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[1995] NSWLEC 172
General information, not legal advice.
Land and Environment Court (NSW)
1995-10-18
Bignold J
Original judgment source is linked above.
For the reasons given, I determine that the Second Applicant has no compensatable interest, and its objection under the Just Terms Act must be dismissed.
1. Compensation payable to the First Applicant is determined in the sum of $139,500.
2. The Second Applicant's claim to compensation is dismissed.
ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT
Parties First Applicant T E DAVIS PROPERTIES PTY LIMITED
Key issues Compulsory acquisition of part of First Applicant's land for Tomerong By-Pass.
Claims for compensation by owner of land (First Applicant) for loss of land and loss of timber and by an associated company claiming loss of profit à prendre to recover timber from compulsorily acquired land.
Before and After method - highest and best use as concessional lot subdivision.
Agreement between parties as to market value of land in before value.
After value determined by preferring valuation on behalf of First Applicant.
Liberal estimate of value preferred in case of competing valuation evidence.
Second Applicant has no compensatable interest under the Act.
Hearing date(s) 24, 25, 26 October 1994, 30 and 31 March 1995.
Thus the present case is not, one which attracts the principle denying "double recovery" (see Brown at para 3.26 citing, inter alia Horn v Sunderland Corporation (1941) 1 All ER 480; and see also Commonwealth v Millege [1953] HCA 6; (1953) 90 CLR 157) for the simple reason that the special value of the timber to the First Applicant is not absorbed in the market value of the land based upon its highest and best use in a concessional lot subdivision.
There can be no doubt that an equitable profit à prendre constitutes an "interest in land" within the meaning of the Just Terms Act: see Australian Softwood Forests Pty Ltd v Attorney-General for the State of New South Wales [1981] HCA 49; (1981) 148 CLR 121; Permanent Trustee Australia Ltd v Shand (1992) 27 NSWLR 426.
(1953) 90 CLR 157
(1981) 148 CLR 121
(1992) 27 NSWLR 426