2004, a contaminated site assessment was obtained. The data provided by the assessment showed contamination from introduced fill material in the lower levels of the site. The recommended remedial works included removal and disposal of the contaminated fill material. Mr Miller adjusts the sale of 36-42 Louisa Road by the full cost of the remediation of the subject site estimated at $850,000. 63 The respondent argues that Mr Miller was entitled to make this adjustment because there was no disclosure in any of the sale documents for Louisa Road nor was there any circumstance that would have put the purchaser on notice that the site was contaminated. In contrast to the Weston Street property it was occupied at the relevant dates by a residential flat building within an existing residential area. 64 On the other hand the purchaser of 36-42 Louisa Road ultimately accepted the purchase price previously nominated in the option agreement notwithstanding the assessment of contamination carried out before contracts were exchanged. Contracts were exchanged on that basis. That indicates to me that the purchaser was satisfied that the agreed price could accommodate the cost of the remediation. 65 I consider that having regard to all the material available to me in relation to both the subject site and 36-42 Louisa Road there is no justification for the adjustment propounded by Mr Miller in respect of the remediation issue. 66 There is no evidence that would have been available at the time of sale of 50 Louisa Road that it would require remediation. Both valuers adjusted the sale price of 50 Louisa Road for that special cost on the subject site. There is evidence that the actual cost of remediation of the subject site could be reduced by savings in the order of $500,000. The sale price of 50 Louisa Road should be adjusted accordingly. Seawall Restoration 67 The seawall along the fringe of the subject land was in a poor state and self-evidently required restoration and rebuilding in parts. 68 Mr Miller makes an adjustment of the 36-42 Louisa Road sale in respect of seawall restoration in the sum of $183,000. Mr Wood made the same adjustment in his original valuation. Mr Craig however submits that because the development consent granted in respect of 36-42 Louisa Road requires work to be undertaken on the seawall to that property then it is appropriate to assume that the purchaser was appraised of the prospect that some repair and remediation work would be required on that account and would have allowed for it in assessing the purchase price. 69 Both valuers maintained the allowance after joint conferencing and reporting in accordance with the Court's directions. Notwithstanding Mr Craig's submission to the contrary the evidence at the date of the sale is all one way. I propose to make an adjustment to the 36-42 Louisa Road sale for the cost, including contingencies, of restoring the seawall at the subject site. 70 There is no evidence that work was required on any seawall at 50 Louisa Road. The same adjustment can be made to that sale. Infrastructure Costs 71 The Modified Bezzina Scheme provides access to the site via the bus turning circle at the foot of Darling Street adjacent to the East Balmain ferry wharf involving costs of $752,000. The STA has agreed to contribute $400,000 towards the costs associated with the bus turning circle. Moreover there would be a cost of $515,00 for the remediation of Illoura Reserve and $124,000 for a land swap arrangement in respect of the Modified Bezzina Scheme. 72 The Amended Scheme provides vehicular access through a car lift off Weston Street thereby eliminating the use of the bus turning circle. The estimated cost of the car lift plus an additional car parking level is $1,256,000. Illoura Reserve is not utilised in this scheme. 73 Parking is available at 50 Louisa Road by conventional means. Accordingly the sale should be adjusted commensurately. 74 A sophisticated arrangement for access and parking is contemplated for the redevelopment of 36-42 Louisa Road. The development consent (granted after the sale) provides for a car stacker system. The Amended Scheme and the approved development for 36-42 Louisa Road are comparable in that respect. 75 On the basis of the Modified Bezzina Scheme the costs associated with the bus-turning circle and Illoura Reserve remediation provide a counter-balance to the cost of providing the sophisticated arrangement required for the development of 36-42 Louisa Road.

Recoverables 76 The respondent relies on the evidence of two State Government departmental staff to rebut the claim by the applicant that sandstone on the site was recoverable and thereby giving an expectation of a cash value for the material and achieving a saving in the cost of excavation. The applicant relies on the evidence of Mr Francis, a commercial operator, who assured me that there could be a viable recovery of sandstone, even if the quality and conservation was not of a high order. He estimated that approximately $1.26 million could be realised in that respect. Given that Mr Francis appeared in some respects to be providing a generous estimate with some conditions and reservations I propose to adopt a figure of $800,000 as the conservative amount the prudent purchaser would allow as a recoverable figure on this account. Valuation Applying Comparable Development Site Sales 77 Based on the sale of 50 Louisa Road and nominating the Amended Scheme as the highest and best use for the subject site I deduce a land value for the subject site of $9.4m. Based on 50 Louisa Road and assuming the Modified Bezzina Scheme will be achieved I deduce a land value for the subject site of $9.6m. By comparison with the sale of 36-42 Louisa Road and adopting the Amended Scheme as the highest and best use I deduce a land value for the subject site of $9.4m. Based on 36-42 Louisa Road and applying the Modified Bezzina Scheme I deduce a land value for the subject site of $9.7m. Check Methods 78 In addition to the direct sales comparison approach the valuers took into account a number of sales of individual strata units to support their estimate of the gross realisation to be expected from the sale of the six units proposed for the subject site. Irrespective of which scheme of the three nominated as most likely to be the highest and best use is adopted by the Court each scheme produces a result that would establish six individual residential units on the land. 79 A number of unit and single dwelling site sales were identified in support of the gross realisation expectations. The Court has undertaken an extensive view including single home sites in Balmain and strata unit developments in Balmain, Birchgrove, Rozelle, Point Piper, Woolloomooloo, Kirribilli and the Circular Quay end of Macquarie Street in the city. 80 I have not found the sales information generated in respect of sites outside of Balmain itself, Rozelle or Birchgrove to be particularly helpful except in a wide general sense as indicators of what prices were being achieved in the market in and about the relevant date for properties adjacent to or on the waterfront. 81 In contrast to the majority of sales in Balmain, Rozelle and Birchgrove, the subject site has spectacular views looking east across the city through the Harbour Bridge and over North Sydney. 82 Two other sales in East Balmain were in a comparable location but both were in respect of a single dwelling site. These latter sales have been useful to show that prospective purchasers in that area (effectively the same as the subject site) would have had a choice of purchasing a freestanding house with its own curtilage for a price comparative to what the applicant contends is achievable for future units on the site. There has been some argument as to whether the market for single dwelling houses is the same as the market for home units. I am persuaded that there would be some cross-over between the interests of prospective purchasers in each category although there would also be purchasers intent solely on the purchase of a home unit or, in contrast, a single dwelling house. I recognise that there could be a category of purchasers who have not made a predetermined choice and that, in that context, there would have been competition in the market at more or less the same price level set by Mr Wood for the different style of dwellings. 83 Mr Wood seeks to justify his primary valuation by assessing the gross realisation product of the theoretical development on the subject site by comparing the sale price of units at Kirribilli, the Sydney CBD, Woolloomooloo and Walsh Bay. As I have said, I find it difficult to make any useful comparison between those sales and the potential for realisation of units constructed on the subject land. It is also unrealistic in my view to reach a conclusion that equates the potential sale price of the subject units to the actual sales of single dwellings at comparative locations in East Balmain. 84 Mr Miller has been criticised by Mr Wood and Mr Craig for applying inappropriate rates to a check based on discounted cash flow. My understanding of what Mr Miller was attempting to demonstrate by that exercise, successfully I might add, was that it would be necessary to adopt unrealistic rates to justify the theoretical market price placed upon the potential units by Mr Wood. Although not used to reach any conclusion about market value itself, the exercise undertaken by Mr Miller demonstrates that Mr Wood's assessment based upon gross realisation appears to be too high. Determination of Market Value 85 Doing the best that I can based on all the evidence and having regard to the application of the preferred schemes using the comparable sales of 50 Louisa Road and 36-42 Louisa Road I determine in accordance with the Just Terms Act that the market value of the subject land at the date of acquisition was $9.7m. 86 I am confident that my assessment of market value is appropriate notwithstanding that Mr Wood advocated a significantly higher figure. By taking a realistic approach to adjustments, as noted, but giving the applicant the benefit of the doubt in respect of marginal judgments I have decided that the hypothetical vendor and purchaser would have agreed on a purchase price of $9.7m. Disturbance 87 The applicant claims compensation for loss attributable to disturbance as follows:

3. Financial costs pursuant to s 59(f) in the following respects: (a) Financial costs in respect of interest paid on borrowings: $163,692.31 (b) Mortgage costs incurred in discharging various loan facilities relating to the property: $280,110.10 (c) Stamp duty that the applicant claims it will reasonably incur in connection with the purchase of a replacement property assessed on the market value determined for the purposes of s 55(a). 88 All of the above-nominated figures are agreed as a correct calculation of the financial costs claimed. However the respondent disputes that any liability arises pursuant to s 59. 89 The subject land was acquired pursuant to a request by the owner relying on cl 26 of LEP 2000. Clause 26 is set out at [1]. 90 The subject land is identified in the table to cl 26(1). Clause 26 of LEP 2000 is made under s 27(1) of the EPA Act, which provides as follows: Where an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c), that environmental planning instrument shall make provision for or with respect to the acquisition of that land by a public authority unless the land is owned by a public authority and is held by that public authority for that purpose. 91 Section 26(1)(c) of the EPA Act is the source of power to reserve land for public purposes in an environmental planning instrument. 92 Section 28 of the Just Terms Act stipulates that Part 2 of Division 3 of that Act does not affect any obligation of an authority of the state to acquire land as referred to in s 27 of the EPA Act. However any such acquisitions may be effected by compulsory process in accordance with that provision. 93 Section 23 of the Just Terms Act, within Division 3 of Part 2, provides that the owner of land may require an authority of the state by notice in writing to acquire that land if the land is designated for acquisition for a public purpose and the owner considers that he or she will suffer hardship if there is any delay in the acquisition of the land under the Just Terms Act. 94 It is my understanding that Division 3 of Part 2 is to be construed as confined to cover the situation where land has been designated by an authority for a public purpose and there is no other means of forcing the public authority to acquire the land. In the present case cl 26 of the LEP has been made under s 27 of the EPA Act. Section 27(2) of the EPA Act contemplates that there can be situations where an environmental planning instrument does not contain a provision empowering or purporting to empower the compulsory acquisition of land. I read that subsection as a clarifying provision, namely that the relevant public authority must be vested with the power of compulsory acquisition of land otherwise than through the provisions of the environmental planning instrument referred to in s 27(1). 95 The effect of s 28 of the Just Terms Act allows a landowner the option of requesting a public authority to acquire the land pursuant to a provision in an environmental planning instrument under s 27(1) of the EPA Act or to rely on the hardship provisions in s 23 within Part 2 Division 3 of the Just Terms Act. 96 The respondent acknowledges that the requirement to show hardship in circumstances where the acquisition is made pursuant to a request made under an environmental planning instrument is excluded by s 28(a) of the Just Terms Act. Nevertheless it is submitted that an acquisition pursuant to s 27 of the EPA Act may be effected, and in this case has been effected, "under" Division 3. I agree that an acquisition pursuant to s 27 of the EPA Act can be effected pursuant to Division 3 of Part 2 of the Just Terms Act. However the applicant contends that as the applicant requested the council to acquire the land on 11 December 2003 and the request was expressly made pursuant to cl 26(1) of LEP 2000 the provisions in Division 3 of Part 2 of the Just Terms Act are not relevant to these proceedings. 97 It is important for the applicant to succeed in its submission because s 26 of the Just Terms Act provides as follows: Compensation for acquisition under this Division

The special value of land, any loss attributable to severance or disturbance and solatium (as referred to in Part 3) need not be taken into account in connection with an acquisition of land under this Division, despite anything to the contrary in that Part. 98 The request made on 11 December 2003 did not refer to s 23 of the Just Terms Act and there is no evidence of any notice given pursuant to that section whereby the council was informed that the owner would suffer relevant hardship. Moreover the evidence does not disclose that the council formed the opinion required under s24 of the Just Terms Act that the owner will suffer hardship for any of the reasons specified in s 24(2) of the Just Terms Act or otherwise. 99 The respondent's argument is based on cl 25 of LEP 2000 which allows the following development with development consent in the open space zone: Clubs, community facilities, community gardens, jetties, kiosks, public amenities, public transport stops, recreation facilities, demolition, subdivision. 100 Moreover and perhaps more importantly for the purpose of the respondent's submission cl 26(3) of the LEP provides that until land within the open space zone is acquired development may be carried out on the land for any purpose with development consent where the consent authority is satisfied the development will not diminish the usefulness of the land for the purpose for which it has been zoned. 101 According to Mr Robertson therefore s 27 of the EPA Act does not apply as the LEP 2000 did not reserve land for use "exclusively for a purpose identified in s 27(1)(c)". He recognises that the parties agree that cl 26 of the LEP was authorised by s 27 of the EPA Act and that the letter requesting the council to acquire the land was expressly made pursuant to cl 26(1). However Mr Robertson submits that it is the legal consequence of the notice that must be considered as that gives rise to a binding obligation on the council to comply with the request. 102 The council's argument is that it is a combination of the effect of ss 27 and 122 of the EPA Act that creates the obligation to acquire the land. Section 122 includes, a contravention of or failure to comply with an environmental planning instrument, as a breach of the Act. Accordingly the obligation to acquire only arises by reason of that definition and the power in s 123 of the EPA Act for the Court to restrain or remedy a breach. It is the council's case that the binding obligation to acquire is created by a combination of the effect of ss 27 and 122. Those sections then must be read in conjunction. The source of the obligation to acquire is not crystallised by service of the letter requesting acquisition. If I understand Mr Robertson correctly he is saying that unless s 27 is read in conjunction with s 122 to identify a source of power for the obligation to acquire (rather than relying on cl 26 of the planning instrument) the only way an owner can enforce the obligation of the duty of the council to resume pursuant to a request to acquire is as a breach identified by s 122 of the Act. Accordingly the effect of the applicant's submissions that the letter of request expressly referred to cl 26 of the LEP must be understood as saying that the resumption was effected under the EPA Act. Ultimately Mr Robertson submits that the basic scheme of the Just Terms Act is to provide machinery for acquisition and determination of compensation payable to a dispossessed owner and, as the Act carves out a special procedure for owner-initiated acquisitions, s 28(2) has the effect that an acquisition under the EPA Act may be effected by compulsory process in accordance with Division 3 of Part 2 of the Just Terms Act. 103 It is agreed by the parties that the subject acquisition was made pursuant to s 27 of the EPA Act by relying on cl 26 of the LEP. Although the hardship provisions do not apply Mr Robertson says that other sections such as s 26 of the Just Terms Act are not qualified in that respect. 104 The council contends that the effect of s 26 is that any claim for loss attributable to severance or disturbance and solatium is excluded and cannot be taken into account in connection with an acquisition of land under Division 3. 105 Mr Craig raises the distinction between two situations recognised by s 28 of the Just Terms Act. Firstly, there is the preservation of the operation of s 27 of the EPA Act (by s 28(1) of the Just Terms Act) where the acquisition following notice is a creature of the planning instrument. Secondly, s 28(2) of the Just Terms Act is saying that if a landowner gives notice pursuant to s 23 praying in aid the hardship provisions then the compulsory process is to occur in accordance with Division 3. Otherwise the general power flowing from s 27 of the EPA Act applies. If hardship is not relied upon in the notice of acquisition then s 26 has no part to play. 106 I prefer the construction adopted by the applicant by regarding s 28 as making a distinction between a notice given solely based upon the regime established pursuant to Part 3 of the EPA Act and a notice given which relies upon an owner initiated acquisition in cases of hardship under Division 3 of Part 2 of the Just Terms Act. 107 Mr Robertson says that ss 21 to 24 are inapplicable to the subject acquisition, as the owner-initiated acquisition in this case does not depend on hardship. It can hardly be said therefore that the acquisition was effected by compulsory process in accordance with that Division. An acquisition under Division 3 of Part 2 of the Just Terms Act is predicated upon a notice in writing given to a public authority to acquire the land under s 23. The definition of the land designated for acquisition for a public purpose under s 21 does no more than identify the land that can be made the subject of an owner-initiated acquisition on the grounds of hardship. It does not apply the provisions of Division 3 to an acquisition made specifically under the provisions of the EPA Act. I do not read Division 3 as applying to all cases where the acquisition is owner-initiated. The authority is only required to acquire the land under Division 3 where s 23 applies. Section 26 only operates in connection with the acquisition of land under Division 3. It is therefore irrelevant in the present circumstances. 108 Moreover I would not be prepared to read the words "need not" as "shall not" where they appear in s 26. There are a number of instances (for example s 25(3), s 28(1)) where imperative language has been used precluding the exercise of discretion. The use of the negative expression takes away the element of necessity thereby leaving an election to be exercised, as a matter of discretion. 109 Although it may be difficult to see why there should be a greater entitlement to claim for disturbance in owner-initiated cases where no hardship is demonstrated, the question does not arise because my approach to the construction and interpretation of the scheme created by Division 3 of Part 2 of the Just Terms Act only recognises the operation of s 26 where there is hardship. 110 That leads me to determine whether the claim for loss attributable to disturbance under s 59(f) can be sustained as any other financial costs reasonably occurred (or that might reasonably be incurred) relating to the actual use of the land, as a direct and natural consequence of the acquisition. 111 Having regard to my finding in relation to the irrelevance of s 26 of the Just Terms Act in the circumstances of this case, and there being no other issue raised in that respect, it is appropriate that the applicant be paid the amount claimed as loss attributable to disturbance pursuant to s 59(a) (legal costs) and s 59(b) (valuation fees) in the full amount claimed of $30,000 and $1,375 respectively. Stamp Duty 112 Following the lapse of the Rosecorp consent, for the reasons outlined, the land could not be utilised for "actual use" in connection with the business of the applicant as a developer. A claim for reimbursement pursuant to s 59(d) was not pursued as no physical activities are to be relocated as a consequence of the compulsory acquisition of the land. 113 Moreover there is no evidence of the purchase of an alternative property in respect of which stamp duty has been paid nor has it been shown directly that such a purchase relating to the actual use of the subject land is likely to occur. 114 In Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259 the Court of Appeal upheld the decision by Lloyd J to allow a claim for stamp duty in relation to replacement land where the land acquired had been held as part of a "land bank" for the purpose of development by residential subdivision. In Fitzpatrick it was recognised that the need and occasion for the purchase of the replacement land related to the actual use for subdivision and resale and that the replacement land was acquired for later subdivision and resale. Lloyd J in Fitzpatrick at first instance found that the applicant's business was the development of land by subdivision. The purchase of other land with the intent of carrying out a subdivision was related to the actual use for which the applicant held the acquired land, namely for the purpose of development by subdivision. 115 I am not convinced that the ownership of a single parcel of land for the purpose of carrying out a specific development is analogous to holding tracts of land for the purpose of subdivision and resale. Moreover in the absence of any direct evidence of an alternative acquisition or a proposal to acquire a replacement site I am not able to discern whether it is appropriate to allow an amount for stamp duty on a purchase of land for an assumed value. 116 There is nothing in the evidence to assist me to equate the prospective purchase to the subject land. Nor am I able to be satisfied that the price to be paid for the replacement land would be equivalent to the determined market value upon which the present claim for payment of stamp duty is based. There is no certainty that the price to be paid for a replacement property will be in a particular order of cost. Furthermore such of the activities of the applicant as have been identified to the Court would not enable me to characterise land that could be made the subject of a future purpose according to a fixed specification. I am therefore not satisfied that that the claim for stamp duty is justified as a financial cost relating to the actual use of the land.

Mortgage Costs 117 The claim for interest and mortgage costs is in a different category. At the date of compulsory acquisition the land was not used for the purpose against which its development potential had been assessed for the purpose of determining market value. The financial arrangements made by the applicant for the purchase and management of the land are costs that would have been necessarily incurred in connection with the realisation of any development potential. Those costs were ongoing and were incurred for the purpose of facilitating the opportunity to develop the land by construction of residential units and ultimately the sale of those units for profit. The potential for that profit to be realised has been expressly recognised by the manner in which the market value of the land has been determined. 118 Irrespective of whether interest was paid under mortgages taken out to meet obligations flowing from the purchase of the land they were in the nature of acquisition costs and holding charges pending realisation after development. The Just Terms Act provides for interest to be paid at the statutory rate from the date of acquisition to the date of payment of the whole of the compensation ultimately assessed. Any costs incurred for the discharge of existing securities and the reorganisation of the applicant's financial affairs can be recognised (at least in major part) as costs that would necessarily be involved in the release of the property from existing securities, be that at a time of refinancing in the future pending realisation by sale of the individual units or on the sale of those units. 119 Section 61 of the Just Terms Act provides: 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) any financial advantage that would necessarily have been forgone in realising that potential, and (b) any financial loss that would necessarily have been incurred in realising that potential. 120 The prescription for the application for s 61 applies in the present case where the market value of the land has been assessed on the basis that the land had potential to be used for a purpose other than that for which it was currently being used at the date of acquisition. The assessment of the market value of the land was based upon the assumptions that would have been made by an hypothetical vendor and purchaser entering into an hypothetical transaction at the date of acquisition. At the date of acquisition there was no actual use of the land in a physical sense. 121 The financial arrangements made by the applicant in order to facilitate the acquisition, ownership and development of the land were part and parcel of securing the potential for the land to be used for a purpose other than that for which it was being currently used. The claim pursuant to s 59(f) in relation to interest and mortgage costs is in the nature of a financial cost to the applicant that can be readily characterised as financial loss that would necessarily have been incurred in realising the potential of the land as contemplated by s 61(b). 122 The claim for loss attributable to disturbance pursuant to s 59(f) in respect of mortgage costs and interest paid is rejected. The claim is based upon an assumption that if the compulsory acquisition had not occurred the applicant would have sold the property and thereby recovered sufficient funds to repay the loan. There is no evidence to support that proposition. It is inconsistent with the approach taken to the assessment of market value on the basis that the applicant would have retained the land and realised its full potential by carrying out such development as the council would have approved. 123 The costs in relation to the supporting financial arrangements were ongoing and unaffected by the intervention of the compulsory acquisition. Prior to the date of acquisition the costs of financing supported the potential for the development of the land. After acquisition s 49 provided for interest on any amount of compensation from the date of acquisition until the payment was made.

Conclusion and Determination 124 Based upon the abovementioned reasons and findings I uphold the objection made by the applicant to the amount of compensation offered by the respondent and determine that the applicant is entitled to compensation representing the market value of the land on the date of acquisition in the sum of $9,700,000 and loss attributable to disturbance in the sum of $31,375. 125 Having regard to all relevant matters under Part 3 of the Just Terms Act I find that the amount of compensation in the sum of $9,731,375 will justly compensate the applicant for the acquisition of the land. 126 The question of costs is reserved, as there are many facets of this case in respect of which both parties have been successful. It is appropriate to note however in relation to the question of costs that the applicant would not have recovered the amount of compensation I have just determined without litigating the objection made pursuant to s 66 of the Just Terms Act. Ordinarily that would justify the exercise of the Court's discretion by an order that the respondent pay the applicant's costs of the proceedings. However I appreciate that there may be circumstances that could give rise to a special order for costs at least in respect of some issues notwithstanding the overriding principle that the applicant appears to be entitled to the payment of its costs in full. 127 The exhibits may be returned.

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