1. Mr Brown, noting the opposing opinions of Mr Negri and Ms Petersen as to the possibility of the Scenario A Land being rezoned having regard to the engineering evidence on the potential for a cut-and-fill operation concluded that a premium above farm land rates, was appropriate for the Scenario A Land. He adopted $60,000.00 per hectare which is a 100% premium on his rate for the higher land.
2. Mr Dudakov did not apply a premium for this land on the basis of the Council's planning advice that a rezoning of this land was unlikely.
3. Mr Thomas assessed the value of the Scenario A Land at $7,970,000. He did so by starting with a rezoned value of $1,000,000.00 per hectare and then deducted 25% for Profit and Risk and $3,120,000 for the cost of the cut and fill earthworks.
4. The Tribunal does not accept Mr Thomas' assessment. His starting point at $1,000,000.00 per hectare far exceeds the sale of the similarly sized adjoining parcel, which was accepted by Mr Brown as valid market sale, and which he analysed at a cash-equivalent of $375,000.00 per hectare. In addition, Mr Thomas' Profit and Risk allowance of 25%, whilst a fairly middle-of-the-road rate for growth area englobo land appears not to reflect the material time and risks of obtaining a rezoning and the material time and risks associated with a cut and fill operation on an active flood plain.
5. In regard to Mr Brown's valuation of the Scenario A Land, the Tribunal observes several material negative impacts on the prospects of a purchaser buying it for its rezoning potential. These include:
   • the time and risks of obtaining a rezoning;
   • the sequential time and approval risks associated with the subsequent cut and fill operation;
   • the fact that the land has long very narrow shape, which would add difficulty to efficient lot yield; and
   • the fact that the resultant subdivided lots would be on filled land.
6. Notwithstanding those negatives, the land directly borders the urban growth boundary and urban zoned land under development and as such warrants some level of premium over farmland rates for its very long term prospects. The Tribunal considers that Mr Brown's adopted premium of $30,000.00 per hectare over his rate for the higher farm land reasonably recognises those prospects. It is also noted that a $30,000.00 per hectare premium represents a small stake in the context of long term potential at $375,000.00 per hectare (current values).

1. The respondent is critical of Council's failure to call Mr Barrett to give evidence in this proceeding regarding his valuation assessment that accompanied the offer made to the respondent following the acquisition. Further, the respondent says the rule in Jones v Dunkel[50] operates to lead to an inference that this uncalled evidence would not have assisted Council's case.
2. The difficulty with the respondent's submission in this regard is that it was never part of Council's case before the Tribunal that the market value of the acquired land was that which was contained in Mr Barrett's certificate of valuation. As we have noted earlier, Council's case has been consistent throughout the proceedings; the market value of the acquired land is as assessed by Mr Dudakov and he was called to given evidence on his assessment.
3. Neither was it part of the respondent's case that the valuation assessment of Mr Barrett should be relied upon for any reason until at the 11th hour in these proceedings. It was only after making the concessions regarding the usefulness of Mr Thomas' assessment and the necessity for adjustments to be made to Mr Brown's assessment, that the respondent submitted that Mr Barrett's assessment had any relevance in these proceedings.
4. We note:

(8) To the extent that an amount of compensation offered under this section, or any part thereof, is not disputed, the amount offered is binding upon the Authority unless the Authority can demonstrate that the information contained in the offer and relied upon by the Authority in making the offer was incorrect.

b) Section 51(7) of the LAC Act provides:

(7) If the amount of money paid under this section exceeds the amount of compensation determined under this Act for -

(a) the acquisition of the interests of; or

(b) the loss or expenses sustained or incurred by; or

(c) the solatium payable to -

the person to whom the money was paid, that person is liable to pay to the Authority as a debt due to the Authority an amount equal to the difference between the amount paid to that person under this section and the amount of compensation which is so determined.

(9) An amount of compensation paid to a person under subsection (8) shall not prejudice the final settlement or determination of the amount of compensation payable to that person under this Act.

d) Section 90(2) of the LAC Act provides:

(2) In determining the compensation payable the Tribunal or the Court is not bound by the exercise of any discretion of the Authority or by any opinion or determination of the Authority, but must determine the compensation payable in the particular circumstances of the case having regard to the provisions of this Act.

1. We see no reason for Council to have adduced evidence as to a valuation assessment it did not advance in the proceeding in circumstances where the LAC Act provides that an acquiring authority such as Council is:

a) not bound by the offer made and advanced, where the amount of the offer is disputed; and > > b) the LAC Act contemplates that a determination may be made for an amount that is less than the amount advanced under s 51; and > > c) the Tribunal is not bound by the exercise of a discretion by an acquiring authority; and > > d) the LAC Act provides that the amount of compensation paid under s 51(8) must not prejudice a determination made under the Act.

PART G - CONSTRUCTION OF s 43(1)(a) AND (b) OF THE LAC ACT

1. It is clear to us that the differences between the parties are not simply differences of the application of s 43(1)(a) and (b) of the LAC Act to the facts of this matter, but a fundamental difference as to the construction of those provisions.

1. The fundamental difference involves the proper construction of the 'purpose' of acquisition and the 'proposal to carry out' that purpose as used in s 43(1)(a) of the LAC Act. This issue requires determination first because it is only after we have settled on the proper construction of these provisions that the Tribunal can properly navigate its way through the evidence given on behalf of both parties to identify the evidence that is relevant to the proper assessment of the market value of the acquired land.
2. While s 43(1)(a) of the LAC Act may be generally referred to as embodying or reflecting the principle arising from the Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 ('Pointe Gourde'), our task is to interpret and apply s 43(1)(a) as we find it.
3. The principle (and its rationale) enunciated in Pointe Gourde by Lord McDermott is as follows (footnotes omitted):[51]

It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition. As it was put by Eve J in South Eastern RY. Co v London County Council (1): 'Increase in value consequent on the execution of the undertaking for or in connexion with which the purchase is made must be disregarded.' This rule was recognized by the Full Court and, indeed, appears to be the basis of his judgment Blackall C.J. after a reference to Lord Buckmaster's statement of the principle in Fraser v Fraserville (2), proceeds: 'In the present case, although a value as a quarry had admittedly been created prior to the acquisition, that value was increased by the fact that a base was being established in the vicinity for which a large quantity of stone in a readily accessible situation was required. In other words, the value was enhanced by the scheme of the party acquiring the land, and that is not a factor for which additional compensation may properly be awarded.'

1. While the principle in Pointe Gourde as enunciated by Lord McDermott requires the disregarding of 'the scheme underlying the acquisition' in determining compensation for compulsory acquisition, s 43(1)(a) of the LAC Act does not use those words. Instead, what must be disregarded under s 43(1)(a) is any increase or decrease in the market value of the interest in the acquired land arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired.
2. In Springfield Land Corporation (No 2) Pty Ltd v Queensland [2011] HCA 15; (2011) 242 CLR 632 ('Springfield'), the High Court considered the operation of s 20(3) of the Acquisition of Land Act 1967 (Qld) that provided that in assessing compensation for compulsory acquired land consideration should be given to any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
3. In Springfield, the plurality stated:
   1. Something first should be said respecting the "Pointe Gourde principle". The arbitrator referred to the "possible overuse" of the expression "the scheme underlying the acquisition". This is associated with what was said by the Privy Council in Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad)(35). But, while acknowledging the absence of the expression from s 20 of the Acquisition Act, the arbitrator said that its relevance and meaning in a particular case "will depend essentially upon the facts of the particular case". Nevertheless, the arbitrator later concluded:

"It is relevant to refer again briefly to the Pointe Gourde Case if only for the purpose of putting it aside as having no relevance to the question of enhancement to the other lands of the claimant as a consequence of the resumption. Pointe Gourde establishes authoritatively the principle that in valuing the resumed lands, one excludes as irrelevant for that purpose anu appreciation or depreciation in the value of the resumed land brought about by the scheme underlying the acquisition.

In the context of considering enhancement to other lands for the purposes of Section 20(3), the Pointe Gourde principle has no place".

(Emphasis in original.)

1. It is thus unnecessary to consider further in any detail the "Pointe Gourde principle", despite a certain allurement which it appears to have exercised in some submissions to this Court by the State of Queensland and the Chief Executive. However, it should be noted that recently the House of Lords has affirmed, consistently with what was said by this Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (36), that there is no 'common law' principle derived from Pointe Gourde; the term "scheme" was used there to explain and amplify the term "value" as understood in particular statutory compensation schemes commencing with the Land Clauses Consolidation Act 1845 (UK) (37). These points were made by Lord Walker of Gesetingthorpe and Lord Collins of Mapesbury in Transport for London v Spirerose Ltd (38).
2. The present case turns upon the requirement in s 20(3) of the Acquisition Act that in assessing compensation account be taken, by way of set-off or abatement, of any enhancement of the value of the interest of the Springfield companies in any land adjoining the Transfer Land by the carrying out of the purpose for which the Transfer Land was taken.
3. Of the reasoning by the arbitrator, McMurdo J correctly observed (39):

"In considering s 20(3), the arbitrator was required to identify the works or purpose for which the land was taken. He identified the purpose as the very narrow purpose ....to realign in minor respects an existing proposed corridor'. In one sense at least, that was undoubtedly true. But the question is whether that could be regarded as the purpose which is relevant in the operation of s 20(3). As already noted, the purpose within s 20(3) would appear to correspond with the purpose for which there is a power of compulsory acquisition. That indicates that the purpose was to be understood as the public benefit or end to be achieved, rather than some means to that end, and that the arbitrator's identification of the purpose was incorrect."

It should also be noted that the arbitrator looked to "the reason why [the s 7 Notices] were given" and found that what had led the Chief Executive to give the s 7 Notices was the decision to realign the proposed road corridor "in minor respects."

1. The relevant "purpose" is that for which the Transfer Land would have been taken had the statutory processes set in train by the s 7 Notices not been supplanted by the Agreement. These were future transport purposes including the facilitation of transport infrastructure, being road and busway, rail or light rail for the South West Transport Corridor. This was the statutory purpose and the determinative purpose.
2. Contrary to the construction given to the s 20(3) by the arbitrator, which the Springfield companies support, the "purpose" was not identified by some factual inquiry, beyond the terms of the s 7 Notices, into the reason why the s 7 Notices were given in the then current state of planning for the road corridor.

G.2 Inherent characteristics of the acquired land

1. The respondent submitted that if land has an attribute that would be recognised in its highest and best use, that attribute is not then to be ignored because it is an attribute that is relevant to the purpose of the compulsory acquisition.
2. The respondent relied on the following authorities for this proposition:

a) The Crown v Murphy [1990] HCA 42; (1990) 64 ALJR 593 ('Murphy_'); > > b) Albany v Commonwealth (1976) 12 ALR 201 ('Albany'_); > > c) Sorell Council v Downie [2005] TASSC 2 ('Sorell').

3. The respondent submitted that in considering this issue, he does not say that the highest and best use of the land is the development of the Sparrovale Wetlands which is described by the respondent as:[52]
   1. The 'Sparrovale Wetlands' is a particular development with three principal elements being stormwater detention, public open space and ecological rejuvenation, as identified in the master plan. The Claimants say, in the absence of the reservation of the land and Council's acquisition, the farms would have been bought by the owners of the Growth Area and/or Council to use them as a retarding basin.
   2. There is no element of public open space or ecological rejuvenation within this highest and best use.
4. Th attribute of relevance to the identification of the highest and best use of the acquired land is, according to the respondent, the fact that it lies at the natural drainage point for the Horseshoe Bend Precinct and the fact that it is (together with Coldwinds) capable of taking water flow from Armstrong Creek due to its topography, size and location.
5. Council says that the application of s 43(1)(a) does not mean that the inherent characteristics of land which would otherwise affect its market value irrespective of the purpose for which it was acquired cannot influence the market value compensation payable to a claimant.
6. Council submitted that care needs to be taken to assess whether what are described as 'the inherent characteristics' of land influence its value generally in the market, or only affect its value when considering the purpose for which it was acquired.
7. Reliance by Council in this regard was placed on the following extract from the NSW Court of Appeal reasons in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251 at [61] to [68] ('Walker's Case'):
   1. Importantly, the same conclusion can be reached by considering the conjunctive operation of two separate principles which are broadly incorporated into the current statutory scheme. Those are the principle in The Raja's Case, and the Pointe Gourde principle.
   2. As explained by Handley JA in Perry, the principle in The Raja's Case has a different operation from the Pointe Gourde principle, and hence from s 56(1). The decision in The Raja's Case turned on the fact that the land acquired from him had a commercial value because of its resource, which formed part of the market value of the land. That potentiality was capable of valuation before one came to the separate question, namely whether its value had been enhanced by the establishment of the public purpose which was the occasion of its acquisition. The approach in Perry was referred to with approval by Lord Brown of Eaton-under-Heywood in the House of Lords in Waters v Welsh Development Agency [2004] UKHL; [2004] UKHL 19; [2004] 1 WLR 1304 at [138 and [161] and [162].
   3. That principle can, however, operate to the disadvantage of the landowner. Land may have a characteristic that diminishes its value, or constrains an increase in value. The value of the land, with all its inherent characteristics, will depend on its physical location, whether there are surrounding developments and a host of other considerations and a host of other considerations, including social preferences and environmental factors. One may take, by way of example, a hypothetical block of land on the outskirts of an expanding city. The land in question is low-lying, but is surrounded by higher ground. All land is available for residential development, but the higher ground is developed first because it is seen as more attractive to potential purchasers. The low-lying ground is then identified as part of a floodplain and is found to be subject to inundation after heavy rain. The local council rezones the land to prohibit residential development. The land is capable of commercial development so long as it is drained and the level is raised. A development application is required to be accompanied by an environmental impact statement. Preparation of that statement identifies that portion of the flood plain as having special conservation significance. Accordingly, the council imposes certain constraints which prevent any significant development and brings the area to the attention of the State authority responsible for environmental protection. The limitations imposed by the council drastically reduce the potential uses of the land and hence its market value. Because of the conservation significance of the site, it is later resumed by the state authority for the public purpose of environmental protection.
   4. In this example, whether or not the restrictions on development imposed by the council have a remote or a close connection with the ultimate resumption, the diminution in the commercial value of the land flows from an inherent characteristic which had the potential to have that effect before any resumption was proposed. It was not the proposed resumption which lowered the value of the land, but the inherent characteristic.
   5. It is, of course, true to say that land will only be resumed in circumstances where it suits the needs of the acquiring authority. Thus, in Perry's Case, the precise route of the upgraded highway no doubt depended upon the physical characteristics of the land in different corridors. The difference is that the public purpose in that case existed without reference to those characteristics. In the hypothetical case, it was the characteristic of the land which gave rise to the particular purpose.
   6. This approach is consistent with that adopted by the High Court in The Crown v Murphy [1990] HCA 42; (1990 64 ALJR 593. That case involved an area of land at Mon Repos Beach near Bundaberg which was acquired for the purposes of an environmental park, because the beach was the site of a world-renowned turtle rookery. Prior to the resumption, the land had been subject to a rural zoning which permitted subdivision into allotments only with a minimum of 8 hectares. A subdivision would not have been possible unless it included adjacent land ,because the total area resumed was 12.83 hectares. A development application sought rezoning so as to permit subdivision into 40 allotments. Objections made to the Shire Council included one from the National Parks and Wildlife Service which submitted that "subdivision of the land would effectively render the land unavailable for acquisition for conservation purposes"; ibid at p.594 (col 1). The Council refused the rezoning application because of the detrimental effect it would have on the turtle rookery. As the Court further noted:

"Some time later, the Council wrote to the National Parks and Wildlife Service seeking assistance in resisting an appeal from the refusal of the application for rezoning and stating that 'Council is in this case protecting the interests of the State Government departments'. The land was resumed before the appeal was determined.

1. An attempt by the landowners to have compensation assessed on the basis of a notional rezoning which would permit subdivision into 40 allotments was rejected by the Land Appeal Court. That Court held that 'a prudent purchaser would not add anything over and above the land's home site value in expectation of a more liberal approach to zoning or subdivision at some future date". The Court stated (see 64 ALJR at 594 (col 1-2):

"We cannot fail to look at the position that, had there never been a scheme of positive action of which the resumption was an integral part, the position would have been that the land would have already had a Rural zoning and any proposed developer would have been faced with a council which would have been strongly and reasonably opposed to any rezoning which may have affected the rookery."

1. The approach of the Land Court was upheld by the High Court. The view of the Full Court of the Supreme Court of Queensland was that this reasoning demonstrated error because the landowners were entitled to have compensation assessed on the basis that the prospect of rezoning should be considered (ibid at 594 (col 2) C):

"...free, not only of the pressures of the National Parks and Wildlife Service on the local authority, but without regard for the possible impact of a subdivision which might flow upon the rezoning upon the turtle population.":

The High Court upheld the proposition that both the resumption itself and the representations of the National Parks and Wildlife Service were to be disregarded: ibid at 595C-D. That, their Honours said, followed from the approach required by Point Gourde and San Sebastian. However, the judgment continued:

"Of course, a characteristic or attribute of the land which affects its value must be taken into account on the assessment of compensation even if the planning restriction which is a step in the process of resumption is dependent upon or directed to that characteristic or attribute. The Land Appeal Court considered that the existence of the turtle rookery adjacent to the land was an attribute if the land which affected its value to the extent that the existence of the rookery itself militated against the rezoning."

In the present case, the critical characteristic of the land was its potential for use as a public open space, a potential accepted not only by the State authority and the Council, but by the various development applications, including that of the Respondent.

1. Council submitted that the attributes of the acquired land in fact depreciate its market value; there is no market for drainage land and the rates for wetlands is less advantageous than ordinary farming land. Further, unless the acquired land is required to drain the Horseshoe Bend Precinct, it cannot have the premium value that the respondent contends for. Council submitted that any increase in value of the acquired land is inextricably linked to the purpose for which it was acquired.

1. There are a number of definitions that are relevant to the operation of the provisions in Part 4.
2. For the purpose of assessment of the market value of an interest on the date of acquisition, the following definition of 'market value' in s 40 is relevant:

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;

1. This statutory definition has its roots in the definition of 'value' expressed in the case of Spencer v Commonwealth (1907) 5 CLR 418 ('Spencer_'_) in which Griffith CJ laid down the following test:[53]

In my judgment the test of value of land is to be determined, not by enquiring what price a man desiring to sell could actually have obtained for it on a given day, that is, whether there was in fact there was on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing it for a fair price but not desirous to sell'. It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process it to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.

1. Also in Spencer, Isaacs J expanded on Griffith's test as follows:[54]

To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by a means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious as to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, it surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix the value of the property.

1. In ISPT Pty Ltd v City of Melbourne [2007] VCAT 652 ('ISPT VCAT'), Morris J stated (footnotes omitted):[55]
   1. The concept of the "value" of land is simple enough, even though often difficult to assess. Traditionally this has been based upon the principle of a transaction between a willing buyer and a willing seller. This concept was elaborated upon by Issacs J in the oft-quoted case of Spencer v The Commonwealth. A contemporary interpretation might the amount that would result from voluntary bargaining between a vendor and a purchaser, both being full knowledgeable of the property transacted and of all the factors that influence its value.
   2. Site value is an artificial construct; that is, it depends on assumptions. However the valuation of vacant land will generally require no assumptions, with the result that the Spencer principles can be used without modifications. However, in a case like the present, where the land is improved by a substantial building, it is necessary to make an assumption (or assumptions). This can make the valuation process difficult.
2. The decision in ISPT VCAT was subsequently considered by the Victorian Court of Appeal ('CoA') in ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447 ('ISPT CoA') in which the CoA emphasised the importance of determining the highest and best use of land when ascertaining market value of land (footnotes omitted):[56]

The first threshold issue - Highest and best use

1. The concept of highest and best use is implicit in the theoretical basis for the assessment of market value at a given point in time. Such value is understood to be ascertainable in accordance with the formulation of Isaacs J IN Spencer v Commonwealth

To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect it's value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.

1. It is implicit in this formulation that both vendor and purchaser are to be regarded as aware of the potentially most advantageous ongoing use of the land and not simply its current use, when formulating the relevant vale. Such potential is a circumstance which necessarily affects the value of the land either advantageously or prejudicially.
2. Later in ISPT CoA, the Court of Appeal emphasised the important role that evidence plays in establishing the highest and best use in any case:[57]
   1. Whether the highest and best use is in fact proven to be a single use or a package of alternative uses will depend on the evidence. What use or uses are properly described as highest and best use will be a question of fact. It will also be a question of fact as to what degree of precision can be achieved in this description. Thus, in different strip shopping centres it may be possible to described the highest and best use of a vacant block of land in one as "commercial development", or in another "retail development" (a specific form of commercial development) or in yet another as "supermarket development" (a specific form of residential development).
   2. Whether it is possible to be more rather than less precise will be governed by the evidence. Likewise, the relevance of precision to the valuation exercise in issue will be governed by the evidence. It may be irrelevant for valuation purposes in one case to distinguish between a site having the potential for commercial development generally or retail development in particular, but in another case highly relevant to ascertain whether the site has the capacity to accommodate a particular type of shop by reasons of characteristics (such as size) not common in the market.
   3. It follows that the evidence may or may not permit a description of highest and best use other than in terms of generality which embraces alternatives and may or may not demonstrate that for valuation purposes it is necessary to do otherwise than so describe the highest and best use. These questions will always be questions of fact.
   4. It may be also that it is relevant to identify alternative highest and best uses because the most profitable potential to use is attended by serious risk. Such risk may arise with respect to the development of vacant land for any number of reasons, but those which have been illustrated by fact situation arising in litigation in this court in recent time include the potential cost of clean-up for environmental purposes, the need to obtain services as a precondition to development in circumstances where the provision of such services is uncertain.
   5. There are a wide variety of other evidentiary considerations which may bear on the ascertainment of highest and best use. We have mentioned the above examples to demonstrate: first, that it is relatively easy to hypothesise factual situations that illustrate the proper characterisation of the highest and best use of land may involve questions of fact and degree on the evidence in a given case and, secondly, that such characterisation may involve contextual considerations which support the view that the articulation of potential alternatives is logically relevant.
   6. It follows that in our view the question of what constituted the highest and best use of the land was one of fact to be resolved on the whole of the evidence before the tribunal. In turn, the question whether such use was in part comprised of potential alternatives was a subsidiary question of fact to be resolved on the evidence.
3. Implicit to the identification of the highest and best use of land is the valuation methodology used to arrive at the market value for that use.
4. Section 5A of the Valuation of Land Act 1960 (Vic) ('VL Act') provides:

1. Unless otherwise expressly provided where pursuant to the provisions of any Act a court board tribunal value or any other person is required to determine the value of any land, every matter or thing which such court board tribunal value or person considers relevant to such determination shall be taken into account.
2. In considering the weight to be given to the evidence of sales of other lands when determining such value, regard shall be given to the time at which such sales took place, the terms of such sales, the degree of comparability of the lands in question and any other relevant circumstances.
3. Without limiting the generality of the foregoing provisions of this section when determining the value there shall, where it is relevant, be taken into account -

a) the use to which such land is being put at the relevant time, the highest and best use to which the land might reasonably be expected to be put at the relevant time and to any potential use; > > b) the effect of any Act, regulation, local law, planning scheme or other such instrument which affects or may affect the use or development of such land; > > c) the shape size topography soil quality situation and aspect of the land; > > d) the situation of the land in respect to natural resources and to transport and other facilities and amenities; > > e) the extent condition and suitability of any improvements on the land; and > > f) the actual and potential capacity of the land to yield a monetary return.

1. We agree with Council that the meaning of the phrase 'the purpose for which the interest was acquired' in s 43(1)(a) is to be found in the notice of intention to acquire the land. This interpretation is consistent with the High Court's decision in Springfield.
2. In our view, while the decision in Springfield does not interpret s 43(1)(a) of the LAC Act, the approach taken by the High Court is highly persuasive and instructive to our task and leads to the construction of s 43(1)(a) contended for by Council. That is the phrase 'arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired' refers to the public benefit for which the land was acquired and not the means by which it was acquired.
3. We note that the 'purpose' as stated in the notice of intention to acquire the land is not singular; there is more than one purpose expressed therein. One purpose is for drainage infrastructure and the other is associated conservation purposes.

H.2 Inherent characteristics of the acquired land

1. The approach of the NSW CoA in Walker's Case (acknowledging that it is obiter) reflects the direction of the High Court in Murphy (and is consistent with the High Court's approach in Albany).
2. In our view, it is correct that however the attributes of the acquired land are described, whether it be its 'inherent characteristics' or its 'potentiality', they should all be taken into consideration when assessing the market value for the purposes of s 43(1)(a). We stress that it is all of the attributes of the acquired land that must be considered and not just the ones that selectively support a claimant's assessment of market value.
3. On the facts of this matter, we are of the view that the environmental considerations and constraints that existed at the relevant date and without regard to the purpose of the acquisition arising from:
   • its proximity to a Ramsar area;
   • its hydrological connection to the environmentally sensitive Hospital Swamps; and
   • the fact that a majority of the acquired land has a slope of less than 1 in 250 which constrains its ability to drain without intervention into the Barwon River Basin,

all influence the identification of the highest and best use of the acquired land.

1. In addition, the potentiality of the acquired land for conservation purposes is also a relevant consideration in this assessment. All of these attributes existed absent the purpose of acquisition and in addition to its general low-lying topography and high risk of inundation.
2. For completeness, we state that our view expressed above is not changed as a result of considering Sorrell. We do note however, that a significant distinguishing factor in Sorrell was that the parties there agreed as that the highest and best use of the relevant land was for waste disposal and so it provides limited assistance in the task of construing s 43(1)(a) of the LAC Act_._

G.3 Special suitability - s 43(1)(b) of the LAC Act

1. That the acquired land has attributes that made it (at the relevant date) especially suitable to be used for drainage purposes for the growth area or precinct was another cornerstone of the respondent's case. That special suitability however was one for which it could only ever be used by Council as the drainage authority. This is because, at the end of the day, the respondent's hypothetical scenario involves the transfer of the acquired land to Council, by gift, by way of subdivision permit conditions or the like. It is only Council as the drainage authority that can use the acquired land by way of operating and maintaining, upgrading etc the drainage infrastructure necessary to sustain the growth area, while also taking in account significant environmental constraints in the immediate and surrounding area. It is for this very reason that the developer consortium, being not a drainage authority, that such a transfer to Council would be inevitable.
2. This special suitability of the acquired land must be disregarded under s 43(1)(b) of the LAC Act.

1. Our assessment of the evidence before the Tribunal is set out in the preceding sections of these reasons.
2. It is apparent from a reading of the section dealing with our consideration of the valuation evidence that we are not satisfied that the respondent has established that the highest and best use of a large part of the acquired land (at the relevant date) was as 'drainage land' that would attract a premium equivalent to 50% of the additional benefits that the posited hypothetical developer consortium would have realised from the release of land within the Horseshoe Bend Precinct which would otherwise be required to retain that precinct's stormwater.
3. We have concluded that the valuation methodology employed by the respondent's valuers is unreliable in significant respects when assessing the value of that part of the land described by the respondent as 'drainage land' and we will not repeat our findings here.
4. This finding was made on the evidence and irrespective of which of the parties' approach to the application of s 43(1)(a) of LAC Act is to be adopted. The respondent has simply failed to:
   • establish significant assumptions that underpin its valuation case that this part of the acquired land should be valued at a significant premium to the use it was put as farmland; and
   • satisfy us that a prudent purchaser knowing all that prudent a purchaser would about all of the attributes of the land and its context (whether it be a consortium of developers, one developer or Council) would pay the premium claimed.
5. That being the case, there was no increase or decrease in the market value of that part of the acquired land to which s 43(1)(a) of the LAC Act applies. There is therefore no increase or decrease in market value to disregard under s 43(1)(a) of the LAC Act.
6. Our finding that the rezoning of the Scenario A Land was a long-term possibility, with attendant risks is reflected in the market value attributed to this part of the acquired land.
7. Our finding on the farmland rates to be applied to the balance of the acquired land reflects our evaluation of the expert valuation evidence before the Tribunal and the evidence of Mr Perkins.
8. That said, we find that the Council's 'before' scenario properly reflects the application of s 43(1)(a) to the facts before the Tribunal. In our view, the respondent's 'before' scenario does not describe a situation in which the proposal is properly factored out, but rather describes a hypothetical situation where the proposal is postponed until such time as the hypothetical developer purchaser acquires the land that it ultimately intends to then transfer on to Council in pursuance of the same purpose as described in the notice of intention to acquire. We agree with Council that this approach concentrates on the means of acquisition and not the purpose of the acquisition.
9. Therefore, the market value of the acquired land at the relevant date is calculated as follows:

$rate adopted by Dudakov for mix of high and low

1. The respondent has bought two properties he says in partial replacement of the acquired land with a total purchase price of $5,420,000.00 and total costs associated with those purchases claimed at $310, 323.08. Council does not dispute these total associated costs as disbursement costs compensable under s 41(1)(d) of the LAC Act.
2. Despite the reduction in the market value claimed during the course of this proceeding, the respondent maintained his claim for the transfer duty calculated on the amount of market value compensation determined by the Tribunal in excess of the cost of the two replacement properties already purchased.
3. The respondent also claims $3,300.00 as costs incurred as a result of lodging an amended tax return in 2019 accounting for any capital gain/loss arising from the acquisition. The respondent also reserved any costs or interest incurred as a result of lodging an amended tax return following determination of his claim.

1. Council disputed the costs incurred for the lodgement of the amended tax return in 2019 and any future costs or interest that may be incurred, submitting that this was not a pecuniary loss that was a natural, direct and reasonable consequence of the acquisition.

1. Section 41(1)(d)of the LAC Act provides that, when assessing compensation under Part 4 of the LAC Act, regard must be had to any loss attributable to disturbance.
2. The phrase 'loss attributable to disturbance' is defined in s 40 as follows:

...means any pecuniary loss suffered by a claimant as the natural, direct and reasonable consequence of -

a) the service upon the claimant of a notice of intention to acquire, where the Authority has refused or failed to give consent to the carrying out of improvements to the land in respect of which that notice has been served or effecting or obtaining of any sales, transactions, licences or approvals in respect of that land; and

b) the fact that an interest of the claimant in that land has been divested or diminished, being a pecuniary loss for which provision is not otherwise made in this Part;

1. Verway v Minister for Environment & Climate Change (Land Valuation) [2010] VCAT 368 ('Verway_'_), Dwyer DP summarised the common principles relating to disturbance loss as including the following (footnotes omitted):[58]
   • Whether a pecuniary loss is a natural, direct and reasonable consequence of acquisition, depends on whether these factors are satisfied objectively, according to their ordinary English meaning, as a matter of fact;
   • The word 'natural' in this context means arising according to the usual course of things;
   • The word 'direct' in this context connotes an immediate and substantial causal connection, and excludes what is indirect;
   • The word 'reasonable' in this context connotes a reasonable response to the event triggering the right to compensation;
   • The three adjectives in combination connote a very close and limited connection between the event of disturbance and the financial loss suffered; and
   • A loss may be the natural, direct and reasonable consequence of acquisition even it was suffered before the acquisition occurred. The expression requires a causal connection rather than a temporal connection. Causation should be considered in a common sense factual way.
2. The respondent's evidence is that he has lodged his tax return for the financial year ending 30 June 2019 'which accounted for a capital gain arising from the disposal of the farm based on Council's offer for market value at that time'. [59] We are not satisfied on the material before us that the lodgement of the 2019 tax return by the respondent was a direct consequence of the acquisition. The lodgement of an annual tax return is an obligation that the respondent would have been required to fulfil whether or not the acquisition occurred. We are also not satisfied that an actual loss has in fact been incurred given that there is no evidence to support the submission for this claim.
3. Having regard to the language of s 41(1)(d) and the definition of the phrase 'loss attributable to disturbance' in s 40, the respondent must demonstrate an actual loss. If a possible future loss has not yet been incurred, then the existence of an actual loss cannot be demonstrated.
4. We therefore disallow the respondent's claim for disturbance identified in the further amended particulars of claim as:

46 The amount of loss attributable to disturbance awarded is $310,323.08.

1. In his further amended particulars of claim, the respondent claimed professional expenses in the sum of $449,104.90.

1. In its written closing submissions, Council identified by way of Schedule C, those professional expenses to which it took objection in two categories:

a) Invoices disputed in whole because they were not incurred by reason of the acquisition (totalling $93,823.04); and > > b) Invoices disputed in part because part of the work described in the invoice was not 'reasonably and necessarily' incurred by reason of the acquisition, in that it was not relied upon for the purpose of making the claim now advanced by the respondent (totalling $152,690.43).

2. In Council's submission, those invoices falling within the first category fail as properly being described as expenses incurred by reason of the acquisition because they are expenses that are for work done before the date of acquisition and therefore cannot be said to be expenses incurred by reason of the acquisition.
3. In its closing written submission, the respondent stated that he does not pursue the invoices falling in the first category. The respondent's claim for professional expenses under s 41(1)(f) of the LAC Act is therefore for the sum of $355,285.86.[60]
4. The invoices that fall within the second category can be further categorised as follows:

a) Work undertaken by Mr Thomas when he was with CBRE in the period 18 February 2021 to 21 April 2021 (totalling $43,074.08); and > > b) Work undertaken by m3 Strategists in the period 11 August 2021 to 22 October 2022 (totalling $109,613.35)

5. In its written submission in reply, Council says that it does not quibble with the respondent's clarification that the CBRE invoices objected to by Council in fact concern work done by Mr Thomas when he was then at CBRE. Council does however query what work was actually done by Mr Thomas during the period 18 February 2021 to 21 April 2021 given that it was work done before the commencement of this proceeding, where the respondent did not make a claim and has not disclosed any valuation advice provided by Mr Thomas during that period in this proceeding.
6. Council submitted that the (draft) advice of m3 Strategists did not support the respondent's claim advanced in any version of the particulars of claim filed with the Tribunal or the case ultimately advanced in the respondent's final submissions.
7. Council submitted that it is one thing to submit that a claimant should have some freedom to seek a range of expert opinions, including valuer's opinions in a complex matter, but it is another thing to say that an acquiring authority should pay all the costs of a claimant related to obtaining advice that was not advanced in any form before the Tribunal.

1. Section 41(1)(f) of the LAC Act requires that in assessing the amount of compensation payable regard must be had to any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition.
2. Whether an expense has been necessarily incurred by reason of an acquisition requires consideration of the relationship of the work for which the invoice has been raised in responses to the acquisition. It is the expense that must be shown to be 'necessarily' incurred in reasonable response to the acquisition.
3. We agree with Council that in assessing whether to award a claim for expenses, the Tribunal should not be required to consider each invoice against the material before the Tribunal in the same way a forensic accountant might do so. The respondent claims that expenses attributed to CBRE in the period 18 February 2021 to 21 April 2021 are attributable to work done by Mr Thomas by reason of the acquisition while he was with CBRE before moving to LAWD. The letter of instruction appearing at Annexure 14.1 to Mr Thomas's first valuation report appearing in the Tribunal Book appends a letter from Rennick & Gaynor dated 11 August 2022 that is entitled 'Updated Assumptions'. The first line of that letter refers to previous letters of instruction dated 5 March 2019 and 8 February 2021. On this material, it is more probable than not that Mr Thomas was first engaged by Rennick & Gaynor to advise the respondent on valuation matters by reason of the acquisition prior to 8 February 2021. We will therefore allow the claim of $43,074.08 for expenses attributable to Mr Thomas' valuation services in the period 18 February 2021 to 21 April 2021.
4. The claim for expenses attributable to the work done by m3 Strategists is disallowed because while we are satisfied that the expense was incurred by reason of the acquisition (because the contents of the draft report purport to provide a valuation for that part of Sparrovale acquired on the relevant date) we do not accept that it was necessarily incurred by reason of the acquisition. It cannot be said that the advice was necessarily incurred if, after having obtained and considered the valuation advice, the respondent rejects it and makes it no part of the claim being advanced on his behalf at any time in the proceeding other than as a claimed expense under s 41(1)(f) of the LAC Act.
5. In conclusion therefore the amount awarded under s 41(1)(f) of the LAC Act for legal, valuation and other professional expenses necessary incurred by reason of the acquisition is $245,668.51.

1. The respondent claims solatium in the sum of $400,000.00 submitting that he has suffered significant intangible and non-pecuniary disadvantage throughout the acquisition process.
2. The respondent gave evidence of the impact of the acquisition on him and his family. The respondent described the acquisition of Sparrovale as resulting in the loss of his life's work and has caused family frustration, nuisance, annoyance, distress and anxiety.
3. The unchallenged evidence of the respondent at the hearing was:

a) His father first bought Sparrovale in 1952. > > b) In 1955, his father sold Sparrovale but the purchaser defaulted and Sparrovale remained in his father's ownership. > > c) He has lived on Sparrovale with his parents. > > d) In 1963, he purchased a farm at 1635 Barwon Heads Road, Connewarre ('Connewarre farm') and ran it in conjunction with Sparrovale. > > e) In 1970, he married, and he and his wife lived in one of the houses on Sparrovale while his parents lived in another. The two families worked Sparrovale together. > > f) The respondent and his wife have two children, who have grown up on, and worked in farming, Sparrovale. > > g) In 1990, the respondent bought Sparrovale from his father. > > h) The respondent's eldest child, David, lived on Sparrovale until 1995 and was an active operating partner of its farming operation until 2002.

1. In 2000, the respondent's youngest child, Karen, and her husband became partners with the respondent in operating Sparrovale.

j) In 2005, the respondent and his wife moved off Sparrovale to the Connewarre farm. Following that, Karen moved onto Sparrovale with her family and lived there until it was acquired by Council. Following the acquisition, Karen leased 80 hectares of Sparrovale back from Council and farmed it. > > k) The respondent and his family had a strong connection with Sparrovale as a home and as a source of their livelihood for over 60 years. They have built, maintained and improved infrastructure and facilities on Sparrovale. They have renovated, seeded and worked pastures on the farm.

4. The connection experienced by the respondent and his family with Sparrovale is expressed as follows in the respondent's written statement which was expanded on during his oral evidence:
   1. Having lived and worked on the farm for such a long time, I and our family have strong connections to the local community.
   2. The farm represented a base for me and our family for over 60 years. The whole Perkins family would come together on the farm on a regular basis. When they weren't living there, our children regularly brought their families to the farm, and were active in the farming business. We have many happy memories which were built around being on the farm.
   3. Heather and my expectation was that the farm would remain in our family. In the absence of the Council acquisition, we would have retained the farm as a family asset.
5. The respondent also gave evidence regarding his dealings with Council prior to the relevant date.
6. We do not set out all those details here in these reasons as there was no challenge by Council to the accuracy of the communications between the respondent and Council set out in the correspondence exhibited to his statement. However, we note the following (because of Council's position on the amount of solatium that should be awarded):

a) In June 2015, Council communicated to the respondent that it did not agree to the proposed sale terms but that it was prepared to negotiate a price using the valuation methodology set out in the DCP. > > b) In July 2015, the respondent queried the basis for Council using the valuation methodology set out in the DCP and why Sparrovale had been valued as farm land rather than 'reflecting all of its potentiality'. > > c) In March 2016, Council offered to purchase part of Sparrovale for $3,450, 000 on certain terms. > > d) In June 2016, the respondent obtained an appraisal for the relevant part of Sparrovale for between 5,000,000.00 and 5,500,000.00 (being $4830.00 per acre to $5314.00 per acre). > > e) In June 2016, the respondent responded to Council's offer of March 2016 stating in part: > > 1. While the Council has indicated in its letter of 30 June 2015 that its negotiations to purchase the Sale Land will be a matter of commercial negotiation, Council's offer for the Sale Land to date suggests that its seeks a bargain rather than accepting that the commercial reality of its position requires it to pay a premium. > 2. Council has commenced its negotiations at a value which, in the opinion of our client's agent, does not reflect the value of land within the Farming Zone. > > 1. Council has adopted a methodology which is flawed. The definition of "market value" is set out in s.40 of the Land Acquisition and Compensation Act as meaning "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 has been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser."

This definition requires a value to determine the highest and best use of the Sale Land, not value simply on its current use.

The methodology being pursued by Council has failed to recognise all of the potentialities of the Sale Land, notwithstanding that the concept of "Highest and Best Use" requires that each of these potentialities be considered.

...

In our view, if Council wishes to rely on a valuation in the context of commercial negotiations, the appropriate methodology to be pursued by its valuers for the Sale Land must take into account its potentialities which include the creation of developable land adjacent to Sparrovale Road with an appropriate cut and fill design.

Our client has obtained expert opinion from a suitably qualified water engineer that an area of 34ha of developable land can be created within the Sale Land, notwithstanding the Floodway Overlay, the total additional area of developable land is 36ha ("the Developable Area").

...

Unless the Authority agrees to the following, our clients will not continue with negotiations:-

1. Meet all of our clients' costs, incurred to date or in the future; and
2. Develop a joint valuation methodology (with the benefit of appropriate opinion from such other experts as the valuers may require) to enable all valuers to express their opinion on the market value of the Property on the same facts and assumptions.

As things presently stand, our clients are unwilling to incur cost to obtain a valuation as it is unlikely that agreement will be reached on price given Council's current offer.

f) In August 2015, Council rejected the respondent's conditions for future negotiations.

1. The respondent submitted that the amount for solatium offered by Council is well below the awards that recognise significant impacts suffered because of the acquisition (including events preceding the actual acquisition). In support of this submission, the respondent referred us to the awards of solatium in the following cases:

a) Verway v Minister for Environment & Climate Change (Land Valuation) [2010] VCAT 368 ('Verway_'_) an award of $230,000.00); > > b) Roads Corporation v Love [2010] VSC 537 ('Love (Vickery)') (an award assessed at $225,000.00 but reduced to $185,000.00); > > c) Schembri v Roads Corporation (Land Valuation) [2009] VCAT 691 ('Schembri') (an award of $220,000.00) > > d) Wilson v Melbourne Water [2018] VSC 555 ('Wilson') (an award of $180,000.00).

2. On behalf of the respondent, it was submitted that he suffered no less substantial upset than each of the claimants in Verway, Love, Schembri and Wilson.

1. Council accepts that the respondent is entitled to an award for solatium but says that the respondent's claim in excessive having regard to the factors identified in s 44 of the LAC Act.
2. With regard to each factor, Council submitted:
   • The respondent has held an estate in fee simple and has occupied Sparrovale.
   • The respondent has occupied Sparrovale for many decades.
   • The respondent has had long notice of the prospect that Sparrovale would be acquired and participated actively in the strategic planning process which led to its reservation for a public purpose.
   • Council took possession of Sparrovale within six months after acquisition.
3. Council also submitted that the criticisms levelled at it by the respondent regarding Council's conduct in the strategic planning process preceding the acquisition should not be accepted. While admitting that both the strategic planning process and the acquisition process itself was distressing to the respondent and his family, nothing about Council's conduct itself should influence the amount of the award.
4. Council submitted that it is relevant to consider aspects of the conduct of the respondent which it says has served to exacerbate the feelings of distress and anxiety experienced by him and his family. Those matters that Council says are relevant are:
   • The respondent's failure following the acquisition to make a claim for compensation under Part 3 of the LAC Act;
   • The decision to advance an excessive claim for compensation, which has been wholly abandoned;
   • Failure to obtain evidence of an alternative valuer for the purposes of the proceeding until very late in the process (valuation evidence which has mostly been abandoned).

1. Section 44 of the LAC Act provides:
   1. The amount of compensation may be increased by such amount, not exceeding 10% of the market value of the land, by way of solatium as is reasonable to compensate the claimant for intangible and non-pecuniary disadvantages resulting from the acquisition.
   2. In assessing the amount payable under subsection (1), there must be taken into account all relevant circumstances applicable to the claimant including, without limiting the generality of the foregoing -
      1. the interest of the claimant in the acquired land; and
      2. the length of time during which the claimant had occupied the land; and
      3. the inconvenience likely to be suffered by the claimant by reason of removal from the land; and
      4. the period of time which the claimant has been, or will be, allowed to remain in possession of the land; and
      5. the period of time during which, but for the acquisition of the land, the claimant would have been likely to continue to occupy the land; and
      6. the age of the claimant; and
      7. where the claimant at the date of acquisition is occupying the land as the claimant's principal place of residence, the number, age and circumstances of other people (if any) living with the claimant.
   3. If no solatium is paid to the claimant, a person other than a claimant who, at the date of acquisition , has occupied the acquired land for a continuous period of not less than 12 months before that date at the person's principal place of resident may claim from the Authority such amount, not exceeding 10% of the market value of the land, by way of solatium as is reasonable to compensate the person for intangible and non-pecuniary disadvantages resulting from the acquisition.
   4. In determining the amount payable under subsection (3), there must be taken into account all relevant circumstances applicable to the person, including the matters referred to in subsection (2)(b), (c), (d), (e), (f) and (g).
   5. If the Authority rejects a claim for solatium made by a person under subsection (3), that person is to be taken to be a claimant and the claim to be a disputed claim for the purposes of this Act.
2. A summary of the principles connected with an award of solatium under s 44(2) was provided by Vickery J in Roads Corporation v Love (2010) 179 LGERA 113 as follows:
   1. The principles relating to awards of solatium under s44() of the LAC Act were summarised by Osborn J in his judgment in Roads Corporation v Love (the Cooper Street Proceeding). I respectfully adopt his Honour's observations from which the following principles may be gleaned:

a) the phrase "intangible and non-pecuniary disadvantages" is a broad one and capable of flexible adaption to changes in land use and community values over time; > > b) whilst it may be correct to conceive of solatium as, for example, a sum of money paid, over and above actual damages, as a solace for injured feelings, and apt to describe an award of some amount to cover inconvenience and in a proper case distress caused by the compulsory taking, such conceptions are no substitute for the statutory provision in s 44(1) of the LAC Act, which may in some circumstances be wider; > > c) solatium is not an amount awarded for provable loss to which the claimant is entitled and does not include any of the factors covered by other heads of compensation under the LAC Act; > > d) an award of solatium is discretionary; > > e) section 44(1) should be construed with all the generality that its words permit; > > f) what is contemplated is the discretionary award of a lump sum in circumstances justifying such an award; > > g) section 44(1) does not require an award of a percentage of market value, but questions of proportionality to market value are not necessarily irrelevant, although this is not to suggest that there should be any necessary relationship between market value and solatium; > > h) the fundamental task is to assess an appropriate lump sum amount, although it is open to express an award of solatium by reference to a percentage of reductions in market value.

3. Solatium may also be awarded for events that arising before the actual acquisition. In King v Minister for Planning [1993] 1 VR159, Gobbo J stated:

The first question that needs to be considered is the ambit of the phrase "resulting from the acquisition". "Resulting from" is a phrase not dissimilar from "occasioned by" or "by reason of". It is of sufficient width that having regard to the principles that I have already discussed in Prasad's Case, one should not limit the effect of the acquisition to matters that are temporal as well as causal in nature so that one does not have to find that the intangible and non pecuniary disadvantages referred to are both caused by the acquisition and follow it in time. Moreover, it is to be observed that amongst the factors set out in s44(2) which must be taken into account there are factors which obviously precede any acquisition. I refer in particular to the length of time that the claimant has occupied the land.

It is not clear, however, to what extent the whole of the activities that might generally be described as being part of the process of acquisition are to be taken into account, especially where the process is a lengthy one. In principle, I do not see why, provided a disadvantage is causally linked to the acquisition, that one cannot take into account events that precede the actual acquisition. There would appear to be a distinction between matters that are implicit in a forthcoming acquisition and disadvantages that are not implicit such an acquisition. If the former only were to be compensated, however, it may mean that the ground would already be substantially, if not wholly covered by the ordinary principles of compensation for loss attributable to disturbance. It could not have been intended to limit solatium in that way since it is of the nature of solatium that covers matters not otherwise covered by ordinary principles of compensation or the statutory principles as they are implicit in the legislation. To take an example, what is to happen to distress caused to the owner of land by reason of the notification by the resuming authority that it intends to resume the land for a public purpose? In some cases, of course, a much greater weight will be attached to that distress than others. For example, the dismay caused to an owner who had expected to make a substantial profit in developing the land will be of a different category and to a lower order and of lesser weight than would be the distress caused to an owner of a home who had lavished particular care and affection upon that home an d its garden in a way that could never adequately be reflected in any valuation of that land on a market value basis or in any special value assessment.

1. On the problem of defining on the particular facts the limits to the taking into account pre-acquisition matters, Gobbo J stated:

It is a question of fact in each case to decide what is the commencement of the process of acquisition. The process will not necessarily commence where investigations are made of a general nature by a planning authority with a responsibility for making provision for the proper planning of an area. For example, if a planning authority makes provision for possible freeways or school sites, even if that is done upon the basis of information supplied by the relevant authorities, it would not necessarily follow that that step of putting forward these proposal for consideration and possible adoption amounts to the process of acquisition. I should, in my view, proceed to the calculation of solatium upon the basis that I am not limited to the date of acquisition itself and that I can take into account relevant matters falling within both general and statutory guidelines for assessment of solatium if these matters flow from not merely the fact of actual acquisition but also the process of acquisition. At what point that process is to be deemed to have commenced is a matter that will depend upon the circumstances of each case....

1. We have assessed solatium, in the circumstances of this case and having regard to all the relevant matters in s 44(1) of the LAC Act, at $350,000.00.
2. In coming to our assessment, in the exercise of our discretion, that $350,000.00 (amounting to 4.63% of the awarded market value) is an appropriate and reasonable amount for solatium, we have had regard to the following:
   • The interest of the respondent
     • The interest held by the respondent in Sparrovale at the time of acquisition was as legal owner in fee simple.
   • The age of the respondent and the length of time he and his family have occupied the land
     • The respondent as 74 years old at the date of acquisition and is 80 years old at the date of conclusion of the acquisition process. It has been a matter with significant complexities, and demanding of time, and required the engagement and management of consultants in areas of expertise outside of his own experience. We have factored in our assessment that some of the complexities have been over the respondent's own making.
     • Sparrovale has been in the respondent's family for over 60 years. It has been the respondent's home for a large portion of his life, and although he and his wife did not reside on Sparrovale at the date of acquisition, it was the home of one of his children and her family carrying on the tradition of a member of the respondent's family residing on Sparrovale as their home with the view that it would be inherited and worked by his grandchildren in the future.
     • We accept the unchallenged evidence of the respondent as to the central role played by Sparrovale in the history of his family and the distress caused to his family by the severance of Sparrovale from the future of the Perkin's family.
     • In addition to Sparrovale being the familial home for the respondent's family, it was also traditionally a primary source of the respondent's and his daughter's income. We accept the respondent's evidence that under his stewardship, Sparrovale was well maintained and improved farming land. We acknowledge that the respondent's daughter has been able to lease back a portion of the acquired land to continue some agricultural pursuits.
   • The length of time for the acquisition
     • From 2012, with the drafts the Horseshoe Bend Master Plan and identification of Sparrovale as a major component of the growth area's drainage strategy, to 2018 (when the Public Acquisition Overlay was applied), the 'dark hand' of the acquisition was over the land. During that period, Council avoided providing any certainty for the respondent. This uncertainty was exacerbated by Council's position that the land should be acquired by developers. There has been no satisfactory explanation or rationale provided for Council's strategy or delay with finalising the acquisition.
     • It has taken from the date of the notice of acquisition in February 2019 to the current date to complete the acquisition and compensation process, which is more than six years. We balance Council's conduct against the respondent's own conduct in failing to make a timely claim. On balance, we find that Council's conduct has contributed to the award of solatium.

1. In conclusion, the Tribunal's determination under s 89 of the LAC Act is that the amount of compensation to be paid by Council to the respondent is $8,455,991.59 and is calculated as follows:

Loss of market value pursuant to section 41(1)(a) of the Land Acquisition and Compensation Act 1986 (Vic)

Disturbance loss pursuant to section 41(1)(d) of the Land Acquisition and Compensation Act 1986 (Vic)

Legal, valuation and other professional expenses pursuant to section 41(1)(f) of the Land Acquisition and Compensation Act 1986 (Vic)

Solatium pursuant to section 44 of the Land Acquisition and Compensation Act 1986 (Vic)

APPENDIX A - ORIGINS OF THE ARMSTRONG CREEK URBAN GROWTH AREA

Statement of Planning Policy No.7 (Geelong, 1973)

1. In 1973, the Statement of Planning Policy No.7 (Geelong, 1973) identified the potential for the Geelong region to sustain substantial urban growth. The implementation of the policy required assessment of the suitability and capacity of land for development paying due regard to:[61]

a) the value of areas for nature conservation, recreation, water, catchment, farming and mineral extraction; > > b) an efficient urban servicing structure; and > > c) social service requirements of the community.

1. The Geelong Region Development Strategy 1988-1998, identified a ten-year vision to guide the urban development of the Geelong Region.[62] In respect to the Armstrong Creek Area, this document stated:
   • the development of new growth areas to the south (Armstrong's Creek/Mt Duneed), and potentially in the longer term to the southwest of Geelong (Barrabool Hills), in accordance with comprehensive development plans. These sectors offer the most attractive urban environments but they are unlikely to be required for development until after the year 2000, given existing urban zone commitments;
2. The acquired land was not identified as within the new growth areas under the Geelong Region Development Strategy Physical Framework Plan adopted in that document.[63]

Mount Duneed Armstrong Creek Urban Development Study (August 1994)

1. The Mount Duneed Armstrong Creek Urban Development Study (August 1994) identified the opportunities and constraints of land within the study area. The acquired land was identified as part of the study area (approximately 25%) that was either low lying or subject to periodic flooding.
2. Chapter 5 of this study describes the physical characteristics of the study area. Section 5.4.2 of the study identifies five main catchment areas within the study area of Armstrong Creek, Sparrovale, Sparrovale (North), South-east Grovedale and Thompson's Creek. Relevantly, the Armstrong Creek and Sparrovale catchments are described as follows:[64]

Armstrong Creek - The Armstrong Creek catchment covers some 28 square kilometres in area and drains much of the study area with the Armstrong Creek itself forming the major flow line. The creek is relative shallow and extends from the Mt Duneed region to its outlet in the Hospital Swamps area. East of Horseshoe Bend Road the watercourse is ill-defined and the topography is extremely flat with levels very close to sea level. This low lying area is thus susceptible to flooding.

Flooding on Lake Reedy tends to cause a backwatering effect along Armstrong Creek which contributes to the flooding of these low lying areas. Some low lying areas west of Barwon Heads Road in the vicinity of Lake Road have become salty due to the presence of a continually high water table.

Only areas liable to significant flooding have been identified in the Rural Floodplain Zone although it should be realised that low lying areas are subject to waterlogging during winter months. Some dwellings in the area are subject to some inundation during flood times and caution is required in siting of dwellings in the area especially east of Horseshoe Bend Road.

Sparrovale - The Sparrovale catchment consists of a very flat floodplain covering some 4 square kilometres of land which is enclosed by man-made levee banks. The fall on the floodplain is 0.6m over a distance of 2km from the drainage confluence at the intersection of Groves Road and Charlemont Road to the western edge of Lake Connewarre.

Two levee banks have been erected in the catchment area adjacent to the Barwon River and Lake Connewarre. The levee banks were built by the Harbour Trust early this century and prevent inundation of the flooplain during minor and median frequency floods having a frequency which is less than 1 in 10 years. During major storm events the levees are breached and a substantial portion of flood waters from the Barwon River are directed onto this floodplain. During the 1952 flood (an eighty year event), the levee banks were breached and the area was inundated to a depth of 1.5 - 2.0m.

The main drainage paths within this catchment are in the form of very shallow ill-defined drains which flow towards the outlet point in the eastern part of the catchment area. The level of the floodplain is lower than the top water level in the Barwon River. Thus, drainage water require pumping out of the impounded floodplain area into the adjacent Hospital Swamps area.

1. Chapter 9 of the Mount Duneed Armstrong Creek Urban Development Study consider physical infrastructure that may be required or impacted as a result of further development in the study area. Section 9.3 deals with drainage as follows:

With any increase in urban development, it will be necessary to cater for a greater volume of run-off from peak storm events. It is anticipated that run-off will increase by approximately 150-200% depending on development densities. Development of the area will need to include adequate provision for self drainage of lots and reserves through appropriate land forming as well as the large scale transfer of stormwater flows.

The Armstrong Creek, Sparrovale and Sparrovale north drainage catchments each have flood prone areas within them. Development of the drainage system within each catchment should be such that the duration, severity and frequency of flooding in the its downstream reaches is not significantly increased.

One way of controlling flooding in the downstream areas of catchment is to establish on-site retention basins in its upper reaches to store flow from the increased run-off. Due to flat nature of the catchments in the study area, these on-site retention basins may be permanently wet. Appropriately located retarding basins can reduced peak flows to be transferred from the catchment, but they do no reduce the total run-off volume.

Development on or near the floodplains requires careful regulation. It is intended that development should generally occur above the 1% probability flood level, although methods exist by which some owners may opt to accept a greater risk of flooding.

In order to satisfy drainage objectives, development of any new area to retain as many natural features (in terms of vegetation, infiltration capacity, etc) as possible and thus minimis the increase in run-off is desirable. The provision of a drainage system which permits natural self drainage is advantageous.

9.3.1 Preliminary Assessment of Drainage Catchments

Armstrong Creek Catchment Area

Armstrong Creek would still form the major flow line within the catchment, however the use of on-site retention is proposed to limit peak flows. In order to accommodate the expected higher flows, the creek could be upgraded in one of the following ways:

• it could be developed a an open waterway having a capacity to transfer unstored run-off from a 1% storm; or
• it could constitute the secondary drainage system (floodway) to compliment a primary system comprising an underground pipeline having a capacity to accommodate run-off from a 1 in 5 year storm. The total capacity of the combined system would cater for the unstored run-off from a 1% storm.

One possible way of providing on-site retention within the catchment could be to increase the extent of the Hospital Swamps area.

Sparrovale Catchment Area

This catchment drains into the Hospital Swamps area. The formation of definite drainage lines is required to effectively drain this area. The use of on-site retention could be considered to restrict flows to the outlet.

1. Section 9.81 of the study describes the policy influences on drainage considerations as follows:

Constraints to development within the Rural Flood Zone exist at present. One cannot build, carry out earthworks, remove or place soil within the zone without the consent of the drainage authority. In this case it is the Rural Water Corporation and the Greater City of Geelong. However, development is not totally ruled out and where practical alternatives to drainage are available the legislation is flexible to allow development within the flood zone.

1. The opportunities and constraints identified for the Armstrong Creek area and the acquired land are shown on map 21 in the study as follows:

1. Examination of map 21 shows:
   • the acquired land, save of its north-western most part proximate to Sparrovale Road is shown as within the Rural Flood Plain and marked as 'Flood-prone area provide no opportunity for urban development'; and
   • approximately one third of the acquired land proximate to the Barwon River is identified as an environmentally sensitive area.
2. Chapter 11 of this study examines the urban development options within the Mt Duneed/Armstrong Creek Designated Urban Growth Area (described in the Geelong Regional Development Strategy 1988). Section 11.3.1 specifically examines drainage considerations if a development area of some 875 hectares were to be developed. Those considerations acknowledge that the Sparrovale drainage catchment can be viewed as three sub-catchment areas being:
   • northern section west of Barwon Heads Road;
   • southern section west of Barwon Heads Road; and
   • Sparrovale farm area east of Barwon Heads Road.
3. Map 23 sets out in diagrammatical form a strategy for the provision of drainage services upon urban development within the study area:

1. Indicative costs for the provision of drainage infrastructure are set out in Table 12:

City of Greater Geelong Urban Growth Strategy (1996)

1. The stated purpose of the City of Greater Geelong Urban Growth Strategy (1996) was to determine the most suitable areas for the accommodation of urban growth to 2020 within the municipality.[65]
2. The preferred growth strategy contained in this document identified Mount Duneed/Armstrong Creek as the preferred location to cater for the bulk of the projected long term growth.[66]
3. Map 5 in this strategy delineates the extent of the Mount Duneed/Armstrong Creek future growth area. The acquired land is not included in this future growth area.

Armstrong Creek Urban Growth Plan: Flora and Fauna Technical Report (24 February 2006)

1. The Armstrong Creek Urban Growth Plan: Flora and Fauna Technical Report (24 February 2006 was commission by Council to provide an overview of the natural environment context of the study area.
2. Relevantly, the report recognises the existence of wetlands on the Barwon River floodplain on which the acquired land is located.[67] Notably, the report also discusses the existence of the Ramsar wetlands east of the Barwon River floodplain in the following:[68]

Ramsar wetlands

Lake Connewarre Reserve lies east of the study area and forms part of the larger 'Bellarine Peninsula and Port Phillip Bay (Western Shoreline)' Ramsar site. Also part of this ramsar site is Reedy Creek which lies to the north of the Armstrong Creek UGDA, and Hospital Swamps which lie to the south-east. These wetlands support significant numbers of shorebird species.

The EPBC Act sets out procedures for assessing actions with potentially significant impacts on Ramsar values, whether these actions are proposed within or outside site boundaries. Of relevance to this study, under the guidelines issued for the Act, an impact on the ecological character of a declared Ramsar wetland is significant if areas of wetland are destroyed or substantially modified or there is a major an measurable change in the natural hydrological regime of the wetland.

Although the Armstrong Creek UGDA is situated outside the Reserve, it drains into the Ramsar site, and therefore the potential for indirect impacts to result from development within the Armstrong Creek UGDA.

Discussion

The most significant potential impacts to biodiversity values from development within the Armstrong Creek UGDA are associated with:

• Indirect impacts to the Ramsar site through altered hydrological regimes
• Impact to values along Armstrong Creek and Barwon River
• Potential impacts to state and Nationally listed species
• Potential loss of woodland vegetation on roadsides and in riparian zones

Recommendations

The following recommendations are made in regards to conserving and enhancing the flora and fauna values within the Armstrong Creek UGDA:

• Avoid native vegetation removal along Armstrong Creek, Barwon River and associated floodplain
• Avoid works that will impact upon both the instream and surrounding habitat values of Armstrong Creek
• Where development is to occur investigate implementation of best-management erosion and storm-water control practices to prevent sediment, and pollution run-off into neighbouring areas of high conservation value
• Utilise the existing road network (containing a substantial portion of remnant vegetation within the study area) as cycling/walking path network and to create landscape linkages
• Avoid the removal of stands of indigenous eucalypts and she-oaks where possible
• Undertake control of woody and other selected weed species
• Undertake pest animal control programs
• Undertake revegetation work along Armstrong Creek and roadsides to provide habitat corridors for local fauna
• Undertake more detailed flora and fauna surveys in areas proposed for development
• Undertake surveys for significant species (if suitable habitat is deems to be present within areas proposed for development)

1. Figure 1 of the report extracted below shows the study area outlined in black. The acquired land is located on the eastern part of the study area.[69]

1. Of the wetland vegetation in the study area, the report states:[70]

Wetland vegetation occurs in swampy sections of Armstrong Creek and on seasonal wet site throughout the study area. Sub-saline to saline wetlands supporting salt tolerant vegetation occupy the lower reaches of Armstrong Creek, and parts of the Barwon River floodplain. This vegetation represents a number of different Ecological Vegetation Classes (See Figure 2, Ecology Australia 2001a) and, in places, is in reasonable condition despite a long history of grazing.

1. Figure 2 shows the extant ecological vegetation class mapping for the study area. The eastern boundary of acquired land along the Barwon River shows the existence of Coastal Saltmarsh/Mangrove Shrubland Mosiac, Plains Sedgy Wetland and Coastal Alkaline Scrub.

1. The report contains a discussion on the significance of Ramsar sites under the Commonwealth's Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act') and states:[71]

Under the guidelines issued for the EPBC Act, an impact on the ecological character of a declared Ramsar wetland is significant if:

• Areas of the wetland are destroyed or substantially modified; or
• There is a major and measurable change in the natural hydrological regime of the wetland (eg change to the timing, duration and frequency of ground and surface water flows to and within the wetland); or
• The habitat or lifecycle of native species dependant upon the wetland is seriously affected; or
• There is a major and measurable change in the physio-chemical status of the wetland (eg salinity, pollutants, nutrients, temperature, turbidity); or
• Invasive species are introduced into the wetland.

• 21.1. Figure 5 of the report shows the areas of potential constrain to proposed development within the Armstrong Creek UGP Project area. The eastern most section of the acquired land is shown as containing remnant vegetation. [72]

Armstrong Creek Urban Growth Plan Flooding and Drainage Study (24 February 2006)

1. The Armstrong Creek Urban Growth Plan Flooding and Drainage Study (24 February 2006) outlined the investigations undertaken for the flooding and drainage component of the Armstrong Creek Urban Growth Plan that aided in defining the existing flooding behaviour and flooding constraints on future urban development.[73]
2. Figure 1-1 outlines the study area. The acquired land is within the study area.

1. Three specific tasks were addressed (either wholly or in part) by the study:
   • Task 1 - Digital Terrain Modelling.
   • Task 2 - Hydrological and hydraulic modelling, and mapping of 1% flood events (addressed in part by assessing existing conditions).
   • Task 3 - Assessment of drainage and flooding issues affecting development potential of nominated areas (addressed in part by assessment of the nature and extent of flooding identified in task 2; identification of land appropriate for conventional residential development and identification of unacceptable flooding within the floodplain delineated in task 2 for existing conditions only).
2. The study area was divided into the following five drainage catchments by Council:[74]
   • C252 - Waurn Ponds Creek.
   • C253 - Marshall.
   • C254 - South East Grovedale.
   • C255 - Sparrowvale described as:
     • Rural land, very flat, with an open constructed drain.
     • Private levee encloses low lying land adjacent to the Barwon River and prevents inundation up to 1 in 10 year flood.
     • Local runoff requires pumping over the levee for discharge to the Barwon River.
   • C256 - Sparrowvale North.
   • C257 - Armstrong Creek described as:
     • Urban development north of railway (outside study area) serviced by underground drainage system and retarding basin (north of railway).
     • Poorly defined watercourses with limited capacity.
     • Low lying areas subject to winter waterlogging.
   • C267 Thompsons Creek.
3. Figure 2.1 shows the above drainage catchments. The acquired land is within catchment C255 - Sparrowvale.

1. Section 4.5 of the study sets out, for the existing conditions, the hydrologic and hydraulic modelling for each of the identified catchments. Figure 4-6 shows the 100 year Average Recurrance Interval (ARI) Flood Event for catchments C255 (Sparrowvale) and C256. Figure 4-9 shows the 100 year ARI Flood Event for catchment C257 (Armstrong Creek). Both figures are extracted below.

1. Part 5 of the study contains the development potential assessment for the study area. It summarises the existing floodplain planning framework for the study area and examines the Victoria Flood Management Strategy which outlines the roles of key agencies at state, regional and local scale in floodplain management.
2. Figure 5-2 shows the existing Greater Geelong Planning Scheme flood related overlays for the study area.

1. Section 5.3 of the study discusses the drainage constraints to land development. That section concludes:[75]

As the conceptual layout of the proposed development is yet to be completed, no conceptual design of the storage/retarding basin has been completed.

A rough rule of thumb to size required flood storage/retarding basins is 500m3 per hectare developed. The study area is approximately 4400 ha. Based on this area, preliminary estimates of the total required flood storage is 2.2 million m3.

The study brief outlines that drainage may be difficult in areas where the slope is less than 1 in 250. Figure 5-6 shows the areas where the slope is less than 1 in 250.

1. Figure 5-6 shows that the acquired land is predominantly of slope less than 1 in 250.

Armstrong Creek Urban Growth Plan, Background Report (21 April 2006)

1. The stated purpose of this report was to summarise the context, opportunities and challenges for development of the Armstrong Creek Urban Growth area by drawing together the key findings from a series of specialist technical reports under as part of the Armstrong Creek Urban Growth Plan.[76]
2. Figure 1 of this report shows a synthesis of constraints in the Armstrong Creek Urban Growth Area. The acquired land is within the study area and is shown on that figure as predominantly being affected by the Flood Overlay and Remnant Vegetation. Both constraints are classified as 'high'.

1. The area affected by constraints is further shown in figure 2.

1. Section 3.7 of the report considered the natural environment of the identified urban growth area (sourced form the Armstrong Creek Urban Growth Plan - Flora and Fauna Technical Report 2006 prepared by Ecology Australia for Council).
2. The existing conditions are described as follows:[77]

3.7.2 Existing Conditions and Information

Flora

• 22 State or Nationally significant species previously recorded in a 5 km Data Review Area.
• Significant species, if present, are most likely to occur in remnant patches of vegetation along Armstrong Creek, Barwon River and floodplain, and along roadsides maintaining some remnant vegetation. Some significant species and communities also occur in remnant vegetation patches on freehold and.
• Native vegetation has been largely cleared and highly modified.
• Remnant vegetation is generally comprised of grassy woodland, wetland vegetation and grassland.
• Stewarts Reserve is among one of the best remaining examples of Grassy Woodland in the Geelong region. Highly significant grassy woodland patches also occur adjacent to Horseshoe Bend Road, Mt Duneed, Drews Lane, Marshall, and Baenches Land, Connewarre.
• Wetland vegetation occurs in swampy sections of Armstrong Creek and on seasonally wet sites throughout.
• Exotic grassland occurs across much of the area.
• To what extent native species persist within these grasslands is unknown, ad can only be assessed by site-specific surveys of development proposal lots.

Biosites

There are eight biosites within or potentially impacted by development within the Armstrong Creek UGDA. These sites range from Local to National conservation significance. No plan species or communities listed under the EPBC Act have been recorded in the study area. Spiny Peppercress, listed as Vulnerable under the Act has a moderate likelihood of occurring within the study area. Much of the modelled Plains Grasslands is in error, and the April 2006 assessment has shown it to be (or have been) predominantly either Grassy Woodland or Plains Grassy Woodland.

Fauna

There were 165 fauna species recorded within the 5km fauna Data Review Area, which included six species listed under the EPBC Act, and 9 listed under the FFG Act. The total consisted of 147 bird species (11 exotic), 4 mammal species (1 exotic), 4 reptile species, 2 frog species, 7 fish species and one invertebrate. The number of fauna species identified within the Fauna DRA is relatively low, considering the size of the area involved and the diversity of habitat types that would have existed in this area.

Six EPBC-listed Vulnerable fauna species are either known or regarded as at least moderately likely to occur in the study area.

Ramsar Wetlands

Although the Armstrong Creek UGDA is situated outside Reedy Lake and Lake Connewarre, it drains into the Ramsar site, and therefore there is potential for indirect impacts to result from development within the Armstrong Creek UGDA.

The most significant potential impacts to biodiversity values from development within the Armstrong Creek UDGA are associated with:

• Indirect impacts to the Ramsar site through altered hydrological regimes
• Impacts to values along Armstrong Creek and Barwon River
• Potential impacts to State and Nationally listed species
• Potential loss of woodland vegetation on roadsides and in riparian zones.

1. The key issues to be addressed when developing the growth area are described in section 3.7.3 as follows:

• Avoid native vegetation removal along Armstrong Creek, Barwon River and associated floodplain, and selected sites of highly significant Plains Grassy Woodland on freehold land.
• Avoid works that will impact upon both the instream and surrounding habitat values of Armstrong Creek.
• Where development is to occur investigate implementation of best-management erosion and storm-water control practices to prevent sediment, and pollution run-off into neighbouring areas of high conservation value.
• Utilise the existing road network (containing a substantial portion of remnant vegetation with the study area) as a cycling/walking path network to create landscape linkages.
• Avoid the removal of stands of indigenous eucalypts and she-oaks where possible.
• Undertake control of woody and other selected weed species.
• Undertake pest animal control programs.
• Undertake revegetation work along Armstrong Creek and roadside to provide habitat corridors for local fauna.
• Undertake more detailed flora and fauna surveys in areas proposed for development.
• Undertake surveys for significant species (if suitable habitat is deemed to be present within areas proposed for development).

1. Section 3.7.4 describes the constraints within the identified growth area as follows:

• Need to avoid impacts to Lake Connewarre through altered hydrological regimes
• Need to protect values along Armstrong Creek and Barwon River, and selected Plains Grassy Woodland remnants of high significance
• Need to protect State and Nationally listed species
• Need to protect woodland vegetation on roadsides and in riparian zones.

1. Figure 18 shows the existing roadside and remnant vegetation in the identified area.

1. Section 3.8 deals with open space and recreation. The key issues regarding the provision of open space and recreation for the identified idea is described as follows in section 3.8.3:[78]

• Allocation of open space should occur in such a way that positive features of the existing landscape are retained and preserved
• Open space in the study area should be integrated with existing open space network an assist in the integration of the Armstrong Creek population
• Establishment of new facilities within the Study Area may reduce pressure on existing facilities in the adjacent suburbs and assist in integrating the two communities
• It is anticipated that over time overall participation in team sports will fall further as older residents generally undertake more passive recreational activities such as walking and cycling

1. Guidance for open space development is described as follows:[79]
   • Conserve and protect the natural environment: open space should protect and enhance natural and cultural environments, particularly areas of remnant vegetation or habitat and those areas of indigenous and post European contact cultural value;
   • Reflecting community needs: open space provision and used decisions will be guided and influenced by, but not necessarily limited to, information from local and municipal communities on their open space interests, needs and aspirations, by demographic characteristics, and by information on the types and [patterns of leisure activity pursued by the community;
   • Enhancing recreation and tourism opportunities: ensure that open space provision reflects the importance of recreation and tourism to the City of Greater Geelong and the regional economy;
   • Improving provision and optimizing access: decisions on open space acquisition, management and use will give a high priority to creating an equitable distribution of open space and types of open space across the City. Particular attention will be given to providing and developing open space linkages between different open space resources and different parts of the City, and to activity nodes where linkages are difficult but compatible uses are concentrated;
   • Ensuring diversity of provision: ensure that open spaces with a wide range of characteristics are provided and that in making this provision, conservation and heritage value are retained and where possible enhanced;
   • Expanding the network of linkages: ensure that existing pedestrian and bicycle trail networks are enhanced and that additional provision is made to effectively meet recreation and consumer needs;
   • Providing for people with disabilities: the planning and provision processes must ensure that the needs of community members, including those with disabilities are provided for;
   • Site responsive uses: ensure that the uses of open space are appropriate to the nature, sustainable capacity and characteristics of the site;
   • Maintenance: ensure that open spaces are sited, planned and maintained to agreed serve and safety standards, with due regard to economic sustainability;
   • Providing clear guidance to Council: the open space planning process must provide Council with guidance as to development and management actions, which are affordable and are consistent with government policy and funding criteria;
   • Contribute to social and/or economic well-being and growth: open space planning and provision should contribute to the social and/or economic well-being of the community;
   • A flexible long term focus: the planning process should focus on long term strategic outcomes so as to provide flexible opportunities to meet and adapt to future needs. The outcomes of planning and management should ensure that alienation of open space is minimized;
   • Provision partnerships: opportunities for partnerships in the provision and management of open space should be integral to the planning process.
2. The constraints to the provision of open space and recreation within the study area are described as follows in section 3.8.4:[80]

• The adjacent recreational reserves are overutilised except Grovedale Reserve which has deteriorated over time - should be upgraded to be made suitable for soccer
• The existing facilities in adjacent suburbs are unlikely to be sufficient to provide for the Study Area's recreational needs
• The physical barrier between Armstrong Creek and the adjacent suburbs presented by the rail line would inhibit the usability of existing recreational facilities by the Armstrong Creek population

1. Opportunities for the provision of open space and recreational facilities are described in section 3.8.5 as follows:[81]

• To retain and preserve the positive features of the existing landscape for open spaces.
• Integrate the new open space network in the Armstrong Creek Study Area with existing open space networks particularly those in adjacent suburbs.

1. Section 3.11 considers flooding and drainage within the Study Area. On the main, it reflects the findings of the Armstrong Creek Urban Growth Plan - Flooding and Drainage Technical Report 2006 set out above.

Armstrong Creek Urban Growth Plan - Volume 1 May 2008 (Amended May 2010 & September 2012)

1. The Armstrong Creek Urban Growth Plan - Volume 1 May 2008 ('UGP') is included as a reference document in the planning scheme. It sets the long-term strategic planning direction to guide sustainable urban growth in Armstrong Creek.
2. The UGP was updated as part of Planning Scheme Amendment C206, C207 and C240 that respectively implemented the precinct structure plans for Armstrong Creek East Precinct, Armstrong Creek North East Industrial Precinct and Armstrong Creek West Precinct.[82]
3. Section 4.2 of the UGP deals with flooding and drainage within the urban growth area.
4. Section 5.2 of the UGP deals with the Barwon River Floodplain as follows:[83]

The Barwon River Floodplain extends almost to Barwon Heads Road, creating an extensive area of land that is inappropriate for development.

The area contains a stand of remnant River Red Gum woodland, which is of very high conservation significance (see Figure 5.1). This land should be acquired as a nature conservation reserve. Public access should be restricted in the core area, with interpretation and low-impact passive uses (walking on formal trails, nature study, etc) in fringing lower quality and re-vegetation areas - including alongside the river itself as par of the broader recreational trail circuit linking Waurn Ponds Creek with Armstrong Creek. This area would be appropriate for Net Gain offset works in addition to basic reserve management (control of fire weeds, vertebrate pests, etc).

This area also contains a site alongside Barwon River and Reedy Lake, which should be exempt from future development due to its indigenous cultural heritage significance. This site is contained within the state-owned conservation reserve at the northern end of Baenschs Lane.

It is appropriate for the remaining land to continue to be used for agricultural purposes. The most appropriate zone for agricultural purpose is the Farming Zone, as this prevents land from being further subdivided beyond the lot size specified in the schedule to the zone, and importantly, prevents any serial excisions eroding the primary agricultural purpose of the zone. The application of this zone will also encourage use and development of land based on comprehensive and sustainable land management practices, and ensures any non-agricultural uses, particularly dwellings, do not adversely affect the use of the land.

It should be noted that drainage is difficult in parts of the Sparrowvale drainage catchment due to slopes of less than 1 in 250. There is currently a private levee enclosing low lying land with the Sparrowvale drainage catchment to prevent inundation up to a 1-in-10 year flood. This results in a need to pump local runoff over the levee for discharge into the Barwon River.

1. Part 7 of the UGP deals with precinct structure plans and states that a simplified approach to planning for urban development in the growth area will be adopted:[84]

Under the simplified approach there will be two planning instruments required to be approved before urban development can occur in the Armstrong Creek Uran Growth Zone:

A Precinct Structure Plan needs to be prepared and incorporated into the Planning Scheme. The Precinct Structure Plan sets out the vision, future development, infrastructure requirements, developer contributions plan and outcomes for the development of a new community. The Precinct Structure Plans will be publicly exhibited and members of the public will be entitled to make a submission. If a submission is not accepted then it will be referred to an independent Pane appointed by the Planning Minister.

A Planning Permit which is a more detailed approval for individual development site (subdivision). Once a Precinct Structure Plan is approved by the Minister for Planning incorporated in the Greater Geelong Planning Scheme then Council will be able to issue permits for subdivisions providing they are generally consistent with the PSP and the developer can demonstrate:

• that the required timely infrastructure will be provided to the subdivision area;
• that the subdivision layout will achieve integration with existing or future subdivision layouts for surrounding landholdings; and
• that facilitates orderly development of the precinct.

1. The UGP divided the growth area into seven precincts as shown on the plan below:[85]

1. As can be seen from this plan, the acquired land adjoins, but is not included in, the HorseShoe Bend Precinct ('HBP').
2. The seven precincts were based on:[86]
   • drainage catchments;
   • land assembly based around key features to provide a level of self containment (e.g. Activity Centres or employment nodes); and
   • contiguous land interests.

1. This amendment to the planning scheme was gazetted on 4 December 2008 applying the Urban Growth Zone to land within the Armstrong Creek Urban Growth Area included in the Farming Zone as shown below:

1. As can be seen from this map, the acquired land is excluded from the Urban Growth Zone (remaining in the Farming Zone). A portion of the Sparrovale farm in the north west corner was included in the Urban Growth Zone as a result of this amendment to the planning scheme.

1. This planning scheme amendment was gazetted on 4 December 2008 and incorporated the Armstrong Creek UGP into the planning scheme.
2. Among the changes to the planning scheme made by this amendment are the following:
   • Applied Schedule 1 to the Environmental Significance Overlay ('ESO1') to refer to Armstrong Creek in the Statement of Environmental Significance;
   • Applied Schedule 1 to the ESO1 to environmentally sensitive areas along Armstrong Creek and the Barwon River and to stands of significant remnant vegetation on land identified in the Armstrong Creek Urban Growth Plan - Flora and Fauna Technical Report (Ecology Australia, February 2006); and
   • Applied Schedule 2 to the Environmental Significance Overlay (ESO2) to the Barwon River floodplain and the lower reaches of Armstrong Creek to provide a buffer for the adjoining wetlands of Reedy Creek, Hospital Swamps and Lake Connewarre.
3. As shown in part of planning scheme map o. 67ES), the acquired land is affected by the ESO2 as a result of this amendment.

Armstrong Creek Geelong's Growth Area - Integrated Infrastructure Delivery Plan ('IIDP') (10 March 2009)

1. Council, the then Department of Planning and Community Development and other government agencies developed the IIDP with the aim of ensuring that the growth area was provided with the timely delivery of infrastructure and services.
2. The purpose of the IIDP was to inform the budget planning and resource allocation process of all stakeholders who have been involved in the development of the Social Interagency Infrastructure Delivery Plan ('SIIDP') and the Civil Interagency Infrastructure Delivery Plan ('CIIDP').[87]
3. The IIDP was described as having a key role in determining local and regional infrastructure provision at the Precinct Structure Plan phase.
4. Stormwater runoff is identified as a critical resource that can be reused in landscaping and open space irrigation and creation of artificial water bodies.
5. The approach to stormwater management is designed to:
   • provide for an integrated approach to stormwater management that meets objectives for hydraulic capacity, water quality treatment and reuse;
   • minimise disturbance to waterways created by altered flow regimes and protects natural drainage and aquatic ecosystems;
   • maintain and protect water quality in receiving waters, the downstream environment and Ramsar wetlands;
   • enhance the value and public amenity of existing stream corridor, biodiversity and environment of Armstrong Creek;
   • include the principles of water sensitive urban design; and
   • allow for a full range of urban design, water conservation and local stormwater infrastructure alternatives.
6. The stormwater management strategy enables developers to choose one of the defined stormwater management strategies and provide the required additional detention and constructed wetland storage within each precinct. Alternatively, the opportunity is provided for a 'regional approach' which allows developers to make proportional financial contributions to construction detention basins and wetlands at an appropriate downstream location. All landholders in a given catchment will contribute financially to the cost of restoring streams within the catchment. The contribution will be based on the extent of land holdings.
7. The opportunity exists for Council to take a proactive approach in relation to a regional based solution to stormwater within the growth area through the use of Sparrowvale Farm, see Appendix 7 for location of this site. Sparrowvale Farm has been used for limited agricultural purposes and is currently in a degraded environmental state. Along with providing opportunities for regional based stormwater solution, the use of this land would result in improvements to the environmental values of the land, and also improvements to the interaction and interface that the site has with the Barwon River and the Ramsar wetlands.
8. Appendix 9 contains the estimated infrastructure costs, funding agent and apportionment. For the provision of stormwater infrastructure the table shows that the estimated costs is 'TBC' (to be confirmed) and funded 100% by developers.[88]

Armstrong Creek East Precinct Structure Plan (May 2010)

1. Section 1 of the Armstrong Creek East Precinct Structure Plan (the 'ACEPSP') describes a precinct structure plan as a planning mechanism used to plan for major new urban development together with the infrastructure and services required by the intended future community.[89]
2. Plan 2 identifies the area within the ACEPSP. The acquired land is not within the boundary of the ACEPSP.

1. Plan 18 shows that overland flows mostly to Armstrong Creek that in turn is discharged/drained to Hospital Swamp.[90]

Armstrong Creek Urban Growth Area - Horseshoe Bend Precinct (HBP) - Stormwater Management Strategy (SWMS) - Discussion Paper (October 2011)

1. The stated purpose of this discussion paper was 'to provide a basis for initial planning and negotiation regarding the provision of main drainage services across the Horseshoe Bend Precinct ('HBP'). [91]
2. The discussion paper identifies, the various precincts in the Armstrong Creek Urban Growth Area, discusses the existing flooding conditions across the HBP, presents initial estimates for drainages works within the identified precincts, and considers 'potential opportunities that may exist for relocation of some major drainage management assets out of the current precinct area and into the area of Sparrowvale Farm, in case major changes in property ownership do eventuate in the short to medium term'.[92]
3. On the existing flooding conditions, the paper states:

The bulk of the HBP drains easterly across Barwon Heads Road to Sparrowvale Farm and is referred to as the Sparrowvale catchment. Figure 2 (Sheet 2 of 2 refers). Flood extents shown on this figure assume local catchment runoff conditions only. Higher flood levels apply for Barwon River inundation (2.00m/3 AHD for 10/100 years ARU respectively).

Along the southerly boundary of the Sparrowvale catchment the HBP boundary straddles the catchment boundary. Small pockets of land within the HBP thus drain south into the ACEP as indicated on Figure 2 (shet 2 of 2). Due to elevation and slope none of these small areas is affected by waterway of floodplain inundation.

Downstream of Sparrowvale Farm, the receiving environments of the Lower Barwon River Wetlands, especially Hospital Swamps, are dominant considerations for surface drainage planning. Figure 3 shows the wetlands system layout with key reference points for water control structures including the farm levee and river offtakes.

Figure 4 (Sheets 1 and 2) are nearmap.com extracts showing conditions in the area downstream of the HBP during drought (August 2009), and most recently in October 2011. Clearly under existing catchment conditions extensive areas of the farm are subject to prolonged inundation, unrelated to Barwon River flooding but clearly linked to high water levels in Hospital Swamps effectively preventing drainage of water through the levee via the drain/regulator.

1. After considering the Hospital Swamps flow/ecology requirements, the Barwon River Flood Hydrology and sea level rise predictions, the discussion paper considers the implications for the HBP stormwater management strategy. Two possibilities are considered in section 3.5:

3.5 Implications for HBO SWMS

3.5.1 Sparrowvale Farm Retained in Private Ownership

Despite the dire long term threats posed to Hospital Swamps if sea levels rise as predicted, the pressing need as far as the HBP SWMS is concerned is to deal with the protection of Sparrowvale Farm, in a manner which complies with as far as practicable with the defined flow regime requirements for protection of Hospital Swamp.

This constraint effectively rules out increased discharge of water to Hospital Swamp in the dry times of the year.

Given that the existing farm levee bank will need to be retained to protect the farm from frequent river flooding the only feasible option is to reinstate pumping over the levee to mitigate the threat of prolonged inundation within the farm.

3.5.2 Sparrowvale Farm is Transferred to Public Ownership

If Sparrowvale Farm is transferred into public ownership then the area subject to prolonged inundation would be converted to a freshwater wetland system, with the levee retained.

The Normal Top Water Level (NTWL) of the wetland would be set at close to 1.00 m AHD (as in the case for the terminal linear wetland chain in the ACEP) so as to facilitate effective gravity drainage connection out to the River for most of the year and especially in the summer/autumn periods, using the existing farm drainage outlets.

It would be a simple matter to then link the ACEP wetland system through Sparrowvale Farm to allow all low flows in the summer/autumn period to be diverted around Hospital Swamp.

This solution then offers the opportunity to reduce size and land take for surface water management assets within the HBP and relocate this into Sparrowvale Farm.

With the Sparrowvale wetland NTWL also being above the longer term sea level rise predictions, this solution is sustainable. It is also the most technically robust option for management of Hospital Swamps over the next few decades.

1. Table 18 contains a detailed examination of the water regime recommended for Hospital Swamps to meet stated ecological and management objectives.[93]
2. One of the stated objectives of the proposed strategy for management of stormwater flows and quality in the HBP is identified as:[94]
   • as far as possible, protecting Sparrowvale Farm and Hospital Swamps from the impacts of altered hydrology arising from urbanisation. For Sparrowvale Farm the primary focus will be on diversion of excess flows in winter/spring. For Hospital Swamps the primary focus will be on maintenance of existing summer/autumn drying periods.
3. Figure 5 shows wetland retarding basins that would be required if Sparrowvale were to remain in private ownership (and assumes pumping capacity is reinstated from the farm drainage system to the Barwon River to address the changed hydrology associated with urban development).

Planning Scheme Amendment C206

1. This amendment to the planning scheme was gazetted on 3 June 2010 and amongst other things incorporated the Armstrong Creek East Precinct Structure Plan (May 2010).

Armstrong Creek Urban Growth Area - Horseshoe Bend Precinct (HBP) - Stormwater Management Strategy (SWMS) (Final Version 8) October 2013

1. This is the final report of Neil Craigie in a series commencing on 31 October 2011 (referred to above) and ending in May 2012.
2. To the extent relevant, this SWMS:
   • presented information regarding existing catchments and flooding conditions across the HBP;
   • summarised recent studies carried out to determine critical environmental flow/ecology requirements for the Lower Barwon Wetlands system which receive the surface runoff from Armstrong Creek and the HBP catchments;
   • adopted inclusion of the wetland area in Sparrovale as part of the overall Armstrong Creek Growth Area stormwater management system;
3. As to the existing catchments and flooding constraints, the SWMS, after identifying two primary catchments draining land in the HBP, relevantly states:[95]

The bulk of the HBP drains northeasterly and easterly across Barwon Heads Road to Sparrovale Farm and is referred to as the Sparrovale catchment. Figure 2 (Sheet 2 of 2) refers. Flood extents shown on this figure assume local catchment runoff conditions only. Higher flood levels apply for Barwon River inundation (2.00m/3.00 m AHD for 1-/100 years ARI respectively).

Along the southerly boundary of the Sparrovale catchment the HBP boundary straddles the catchment boundary. Small pockets of land within the HBP thus drain south into the ACCEP as indicated on Figure 2 (Sheet 2 of 2). Due to small catchment areas, higher elevation and greater slope, no one of these small areas is affected by waterway or floodplain inundation.

Downstream of Sparrovale Farm the receiving environments of the Lower Barwon River Wetlands, especially Hospital Swamps, are dominant considerations for surface drainage planning. Figure 3 shows the wetland system layout with key reference points for water control structures including the farm levee and river offtakes.

Figure 4 (Sheets 1 and 2) are nearmap.com extracts showing conditions in the area downstream of the HBP during drought (August 2009), and most recently in October 2011. Under existing catchment conditions extensive areas of the farm are subject to prolonged inundation, unrelated to Barwon River flooding but clearly linked to high water levels in Hospital Swamps effectively impeding drainage of water through the levee via the drain/regulator.

It is clear from Figures 2-4 inclusive that Sparrovale Farm is and historically been subject to extensive inundation from both its local catchment and the Barwon River.

Development of the HBP lands will further increase volumes and frequency of surface runoff discharging to the farm area which is of critical concerns for the affected landowners.

1. After discussing the Hospital Swamps flow/ecology requirements, Barwon River flood hydrology and sea level rise predictions, the SWMS considers the implications for the HBP SMWS if Sparrovale were to remain in private ownership and if it were to be transferred to public ownership. Because these observations differ from those made in the October 2011 SWMS, they are extracted in full below:[96]

3.5 Implications for HBP SWMS

3.5.1 Sparrovale Farm Retained in Private Ownership

Despite the dire long term threats posed to Hospital Swamps if sea level rise area as predicted, the pressing need as far as the HBP SWMS is concerned is to deal with protection of Sparrovale Farm from increased runoff, in a manner which complies as far as practicable with the defined flow regime requirements for protection of Hospital Swamps.

This constraint effectively rules out increased discharge of water to Hospital Swamps in the dry times of the year.

Given that the existing farm levee bank will need to be retained to protect the farm from frequent river flooding the only feasible options are to either pump water over the levee, or to construct an alternative levee-banked/flood-gated outfall to the River around the north side or possibly even through the farm, to mitigate the threat of prolonged inundation within the farm.

Council have advised that a dependence on pumping is not considered an acceptable option and it has not been considered further as part of the SWMS.

3.5.2 Sparrovale Farm Transferred to Public Ownership

If Sparrovale Farm is transferred into public ownership then the area currently subject to prolonged inundation would be able to be converted to a freshwater wetland system, with the existing Barwon River levee retained.

The Normal Top Water Level (NTWL) of the wetland would be set at or close to 1.00 m AHD (as is the case for the terminal linear wetland chain the ACEP) so as to facilitate effective gravity drainage connection out to the River for most of the year and especially in the summer/autumn periods, using the existing farm drainage channel outlets.

The extra runoff volumes generated from development in the HBP then also present an additional source of supply of freshwater for Hospital Swamps when required.

It would be a simple matter to then also link the ACEP wetland system through Sparrovale Farm to allow all low flows from the wider Armstrong Creek catchment to be diverted around Hospital Swamp in the summer/autumn period.

This solution then offers the opportunity to reduce the size and land take for surface water management assets within the HBP and relocated residual management capacity needs into Sparrovale Farm.

With the Sparrovale wetland NTWL also being above the longer term sea level rise predictions, this solution is sustainable beyond the year 2100. It is also the most technically robust option for management of Hospital Swamps over the next few decades at least.

3.5.3 Recommendation

Conversion of the Sparrovale Farm lowlands into a major freshwater wetland system should be incorporated as a fundamental building block for the HBP SWMS.

1. Section 4.2 of the SWMS details how the proposal to transfer the inundated areas of Sparrovale may be converted into a freshwater wetland system.[97] Figure 5 (extracted below) shows:[98]
   • the recommended minimum extent of land that should be set aside for management of catchment runoff for the wetland with full catchment development in place;
   • the linear sedimentation basin to be constructed within the boundaries on the existing inlet drainage line.

1. The extent of works depicted on Figure 5 is said to be 'very much the minimum required to achieve the desired longer term outcome of an extensive freshwater wetland system, whilst protecting remnant modified coastal salt marsh'.[99]
2. The SWMS recognises opportunity for other enhancements that could be implemented as part of the wetlands project including:
   • recreational and landscape values;
   • design to zone residual stormwater capacity for the HBP close to the wetlands inlet so as to maximise water quality values across the balance wetlands area; and
   • flora/fauna and cultural/heritage values.
3. These enhancements are not considered necessary to achieve the SWMS outcomes for the management of HBP stormwater and therefore should not form part of the Development Contributions Plan.[100]
4. The SWMS also stated that the available capacity for management of development runoff quality and quantity of incorporating the Sparrovale wetlands into overall surface water management planning for the HBP 'far exceeds that required for the HBP catchments alone' presenting unique opportunities for stormwater management across future urban areas.[101]
5. Such opportunities include:[102]
   • linking the terminal wetlands from the Armstrong Creek East Precinct across to the proposed Sparrovale wetland which would then complete the hydrological and water quality protection for the entire catchment to Hospital Swamps; and
   • cross connect the 'Trifolos Drain' which would produce significant reductions in inflows to the Marshall Precinct and complementary reductions in drainage quality and quantity management requirements.

Barwon River interface with Armstrong Creek Growth Area - Background issues and opportunities Discussion Paper (August 2014)

1. In 2014, Council coordinated a project to establish a strategic framework to respond to issues and opportunities associated with the approximate 770 hectare interface of the Barwon River and floodplain adjoining the urban growth zone across the Armstrong Creek Urban Growth Area. The findings of that project are set out in this discussion paper.
2. Section 2.2 of the discussion paper examines land along the Barwon River and Lake Connewarre system that has been included in the ESO2 under the planning scheme in the Barwon River Parklands study area (which includes the acquired land).
3. All of the study area is located outside the Armstrong Creek Urban Growth Zone and entirely within the Q100 or 1% ARI flood level for the Barwon River.[103]
4. Relevantly, in terms of drainage of the HBP the discussion paper states:

6.2.3 Horseshoe Bend Precinct

Large new (300+ hectares) wetlands are proposed for the naturally low-lying areas of "Sparrovale" and "Cold Winds" Farms to treat stormwater run-off from urban development in the Horseshoe Bend Precinct. There will be two main inlets constructed into the wetland along low lying natural gully forms. These inlets will be joined together at the north east corner of Harriot Road before discharging into the main wetland.

The existing low lying land of Sparrovale and Cold Winds Farms is ideally suited to the establishment of these wetlands and existing flood protection bunds and outlet regulators to the Barwon River will and modified/augmented and maintained to form two large shallow fresh water wetlands.

These wetlands and the new levee system will also protect areas of natural saline saltmarsh vegetation and the saline character of Hospital Swamps and proved a significant addition to habitat values of the Barwon River corridor and the Lake Connewarre State Game Reserve and Ramsar area.

The wetlands will be designed for ultimate development however their connection to the Barwon River floodplain means they will operate after flooding as soon as the new levee system and regulators are established.

1. Section 9.3 of the discussion papers consider the role of the Horseshoe Bend Precinct Structure Plan in the delivery of the Barwon River Parklands. It states:[104]

The Horseshoe Bend PSP covers an area of approx. 650ha and directly adjoins the Barwon River Parklands at Sparrovale Road. The precinct will be predominantly residential and is expected to include 7,000 to 7,500 new homes when fully developed.

A key element of the Horseshoe Bend Precinct Draft Master Plan 2012 is the extension of the Barwon River Parklands by over 500 hectares. This will include a 300+ hectare drainage/wetland complex and biodiversity conservation area located east of Sparrovale Road that will also provide for future establishment of recreational trails.

The Draft Master Plan also includes a regional passive public open space reserve of 3 hectares on the western side of Sparrovale Road. This reserve will include a regional playground, picnic facilities and car park. The reserve will extend through to Barwon Heads Road will provide views and the primary address for the Barwon River floodplain at this key entry.

1. As part of section 9.3 there is a table that sets out 14 issues and draft opportunities arising from the 'Sparrovale wetlands'. The directly relevant issues and draft opportunities are extracted below.

1. Section 9.4 of the discussion paper specifically examines the Armstrong Creek Each Precinct.[105]
2. As with the section dealing with the Horseshoe Bend Precinct, therein is included in table form identified issues and draft responsibilities. Those of relevance to present issues are set out below.

1. Figure 3 in the discussion paper shows that to the extent the acquired land was contemplated as part of the Barwon River Parklands - it was intended to be in public ownership.[106]

1. Figure 4 shows the opportunities and constraints for the proposed Barwon River Parklands.[107]

Armstrong Creek Horseshoe Bend Precinct Structure Plan (September 2014)

1. The Armstrong Creek Horseshoe Bend Precinct Structure Plan (September 2014) ('HB PSP') set out objectives and provided for their implementation in relation to the following eight key elements:[108]
   • image and character;
   • subdivision and housing;
   • community facilities;
   • public open space, natural systems and biodiversity;
   • employment and activity centres;
   • transport and movement;
   • utilities and energy; and
   • drainage and floodplain management.
2. Plan 2 is a context plan that shows the precinct boundary for the HB PSP.

1. The acquired land is not within the precinct boundary of the HB PSP.
2. A number of precinct features are identified in the HB PSP. 'Biodiversity' and 'Catchments and Drainage' are two identified features.
3. The major features of the adopted drainage network described in the HB PSP are:[109]
   • The majority of the HBP (459 hectares) drains via the two main east-west drainage lines to Barwon Heads Road and then to Sparrovale Farm before ultimately discharging into the Barwon River.
   • A smaller catchment (the South East Grovedale Catchment comprising 97 hectares) on the north-west drains north to Reserve Road/Marshall Precinct just west of Horseshoe Bend Road. The drainage strategy for HBO will see this 97 hectare catchment diverted south and east into the new Sparrovale drainage and conservation area.
   • The Armstrong Creek East-West Link Road alignment forms a catchment barrier for lands to the north and also land west of the Surf Coast Highway in the ACWP and directs that all such drainage into the Marshall Precinct. Options to address drainage, including an option to divert the flows into the Sparrovale drainage and conservation area are being investigated as part of the preparation of the Marshall precinct structure plan.
   • Downstream of Sparrovale Farm the receiving environments of the Lower Barwon River Wetlands, especially Hospital Swamps, are dominant environmental considerations for drainage planning. The adopted drainage strategy will protect the ecological conditions of the Hospital Swamps through a 514 hectare expansion of the Barwon River Parklands, which will include the creation of a new large scale wetland based around Sparrovale Farm.
4. Plan 3 is the Urban Structure Plan and shows the two main east west drainage lines referred to above.[110]

1. Section 3.1.6 of the HB SPS considers climate change and environmental sustainability.[111]
2. Special consideration is given to the role of the adopted stormwater management strategy for the precinct. The key features of the drainage strategy are described as follows:[112]
   • It adopts inclusion of the wetland area in Sparrovale Farm as part of an efficient strategic solution to overall stormwater management issues as well as to realise opportunities for conservation and passive recreation outcomes over time.
   • It responds to the implications of the potential transit/rail corridor excavation and current preliminary design proposals for the Armstrong Creek East-West Link Road.
   • Incorporates diversions of the Reserve Road sub-catchment in the HBP into the Sparrovale catchment.
3. Section 4.8.1 of the HB PSP details the objectives for the provision of drainage and floodplain management as follows:[113]
   • ensure appropriate floodplain management in the HBP and beyond;
   • reduce the total annual average volume of stormwater runoff from development catchments by a minimum of 30% over traditional drainage treatment measures through implementation of the approved drainage strategy and design guidelines contained the in the HB PSP.
   • protect and/or enhance downstream environments including recognised social, environmental and economic values, by managing appropriately the quality and quantity of stormwater runoff in accord with best practise;
   • integrate appropriate designed stormwater systems into the natural and built environments whilst optimising the potential uses of drainage corridors for recreation, landscape and environmental values;
   • manage volumes and frequency of treated stormwater runoff to best suit downstream receiving environment constraints;
   • ensure the peak stormwater discharge from developed catchments is not greater than peak discharges form the same catchment subject to existing conditions (for all events up to and including the 100 year ARI flood) until such time as the Sparrovale wetlands system is delivered and downstream drainage infrastructure is in place;
   • ensure that impervious surfaces and piped drainage systems are not directly connected to waterways;
   • ensure stormwater quality from (sic) is treated to contemporary best practice objectives, as measured/referenced at the precinct outfall boundaries;
   • ensure no significant change to stormwater discharges for critical storm durations up to 100 years Average Recurrence Interval (ARI) events, as measured/referenced at the precinct outfall boundaries and taking into account other external catchments;
   • as far as practically feasible, protect Hospital Swamps from the impacts of altered hydrology arising from urbanisation, particularly the maintenance of existing summer/autumn drying periods and seasonable saine/freshwater cycles;
   • convert the Sparrovale lowlands to a freshwater wetland system managing runoff from development areas;
   • integrate surface water management features with open space;
   • rationalise subcatchment boundaries to optimise the strategic stormwater management value offered by integration of the Sparrovale lowland, a major freshwater wetland system treating runoff;
   • create stormflow mitigation storages that avoid the use of high embankments (on safety and cost grounds);
   • protect key flora/fauna habitat areas and sites of cultural heritage value;
   • consolidate drainage management assets wherever possible to minimise ongoing maintenance costs; and
   • encourage landholders to cooperate to ensure delivery of required drainage and wetland infrastructure as land is developed.
4. The implementation of these objectives is stated to be met by all of the following:
   • Plan 3: Horseshoe Bend Precinct Urban Structure.
   • Plan 18: Main Stormwater Drainage Network.
   • Appendix 5: Public Open Space Guidelines.
   • Appendix 9: Stormwater Management Strategy - Implementation Guidelines.
5. Plan 18 showing the Main Stormwater Drainage Network is extracted below.

1. Appendix 9 contains the HBP Stormwater Management Strategy - Implementation Guidelines and is to be read with Plan 18 and section 4.8.3 which contains the 'Planning and Design Guidelines: Drainage and Floodplain Management'. These guidelines state:

The following planning and design guidelines for drainage and floodplain management must be met.

• Wetlands and retarding basins must be generally located in accordance with Plan 18 Main Stormwater Drainage Network except that, in the case of DI_DR_09, may be approved to the satisfaction of the Responsible Authority.
• Development must ensure the peak stormwater discharge from developed catchments is not greater than peak discharges from the same catchment subject to existing conditions (for all events up to and including the 100 year ARI flood) until such time as the Sparrovale wetlands system is delivered and downstream drainage infrastructure is on place;
• While the Sparrovale wetland system, and appropriate downstream drainage infrastructure, is not in place, development must provide temporary drainage infrastructure that ensures peak discharge from the developed catchment does not exceed that of pre development conditions. This infrastructure is to be constructed to the satisfaction of the Responsible Authority and at the cost of the developer with no reimbursement.
• Development including subdivision within the Q100 flood event (existing and proposed) (refer to Plan 18 (Main Stormwater Drainage Network) must be designed to satisfy the requirements of the Corangamite Catchment Management Authority (CCMA), including any interim flood mitigations works, to the satisfaction of the Responsible Authority.
• The minimum surface gradient on all lots to allow for appropriate drainage must be to the satisfaction of the Responsible Authority.
• The minimum finished surface level (excluding access driveways and paths) on all lots must be not less than 300 millimetres above the Q100 flood event.
• The minimum floor level on all buildings must be 600 millimetres above the above the Q100 flood event. On roads used as floodways not flanking main waterways, floor levels on all lots should be not less than 300 mm above 100year ARI flood levels as measured at the midpoint of the lot. The absolute minimum floor level of nay building in the HBP is 3.6m AHD which is 600mm above the Q100 level for the Barwon River floodplain.
• Underground drainage must cater for the flood event as specified in the drainage strategy endorsed by CoGG for HBP.
• Culvert augmentation/upgrade works for major drainage must be provided to the satisfaction of the Responsible Authority for all road crossings.
• Piped open drains, water quality treatment trains and stream interface/outlet works, must be provided to the satisfaction of the Responsible Authority.
• Local retardation basins, overland flow paths, water quality treatment trains and stream interface/outlet works, must be provided to the satisfaction of the Responsible Authority on relevant land parcels in accordance with the stormwater management strategy for HBP, as approved by the relevant drainage authority.

The following planning and design guidelines should be met.

• Any development proposing interim/temporary or out-of-sequence works should give adequate consideration to any site specific requirements nominated in Appendix 9 - Horseshoe Bend Stormwater Management Strategy - Implementation Guidelines, to the satisfaction of the Responsible Authority.
• Rainwater tanks are recommended for each dwelling and other relevant building structures.
• Gross pollutants/litter should be effectively addressed as part of the drainage design downstream of areas of high generation of litter e.g. activity centres and schools.

1. Appendix 9 states that the costings for main drainage works associated with the implementation of the Horseshoe Bend Precinct SWMS are included in the Development Control plan.
2. Where development of land within the HBP proposes construction of interim/temporary works or development before the commissioning of the Sparrovale wetlands, certain guidelines concerning the staging and implementation of the HBP SWMS are required to be followed depending on which subcatchment of the Armstrong Creek East Precinct the land to be developed is within.[114]
3. Recalling the subcatchments of the Armstrong Creek East Precinct as shown in the SWMS as follows:

1.2 Development Prior to the Commissioning of the Sparrovale Wetlands

(a) Sparrovale North Catchment:

• Development west of Horseshoe Bend Road can proceed in advance of works downstream, subject to adequate temporary site management facilities being constructed to the satisfaction of the Responsible Authority in accord with Section 6.8.3 of the HBP SWMS.
• Subject to prior completion of the linear SBRB, upgrading of the culvert outfall under Barwon Heads Road can be deferred until development in the upstream catchment exceeds about 25% of the developable area.
• Upgrade of the culverts under Barwon Heads Road will trigger the need for the works downstream to the proposed Sparrovale Wetland system to be completed in order to gain the necessary lowered invert level. Hence these works must be deferred until the Sparrovale Wetlands are acquired.

• Development west of Horseshow Bend Road can proceed in advance of works downstream, subject to adequate temporary site management facilities being constructed to the satisfaction of the Responsible Authority in accord with Section 6.8.3 of the HBP SWMS.
• Upgrade of the culverts under Barwon Heads Road will trigger the need for the works downstream to the proposed Sparrovale Wetland system to be competed in order to gain the necessary lowered invert level. Hence these works must be deferred until the Sparrovale Wetland is commissioned.

• If the initial stages of l and development are sufficiently remote from the Reserve Rd SBRB site then temporary site management facilities may be construed to the satisfaction of the Responsible Authority in accord with Section 6.8.3 of the SWMS.
• Any development west of Barwarre Road abutting the raid corridor must make provision for and include the diversion pipe capacity from Boundary Road.
• Development east of Barwarre Road near the 4D corridor must include the diversion pipe capacity and will likely trigger the need for the Reserve Road SBRB to be constructed.
• Timing of the main outfall diversion pipeline works from the Reserve Road SBRB back into the Sparrovale North drainage system will be dependent on rate and location of development.
• If development in the Sparrovale Nother catchment has not proceeded to the point whether the Sparrovale North SBRB had been built, then it may be feasible to provide a temporary low flow outlet from Reserve Road SBRB to the existing drain at Reserve Road/Drews Road intersection.
• Along the 4D alignment frontage it may be necessary to fill to create a barrier against inflow of overland flows from the Trifilos Drain catchment into the HBP development land. Such filling can be created by forming a temporary levee on the boundary (wrapping around the upstream end to create the flood barrier) or it can be formed as general raising of the verge roads/allotments. Such works do not form part of the DCP and are considered as temporary works to facilitate development within the HBP, in advance of the 4D road works.

The permanent drainage management assets in the HBP are focussed on sediment and peak flow mitigation. They rely on the Sparrovale Wetlands for delivery of stormwater nutrient removal to achieve the best practice standards.

Horseshoe Bend Precinct Development Contributions Plan - September 2014

1. The Horseshoe Bend Precinct Development Contributions Plan - September 2014 ('DCP') was developed to support the funding of infrastructure in the HBP.[115]
2. Section 7.1 of the DCP dates that land values and construction costs listed therein are in July 2012 dollars (to be indexed annually according to the method specified).[116]
3. Section 7.2 states as follows:[117]

Valuations for land to be acquired under this DCP were provided by a qualified independent valuer (Charter Keck Cramer). Land to be acquired was valued based on the 'before and after method' assuming all the usual services (reticulated water, sewerage, electricity, gas, drainage, telecommunications) will be available when the development proceeds.

1. Section 7.4 identifies Council as the development agency pursuant to section 46K of the Planning and Environment Act 1987 (Vic).[118]
2. Section 8.4 states:

8.4 Land

Council wishes to obtain land required under the DCP, as an off-set against a developer's development contribution. As with works-in-kind, the provision of land would be agreed in an agreement between the developer and the Responsible Authority pursuant to Section 173 of the Planning and Environment Act (1987). The value of the off-set providing land will be equal to the value shown in the DCP, subject to indexation.

1. Figure 7 identifies the location of drainage infrastructure items to be provided under the DCP. It is set out below.

1. Although the 'Sparrovale Farm Drainage Works' are located outside the HBP, these drainage works are shown on Figure 7.
2. Table 7 provides a summary of the infrastructure items in the DCP, the determination of costs apportionment to the main catchment area and the strategic justification for the item.[119] The parts of that table referring to the Sparrovale Wetlands are extracted below.

1. Table 8 sets out the development infrastructure levy calculation by infrastructure item.[120] The line entries relevant to the Sparrovale Wetlands are extracted below.

1. Appendix B of the DCP includes the DCP Infrastructure Project Sheets.[121]
2. Appendix 2 contains project sheets for:
   • Acquisition of 1-87 Grove Road for environmental and drainage works with total area to be acquired given as 87.30 ha with a project cost of $752,500.00;[122]
   • Acquisition of Sparrovale Farm for environmental and drainage works with total area to be acquired given as 419.80 ha with a project cost of $1,729,000;[123]
   • Construction of various works associated with the delivery of the Sparrovale wetland to service the Horseshoe Bend Precinct with a project cost of $2,472,557.00;[124]and
   • Delivery of a comprehensive management and implementation program that is staged to deliver over a period of approximately 10 years to effectively transition the site from a degraded farmland to a functional, integrated and sustainable wetland system (with a project cost of $3,750,000.00).[125]

1. This amendment was gazetted on, and commenced on, 27 November 2014.
2. Both the HB PSP and the DCP were incorporated into the planning scheme as a result of this amendment.

1. This amendment was gazetted on 25 January 2018.
2. It applied the Public Acquisition Overlay to Sparrovale and Coldwinds.

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[1] Taken from the notice of acquisition dated 21 February 2019 at TB1 P49.

[2] See proceeding P10067/2023 in relation to Coldwinds.

[6] Relying on the valuation of Daniel Thomas.

[8] Relying on the valuation of Geoffrey Brown.

[10] Relying on the valuation of Daniel Thomas.

[11] Relying on the valuation of Geoffrey Brown.

[13] Respondent's Closing Submissions, 29 October 2024, at [437]-[438].

[15] Respondent's closing submissions at [452]-[466].

[16] See table at [464] of the Respondent's Closing Submissions, 29 October 2024 adjusted by the Tribunal to reflect the correct area for land subject to rezoning (14.8 ha and not 16.68 ha).

[17] Respondent's Closing Submissions, 29 October 2024, at [79] - [81].

[19] The figures in the table at [104] of the Respondent's Closing Submission has been corrected to adjust for arithmetical error in the calculation of the total figure given by the respondent for land above 2.66 AHD (2.27 x $48,000.00 equals $108,960.00 NOT $136, 200.00 provided by the respondent in the table at [104] of his submission). We also note that the rate for farming land below 2.66 AHD of $12,000.00 is more than the figure of $10,000.00 adopted in the table appearing at [464] of the Respondent's Closing Submissions, 29 October 2024.

[20] See Respondent's Closing Submissions, 29 October 2024 at [509] and [514] respectively.

[22] Council's Written Closing Submissions at [97].

[23] The Morris Report presented final recommendations to the Minister for Planning on the principles that might government acquisitions in different circumstances particularly in light of the report of the Australian Law Reform Commission on land acquisition and compensation.

[24] Conclave of Rob Swan and Warwick Bishop, 23 October 2023 at TB1, P832; noting that the use of the term 'subject land' in this joint statement refers to Sparrovale and Coldwinds.

[38] Located at 892-958 and 960-990 Barwon Heads Road, Armstrong Creek.

[41] TB1 P2419; noting that Mr Dudakov's 'before' and 'after' calculations included a valuation figure for 16.68 hectares of Sparrovale that was included in the Armstrong Creek Urban Growth Area when the growth area was included in the planning scheme in 2012. This inclusion has no importance overall because the value assessed was the same in both his 'before' and 'after' scenarios.

[42] T3 P142-144; taken from Mr Thomas witness statement of 27 August 2024 correct an error in the second joint statement of the valuers attributable to his calculations set out in that joint statement.

[50] [1959] HCA 8; (1959) 101 CLR 298.

[52] See Respondent's Closing Submission.

[53] Spencer at 432. See also James v Swan Hill Sewerage Authority [1978] VicRp 49; [1978] VR 519 at p522.

[59] Witness Statement of Graham Bruce Perkins of 19 January 2024 at [128].

[60] $449,104.90 - $93,823.04 = $355, 281.86.

[75] Despite indications to the contrary in the study, the 'study brief' was not annexed to the study itself.

[93] These objectives were themselves extracted from a report 'Lower Barwon Wetlands Flow Ecology Relationships Final Report (Lloyd Environmental et al, September 2011 for CCMA)'.