Brock v Roads and Traffic Authority of New South Wales

Land and Environment Court (NSW)|2010-05-14|Before: Sheahan J, Williams J, Mr P

CITATION : Brock v Roads and Traffic Authority of New South Wales [2010] NSWLEC 244

APPLICANT PARTIES : Lynette Verlie Brock RESPONDENT Roads and Traffic Authority Authority of New South Wales

KEY ISSUES: COMPULSORY ACQUISITION OF LAND :- Market value - "before and after" method - characterisation of land - comparability - piecemeal approach to "after" valuation - severance - injurious affection - disputed disturbance claims

Croghan v Hawkesbury City Council (1998) 99 LGERA 375 Daandine Pastoral Co. Pty Limited v The Commissioner of Land Tax (High Court of Australia, Williams J, 26th August 1943, unreported) CASES CITED: Gosford Shire Council v Green (1980) 48 LGRA 201 Mir Bros Unit Constructions Pty Limited v RTA [2005] NSWLEC 467 Quach v Marrickville Municipal Council (Nos 1 & 2) (1991) 22 NSWLR 55 Sydney Water Corp v Besmaw Pty Ltd [2002] NSWCA 147

DATES OF HEARING: 10-14 May 2010 (written submissions 21 and 28 May 2010)

APPLICANT Mr R D Marshall, Barrister SOLICITORS Bilbie Dan LEGAL REPRESENTATIVES: RESPONDENT Mr P Tomasetti SC, SOLICITORS Henry Davis York

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30132 of 2009 BROCK v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES

JUDGMENT Introduction 1 His Honour: These class 3 proceedings concern the acquisition on 31 October 2008 of land at Glenarvon Road, Lorn, by the respondent (Roads and Traffic Authority or "RTA"), for the public purpose of constructing the "Third Hunter River Crossing" ('THRC') near East Maitland. 2 That THRC project includes new bridges over a railway line and the Hunter River (the "River"), some new roadway on the southern side of the River, and a new stretch of road, atop the levee bank on the northern side of the River, to join Glenarvon Road as it runs generally north towards Largs. All the works are in a corridor oriented generally in a north-south direction, and the acquired land will provide much of that corridor. 3 The new works had commenced prior to the hearing and were expected to be completed by late 2010. They will become part of Main Road 101, classified as a Regional Road, linking East Maitland to urban expansion planned for areas north of the applicant's property, such as Largs. The projections indicate a daily traffic flow on the new road of 6,500 vehicles by 2016. (The RTA's Colin Nunn explained how this estimate was arrived at, and opined that the increase in traffic was "not massive"). Case Management and Site Inspections 4 The Chief Judge agreed that Acting Commissioner Miller should take an early view of the applicant's land on 21 July 2009. The work on the road/bridge project was just beginning, so he personally inspected the "before" situation. Commissioner Miller prepared a report of his inspection, dated 23 July 2009 (Exhibit A7), and subsequently presided at a series of directions hearings by way of case management. I gratefully acknowledge his assistance with the hearing and determination of the matter. 5 On the first day of the hearing, Commissioner Miller and I conducted a follow-up inspection of the subject property in the company of the parties, giving us an impression of the "after" situation. The court also inspected some "comparable" properties in the Lower Hunter Region relied upon by each party, for the purpose of adducing a value for the land in the "before" and "after" situation. The Contest 6 On 1 December 2008 the RTA offered the applicant $650,000 for market value, and $74,828 for disturbance items (legal costs $8,800, valuation fees $11,000, cattle yards $37,698, plus $1,200 for relocation of bees, $10,000 for air conditioning, $5,000 for internal fencing, and $330 for accounting fees). 7 When she rejected the offer and brought her objection to this court, under the Land Acquisition (Just Terms Compensation) Act 1991 (JTC Act) on 27 February 2009, the RTA reached an agreement with her for implementation, at the RTA's expense, of an "adjustment plan" worth $334,700 to the benefit of the residue land. Particulars of the plan and works are to be found in the affidavit evidence of the RTA project manager Peter Wood. 8 Some elements of those adjustment works overlap with some elements of what has been claimed in the proceedings. Mrs Brock also contends that some of the work done by the RTA, pursuant to the agreed package, has not been adequate or satisfactory for her purposes, e.g. the fencing and water system. One particular complaint is that the fence on the eastern side of the road is not constructed on top of the levee bank and will be subject to flood damage. 9 In its final articulation, the applicant's claim is particularised under the following headings: (a) Market Value - s 55(a), (c) and (f) item (on the basis of a total severance, or $835,000 on a restricted access basis) $1,110,000 Disturbance - s 55(d) and s 59 items (b) Eastern Fence maintenance $214,122.07 (c) Stock Watering system maintenance/replacement $30,828.46 (d) Legal fees (s 59(a)) $16,300 (e) Valuation fees (s 59(b)) $12,750 (f) Erection of additional cattle yards on the northern parcel (including power and water (s 59(f)) $43,000

(g) Air conditioning of Brock residence (including rewire) (s 59(f)) $12,790

(i) Modification of internal fencing to reorient the farming operation on a north-south basis (s 59(f)) $5,000

(k) Signage and warning lights at stock crossing sites on both Glenarvon Road and the new road (s 59(f)) $55,000 10 Items (d), (e), (h), and (j) are not contested by the RTA, giving a total agreed disturbance figure of $30,780. 11 The applicant's expert valuer in the case, Gregory Jones (report 12 February 2010 - Exhibit A3. See also Exhibit A11) had provided Mrs Brock with a pre-acquisition valuation (Exhibit R10), somewhat different from that upon which she relies in these proceedings. 12 In its final articulation, the respondent's case, on the advice of its expert valuer, Mr Dempsey (Exhibits R4, R5 and R9), allowed $180,000 for the market value of the acquired land (rounded from $178,345), plus the following: Injurious affection and severance $140,000 Agreed disturbance items $30,780 13 If the applicant were to succeed on any of the disputed disturbance claims (fencing, watering, cattle yards, and road signage/lighting), the respondent says that her compensation should be limited to the following amounts: Maintenance of fencing $46,790 Maintenance of stock watering system $6,025 New cattle yards $5,250 Road signage $500 14 In their Joint Report dated 21 April 2010 (Exhibit A4), the expert valuers agreed on virtually nothing, apart from one "comparable sale", and a schedule of sales for the court to inspect and consider (Exhibit R6). The essential difference in their approaches is that Mr Jones sees the Brock land as a "rural residential" property, whilst Mr Dempsey sees it as a small operating farm with a house on it.

Affidavits, Reports and other Evidence 15 Apart from the expert valuers, the court has affidavit evidence and/or reports or Statements of Evidence ('SOE') from the following: Peter Boyer of Ausearch Pty Ltd (SOE 18 December 2009) on title history ( Exhibit R3 ). Dr Christopher Gippel (applicant) and Professor Gerald Nanson (RTA) on fluvial geomorphology - Joint report 19 January 2010 ( Exhibit A5) . Surveyor Peter Poole - for the applicant, dated 2 July 2009 ( Exhibit A6 ). Fencing contractors Shaun Hollingshed (applicant - affidavits 9 September 2009 and 22 April 2010) and Richard Burrell (RTA - affidavits 8 November 2009 and 16 December 2009). Farm Water experts Scott Edwards (applicant - affidavit 10 August 2009) and Richard Gordon (RTA - SOE 23 October 2009) - Joint Report 10 December 2009 ( Exhibit R1) . Agricultural expert John Dymock (RTA - SOE 17 November 2009 in reply to Mrs Brock's farming evidence) ( Exhibit R2) . Brett Watson, managing director of the signage company, retained by the applicant, and acceptable to the RTA. 16 The RTA filed a bundle of "Site Photographs" (Exhibit A1), which the court has been told were mostly taken at the time of Commissioner Miller's (first) site inspection, and the parties tendered a five-volume "agreed bundle" of documents (Exhibit A2). 17 Mrs Brock swore and filed four affidavits - 27 May 2009, 7 September 2009, 27 October 2009, and 29 April 2010. 18 Affidavits were also sworn by RTA officers Colin Nunn (11 September 2009), Paul Woods (23 September 2009), and two by Peter Wood (23 September 2009 and 18 December 2009). 19 The three RTA officers, the two fencing contractors, experts Dymock and Watson, the two valuers, and Mrs Brock also gave oral evidence at the hearing. The Brock land, the River, and water supply The lands - title particulars 20 Prior to the subject acquisition (i.e. in the "before" scenario) the applicant was the registered proprietor of Lot 1 in Deposited Plan (DP) 79480, Lot 1 in DP 81727, Lots 1 and 2 in DP 995413, Lot 1 DP in 770498, Lot 1 in 154528, Lot 4 in DP 150043 and portion 63 in DP 752474. In total, the applicant's land holding in the "before" scenario was 73.6858 hectares, but it was quite irregular in shape (see Exhibit A6). 21 Lot 1 in DP 770498 and Lot 1 in DP 154528 were located to the north of the neighbouring Ferraro property (which is surrounded on three sides by Brock land), and were generally referred to as the "northern parcel". Lots 1 and 2 in DP 995413 are located west of the Ferraro property, but north of the Rose Farm, and this area is referred to as the "western parcel". Lot 1 in DP 79480, Lot 1 in DP 81727 and portion 63 in DP 752474 were referred to as the "southern parcel". A relatively small proportion of the southern parcel (and of Lot 1 of DP 79480) was generally south of the River, but is landlocked. Lot 4 in DP 150043 is the north eastern tip of the northern parcel, but immersed in the River, which again turns eastward at that point. The areas of all these lots and portions are tabulated in Attachment 'B' to this judgment. 22 In the "before" scenario the Brock lands were severed by Glenarvon Road in an east-west direction in the southern parcel (in Lot 1 of DP 81727), and in a north-south direction in the northern parcel. The road actually made a 90 degree turn to the north within Lot 1 of DP 81727, and then dissected the Ferraro land, and the northern parcel. 23 The lands acquired for the purpose of the THRC are Lots 52-54 in DP 1124043 and Lots 62-64 in DP 1127714. The acquisition comprises a total of 6.85944 hectares. 24 Following the acquisition (i.e. in the "after" scenario) Lots 43 & 44 of DP 1124043 and Lot 4 in DP 150043 now comprise the northern parcel. Lots 52-54 in DP 1124043 sever this parcel in a north-south direction for the new Glenarvon Road as it did in the "before" scenario. However, this section of road now severing the northern parcel is much wider than in the "before" scenario. 25 Lots 1 and 2 in DP 995413 remain as the western parcel post-acquisition. 26 Lots 60 & 61 in DP 1127714 and portion 63 in DP 752474 comprise the southern parcel. Lots 62-64 in DP 1127714 sever this parcel in a north-south direction for the southern section of the new Glenarvon Road. That section of the "old" Glenarvon road, which severs the southern parcel east-west remains, and becomes a side road off the new road. 27 The Brock land holding following the acquisition (i.e. in the "after" scenario) now comprises 66.82589 hectares. Lot numbers and areas are also tabulated in Attachment 'B' to this judgment. (There is a slight non-material discrepancy between the total land areas in the "before" and "after" scenarios, attributed to better surveying techniques available as at the acquisition). The lands - features 28 The Brock land is zoned "1(a) Prime Rural" under the Maitland Local Environmental Plan 1993. It is identified in planning documents as flood-liable, and part of it was and is used as a levee bank as part of the Hunter Valley Flood Mitigation Scheme. Most of the levee bank falls within the area of the land acquired, and in some sections, the road is on top of the levee bank. 29 Most of the applicant's residue land lies to the west of the acquired land and road corridor. The quite narrow, riverside edge of her residue holding, lying east of the new road, will clearly become less "operational" as a consequence of the acquisition. Since the acquisition, Mrs Brock has augmented her reduced holding by acquiring, for some $600,000, "the Tier land" to the west of the residue land, in the direction of Lorn. Relationship between lands and River 30 The Hunter River is notoriously subject to major flooding (Exhibit A9). The River turns to the north just east of the new crossing, but its course from west to east downstream in the vicinity of Mrs Brock's land has "migrated" generally northwards over time, and will continue to do so. The evidence indicates that 4.3ha of the parent parcel, 4.05ha of the residue parcel, and 0.25ha of the acquired land lay/lies below the high water mark. (The value of this immersed land is not in issue as the valuers agree that the land beneath the River is of equal value to land above it). The new bridge will itself change the hydraulics of the River, and influence its route over time, but the experts cannot yet predict with certainty the extent of future "migration". Brock's operation 31 Mrs Brock's father (Mr Mathews) owned the land from the mid-late 1950s. She says that the shed building, a derelict cottage, and the old cattle yards were already there. After her parents separated in the early 1970s her father made his home on the land, and grazed cattle and grew lucerne. 32 Mrs Brock acquired the land in 1995 on her father's death, and commenced goat farming in approximately 1999. She has resided there with her family, in makeshift accommodation, virtually full-time since January 2002. She learned of the road/bridge proposal, and its likely need for part of her land, in 2003. Her husband, Terry, has employment off-farm, but supports her farming operations. Her son Tim lives there as well - as an external university student studying at home. Tim's allergies (especially to dust) give rise to Mrs Brock's claims for air-conditioning, and for the augmentation of her power supply to drive it. Mr and Mrs Brock have Council's consent to build a new home towards the northern end of the southern parcel and intend to do so shortly. 33 In general terms most of the applicant's residue land is mainly level grazing land and would be classified by NSW Agriculture as "class 4", ie mainly suitable for grazing, and lucerne growing, rather than crop cultivation (see the Agriculture Department's classification information in Peter Wood's affidavit of 23 September 2009). 34 The Tier land is suitable, and traditionally used for, the cultivation of lucerne. Mrs Brock intends to continue growing lucerne on that land, which is largely unfenced, but she may convert it to grazing in the future. 35 Both the historic Brock lands and the acquired Tier land have some water reticulation infrastructure, but are currently awaiting allocations under a new regulatory scheme. 36 Town water is supplied to the building currently occupied for residential accommodation by the applicant. Troughs located in various paddocks are also connected to this town water supply. 37 Mrs Brock's cattle graze over the northern, western and southern parcels, but her goats are confined to the southern parcel. Historically the applicant's farming operation on the southern parcel has been oriented in an east-west basis. 38 Mrs Brock gave evidence that she ran 100 head of cattle and 233 goats as at 31 October 2008. Sometimes cattle numbers reach 130 and goat numbers 300. It is acknowledged by the respondent that goats require more constant and intensive attention and more resilient fencing than cattle. There is in evidence a photograph of signs seen by the court on the gate of the property indicating that she sells goats, eggs, honey, hens and hay from the property. 39 Mrs Brock has stated that she will need to completely reorient her operations as a result of losing the acquired land, as access to the River is now much more difficult due to the new road. Mrs Brock has made a claim for the cost of operating and maintaining a system for pumping river water, for stock, into a tank, and reticulating it to troughs. The water experts agreed, and the capital work has been done, but her claim for its ongoing support (power, maintenance, etc) has been denied by the RTA. The Disputes to be Determined 40 Some of Mrs Brock's claims were at least partly accepted in the Valuer General's determination. While there remains a serious issue on the question of market value, there was also a strong contest on many disturbance items and the issue of severance. There are also conflicts between Mrs Brock's affidavit evidence and that of the RTA officers. 41 I propose to deal first with the appropriate valuation methodology, and then determine the value of the applicant's land in the "before" scenario. 42 As there are some disturbance claims which raise issues which may impact on the "after" valuation, I will deal with the disturbance claims before determining the "after" value.

Market Value Claim - Valuation methodology 43 The "before and after" method of valuation is an established method of determining compensation following the partial acquisition of a property. The method involves (1) the valuation of the property, in its entirety, immediately before acquisition, but excluding any increase or decrease in its value due to the carrying out of, or due to the proposal to carry out, the public work or purpose, and (2) a fresh valuation of the residue immediately after the acquisition. 44 This method of valuation is referred to, with approval, in Gosford Shire Council v Green (1980) 48 LGRA 201, where Reynolds JA (at 208) spoke of: "… a single concept of compensation in which the figure arrived at takes account of damages caused by severance as well as enhancement and … a convenient method of arriving at this sum of compensation and dealing with both damages for severance and enhancement in value at one stroke…. If the whole parcel is valued at the time of resumption and then the residue is valued, the difference is the ascertained amount of compensation, and severance damage and enhancement of the value of the residue are comprehended without any necessity for specification ." 45 The "before and after" method, therefore, encapsulates compensation payable to a dispossessed owner under s 55 (a), (b), (c) and (f) of the JTC Act, where applicable. 46 The valuers in this case agreed that, in respect of riverfront properties in the Maitland area, the title area, as opposed to the dry land area is used as the basis for sale and purchase transactions. Therefore, the area of the subject property, prior to acquisition, being 73.6858 hectares, embraces land included within Mrs Brock's title boundaries, which, as a result of migration of the River since 1823, now forms part of the riverbed. In addition, an area of 3.4388 ha, which is now landlocked and located on the southern side of the River at the southern extremity of the subject property as a consequence of the River's migration, is also included. 47 The court agrees with Mr Dempsey's approach that the value of improvements (on the subject property) not be included as their value does not change from the "before" to the "after" scenarios. The "Before" Valuation 48 The six comparable sales relied upon by the expert valuers are described in Annexure A to this judgment. Only Sale 2 is relied upon by both valuers (Ross Lane, Louth Park). 49 The valuers do not agree on the highest and best use of the land in the "before" scenario, and this disagreement is evidenced in the properties they have respectively chosen as their comparable sales. 50 Mr Dempsey is of the opinion that the subject property's highest and best use is that of "farming land" only, whereas Mr Jones believes it to be as a "rural residence/retreat", based on its entitlement to construct a dwelling. 51 I agree with Mr Dempsey that the subject land's highest and best use is that of farming land rather than as a rural residence. This is because the property has high soil quality, is comparatively level, and is subject to flooding, a factor that is considered a disadvantage for residences, but may be an advantage for farming land as topsoil is replenished. 52 The Tier land (sale 3) adjoins the southern boundary of the western parcel of the Brock land, namely, Lot 1 DP995413, and was relied upon by Mr Dempsey as a comparable sale. In analysing this sale Mr Dempsey made a 10% downward adjustment to reflect the fact that Mrs Brock, as the adjoining owner, was the purchaser. However, the mere fact that an adjoining owner purchases a property is not evidence, in itself, of a payment in excess of its market value. 53 The particular circumstances surrounding the sale of the Tier land need to be carefully considered and those circumstances are referred to in Annexure A. The available evidence regarding the sale leads me to conclude that the sale price reflected nothing more than the market value of the property. In addition, Mr Dempsey produced no evidence to show the land purchased had a "special potentiality" which would give it additional market value: Croghan v Hawkesbury City Council (1998) 99 LGERA 375, at 387 per Bignold J. 54 I consider the Tier sale to be the most comparable to the subject land. The first, and primary, reason is its immediate proximity to the subject land. The fact that this sale took place some 10 months after the date of acquisition is not a reason, in itself, for it to be discarded: Daandine Pastoral Co. Pty Limited v The Commissioner of Land Tax (High Court of Australia, Williams J, 26th August 1943, unreported - see The Valuer, (1943), vol. vii, p. 299 at 304). There is no evidence that the market for this class of land had changed in the 10 month intervening period, and I accept that the price paid was reflective of market conditions at the date of acquisition. 55 The sales at Maitland Vale and Mindaribba (sales 5 and 6) cannot be considered as comparables, because they have different amenity characteristics, are not flood prone, and cater for buyers seeking a rural retreat style residence. The analysis undertaken, in each case, is of no assistance. 56 A deduced land value of $28,511 per hectare for the Tier land can be compared with the deduced land values for Brisbane Fields Road (sale 1), at $28,552 per hectare, and Ross Lane (sale 2), at $29,070 per hectare. The deduced land value for Wallalong Road (sale 4) at $23,660 per hectare must be given much less weight, due to the fact that the sale of this property occurred some 29 months prior to the date of acquisition. 57 I "round" the value per hectare to $28,500, and apply it to the area of 73.6858 hectares. In the result, the value of the original Brock holding, excluding improvements, prior to the acquisition (i.e. in the "before" scenario) becomes $2,100,045. Details by lot size are set out in Appendix B. Disturbance claims 58 The applicant's disturbance claims, both agreed and contested, are set out at [9] above. 59 As already noted ([10]), the RTA does not contest those relating to legal fees, valuation fees, financial advice, and the loss of beehives. 60 Those disturbance claims that are contested are dealt with individually below. Most are based on Mrs Brock's claim that she has to make serious adjustments in her farming operations as a result of the acquisition and its various impacts. She has made extensive claims for various internal and boundary fencing expenses, stock crossing signage and warning lights, for an additional set of cattle yards on the northern parcel, for the cost of the use and maintenance of the stock watering system provided by the RTA, and for air-conditioning her residence. Fencing Claims 61 Mrs Brock has made two claims concerning fencing - item 9 for maintenance of what might be called the eastern boundary fence of the road (which is the new fence separating the road on the acquired land from the residue land east of the road and running down to the riverbank), and item 9 for modification of internal fencing. 62 The internal fencing claim is for $5,000, to cover materials for modification or replacement of fences in the southern parcel to facilitate its division into four paddocks for more efficient management. The RTA accepts the amount claimed as reasonable, but the court does not accept that the work involved is a direct and natural consequence of the acquisition, and the claim is refused. 63 I turn, therefore, to the more substantial fencing claim, which involves the risk to the so-called eastern fence, and was modified, as to amount, during the hearing to $214,122.07 (Mr Marshall's submissions, par 17). 64 The basis of this claim is that a fence, parallel to the River, presents a potential liability for maintenance and replacement following a flood, and would make necessary an adjustment in price, which would be recognized by the hypothetical vendor and purchaser. The evidence was that fences in close proximity to the River would normally, or at least where possible, be constructed at right angles to the direction of flow and would be of light construction making repair or replacement relatively cheap. 65 The fluvial geomorphologists (Exhibit A5) accept that the fence's location, parallel to the River at various elevations below the levee bank, results in its susceptibility to damage or being washed away in flood events of various magnitudes. 66 The "adjustment plan" agreed between the applicant and the RTA included the construction of a fence along the western bank of the River, below the levee bank, on the eastern side of the new road. Mrs Brock claims for its future maintenance, as she says it will be prone to damage by flooding and "rafting debris" from time to time, due to its location below the levee bank. Mrs Brock says its construction below the top of the levee bank is "unique", and exacerbates its vulnerability to damage and washaway. 67 The respective fencing experts have not agreed on projections of damage to fences over time, because of the variability of debris (in amount and nature), and disputed frequency of inundation. The compensation claim, if accepted, would be allowed at $214,122.07 if the court were to agree with the evidence of Mr Hollingshed, or $93,285 if the evidence of Mr Burrell were accepted. 68 Mr Tomasetti submits (written submissions par 59(a), p12) that: " The possibility of fences being damaged by a future flood is not financial loss which is a direct and natural consequence of the acquisition. Such costs are at most indirect and naturally flow from the flooding of the river and not the acquisition of the land for the new road.

They are costs which may never be incurred in the Applicant's lifetime or during the ownership by her of the land ." 69 Alternatively, he submits that "the amount claimed is speculative, too remote and unreasonable", in reliance on Sydney Water Corp v Besmaw Pty Ltd (Besmaw) [2002] NSWCA 147, in which Hodgson JA stated (at [11]-[13]): "… s59(f) of the Land Acquisition (Just Terms Compensation) Act provides that the acquirer should pay to the owner of the land acquired 'any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition'.

At first sight, the provision might seem unreasonable, and in need of a narrow construction, because the mere possibility that financial costs might reasonably be incurred at some time in the future seems hardly to justify an immediate payment of the full amount of those costs.

In my opinion, the answer to that consideration is that 'might reasonably be incurred' must be taken as referring to the time as at which compensation is being assessed; so that compensation is payable under this item only if the financial costs have actually been incurred or if it would, at the relevant time, be reasonable to incur them ." 70 However, Mr Tomasetti submits that "the cost of maintenance is a cost that is captured in the 'before' and 'after' method of valuation". Mir Bros Unit Constructions Pty Limited v RTA [2005] NSWLEC 467. 71 Mr Marshall submits (at par 21 of his submissions) that: " Mrs Brock would never have put a stock proof fence in this location were it not for the acquisition. To maintain animals on that eastern land she will now need to maintain the fence ." 72 I am of the opinion that this claim for fencing should be included as a factor to be adjusted in the "after" scenario, but the amount to be so included and adjusted must be calculated appropriately.

73 There are two distinct sections of fencing along the new road, and not all of this fencing is compensable. The northern section of lots 43 and 44 DP 112403 is described by the RTA's agricultural expert, Mr Dymock, as "useless" for agriculture. It is, therefore, unlikely to be stocked, and, accordingly, the maintenance and replacement of that fencing is not necessary. Further, as will be noted below, this particular area of land has been assigned no value, so any liability for fencing for this area need not be taken into account. 74 The fencing claim should, accordingly, be reduced to the cost of replacing that section of fencing that separates part lot 61 and part lot 60 DP 1127714 from the new road, a length of 730m. 75 While Mr Dempsey reached the conclusion that no compensation should be allowed for maintenance and/or replacement of any fencing, Mr Jones prepared a schedule to reflect, in present value terms, the cost of the maintenance and replacement of a fence with a total length of 1100m, built at a cost of $79,764.00, over a period of 100 years, assuming a cost increase of 3% per annum. Flood events allowed during the period were 1 in 5, 1 in 10, 1 in 20, 1 in 50 at that regularity, with the 1 in 100 year event occurring in the 100th year. Mr Jones estimated the percentage of the fence which would require replacement following each flood event, as follows - 10% from a 1 in five year flood, 33% in respect of a 1 in 10 year flood, 64% in respect of a 1 in 20 year flood, 36% in respect of a 1 in 50 year flood, and 73% in respect of a 1 in 100 year flood. Projected costs were discounted at 5% per annum resulting in a net present value of $214,122.07. 76 In relation to the actual cost of fencing works, I prefer the evidence of the more credentialed Mr Burrell to that of Mr Hollingshed. His cost estimate for the relevant 730m portion of fencing is $33,806 excluding GST, calculated at the rate of $36.96 per lineal metre for replacement, $3.35 per lineal metre for debris removal, and $5.00 per metre for removal of the existing fencing. 77 I agree that it is reasonable to assume that the subject property will still be used as farmland in 100 years time, as it has been, already, for approximately 180 years. However, a 20 year period is a more realistic timeframe that a prospective purchaser would consider when making a decision based on the very hypothetical calculations of an expert he might engage. Using the same assumptions as Mr Jones, but utilising Mr Burrell's cost estimates, a fence length of 730m, and a 20 year period, a net present value of $29,536 is calculated, $4,269 less than Mr Burrell's estimate for complete replacement. However, applying a more liberal estimate, based on the uncertain nature of flooding risk, the figure of $33,806 will be adopted for adjustment of the "after" value of the residue land. Stock Watering System 78 Also arising from the works in the "adjustment plan" is Mrs Brock's claim (item 9) for the costs of operating and maintaining the stock watering system provided at the RTA's cost. 79 The river pump was installed because she lost her historic easy access to free water from the River. In her fourth affidavit dated 29 April 2010, she annexed electricity accounts to prove usage of power to drive the water pump, metered since 4 September 2009. Her claim for $30,828.46 relates to that part of the residue land lying to the south of the east/west section of Glenarvon Road and to the west of the acquired land. However, in times of flood, or when stock needed to be held within a paddock for particular reasons, stock in that area were watered from one of two troughs connected to the town water supply. 80 The respondent's position is that by its having provided the new stock watering system the applicant has been adequately compensated for loss of direct stock access to river water. Again, Mr Tomasetti submitted that the amount claimed is "speculative, too remote, and unreasonable" (Besmaw). 81 This claimed amount, $30,828.46, was calculated by Mr Jones, and represents the net present value, over 105 years, discounted at 5% per annum, of costs estimated at the date of acquisition, at $128 per annum for maintenance, $320 per annum for electricity, and $4,200 for the pump replacement each 15 years. These costs have been escalated at 3% per annum through the 105 year period. 82 However, the costs that Mr Jones has estimated cannot be viewed in isolation without taking into account, firstly, the beneficial effect of a more expansive reticulated stock watering system available to the applicant's land lying to the west of the acquired land, and, secondly, the savings on the costs of purchasing town water.

83 In my opinion, the benefits conferred by the respondent's provision of the reticulated water system outweigh the burden caused to the applicant by the running and maintenance of that system. Therefore, this claim for disturbance (or any allowance for it in the "after" valuation) is rejected. Cattle Yards, Signage and Warning Lights 84 Mrs Brock's claim for new cattle yards (item 9) is based on her assertions that the northern portion of the residue land will not be accessible to her stock unless new yards are built there to enable loading and unloading of stock.

85 Prior to the construction of the new road, Mrs Brock moved her cattle between the northern and southern portions of her land by walking them either along the River frontage of the neighbouring Ferraro property, or through a gate located near the Rose Farm on the opposite (western) side of her land. The Rose Farm access is reliant on two gates on the boundaries of her two parcels being opened and chained against each other so as to create free access through a small area of land not owned by her. Mrs Brock has maintained a series of gates and fences to "prevent her cattle from wandering over towards the Rose Farm". 86 The applicant asserts that in the "after" scenario, her only legal access between the two portions will be effectively severed by the new road as walking cattle along the new road, which will potentially carry 6,500 vehicles in 2016, is dangerous to both traffic and stock. She relies on the evidence of Colin Nunn who said that the RTA would prefer that cattle not be walked along a major road such as the new Glenarvon Road (T 11.5.10, p79, LL41-42 & 49).

87 The claim for cattle yards was rejected by the respondent, as the asserted need for them is not a "direct and natural consequence of the acquisition of the land". As Mr Tomasetti submits, "if the roadworks had never been heard of and Mrs Brock or the hypothetical vendor were selling this land, all these questions would arise as well" (T14.5.10, p22, LL19-21). This is because Mrs Brock, in the "before" scenario, did not have legal access to the land between the River and the Ferraro land. 88 The respondent submits that the claim for new cattle yards is not justified, as Mrs Brock can still move her cattle along the new road, and the RTA relies on the evidence of its agricultural expert, Mr Dymock (Exhibit R2), who maintained under cross-examination that a second set of stockyards is not required, that the access under the bridge is perfectly adequate, and that it would still be safe and quite legal to walk the stock along the road reserve. Stock can legally cross the roads when necessary, subject to the correct posting of relevant movable warning signs, and possibly a flashing yellow light on any accompanying vehicle. 89 Mr Dymock further opined that if the court approved Mrs Brock's claim for additional yards, she would need only a very small pre-fabricated set costing $5,204, or, at most, one adequate for 100 head at a cost (installed) of $13,400. She would not need the gravel, power or town water she included in her claim. He believes the correct herd size for her property would be 35 head of cattle. He saw little merit in her claims for further readjustment of her operations, but acknowledged that the north-eastern corner of the residue land was virtually "lost". 90 Mrs Brock's use of the "unowned" land near the Rose Farm has elements of trespass and depends on some form of adverse possession. The respondent submits that it is still available to her in the "after" situation as, on the evidence, even if she has not acquired title by adverse possession, she "has in all likelihood at least acquired an interest in this land in the nature of an easement for stock access". As the evidence is that the gates and fencing at that site were erected prior to Mrs Brock's acquisition of her own land, and as Mr Boyer's evidence (Exhibit R3) shows no dealings with the relevant land in over 120 years, any right or title to deny her access would likely be extinguished by virtue of s 65 of the Limitation Act 1969. See Quach v Marrickville Municipal Council (Nos 1 & 2) (1991) 22 NSWLR 55, per Young J (at 67E). It is highly unlikely that any "better" claim will be pressed at this or any future stage for the trespassed land. 91 I find that the respondent's submissions on these issues, including the adverse possession aspect, persuasive, and, therefore, I hold that the claim for new cattle yards is unjustified. Accordingly, the disturbance claim for the cattle yards is rejected, and will not be reflected in the "after" valuation. 92 I turn now to the claims for warning systems (item 9). 93 The applicant claims $55,000 for the cost of the installation and maintenance of two sets of flashing road signs to enable stock to safely cross the new north-south section of Glenarvon Road and also the east- west section of that Road. (The applicant had originally assumed that these signs would also alter the speed limit for vehicles travelling along the road, when she chose to move stock. However, evidence was given by Mr Nunn that such signage would not be approved by the RTA as the ability to enforce such speed limits is questionable. Consequently, the court's understanding of the signage sought is flashing lights to alert motorists to the movement of stock across roads while the lights are flashing). 94 In terms of Mrs Brock's claim for stock warning lights of the type formerly observed on Nelson Bay Road, Williamstown, the RTA points out that those lights were designed to regulate traffic flow near a dairy farm which required twice-daily crossings of a busier road (8,000-9,000 cars per day, since increased - see T11.5.10, p8, LL1-23), but are no longer used. 95 The RTA also contends that there is no restriction on Mrs Brock's rights under the Roads Act 1993 to move her stock across and along roads safely. See Rural Lands Protection Act 1998 s 96, and Rural Lands Protection (General) Regulation 2001 cls 16 and 17, providing for a "temporary stock zone" designated by signs exhibited at the entry points of the zone to which it relates. Mr Dymock maintained his opinion that the lights are "totally unwarranted", and gave evidence "that the normal 1m by 700mm stock crossing signs are available from the Livestock Health and Pest Authority for approximately $150 each". 96 I am certainly not convinced that flashing signs are required, having regard to the traffic predictions and the frequency of stock movement. I am satisfied that four standard stock crossing signs, of the type described by Mr Dymock, will be sufficient to comply with the regulations, and ensure the safe crossing of the east-west section of Glenarvon Road as well the new north-south section of Glenarvon Road. Provided they are properly positioned, they will ensure the safety of stock, persons responsible for their care, and passing motorists.

97 The applicant may already have two appropriate signs, but I am prepared to allow $600 to cover the cost of four new signs. Air-Conditioning 98 Mrs Brock claims $12,790 (item 9) for the cost of supplying and installing an air-conditioning unit in the living space occupied by her son, who "has substantial allergies and he has reactions to dust mite and pollens and has multiple food sensitivities". His living (and study) space is described in evidence as a "site shed" mounted on piers inside a larger structure originally erected as a farm shed. It apparently does not enjoy development consent for residential use. 99 The medical evidence indicates construction dust to be Tim's main problem. In his affidavit of 23 September, Mr Peter Wood, the Project Manager, deposes that dust will be caused by the roadworks near the shed for one year, but will be mitigated by "watering down" practices. Construction was well underway at the time of the hearing, but Mrs Brock has done nothing about the failure of Tim's existing air conditioning unit (T11.5.10, p45).

100 This claim must be rejected. Injurious Affection and Severance 101 Mrs Brock's severance claim is made on the basis that she may lose under-bridge access between the western area of her residue land and the eastern side of the road, in the future, due to erosion, and movement in the course of the River. 102 Prior to the acquisition, this area east of the new road formed part of two paddocks which were fenced in an east/west direction enabling stock, on both sides of the levee bank, in their respective paddocks, to access directly the water in the River. 103 While access to those parts of the two lots lying to the east of the acquired land can now be gained from the new road, where gates are provided directly opposite those on the western side, and the RTA has installed additional gates for its own purposes, traffic projections will mean, from a practical point of view, that the only means of regular access for stock will be beneath the northern abutment of the new bridge at the southern end of this elongated parcel.

104 The legality of the access beneath the bridge is not in issue, as the land was acquired for a public road, and while that public road will, in fact, be the new bridge, the acquisition for this purpose actually relates to the land beneath.

105 There is no doubt that on completion of the bridge physical access beneath it will be available for stock and for farm vehicles at least up to standard utility dimensions. The issue that has divided the parties is whether or not that physical access will be available in perpetuity. 106 The fluvial geomorphologists (Exhibit A5) considered how vulnerable the property and the fences would be to future flooding in the River, and concluded (p5, s17, par 3(a)) that the applicant's under-bridge access may be washed away by erosion in 80 to 140 years: " Assuming no hydraulic impact of the bridge, progressively increasing curvature of the bend upstream of the bridge and an average rate of bank erosion, the bank will reach the location of the northern abutment and denying access under the bridge in approximately 80 to 140 years. This time could be less with the bridge in place but existing modelling does not allow a reliable estimate to be made for any such increase. This time could also be less if climate change increases flood frequency ".

107 The northern bank will need to be protected by rock riprap - the geomorphology experts recommend more than the RTA has designed for this project (see pars 78-80 on p38 of their joint report). 108 Mr Nunn says that the RTA will constantly monitor the migration of the River and consult over time with the government agency responsible for its management (presumably now the Department of Environment, Climate Change and Water). All will have plenty of notice if the bridge abutment could fairly be said to be seriously threatened. Any threatened loss of Mrs Brock's access at the abutment should, therefore, be prevented by regular inspection and assessment of the position. However, as Mr Nunn fairly conceded under cross-examination, the RTA's primary interest will always be the protection of the State's bridge asset rather than any question of Mrs Brock's access underneath it (T11.5.10, p78, LL34-49). 109 The applicant's contention is that, not only is there a risk that long-term access for lots 60 and 61 DP 112771 will not be available beneath the bridge, but that restricted access as well as the elongated shape of the two lots and the impact of the traffic on the amenity of her land will have a depressing effect on its value. These matters were reflected in Mr Jones' valuation, where he opined a reduction in overall value of 32.4%.

110 I am satisfied that the interests of the RTA in preserving the structural integrity of the bridge will ensure that access for stock and four-wheel-drive vehicles of standard utility dimensions will be available under the bridge for the indefinite future, it not forever. However, the utility of this elongated area between the new road and the River and the convenience of its management have both been reduced substantially in the "after" scenario, e.g. the extra time required to move stock in and out of this area, and the loss of the ability to check this area from the top of the levee bank.

111 Mr Dempsey acknowledged injurious affection by reducing the "after" value of the land to the east of the acquired land to $15,000 per hectare, representing a reduction of 42% from his "before" value of $26,000 per hectare.

112 I have concluded that the market value of those parts of lots 60 and 61 DP 1127714 to the east of the acquired land, having an area of 5.778 ha, has been reduced by 50% from the "before" value of $28,500 to $14,250 per hectare, indicating the "after" acquisition value of that area to be $82,337 before any allowance is made for the fencing liability. 113 Accordingly, the severance of the eastern portions of the residue land will be adjusted in the "after" scenario. These adjustments are discussed below (see also Annexure 'B').

The "After" Valuation 114 The applicant's "after" valuation is based on the evidence of Mr Jones. In coming to his conclusion he relied upon the sale of a riverfront property at Coolongolook. This property is located 110km to the north of the subject property and was not inspected by the Court. A sale occurred in October 2006 sometime after the acquisition and construction of the Coolongolook Deviation to the Pacific Highway, which divided the property into two parts. The "before" value was adopted from a valuation undertaken on behalf of the Valuer General for the purpose of making an offer following an acquisition at a date which was never disclosed but possibly October 1996. The reduction in value, between the compulsory acquisition and the subsequent sale, was calculated at 32.4% by Mr Jones. 115 There is no evidence to suggest the comparability of the Brock land and this Coolongolook land, and the "impact" of the Pacific Highway cannot be said to be in the same category as that caused by the proposed road in the circumstances of the present case. Further, the analysis was based on a "before" valuation conducted by the Valuer General, rather than a market transaction, and the court has difficulty relying on values deduced from compulsory acquisitions, absent better comparability. Although Mr Jones cites comparable sales to justify the Coolongolook "before" valuation, there is insufficient evidence before the court to have comfort in that valuation. 116 I have concluded that Mr Jones' approach to the "before and after method" cannot be relied upon, despite the "impact evidence" used to justify his approach. 117 Adopting, as Mr Jones did, a flat rate of diminution is not as reliable as conducting a comprehensive analysis of the individual portions of land that comprise the subject property and the effects of the acquisition upon those individual portions. As Mr Tomasetti submitted (par 48): " This diminution factor is applied to the entire area of the Subject land, which includes the Acquired Land and the Landlocked Portion and land that is away from the new road (ie the Western Portion) and used for agriculture where the productivity of the land is unaffected by the road works. This methodology is unsound because the Applicant ought not be compensated for loss of the land acquired and then for the injurious affectation to that land. The Landlocked Portion is unaffected (indeed it is arguably improved following the construction of the THRC Project) by the Acquisition and the new road, as is much of the Residue Land ." 118 I prefer and accept Mr Dempsey's "piecemeal" approach, which requires the valuation of the various areas of the residue land on an individual basis, because the acquisition affects each of those component parts differently. These portions are discussed individually below. Lot 4 DP 150043 (.7613 ha)

119 This small parcel is located at the Northern extremity of the subject land and now forms the bed of the River at this point. The same value has been retained in the "after" scenario.

120 These two lots comprise the western part of the Northern land, and are situated 350m, at their closest point, from the new alignment of the North/South section of Glenarvon Road. They have not been adversely affected by the acquisition.

121 These parts of Lot 61 are the landlocked area south of the River, and that part of it which now forms the bed of River itself at that point. Part lots 43 (5.9223 ha) and 44 DP 1124043 (5.2817 ha), part lot 60 DP 1127714 (8.82 ha), lot 63 DP 752474 (.8625 ha) and part lot 61 DP 1127714 (16.2862 ha)

122 These lots are all located to the west of the acquired land and form the kernel of the residue Brock land. I have come to the conclusion that these lots have all been adversely affected, in a similar manner and to a similar extent, by the acquisition. 123 In coming to that conclusion I have had regard, inter alia, to extracts from the review of environmental factors undertaken by Environmental Resources Management Australia Pty Limited on behalf of the RTA, referred to by Mr Jones (at pp18-19 of Exhibit A10). The report predicted that by 2016 day and night time noise levels would increase from 32 dB(A) to 51 dB(A) and from 26 dB(A) to 45 dB(A) respectively in the vicinity of the applicant's dwelling. The author of that report no doubt had regard to the RTA's projections of vehicular traffic. 124 The same report identified the negative visual impacts from the north bank of the River in the following terms: " Short term visual impact of machinery, work crew and signage lasting for the duration of construction with works lasting longer than other projected works due to construction of new bridge New road would cut through the rural landscape and divide the rural scenery New bridge would divide the existing view to the river in two New road and bridge would contract (sic) sharply with the rural and natural settings, would be very obvious additions to the setting and would be likely to detract from the existing high visual amenity of the existing scenery when viewed from this location New road and bridge would be a dramatic contract (sic) to the existing setting where there are currently no built elements and would be likely to appear as large built elements. The scale of the new built elements would be somewhat lessened by their being linked to the existing Glenarvon and Pitnacree Roads. Materials and form of the new road and bridge would be likely to contract (sic) sharply with the rural and natural settings " 125 Similar amenity impacts are identified in relation to the northern parcel but in addition: " The new road would be approximately twice the width of the existing Glenarvon Road and would be elevated above the surrounds and would therefore appear out of scale in an environment where previously there was no built element ". 126 It is quite apparent that the quiet rural setting of the subject property, as it existed prior to acquisition will be substantially changed but the productive capacity of the residue will, subject to what has been said in respect of the land to the east of the acquired area, remain undiminished. As the productive capacity of prime farmland, such as the subject property, is the main determinant of its value, any diminution in value must be related to the attractiveness and general environment of the subject property as a place to work and live. 127 Mr Dempsey concluded that the value of these lots had been reduced by $2,000 per hectare, or 7.7% of his "before" value of $26,000 per hectare, to $24,000 per hectare. Even taking into account the roadside planting undertaken by the RTA on the western side of the acquired land, I have formed the view that a reduction of 10% from $28,500 ([57]), namely by $2,850, to $25,650 per hectare would be more reasonable in all the circumstances.

Part lot 43 DP 112403 (.8 and .3627 ha) 128 This area of 1.1627ha lies to the east of the acquisition area. Approximately 0.8ha remains unchanged as part of the bed of the River, while the dry land component, extending up to the new roadway has an approximate area of 0.3627 ha. The larger area (0.8 ha), in accordance with the evidence, retains its "before" value, while the smaller area was described by Mr Dymock as "useless", with which description I agree. Accordingly, in the "after" scenario, I have assigned no value to this small area.

Part lot 44 DP 112403 (.32139 ha) 129 This area lies to the east of the acquisition area and immediately south of part of lot 43 in the same DP, referred to immediately above. This area was also described by Mr Dymock as "useless", and again I agree. Accordingly, in the "after" scenario I have assigned no value to this small area. The "After" Valuation before adjustment 130 These calculations bring me to a conclusion that the unadjusted "after" valuation of the residue Brock land is $1,696,764. Conclusion 131 Based on the "before and after" valuation method, where the individual affected portions are valued, and taking into account the adjustment for fencing (which reduces the "after" valuation of $1,696,764 by $33,806 to $1,662,958 - see Annexure 'B', p2), the loss in market value I arrive at is $437,087. 132 The disturbance items that are compensable are those agreed ([10]) - i.e. legal costs, valuation fees, financial advice, and the loss of beehives - plus the $600 for road signage ([97]), bringing me to a total of $31,380. 133 The total compensation payable to the applicant is, therefore, $468,467. 134 The orders of the court are: 1. The applicant's claim for market value compensation under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 is allowed at $437,087; 2. The applicant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is allowed at $31,380; 3. The costs of the proceedings are reserved; 4. All the exhibits may be returned. Annexure A - Schedule of comparable sales

169 Brisbane Fields Road, Morpeth Date of the sale - 30 March 2007. Sale price - $725,000. Zoning - 1 (a) Prime Rural Land (Maitland LEP). Land area - 20.213 ha. Improvements - Three-bay galvanised iron clad shed on timber frame with earth floor. Towards the rear of the property there is a small metal shed with an out-building. The property has been laid out for irrigation with underground mains. A pump is located on the bank of the Hunter River. Without evidence to the contrary it is assumed that the property enjoys pumping rights. The adopted value of the improvements is $50,000. Features and remarks - The property is in close proximity to Morpeth and some 12 km from Maitland. Brisbane Fields Road is a dead-end road terminating a short distance to the east and separates the river frontage land from the balance, which extends to a frontage to Duckenfield Road. Brisbane Fields Road forms part of the levee, which appears stable at this point. Up to the time of sale the property was used as a turf farm but now is devoted to the production of the lucerne hay. The land is flood liable . Deduced land value - $33,394 per hectare. Deduced land value adjusted for comparison with the subject property - A 5% adjustment has been made having regard to the market conditions in October 2008 and a further 10% adjustment to reflect the smaller size of the property compared with the subject property resulting in a figure of $28,552 per hectare. 2. 57 Ross Lane, Louth Park Date of sale - 28 September 2007. Sale price - $825,000 . Zoning - 1 (a) Prime Rural Land (Maitland LEP). Area - 20.64 ha. Improvements - Structural improvements comprise a number of large rural buildings and a basic metal clad residence. Underground mains for irrigation have been laid . Adopted value of improvements $225,000. Features and remarks - The property comprises alluvial flood prone flats adjacent to Wallis Creek. The property is located on the outskirts of South Maitland with access through a number of comparatively narrow streets, which detract from the general appeal of this property. Deduced land value - $29,070 per hectare. Deduced land value adjusted for comparison with the subject property - Making the same adjustments as for sale number 1, a figure of $24,855 per hectare is obtained. 3. Lot 2 DP 1128961, Glenarvon Road, Lorn (The Tier land) Date of sale - 7 August 2009. Sale price - $600,000. Zoning - 1(a) Prime Rural Land (Maitland LEP). Land - 18.94 ha. Improvements - Two old farm sheds clad in galvanised iron sheets in poor condition. While these two sheds have some utility value no value has been assigned to them. The property has the benefit of an easement enabling water to be drawn, for irrigation purposes, from the Hunter River just to the north of that part of the subject property lying between the existing Glenarvon Road and the Hunter River. Underground irrigation mains have been laid. For the purpose of analysis the value of improvements has been taken as nil. Features and remarks - This property has frontages to Glenarvon Road and to an unmade road extending north from Glenarvon Road but, significantly, it adjoins the southern boundary of land owned by Mrs Brock and referred in the judgment as the Northern parcel. The road frontages are not fenced as the land was used by the vendor for the production of the lucerne hay. Mrs Brock has been using the property in a similar manner. The property was first marketed with the vendor's residence and land adjacent on the southern side of Glenarvon Road. As a sale did not eventuate the property was subdivided and only the land on the northern side of Glenarvon Road was offered to Mrs Brock. It is considered that no adjustment to the sale price needs to be made for the fact that the land was purchased by Mrs Brock as the adjoining owner. No evidence was adduced that the adjoining owner to the east was interested in the property which reinforces the view that a premium was not paid by Mrs Brock. This is a directly comparable sale requiring the minimum of adjustments. Deduced land value for comparison with the subject property - The sale shows $31,679 per hectare. No adjustment is made for date of sale but a 10% reduction, having regard to the size of this property compared to the subject property, results in a deduced land value of $28,511 per hectare. 4. Wallalong Road, Wallalong Date of sale - 29 May 2006. Sale price - $1,176,242. Zoning - Not specified but assumed to be the equivalent to the zoning of the subject property. Land - 49.71 ha. Improvements - No structural improvements. Features and remarks - The property enjoys a frontage to the Paterson River from which water is drawn enabling the whole property to be irrigated. The property is dissected by Wallalong Road with only a small part of the property being located between that road and the river frontage. Wallalong Road is an unsealed road which is shown on maps as a "private road" but it is accepted that there is no restriction on access to the property. Dairy farming predominates in the area but this property was used for the production of lucerne hay. The property is located some 6 km from the subject property in a direct line but at some considerable distance by road. The land is flood liable. In theory, the property may have a dwelling entitlement but the problems of access and flooding make it unlikely that development approval could be obtained. It appears that the purchasers discounted any chance of obtaining such approval. Deduced land value - $23,660 per hectare. Deduced land value adjusted for comparison with the subject property - Taking into account the time of the sale, the size of the property and the layout of the subject property, no adjustment is made. 5. 467 Maitland Vale Road, Maitland Vale. Date of sale - June 2008. Sale price - $1,950,000. Zoning - 1 (a) Prime Rural Land (Maitland LEP). Land - 27.62 ha. Improvements - The improvements could be viewed only from the roadside, at a considerable distance, with the result that an accurate description could not be made. There would appear to be a substantial heritage listed residence with attached studio affording excellent views , in a generally southerly direction , together with some farm buildings. Mr Jones estimated the value of the improvements at $550,000. Features and remarks - The land falls, generally, from the road frontage to the Hunter River. The land has mostly been cleared. The portion adjoining the Hunter River is flood liable. Distance to Maitland is approximately 12 km. Surrounding properties are utilised for rural residential purposes (sometimes referred to as "hobby farms") almost invariably with substantial dwellings sited to take advantage of an elevated position and views. Deduced land value - $50,688 per hectare. The subject property could never be considered as a "hobby farm" and possesses none of the features desired by purchasers of rural residential properties. For these reasons this property cannot be considered comparable and the analysis undertaken is of no assistance. 6. 378 Tocal Road, Mindaribba. Date of sale - June 2007. Sale price - $2,300,000. Zoning - 1 (b) Secondary Rural Land and 1 (a) Prime Rural Land (Maitland LEP). Land - 41.98 ha. Improvements - Said to include an older single storey dwelling with three bedrooms, the bathrooms, study, lounge, dining, single garage and single carport. Other improvements include a detached clad/brick and rib metal guesthouse with two bedrooms, bathroom, kitchen and lounge, tennis court, large ribbed metal workshop and extensive timber/wire fencing. These improvements could be viewed only at a distance of some 250m and were partly hidden behind extensive tree cover. The improvements are estimated to have a value of $500,000. Features and remarks - This is a battle-axe shaped property with a particularly long driveway entrance thus creating a very private location out of view of Tocal Road. The land falls from the end of the driveway in a generally northeasterly direction towards the Paterson River. Deduced land value - $42,877 per hectare. This property is also considered not to be comparable to the subject property for the reasons given in respect of sale number 5 and the analysis undertaken is also of no assistance. Annexure B

Property Description And Valuation BEFORE Acquisition Description Area Ha $ Rate per ha $ Market Value Lot 1 DP 79480 31.24000 Lot 1 DP 81727 11.05000 Lot 1 DP 995413 7.67400 Lot 2 DP 995413 7.67400 Lot 1 DP 770498 8.35400 Lot 1 DP 154528 6.07000 Lot 4 DP 150043 0.76130 Portion 63 DP 752474 0.86250 Total 73.6858 28,500 2,100,045

The Acquired Land Description Area Ha Lot 52 DP 1124043 1.26900 Lot 53 DP 1124043 0.40940 Lot 54 DP 1124043 0.05777 Lot 62 DP 1127714 0.07327 Lot 63 DP 1127714 1.04100 Lot 64 DP 1127714 4.00900 Total 6.85944

Annexure B (cont) Property Description Description Lot 4 DP 150043 part of river Lot 1 DP 995413 west of acquisition Lot 2 DP 995413 west of acquisition Lot 43 DP 112403 Pt Lot 43 west of acquisition Pt Lot 43 east of acquisition Pt Lot 43 part of river Pt Lot 43 between acquisition and river Lot 44 DP 112403 Pt Lot 44 west of acquisition Pt Lot 44 east of acquisition DP 1127714 Pt Lot 60 west of acquisition Pt Lot 60 east of acquisition Pt Lot 61 landlocked land Pt Lot 61 part of river Pt Lot 61 west of acquisition Pt Lot 61 east of acquisition Lot 63 DP 752474 west of acquisition Sub total Less allowance for fencing Total And Valuation AFTER Acquisition Area Ha $ Rate per ha $ Market Value 0.76130 28,500 21,697 7.67400 28,500 218,709 7.67400 28,500 218,709 5.92230 25,650 151,907 0.8 28,500 22,800 0.3627 0 0 5.28170 25,650 135,476 0.32139 0 0 8.82000 25,650 226,233 1.11600 14,250 15,903 3.43880 28,500 98,006 2.84300 28,500 81,026 16.28620 25,650 417,741 4.66200 14,250 66,434 0.86250 25,650 22,123 1,696,764 liability eastern portions of Part Lots 60 & 61 DP 1127714 33,806 66.82589 1,662,958

$437,087 plus DISTURBANCE $31,380

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

At a glance

Court

Decision date

Before

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Judgment (43 paragraphs)

Parties

Cases Cited (4)

Cited By (3)