Bligh Consulting Pty Ltd v Ausgrid - [2016] NSWLEC 75 - NSWLEC 2016 case summary — Zoe

NSWNSWLEC

Bligh Consulting Pty Ltd v Ausgrid

[2016] NSWLEC 75

Land and Environment Court (NSW)|2016-03-18|Before: Pain J, Mr P, Ms J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2016-03-18

Before

Pain J, Mr P, Ms J

Catchwords

(2006) 153 LGERA 136 Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd [1947] HCA 10
(1947) 74 CLR 358 Davies v Sydney Water Corporation [2012] NSWLEC 130 Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547
(1981) 50 LGRA 334 Marshall v Director-General, Department of Transport [2001] HCA 37
(1999) 9 BPR 17,011 Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7

Source

Original judgment source is linked above.

Catchwords

(2006) 153 LGERA 136 Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd [1947] HCA 10(1947) 74 CLR 358 Davies v Sydney Water Corporation [2012] NSWLEC 130 Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547(1981) 50 LGRA 334 Marshall v Director-General, Department of Transport [2001] HCA 37(1999) 9 BPR 17,011 Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7(2006) 212 LGERA 307 Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 Roads and Traffic Authority (NSW) v Perry [2001] NSWCA 251(2001) 52 NSWLR 222 Sydney Water Corporation v Caruso [2009] NSWCA 391(2009) 170 LGERA 298 Vilro Pty Ltd v Roads and Traffic Authority (NSW) [2010] NSWLEC 234(2010) 179 LGERA 47 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5(2008) 233 CLR 259 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156

Judgment (39 paragraphs)

[1]

[3]

The statutory framework - Land Acquisition (Just Terms Compensation) Act 1991

Section 3(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("JT Act") provides: 3 Objects of Act (1) The objects of this Act are: (a) to guarantee that, when land affected by a proposal for acquisition by an authority of the State is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal) at the date of acquisition, and (b) to ensure compensation on just terms for the owners of land that is acquired by an authority of the State when the land is not available for public sale, and (c) to establish new procedures for the compulsory acquisition of land by authorities of the State to simplify and expedite the acquisition process, and (d) to require an authority of the State to acquire land designated for acquisition for a public purpose where hardship is demonstrated, and (e) to encourage the acquisition of land by agreement instead of compulsory process.
"Public purpose" is defined in s 4 as "any purpose for which land may by law be acquired by compulsory process under this Act".
Section 4 of the JT Act defines "land" as "any interest in land".
Section 54 (1) of Pt 3 Div 4 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.
Section 55 provides: 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) solatium, (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.
Section 56 (1) provides: 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.
Section 59 defines "loss attributable to disturbance" for the purpose of s 55(d) as: (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) valuation fees reasonably incurred by those persons in connection with the compulsory acquisition of the land, …
Bligh claims compensation pursuant to s 55 (a) market value, (d) disturbance and (f) decrease in value of adjoining land by reason of the carrying out of the public purpose for which the land was acquired. The amount of disturbance has been agreed at $232,000. Bligh was owner and, at the date of acquisition, sublessee of the land. The net lettable area ("NLA") is 1,086 m2. The building at 31 Bligh Street is heritage listed and cannot be demolished and replaced. The site therefore has very limited development potential and cannot be increased in height or depth.
The building at 31 Bligh Street is comprised of a basement and four levels above ground. The floor plans of the building and photographs of the interior with descriptions were included in the Court Book. The ground floor consists of the entrance lobby, reception, lecture hall and kitchen. The lecture hall is the Institute's primary events space. On the first floor is an office used by the chairman, the board room which is used as a secondary events space, the lounge room which is used for meetings, and a kitchen. The second floor is comprised of a number of smaller offices. On the third floor are a larger office, a kitchen and the library which also contains desk space for employees. The basement consists of open plan workspace as well as a kitchen and plant room.
At the date of acquisition Bligh sub-subleased 31 Bligh Street to the Institute. The Institute's lease: 1. had a term expiring on 30 September 2014; 2. provided for a monthly holding over in cl 3 of the Institute's lease; 3. provided the option to renew the lease on certain terms.
The separate proceedings commenced by the Institute were settled in February 2016.

[4]

The terms of easements acquired

On 8 August 2014, three acquisition notices were published in the NSW Government Gazette for the acquired easements as follows: AUSGRID declares with the approval of Her Excellency the Governor with the advice of the Executive Council that the easement described in Schedule 1 below is acquired by compulsory process under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of exercising its functions under the Electricity Supply Act 1995 in respect of the building demolition, site excavation, and construction by Ausgrid of the integrated substation development (being the 'City East Zone Substation'), as authorised under the Electricity Supply Act 1995. …
Schedule 2 of each of the notices set out the terms of the easements as follows: Terms of Easement for Crane Swing 1. Definitions Unless the contrary intention appears in this easement, the following terms have the following meanings in this easement: Ausgrid means Ausgrid as constituted from time to time, and includes its successors and assigns, any administrator thereof or other person appointed by or on behalf of the New South Wales Government or any Minister thereof or any body in which Ausgrid is merged or which as at the relevant time substantially fulfils the functions of Ausgrid. Authorised Users means every person authorised by Ausgrid for the purposes of this easement, and includes any successors, transferees, contractors, licensees, representatives, employees and agents of Ausgrid. Burdened Land means the land burdened by this easement. Development Site means the land comprised in certificate of title folio identifier 1/626651. 2. Terms of the Easement for Crane Swing Ausgrid and all of its Authorised Users have full and free right to encroach upon the airspace above the Burdened Land from the Development Site for the purpose of: (a) setting up and dismantling a tower crane; (b) slewing, suspending and swinging a tower crane for the purpose of carrying out the development works on the Development Site; and (c) having a tower crane overhang in the airspace, provided always that Ausgrid will use all reasonable endeavours to cause as little disturbance to the Burdened Land as possible and if it causes damage to the Burdened Land in exercising its rights under this easement it will make good that damage at its cost. 3. Release On completion of works on the Development Site. Ausgrid must release this easement. Terms of Easement for Rock Anchors 1. Definitions Unless the contrary intention appears in this easement, the following terms have the following meanings in this easement: Ausgrid means Ausgrid as constituted from time to time, and includes its successors and assigns, any administrator thereof or other person appointed by or on behalf of the New South Wales Government or any Minister thereof or any body in which Ausgrid is merged or which as at the relevant time substantially fulfils functions of Ausgrid. Authorised Users means every person authorised by Ausgrid for the purposes of this easement, and includes any successors, transferees, contractors, licensees, representatives, employees and agents of Ausgrid. Burdened Land means the land burdened by this easement. Development Site means the land comprised in certificate of title folio identifier 1/626651. Rock Anchors means rock anchors, rock pinning, rook nails and other structures for the purpose of supporting or protecting works on the Development Site and underpinning and supporting improvements erected on the Burdened Land. 2. Terms of the Easement for Rock Anchors Ausgrid and all of its Authorised Users have full and free right with tools, implements and machinery necessary for the purpose to enter that part of the Burdened Land beneath the surface of the land identified in the plan as "proposed easement for rock anchors" (which is limited in height and depth), underground from the Development Site for the purpose of constructing, placing, leaving, inspecting, repairing, maintaining and de-stressing Rock Anchors or any parts thereof within that part of the Burdened Land provided always that Ausgrid will use all reasonable endeavours to cause as little disturbance to the Burdened Land as possible and if it causes damage to the Burdened Land in exercising its rights under this easement it will make good that damage at its cost. Prior to the release of this easement Ausgrid must ensure that Rock Anchors or any parts thereof within the Burdened Land placed pursuant to this easement will be de-stressed. After destressing such redundant Rock Anchors or any parts thereof will remain in situ and form part of the Burdened Land, until such time as they may be removed by any registered proprietor of the Burdened Land. Terms of Easement for Scaffolding 1. Definitions Unless the contrary intention appears in this easement, the following terms have the following meanings in this easement: Ausgrid means Ausgrid as constituted from time to time, and includes its successors and assigns, any administrator thereof or other person appointed by or on behalf of the New South Wales Government or any Minister thereof or anybody in which Ausgrid is merged or which as at the relevant time substantially fulfils the functions of Ausgrid. Authorised Users means every person authorised by Ausgrid for the purposes of this easement, and includes any successors, transferees, contractors, licensees, representatives, employees and agents of Ausgrid. Burdened Land means the land burdened by this easement. Development Site means the land comprised in certificate of title folio identifier 1/626651. Scaffolding means a temporary structure, including access platforms, working platforms, catch platforms, landing platforms, chainmesh and shade cloth mesh, and incorporates elements of scaffolding systems as detailed using the principles of engineering design, supported on: (a) the ground; (b) a class B hoarding structure; (c) a cantilevered support structure; (d) adjacent property roof structure(s); or (e) any combination of the above as may be applicable, and braced as required using scaffold ties, anchorages and components as determined by principles of engineering design. 3. Terms of the Easement for Scaffolding Ausgrid and all of its Authorised Users have full and free right to access and remain on that part of the Burdened Land identified in the plan as "proposed easement for scaffolding" (which is limited in height and depth) with tools, implements and machinery necessary for the purpose to attach, place, leave or install Scaffolding and repair, maintain or remove such Scaffolding provided that Ausgrid will use all reasonable endeavours to cause as little disturbance to the Burdened Land as possible and if it causes damage to the Burdened Land in exercising its rights under this easement it will make good that damage at its cost. 3. Release On completion of works on the Development Site, Ausgrid must release this easement. (Emphasis added.)
The crane easement and the rock anchor easement do not interfere with any development potential of 31 Bligh Street.

[5]

Chronology

The parties agreed a lengthy chronology of events which has been truncated by the Court as follows: 1. 31 October 1978 - commencement of lease between Abbey Victoria Properties Pty Ltd (Lessor) and the National Trust (New South Wales) (Lessee) (R320497). Bligh is now the Lessor (lease dated 22 September 1978). Expires 30 October 2058. 2. 31 October 1978 - commencement of sublease between the National Trust (New South Wales) (Sublessor) and Kragness Pty Ltd (Sublessee) (R320499) (Note: Signed 22 February 1979). Bligh is now the Sublessee (lease dated 22 February 1979). Expires 29 October 2058. 3. 26 July 2001 - development approval D/2001/00317 in respect of 20-26 O'Connell Street - Stage 1 commercial building envelope on the site with a floor space ratio ("FSR") of 12.5:1, a height of 190m, and 41 car spaces. 4. April 2003 - the Institute founded by Mr Lowy. 5. 2003/2004 - Bligh purchased 31 Bligh Street to be the home of the Institute. 6. 2003/2004 - capital works undertaken by Bligh to restore, fit out and furnish 31 Bligh Street to make it suitable for the Institute. 7. 11 August 2004 - deed of Trust between Bligh Consulting Pty Ltd (Trustee) and Bligh Institute Pty Ltd (Beneficiary) declaring that the Trustee holds the land in trust for the Beneficiary (Note: Bligh Institute Pty Ltd now LFG Investments Pty Ltd). 8. 1 October 2004 - commencement of sub-sublease between Bligh (Lessor) and the Institute (Lessee) (AC82479B), expiring 30 September 2009. 9. October 2004 - the Institute occupied 31 Bligh Street. 10. 26 May 2005 - development approval D/2004/873 in respect of 20-26 O'Connell Street and 33-35 Bligh Street for Stage 2 development to demolish the existing commercial buildings and erect a new 30 storey commercial tower with ground level retail and basement car parking. 11. 2006 - hoardings are in place around 33 Bligh Street. 12. July 2007 - the buildings on 33 Bligh Street become vacant. 13. 30 October 2008 - Investa Properties, who was then the owner of 33 Bligh Street (also known as 20-26 O'Connell Street), obtained deferred commencement approval for the "demolition of the existing commercial building and construction of a 205 m tall commercial building comprising: 28,023m2 of floorspace; through site pedestrian link between Bligh and O'Connell Street; basement car parking for 41 cars; and ground level retail space…" 14. 7 November 2008 - development approval D/2007/2027 in respect of 20-26 O'Connell Street for demolition of the existing commercial building on the site, known as "Kindersley House", and construction of a 205m high commercial building comprising 28,023m2 of floor space over 26 commercial levels; basement level parking for 41 vehicles and provision of a ground floor through site pedestrian link and 168m2 of retail space. 15. 2009 - heads of agreement between Energy Australia and Investa. 16. June 2009 - Investa Properties sold 33 Bligh Street to Ausgrid but retained rights to construct a high rise office tower in the airspace above Ausgrid's proposed substation. 17. 20 September 2009 - Minister for Planning granted concept approval for the Sydney CityGrid Project under s 75O of the Environmental Planning and Assessment Act 1979 (EP&A Act). 18. 1 October 2009 - commencement of sub-sublease AF698892H (being lease of lease R320499) between Bligh (Lessor) and the Institute (Lessee), expiring 30 September 2014 with option to renew for a further 5 years. 19. Mid 2010 - Bligh and the Institute first informed by Ausgrid about the proposed project at 33 Bligh Street. 20. Mid to late 2010 - the Institute and Bligh make submissions to the Department of Planning. 21. July 2010 - environmental assessment report for Stage 2A(i) of the City East Zone Substation (publicly exhibited 22 July 2010 to 23 August 2010). 22. 4 November 2010 - modification to concept approval under s 75W of the EP&A Act. 23. Mid 2011 - discussions between Ausgrid, Bligh and the Institute regarding possible acquisition of 31 Bligh Street. Ausgrid notified Bligh and the Institute that it required certain access rights in respect of 31 Bligh Street. 24. 13 July 2011 - modification to concept approval under s 75W of the EP&A Act. 25. 13 July 2011 - Director-General approved Stage 2A(i) of the Sydney CityGrid Project under s 75J of the EP&A Act (relating to the demolition of the existing building (Kindersley House) at 33 Bligh Street and site preparation). 26. 12 August 2011 - Director-General's Environmental Assessment Requirements for Proposed Sydney CityGrid Project Stage 2A(ii). 27. 19 September 2011 - Ausgrid announced the final design of the electrical substation and integrated commercial tower development on the Site to be delivered with Investa. 28. Late 2011 - negotiations between Ausgrid, Bligh and the Institute in relation to an Adjoining Owners Deed regarding access rights in respect of 31 Bligh Street and possible relocation of the Institute (and/or parts of its operations). 29. February 2012 - environmental assessment report for Stage 2A(ii) (publicly exhibited from 29 February 2012 to 30 March 2012). 30. 19 March 2012 - adjoining Owner's Deed - 28-34 O'Connell Street, between Ausgrid and ACE Insurance Ltd. 31. 12 April 2012 - adjoining Owner's Deed - 37 Bligh Street, between Ausgrid and Owners of Strata Plan No. 58859. 32. 25 May 2012 - submissions response and preferred project report prepared by Ausgrid. 33. December 2012 - Director-General's Environmental Assessment Report provided in relation to Ausgrid's Proposed Development. 34. 11 December 2012 - Deputy Director-General approved Stage 2A(ii) of the Sydney CityGrid Project under s 75J of the EP&A Act. This approval was for (amongst others) the construction and operation of the City East Zone substation and integrated commercial tower including a five level basement, a substation extending to 45.68m above Bligh Street and an integrated commercial tower located above the substation with a height of approx.161.73m and 28,050m2 of floor space. 35. Late 2013 - negotiations between Ausgrid, Bligh and the Institute regarding an adjoining owner's deed ceased. 36. 30 March 2014 - date when five year option in the lease between Bligh and the Institute was required to be exercised (according to Ausgrid). 37. 14 April 2014 - proposed acquisition notices issued by Ausgrid to Bligh as sublessee and as owner. 38. 25 June 2014 - Bligh requested further details about easements to be acquired and works proposed. 39. 7 July 2014 - Ausgrid response to request for further details about easements and works. 40. 14 July 2014 - Bligh and the Institute request further details about use of proposed easement. 41. 15 July 2014 - Ausgrid response to request for further details - that proposed easements are for the construction of the substation and that the developer of the commercial tower would have to negotiate access requirements with Bligh and the Institute if required. 42. 18 July 2014 - claim for compensation pursuant to s 39 of the JT Act lodged by Bligh. 43. 8 August 2014 - easements compulsorily acquired by Ausgrid. Acquisition notices published in the Gazette. 44. 29 September 2014 - the Institute notifies Bligh through its Solicitor that it presently does not intend to exercise its option to renew the lease. 45. 29 September 2014 - letter from Bligh to the Institute consenting to the Institute occupying 31 Bligh Street on a holding over basis. 46. 30 September 2014 - Bligh Institute sub sublease terminates. The Institute remained in 31 Bligh Street on a holding over basis until 11 December 2015. 47. 2 October 2014 - Valuer General's Notice of Determination of compensation for Bligh. 48. 4 November 2014 - letter from Ausgrid to Bligh providing written notice of the Valuer General's determination and enclosing a compensation notice. 49. 2 February 2015 - class 3 application filed by Bligh. 50. 5 February 2015 - Contract for demolition works between Ausgrid and Metropolitan Demolitions Group signed. 51. 11 March 2015 - Ausgrid served Demolition notices to residents and businesses. 52. 20 March 2015 - the Institute staff inspect alternative office spaces. 53. 26 March 2015 - the Institute staff inspect further alternative office spaces. 54. 21 May 2015 - 1 Bligh Sydney - Leasing Proposal - the Institute. 55. 1 August 2015 - lease over 1 Bligh Street between Perpetual Trustee Company Limited (as Lessor) and the Institute (as Lessee) commences (1 Bligh Street Lease) (which is to terminate on 31 July 2019 with option to renew for a period of 2 x 1 year). 56. 16 September 2015 - 1 Bligh Street lease entered into (commencement date 1 August 2015). 57. 11 December 2015 - the Institute relocates from 31 Bligh Street to 1 Bligh Street.
The work program for 33 Bligh Street as identified in the "Overall Programme and Buildability Report" dated 26 June 2014 prepared by Cadence Australia Pty Ltd on behalf of Ausgrid and Investa provides: MILESTONE PLANNED DATE Commitment to commence design work 16 September 2014 Start Demolition 25 November 2014 Design complete to 70% 21 May 2015 Bulk Excavation complete to Basement 1 29 June 2016 Tunnel excavation Complete 13 February 2017 Structure to L11 completed 09 March 2018 CEZS Base Building PC (Gross) 24 April 2019 CEZS fit out completed and commissioned (Gross) 20 April 2021

[7]

Lay evidence

The affidavit of Ms Ng Chief Operating Officer of the Institute dated 16 April 2015 was read in part by Bligh. Her affidavit attests to the establishment and work of the Institute, its reputation, its plans for future growth and its not for profit status. Ms Ng gives evidence as to the Institute's premises at 31 Bligh Street and its use as a research centre and events space, as well as the interior fit out of the building. Ms Ng describes the way the façade of 31 Bligh Street has been used in promotional material for the Institute. In Ms Ng's opinion due to the works at 33 Bligh Street, the Institute was unable to remain at 31 Bligh Street. A substantial portion of the affidavit was read as submissions, outlining Ms Ng's predictions of the works to be undertaken by Ausgrid at 33 Bligh Street and her views on the impacts that those works would have on the building at 31 Bligh Street. Ms Ng outlines the options that she believes the Institute had available to it in relocating temporarily or permanently to other premises, which in her view must be located in the Sydney CBD.
A supplementary affidavit of Ms Ng dated 5 February 2016 was read in part by Bligh. In her affidavit Ms Ng attests to the Institute's occupation of 31 Bligh Street on a holding over basis from 1 October 2014 to 11 December 2015, and the rent payable under the terms of this lease. Ms Ng gives evidence as to the disruption of the Institute's operations due to the works at 33 Bligh Street, particularly the relocation of an event from 31 Bligh Street due to noise impacts. The affidavit attests to the terms of renewal of the 31 Bligh Street lease, and the rental and outgoings that the Institute would have paid had it exercised the option.
During cross-examination Ms Ng was questioned on the relationship between Bligh and the Institute. Ms Ng gave evidence that the Institute had over the course of her employment paid for repairs and replacement of things such as waterproofing, bathrooms, the air conditioning system and ceilings. Ms Ng agreed that the terms of the lease between Bligh and the Institute meant that there was no obligation for the Institute to pay outgoings that were incurred by the Institute's use of the building at 31 Bligh Street. She gave evidence that it was her understanding that it was the practice of the Institute to pay for such outgoings from the time before she was employed at the Institute.
The affidavit of Dr Fullilove Executive Director of the Institute was read in part by Bligh. He attests to the establishment of the Institute, his role at the Institute, the selection of the premises at 31 Bligh Street on the basis of similarities to the premises of other similar policy institutes, the initial works done to 31 Bligh Street in and around 2004, and its use as a research centre and events space. Parts of the affidavit attesting to Dr Fullilove's view that the Institute would have exercised the option, and that it could no longer stay at 31 Bligh Street because of the Ausgrid works, were read as Dr Fullilove's own opinion. Parts of the affidavit regarding Dr Fullilove's predictions of the impacts of the Ausgrid works on the Institute were read on the basis of his own opinion. The affidavit also gives evidence as to the Institute's consideration of various alternative premises.
In cross-examination and re-examination Dr Fullilove was asked questions relating to the Institute's decision-making processes. Dr Fullilove gave evidence that decisions such as whether or not the Institute would retain a presence at 31 Bligh Street after the move to 1 Bligh Street are not necessarily made by the board as a whole. His evidence was that in such cases decisions were taken by certain operational members of the board or by the chairman Mr Lowy alone.
The affidavit of Mr Fanning Chief Financial Officer of the LFG Group was read by Bligh. The LFG Group includes LFG Investments Pty Ltd which is the beneficial owner of the land at 31 Bligh Street which is held on trust for it by Bligh. Mr Fanning attests to the initial capital costs of restoring/developing 31 Bligh Street expended by LFG Investments on purchasing it. Certain financial records of the LFG Group regarding this expenditure were described in the affidavit and included in the Court Book.
There are two threshold issues to determine, the public purpose and the assumptions which apply in the after scenario.

[11]

Broad public purpose

The statutory scheme must be considered in determining what is the public purpose as a question of fact in the circumstances of this case. Land is defined broadly in s 4 of the JT Act to include any interest in land and therefore includes an easement. Public purpose is defined as "any purpose for which land may by law be acquired by compulsory process under this Act". Cases have identified that the public purpose must not be defined too narrowly or too broadly. It should be determined at a level of particularity beyond reference to the legislation under which the acquiring authority exercises its compulsory acquisition powers per MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 at [53], [51] citing Davies v Sydney Water Corporation [2012] NSWLEC 130 at [67]. MMTR at [55] also cites the Court of Appeal in Perry at [100] where Hodgson JA stated that there were no clear rules to determine the level of generality of the public purpose. Relevantly, factors Hodgson JA cited were the degree of continuity and consistency of the elements of what is proposed by the acquiring authority and fairness to the parties, both the claimant and the acquiring authority. At [65] Handley JA stated: …The particular purposes, in the sense of the uses to which particular land will be put, do not exclude the wider public purpose to be served by the acquisition. If so it is this wider public purpose, scheme or project which underlay the acquisition, which governs the operation of s 56(1)(a).
In Perry the Court of Appeal held that the resumption of land in the middle of a substantial highway or railway extension was for the public purpose of that scheme or project as a whole, not only for the part constructed on particular land.
Ausgrid is correct in submitting that in Walker the High Court emphasised the need to apply legislation as drafted not by applying a judicial gloss from earlier decisions which referred to a "scheme". The High Court was considering Pointe Gourde and other cases which referred to 'the scheme' where the meaning of that word was unclear at [46]-[47]. Walker is primarily authority for the finding at [54] that the proposal, the term used by the High Court, the subject of the public purpose must be that of the acquiring authority and not another entity, there a local council, with an interest in the acquired land. Walker does not have the effect that the reference to a scheme in Perry is overtaken. "Scheme" and "proposal" or "project" (another term referred to by Handley JA in the quote extracted above) are not terms of art but words having ordinary everyday usage. The Court of Appeal in Perry could just as easily have referred to a proposal. Walker does not preclude a finding in favour of a broader public purpose.
Bligh relied on the High Court's decision in Marshall. The relevant Queensland resumption legislation includes a provision that compensation is to be paid for land taken and also damage to other land resulting from the exercise of statutory powers by the acquiring authority. At issue was whether the acquired land's use as a passive buffer was a use for "road purposes", the High Court finding in the affirmative. The facts in that case are different to here in that none of 31 Bligh Street has been acquired. Marshall has limited application given the facts in this matter.
Turning to the evidence on which the parties relied in making their submissions, Ausgrid focussed on the terms of the acquisitions as contained in the three separate notices published in the Government gazette, set out in full in pars 16 and 17. These refer specifically to a crane swing easement, a rock anchor easement and a scaffolding easement, together with the circumstance that no part of 31 Bligh Street is otherwise required for the substation. The scaffolding and crane swing easements are released on the completion of work on the development site. The rock anchor easement states that these will be distressed prior to release. The term of the easement is undefined. This submission overlooks the first paragraph in the gazette notice also quoted above in par 16 to the effect that the acquisition is for the purposes of Ausgrid exercising its functions under the Electricity Supply Act in relation to the building demolition, site excavation and construction by Ausgrid of an integrated substation development. The definition of public purpose in the JT Act is wide and is not expressed as being the purpose specified in an acquisition notice. This suggests that the specific terms of the easements as contained in the acquisition notices are not the sole determinant of the nature of the public interest.
Correspondence from Ausgrid is another relevant source of identification of the public purpose. On 7 July 2014, Ausgrid's solicitors wrote to Bligh and stated, "…the proposed acquisition is for the purposes of exercising Ausgrid's functions under the Electricity Supply Act 1995 in respect of the building demolition, site excavation, tunnelling and construction by Ausgrid of the integrated substation development, as authorised under the Electricity Supply Act 1995." That wording reflects the notice of acquisition stated in the government gazette set out above in par 16.
As Bligh submitted, Ausgrid obtains compulsory acquisition powers because of its functions under the Electricity Supply Act (and its existence as an energy distributor as provided under s 7 of the Energy Services Corporation Act). The easements enable a function of Ausgrid under the Electricity Supply Act to be carried out by the construction of the substation at 33 Bligh Street. But for that statutory function Ausgrid would not be able to compulsorily acquire the three easements and would have to rely on other mechanisms, such as s 88K of the Conveyancing Act 1919 (NSW), s 40 of the Land and Environment Court Act 1979 (NSW), the Access to Neighbouring Land Act 2000 (NSW) or by reaching agreement with neighbours.
For another reason given by Bligh, Ausgrid's construction is too narrow and would result in an absurd result that at least seven different public purposes in and around 31 Bligh Street, being the three easements the subject of these proceedings, the substation on 33 Bligh Street and at least three other easements acquired from another landowner Telado on another neighbouring block of land. The public purpose of the three easement acquisitions includes the demolition, excavation and construction work required to build the substation at 33 Bligh Street, the broader public purpose contended for by Bligh.

[12]

Valuation method

A finding of broad public purpose to include the three easements which facilitate the demolition, excavation and construction of the substation on neighbouring land and the substation project results in a potential claim for injurious affection in relation to 31 Bligh Street (as provided under s 55(f)) as well as market value (s 55(a)) by Bligh. Bligh contends that in determining the matters required by s 55(a) and (f), using the before and after method of valuation Bligh is notionally replaced by a hypothetical landlord/owner and the Court must assume an arm's length market transaction. The before and after method assesses market value before and after the date of acquisition to determine the adverse impact if any of an acquisition by the difference between the two amounts. Bligh's interests are hypothetically sold in the valuation exercise. The Institute as the tenant is assumed to have no relationship with the landlord/owner. It must be determined as a matter of fact what the Institute would have done acting reasonably and prudently in the before and after scenarios. Ausgrid made a slightly different submission that the Institute's actions must be considered as if it were a reasonable arm's length lessee of a particular kind meaning with the characteristics of the Institute (rather than a general commercial tenant).
There are a number of observations to be made at a general level about the challenges posed in this case by Bligh's approach to the evidence of the Institute. The characterisation of the Court's task in the previous paragraph can be accepted on either party's case but its application has proved difficult in relation to the evidence adduced. Bligh relies entirely on the actions or assumed actions of the Institute in the before and after scenarios. Bligh submits that the Institute's actions must be considered on the basis of what the Institute would have done, acting reasonably, absent the public purpose, as if it had no relationship with the landlord/owner.
For the ten reasons given by Ausgrid in its closing written submissions at par [119] Bligh and the Institute are not arm's length parties. This is clear from the evidence of Ms Ng and Mr Fanning, documents tendered in the proceedings and the terms under which the Institute occupies the premises. I do not need to refer to all ten matters to establish this point but note several as follows. Bligh bought 31 Bligh Street for the Institute as Dr Fullilove attested in oral evidence. Significant capital works were made after Bligh purchased 31 Bligh Street. Two thirds of the capital improvements were paid for by the Institute as Mr Fanning accepted in oral evidence. The leasing experts agreed the Institute's lease provided for a high rent, in excess of 30% compared to the market (as set out later in the judgment at par 102). The Institute had limited liability for outgoings under the lease. Ms Ng's oral evidence was that the Institute paid in the order of $80,000 in one year in outgoings for which it had no liability, a practice which commenced before she started working there.
The Institute has particular requirements according to Dr Fullilove and Ms Ng in holding seminars in the large ground floor seminar room often by eminent speakers. These are recorded and televised on national radio and television. According to Ms Ng's affidavit dated 16 April 2015 the Institute holds around one hundred events each year. This activity renders it an unusually sensitive receptor to noise and vibration compared to other tenants according to Bligh. Its office and research functions in the basement, first, second and third floors are otherwise similar to other office tenants in the CBD in my view.
The difficulty in the application of the adopted valuation approach was reflected in the briefing of experts and the elucidation of issues. A great deal of expert evidence and submission (and questioning by the Court) was directed to what the actual Institute did and whether it was acting reasonably in the before and to a much greater extent in the after scenario.
Another issue that arises in relation to the evidence is the extent to which events after the date of acquisition here 8 August 2014 can be considered where there is a claim for injurious affection under s 55(f). While Bligh, appropriately at the Court's invitation, did not ultimately press arguments seeking to rely on Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7; (2006) 212 LGERA 307 at [60]-[61] to the effect that events up to the date of hearing can be considered it did continue to rely on the circumstance that the Institute vacated 31 Bligh Street in December 2015 some sixteen months after the acquisition date. Extensive quantity surveying evidence about the substantial costs of relocation to 1 Bligh Street all incurred after the date of acquisition was prepared, which I do not intend to set out in this judgment.
At issue in Allandale was whether a hypothetical purchaser and vendor would have paid less for land which at the date of acquisition had physical access to land otherwise severed by a highway but did not have a legally enforceable right of access to the land at that date. Provision of such a right was required by approval conditions imposed on the acquiring authority. Justice Basten held that there was no basis for reducing the amount the hypothetical parties would pay in these circumstances. Allandale does not expressly support an approach that events up to the hearing date can be considered. Bligh's approach is contrary to cases such as Chino Pty Ltd v Transport Infrastructure Development Corporation [2006] NSWLEC 768; (2006) 153 LGERA 136, Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66, Vilro Pty Ltd v Roads and Traffic Authority (NSW) [2010] NSWLEC 234; (2010) 179 LGERA 47.
Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334 is authority that events after the date of acquisition can be considered to prove a foresight but are not able to be used to establish a hindsight. That an injurious affection claim is made using the before and after method does not mean that any events up to the date of hearing should be considered. While assumptions about the before and after scenarios must be made, greater consistency of approach in the before and after is achieved if events up to the date of acquisition and afterwards only where justified by Falconer are considered.
Expert evidence of the kind adduced in this case is usually directed to the kind of information a prudent hypothetical purchaser and vendor would obtain when informing themselves about the particular hypothetical market in the before and after scenarios. The expert material also served the additional purpose in this case of being used to assess whether the Institute's actions at the date of acquisition, in not renewing its lease and continuing to occupy the building on a month to month tenancy with the potential to move in the future, were reasonable and prudent.
The Court is also required to treat Bligh as a reasonable and prudent hypothetical vendor which means that behaviour characteristic of an arm's length vendor/lessor must be assumed. Basically the same reasons why the Institute is not at arm's length apply to Bligh. For example as already identified Bligh purchased 31 Bligh Street for the Institute. By these remarks I am not in any way criticising that relationship. It is a matter entirely for those entities to arrange their affairs as they see fit. The difficulty is relating the arrangement to the hypothetical scenario required in the valuation approach of the valuers and as required by the JT Act.

[13]

After scenario: "But for" or "by reason of" the public purpose

A threshold question arises in the application of the before and after method in the after scenario. The parties agree that in the before scenario the Institute would have remained at 31 Bligh Street. There is some potential for disagreement about the terms on which the Institute would have continued but the differences between the parties on this issue reduced during the hearing. A more fundamental (threshold) issue arises in the after scenario. If Bligh cannot establish the inference that the hypothetical parties would consider that the Institute did not renew the option under the existing lease, or enter into a new lease and was likely to or did vacate the premises (putting matters at their highest from Bligh's perspective) by reason of the public purpose resulting in a potential vacancy period then there is no loss to Bligh in the after scenario.
The affidavit and oral evidence of Ms Ng and Dr Fullilove the Executive Director of the Institute was relied on by Bligh to support its contention that the Institute did not renew its option under the lease and moved to vacate the premises by reason of the public purpose namely the impact of the three easements and the demolition, excavation and construction of the substation on 31 Bligh Street.
Bligh tendered the minutes of the Institute board meeting held on 20 August 2014 (Exhibit C). Under the heading "Premises" the minutes state: Mark Ryan [Director] gave the meeting an update of where the Institute is with negotiation with its neighbour, Ausgrid and the Institute's plans to deal with the development.
In the letter dated 29 September 2014 sent shortly after the date of compulsory acquisition to Mr Speed Bligh's solicitor, Ms Ng stated that We confirm that this lease is due to terminate on 30 September 2014. We also confirm that pursuant to this lease the Lowy Institute has an option to renew the lease which it has not exercised and which it is not yet obliged to exercise pursuant to clause 2. The Lowy Institute does not presently intend to exercise its option to renew the lease, given the easements that Ausgrid has purported to acquire so as to enable it to redevelop 33 Bligh Street and given the disturbance likely to be caused by those easements and the redevelopment of 33 Bligh Street more generally - at least not at the minimum rental referred to in item 17 of the schedule to that lease. In light of the easements that Ausgrid has purported to acquire over 31 Bligh Street and the proposed redevelopment of 33 Bligh Street, the Lowy Institute is currently looking at alternative commercial offices to lease, and to relocate to, in the Sydney CBD (at least on an interim basis whilst Ausgrid's easements subsist and the proposed redevelopment of 33 Bligh Street takes place). The Lowy Institute is yet to determine whether, over the longer term, it is then feasible for it to move its operations back to 31 Bligh Street and again lease space at 31 Bligh Street. The Lowy Institute is presently investigating and considering its options in these regards. We confirm that, but for the interference to 31 Bligh Street that the easements that Ausgrid has acquired and its proposed redevelopment of 33 Bligh Street are likely to cause, the Lowy Institute would have exercised its option to renew its lease at 31 Bligh Street (or at least in the circumstances of the "minimum annual rental" referred to in item 17 of schedule to that lease not exceeding $803,174.82). Certainly the Lowy Institute closely associates itself and its image with 31 Bligh Street and is appreciative of the significant amounts incurred (and continuing to be incurred) by Bligh Consulting Pty Ltd/ LFG Investments Pty Ltd in making those premises particularly suited to the Lowy Institute and its operations. In light of all of the above, and given the lease termination date of 30 September 2014 and our expectation that Ausgrid will not be taking possession of the easements that it has purported to acquire nor commencing, in any substantive way, its redevelopment works at 33 Bligh Street until January or February next year, the Lowy Institute proposes, pursuant to and in accordance with clause 3 of the lease, to continue to occupy the premises at 31 Bligh Street beyond 30 September 2014 on a month-to-month basis whilst it finds alternative accommodation and determines what is best for it to do over the longer term.
Ms Ng gave evidence in her affidavit dated 16 April 2015 that (in her opinion) "the Institute cannot now sensibly stay at 31 Bligh Street and weather the intrusion and disturbance of the acquired easements and planned construction works at 33 Bligh Street". In his affidavit Dr Fullilove attested to his opinion that, [i]n the absence of the acquisition of the easements over the Land by Ausgrid last year and Ausgrid's planned works at 33 Bligh Street the Institute would have exercised its lease option and continued its activities at 31 Bligh St for the next 5 years and the foreseeable future thereafter… I do not believe that the Institute can now stay at 31 Bligh St (at least for a number of years) by reason of the acquired easements and the activities authorised by the easements including the planned construction works at 33 Bligh Street.
The lease option was not exercised and a new lease was not negotiated by the Institute on 30 September 2012.
A great deal of expert evidence was directed to the question of what advice would be or was given to the Institute and any other potential tenant. The parties made submissions on whether it was reasonable for the Institute not to renew its lease and to move out (assuming that is a matter to which I can have regard).

[14]

Occupation health and safety evidence (Crane swing easement)

Mr Ricketts was engaged by Bligh to provide an expert opinion on the occupational health and safety ("OHS") risks associated with a crane operating overhead at 31 Bligh Street. His report was tendered in the proceedings as Exhibit Q. He was also requested to provide his opinion on whether the Institute could be satisfied that it would not be in breach of its obligations under the Work Health and Safety Act 2011 (NSW) if it remained in occupation at 31 Bligh Street during the period of the Ausgrid works. Mr Ricketts was then asked in the alternative what steps he would advise the Institute to take to ensure it does not breach these obligations, in light of the fact that Ausgrid would not be providing protective barriers over 31 Bligh Street.
Mr Ricketts' opinion is that without protective hoardings over 31 Bligh Street the visitors and occupants would be exposed to a high risk of falling objects from the operations of the crane overhead. Due to this, the report states that the Institute would have a duty of care under the Work Health and Safety Act to remove the occupants from the building during the period of works.
Mr Love was engaged by Ausgrid, and his expert report was tendered in the proceedings (Exhibit 7). Mr Love's report addresses specific matters requested in his letter of instruction regarding the OHS risks associated with the crane operating overhead at 31 Bligh Street. On the identification of any risks, Mr Love was requested by Ausgrid to give his opinion on the risk mitigation strategies available, whether the assumptions as to work method set out in the letter of instruction to Mr Ricketts are reasonable and appropriate, and whether it is normal for the operator of a crane to lift and swing loads over an occupied building such as the one at 31 Bligh Street. Mr Love was asked to give his opinion what would be the reasonable response of the Institute and Bligh to the acquisition of the easement for the crane swing through the airspace above 31 Bligh Street.
Mr Love concluded in his report that the likely safety risks associated with a crane lifting loads overhead of 31 Bligh Street whilst occupied would be significant enough to likely pose an unacceptable risk to the health and safety of visitors and occupants of the building. The report states that the crane itself does not pose any real risk to adjoining and neighbouring areas including when weathervaning. On risk mitigation strategies, Mr Love's opinion is that save for exceptional circumstances it is possible to operate a tower crane during construction without the need to pass a load over property. If an exceptional circumstance required the lifting of a load over a building, that building would need to be vacated during the lift period. Contrary to Mr Ricketts, Mr Love states that an overhead protective structure above the footpath would only provide minimal protection and therefore pedestrian access would need to be closed at times of a load passing over the footpath. Mr Love concluded that it is not necessary for a building to be vacated for the entire period of construction due to a crane swing easement over the building.
Mr Love's opinion is that the assumptions as to work method set out in the letter of instruction to Mr Ricketts are too circumspect and consider the risks in a very general generic sense and that Mr Ricketts has made broad and general statements on the risks of the crane operation. Mr Love concluded that it is not normal or general practice for standard operating conditions of a crane to be lifting loads overhead of open public spaces or occupied buildings. Mr Love's recommendation to Bligh and the Institute regarding the management of the risks is to seek verification of the various required certificates for the crane and to review the risk assessment for the crane lifting operations. Mr Love does not believe it is reasonable and proportionate for an occupier to vacate and relocate due to a crane swing easement unless the risks were not being appropriately managed. He further stated that it is not reasonable to insist on an overhead protective structure above 31 Bligh Street as the risks are better managed by restriction of crane operations to ensure that loads are not swung over occupied buildings.
The joint report confirms that both experts generally agree with each other's report, with no disagreement of any significance. Mr Love and Mr Ricketts agree that in most circumstances there can be no reasonable justification for the lifting of loads overhead of occupied areas, roads and buildings. They agree that if an exceptional circumstance arose that required the lifting of a load overhead of 31 Bligh Street the building would need to be vacated and unoccupied at the time. Mr Love and Mr Ricketts agreed that the overhead protective structures referred to in Mr Ricketts' report relate to protection from falling objects associated with general construction activities and not for crane operations. Both experts agree that it is not practicable, if at all possible, for an overhead protective structure to be erected over 31 Bligh Street to provide adequate protection from falling object risks posed by the crane passing loads overhead of the building whilst occupied.
This evidence is relevant in these proceedings as an example of the possible advice that a prudent hypothetical purchaser/vendor would obtain to inform themselves of relevant factors in the hypothetical marketplace in the before and after scenario.

[15]

Project management evidence

The report of Mr Ging, the project management expert retained by Bligh, was tendered in the proceedings as Exhibit E. Mr Ging's report was prepared on the basis of documentation available at the date of acquisition. He was retained by Bligh to prepare an expert report and give evidence in relation to the compulsory acquisition by Ausgrid of easements over 31 Bligh Street. In his report Mr Ging gave his opinion on the likely impacts that would occur during each of the three phases of the construction works being demolition, excavation and construction.
During demolition, Mr Ging's evidence is that there will be intermittent obtrusive noise and possibly vibration from jack hammering which may in turn cause cracking and damage to the interior of 31 Bligh Street, as well as from the dropping of demolished building materials down the rubbish chute. In Mr Ging's opinion dirt or dust will infiltrate 31 Bligh Street, damage to the southern wall of 31 Bligh Street will inevitably occur, the roof may be damaged by falling objects and the erection of hoardings and scaffolding will detract from the appearance of the entrance to 31 Bligh Street.
During excavation, Mr Ging's opinion is that underpinning of the foundations of 31 Bligh Street may be required which will involve jack hammering and therefore obtrusive noise, vibration and infiltration of dirt and dust. This vibration may cause cracking and damage to the structure and interior of 31 Bligh Street. The drilling involved in installing the rock anchors will cause obtrusive noise and possibly vibration in 31 Bligh Street. Dump trucks and de-watering equipment will cause intermittent obtrusive noise and vibration through the excavation period, and dirt, dust and possibly exhaust fumes will infiltrate 31 Bligh Street.
During the construction phase, Mr Ging anticipates that 31 Bligh Street will need to be vacated when the tower crane is erected and removed. The operation of the crane will mean there is a risk of falling objects penetrating the roof at 31 Bligh Street. Intermittent obtrusive noise and dirt and dust infiltration will occur throughout the whole of the construction phase. The unloading of building materials at 33 Bligh Street will compromise the entrance to 31 Bligh Street and will create access difficulties for staff and visitors at 31 Bligh Street.
Mr Ging concluded that in his experience the impacts to be felt at 31 Bligh Street are the kinds of impacts that occur generally during the redevelopment of a CBD property requiring demolition, excavation and construction that is adjacent to older or sensitive buildings. However, it is his opinion that for the Institute to occupy 31 Bligh Street during the period of the works, considering the collective issues described above and the risk of falling objects through the roof, is untenable. Mr Ging states in his report that the Institute requires premises that are suitable to hold very prestigious events with appropriate interior ambience and quiet, uninterrupted conditions for their researchers to think, read, write and research. Based on his experience of re-development of CBD properties in Sydney and considering the Institute's requirements, Mr Ging's opinion is that the Institute should vacate 31 Bligh Street from the commencement of demolition.
The expert report of Mr Wyatt Ausgrid's project management expert was tendered (Exhibit 2). Mr Wyatt's report was completed on 28 October 2015 and was prepared on the basis of documentation that existed at that time, unlike Mr Ging who relied on documents available at the date of acquisition. As Mr Ging's approach is appropriate Mr Wyatt's evidence will be considered on the basis of what was available at the date of acquisition wherever possible. In his report Mr Wyatt outlines the background to and content of the demolition, excavation and construction approvals for 33 Bligh Street.
The demolition approval has clear obligations for noise and vibration monitoring, and mitigation and management measures which minimise the likelihood of impact. The demolition approval is for site preparation, demolition of the existing building at 33 Bligh Street, bulk excavation for the substation basement, excavation and construction of a shaft and a 150m section of tunnel. Ausgrid was required by the demolition approval to prepare, prior to demolition, a Demolition Management Plan ("DMP") which must subsequently require the preparation of a Noise and Vibration Management Plan ("NVMP"), an Historic Heritage Management Plan, an Air Quality Management Plan, a Traffic Management Protocol and a Dilapidation Report. The demolition approval also imposes requirements with respect to water quality, vibration, demolition noise, dust generation, bunding and spill management, traffic and transport impacts and waste generation and management. There are also requirements for independent environmental auditing and incident reporting. Sledge hammering, rock hammering or any similar noise intensive demolition activities may only take place between 9am to 12pm Monday to Saturday, 2pm to 5pm Monday to Friday and at no time on Sundays or public holidays. The airborne noise objective is to manage noise so that the background noise level is not exceeded by more than 10dBA for standard demolition hours, more than 5dBA outside of standard demolition hours, and more than 5dBA for a demolition period greater than 26 weeks. The demolition approval requires Ausgrid to minimise noise emissions from plant and equipment by installing and maintaining where reasonable and feasible efficient silencers, low-noise mufflers, screening of worksites and replacement of reversing alarms on vehicles with alternative silent measures.
With reference to Mr Ging's report, Mr Wyatt gives his opinion on the likely impact of the three stages of the development at 33 Bligh Street on the premises at 31 Bligh Street. Mr Wyatt's opinion is that it is unlikely that there will be any negative impact on pedestrian movement on the Bligh Street footpath as the approved hoarding will provide secure, safe and undercover access for pedestrian traffic. In relation to demolition, the internal strip of the building would not generate significant noise however the removal of the structural elements of the building at 33 Bligh Street would lead to a consistent level of noise. The use of the concrete encased lift shaft for the dropping of demolition materials will provide insulation for the transmitted noise. If appropriate noise mitigation techniques may be employed at the bottom of the shaft such as a rubble bed. The drop shaft is on the opposite side of 33 Bligh Street from 31 Bligh Street in order to minimise impact. The project approval requires noise and vibration monitoring. Mr Wyatt states that he defers to Mr Atkins (Ausgrid's acoustic expert) on matters within his expertise.
Mr Wyatt's evidence is that the installation of rock anchors would not generate a significant amount of noise however may generate low frequency vibration. It is extremely unlikely that dirt and dust from the installation of rock anchors would infiltrate 31 Bligh Street as the drilling would be taking place two levels below the current basement at 31 Bligh Street and mitigation measures would be in place. It is unlikely that underpinning would be required, however if it is it would have minimal structural impact on 31 Bligh Street.
In his report Mr Wyatt outlines the regime for noise mitigation and management. Mr Wyatt gives evidence that no trucks will enter or leave 33 Bligh Street from Bligh Street and that the loading and unloading activities for the demolition phase will only be conducted in O'Connell Street. With regard to crane swing safety, Mr Wyatt states that where materials are lifted over public areas in any location, it is necessary to install hoardings or to create an exclusion zone. Further, it is only when there is a suspended load that a risk arises. The scaffolding erected in front of 31 Bligh Street will only affect a two metre strip at the southern end of the building and will not detract from the building's appearance. The erection of scaffolding will in Mr Wyatt's opinion create minimal noise. Contrary to Mr Ging's opinion that damage to the southern wall of 31 Bligh Street is "inevitable" Mr Wyatt's opinion is that damage is unlikely. On the heritage value of 31 Bligh Street, Mr Wyatt's evidence is that 31 Bligh Street appears to be in a sound condition and that he is not aware of any risks to 31 Bligh Street that cannot be mitigated or removed. Modern demolition and construction practices are not invasive and are unlikely to have any significant impacts on the building at 31 Bligh Street.
Site preparation and bulk excavation were approved as part of the demolition approval on 13 July 2011. On the noise in the excavation phase, Mr Wyatt agrees with Mr Ging that it is a time when noisy works occur. In his opinion it would be mitigated by the works being carried out at least two levels below the basement at 31 Bligh Street. Mr Wyatt's opinion is that until the underside of the existing basement is exposed, appropriate methods and suppositions regarding noise are hypothetical. Any bulk excavation works would be conducted during approved working hours. There is no evidence to support Mr Ging's statement that dirt/dust and possibly exhaust fumes will infiltrate 31 Bligh Street during excavation. According to Mr Wyatt it is highly unlikely that such infiltration will occur as the works will be carried out at least two levels below the basement at 31 Bligh Street and the mandatory dust suppression methods will be in place. Any exhaust fumes from the site would be insignificant.
The construction phase of the project was approved on 11 December 2012. The construction approval is for the construction and operation of the substation and commercial tower including a 150m tunnel beneath Bligh Street. The construction approval contains conditions in relation to environmental performance including design standards and contributions, water quality and hydrology, transport infrastructure corridors, magnetic fields, ground movement/settlement, vehicular access and fire safety engineering and evacuation. In relation to construction environmental management, Ausgrid has obligations regarding noise and vibration, soil, water quality and hydrology, air quality and dust generation, waste generation and management, heritage and archaeology, bunding and spill management, traffic and transport impacts, standards and codes and property damage. The construction approval also requires the preparation of a Construction Environmental Management Plan ("CEMP"). The CEMP requires that Ausgrid prepare and implement a Construction NVMP, a Construction Air Quality Management Plan, a Construction Traffic Management Plan, a Construction Groundwater Management Plan, a Construction Water Management Plan, a Construction Spoil Management Plan, a Ground Movement Management Plan and a Heritage Management Plan.
There are also requirements in relation to noise and vibration impacts, magnetic field management and operation management documentation. Mr Wyatt states that the tower crane to be utilised during construction will based on his experience most likely be located at the Hunter Street side of the site. Reach radius restrictions suggest that it would be erected from a large mobile crane set up in O'Connell Street, not Bligh Street. With regard to construction noise, all conditions of approval from relevant authorities will be included and enforced. In response to Mr Ging's concerns about the closure of Bligh Street, Mr Wyatt's experience is that the relevant authorities will only allow full or partial closure of certain CBD streets on either a Saturday or a Sunday depending on location, and for a specific window of time only. If Bligh Street were closed for the installation of a mobile crane, pedestrian access would not be affected.
Mr Ging and Mr Wyatt prepared a joint report that was tendered in the proceedings (Exhibit F). The experts' individual reports were prepared on the basis of different source documents, as Mr Ging's documentation was restricted to that available at the date of acquisition. The experts agree that during the demolition phases there will be intermittent obtrusive noise and possibly jack hammering, but they do not agree that this vibration may cause cracking and damage requiring regular inspections and immediate repairs. They do not agree on the occurrence of intermittent obtrusive noise from materials being dropped down the rubbish chute, or on the infiltration of dirt and dust into 31 Bligh Street. Mr Ging and Mr Wyatt agree that there may be damage to the southern wall of 31 Bligh Street but do not agree that the crane swing may cause damage to the roof of 31 Bligh Street. It is agreed that it is unlikely that there will be intermittent obtrusive noise when the demolisher waterproofs the exposed southern wall of 31 Bligh Street. The experts do not agree on whether the erection of hoardings and scaffolding will have an impact on the appearance of the entrance to 31 Bligh Street. Mr Wyatt does not agree with Mr Ging that if underpinning is required it will cause obtrusive noise and most likely vibration and infiltration of dust and dirt into 31 Bligh Street, however they agree that any underpinning may cause cracking. The experts agree that the installation of rock anchors may most likely generate noise and vibration.
Mr Wyatt does not agree with Mr Ging's opinion that the excavation will cause intermittent obtrusive noise and vibration as the excavation methodology cannot be determined until the material beneath the basement is inspected by an engineer. The experts agree that during excavation dirt, dust and possibly exhaust fumes may most likely infiltrate 31 Bligh Street. It is agreed that the erection of the tower crane would require the closure of the roadway and that the easement entitles Ausgrid to swing a crane over 31 Bligh Street, however it is not agreed that the occupants of 31 Bligh Street will be working in an unprotected environment during the works.
The experts agree that during the construction phase intermittent issues may occur despite all the best procedures being in place and that there may most likely be intermittent obtrusive noise and dirt and dust infiltration throughout this period. Mr Wyatt does not agree with Mr Ging that the Bligh Street frontage would be used for loading or unloading materials. Mr Wyatt does not agree with Mr Ging's opinion that issues will occur due to obtrusive noise, vibration, water leaks for example as he considers it unreasonable to state with certainty that they will occur. Mr Wyatt does not agree with Mr Ging that the erection and dismantling of the tower crane will require the closure of Bligh Street for at least two days on each occasion. Mr Wyatt's opinion is that the installation would take place over the weekend and O'Connell Street, not Bligh Street, would be utilised.
During cross-examination Mr Ging was questioned on his advice that the Institute consider vacating the premises. Mr Ging gave evidence that apart from the present case, in his 56 years of experience he had only advised a tenant to move out of a building once before in such circumstances. Mr Ging stated that the reason why he gave that advice in this case was because of the "type of research and presentation type of business" that the Institute conducts. Mr Ging gave evidence that he would not have advised the Institute to take the lease of 31 Bligh Street in 2004 in light of the approval in place to demolish Kindersley House. Mr Ging also gave evidence that in essence his advice to the Institute would be that they should not occupy the premises if any demolition were to occur next door.
In cross-examination Mr Wyatt was questioned on the timeline for the development works at 33 Bligh Street and when the excavation was likely to start. Mr Wyatt's evidence is that if there was a great deal of enthusiasm for the project then excavation may begin six to eight months after the board approval. Mr Wyatt gave evidence that there is uncertainty regarding whether the project as presently approved will proceed beyond demolition. Mr Wyatt agreed that the predicted timeframe at the time the easements were acquired was shorter than the timeline in reality, and that the bulk excavation would not be completed by 29 June 2016 as had been predicted.

[16]

Acoustic evidence

Dr Tonin was engaged by Bligh to prepare a report assessing potential noise and vibration impacts arising from the demolition of the existing building at 33 Bligh Street, excavation works and the construction of a new 39 level commercial development incorporating an electricity substation on the first 11 levels, 6 levels being underground on the Bligh Street frontage. His report was tendered in the proceedings (Exhibit G). Dr Tonin was asked to advise on the risks a tenant with an expiring lease, or a new tenant coming into a lease of 31 Bligh Street, would likely face with respect to noise and vibration from the construction works. The advice was given on the basis that the tenant would need to appreciate these risks so as to make an informed decision as to whether or not to renew their lease or take up a new lease. In his report Dr Tonin describes the easement and construction works as well as the conditions and applicable noise limits. Dr Tonin describes the building at 31 Bligh Street and the Institute's activities and concludes that due to its structure 31 Bligh Street is particularly sensitive to regenerated noise from the proposed construction works compared to more modern neighbouring buildings. On the basis of that information, Dr Tonin then outlines his opinion of the potential noise and vibration impacts associated with the construction and examines whether impending impacts would have a material effect on the decision by management to stay or a new tenant to come in.
Dr Tonin concludes that noise from heavy vehicles using Bligh Street is a likely cause of concern for the Institute or any prospective tenant and that there is an inadequate assessment of this noise. On the issue of noise from heavy equipment and workers, Dr Tonin's opinion is that the project approval controls for the phases of the project do not necessarily guarantee that noise and vibration levels will be complied with nor that the business of the tenant will not be disturbed. Dr Tonin assessed the impact of noise on the ability of the Institute to host events at 31 Bligh Street. His advice to the Institute and to any other commercial tenant using the space for a similar purpose is that regenerated noise caused by the construction works will impede the ability to host events in the building. In his opinion the noise from the construction works will impact on the ability of speakers and guests to make out what is being said, as well as degrading the quality of video recordings or TV broadcasting.
On the issue of whether the noise and vibration will make it impossible for research to continue, Dr Tonin concluded that the project approvals in place will not protect the amenity of the Institute in respect of regenerated noise caused by the construction. In his opinion an unacceptable level of regenerated noise is likely to occur which would seriously disrupt the use of the Institute building. Dr Tonin states in his report that he does not support Bligh's contention that the high ceiling in the rooms will exacerbate the problem, as he does not believe this is a matter for Ausgrid. Bligh raised concerns with Dr Tonin that the vibration and movement involved with the works may cause damage to the building at 31 Bligh Street. Dr Tonin's evidence is that if the conditions in the project approvals are satisfied this risk is low. On the question of the Institute's relocation from 31 Bligh Street, Dr Tonin concludes that it would not be unreasonable for the Institute or any prospective tenant to decide that the noise and vibration likely to be experienced as a result of the works at 33 Bligh Street would pose a material risk to their business. His advice to any tenant at 31 Bligh Street is that they would need to take into account the inconvenience and management time involved in monitoring, negotiation and ensuring compliance with standards to allow the tenant to operate without interruption. The potential noise and vibration impacts arising from the works at 33 Bligh Street are such that they would be and should be material deterrents to a sitting tenant or a prospective tenant renewing or entering into a lease at 31 Bligh Street as opposed to leasing premises elsewhere.
Mr Atkins' report was tendered (Exhibit 3) in the proceedings. He was instructed by Ausgrid to prepare a statement of evidence which provides an opinion on the likely impact of noise and vibration caused by the acquisition and use of the easements for crane swing and protective works and the various stages of the works proposed at 33 Bligh Street. He was also instructed to provide an opinion on the report of Dr Tonin.
Mr Atkins' opinion is that main sources of semi-continuous vibration experienced at 31 Bligh Street are likely to occur during bulk excavation and tunnelling associated with rockbreakers and the road header. If not controlled, the dropping of large structural components during the demolition could cause noise issues, however Mr Atkins refers to the report of Mr Wyatt which states that such material will be broken into smaller pieces. Therefore in Mr Atkins' opinion vibration impacts experienced within 31 Bligh Street resulting from falling objects can be managed to acceptable levels. Mr Atkins' opinion is that the vibration and regenerated noise from road headers are less than the recommended limits and will not impact on 31 Bligh Street and its occupants. On the use of rockbreakers, Mr Atkins states that vibration and regenerated noise from the use of rockbreakers within 20-30m of 31 Bligh Street, if not managed, would have the potential to impact on 31 Bligh Street and its occupants. Mr Atkins' opinion is that vibration monitoring should be conducted at 31 Bligh Street to determine vibration levels with respect to the established criteria, and so that options can be assessed to mitigate the impacts. His opinion is that large rock breakers should not be used in the area.
Mr Atkins states that minor piling is required for the works at 33 Bligh Street, however in his opinion noise and vibration from bored piling can be managed through noise and vibration monitoring and would not be an issue for 31 Bligh Street or its occupants. In Mr Atkins' opinion the tower crane that will be used will likely be electric and therefore would not be an acoustic issue for 31 Bligh Street or its occupants. Mr Atkins discusses the concerns raised regarding increased traffic on Bligh Street and states his understanding that all traffic will be using O'Connell Street, not Bligh Street.
Mr Atkins' conclusion is that it would be reasonable to expect that the nature of noise and vibration impacts involving demolition, bulk excavation, construction and fit out of the building at 33 Bligh Street would be similar to other high rise development sites in the CBD. His opinion is that the main acoustic issue for 31 Bligh Street would occur during the bulk excavation phase. To manage these impacts the project approval conditions will need to be met and large rockbreakers must not be used. During demolition, tunnelling and construction it is Mr Atkins' opinion that the noise and vibration emitted from 33 Bligh Street could be managed to acceptable levels at 31 Bligh Street. In his opinion regenerated noise during bulk excavation has the potential to impact on the occupants of 31 Bligh Street. To manage this impact time restrictions are in place to limit noisy activities to certain hours only. Time restrictions, noise and vibration monitoring and a vibration monitoring program to establish site conditions at the commencement of the bulk excavation to assist in the selection and operation of onsite rockbreakers to control vibration and regenerated structural noise will be implemented. With all these measures in place it is Mr Atkins' opinion that vibration and regenerated noise can be managed to acceptable levels.
Dr Tonin and Mr Atkins prepared a joint acoustic report that was tendered (Exhibit H). In the joint report the experts outline their points of agreement and disagreement. The experts agree on the sources of noise and vibration, and agree that the demolition, bulk excavation, construction and fit out of the substation and tower at 33 Bligh Street will create a level of noise and vibration disturbance at 31 Bligh Street similar to other high rise development sites with similar stages in the Sydney CBD. The experts largely agree on the relevant controls and limits in place for the works at 33 Bligh Street. For the purposes of the joint report an internal noise goal of 45 LAeq(15 min) was identified. Dr Tonin clarified in cross-examination that he did not necessarily adopt that level as an appropriate limit for 31 Bligh Street. During further cross-examination Dr Tonin agreed that he would in most cases impose an internal noise goal of 45 LAeq(15 min) for environments where people needed to think and concentrate. The experts agree that the predicted regenerated noise levels at 31 Bligh Street for bulk excavation works assuming the use of a medium rock breaker are in the range of 45-65 LAeq(15 min) depending on the location of the works. They agree that therefore feasible and reasonable measures are required to be adopted where there are non-compliances with the noise goals. The experts agree that there may be exceedences of the vibration level if rockbreakers are used closer than 5m from the boundary, and if so feasible and reasonable measures should be adopted.
Dr Tonin agreed that the level of noise and vibration at 31 Bligh Street would be similar to other high-rise development sites within the Sydney CBD involving demolition, construction and fit out. Dr Tonin agreed that the risks involved at 31 Bligh Street are no different to any other job in the city, and that those risks can be managed appropriately for normal tenants. In Dr Tonin's opinion the Institute is special because of both the structure of the sandstone building compared to modern buildings and the nature of the activities in hosting speakers and recording lectures on the ground floor in the lecture hall. Conditions for office activities are acceptable.
On the points of disagreement, Mr Atkins' opinion is that the noise and vibration impacts can be managed, whereas Dr Tonin's advice is that the Institute would face risks in conducting its business at the premises and it should consider that advice in its decision to renew its lease or relocate. Dr Tonin attributes this difference in conclusion to the precise nature of the brief the experts were given. There is disagreement regarding the use of large rockbreakers, as although both experts agree that they should not be used, a condition of the project approval permits their use when it can be justified on the basis of substantially reduced construction time. Dr Tonin believes this is a risk for the Institute. On the impact on the ability for the Institute to host events, Mr Atkins does not agree with Dr Tonin's recommended limit of 38 LAeq(15 min) for the lecture hall as in his opinion that limit is not justified by the noise measurements taken. The experts do not agree on the potential impacts from increased traffic on Bligh Street, as Dr Tonin does not agree with Mr Atkins that Bligh Street will not be used for construction traffic. The evidence of Mr Wyatt is that construction traffic will not use Bligh Street. The experts are not in agreement on the impact of the rock anchor, crane and scaffold easements. Dr Tonin believes that restricting the hours for drilling the rock anchors does not solve the problem as the drilling would still take place throughout most of the working day. There is disagreement between the experts as to the uses of the crane and the scaffolding.
In conclusion, the experts agree that the demolition, bulk excavation, construction and fit out of the substation and tower at 33 Bligh Street will create a level of noise and vibration disturbance at 31 Bligh Street similar to other high rise development sites within the Sydney CBD involving demolition, bulk excavation, construction and fit out.
In cross-examination Mr Atkins was questioned on the adequacy of the noise and vibration limits and agreed that the noise management level he refers to in his report is not enforceable as a condition of approval and that there may be exceedences. Mr Atkins was asked whether 31 Bligh Street is any more sensitive to structure borne noise than other buildings in the city. In his opinion it is not any more sensitive to regenerated noise. The environment for recording lectures is already imperfect and will not be noticeably further impacted by the activities on 33 Bligh Street.
This evidence is relevant to illustrate the kind of (conflicting) advice the prudent hypothetical vendor and purchaser would be likely to obtain in the after scenario.

[26]

Bligh's submissions on after scenario

But for the public purpose the Institute would have stayed at 31 Bligh Street for the foreseeable future. As a matter of fact, the Institute vacated 31 Bligh Street on 11 December 2015 and relocated to 1 Bligh Street. Dr Fullilove gave evidence that in his opinion but for the proposal to carry out the public purpose the Institute would have leased the building for the foreseeable future. On the balance of probabilities, the Court is entitled to conclude that it was the demolition of Kindersley House and the excavation and construction of the substation that caused the Institute to relocate. There is a causal link between the carrying out of the public purpose or the proposal to carry out the public purpose and the vacation of 31 Bligh Street that in turn has a negative impact on the value of the land for Bligh.
It is unrealistic for Ausgrid to suggest that a minute from the Institute's Board on the matter of the Institute's move from 31 Bligh Street would be tendered. It is also unrealistic to suggest that such a minute is even likely to exist. At best, it could only be expected that there would be a minute recording the decision to move, not necessarily the reasons why. There is no reason to doubt that the letter sent by Ms Ng to Bligh on 29 September 2014 giving formal notice of the Institute's decision not to exercise the option reflected the position taken by the Board. Ms Ng was not challenged on this.
It is clear from the totality of the evidence, the intention expressed by the Institute's management, the Institute correspondence dated 29 September 2014 and the Institute's concerns about possible impacts being well founded, that the Institute decided to relocate from 31 Bligh Street due to the likely disruption to its quiet enjoyment of the premises caused by noise, vibration and dust from the demolition, excavation and construction works associated with the carrying out of the public purpose. In addition, there was a prospect that the occupants of 31 Bligh Street would have to vacate the building to allow loads to be craned over the building for occupational health and safety reasons. The experts retained by Bligh confirm that these concerns were reasonable and well founded. Ausgrid offered to pay the costs of the Institute moving elsewhere for an eighteen month period. Therefore it is open to the Court to infer that the motivating factor behind the Institute's decision to relocate was the substation proposal.
It is irrelevant that there were other development consents granted for 31 Bligh Street before and during the period the Institute leased the site from Bligh. The focus must be the application of the JT Act.
Dr Tonin's evidence supports a finding that the concerns of the Institute were reasonable and well founded. In his opinion the planning approvals were not sufficient to control the impacts particularly in the area of regenerated noise which he did not consider was adequately regulated by the demolition approval or the building approval. Mr Ging project management expert considered the works would be likely to cause obtrusive noise, vibration, dust, possible water leaks and compromised access to the building on the land. He considered there was a risk of objects falling through the building which gave rise to his recommendation that the Institute vacate 33 Bligh Street.

[27]

Ausgrid's submissions on after scenario

Bligh cannot satisfy the onus of demonstrating the causal connection between any decrease in value of the land and the proposal to carry out the public purpose. There is no satisfactory evidence to demonstrate why the Institute moved out. In the absence of evidence the inference that the Court has been asked to make cannot be drawn.
As a corporate entity the Institute is governed by a Board of Directors which meets regularly and makes decisions in the form of resolutions which are noted in the minutes of its meetings. Bligh tendered minutes of the board meeting of 20 August 2014 in the proceedings as Exhibit C. Although the minutes show that some information was given to the directors at that meeting regarding the Institute's negotiations with Ausgrid and the Institute's plans to deal with the development at 33 Bligh Street, apparently no formal report was provided and no resolutions were made on the subject. The evidence of Ms Ng and Dr Fullilove regarding the Institute's decision to leave 31 Bligh Street was only accepted on the basis of identifying their personal opinions. Dr Fullilove identified in oral evidence that some decisions of the Institute are not made by the Board of Directors but rather by Mr Lowy. There is nothing to suggest, nor was it suggested by Bligh, that the personal opinions of Ms Ng or Dr Fullilove were passed on to or relied upon by any individual directors or Mr Lowy. Bligh did not lead any evidence of the decision to relocate or the reasons for the decision. Further, there is no evidence of consideration by the Board, its directors including Mr Lowy of what might have been done in the alternative - in particular whether the option would have been exercised or whether negotiations may have occurred with a view to reducing the effective rental. Ausgrid is entitled to an assumption that, there being no evidence, any evidence that could have been led could not support Bligh's claim.
At the time of the Institute's entry into the initial lease on 1 October 2004, a development consent had already been obtained by Investa for the demolition of Kindersley House. Therefore it must be inferred that when entering into the lease the Institute was aware of the potential for the neighbouring building to be demolished and for construction to occur. On 1 October 2009, the Institute entered into its second lease at 31 Bligh Street. By that date, in addition to the 2001 Stage 1 development consent for the demolition of Kindersley House and erection of a new commercial/retail building at 33 Bligh Street, there were several other development consents in place. In May 2005 Stage 2 development consent was granted to Investa for the demolition of Kindersley House and the erection of a new commercial tower, by 2006 Kindersley House was surrounded by hoardings and by July 2007 was vacant. In November 2008 Investa obtained a further development consent for the demolition of Kindersley House and the construction of a 205m tall commercial building, and in September 2009 concept approval was granted for the Sydney CityGrid project. The only inference that can be drawn is that the Institute entered into the lease notwithstanding the potential for demolition, excavation and construction next door.
The expert evidence in relation to the crane swing does not justify the Institute moving. The experts agree there is no reasonable justification for lifting over occupied areas. Accepted industry practice does not include lifting over occupied buildings. A load would only be lifted over 31 Bligh Street in exceptional circumstances. Nor does the acoustic evidence justify the Institute moving given that Dr Tonin accepts that a NVMP is regularly required for jobs carried out in the CBD. The numerical limits in the NVMP may inevitably and occasionally be exceeded. Exceedances can be managed by reasonable and feasible means. The project could be managed by a NVMP recommending 45dBA LAeq(15 min). Mr Ging stated that while there were impacts as his evidence identified these were the kind of impacts that occur generally during the redevelopment of a CBD property requiring demolition, excavation and construction adjacent to older/sensitive buildings. Mr Ging would have advised the Institute not to occupy 31 Bligh Street if any building work was to take place next door requiring the demolition of Kindersley House.
There is no evidence before the Court that noise and vibration impacts or the crane swing easement were impacting on the mind of the Institute's board or directors.

[28]

No loss to Bligh in after scenario

As flagged above in par 48, events leading up to and where warranted to confirm a foresight after the date of acquisition inform the application of the before and after valuation method. In the hypothetical scenario I must consider the prudent and reasonable purchaser and vendor are both taken to obtain advice. Bligh did summarise in a separate document handed up during the hearing the type of advice that would be obtained by these hypothetical parties on 8 August 2014 but the inquiries were based on an assumption that the Institute would vacate the premises at some point in the future. At the date of acquisition that can be a possibility at best not a certainty.
The Institute's employee Ms Ng wrote on 29 September 2014 to advise Bligh that the Institute would not exercise the option under the lease, would occupy the premises on a month to month basis and would look for new premises. As Ausgrid submitted, there is no other evidence adduced by Bligh which establishes directly why the Institute's controlling body determined not to exercise the option under the lease or to consider vacating the premises. In the absence of advice from the Institute to the contrary, the appropriate decision making body was its board or a director with authority to act on its behalf. The minute of the Board meeting tendered (Exhibit C) does not provide any assistance on why the decision of the Board was made to relocate. The letter of Ms Ng of 29 September 2014 states that the Institute would not exercise the option under the lease for that reason. It is not evidence that the Institute's governing body had determined to move.
Has Bligh established on the balance of probabilities the inference that the Institute its tenant did not exercise the option under its lease because of the public purpose at the date of acquisition in the after scenario? Certain events occurred very shortly after the date of acquisition and could be considered in accordance with Falconer. The Institute did not exercise the option under the lease on 30 September 2014 or seek to enter into a new lease. A prudent tenant may well move to a month to month tenancy to experience whether the impact of building work on neighbouring land was acceptable. I consider the inquiries the hypothetical vendor and purchaser would make with the Institute would identify that the Institute did not propose to enter into a further lease and would continue on a hold over month to month tenancy for an unspecified period of time.
Bligh continued to receive rent on a month to month basis at an above market rate from the Institute after the date of acquisition. Loss to Bligh from the premises being vacant only arises if it establishes the inference on the balance of probabilities that at the date of acquisition the hypothetical parties engaged in a market transaction would consider the Institute was likely to move in the foreseeable future because of the public purpose. Only matters after the date of acquisition which confirm a foresight can be considered per Falconer and it is for Bligh to establish that as or near the acquisition date the hypothetical parties would be likely to consider that the Institute would vacate 31 Bligh Street.
On inquiry made of Ausgrid at the date of acquisition the hypothetical parties would be advised that the proposed construction period was six years. The hypothetical purchaser would assume that there may be delays in the construction timetable.
The evidence of Ms Ng and Dr Fullilove is that 31 Bligh Street was purchased and fitted out by Bligh to house the Institute and the heritage building was promoted as part of the Institute's "brand". Bligh spent a large sum on the fit out of the premises to suit the Institute's needs according to Mr Fanning's affidavit. There would be a cost which is likely to be substantial for the Institute moving to new premises. This evidence suggests that the Institute acting prudently and reasonably would be reluctant to move.
The leasing expert Mr Messenger identified in his evidence, summarised at par 98 above that there were other reasons why a tenant may choose not to exercise the option under the lease and vacate the premises unrelated to the project work on 33 Bligh Street given the high rent payable under the lease inter alia.
Bligh asserted that the acoustic, project management and OHS experts called by it supported the Institute's decision not to exercise the option to renew the lease and to potentially (actually) move from the premises. There was conflicting expert opinion adduced by Ausgrid which suggested there was no reasonable basis for vacating the premises. Mr Wyatt project management expert and contractor for Ausgrid identified the two approvals for the demolition, excavation and construction phases at 33 Bligh Street, the assessment processes undertaken in relation to these and the nature of the conditions imposed in pars 71-76 above. The evidence of all the experts essentially confirms that the approvals in place for the substation project provide the controls to ameliorate impacts usually imposed on projects of this kind in the Sydney CBD. Bligh's experts were more inclined to think these approvals would not provide sufficient protection whereas Ausgrid's considered that they would. There was agreement that there may be impacts outside the approved conditions because of the nature of the project. Ausgrid's submission that such impacts if they occurred were part of the experience of any occupant of a CBD premises has validity.
The tension in applying the evidence to the required hypothetical after scenario assuming that the Institute acts reasonably and prudently is encapsulated by the differing advice of the acoustic experts. That difference arose in large part from the difference in their respective briefs. The experts gave evidence about the advice they had or would give the Institute and/or a tenant for consideration in deciding whether to renew the lease or not. Dr Tonin agreed orally that had he been briefed about a standard tenant occupying 31 Bligh Street his advice would have been the same as Mr Atkins, namely that there was no need to relocate from the building in light of standard measures such as a NVMP with a specified noise goal being required by the approval which enables ongoing management of noise levels at 31 Bligh Street. The plan was highly likely to set an acceptable noise goal, as occurs for similar developments throughout the Sydney CBD. An overall conclusion based on the acoustic experts is that the Institute's office and research functions in the basement, first, second and third floors could continue during the work being carried out at 33 Bligh Street with relatively little impact.
Dr Tonin identified that the area of the Institute's operations potentially adversely affected was the recording of lectures on the ground floor. Mr Atkins did not agree that there would be a noticeable adverse impact to justify concern given that the recording environment was already imperfect due to its location close to the street on the ground floor with consequent traffic noise and windows facing the street. Dr Tonin considered the sandstone building was vulnerable to regenerated noise which was not adequately regulated by the noise control conditions. This was based in part on an assertion that a continuous wall ran through much of the building. The building plan of the premises tendered (Exhibit J) did not bear this out in my view. Mr Atkins did not agree that the premises were more susceptible to regenerated noise.
The project management experts agreed there would be some vibration as a result of the drilling of rock anchors and the substation project but disagreed whether these impacts would interfere with the use of 31 Bligh Street. As the substation requires two additional levels to be excavated below the current two basement levels there will be some useful separation from the drilling works and 31 Bligh Street according to Mr Wyatt. Mr Ging project management expert called by Bligh agreed that the noise, dust and vibration impacts he identified were similar to any other project of a similar scale in the CBD. Mr Ging's view was that these impacts were not manageable because of the nature of the Institute's activities of research and hosting presentations. Mr Wyatt's view was that these impacts were manageable and that the usual measures taken in relation to such projects throughout the CBD would apply. Mr Wyatt stated that there would not be truck entry to the site from Bligh Street alleviating one concern identified by Mr Ging and Dr Tonin about construction traffic on Bligh Street impacting on the Institute.
Turning to the three easements in particular, while there was substantial reliance on the crane swing easement impacting on the Institute by Bligh, the OHS experts Mr Ricketts and Mr Love ultimately agreed that there is very little likelihood of any adverse impact on the use of 31 Bligh Street from that easement. The experts agreed on the types of measures that would be taken to ensure that no loads were carried over 31 Bligh Street as commonly occurs in constructing commercial developments across the CBD. Mr Ricketts' opinion that it would not be prudent for the building to be occupied if a load passed over the land or for a protective hoarding to be erected over the land can be accepted but his advice simply responded to the brief he was presented with. The scenario in that brief was not realistic. Following consultation between the OHS experts agreement was reached as identified in Ausgrid's submissions. Further the leasing experts agreed that if no loads were carried over the property little or no impact would occur on the tenancy. Mr Ging's concerns about a load being dropped onto 31 Bligh Street damaging the roof are also not justified in light of the OHS evidence.
The exercise of the full terms of the crane easement simply means that use of the airspace above 31 Bligh Street can occur unimpeded. It does not interfere with the use of the building by the Institute. There is no analogy with a right of way on land being blocked as suggested by Bligh. Besmaw Pty Ltd v Sydney Water Corporation [2001] NSWLEC 15; (2001) 113 LGERA 246 which upholds the application of an easement in its broad terms has no relevance in this case.
No impact from the scaffolding easement would result in a tenant including the Institute moving out and Bligh did not make that submission as I understand it. The project management experts disagreed on the impact of the scaffolding easement but I am inclined to agree with Mr Wyatt's advice. That the scaffolding when in place is at the opposite end of the building to the entrance to 31 Bligh Street and has no impact on the grand entrance to the foyer would be influential in the minds of the hypothetical parties. The leasing experts disagreed on the extent to which any impact would result in the need for an incentive to be provided for an incoming tenant if that scenario arises.
Any additional vibration from the rock anchor easement was not considered by Mr Wyatt to add substantially to the vibration that may be experienced from the substation project. The expert evidence suggests there was either no or no unacceptable impact on 31 Bligh Street from the three easements and what there is could be managed in the usual way that such activities are managed for large projects in the CBD.
I have accepted above in par 122 that a reasonable and prudent tenant may well move to a month to month tenancy around the date of acquisition where a lease term was ending. Ausgrid's submission that the Institute would not be acting as a reasonable tenant in potentially moving out as at the date of acquisition accords with the tenor of the expert evidence adduced. The demolition and excavation work was not unreasonably noisy (meaning no more noisy than other similar work carried out all over the Sydney CBD) and tenants do not generally vacate buildings in the CBD when demolition and construction occurs next door. Apart from this case, Mr Ging has only given advice to a tenant to move away from demolition and construction work one other time in his career of 56 years. He confirmed in oral evidence that he would have given that advice to the Institute in relation to any demolition and excavation work at 33 Bligh Street.
As Ausgrid submitted the Institute must have been aware of the possibility of demolition, excavation and construction at 31 Bligh Street when a lease was entered into in 2004 and again in 2009 as development consent had been granted for a large commercial office tower since 2001 with other approvals in 2005 as identified in the chronology set out above in par 19. I agree that is relevant context in which to consider how a reasonable tenant would behave when development activities did proceed on 33 Bligh Street. Any occupant of premises in the CBD is likely to experience demolition and construction next door at some stage. The evidence of the leasing experts in the joint report identified above in par 104 was to similar effect. Mr Wyatt's opinion that the project is no different in engineering terms and its potential impacts to other similar construction projects in the CBD. That it is a substation does not materially alter the nature and extent of impacts compared to construction of a conventional office building is accepted.
While the focus of the evidence has been the actions of the Institute the Court is assessing Bligh's claim. The issue is whether a hypothetical purchaser and vendor acting with appropriate foresight at the date of acquisition would consider that the Institute (or a tenant with its characteristics on Ausgrid's case) acting reasonably and prudently would vacate 31 Bligh Street. The answer to that question is no given the expert evidence considered above. When the expert evidence and the relationship between the Institute and Bligh identified by Ausgrid are considered the inference arises that an arm's length tenant similar to the Institute acting reasonably would not necessarily leave the premises because of the public purpose of the acquisition. That can be stated categorically in relation to the three easements for the crane swing, scaffolding and rock anchors. Mitigation of impacts from the substation such as noise and vibration is addressed as part of the demolition and construction approvals applying to the substation project as occurs regularly throughout the Sydney CBD. The inference is not established that the hypothetical parties would consider that the Institute would move because of the public purpose of the acquisition.
The extent to which Bligh's actions facilitated decisions by the Institute is also problematic in the hypothetical scenario before me. As already stated above in pars 41-42 Bligh must be assumed to act at arm's length from the Institute but their relationship is not. Although now not strictly arising given my finding about the assumptions the hypothetical parties would make in the after scenario, I note that the brief of the leasing expert called by Bligh Mr Tindale was to the effect that the Institute was intending to leave temporarily and return after about four years. That arrangement appears highly beneficial for the Institute. That is not behaviour characteristic of an arm's length lessor. Further Bligh, if considered as the hypothetical prudent purchaser, would not necessarily be content to have the Institute continue on a month to month basis but may prefer to find another tenant prepared to enter a lease for a longer term.
My finding above means that Bligh cannot claim injurious affection on the basis of the broad public purpose because there is no loss of rent and hence diminution in market value in the after scenario. It therefore remains to determine the value of the individual easements on a piecemeal basis. The valuers' evidence on that aspect only will now be identified to enable the amount of compensation to be determined. It is first necessary to determine whether s 62 of the JT Act applies in relation to the rock anchor easement.

[30]

Bligh's submissions

Bligh submits that s 62 of the JT Act does not apply to the rock anchor easement. Properly construed, the rock anchor easement does not fall within the terms of s 62(1) because the rock anchors are not for the "construction and maintenance of works (such as a tunnel, pipe or conduit for the conveyance of water, sewerage or electrical cables)". The definition of "rock anchors" in the easement notice in the Gazette extracted above in par 17 provides that they are "for the purpose of supporting or protecting works on the Development Site and underpinning and supporting improvements erected on the Burdened Land". This definition indicates that the rock anchors are to serve the purpose of other works and are not an end in themselves. On this basis they may be contrasted with the "works" envisaged by s 62(1). Whilst rock anchors are "constructed" they will only operate for a limited period of time to enable other works to be carried out.
Further, although the words in parentheses in s 62(1) do not identify the totality of the works the subject of that subsection, they are descriptive of the types of works contemplated. It is plain that what is contemplated is some kind of conduit, as each thing listed in the parentheses are structures which things (water, sewage, electrical cables) pass through. A rock anchor does not fall within this category. On Ausgrid's interpretation of s 62, no subterranean acquisition would result in compensation unless the surface of the land is disturbed. If this were the correct interpretation the words "for the construction or maintenance of works" would have no purpose. Instead, s 62 deliberately limits the circumstances in which a landholder is not entitled to compensation for subterranean acquisitions. This is the policy reason why the word "works" should be read in a limited way and this reading is supported by the language of the section.
Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW) [1999] NSWCA 110; (1999) 9 BPR 17,011 is distinguishable. The rock anchors in that case were permanent and acquired to support a retaining wall cutting adjacent to the M2 and the Golf Club. They were not acquired for the purpose of facilitating other works being carried out, except to the extent that the cutting needed to be stable after the excavation for the construction of the M2. Pennant Hills Golf Club did not deal with the question posed in this case, and turned on the construction of the terms of the easement which was very different to that which is under consideration in these proceedings.

[31]

Ausgrid's submissions

Section 62 of the JT Act applies so that no compensation is payable under s 55 for the rock anchor easement. To read down the words of s 62(1) as contended by Bligh is contrary to Pennant Hills Golf Club. In that case the Court of Appeal rejected a strict and limited reading of s 62.
In the context of the whole of the JT Act, and s 62 in particular, s 62(1) evidences a statutory intention to limit compensation where the easement taken is subterranean only, does not intrude above the surface and would generally involve little or no interference with the rights of the dispossessed landholder. The specific exception is for actual damage that occurs during subterranean construction. The focus of the subsection is on the subterranean nature of the rights and works involved. Where entry into the land above the surface is involved, the other subsections may be triggered.
Bligh's contention that s 62(1) applies to works that "are an end in themselves" and that "are capable of both construction and maintenance" is not supported by the words of the subsection. The types of works referred to in the parentheses include conduits for electrical cables and pipes for sewage which are not ends in themselves as they must be for the purpose of carrying electricity or sewage from one place to another. All the works referred to in parentheses are works which can facilitate other works.
There is no evidence that the rock anchors are not capable of both construction and maintenance. Although their use overall is for a temporary purpose, during the time they are put to use they may well require occasional maintenance such as ongoing tensioning as the development progresses and the stresses placed on the anchors change. Further there is also no warrant for reading down s 62(1) so that the subsection restricts compensation in respect of works which are to remain, but which does not so limit compensation in respect of works of a temporary nature. This would be the effect of Bligh's proposed construction.

[32]

Section 62 applies to rock anchor easement

The terms of the Gazette notice as extracted above in par 17 for the acquisition of the rock anchors grant Ausgrid the right to use the identified underground area of land "for the purpose of constructing, placing, leaving, inspecting, repairing, maintaining, and de-stressing Rock Anchors". I agree with Ausgrid that this right falls within the terms of s 62(1) and therefore no compensation is payable to Bligh for the acquisition of the rock anchor easement with the exception of compensation for actual damage.
Pennant Hills Golf Club involved a preliminary question of law, namely whether the acquired land consisted only of an easement, or right to use land, under the surface for construction and maintenance of works within the meaning of s 62(1) of the JT Act. The terms of the easement in that case included the stipulation that the Roads and Traffic Authority would take all reasonable precautions to ensure as little disturbance as possible to the servient tenement. The primary issue in that case was whether this right to have the soil undisturbed meant that the acquired rights were greater to or different to those of an easement. At both first instance and on appeal the court held that the answer to the preliminary question was yes and that the applicant was not entitled to any compensation for the rock anchor easement. As Bligh submitted, that case did not turn on whether s 62(1) applied to rock anchor easements, however this was because it was not disputed by the applicant golf club that s 62(1) applied to the rock anchor easement. By answering the preliminary question in the affirmative both the Land and Environment Court and the Court of Appeal held that s 62(1) can apply to easements for rock anchors.
Bligh's submission that s 62(1) only applies to works that are ends in themselves cannot be supported. That intention cannot be discerned from the words of the subsection nor from the facts of Pennant Hills Golf Club. Contrary to Bligh's submission that the rock anchor easement in that case was not acquired for the purpose of facilitating other work, the Court of Appeal found that the easement was acquired to secure the wall in the road cutting against failure as a part of the complex of rights acquired by the RTA for the public purpose of the construction of the M2 (at [10]). The rock anchors in that case cannot therefore be seen as ends in themselves. I agree with Ausgrid that the focus of s 62(1) is the subterranean nature of the acquisition. The purpose of the section is to disentitle a landholder to compensation when the easement or right acquired would have little to no impact on the landholder's rights on the surface. Pennant Hills Golf Club is clear authority for a conclusion that s 62(1) can apply to rock anchors. Given its mandatory terms it must apply in this case to the rock anchor easement. There is no claim for damages under s 62. Bligh cannot receive compensation under s 55 for the rock anchor easement.

[35]

Mr Blackall's evidence on behalf of Ausgrid

Mr Blackall asserts the scaffolding and crane swing easements to be of "nominal value only" at $25,000 each, totalling $50,000 on the assumption of a narrow interpretation of the public purpose and $100,000 for injurious affection. Mr Blackall considered the scaffolding easement would have "minimal impact" and the crane swing easement "negligible" impact.
An extract from the valuers' joint report follows, outlining the deeds of agreement entered into by Ausgrid and other adjoining owners to 33 Bligh Street in relation to similar easements supplied to them after the preparation of their primary reports follows: 65. Adjoining Owner's Deeds in relation to the five (5) other adjoining properties, each of which had similar temporary easements acquired by Ausgrid. The Licence fees paid were as follows: (a) 25 Bligh Street, Sydney - Easements for Rock Anchor, Scaffolding and Crane Swing - $150,000 This agreement includes provisions for reimbursement costs associated with any Lessees in the building terminating their existing leases as a result of the presence of scaffolding in the immediate vicinity of the premises. (b) 37 Bligh Street, Sydney - Easements for Rock Anchor, Scaffolding and Crane Swing - $100,000 (c) 16-18 O'Connell Street, Sydney - Easements for Rock Anchor, Scaffolding and Crane Swing - $0 (d) 28-34 O'Connell Street, Sydney - Easements for Rock Anchor, Scaffolding and Crane Swing - $150,000 (e) 48 Hunter Street, Sydney - Easements for Rock Anchor, Scaffolding and Crane Swing - $1,282,225 [Telado]
In the joint report Mr Blackall stated that the deeds supported the sum of $150,000 on the basis that the Court accepts the most logical purchaser is an owner-occupier. A hypothetical potential vendor and purchaser would be unlikely to assume that the loss in value of 31 Bligh Street from temporary easements would be a factor of 34%, as reflected in the deed concerning 48 Hunter Street. Mr Dyson identified the deeds had limited periods of operation, generally for 12 months from commencement of the demolition period, may not meet the Spencer test as they cannot be assumed that not without compulsion and 31 Bligh Street as a smaller heritage building set back from the street frontage is more affected by the proposed works.
In cross-examination Mr Blackall stated that he adopted the figure of $150,000 as it reflected the maximum amount of compensation given to other surrounding properties with the exception of the Telado property as evidenced in the adjoining owner deeds. The $150,000 is comprised of $25,000 for the temporary blot on title for the scaffolding easement, $25,000 for the temporary blot on title for the crane swing easement, nothing for the rock anchor easement, and $100,000 for injurious affection. He agreed that he acted on the advice of Ausgrid's solicitor that the highest amount paid to a neighbouring property owner was $150,000 at the time he prepared his statement of evidence as he did not then have access to the adjoining owners deeds. He was provided with valuation reports for the easements prepared for Ausgrid. He was aware by the time of preparation of the joint report that Telado had been paid $1.282 million but did not believe he should change his opinion in relation to $150,000. His approach was informed by considering that there was no real diminution in the value of the property in the before and after approach. Mr Blackall was asked about the deed of agreement with 25 Bligh Street for three similar easements and whether the limitation of the scaffolding easement to 26 weeks with payment of $6,900 per week thereafter was a material difference from 31 Bligh Street. Mr Blackall did not take the terms of that deed into account in determining $150,000. He assumed the scaffolding easement would last for two years. Mr Blackall did not consider it was appropriate to focus on one agreement only. Mr Blackall accepted that a tenant in a building might be more concerned than an owner-occupier about the impact of the easements.
Concerning the easement for crane swing, Mr Dyson was asked in cross-examination how widely he investigated given the large number of development sites across the state and he accepted that he could have perhaps looked more widely. Mr Dyson did not disagree in cross-examination that the Telado deed settled court proceedings and all other claims that may arise out of a compulsory acquisition. He was not aware of the matters the $1.2 million settled. Mr Dyson agreed there were significant differences between 48 Hunter Street and 31 Bligh Street. In re-examination Mr Dyson stated that to have comparable transactions would require finding a similar heritage building with similar physical characteristics rather than a normal high rise building and a similar legal relationship meaning unrelated parties.
Bligh criticised Mr Blackall's approach of relying on agreements Ausgrid made with adjoining owners because the adjoining owners' deeds were entered into under threat of compulsory acquisition and must therefore be treated with caution per Chaudry v Liverpool City Council [2008] NSWLEC 251. There can be no assumption that such deeds represent full compensation as they arise from negotiated agreements. Mr Blackall did not review the terms of the deeds before adopting the figure of $150,000 which he was informed about by his instructing solicitor. He did not change his evidence despite the Telado deed. The deeds are very different to the easements in this case as they are limited in time for the completion of stages of the works on the Ausgrid site, have penalty provisions if those time limits are exceeded and provide for liquidated damages where a tenant does not renew and minimum notice to be provided for use of the adjoining owners' land. None of these matters are within the acquired easements in this case. Mr Blackall assumed the likely purchaser was an owner-occupier rather than an investor but the adjoining owner deeds are with investors. The attribution of $50,000 as market value under s 55(a) and $100,000 as injurious affection pursuant to s 55(f) was arbitrary.

[36]

Finding on market value of easements

It is clear from the valuers' evidence that there is scarce information of a market to aid in the valuation of easements by a comparative method. Mr Dyson identified the difficulties he experienced in seeking to find comparable transactions as most arrangements are private and not transacted in an open market. I accept his view that to find transactions comparable to the circumstances at 31 Bligh Street is difficult.
The large amount of $1.282 million paid under the Telado deed concerned other issues between the parties such as settling court proceedings which I infer influenced the deal struck. I am unable to obtain much assistance from that transaction.
Considering the crane swing easement, Mr Dyson noted that the crane swing easement is for an indefinite period. In his primary report Mr Dyson referred to Besmaw as supporting a construction of the exercise of the full terms of the easement that would mean that loads could be swung overhead at any time so that any prospective lessee would have to vacate at random times to facilitate the terms of the easement due to OHS issues. I have rejected such a construction of the easement above at pars 131-132. He states in his report that, regardless of his views as I have summarised in the previous sentence, for the purposes of his report he assessed the crane swing easement on the basis that the property could be occupied without disruption by Ausgrid using the direct comparison approach. He applied one transaction which enabled Westfield to operate a crane in the CBD for $75,000 per annum by multiplying that figure by 76 months from the date of gazettal with interest of 5% to arrive at $400,000. He did not provide any information about the terms of that crane swing easement.
Mr Blackall's amount of $150,000 for both scaffolding and crane swing is small and is consistent with his view that the impacts of these easements on 31 Bligh Street are minimal or negligible. He was provided with valuation reports when he prepared his primary report and the valuers both had the adjoining owners' deeds by the time of their joint conference. It appeared in cross-examination that Mr Blackall was influenced by the advice of Ausgrid's solicitor that the maximum paid by Ausgrid for easements on neighbouring properties was $150,000 except for the Telado deed. Mr Blackall did not appear to rely on the adjoining owners' deeds to any extent according to his cross-examination but they are identified by both valuers in the joint report and commented on.
The criticism of Bligh of the owners' deeds which were struck in the context of Ausgrid having compulsory acquisition powers are valid in my view as Chaudry and numerous other authorities have recognised, whether Mr Blackall particularly relied on them or not. I do not assume that the deeds represent full compensation. That the acquired easements in this case do not contain terms such as penalty provisions when works exceed a certain period, as in the deed for 25 Bligh Street, is not surprising. Such terms highlight a relevant matter in the valuation of the easements in this case which is that they do not have a fixed term albeit not being permanent. Mr Dyson's approach to the crane swing easement deals with limited information and allows for the estimated term of the crane swing at the date of acquisition in his approach. I will adopt his approach to the crane swing easement in determining compensation.
The scaffolding easement does appear to have a minimal impact regardless of whether a tenant or owner/occupier is at 31 Bligh Street and there is no basis to award more than a small amount as identified by Mr Blackall given that Mr Dyson did not separately value that easement. Doing the best I can on limited information I will determine compensation for the scaffolding easement at $25,000 and allow injurious affection of $25,000.

Bligh Consulting Pty Ltd v Ausgrid

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