CRG Nominees Pty Ltd v Department of Economic Development Jobs Transport and Resources [2015] VCAT 564 (29 April 2015)

1. Legal, valuation or other professional expenses incurred -section 41(1)(f); 2. Any intangible and non-pecuniary disadvantages resulting from the acquisition (solatium) - section 44; and 3. Interest - sections 53 and 56. 3. Market value is defined in section 40 of the LACA in relation to any interest in land on a particular date as "the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser". 4. The loss attributable to severance is also defined in section 40 of the LACA as "the amount of any reduction in the market value of any other interest of the claimant in the acquired land or any interest of the claimant in other land used in conjunction with the acquired land which is caused by its severance from the acquired land". 5. The compensation to be paid by a Claimant may be increased in accordance with section 44(1) of the LACA, by an amount for 'solatium as is reasonable to compensate the claimant for intangible and non-pecuniary disadvantages resulting from the acquisition". Any increase in solatium is subject to a statutory cap, being not more than 10% of market value.
2. Some other relevant points here are as follows.
3. Section 94 of the LACA provides that the sum awarded as compensation by the Court or Tribunal must be paid within one month of the date of the relevant order.
4. To the extent relevant, there is a line of previous decisions discussing the meaning of 'market value', with the landmark case being Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418, although bearing in mind that there is a specific definition of 'market value' in the LACA - see the relevant quote above. Also applicable here is Section 41(3) of the LACA which provides that:

1. We accept the relevant commentary and discussion of key cases at paragraphs 9-12 of Mr Chiappi's closing submissions, which are to the following effect. Whilst it is clear from these cases that the Tribunal cannot just invent or impose its own separate valuation, the Tribunal can "...a_ccept part of the evidence of one expert valuer and part of the evidence of another valuer and make appropriate adjustments in arriving at the true valuation_", as per ISPT v Melbourne CC & Valuer General of Victoria [2008] VSCA 180 at [15] to [26].
2. We acknowledge Mr Chiappi's highlighting of the fact that Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co of SA Ltd [1947] HCA 10; (1947) 74 CLR 358 at 374 is authority that any doubt in the compensation assessment process should be resolved in favour of the more liberal estimate.

1. At pages 9-15 of his Closing Submissions, Mr O'Farrell relied on certain case law/legal principles in arguing that the Tribunal should give weight to the August 2010 AECOM plans, which show the actual stabling yard activity occurring simply in the northern area of the whole wedge-shaped land. Dr Burgemeister's acoustic evidence had regard to these considerations. This is despite the fact that Mr O'Farrell conceded these AECOM plans were not publicly available as at the Date of Acquisition. Even allowing for these legal principles/cases, we see no reasonable basis for the Tribunal to give any significant weight to the AECOM plans, when they were not publicly known at the relevant date. We also observe that:
   • Dr Burgemeister is an acoustic expert but not one in the operation of train stabling yards.
   • During his cross-examination by Mr Chiappi, Mr Willison conceded per se the difficulty of giving any particular weight to the AECOM plan when it was not publicly available as at the relevant date.
2. Where in his paragraph 41 Mr O'Farrell queries whether the Claimant is 'assuming the worst' with the possible future impacts of the stabling yards in a manner contrary to the Tribunal's comments in Heislers v Melbourne Water Corporation [2014] VCAT 632, we see relevant facts in Heislers as distinguishable to the relevant facts here.

1. Mr O'Farrell for the Authority urged the Tribunal to adopt what might loosely be called the 'narrow approach' to applying the 10% cap. In brief, the 'narrow approach' assumes that when interpreting the critical words "the market value of the land" in Section 44(1), the appropriate approach is that:
   • The reference to "market value" means those two words as defined at section 40 of the LACA ie "market value, in relation to any interest in land on a particular date, means the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser".
   • The reference to "land" means literally the land being acquired. Following this approach, in the facts here, there is only a relatively small area of land being acquired ie the two slithers with a combined area of 2,710 sqm.
2. In summary, the Authority's submission is that the 10% statutory cap on solatium (correctly applied) restricts the amount of potential solatium to no more than 10% of the assessed market value of the 2,710 sqm slithers of land. Obviously this limits any solatium payable to a quite modest amount.
3. In terms of supporting case law, Mr O'Farrell relied upon the more restrictive approach to the operation of the 10% cap on solatium taken by:
   • Justice Vickery in Love v Roads Corporation [2010] VSC 537, where His Honour accepted that the 10% cap applied to the market value of the acquired land. This decision was in turn affirmed by the Court of Appeal in Love v Roads Corporation [2014] VSCA 30, albeit Mr O'Farrell conceded this 'solatium' aspect was not challenged at this higher level.
   • The Tribunal in Heislers v Melbourne Water Corporation [2014] VCAT 632 (where Member Martin was the Presiding Member), with the Tribunal stating at [138] that "...the statutory reference 'a 10% cap' must be applied to the land actually acquired, as opposed to the whole Heislers property".

1. Kozaris v Roads Corporation [1991] VicRp 17; [1991] 1 VR 237: solatium was awared at 5% of the market value assessment. 2. Coastal Estates v Bass Shire Council [1993] VR 566: Gobbo J awarded solatium at 5% of the market value assessment.

1. Moore v Roads Corporation (Land Valuation) [2008] VCAT 838: solatium was awarded at 4% of the market value compensation;

1. RK Morgan Holdings Pty Ltd v MMBW (1992) 77 LGRA 102: the claimant sought solatium at 10 per cent of the market value [at pg 114]. Gobbo J awarded 3% [at pg 115]. 2. Roads Corporation v Love [2010] VSC 32: Osborn J awarded solatium of $30,000 [796]. The award was more than 10% of the value of the land taken: 3.34 ha was acquired [332]; at $77,927/ha (using the values of Mr Brown, which the judge adopted), this gives a value of the land taken at $260,276.
2. In the following paragraph from Mr Chiappi's written Closing Submission, he respectfully queries whether the Tribunal in Heislers erred in concluding that the court for solatium purposes relied upon the land actually acquired in the following case - Waalt Homes Pty Ltd v Road Corporation Authority (1987) 64 LGRA 346. In other words, it is queried whether in fact the Waalt Homes decision (in awarding a percentage amount of solatium) utilised a broader approach of applying the relevant percentage figure to the 'before and after' market value.

(1947) 74 CLR 358

(1907) 5 CLR 418