Blacktown City Council v Concato

Summary of Issues and Conclusion

1. The Council propounds a number of errors, said to be jurisdictional, affecting the Valuer-General's determination of compensation. A number of these impugned the process by which the market value of the resumed land at the date of acquisition was determined. In general terms, it was said that the Valuer-General (through the contract valuer, who in fact conducted the valuation, as I will explain below) acted irrationally, unreasonably and contrary to correct valuation principles. A number of particulars of error were propounded which may be summarised as follows: 1. Wrongly assessing a relevant comparable sale of a particular property in Schofields. 2. Misusing, or mistaking the significance of, a draft amendment to the governing planning instrument published and circulated in May 2017; 3. Making errors in the analysis of a comparable sale at Terry Road, Rouse Hill in a number of respects. To these matters I have concluded that the admittedly wrong information was not taken into account in relation to the Schofields Road property, but if it was, it was not a mistake on the part of the contract valuer. Any mistake did not amount to jurisdictional error. There was no error in relation to the use made of the draft amendment; and any errors made in the analysis of the Terry Road property were errors within jurisdiction.
2. The second group of matters relied on as jurisdictional error relate to three heads of loss attributable to disturbance allowed under s 55(d) Just Terms Act in contravention of s 61 of that Act. These were losses represented by the cost of relocation from the resumed land; stamp duty costs in connection with the purchase of land for relocation; and the inclusion in the allowance for legal costs of costs referable to the former owners' hardship application. A challenge to the allowance for non-financial disadvantage to the former owners in relocating from their home made under s 60 Just Terms Act was abandoned at the hearing.
3. In relation to the second group of matters, subject to a matter I will mention in the next paragraph, I am satisfied that council's challenges have been made good and that these matters constitute jurisdictional error.
4. The proceedings were heard over 4 days, 30 and 31 January 2019, and 28 February and 1 March 2019. During the first two days it became apparent that the allowance of legal costs referable to the hardship application as a loss attributable to disturbance in the assessment of the amount of compensation to which the former owners were entitled was contrary to s 55(d) of the Just Terms Act having regard to the meaning of that expression as defined by s 59 of that Act: Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411 at [59] per Bathurst CJ (Simpson and Payne JJA agreeing) ("Hoy"). Moreover, as this error involved a misconstruction of the statute conferring the jurisdiction to award compensation, namely the Just Terms Act, it was likely to be jurisdictional. Such an error was more than arguably material as it affected the amount of compensation determined.
5. There was discussion about whether such an error was necessarily fatal to the whole of the Valuer-General's determination and whether the Valuer-General had power to redetermine or amend the determination under review. During the adjournment, the former owners made an application to the Valuer-General to amend the determination of compensation by reducing the amount allowed for losses attributable to disturbance by the amount of the legal costs incurred by the former owners in respect of the hardship application. The Council and the former owners accept that the amount involved is $41,598. Under cover of email dated 27 February 2019, the Valuer-General issued an amended determination of the same date, reducing the determination by that amount. For clarity this reduced the determination for compensation from $16,634,318.00 to $16,592,783.00.
6. Notwithstanding the interesting consideration that the Council made its own application for amendment or redetermination during the adjournment, the Council disputes the availability of a power to amend. The former owners and the Valuer-General support it.
7. This is obviously an important question if only for the practical reason that it is necessary to decide whether the making of the amendment determination (Exhibit B) is a valid exercise of power for the purpose of identifying the determination under review in these proceedings.
8. I have decided for reasons given below that the Valuer-General had power to make the amendment when it was made.

The land

1. The acquired land is a parcel of 2.023 ha (or 5 acres) in Rouse Hill within the City of Blacktown. The Council is the relevant local government authority. The land was held by the former owners as joint tenants prior to the resumption. The land was also subject to a mortgage in favour of Bank of Queensland Limited, which was discharged upon the making by the Council of an advanced payment of compensation of $12,650,000.00 less amounts necessary to discharge the mortgage (see Blacktown City Council v Concato [2018] NSWSC 1039).
2. Developments surrounding the acquired land consist mainly of small acreage home sites and larger rural and production properties, a number of which were, at the time of the determination, in the process of being developed into low and medium-density residential properties (International Valuation & Property Services report, Annexure C to affidavit of MMG Mallos sworn 2 July 2018 ("IVPS Report") at 22). The acquired land is situated within the Riverstone East Precinct of the North West Growth Centre under State Environmental Planning Policy (Sydney Growth Centres) 2006 (SEPP 2006).
3. There were a number of improvements on the land, consisting of a single detached dwelling house with an attached garage, a large machinery shed, perimeter fencing and a front gate, a driveway, and landscaping including a dam. The former owners principally used the land for single-family residential purposes (T7.35-50).

The acquisition by the Council

1. Much of the factual background surrounding the dispute is not in issue. I summarise briefly for context the background leading up to the valuation of the acquired land, that being the subject of the real controversy between the parties.
2. At some point after the former owners acquired the land, it was rezoned into predominantly RE1 public recreation, with a narrow strip of land across the south-western boundary zoned SP2 infrastructure (drainage).
3. On or before 22 August 2016, the land was designated for compulsory acquisition (State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Blacktown Growth Centres Precinct Plan) 2016; North West Growth Centre Land Reservation Acquisition Map LRA 009).
4. In May 2017, draft amendments to SEPP 2006 were placed on public exhibition. One effect of the draft amendments was to consolidate six precinct planning controls, including the Blacktown Growth Centres Precinct Plan (which is Appendix 12 to SEPP 2006 and applies to the acquired land) into one single precinct plan known as the Blacktown Priority Growth Area Precinct Plan based on the Blacktown Growth Centres Precinct Plan (see North West Priority Growth Area Land Use and Infrastructure Implementation Plan, May 2017 at [7.1.4]; Explanation of Intended Effect, Amendments to the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 - For North West Priority Growth Area under heading "Blacktown Local Government Area").
5. For present purposes, the significance of the draft amendment for valuation purposes is that it proposes limits on development by adding a maximum density control to the minimum contained in SEPP 2006. For the R3 Medium Density Residential zoning that both parties agree is relevant to this case, the current minimum is 25 dwellings per hectare ("DPH") with no maximum restriction. The proposal is to impose a maximum of 35 DPH. The proposed amendment was not formalised as at the acquisition by gazettal on 9 March 2018 (see [24] below). It was still "under consideration" on the date of the Valuer-General's original determination of compensation of 7 June 2018 (IVPS Report 28 [12.1]).

Owner initiated hardship acquisition

1. Sections 23 and 24 of the Just Terms Act provide for a process of owner-initiated compulsory acquisition of land designated for a public purpose. Those sections are in the following terms: "23 Owner who suffers hardship may require authority of the State to acquire land designated for acquisition (1) The owner of land to whom this Division applies may require an authority of the State, by notice in writing given to that authority, to acquire that land under this Act if: (a) the land is designated for acquisition by that authority for a public purpose, and (b) the owner considers that he or she will suffer hardship if there is any delay in the acquisition of the land under this Act. (2) The authority of the State must (subject to this Division) acquire the land within 90 days after the owner gives that authority notice under this section (or such longer period as that authority and the owner may agree on in writing). (3) If there is more than one owner of the land concerned, the notice under this section must be given by all the owners. It is sufficient if any one of those owners will suffer hardship. (4) An authority of the State is not required to acquire (under this Division) more land than it requires for the public purpose for which the land was designated or more interests in the land than it requires for that purpose. (5) A notice under this section must be in the form prescribed by the regulations or (if no such form is prescribed) in the form approved by the Minister. 24 Hardship (1) An authority of the State is not required to acquire land under this Division unless it is of the opinion that the owner will suffer hardship (within the meaning of this section) if there is any delay in the acquisition of the land under this Act. (2) An owner of land suffers hardship if: (a) the owner is unable to sell the land, or is unable to sell the land at its market value, because of the designation of the land for acquisition for a public purpose, and (b) it has become necessary for the owner to sell all or any part of the land without delay: (i) for pressing personal, domestic or social reasons, or (ii) in order to avoid the loss of (or a substantial reduction in) the owner's income. (3) However, if the owner of the land is a corporation to which this Division applies, the corporation does not suffer hardship unless it has become necessary for the corporation to sell all or any part of the land without delay: (a) for pressing personal, domestic or social reasons of an individual who holds at least 20 per cent of the shares in the corporation, or (b) in order to avoid the loss of (or a substantial reduction in) the income of such an individual."
2. On 18 August 2017, the former owners sent to the Council a hardship application pursuant to s 23 of the Just Terms Act, and on 22 November 2017 the Council resolved to accept the application at one of its ordinary meetings. It was common ground between the parties that s 23 applied to the land and that the Council formed the necessary opinion under s 24(1), leading to the result that it was legally obliged to acquire the land.
3. By notice dated 5 March 2019 and published in the Gazette on 9 March 2019, the Council declared that it had compulsorily acquired the land (New South Wales Government Gazette, No. 26 of 9 March 2018) (ss 19-20 of the Just Terms Act). There is no dispute that the land was not acquired otherwise than in accordance with the Just Terms Act.

The determination

1. Upon the acquisition, s 37 of the Just Terms Act gave the former owners a right to be compensated by the Council. The former owners and the Council each obtained their own valuations of the acquired land; the former obtaining a valuation of approximately $20,000,000.00 and the latter obtaining a valuation of $12,650,000.00.
2. For context, s 37 provides: "37 Right to compensation if land compulsorily acquired An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land."
3. Because the parties could not agree as to the amount of compensation to be offered to the former owners, it became necessary for the Valuer-General to determine that amount.
4. The Valuer-General's power to make such a determination is provided for by s 47 of the Just Terms Act, which is in the following terms: "47 Valuer-General to determine amount of compensation offered The Valuer-General is to determine the amount of compensation to be offered to a person under this Part."
5. The exercise of that power is informed by s 41, which provides: "41 Valuer-General's determination of amount of compensation (1) The authority of the State must, within 7 days after it compulsorily acquires land, provide the Valuer-General with a list of the issues that the authority believes are relevant to the determination of the amount of compensation by the Valuer-General. (2) The Valuer-General may determine the amount of compensation to be offered to a former owner of land for a compulsory acquisition of the land: (a) before or after the acquisition takes effect, and (b) even though the former owner has not made a claim for the compensation. (3) The Valuer-General is to provide a copy of the determination of the amount of compensation (together with any report on the value of the land prepared by or for the Valuer-General) to: (a) the authority of the State concerned, and (b) the former owner to whom the compensation is payable."
6. Section 42 imposes an obligation on the Council to issue a 'compensation notice' within a given time after the publication of the acquisition notice. The compensation notice must state the amount of compensation offered to the former landowner as determined by the Valuer-General: "42 Notice of compensation entitlement and offer of compensation (1) An authority of the State which has compulsorily acquired land under this Act must, within 45 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General). (2) The compensation notice must be given to all former owners of the land who, immediately before the acquisition: (a) had a registered interest in the land, or (b) were in lawful occupation of the land (but only if the authority of the State considers they are entitled to compensation), or (c) had, to the actual knowledge of the authority of the State, an interest in the land which entitles them to compensation. (3) If the acquisition relates only to a particular interest in land, the notice need only be given to all such former owners of that interest. (4) The Minister may extend the period of 45 days within which the compensation notice is required to be given (but not by more than 60 days) if the Minister is satisfied that it is necessary to do so to enable a valuation to be made of any interest in the land concerned. (5) An authority of the State is not excused from the requirement to give a compensation notice because the period during which the notice is required to be given has expired or because the former owner has not lodged a claim for compensation. (6) However, the authority of the State may delay giving a compensation notice if a number of persons claim competing interests in the land concerned. (7) Despite any such delay, the compensation may be paid into the trust account under this Part and advance payments of compensation may be made under this Part. (8) The obligation of the Valuer-General under section 41 (3) to provide a copy of the determination of the amount of compensation to the former owner applies despite a failure by the authority of the State to give a compensation notice to the former owner as required by this section."
7. The general practice of the Valuer-General, consistent with Part 1A of the Valuation of Land Act 1916 (NSW) ("the Valuation Act"), is to engage independent contract valuers to perform certain valuations required to be undertaken by the Valuer-General.
8. Specifically, under s 13H(1) of the Valuation Act, the Valuer-General is permitted to perform a valuation under the Valuation Act on the recommendation of a contract valuer. Sub-sections (2) and (3) then go on to provide: "(2) For the purpose of formulating recommendations in connection with a valuation, a contract valuer may exercise any relevant functions or discretions that expressly or impliedly belong to the Valuer-General and: (a) that are specifically authorised by the relevant valuation service contract to be exercised by the contract valuer, or (b) that, although not so specifically authorised, are ancillary to or otherwise relate to the making of the valuation. This subsection has effect subject to the valuation service contract. (3) The Valuer-General may make a valuation on the basis of such a recommendation: (a) without independently exercising relevant functions or discretions referred to in subsection (2), and (b) without independently assessing the accuracy of the recommendation."
9. On 7 June 2018, the Valuer-General issued a determination of compensation relying on the IVPS report. The determination annexed and adopted the figures recommended in the IVPS Report. The former owners' compensation was determined by the Valuer-General to be $16,634,381.00, as follows: "DATE OF ACQUISITION: 09/03/2018 DETERMINATION OF COMPENSATION: Sixteen Million, Six Hundred and Thirty-Four Thousand, Three Hundred and Eighty-One Dollars. $16,634,381.00 The above determination comprises: Market value Section 55 (a) $16,184,000.00 Special value Section 55 (b) Nil Severance Section 55 (c) Nil Disturbance Section 55 (d) $375,381.00 Disadvantage resulting from relocation Section 55 (e) $75,000.00 Increase in the value of other land Section 55 (f) Nil Decrease in the value of other land Section 55 (f) Nil"

1. The amount allowed for disturbance was based upon the following components: • Mortgage fees $5,260; • Relocation costs, as per the recommendation of the former owners' quantity surveyor $142,000; • Legal fees (which included the fees of the hardship application) $54,421; • Architect fees $3,300; • Town planning fees $3,410; • Valuation fees $16,500; • Stamp duty (based on replacement value of $3 million) $150,490. Total $375,381

1. I will now deal with the background facts, statutory context and arguments of the parties before turning to explain my decision.

The valuation methodology employed by the Valuer-General

1. I repeat, there is no dispute that the Valuer-General (by the contract valuer) correctly identified the underlying zoning, that is, the zoning that would have applied to the land but for its identification for compulsory acquisition for public purposes, as R3 Medium Density Residential. Nor is there any dispute that it was appropriate for the contract valuer to adopt the comparative sales method of land valuation to form his opinion about the market value of the land on the date of acquisition for the purpose of s 55(a) of the Just Terms Act.
2. The IVPS Report identified six sales of properties which were regarded as the "most comparable to" the acquired land (IVPS Report at 40-45; CB 93-98). The details of these properties are summarised in the below table: "Address Suburb Area Zone Rate Date Comparison [XX] Rouse Hill [XX] Cudgegong Road Rouse Hill 6.071 ha R3 / RE1 $609/m2 Mar 2015 Inferior [XX] Terry Road Rouse Hill 2.116 ha R3 / RE1 / SP2 $723/m2 Dec 2017 Inferior [XX] Tallawong Road Rouse Hill 2.023 ha R3 $816/m2 Jan 2017 Superior [XX] Schofields Road Schofields 7,793 m2 R3 $886/m2 Jul 2017 Superior [XX] Pelican Road Schofields 1.84 ha R3 / SP2 $892/m2 Feb 2016 Superior [XX] Memorial Avenue Kellyville 1.917 ha R3 / SP2 $975/m2 Oct 2017 Superior"

1. The IVPS Report concluded (IVPS Report at 46; CB 99): "Having regard to the above analysis, we have determined a range of $750 per m2 to $800 per m2 for the land zoned R3 Medium Density Residential as representative of the market land value of the subject property as at the date of acquisition. Taking into account the site-specific characteristics of the subject property, we have adopted a rate of $800 per m2 of land area."

Summary of the parties' arguments

1. The Council impugns the decision of the Valuer-General by advancing the following arguments.
2. First, the Council submits that the Valuer-General fell into jurisdictional error by failing to consider or correctly include in its determination a relevant comparable sale of a property on Schofields Road, Schofields ("the Schofields Property"). The Council submits that the comparable sale relied on by the Valuer-General (as it pertains to the Schofields Property) never actually occurred and that the Schofields Property was in fact sold for considerably less than the amount the Valuer-General used in its calculations ("the Schofields Road Ground").
3. Secondly, the Council submits that the Valuer-General fell into jurisdictional error by failing to have regard on the market value-depressing effect of the announcement of certain amendments to SEPP 2006. Specifically, the Council submits that the foreshadowing of the imposition of maximum density controls on the acquired land would restrict its development potential and that the Valuer-General was required to consider the effect of the announcement of the restrictions in their determination ("the Density Restriction Ground").
4. Thirdly, the Council submits that the Valuer-General fell into jurisdictional error in ascribing a nominal value of $100/m2 to a 7700m2 part of the property at Terry Road, Schofields ("the Terry Road Property"). This was done because that part of the land was zoned RE1 Public Recreation and SP2 Infrastructure and was designated for acquisition for public purposes. Part of that portion of the land was also flood affected. The Council submits that the Valuer-General ought not to have ascribed a nominal value to the whole of the land zoned for a public purpose because on acquisition by an authority of the state the former owner would be compensated at market value disregarding any negative effect of the public purpose zoning. The Valuer-General ought only to have applied a discount for flooding to the flood prone portion of the Terry Road Property that was zoned for public purposes ("the Terry Road Sale Ground").
5. Fourthly and fifthly, the Council submits the amount of $150,490.00 in respect of stamp duty was impermissibly allowed in the determination in respect of disturbance loss, as was the amount of $142,000.00 in respect of the cost of relocating items from the house and shed on the property. The Council submits that s 61 of the Just Terms Act operates to prevent the inclusion of both of these amounts ("the Development Potential Ground").
6. Finally, it points to the inclusion in the compensation determination of an amount of $54,421.00 in respect of loss attributed to disturbance. The Council observes that this sum is comprised of legal costs incurred by the defendants in establishing hardship prior to the crystallisation of an entitlement to compensation under the Just Terms Act. The Council relies on the decision of the Court of Appeal (Bathurst CJ, Simpson and Payne JJA) in Hoy insofar as it stands for the proposition that (at [59] per Bathurst CJ): "… the power to compensate for legal costs extends to costs incurred in establishing hardship. The power to award legal costs, contained in s 59(1)(a), relates to costs incurred by a person entitled to compensation in connection with the compulsory acquisition of the land. A person is only entitled to compensation once the authority becomes bound to acquire the land, that is, in the case of a hardship application, once the pre-conditions in s 24(2) are established to the satisfaction of the relevant authority referred to in s 24(1). Legal costs incurred in establishing hardship are incurred prior to an entitlement to compensation arising and thus do not fall within s 59(1)(a)." ("the Disturbance Loss Ground").
7. In its summons, the Council also sought to challenge the Valuer-General's award of compensation for non-financial disadvantage due to relocation. As I have said, Mr Tomasetti SC (who appeared with Ms A Hemmings and Ms Napuri for the Council) abandoned reliance on this ground during the hearing.
8. Mr Hemmings SC (who appeared with Ms K Lindeman for the former owners) strongly joined issue with the major premise underpinning the Council's argument on the first three matters being errors said to have arisen in the analysis or application or of the comparative sales method that the major premise underpinning the Council's argument that all such errors as were identifiable were jurisdictional. He emphasised the right of an administrative decision maker to err within jurisdiction: Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21. This is sometimes referred to as "the right to go wrong", at least within jurisdiction. Senior Counsel also argued that no error is jurisdictional unless it is material in the sense that had it not been made, the outcome may have been different, and an error is not material if "one or some only of a number of alternative findings upon which the decision was given involved errors of law": Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGERA 409 at 419.
9. In relation to the Schofields Road Ground, it was pointed out, first, that there was material before the contract valuer indicating a sale price of $6.9M and it cannot be irrational or unreasonable for a decision-maker to reach a conclusion that has "an evident and intelligible justification": The Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]. Secondly, to the extent that erroneous information had been provided to the contract valuer by a sales agent, any reliance by the valuer on it could amount to no more than an error of fact of a non-jurisdictional kind. Thirdly, not all errors in the accumulation, analysis, adjustment and application of comparable sales give rise to an error of law, let alone a jurisdictional error: ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGER 825 at [23]. And, fourthly, in any event, the error was not material as the contract valuer expressly states that other comparable sales material considered supported his conclusion (IVPS Report at 62).
10. As to the Density Restriction Ground, the former owners argue that the contract valuer did take the draft amendment into account (IVPS Report at 28, 62). He also gave reasons for rejecting it as a governing factor for determining market value. The contract valuer fully set out his reasoning and it cannot be said his approach to that matter "lacks an evident and intelligible justification".
11. Moreover, the former owners argue that it was not erroneous for the contract valuer to consider how a consent authority might determine a development application according to the operation of applicable planning instruments: Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; 74 ALJR 209 at [271]-[272].
12. Dealing with the Terry Road Sale Ground, the former owners submit that the error, if there is one, is one of fact not jurisdiction and in any event the Terry Road Property was one only of a number of properties relied on to inform the contract valuer's opinion as to value.
13. As I have already pointed out the former owners, at least tacitly, conceded from the outset the alleged error in respect of the legal costs of the hardship claim in accordance with the clear statement of principle made in Hoy. In respect of the cost of relocation and stamp duty, it is submitted however, that no error was made by reference to the decision in El Boustani v The Minister Administering the EPA Act 1979 [2014] NSWCA 33; LGERA 198 at [96]-[100] ("El Boustani"). It was argued that the land was not "ripe for development". With this in mind, the contract valuer had assessed it was unlikely that residential development could commence on the acquired land within 2 years of the date of acquisition (IVPS Report page 39 and 61). Accordingly, it was argued there is no error of principle in the allowance made for disturbance in respect of relocation costs and stamp duty.

The Amended Determination

1. I re-iterate that the Amended Determination (Exhibit B) is identical to the original determination save for a reduction in an amount of $41.000.00 to the amount awarded in respect of disturbance loss. It was accepted by the Council that the reduction for this amount expunged from the original determination all legal costs said to have been erroneously included contrary to what was said by the Court of Appeal in Hoy (T116.38-41; T 124.14).
2. I also granted leave for the Council to rely on a second amended summons, seeking to impugn the amendment on the basis that the Valuer-General lacks authority under the Just Terms Act to amend a determination once issued ("the Amendment Ground"). It will thus be necessary to deal first with the question of whether the Valuer-General has the power under the Just Terms Act or otherwise to amend his or her determination. If the answer to that question is yes, then, as the former owners correctly submitted, the Disturbance Loss Ground falls away.

Does the Valuer-General have power to amend a compensation determination?

1. The issue appears to have been raised - albeit indirectly - before Payne J in Azizi, when his Honour, recording the submissions made to him, said (at [100]): "100 The former owners submitted that s 43A(2) of the Just Terms Act impliedly confers a power on the Valuer-General to vary or reconsider his or her Determination. In order for s 43A(2) to have any work to do, that provision must be construed as conferring a power on the Valuer-General to change his or her determination of the amount of compensation offered under s 47. This is subject to the limitation within the statutory scheme that the Valuer-General cannot amend a Determination once the dispossessed owner has accepted an offer of compensation. It was submitted that, accordingly, the Valuer-General can validly vary the Determinations and cure any relevant error." His Honour also said, in a slightly different context, at [141]: "141 Whilst I was initially attracted to the proposition that the power of amendment in s 43A told in favour of legal errors made by the Valuer-General being treated as non-jurisdictional I have concluded that this is a factor which is at best neutral. This is because s 43A(2) encompasses the potential to amend a compensation notice for a range of reasons. Those reasons will not always be jurisdictional." It is abundantly clear that his Honour accepted the former owners' submissions about a power to amend but rejected the argument that such power indicated that legal errors in the process of valuation were not jurisdictional.
2. The Council submits that once the Valuer-General performs the function required by s 47, it is effectively functus officio.
3. In the alternative, however, the Council accepts that "not every power to make an administrative decision that is purportedly exercised is necessarily spent once it has been made" (Submissions 15 March 2009 [23]): Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at [443] ("Sloane"). The question is one of statutory construction. Reference was also made to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 ("Bhardwaj"). Further in the alternative, it was argued that any power to amend the Valuer-General's determination is limited by a purpose of assisting or furthering the power of rescission of an acquisition notice conferred by s 31 of the Just Terms Act.
4. The former owners and the Valuer-General both submit that the clear reference in s 43A Just Terms Act to the Valuer-General changing his or her determination of the amount of compensation by necessary intendment confers a power of amendment on the Valuer-General. Reference is also made to s 48 Interpretation Act 1987 (NSW) and Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332 at 335G-336A. It is also submitted that given the express provision of s 43A(7) an implied power limited to aiding the operation of s 31 is entirely unnecessary. Reference was also made to the principle of statutory interpretation discussed in Taylor v Owners of Strata Plan 11564 [2014] 253 CLR 531 at [38]-[40].
5. The basal principles of statutory construction are not here in issue. The task of the Court begins with consideration of the text itself, but the meaning of the text is informed by considerations of context, purpose, and policy (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 41; [2009] HCA 41).
6. Section 43A of the Just Terms Act is in the following terms: "43A Amendment or rescission of compensation notice (1) An authority of the State may, by a further notice, amend a compensation notice to correct a clerical error or obvious mistake. (2) An authority of the State must, by a further notice, amend a compensation notice to correct the amount of compensation offered if the Valuer-General changes his or her determination of the amount of compensation to be offered. (3) A further notice under this section is to be given in the same manner as the compensation notice concerned was given. (4) A compensation notice cannot be amended under this section after the offer of compensation in the notice has been accepted. (5) An amendment of a compensation notice by a further notice under this section has effect: (a) from the date of the original notice (or a later date specified in the further notice) if there has been no change in the amount of compensation offered, or (b) from the date of the further notice if there has been such a change. (6) If an amendment made to a compensation notice under this section takes effect on a day other than the day on which the original notice was received by the former owner, the notice is taken, for the purposes of sections 45 and 66, to have been received by the former owner on the day on which the amendment takes effect. (7) If an acquisition notice is rescinded, the compensation notice relating to the acquisition is also rescinded." (My emphasis.)
7. The section is primarily concerned with the amendment of a compensation notice, rather than a power of the Valuer-General to amend a compensation determination. Section 43A(1) confers a discretionary power to amend the notice to correct clerical or obvious mistakes. But what is striking in the present context are the terms of sub-s (2), obliging the authority of the State to amend a compensation notice to correct the amount of compensation offered "if the Valuer-General changes his or her determination of the amount of compensation to be offered".
8. Section 43A was inserted by cl 1.21[1] of Sch 1 to the Statute Law (Miscellaneous Provisions) Act 2009 (NSW). The explanatory note to that clause provides (Statute Law (Miscellaneous Provisions) Bill 2009 sch 1 cl 1.21): "Explanatory note Section 47 of the Land Acquisition (Just Terms Compensation) Act 1991 (the Act) provides for the Valuer-General to determine the amount of compensation to be offered to a former owner of land for the compulsory acquisition of the land. A compensation notice is given under section 42 of that Act which offers the affected land owner compensation of the amount determined by the Valuer-General. Section 45 of that Act provides that an offer of compensation in a compensation notice is deemed to be accepted following 90 days after the compensation notice is given unless it is rejected and proceedings are taken by the owner of the land. Item [1] of the proposed amendments to the Act requires an authority of the State to amend a compensation notice if the Valuer-General redetermines the amount of compensation that is to be offered to the former owner and authorises the authority of the State to amend a compensation notice for the purpose of correcting a clerical error or an obvious mistake in the notice. If any such amendment alters the amount of compensation offered to the former owner, the compensation notice is taken to have been received on the date that the amendment to the notice takes effect. The proposed amendment also provides that a compensation notice may not be amended after the offer of compensation in the notice has been accepted." (My emphasis.)
9. If it were intended that the Valuer-General's power to redetermine was to be exercisable only on a partial rescission (see s 31(1)) of an acquisition notice, one would have expected some mention to have been made of the particularly narrow context in which an acquiring authority would be mandated to amend a compensation notice in response to a Valuer-General redetermining the amount of compensation to be offered to a dispossessed landowner. Instead, both s 43A(2) and the explanatory statement proceed on the basis that a general power to redetermine is available to the Valuer-General.
10. I am satisfied that s 43A(2) confers an implied power on the Valuer-General to "change", amend, or redetermine the amount of compensation to be offered. Clearly such a power may only be exercised consistently with the text, context and purpose of the Act as a whole. But it is unnecessary in the case at hand to attempt to state exhaustively the breadth of the power. Clearly, having regard to the terms of s 43A(4) no such change, amendment or redetermination can be made after the offer of compensation made in a compensation notice issued under s 42 Just Terms Act has been accepted. Given the orders I made on 6 July 2018, no compensation notice has yet been issued in this matter and it follows no offer has been accepted. Doubtless there may be other restrictions upon exercising the implied power, but it is unnecessary to explore that question fully in the present context. Obviously, such a power is not at large and may only be exercised in good faith to achieve the objects of the Act as set out in s 3 of the Just Terms Act including guaranteeing that the amount of compensation will be not less than the market value of the land and ensuring compensation for former owners on just terms.
11. Accepting that the provisions of the Interpretation Act 1987 (NSW) may be ousted expressly or impliedly by the terms of the legislation being interpreted or construed, s 48(1) is of significance. It is in the following terms: "If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires." Glass JA said of this provision in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335 - 6: "The trial judge … found on the evidence that the first certificate had been withdrawn and replaced by the second certificate. It was argued before us that no power was vested in authorised officers whichwould enable this to be done. I am unable to agree. The power to issuecertificates granted by … the Act is elaborated by the [InterpretationAct 1987, s 48], which permits its exercise from time to time. It has been heldthat a power exercisable from time to time may be so exercised as to add to,subtract from or reverse the result of the previous exercise (citation omitted). In other words the donee of such a power is neverfunctus officio. Accordingly the existence of the first certificate does notrender void a second certificate issued in lieu of it." There is nothing in the text, context or purpose of the Just Terms Act inconsistent with the operation of s 48 Interpretation Act. Indeed, as I have pointed out s 43A(2) is entirely consistent with the function of the determination of compensation under the Act, being a function which may be exercised from time to time as occasion requires.
12. This conclusion is also consistent with Sloane which the Council referred to. The passage that Mr Tomasetti drew to the Court's attention (at [443]) is in the following terms: "… reconsideration of a statutory decision may itself be a course contemplated or authorised by the statute. The question is one of statutory construction."
13. My conclusion about this is also reinforced by the decision of the High Court of Australia in Bhardwaj, another decision drawn to my attention by Mr Tomasetti. The legislative context is different, involving the power of the Immigration Review Tribunal to set aside its own earlier determination and reconsider a matter when it came to the Tribunal's attention that it had not given proper notice of the hearing to the applicant. Gleeson CJ explained the position as follows (at 603 [5]-[7]: "There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [[1964] AC 40 at 79], Lord Reid said: 'I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.' That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made. In Chandler v Alberta Association of Architects [[1989] 2 SCR 848] Sopinka J, speaking for the majority in the Supreme Court of Canada, pointed out that, as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision because it has changed its mind, or recognises that it has made an error within jurisdiction, or because there has been a change of circumstances. However, the Court held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation."
14. Gaudron and Gummow JJ were of the same view, which their Honours expressed in the following terms (at 616 [53]): "In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s33(1) of the [Acts Interpretation Act 1901 (Cth)]." McHugh J was in substantial agreement (see 618 [63]), as were Hayne J (at 647 [155]) and Callinan J (at 648-649 [162]-[163]).
15. It can be seen that the decision in Bhardwaj proceeded on the basis that the Tribunal's first purported decision was vitiated by jurisdictional error. It was not sufficient that it simply changed its mind or identified some error within jurisdiction. Given what I have said about the implied power to change its determination, whatever its true width, I consider that the Valuer-General's power to change, amend or redetermine is not limited to cases where the determination being changed, amended or redetermined is vitiated by jurisdictional error. If I am wrong in that conclusion, it can be seen, for the reasons explained by Payne J in Azizi (at [158]-[164]), that the Valuer-General's error in misconstruing s 59 for the purpose of s 55(d) Just Terms Act, and allowing the costs of propounding the hardship case, was jurisdictional. It will be necessary to return to this when dealing with other grounds.
16. I am satisfied that Exhibit B is the determination of the Valuer-General which is the subject (now) of this application for judicial review. Just as, as a general rule at least, the amendment of a compensation notice under s 43A operates "from the date of the further notice if there has been" a change in the amount of compensation offered, it seems correct to treat Exhibit B as operating from the day when the change was made, that is 27 February 2019. No party indicated any legal difficulty with this approach in written submissions directed to this issue.

The task of the Valuer-General under the Just Terms Act

1. It is important to bear in mind that these are judicial review proceedings, and that the Council's burden is to establish jurisdictional error on the part of the Valuer-General.
2. As mentioned at paragraph [28]-[29], the Valuer-General's task under s 47 is to determine the amount of compensation to be offered to a dispossessed landowner under part 3 of the Just Terms Act. That function may be discharged by action taken on the recommendation of a contract valuer appointed under the Valuation Act. In these reasons I have from time to time used "Valuer-General" and "contract Valuer" interchangeably. I have not lost sight of the important legal consideration that the determination under review has been made by the Valuer-General.
3. Division 4 of part 3 is headed "Determination of amount of compensation". That division prescribes the way in which the Valuer-General is to determine the amount of compensation in discharge of the task mandated by s 47. The core section in division 4 is s 54, which provides: "54 Entitlement to just compensation (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. (2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis."
4. The amount of compensation to be offered to a disposed landowner is determined having regard to the matters in Div 4. This includes the matters prescribed by s 55: "55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) the disadvantage resulting from relocation, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired."
5. Where, as here, the acquisition of land is owner-initiated, s 26 of the Just Terms Act operates to convert (c), (d), and (e) above from mandatory factors into discretionary ones. The Council does not take issue with the Valuer-General's exercise of discretion to include disturbance loss and compensation for relocation disadvantage.
6. The market value of land is relevantly defined in s 56 as follows: "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. …"
7. Loss attributable to disturbance is relevantly defined in s 59 as follows: "59 Loss attributable to disturbance (1) In this Act: loss attributable to disturbance of land means any of the following: (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) valuation fees of a qualified valuer reasonably incurred by those persons in connection with the compulsory acquisition of the land (but not fees calculated by reference to the value, as assessed by the valuer, of the land), (c) financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs), (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) financial costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the discharge of a mortgage and the execution of a new mortgage resulting from the relocation (but not exceeding the amount that would be incurred if the new mortgage secured the repayment of the balance owing in respect of the discharged mortgage), (f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition. …"
8. The task of the Valuer-General is governed exhaustively by the provisions of the Just Terms Act: El Boustani at [74], [85].

Incorporation of the principles of valuation

1. A core element of the Council's submissions so far as they concern the Schofields Road Ground, the Density Restriction Ground, and the Terry Road Sale Ground is that the Just Terms Act requires the Valuer-General to adhere to the requirements of the principles of valuation including those informing the comparable sales approach to land valuation. Indeed, it is a major premise of the Council's argument in respect of these grounds that any demonstrable error of the contract valuer in formulating his or her recommendations utilising the comparable sales method, adopted by the Valuer-General, is of necessity jurisdictional error vitiating the Valuer-General's determination. To demonstrate the breadth and boldness of this submission, it is necessary to explain the jurisprudence which has developed in the Land and Environment Court in dealing with objections to the amount of compensation offered by an authority of the State under Part 3 Division 5, ss 66 to 68 Just Terms Act. It must be borne in mind that the Land and Environment Court is required to conduct a hearing de novo into the valuation questions arising under the Just Terms Act and decide for itself the amount of compensation to which the former owners are entitled. A task very different from this Court's.
2. The comparable sales method has been summarised by Robson J in New South Wales Cremation Company Pty Limited v Valuer General [2016] NSWLEC 135 (see also the detailed summary given by Sheahan J in Marroun v Roads and Maritime Services [2012] NSWLEC 199 (at [196]-[208]): "99 It has been accepted that a generally valid method of conducting a comparable sales approach is to undertake it in the four steps of accumulation, analysis, adjustment and application: Constantine v Blacktown City Council (No 2) [2016] NSWLEC 81 at [100] (Moore J); Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [83] (Pain J) (leave to appeal this judgment was refused in Hoy v Coffs Harbour City Council [2016] Allandale Blue Metal Pty Ltd v Roads and Maritime Services (No 6) [2015] NSWLEC 18 at [344] (Pain J); Marroun v Roads and Maritime Services [2012] NSWLEC 199 at [197] (Sheahan J and Parker AC) ('Marroun') (affirmed on appeal in Marroun v Roads and Maritime Services [2013] NSWCA 358 at [75] (Tobias AJA, with Basten and Gleeson JJA agreeing). 100 First, the valuer, judicial or otherwise, should accumulate comparable properties. In undertaking this process, the "sales to be treated as comparable sales need to be truly comparable", although the Court should not be "unreasonably selective" of its comparable properties in any event: Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111 at [18] (McHugh, Gummow, Kirby, Hayne and Callinan JJ). 101 As stated by Pain J in Trust Co Ltd v Minister Administering the Crown Lands Act 1989 (2012) 211 LGERA 158; [2012] NSWLEC 73 at [110]: 'While all comparable sales evidence may be considered relevant and so cannot be disregarded, the level of relevance of different comparable sales to the property may vary leading to the valuer attributing differing weight to different comparable sales. In Brewarrana Pty Ltd v Commissioner of Highways (1973) 6 SASR 541 at 551, Wells J observed: '… there is no hard and fast rule by the application of which a valuer may, whatever the circumstances, draw the line that clearly separates the sales that are comparable from those that are not.' 102 Second, the valuer should analyse those comparable sales. This often involves converting the value of those sales into another measurement that can be easily compared: Marroun at [201] (Sheahan J and Parker AC). Examples of this process include converting those sales into unitary rates, such as a psm rate. 102 Third, the valuer should adjust those properties it considers comparable to create equivalence with the unimproved subject land. As stated by Biscoe J in Holcim (Aust) Pty Ltd v Valuer-General [2009] NSWLEC 225 at [31]: 'The basis for the valuers' valuation assessments is the sales comparison method. Accepted valuation practice permits adjustments for differences, such as in location, area and time to enable valuers to have comparable values which, following adjustment, account for the various differences with the subject property. Such adjustments are generally based on a reasoning process drawing on the skill and experience of the valuer and are undertaken to derive an opinion of value through a deductive process. Because properties are rarely identical, adjustments for differences are obviously necessary but caution is required through making as few adjustments as possible, in a consistent manner, to ensure the reliability of the comparable sale when related to the subject property. Too many adjustments potentially render the comparable sale unsafe to rely upon. Caution is therefore required where large adjustments are to be made. Reflecting the significant roles of skill, experience and personal assessment in the adjustment process, the scope for differences in the quantum and direction of adjustment between valuers can be considerable. Third, the Court should then apply these adjusted values to the subject property. The purpose of this is to determine, based on comparable sales and as best it can, what value the subject property would obtain if it were to be sold on the market.' 104 Fourth, the valuer should apply the comparable sales to determine a value of the subject land based on the adjusted values of the comparable properties."
3. The judges of the Land and Environment Court sit in these matters as judicial valuers dealing with and determining the merits of a former owner's claim for compensation (s 66(2)). These are hearings in the original jurisdiction of the Land and Environment Court. Quite clearly the judges of that Court through experience develop a great familiarity with the methods of valuation and the principles which inform it. In the end a determination of market value is quintessentially a question of fact. Like all questions of contested fact in civil proceedings of any type their resolution will of course involve the identification of the correct principles of law and their application to the ultimate facts as determined by the judge in the exercise of judicial power. It is perhaps salutary to observe that not every contested matter litigated in that Court when exercising its powers conferred by the Just Terms Act gives rise to a question of law for the purpose of an appeal to the Court of Appeal under s 57(1) Land and Environment Court Act 1979 (NSW). Acknowledging the difference between the exercise of appellate powers and the Court's original supervisory jurisdiction, it is difficult to see why all such questions will give rise to jurisdictional error if any mistake can be identified at any stage of the process of valuation. The point perhaps can be made by reference to the short concurring judgment of Basten JA in Marroun v Roads and Maritime Services [2013] NSWCA 358; 211 LGERA 391, which I set out in full below: "1 I agree with Tobias AJA that the appeal in this matter must be dismissed and the appellants must pay the respondent's costs in this court. The assessment of value of the acquired land was the result of an entirely conventional analysis of comparable sales, based on the expert valuers' evidence. That assessment was a matter of fact to be undertaken by the court as a "judicial valuer" and was therefore largely immune from review on an appeal limited to a decision of the court on a question of law: Land and Environment Court Act 1979 (NSW), s 57(1); see Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority (NSW) [2006] NSWCA 314 at [31] (Spigelman CJ, Handley JA agreeing), applying Maurici v Chief Cmr of State Revenue [2003] HCA 8 ; 212 CLR 111 at [8]. 2 The first question raised by the appellants was whether the court was in error in failing to give significant weight, to a genuine offer which indicated willingness to pay a far higher price per square metre for a possible building on the site than that indicated by comparable sales. However, one of the experts gave plausible evidence as to why there was reason to doubt a concluded sale would have resulted at the price offered and as to why the price was unrealistic. The refusal of the court to give significant weight to the offer was a decision entirely on a matter of fact and therefore unreviewable by this court. The further suggestion that there was some inadequacy in the reasons of the court for adopting that approach was without substance. 3 The second basis for challenge fell into the same category. The court declined to accept the appellants' submission that at least a 10% premium should have been accorded to the figures indicated by comparable sales, as a result of an extant development consent for the land. Again, there was expert evidence upon which the court could base its conclusion that no such premium should affect the market value otherwise determined. There was also no merit in the suggestion that the court failed to give reasons for adopting that conclusion. 4 The appellants further submitted that "a finding by the primary judge that the development consent had no value was … a finding without evidence": written submissions, para 53. That proposition was based on a false evidential premise, as demonstrated by Tobias AJA. It was also misconceived as a matter of law: the appellants, who bore the burden of persuading the court that a higher value should be attributed to the acquired land, cannot establish error of law in a failure to make the finding sought, on the basis that there was "no evidence" justifying the failure: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157E"
4. The Council's major premise is founded upon the decision of the High Court in Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8, a land tax case. The passage relied upon is in the following terms (at 116 [8]): "An appeal lay, and was taken from that decision to a judge of the Land and Environment Court on a question of law pursuant to s 56A of the Land and Environment Court Act 1979 (NSW). We do not doubt that the question argued there, and again here, as to the relevance of scarcity, was a question of at least mixed law and fact. The making of a valuation will frequently involve an application of legal principle or principles. Questions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters in valuation cases and practice [Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 266 [276]; 167 ALR 575 at 651]. The Privy Council took this view, with which we respectfully agree, of what may constitute a point, or question of law in relation to a valuation of land, in Melwood Units Pty Ltd v Commissioner of Main Roads [[1979] AC 427 at 432, per Lord Russell of Killowen]: 'If it should appear that the Land Appeal Court ignored a principle of assessment of compensation for compulsory acquisition (resumption), such as for example that commonly known as the Point Gourde principle, that in their Lordships' opinion would be an error in law. So also if the Land Appeal Court rejected as wholly irrelevant to assessment of compensation a transaction which prima facie afforded some evidence of value and rejected it for reasons which were not rational, that in their Lordships' opinion would be an error in law. And as will be seen, it is on those lines that the developer contends that the Land Appeal Court erred in this case.' The Point Gourde principle is a reference to the decision of the Privy Council in Pointe Gourde Quarrying and Transport Company Limited v Sub-Intendent of Crown Lands [1947] AC 565 that compensation for compulsory acquisition of land cannot include an increase in the value of acquired land which is due to the scheme underlying the acquisition: see now s 56(1) of the Just Terms Act.
5. The actual decision in Maurici (see [18]) was that the use of evidence of the value of scarce vacant land to assess the unimproved value of land used for residential purposes in a well-established and closely settled suburb of Sydney was necessarily outside the meaning of "land value" in s 6A Valuation Act.
6. This authority does not support the proposition that every error in valuation, even in the context of a point of law appeal, raises a question of law. Nor does it mean that every error made by the Valuer-General (through adoption of the recommendations of a contract valuer) involves jurisdictional error as opposed to error within jurisdiction. So much in my view is made clear by Callinan J in Boland v Yates Property Corporation Limited [1999] HCA 64; 74 ALJR 209 at [276]-[277] ("Boland"). Boland was a professional negligence case brought against solicitors and barristers engaged in land valuation work. The resolution of the case necessarily involved a consideration of land valuation principles. His Honour said: "276. The approach of the Full Federal Court was coloured by a misapprehension as to the relationship between the experts called in this case and the lawyers. Most professional experts do encounter and have to deal from time to time with matters of law, or mixed facts and law. Engineers and architects may be called upon to construe building codes and building and engineering standards. But apart perhaps from town planners who almost daily will be called upon to construe long and complex planning instruments there would be few non-legal disciplines requiring knowledge and consideration of legal principles to the extent that a valuer must in his or her ordinary practice. As I observed in The Commonwealth v Western Australia, the Privy Council in Melwood Units Pty Ltd v Commissioner of Main Roads referred to valuation principles and principles of law as if they were interchangeable. Questions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters in valuation cases and practice. 277. It should also be firmly kept in mind that valuation practice, like legal practice, cannot be an exact science. Both require the exercise of judgments and the forming of opinions, often on matters in respect of which certitude is impossible and uncertainty highly likely." Given his Honour's acknowledgment of the apparent interchangeability of "valuation principles and principles of law", the qualification he provided in [277] must be kept firmly in mind, as he said. Clearly a discipline which requires the exercise of judgment and the formation of opinions on matters involving inherent uncertainty will necessarily involve questions where minds may reasonably differ. Such questions are essentially by legal definition questions of fact.
7. Payne J dealt with this question in detail in Azizi (at [124]-[133]). I gratefully adopt and agree with his Honour's analysis which I will not set out in full. It is telling, however, that Payne J started with a reference to the judgment of Dixon CJ in Turner v Minister of Public Instruction (1956) 95 CLR 245 at 268; [1956] HCA 7, where the Chief Justice observed: "… valuation cannot be made to depend entirely on a logical process or formula and that in a valuation case questions of reasoning about matters of fact are not to be confused with questions of law." (My emphasis) Payne J also referred to the judgment of Stephen J in Riverbank Pty Ltd v The Commonwealth (1974) 48 ALJR 483 at 487 where his Honour referred to valuation as "an art, not a science" and to Electricity Commission of New South Wales (trading as Pacific Power) v Arrow (1994) 85 LGERA 418 at 419 where Kirby P made the same observation.
8. Particular reliance was placed upon the judgment of the Court of Appeal in ISPT Pty Ltd v Valuer General. Allsop P at [5] (speaking of "the judicial valuer") said: "If not bound by the rules of evidence, a "rejection" of material by the judicial valuer may be seen as a judgment by him or her that a body of material is unlikely to be of utility and, as such, involve factual, rather than legal, considerations."
9. In the same case Giles JA (Campbell JA agreeing) said at [23]-[24]: "23 Comparability and concomitant adjustment involve matters of degree and judgment. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Hutley JA, with whom Samuels JA agreed, said at 383 that "[w]ithin limits, the decision as to what sales are comparable is a question of fact", and in Leichhardt Municipal Council v Seatainer Terminals Ltd (1981) LGRA 409 at 433 Hope JA said bluntly, "Whether sales are comparable is a question of fact". See also, referring to these cases, Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177 and Roads and Traffic Authority v Mosca [2006] NSWCA 159 ; (2006) 146 LGERA 335 at [66]. Whether the sales outside Fairfield were sales which, with adjustment, could provide useful comparison and so assistance in valuing the land was a question of fact. 24 The trial judge, assisted by the Acting Commissioner with his valuation expertise, found that the sales outside Fairfield were not comparable. The valuers' regard to sales outside Fairfield did not take this outside any limit, particularly when at least initially all but one of the sales to which each valuer had regard was not taken up as comparable by the other. There could be error of law in rejecting as wholly irrelevant, for reasons which were not rational, a sale or sales which prima facie afforded some evidence of value: Maurici v Chief Commissioner of State Revenue [2003] HCA 8 ; (2003) 212 CLR 111 at [8], citing Melwood Units Pty Ltd v Commissioner of Main Roads (1979) AC 426; or put another way, if the finding that the sales were not comparable was not reasonably possible or open on the evidence: Leichhardt Municipal Council v Seatainer Terminals Ltd at 434, referring to Hope v Bathurst City Council (1980) 144 CLR 1. But no basis was shown for regarding the trial judge's finding as irrational or one not open to him."
10. Following this review of authorities, Payne J expressed his conclusions at [129]-[135] in the following terms: "129 The same conclusion is appropriate here. I have concluded that this ground involves an impermissible attempt to have the Court engage in merits review and must fail. In that regard, the Council's own expert, Mr McSwiggan, acknowledged that the comparable sales method in the Hurst report was "broadly applied appropriately". 130 The alleged failure by Mr Hurst to apply the comparable sales approach in the manner prescribed by Robson J in New South Wales Cremation Company Pty Ltd v Valuer General does not amount to a failure by the Valuer-General to perform his statutory duty. The Just Terms Act does not prescribe the use of any specific valuation methods, let alone the comparable sales approach or the particular method of conducting the comparable sales approach. 131 The Valuer-General's Determinations relied on (among other things) the Hurst report, which constituted evidence of other material that permitted the Valuer-General to make the Determinations. Accordingly, no error of law is demonstrated. 132 When the comparable sales method is used, the question of whether sales are comparable is a question of fact that involves matters of degree and judgment. The Council's criticisms of the Hurst report in relation to the comparable sales method do not reach the threshold of legal unreasonableness but rather invite the Court to engage in impermissible merits review. Mr Hurst identified properties which, in his judgment, were comparable, explained why he identified each property used in the valuation method and noted differentiating factors warranting adjustment in the final valuation. 133 In this case, Mr Hurst described his methodology as "the sales comparison method of valuation on an analysis of and comparison with available sales evidence" and applied that method in identifying value. As I have earlier found, this was a lengthy process in which the similarities and differences of a number of potentially comparable properties were analysed. Ultimately Mr Hurst adopted values of $2,875/square metre of permissible floor space and $210,000/unit site for his assessment of current market value for the determination of compensation. It was open to him to reach this conclusion. 134 Conclusions reached about whether comparable sales are "truly comparable" are neither a pre-condition to the exercise of the Valuer-General's jurisdiction nor even a "critical step" in making the decision. Accordingly, even if there were no evidence to reach those conclusions, this would not amount to a jurisdictional error invalidating the Determinations. 135 Ground 2 should be rejected." With respect, I agree with his Honour's statement of these principles. They are equally applicable to Council's criticism of the contract valuer's methodology in the present case. Indeed, they are determinative and explain generally why those grounds must be rejected. I will, however, deal with the individual grounds seperately.
11. There is no complaint in the present case that the contract valuer failed to apply the comparable sales approach. Rather, the Council's complaint is that the contract valuer made errors in his or her application of that approach to the acquired land. But it is important to keep in mind that the Council must show that any material failing in the application of the approach involved jurisdictional error. The question whether it did or not starts with the provisions of the Just Terms Act.
12. As it appears to me, the limits of the Valuer-General's valuation discretion under the Just Terms Act, bearing in mind the asymmetry in the appeal rights afforded by the Just Terms Act, are bounded only by the classic forms of jurisdictional error. That is not to say that an acquiring authority will be forced to accept a legally incorrect determination. If, for example, a determination is illogical or irrational, or is unsupported by material properly before the valuer, then the acquiring authority will properly be able to impugn such a determination on the basis of the irrationality, legal unreasonableness, or no evidence grounds of judicial review. That is to say, that the authority will have available avenues of judicial review if the determination can be shown not to conform to the applicable law. But it seems the clear intention of Parliament is, where a determination is not affected by jurisdictional error, if it is accepted by the dispossessed landowner, then the acquiring authority is bound by it.
13. In the extract from Azizi quoted above at paragraph [87], Payne J observed (at [130]) that a failure to apply the comparable sales approach in a specific manner or indeed a failure to apply the comparable sales approach at all does not amount to jurisdictional error because the Just Terms Act does not prescribe the specific use of any valuation method or the way in which any method ought to be conducted.

The Schofields Road Ground

1. The Council submits that the Valuer-General fell into jurisdictional error by acting irrationally, unreasonably, and contrary to correct valuation principles in failing to consider the sale of the Schofields Property that actually occurred, and as a result taking into consideration in his or her analysis a sale of the Schofields Property a transaction which did not occur.
2. As the Council observes, the Valuer-General considered a sale of the Schofields Property which did not, in fact, occur. The Valuer-General described the sale of the Schofields Property as having occurred on 24 July 2017 and as being a sale of a portion of land measuring 7,793m2 at a price of $6,904,563.00, producing a rate of $886/m2 (IVPS Report at 45). There was no dispute that the actual sale was of a larger portion of that land at a lower price, yielding a much lower rate per m2.
3. The IVPS Report stated (at 62): "Comparable sales Our office has contacted Grant Bulpett of Knight Frank Parramatta in regard to the sale of [XX] Schofields Road, Schofields whereby he verbally confirmed that $6.9 million was the consideration paid for that site. We also are in possession of the transfer document which appears to confirm this. In light of this, there still seems to be some discrepancy over the sale, however, in the scheme of things, whether the property sold at $4.9 million or $6.9 million reflecting rates of either $630/sqm or $880/sqm, is of no major concern as there are other R3 sales around that support a general range within this locality."
4. As I have already said that there is no issue before me that the information provided by Mr Bulpett was wrong. The contract valuer knew that there was a dispute about the sale price and he referred to the competing information. The information provided by Mr Bulpett seemed to him to have been confirmed by "the transfer document". However, he acknowledged a "discrepancy". It is important to observe that the contract valuer did not purport to resolve that discrepancy or act on the basis that the Schofields Road property in fact sold for $6.9 million. The argument of the Council is, with respect, to the extent on which it proceeds on the basis that the contract valuer acted on a wrong premise, itself erroneous. Although he included the information provided by Mr Bulpett in his table (reproduced at [37] above), his assessment (and adjustment) of other properties included on his table justified his conclusion that the discrepancy about Schofields Road was "of no major concern" as on his assessment there were other R3 sales supporting the opinion he formed.
5. The contract valuer's analysis of the Schofields Road sale, on which the Valuer-General acted, involved no error of valuation principle. It involved no error of law. Indeed, on my assessment of it, it involved no error at all, as at best he treated it with caution and as I read his report put it to one side. This error is not made good.
6. Had it been made good, I would have regarded it as an error within jurisdiction. It involved no error of valuation principle. It involved no error of principle or law. It would have been characterised a judgment made in an area where uncertainty reigns and minds are likely to differ on reasonable grounds. There was certainly no illogicality, irrationality or legal unreasonableness in the contract valuer's approach. Moreover, manifestly any such error was not material: the contract valuer and therefore the Valuer-General put the matter to one side.

The Terry Road Sale Ground

1. The Terry Road Property was zoned predominantly R3 Medium Density Residential, with a portion being zoned RE1 Public Recreation and SP2 Infrastructure. The sale price utilised for comparison was an amount of $10,500,000.00 for the entirety of the property. In order to value only the R3 Medium Density Residential portion of the property, the Valuer-General applied a nominal rate of $100/m2 to the 7,700m2 portion of the property that was zoned RE1 and SP2. This yielded the sum of $770,000.00 which was then subtracted from the total sale price and divided by 13,460m2, that being the area of the property that was zoned R3. This resulted in a rate of $723/m2 (IVPS Report at 40, CB 93).
2. I reiterate that part of the Council's argument in regard to this ground is that the Just Terms Act requires that the compensation to be paid to the owner of the Terry Road Property is to be assessed disregarding any increase or decrease in the market value of the property caused by reason of the carrying out of the public purpose - i.e. that the RE1 and SP2 Infrastructure zoning would be disregarded in performing a valuation of the market value of the land. On this argument the only portion of the Terry Road property which should be ascribed a nominal value is the flood prone portion. This principle is sourced from s 56(1)(a) of the Just Terms Act, which is extracted above at [75]. This is the former Pointe Gourde principle. However, that section is concerned with the valuation of acquired land for the determination of statutory compensation. The principle does not in terms apply to the analysis of a previous sale to decide its comparability with the acquired land for the purpose of determining the market value of the acquired land applying the comparative sales method.
3. The Council cites no authority to support the proposition for which it argued. As a matter of statutory interpretation and of principle, I have great difficulty in accepting it. The Valuer-General when employing the comparable sales approach is attempting to compare like with like. Clearly, that calls for a comparison of property zoned R3 with property zoned R3. I can discern no necessary error in terms of the comparative sales method in approaching the matter as the contract valuer did. Leaving aside s 56 which applies specifically for the purpose of determining compensation, it is not obvious to me that a willing but not anxious purchaser acquiring the property as a development site would work on the basis that no discount was due because she or he may have a right to compensation for that portion when acquired by the Council. Like the flood prone section, it is open to find the portion zoned for public purposes would be of no value to a developer as part of a green site for development.
4. Although the ground is presented as involving a matter of valuation principle, I am of the view that that characterisation is infected by fallacious logic. I reiterate that the Pointe Gourde principle as expressed in s 56(1) Just Terms Act is a matter of compensation principle applicable when determining the just compensation payable in respect of the acquired land, the subject of the proceedings. As I have explained it does not inflexibly or invariably apply to the analysis of comparable sales. In my judgment, the adjustment made by the contract valuer is not affected by illogicality, irrationality or unreasonableness in the relevant sense, indeed as I have said, it was one that was open to him.

The Density Restriction Ground

1. I re-iterate that the Council submits that the Valuer-General fell into jurisdictional error by acting irrationally, unreasonably, and contrary to correct valuation principles in failing to account for the price-dampening effect of the proposed introduction of a limit to maximum residential density for the land as foreshadowed in the draft amendments to SEPP 2006. The thrust of the argument is that the Valuer-General (or the contract valuer) was compelled to adjust each of the comparable sales downward in a significant way by reference to that consideration.
2. It would not be accurate to say that the Valuer-General completely disregarded the proposed introduction of density restrictions. Indeed, the IVPS report stated (IVPS report at 28): "A draft amendment was exhibited mid-2017 which proposed to introduce maximum residential densities which, for the subject site, would introduce a maximum density of 35 dwellings per Ha. An excerpt of the Explanation of Intended Effect is shown below: … IVPS has made enquiries with the Department of Planning and Think Planners which confirms that the proposed draft amendment (which is still currently listed as "under consideration") was not formalised as at the date of gazettal being 9 March 2018, due in large part to numerous detailed submissions which were lodged in opposition of the proposal." (Emphasis in original)
3. It is evident that the contract valuer placed little weight on the publication of the draft amendments. Matters of weight, are of course, matters for the judgment of the decision maker. Here, the contract valuer placed weight on the fact that the amendments were not formalised as at the date of the acquisition. The contract valuer was entitled, with respect, to disagree with the Council's valuer's assertion that the draft amendment created a fundamental change in the market (IVPS Report at 62, CB 115). There are two matters of principle underpinning this conclusion.
4. The first is that in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40, Mason J (as the Chief Justice then was) said (at 41-42): "…in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance … [I]n the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits." It seems obvious that a change in planning regulation which reduced the scope for development and therefore its profitability, would also reduce the value of affected land as a potential development site. On the other hand, the contract valuer obviously recognised the potential significance of the draft amendment and made inquiries about its status as at the date of acquisition, doubtless, to make a nuanced assessment of the importance of that consideration. I cannot say that the existence of the draft amendment is "a relevant factor of great importance". This is really a matter where the court needs to exercise the restraint or caution referred to by Mason J. Clearly this was a matter for the judgment of professional valuers, whose views may differ.
5. The second principle relates to the nature of the decision-making process. The Just Terms Act, as informed to the extent applicable by The Valuation Act, provides for a system of determination of compensation to the former owners of acquired land by neutral expert evaluation. In an admittedly somewhat different legislative context, the High Court, in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, said of such a decision-maker at [47]: "The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
6. The contract valuer explained the path of reasoning he followed to reach his opinion. He was not bound to agree with the contrary opinion of the Council's valuer, whose report he obviously had regard to. The weight given to competing opinions was a matter for him. He was not deciding a dispute or exercising an arbitral or adjudicative function. It was not his role to settle differences between competing valuation opinion. His function was to form and give his own opinion on the valuation questions necessary for the determination of the compensation payable to the former owners.
7. The Council also submits that the Valuer-General took into account an irrelevancy when dealing with the proposed density restrictions by reasoning that the draft amendment was a matter to which a consent authority would give little weight when determining a development application.
8. What the IVPS Report actually said was: "2. Any development application lodged between the date of exhibition and the date of gazettal of the acquisition would likely have been assessed with the weight afforded to the draft amendments being limited at that point in time, and determinative weight being given to the existing planning controls"
9. The date on which the market value of the property is assessed is determined as at the date of acquisition, namely 9 March 2018 (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) NSWLR 156 at 175; s 55(a) Just Terms Act).
10. It is relevant to observe that s 4.15 Environmental Planning and Assessment Act 1979 (NSW), inter alia makes the following provision: "(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and …" The draft amendment was clearly a relevant consideration for a consent authority to take into account when assessing a development application in respect of land within the area covered by the "proposed instrument".
11. That an assessment of how the draft amendment might be employed by planning authorities in considering a development application is properly within the province of the professional valuer, in my judgment, is made clear by Callinan J in Boland. When dealing with the "highest and best use" principle at [271] his Honour said: "271 It is now settled, and for good reason, that a dispossessed landowner should be compensated for the value of his or her land on the basis of its highest and best use. In current times, except in the case of non-controversial uses such as perhaps a single dwelling in a residential zone or a corner shop on a site zoned for that purpose, many uses, and most commercial ones require the prior approval of vigilant planning authorities, compliance with often stringent planning controls and the need to meet and refute objections by objectors, including commercial, competitive objectors in political, administrative and legal forums. These may not be the only hurdles that a developer has to leap. It is now a well established planning principle that a planning authority may take into account the likelihood that a particular development will cause blight to other existing developments and the related consideration that before an approval may be granted an applicant for it demonstrate a need for the proposed development."
12. It is not in issue that as the land was to be valued according to an R3 underlying zoning, the potential for development was a relevant consideration in the assessment of its market value. Given that the draft amendment had not been "formalised" and was still under consideration, if not public consultation, the developmental potential in practical terms was a matter likely to affect "the amount that would have been paid for the land" if it had been sold "at the date of acquisition" "by a willing but not anxious seller to a willing but not anxious buyer". Having regard to the considerations identified by Callinan J as relevant to the highest and best use including the need to obtain "the prior approval of vigilant planning authorities", it was legitimate, and indeed to be expected, that the decision maker would make some evaluation of what the Council in its capacity as a consent authority would make of the relevance of the draft amendment. There was no error involved in the contract valuer dealing with the matter in this way. Had it been otherwise, I am of the view that the error made would have been an error within jurisdiction.

The Disturbance Loss Ground

1. Given my conclusion that the Valuer-General has power under the Just Terms Act to redetermine the amount of compensation payable, I am able to state my reasons briefly.
2. The IVPS report provided (IVPS Report at p 9): "Legal fees The revised claim for legal fees totalling $54,420.83 is considered to be at the upper end of a fair range for this type of property and acquisition but has been accepted having regard to the complexity of the matter and its protracted nature, on the basis that it also provides for the post-determination process by the owner's legal representative. As such, this determination includes an allowance of $54,421 for legal fees." (Emphasis in original)
3. In short, the amendment of 27 February 2019 expunged from the determination all amounts included in it that contravened the principle in Hoy. For this reason the Council has failed to establish jurisdictional error on the part of the Valuer-General insofar as it relates to this ground. For reasons I explained below the contravention of the principle discussed in Hoy was a jurisdictional error. It involved a misconstruction of the statute governing the determination of compensation due to dispossessed former owners by the acquisition of their land by an authority of the State. Although only a very small proportion of the total amount assessed and determined as compensation clearly as the redetermination establishes, the determination of compensation would have been different, had the error not been made when the original purported determination was made on 7 June 2018.
4. In Azizi, Payne J considered an identical issue as raised by the Disturbance Loss Ground. His Honour held (at [146]-[152], [160]-[164]) that not only is the inclusion of costs which offend Hoy erroneous as a matter of law, but that such an error amounts to jurisdictional error because it goes beyond what that Valuer-General is empowered to do under the Just Terms Act. His Honour concluded: "160 I do not discern an intention of the legislature that an acquiring authority in the position of the Council is bound by the Valuer-General's decision about value, including amounts payable for disturbance. That is, I am unable to accept, by analogy with the adjudicator under the Security of Payment Act, that the Just Terms Act implicitly confers on the Valuer-General the authority to form an opinion about the interpretation of provisions of the Act that amplify the matters specified in ss 55 and 59 to which regard must be had and to act on an incorrect interpretation of those provisions in determining the amount of compensation under a Determination. … 163 For these reasons I have concluded that the Valuer-General is not empowered by the Just Terms Act to make errors of law of the kind identified in this ground. 164 It follows that the Determinations are affected by jurisdictional error in this limited way and the Council is entitled to an order in the nature of certiorari to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights. The Determinations must be set aside. I will make a declaration in the terms sought by the Council."
5. Mr Hemmings ultimately accepted in his written submissions of 20 December 209 that, absent a conclusion that the Valuer-General has power to issue a redetermination, this Court would likely conclude that the original determination was infected by jurisdictional error based on Payne J's reasoning in Azizi. But of course that is of no moment given my conclusion as to the availability of a power to redetermine.

The Development Potential Ground

1. In its calculation of disturbance loss, the contract valuer included sums for the former owners' relocation costs and for stamp duty. The IVPS report stated (IVPS Report at 9-10, CB 63-64): "Relocation costs An allowance for relocation costs of $142,000 has been adopted, as per the recommendations contained within the independent report prepared by HGR Consulting Pty Ltd (see Annexure G.3). … Stamp duty This determination includes an allowance for stamp duty, however, as the subject property is considered to be a potential redevelopment site under its underlying residential zoning, in order to realise the maximum market value it is considered that the owners will need to sell the property and relocate - therefore the amount of stamp duty has been calculated based on an equivalent size to rule home site value (without urban development potential) of $3 million, not the value derived from the highest and best use as a potential urban development site. See Annexure G.3 for further information."
2. Section 61 of the Just Terms Act provides: "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) 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."
3. Paying due regard to the caution given by Preston CJ of LEC in El Boustani at [85]-[86], the historical rationale for s 61 might still best be explained by the decision of the English Court of Appeal in Horn v Sunderland Corporation [1941] 2 KB 26. In that decision, Sir Wilfrid Greene MR said (at 35): "In the present case the respondent was occupying for farming purposes land which had a value far higher than that of agricultural land. In other words, he was putting the land to a use which, economically speaking, was not its best use, a thing which he was, of course, perfectly entitled to do. The result of the compulsory purchase will be to give him a sum equal to the true economic value of the land as building land, and he thus will realize from the land a sum which never could have been realized on the basis of agricultural user. Now he is claiming that the land from which he is being expropriated is for the purpose of valuation to be treated as building land and for the purpose of disturbance as agricultural land, and he says that the sum properly payable to him for the loss of his land is (a) its value as building land plus (b) a sum for disturbance of his farming business. It appears to me that, subject to a qualification which I will mention later, these claims are inconsistent with one another. He can only realize the building value in the market if he is willing to abandon his farming business to obtain the higher price. If he claims compensation for disturbance of his farming business, he is saying that he is not willing to abandon his farming business, that is, that he ought to be treated as a man who, but for the compulsory purchase, would have continued to farm the land, and, therefore, could not have realized the building value." In substance, the qualification that his Lordship referred to (see 39), put in the context of the present case, is that the claims would not be inconsistent if the amount in fact assessed as compensation on the acquired land's potential to be sold as R3 land for development does not exceed its value in its current use as residential acreage with an allowance for disturbance. This follows from the "best and highest use" principle. It is beyond question that the qualification does not apply in the present case.
4. As Biscoe J said in Attard v Transport for NSW [2014] NSWLEC 44 (at [159]) ("Attard"): "The purpose of s 61 is to present [sic] a perceived inconsistency in a particular claimant - normally the owner of the land - claiming the enhanced market value of land arising from its different development potential, the realisation of which would necessitate financial loss (such as relocation costs), and also claiming that financial loss." As the dictum of the Master of the Rolls in Horn and Biscoe J's observation in Attard demonstrate the purpose of s 61 is to avoid a former owner approbating and reprobating for the purpose of the claim for compensation. Like is to be treated with like.
5. It is not uncommon when performing a valuation of land to include an uplift for its development potential. What that uplift might be depends on the characteristics of the land. If the land is practically ready to be developed, such that a hypothetical willing but not anxious property developer would acquire it at a premium knowing that they might be able to develop the land in a relatively short time span, the valuation of the land will include such a premium. Where the prospects of development are more remote - say for example it is contingent on the development of infrastructure or services in the area - then it is generally more appropriate that the land be valued disregarding the development premium but instead with an uplift in value to account for the prospect of development.
6. Section 61 of the Just Terms Act is the statutory embodiment of the principle established in Horn v Sunderland Corporation. The principle was dealt with in quite some detail in El Boustani by Preston CJ of LEC (with whom Beazley P and Gleeson JA agreed). In an influential passage his Honour explained the interplay of s 59 dealing with disturbance and s 61 at [96] to [100]: "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. 97 The second temporal component comes from the word "potential". As a noun, "potential" refers to the possibility or potentiality as opposed to the actuality. The word is used in the chapeau to describe the possibility that land be used for a purpose other than the purpose for which it is currently used. But the use of the word "potential" in such a description is silent on when the land could be used for that other purpose. Put another way, what degree of temporal proximity of the potential or ripeness for development for that other purpose is required by s 61? 98 The proximity or conversely remoteness of the potential for development for the required other purpose obviously affects the market value of the land. The more proximate, the higher the uplift in the value for the potential; the more remote; the lower the uplift in value for the potential. 99 The ambiguity in the temporal proximity required by the word "potential" alone may, however, be resolved once the word is considered in the context of the language of the chapeau and the particular requirements of the precondition imposed by the chapeau. The precondition is that the market value of the land must be assessed "on the basis" that the land had potential to be used for a purpose other than the purpose for which the land is currently used. This precondition will be satisfied if the potential for development for the other purpose is temporally very proximate - the land is ripe and would be virtually certain to be developed for the other purpose within the very near future. In such circumstance, the market value of the land will be assessed on the basis that the land is to be used for the other purpose and not for the purpose of the current use. 100 However, if the land is unlikely to be developed for that other purpose for a long time and there is considerable uncertainty that it would be so developed for that purpose, the precondition will not be satisfied. The market value of the land will be assessed on the basis that the land is to be used for the purpose of the current use, with perhaps some addition on account of the hope that at some time in the future it will be profitable to develop it: see Myers v Milton Keynes Development Corporation at 705. The addition of any hope value to the market value the land has for its current use does not satisfy the precondition in s 61. True it is that the hope value could be said to represent some potential for the land to be used for the other purpose, albeit a long time in the future, and it is a component of the aggregate that makes up the market value of the land. But the market value is assessed primarily on the basis that the land is to be used for the purpose of the current use. Whilesoever the market value of the land is based on the current use of the land, the precondition is not satisfied - the market value is not based on a use for a purpose other than that for which it is currently used. The consequence is that the potential of land to be used for a purpose other than that for which it is currently used will need to be sufficiently temporally proximate or ripe in order for the precondition in s 61 to be satisfied."
7. The decision in El Boustani is of course binding on me just as it has been binding on judges of the Land and Environment Court sitting as "judicial valuers". In particular, emphasis has been placed in subsequent cases upon the expression in [99]: "temporally very proximate - the land is ripe and would be virtually certain to be developed for the other purpose within the very near future". For instance, in Attard, Biscoe J made allowances for disturbance when he had determined market value of the former owner's rural residential acquired land on the basis that it was virtually certain it would be rezoned for residential sub-division about 2.5 years after the resumption. His Honour did not regard that period as "temporally proximate" or "ripe for development": Attard at [152].
8. In De Battista v Transport for New South Wales [2014] NSWLC 39 ("De Battista"), Pain J held that s 61 had been engaged because the acquired land at the date of acquisition had been used as rural residential acreage and its value had been assessed on its potential to be used for low to medium residential development. Her Honour also accepted evidence that the potential to develop the land for low to medium density residential housing was "temporally proximate". However, her Honour, nonetheless, made an allowance for disturbance as she was not satisfied that s 61(b) applied because she accepted evidence that the former owner would have preferred to remain on her previous residence and that the development could have been undertaken around her. She was therefore not satisfied that the matters allowed for disturbance represented, in the circumstances of the case, "financial loss that would necessarily have been incurred in realising that potential". Given the evidence she preferred, her Honour was not satisfied that relocation costs and stamp duty would inevitably have been incurred: De Battista at [117]-[121].
9. In my judgment one should not read the passage I have quoted from Preston CJ of LEC's judgment in El Boustani too literally. His Honour was explaining the meaning and operation of the statute and it is to the language of the statute that one must always return lest his Honour's exposition operates as a gloss on the statutory language. "Temporally very proximate" or "ripe" and "very near future" are all relative terms. The timeless quality of an interest in land and the nature of land itself must be borne in mind. The expressions of temporal proximity need to be considered in juxtaposition with the expression "for a very long time" (in [100]). So much is made clear by his Honour's reference to Pike v Minister of Housing (1979) 20 LCR 166 (at [101]).
10. The important consideration arising out of what was said by Preston CJ of LEC at [99] and [100] is that for present purposes the real questions are: (a) has the market value of the land been assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used; and if so, (b) do the items claimed for disturbance represent financial loss that would necessarily have been incurred in realising that potential? If both of these questions are answered affirmatively, the question then becomes, did the Valuer-General fall into error by accepting the contract valuer's recommendation that the loss for relocation and stamp duty be allowed as disturbance, and if so, was that error jurisdictional?
11. The Valuer-General considered a town planning report prepared on behalf of the former owners which inter alia included draft concept designs for potential development on the site if it were zoned R3 (IVPS Report at 29, CB 82). These designs were explained as follows: "This is to demonstrate two (2) potential design outcomes and development yields on the basis of the planning controls that would apply to and R3 zoned land parcel. The sketches show the following options: Residential Flat Building Development A total of 312 dwellings in the residential flat building scheme on the site; A four (4) storey height, consistent with a 12m overall building height; A series of 6m street frontage setbacks and generally suitable building separation across the site; The R3 zoning supports the above development given that residential flat buildings are permitted in the zone and height of up to 4 storeys could be accommodated on the site. Townhouse Development A total of 93 dwellings in the townhouse scheme on the site; 2 storey height, consistent with the 12m overall height and DCP controls relating to townhouses; A series of building pods over a basement parking area. The R3 zoning supports the above development given that townhouses are permitted in the zone."
12. The IVPS Report concluded, under the heading "Highest and best use" (IVPS Report at 35, CB 88): "As the RE1 Public Recreation and SP2 Infrastructure zonings are a public purpose zoning, it is considered a step in the acquisition process. Consequently, it is an established principle as interpreted under Section 56 of the Land Acquisition (Just Terms Compensation) Act 1991 and in case law that the Market Value must consider how the land would have been zoned but for the public purpose. In this regard, this determination has adopted the underlying zoning of R3 Medium Density Residential. This is consistent with the zoning of immediately adjoining and surrounding properties to the west, north and east; and is also consistent with the town planning advice prepared by think planners dated 31 August 2017 and 15th February 2018, and ARPL dated 10 November 2017. Based on the underlying R3 Medium Density Residential zoning, the highest and best use is considered to be a site with development potential for a medium density residential development, consistent with the planning controls and surrounding development." (Emphasis in original)
13. The second paragraph in the extract quoted above shows that the Valuer-General proceeded on the basis that the land was to be valued on its highest and best use, which was as a site with development potential for a medium density residential development.
14. The IVPS Report continued, under the heading "Improvements" (IVPS Report at 38, CB 91): "Given that the highest and best use of the subject land is considered to be potential medium density residential development, consistent with the underlying zoning of R3 Medium Density Residential and surrounding development, the improvements (including the dwelling and machinery shed) are considered to be of nominal value. In our opinion, any nominal added value of the building improvements would be offset by future demolition / removal costs. …"
15. To ascribe nominal value to the existing improvements because they would have to be demolished to enable development and to acknowledge that the value would be offset by demolition and removal costs shows without any doubt that the basis on which the IVPS Report determined the market value of the land was one that engaged s 61 of the Just Terms Act.
16. The IVPS Report made pellucidly clear that as the subject property is considered to be a potential redevelopment site under its underlying zoning, in order to realise the maximum market value, the former owners would need to sell the property and relocate (see quote extracted above at paragraph [118] under the heading "Stamp Duty")
17. More fundamentally, the approach adopted by the contract valuer involved the distillation of a rate per square based on comparable sales of properties that were themselves selected for their development potential.
18. That said, under the heading "Services", the IVPS Report stated (IVPS Report at 39): "Regarding services to enable residential development of the subject property, on adopting an R3 Medium Density Residential underlying zoning, information from Sydney Water indicates servicing (primarily sewer and water) is generally dependent on residential development of adjoining and nearby properties. Plans from Sydney Water indicate 'sewer lead-in' in available at the rear of nearby properties at [XX] and [XX] Tallawong Road (approximately 50-100 metres north-west of the subject property), whilst 'watermain lead-in' is available at the intersection of Tallawong Road and Macquarie Road (approximately 100 metres north of the subject property). Therefore, it appears unlikely that residential development can commence on the subject property within the next two years, given development has not commenced (nor have development approvals been granted) on adjoining properties." (Underlining added)
19. Further, in response to a submission from the Council that the inclusion of relocation costs offended s 61, the IVPS Report stated (IVPS Report at 61, CB 114): "As such, the allowance for disturbance and disadvantage resulting from relocation is considered appropriate given the redevelopment is not considered to be temporally proximate. … As noted above, "the Courts have held that section 26 confers a discretion on the Valuer General in determining compensation …". We reiterate that discretion has been exercised, and the allowance for disturbance and disadvantage resulting from relocation remains unchanged."
20. Notwithstanding what seem to me to be the rather contradictory statements quoted above at paragraph [135]-[136], the fact remains that the Valuer-General assessed the land on the basis that in order to realise the maximum market value for the property, the former owners would need to sell the property and relocate. The land was assessed on the basis that it would be sold to a property developer for redevelopment, which, to apply the terms of s 61, is a use for a purpose other than that for which it was used at the time of acquisition.
21. It is of no moment that s 26 confers on the Valuer-General a discretion in relation to disturbance. That discretion relates to whether or not to take into account disturbance loss. It does not permit the Valuer-General to include an amount in his or her determination of compensation for disturbance loss that is otherwise precluded from being taken into account by the Just Terms Act.
22. As I have said, the question is not whether the first sod on the development site could have been turned the day following the date of acquisition. It seems to me that undue focus on expressions like "temporally proximate", "ripe" and "within the very near future" are capable of diverting attention from the language of the statute. Questions of that nature are really logically anterior to the question whether the land should be valued according to its development potential. Taken out of context they are likely to divert attention, as I have said, from the questions the statute poses.
23. There can be no doubt that the market value of the acquired land as at the date of acquisition on which the Valuer-General proceeded gave what might be regarded as "full freight" for its potential to be used for the purpose of medium density housing development in accordance with the underlying zoning of R3. It also follows, that the question I have posed whether relocation costs and stamp duty are financial losses that would necessarily have been incurred in realising that potential must also be answered in the affirmative. If this is correct, s 61 was fully engaged and the relocation costs and stamp duty on the former owner's new home were not losses attributable to disturbance.
24. The Court of Appeal (Tobias JA, Allsop P and Sackville AJA agreeing) said in Sydney Water Corporation v Caruso [2009] NSWCA 391 (at [185]): "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)."
25. In expressing myself as I have, I have not lost sight of the Court's limited role in exercising its supervisory jurisdiction. I have not lost sight of the fundamental consideration that it is simply impermissible for the Court to engage in a form of merits review. Rather, I have expressed myself as I have because it seems to me that when one considers the findings of fact actually made by the contract valuer, founding his recommendations upon which the Valuer-General acted, this ground has been made good on the basis that it falls into that category of case where the facts as found necessarily fall outside the statutory description. That is to say, on the facts as found only one conclusion was necessarily open on the law properly understood. For the reasons explained by Payne J in Azizi at [160]-[164] there is jurisdictional error vitiating the determination of compensation carried out by the Valuer-General. The nature of the error may also be expressed as a misconstruction of the governing statute.
26. It may also be said that the Valuer-General fell into jurisdictional error by reliance on the recommendation of the contract valuer by asking himself the wrong question. Once market value was determined by reference to the acquired land's development potential for medium density housing and it had been determined that for that potential to be realised, it would be necessary for the former owners to relocate, it was simply irrelevant to ask whether realisation of the potential was temporally proximate and to answer that question in the negative with regard to the consideration that it was unlikely that residential development could commence on the acquired property within the next two years. In view of the findings already made, as I have said, that question simply did not arise for consideration.

Conclusion

1. It is obvious that Council has enjoyed success in respect of two discrete allowances only; relocation costs and stamp duty. Together these items total $292,490.00. This is not an insignificant sum in absolute terms, but it represents only 1.8% of the total determination; a very small proportion of the total compensation indeed. As I observed at [5] above, the parties eschewed any reliance on the de minimis principle (on discretionary grounds) or any doctrine of severability. However, in the circumstances I think it fair to observe that in remitting the matter for redetermination according to law, I should not be taken as indicating that it is necessary for the Valuer-General or the contract valuer to whom the work is assigned to start again with an entirely blank slate. The work previously done by the parties and by the contract valuer need not be replicated. The work has to be reviewed so that the errors identified can be corrected. As Payne J accepted (Azizi [165]), given that a fresh decision is required, if new material is provided it would have to be considered. But expressing my own view, it seems to me that the remitter is not really the occasion for a second run over the whole of the target. In the end, these are matters for the Valuer-General in the discharge of his statutory obligations.
2. The Council has succeeded in establishing jurisdictional error on the part of the Valuer-General. I will make orders giving effect to the agreement by the parties that, should this Court find that the determination was infected by jurisdictional error, then the entire determination ought to be sent back to the Valuer-General for redetermination.
3. It is implicit in the findings I have made that the original determination of 7 June 2018 is void and of no effect for the reasons given by the High Court in Bhardwaj. However, for completeness and clarity I think it appropriate to make a declaration to that effect. I also make a declaration to the effect that the redetermination of the 27 February 2019 is void and of no effect.
4. I am conscious that in Azizi Payne J made a special order as to costs. I am also conscious that in their written submissions of 20 December 2019, the former owners make a qualified application for the same order. The errors I have found do not conform with the condition contemplated by counsel for the former owners. I propose to make the usual order as to costs, but I will reserve liberty to all parties to apply for any variation for which they wish to contend.
5. Accordingly, the Court makes the following orders: 1. Declare that the Determination of Compensation made by the third defendant, the Valuer-General, (Valuer-General's Reference VV GC.JT02515) dated 7 June 2018 is void and of no effect; 2. Declare that the redetermination of compensation made by the third defendant, the Valuer-General, (Valuer-General's reference VVGC.JT02515) dated 27 February 2019 is void and of no effect. 3. Order that the third defendant determine the amount of compensation to be offered to first and second defendants in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). 4. Unless any party makes application for a different or special order as to costs in writing within 14 days order the first and second defendants to pay the plaintiff's costs of the proceedings. 5. Any application for a special or different order for costs is to be made by lodging any relevant affidavit evidence and written submissions with my chambers within the said period of 14 days. Responding parties who wish to oppose the order sought are to lodge any evidence in reply and written submissions within a further period of 14 days after service on them of the moving party's material. 6. Any application for a special or different order as to costs is to be determined on the papers in chambers in the absence of the parties.

Endnote

1. 1 Clauses 1.4 and 5.1(2) of Appendix 12 (the Blacktown Growth Centres Precinct Plan) to the State Environmental Planning Policy (Sydney Growth Centres) 2006 ("SEPP 2006") designate the Council as the relevant acquiring authority. 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: 17 January 2020