(1) the Applicant's entitlement to claim compensation under the LA Act;

(2) the value of the Applicant's interest for the purposes of s 241(2) of the LA Act; and

(3) the Applicant's claim for consequential damages under s 241(6) of the LA Act.

1. On 2 September 1992, the (then) City of Wanneroo (City) and Tah Land entered into a deed (Deed) as an aspect of the City's approval to develop the Shopping Centre Land. The Deed was, in effect, an agreement so as to facilitate the rezoning of what was planned to become the Shopping Centre Land under the (then) Town Planning Scheme No 1 from 'Rural' to 'Commercial, Hotel, Service Industrial and Service Station'.[7]
2. Pursuant to the Deed, Tah Land agreed to transfer to the City, for no cost, various parts of the Land for public purposes, including a portion of land for the construction of Hepburn Avenue, a portion of land for a pedestrian accessway and a portion of land required for a major intersection treatment at the north-east corner of Wanneroo Road and Hepburn Avenue (being the Intersection Land).[8]
3. Specifically, the Deed provided that:

(a) Tah Land would, prior to the Shopping Centre commencing trading, would cede and transfer to the City the Intersection Land in fee simple; and

(b) following the transfer the subject of (a) above, the City would agree to lease the Intersection Land back to Tah Land for a term of 25 years (subject to the terms set out in the Deed).

1. The Deed also provided that should Main Roads Western Australia (Main Roads WA), before the expiry of Tah Land's lease of the Intersection Land (contemplated in (b) above), determine that the Intersection Land was not required for a major intersection upgrade, the City, upon being so notified by Main Roads WA, would transfer the Intersection Land to Tah Land.[9]
2. It is common ground that Tah Land did not, at any time, transfer the Intersection Land pursuant to the terms of the Deed.

1. Notwithstanding that it had been reserved for public purposes (as a primary regional road) under the MRS since 1994, the WAPC granted the Development Approval for the Intersection Land in around November 2003.[10]
2. The Development Approval included the following conditions:
   1. This approval is for a limited period expiring on 30 April 2021. The buildings and use comprising the development for which approval is hereby granted shall be removed and discontinued at the expiration of the said period and the land reinstated to 'its former condition unless a prior approval is granted by the Commission to allow the continuance of the approved buildings and uses beyond 30 April 2021.
   2. Video shop, fast food outlet and restaurant shall be the only Category 5 Shop/Retail Uses as defined in the Commission's Statement of Planning Policy No. 4.2. The building marked 'D' on the plan shall only be used for 'Commercial' purposes as defined under the City of Wanneroo DPS No. 2 excluding Category 5 Shop/Retail Uses as defined in Statement of Planning Policy No. 4.2.
   3. The land required for Hepburn Avenue and the 20 metre x 20 metre truncation at the intersection of Hepburn Avenue and Wanneroo Road being dedicated as a public road without any payment of compensation in accordance with the plan of subdivision approved by the Commission on 11 April 1996 (WAPC Ref. No. 97128, Deposited Plan No. 23285) (Attachment B).
   4. The Primary Regional Roads reservation as shown on the plan of subdivision approved by the Commission on 11 April 1996 (WAPC Ref. No. 97128, Deposited Plan No. 23285) (Attachment B) being ceded to the City of Wanneroo free of cost and without any payment of compensation prior to commencement of construction.
3. The Intersection Land (being Lot 158 on Deposited Plan 23285) was the land affected by the 'Primary Regional Roads' reservation for the purposes of Condition 4.
4. Historic aerial photography indicates that the structures approved under the Development Approval were erected in 2004.

1. In 2009, Tah Land and Kam Khazaly entered into the Lease for Tenancies C1 and C2 which had been constructed pursuant to the Development Approval. As explained, Tenancy C3 would be included in the Lease (to comprise the Premises) in 2016. The Premises were located in the building shown as 'Building C' on the Development Approval.[11] 'Building C' was located on the Intersection Land and referred to in the Lease as being part of the 'Lot 158 Complex'.[12]
2. When I come to Issue 3, I will discuss the key terms, and context, of the Lease in some detail. However, for present purposes it suffices to note that at its commencement, the Lease provided for an initial 5-year term (initial term) with an option for a further 5-year term, commencing on 1 August 2014 (further term) and expiring on 31 July 2019.
3. In April 2016, Kam Khazaly was advised that adjoining Tenancy C3 had become available to lease. Via an undated document, the Lease was varied with effect from 13 June 2016 to add Tenancy C3 and to extend the term for a further 5 years, expiring on 12 June 2021 (further extended term).

1. On or around 9 December 2019, Tah Land applied to the WAPC for development approval to, in effect, remove the time-limits on its use of the Intersection Land under the MRS (Intersection Land DA). That is, the Intersection Land DA sought approval to allow the buildings on the Intersection Land to remain and be used, on an enduring basis, as part of the Shopping Centre.
2. On or around 31 January 2020, Main Roads WA outlined its objections to the Intersection Land DA.
3. The WAPC refused the Intersection Land DA on 22 February 2020. The WAPC's reasons were, in effect, that the Intersection Land was required for primary regional road purposes under the MRS and its continued use for Shopping Centre purposes was contrary to the purpose and intent of the reservation and would prejudice its future use. The WAPC also explained that Main Roads WA had allocated funding for a grade separated interchange at the intersection of Wanneroo Road and Hepburn Avenue, to be completed by 2026.

1. On 4 March 2020, Mr Kamvar Khazaly made inquiries with the Shopping Centre manager about extending the Lease (given that the further lease term had an expiry date of 12 June 2021). On 5 March 2020, Tah Land offered the Applicant a new lease in different premises within the Shopping Centre (away from the Intersection Land).
2. The Applicant was reluctant to relocate given that it had only expanded and substantially renovated the Premises in 2016. Tah Land provided the Applicant with a copy of the WAPC's refusal of the Intersection Land DA.

Tah Land claims compensation, COVID-19 legislation commences

1. On or about 11 March 2020, by reason of the refusal of the Intersection Land DA, Tah Land claimed injurious affection from the WAPC pursuant to Pt 11 of the PD Act.
2. As part of the State Government's response to the COVID-19 pandemic, on 12 September 2020, the COVID-19 Response and Economic Recovery Omnibus Act 2020 (WA) (COVID-19 Act) commenced. Perforce of the COVID-19 Act, the Development Approval was extended such that its expiry date became 30 April 2023.[13]
3. On 15 September 2020, Tah Land presented a new offer to the Applicant to relocate its Nando's restaurant to new premises within the Shopping Centre, away from the Intersection Land.
4. On 18 September 2020, the WAPC's solicitors advised Tah Land that it intended to proceed to compulsorily acquire the Intersection Land, and that any associated leases could be extended to April 2023 (when the Development Approval, as extended by the COVID-19 Act, would expire).

Tah Land lodges a further application for development approval

1. On or around 6 April 2021, Tah Land lodged a further development application under the MRS, again seeking approval to use the Intersection Land on an indefinite basis (2021 Intersection Land DA).
2. The rationale for the making of the 2021 Intersection Land DA was that it would allow the existing commercial development on the Intersection Land to operate without limitation, or at least until the proposed intersection works came within Main Roads WA's four-year works program.
3. On 13 April 2021, the WAPC's solicitors advised Tah Land of its intention to take the Intersection Land without delay. On 20 April 2021, Tah Land's solicitors expressed concern with the proposed taking.
4. On 27 May 2021, the WAPC made a taking order (ref 0754820) with respect to the Intersection Land which was lodged with Landgate (May Taking Order) and registered on 1 June 2021.

1. On 12 June 2021, the further extended term expired. As I will come to explain in more detail, the Lease included holding over terms which, upon the expiry of the further extended term, came into effect. The Applicant remained in possession of the Premises and continued to trade.

1. On 16 June 2021, the WAPC purported to cancel the 2021 Intersection Land DA on the basis that the WAPC had become, by reason of the May Taking Order, the owner of the Intersection Land.
2. On the same day, Tah Land separately advised the Applicant that the May Taking Order was under challenge in the Supreme Court but, even so, it was not in a position to confirm any further extensions of the Lease.
3. On 27 July 2021, the May Taking Order was, by consent, quashed on the basis that it was not a proper exercise of the power in s 191 of the PD Act.[14] The Applicant was advised of this on 30 July 2021.
4. Upon becoming aware that the May Taking Order had been quashed, the Applicant again requested Tah Land enter into formal discussions to extend the Lease. Tah Land declined on the basis that, notwithstanding the quashing, there was still much uncertainty as to the timing of any works proposed by Main Roads WA. Until there was some clarity as to the likely timing of the intersection works, it could not enter discussions regarding new or extended leases on the Intersection Land.

1. On 13 August 2021, because the May Taking Order had been quashed, Tah Land requested the WAPC reinstate the 2021 Intersection Land DA.
2. On 23 August 2021, the WAPC's solicitors wrote to Tah Land advising that the Intersection Land was urgently required for its designated purpose. Furthermore, as requested, the WAPC agreed to reinstate the 2021 Intersection Land DA.
3. On 29 September 2021, Tah Land lodged a review in the State Administrative Tribunal (Tribunal) (DR 208 of 2021) in respect of what the Applicant understood to be the deemed refusal of the 2021 Intersection Land DA.

1. On 7 October 2021, the WAPC made a taking order (ref 0900822) in relation to the Intersection Land which, on 8 October 2021, was lodged with Landgate (Taking Order).
2. Tah Land sought judicial review of the Taking Order in the Supreme Court (Judicial Review Application).

1. On or around 1 December 2021,[15] Kam Khazaly lodged a claim for compensation with the WAPC. On 11 January 2022, the WAPC requested modifications be made to the claim for compensation.
2. Kam Khazaly lodged its modified claim on 12 January 2022.

1. On 10 February 2022, Tah Land provided written correspondence to Kam Khazaly confirming negotiations that had taken place in relation to the relocation of the Nando's restaurant at the Shopping Centre, on land away from the Intersection Land.

1. By letter dated 22 November 2022, the WAPC offered Kam Khazaly 'nil' compensation.

1. On 19 January 2023, Kam Khazaly referred its claim for compensation to the Tribunal.
2. On 1 February 2023, Smith J heard, and on 17 February 2023 dismissed, the Judicial Review Application.[16]
3. On 23 February 2023, Tah Land was given leave to withdraw proceeding DR 208 of 2021.
4. On 8 March 2023, Tah Land informed Kam Khazaly that the Supreme Court had affirmed the validity of the Taking Order and that, consequently, the Premises must be vacated by 30 April 2023.
5. On 6 April 2023, Landgate registered the Taking Order, taking effect from 7 December 2022.
6. Accordingly, as and from 7 December 2022, the WAPC became the registered proprietor of the Intersection Land (which is now known as Lot 803 on Deposited Plan 419815).
7. Kam Khazaly never entered into any written lease with the WAPC in relation to the Premises.
8. On 6 April 2023, Tah Land made a further offer for Kam Khazaly to relocate to new premises within the Shopping Centre.
9. The Nando's restaurant the subject of the Lease, after operating on a holding over basis from 12 June 2021, ceased trading on 17 April 2023.

1. Following the expiry of the Development Approval, and the Taking, the Applicant leased new premises at the Woodvale Boulevard Shopping Centre.
2. On 19 April 2024, Kam Khazalay's new restaurant, known as Nando's Woodvale, commenced trading.

1. The Applicant's claim for compensation, dated 26 November 2021, was in the form required by s 211 of the LA Act.[17] As at the final hearing, its claim is for $2,116,350.04.[18]
2. The Applicant seeks a 'nil' value for its interest in the Lease as at the Taking Date for the purposes of s 241(2) of the LA Act. The entirety of the Applicant's claim, and the contest before me, is for consequential losses pursuant to s 241(6), which I will come to in Issue 3.
3. The Applicant also seeks solatium at 10% pursuant to s 241(8) and interest at 6% per annum calculated to the date of these reasons.

1. The Applicant has referred its claim for compensation to the Tribunal pursuant to s 221(1)(b) of the LA Act. By consent orders dated 23 August 2023, the parties have agreed that the Tribunal may be constituted solely by a judicial member or a senior member who is a qualified person. For the purposes of s 226(1) of the LA Act, I am a senior member and a qualified person.
2. This claim arises in the Tribunal's original jurisdiction.[19] Accordingly, the Applicant, as the party bringing the proceeding, carries the onus of proof. The applicable standard is the civil standard, being the balance of probabilities.
3. In these reasons, where I set out that I am satisfied as to the existence of a fact, I mean that I am satisfied that the relevant fact has been proved on the balance of probabilities.

1. Section 191(1) of the PD Act allows a responsible authority to, 'for the purpose of a planning scheme', and with the consent of the Governor, take compulsorily under and subject to Pt 9 of the LA Act, any land comprised in the scheme as if the land were required for a public work.
2. By reason of the definition of 'land' in the PD Act, 'land' includes, relevantly, 'any interest in land'.[20]
3. Accordingly, the parties agree that although the Taking was authorised pursuant to s 191 of the PD Act, compensation is to be assessed under the LA Act, as modified by s 191(3) and s 192 of the PD Act.
4. Where land is acquired under the PD Act 'for the purpose of a planning scheme', the effect of s 192(1) of the PD Act is to, in practical terms, replace the language in s 241(2) of the LA Act that speaks of 'the public work' with the 'relevant planning scheme' instead. That is, the value of the taken interest is to be assessed without regard to any effect on value due to the operation of the planning scheme.[21]
5. The phrase for the 'purpose of a planning scheme' has been construed to mean land reserved under a planning scheme. That is to say, to acquire land that has not been identified as being required for a public purpose, through the imposition of a scheme reserve, has been held to be not for the purpose of a planning scheme.[22]
6. Section 191(3) of the PD Act provides that, where land is compulsorily taken under s 191, the provisions of:

of the LA Act do not apply to or in respect of the land or the taking or in any manner whatsoever, and the LA Act is to be read and construed as if the provisions were deleted.

1. As has been set out, at all relevant times the Intersection Land was reserved under the MRS for primary regional road purposes.

1. Part 9 of the LA Act, as modified by s 191(3) of the PD Act, deals with the compulsory taking of interests in land, including 'for the purpose of a planning scheme'. Because the application of Pt 9 is modified, the WAPC was not required to, as would ordinarily be the case,[23] issue a notice of intention to take on Kam Khazaly prior to the Taking.
2. The Taking was lodged at Landgate on 8 October 2021 and was registered as having effect from the Taking Date (being 7 December 2022).
3. Section 179(b) of the LA Act provides that upon the registration of a taking order, every interest in the land, unless preserved by s 178(2)(a), is extinguished, and each person who formerly held such an interest has that holding converted into a claim for compensation under Pt 10 of the LA Act.
4. The assessment of that claim for compensation is pursuant to the terms of s 241 of the LA Act (as modified by s 192(1) of the PD Act).
5. I have previously explained that, in my view, s 192(1) of the PD Act largely reflects the principles enunciated in s 241(2) of the LA Act which provides, in effect, that in assessing the value of the interest in the land acquired, the value is to be determined discounting any increase or decrease attributable to the proposed public work underlining the acquisition.
6. Section 192(1) simply recognises that compensation is being assessed by reason of the operation or effect of the 'planning scheme', rather than for a 'public work'. However, each provision requires that the value of the acquired land be assessed without regard to, in effect, any influence on value attributable to the purpose of the acquisition. Such provisions reflect what is commonly referred to as the Pointe Gourde principle.[24]
7. Accordingly, in my view, the difference between s 192(1) of the PD Act and s 241(2) of the LA Act is of no moment in the context of this proceeding. That being the case, in the balance of these reasons, I shall refer only to s 241(2) of the LA Act.
8. It will be necessary to return to, and discuss in further detail, some aspect of the compensation scheme provided for in Pts 9 and 10 of the LA Act, when I come to determine Issue 3.

1. Compensation is assessed pursuant to s 241 of the LA Act, which, for ease of reference, I set out below:
   1. How compensation to be determined

(1) In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land taken under Part 9, regard is to be had solely to the matters referred to in this section.

(2) Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on -

and discounting any increase or decrease in value attributable to the proposed public work.

(6) Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of -

(c) the halting of building works in progress at the date when the interest is taken and the consequential termination of building contracts; or

(d) architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interest; or

(e) any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.

(8) If the interest in land is taken without agreement, an amount considered by the court or the State Administrative Tribunal or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.

(9) The additional amount under subsection (8) must not be more than 10% of the amount otherwise awarded or offered, unless the court or the State Administrative Tribunal, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount.

1. As I set out in Jandakot Capital Pty Ltd and Commissioner of Main Roads,[25] the Supreme Court has now, on a number of occasions, set out the principles that apply in the assessment of compensation for the acquisition of an interest in land pursuant to s 241 of the LA Act. These authorities include McKay v Commissioner of Main Roads [No 7],[26] Lenz Nominees Pty Ltd v Commissioner of Main Roads,[27] and Italiano v Water Corporation [No 2].[28]
2. From these, and other, authorities, I extract the following statements of principle that inform the assessment of compensation under the LA Act:

(1) The assessment of compensation must be conducted based only on the matters contained in s 241 of the LA Act (in this proceeding, read together with the PD Act).[29]

(2) The purpose of the assessment of compensation for resumed land is to ensure that the person to be compensated is given a full money equivalent of his or her loss.[30] The requirement for compensation to provide the 'full money equivalent' of a claimant's loss, must be applied 'reasonably and sensibly'.[31]

(3) Compensation is not directed to providing 'full compensation' or 'compensation' for 'any damage' suffered.[32] The LA Act does not evince an intent to 'ensure that a dispossessed owner is fully compensated'.[33] In truth, it is, rarely possible to fully and completely reinstate claimants.[34]

(4) Compensation for the value of the resumed land should be assessed in a theoretical, albeit artificial, fashion by assuming that the land had been sold on the date of its acquisition.[35] In McKay [No 7],[36] Beech J (as he then was) noted that, in the context of s 241 of the LA Act, 'value' means 'exchange value'.

(5) This theoretical approach to assess compensation for the resumption of the land requires the court or tribunal to identify the price which would be paid under a hypothetical bargain between a person 'desiring to buy the land ... to a vendor willing to sell it for a fair price but not desirous to sell'.[37] I will refer to this approach as the Spencer Test.

(6) In assessing the price payable in this hypothetical sale, it must be assumed that the hypothetical purchaser would be purchasing the land for the most advantageous use for which it is, or may be, adapted.[38] This is commonly referred to as the 'highest and best use' of the land.[39]

(7) The hypothetical purchaser must be assumed to have regard to all relevant available information, and to be cognisant of all circumstances, which might affect the value of the land.[40]

(8) If any doubts exist in assessing the compensation payable, then those doubts should be resolved by a liberal estimate in favour of the dispossessed owner.[41]

(9) A claimant is entitled to be 'fairly' compensated for their loss. A person is not entitled to receive more than fair compensation.[42]

(10) The terms of the statute are paramount. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority,[43] the High Court reiterated that in assessing compensation, the focus must remain on the relevant terms, and it should not be assumed that such provisions reproduce, or even attempt to, an understanding of compensation principles from other jurisdictions.

1. For reasons which will become apparent, it is unnecessary for me to address any expert opinion in any detail. Both parties prosecuted their respective cases on what was described as a 'death or glory' basis, based largely on the terms of the LA Act and the applicable principles.[44]
2. Accordingly, the final hearing proceeded without the need for oral evidence; hence no witnesses were called, nor cross-examined. The final hearing involved only oral submissions.
3. As I have already mentioned, Ms Young, together with Mr Alex McGlue, appeared for the Applicant. Mr Julian Misso appeared with Mr Vincent McMullen for the Respondent. I commend all counsel for the efficient and professional manner in which the final hearing was conducted.
4. While it has not been necessary for me to address the witness evidence, particularly the evidence of the expert valuers, in any detail, I have had to have regard to a large volume of documentary material, including, from the Applicant:

(a) Bundle of Documents, 21 July 2023 (Exhibit 1);

(b) Supplementary Bundle of Documents, 30 May 2024, (Exhibit 2);

(c) Further Supplementary Bundle of Documents, 15 November 2024 (Exhibit 3); and

(d) Amended Statement of Issues, Facts and Contentions, 30 May 2024 (Exhibit 12).

(a) Amended Statement of Issues, Facts and Contentions, 14 June 2024 (Exhibit 13);

(b) Bundle of Documents, 18 August 2023 (Exhibit 14); and

(c) Supplementary Bundle of Documents, 20 February 2025 (Exhibit 15).

1. To the extent that I have referred to the evidence of witnesses, that is primarily the Applicant's evidence from Mr Kamvar Khazaly and Mr Raymond Tan (from Tah Land). That evidence was as follows:

(a) Witness Statement of Raymond Jin Wen Tan, 2 September 2024 (Exhibit 4);

(b) Witness Statement of Kamvar Khazaly, 11 September 2024 (Exhibit 5);

(c) Supplementary Witness Statement of Kamvar Khazaly, 15 November 2024 (Exhibit 6); and

(d) Further Supplementary Witness Statement of Kamvar Khazaly, 31 March 2025 (Exhibit 7).

1. For completeness, the Applicant's evidence, including its expert evidence, that was exhibited, is as follows:

(a) Witness Statement of Leon Joseph Italiano, 12 September 2024 (Exhibit 8);

(b) Supplementary Witness Statement of Leon Joseph Italiano, 15 November 2024 (Exhibit 9);

(c) Witness Statement of Gavin Edward Chapman, 13 November 2024 (Exhibit 10); and

(d) Witness Statement of Scott James Hamilton, 10 December 2024 (Exhibit 11).

(a) Witness Statement of Christopher Hans Geers, 20 December 2024 (Exhibit 16); and

(b) Witness Statement of Esther Jayne Quinn, 17 December 2024 (Exhibit 17).

1. By reason of the Lease, as at the Taking Date, the Applicant held an interest in the Intersection Land for the purposes of Pt 9 of the LA Act.
2. The effect of the Taking Order was to compulsorily acquire the Applicant's leasehold interest in the Intersection Land. Accordingly, the Applicant is entitled to compensation pursuant to Pt 10 of the LA Act, namely s 241.
3. Pursuant to s 241, the Applicant must be compensated in respect of:

(a) the value of its interest in the Intersection Land (but discounting any effect on value attributable to the MRS);

(b) loss or damage sustained by the Applicant by reason of removal expenses, disruption and reinstatement of a business, as well as any other facts the Tribunal considers it just to take into account in the circumstances of the case; and

1. The Applicant submits that 'but for' the Taking, there is a high degree of likelihood that:

(a) the Development Approval would not have expired;

(b) Tah Land would have granted the Applicant a formal extension of the Lease, as the Applicant had requested;

(c) the Nando's restaurant would have continued to trade at the Premises; and

1. It was clear that Tah Land wanted and intended the Development Approval to be extended, so as to allow the businesses located on the Intersection Land to continue to trade into the foreseeable future. The only reason why Tah Land did not extend the Lease (beyond 12 June 2021) was the uncertainty around whether or not the Development Approval would be extended, as well as the uncertainty as to the lawfulness of the Taking Order.
2. The WAPC is responsible for both the Development Approval expiring and the Taking Order.
3. The compulsory taking of the Intersection Land, including the Lease, has caused the Applicant to suffer loss, for which they are required to be properly and fully compensated.

1. As at the Taking Date, the nature of the Applicant's interest in the Intersection Land was a tenancy terminable upon 30 days' notice, pursuant to the Lease. That interest was extinguished upon the registration of the Taking Order and was converted into a claim for compensation under Pt 10 of the LA Act.[45]
2. Pursuant to s 241(2), as at the Taking Date, the Applicant's Lease had a nil dollar value because of its fragile nature. The Lease had expired some 17 months earlier and had become terminable on 30 days' notice. It was, in effect, akin to a tenancy at will,[46] which has been characterised as having an 'ephemeral quality'.[47]
3. In terms of any compensable loss or damage for the purposes of s 241(6) of the LA Act, a claimant is only entitled to relocation costs; that is expenses that were actually incurred in moving removable items and tenant's fixtures that may be reused and thus relocated to the new premises.[48]
4. The hypothetical scenario put forward by the Applicant (at [99] above) is not relevant to the assessment of loss and damage actually sustained by the Applicant under s 241(6) of the LA Act. Any question as to whether the Lease would have been extended 'but for' the acquisition, is also irrelevant to the assessment of loss and damage under s 241(6).[49]
5. The assessment of compensation for disruption and reinstatement of a business must be equivalent, or proportionate, to the loss of the interest in the land taken.[50]
6. Section 241(6) entitles the Applicant to compensation for loss or damage resulting for, or caused by, interference with the activities being carried out on the Intersection Land the subject of the Lease.[51]
7. As at the Taking Date, the Applicant's business had negligible value because it was inherently fragile. There should be no award of compensation for the full cost of reestablishing what is, in effect, a new Nando's restaurant at the Woodvale premises, or for the claimed profits arising from the Lease if it had not been taken because:

(a) compensation for the costs associated with a newly fitted out premises at Woodvale, under a new lease with a term of 10 years,[52] does not reflect the reinstatement of the Applicant's business as at the Taking Date (being a business operating with used plant and equipment and from a tenancy terminable on 30 days' notice); and

(b) contrary to the Applicant's submissions, the underlying cause of the claimed disruption (loss of profits) and reinstatement costs was that, as at the Taking Date, the Applicant was conducting its business in reliance on the holding over provisions under the Lease, as the further extended term had expired 17 months prior.

1. For the Applicant to be awarded the compensation it claims under s 241(6) of the LA Act would be contrary to the principles of proportionality and equivalence which are fundamental to the notion of 'compensation', as such an award would place it in a far superior position to that which it was in as the holder of an interest in the Intersection Land as at the Taking Date.
2. Accordingly, the Tribunal should decline to award compensation to the Applicant for loss and damage under s 241(6)(b) of the LA Act in the amounts claimed.[53]

Issue 1: The Applicant's entitlement to claim compensation

1. The parties agree, as do I, that by reason of the Lease; namely the operation of cl 50 which was directed to holding over, that as at the Taking Date the Applicant held an interest in the Intersection Land, being the Premises the subject of the Lease. As I will come to explain, the modern law recognises a lease as an interest in land. It is also common ground that a leasehold interest is a compensable interest.[54]
2. The effect of the Taking Order was to extinguish the Applicant's interest in the Intersection Land and to convert that interest into a claim for compensation under Pt 10.[55] I note here that s 179 of the LA Act enables a claim for compensation to be made under Pt 10. It does not, by its terms, provide any kind of guarantee that any compensation will be awarded.
3. The Applicant is therefore eligible to claim compensation for the Taking of its interest.

Issue 2: The value of the acquired Lease as at the Taking Date

1. In Jandakot Capital, I examined the operation of s 241 of the LA Act and explained that, in my view, the value of the interest acquired under s 241(2) must be addressed and determined first.[56]
2. I characterised s 241(2) as operating as, in effect, a 'gateway' provision through which a claimant must first pass before assessing any remaining compensation pursuant to either s 241(6) or s 241(7). That is because s 241(2) is an assessment of the value of the interest in land that has been acquired, being the acquired legal interest and the source of the entitlement to claim.
3. Implicit within that assessment is the need to demonstrate a compensable interest in land that was held and which has been acquired. Put another way, unless a compensable interest has been acquired, the remainder of s 241 has no application. That is so because any claim, for example, for business disruption, losses or expenses falls away unless that claimant has also had a recognised interest in land, for the purposes of s 241(2), acquired.
4. To ascertain the value of the Lease as at the Taking Date, the Spencer Test is ordinarily applied. That assumes a hypothetical sale of the Lease between willing, but not overanxious, parties taken to be fully informed of all salient facts. Aside from instances where the acquired interest has special value to the claimant, the value of the interest for the purposes of s 241(2) is generally its market value.
5. In ascertaining that value, I am required to ignore any effect on value, either positive or negative, that may be attributable to the provisions contained in, or the operation of, the MRS as required by reason of s 241(2).
6. Here the relevant facts are that the further extended term expired on 12 June 2021, and from that time through until the Taking Date (7 December 2022), the Lease was operating on a holding over basis. Under the Lease, either party could give notice terminating the tenancy after the expiration of one month. Pursuant to cl 50 of the Lease, a 'month' is 30 days.
7. The Respondent characterised the Applicant's interest as at the Taking Date as 'fragile'. As I will come to later in these reasons, I agree with that label. As at the Taking Date, the Applicant's interest was not certain nor secure. Far from it, by that time, the further extended term had long expired, and its subsisting interest was its right to hold over and thus remain in occupation of the Premises.
8. Both parties made submissions on s 241(2) and the value of the interest acquired as at the Taking Date. The Applicant, consistent with its expert evidence, 'accepted', it had nil value.[57] Likewise, the Respondent submitted, consistent with the expert evidence, that the Lease had no residual market value as at the Taking Date.[58]
9. I am not bound by any of these positions, nor to the expert evidence. Moreover, I am required to inter alia act according to equity, good conscience and the substantial merits of the case.[59]
10. However, there are limits to how far I can stray from the evidence. While I am not required to accept the valuation evidence, I am not permitted to usurp the skill and experience of a valuer, so as to, in effect, become a 'third valuer'.[60] The Tribunal is not a valuation agency.[61] Nevertheless, as Beech J explained in McKay [No 7],[62] there remains a question as to whether a compensation court or tribunal is permitted to adopt a valuation methodology not supported in any of the valuation evidence.
11. I say that because, despite the parties being at one on this issue, it has taken me some time for me to reach their shared view that the Lease had a nil dollar value as at the Taking Date.
12. While it certainly was not transactable as a going concern, the Lease entitled the Applicant to, at least, an opportunity to continue to use the Premises for a brief period of further trading before being required to vacate. The Applicant's evidence that the restaurant was profitable was largely unchallenged by the Respondent. That guaranteed opportunity for some further trading beyond notice being given to terminate the Lease may have carried some monetary value for the Applicant, if no one else. The authorities in this State recognise that market value does not always derive a fair assessment of compensation.[63]
13. However, to proceed uninvited down that path would have been, in my view, to very much become the 'third valuer' that is cautioned in the authorities. No expert valuer based or had regard to the residual, albeit brief, secure trading period under the holding over provisions, in assessing its value under s 241(2).
14. I accept I could have called the matter back on so as to explore my thinking further with the parties. However, I was also mindful that for the parties to engage with my queries would require further costs to be incurred in circumstances where: (a) the sum of any compensation would be little more than nominal; and (b) the exercise may ultimately have proved to be nothing more than a frolic of mine.
15. Moreover, I also take account of the fact that the parties are each represented by specialised, responsible and experienced counsel, who have each made forensic decisions on how to present their case. In the end, I reached the view that my task is to deal with the case, and the contest, which the parties have asked the Tribunal to determine.
16. Therefore, consistent with the position of the parties, which is based on expert evidence before me, I find that the Lease as at the Taking Date, for the purposes of s 241(2) of the LA Act, had a nil dollar value.

1. As I have set out, it is the Applicant's claim under s 241(6) of the LA Act which provides the basis for the contest as between the parties and is the focus of these reasons.
2. Before I come to determine Issue 3, it is necessary for me to discuss:

(1) The contest: the claim and the 'fundamental issue';

(5) Claims for disturbance costs in the context of leasehold interests: the authorities;

(7) The Applicant's intentions to extend the Lease;

(1) The contest: the claim and the 'fundamental issue'

1. As I have set out, in her opening, Ms Young, articulated the 'fundamental issue' raised by this case to be:[64]

... whether compensation under subsection 241(6) is affected by or limited by the value of and the nature of the interest identified for the purposes of subsection 241(2).

1. The Applicant submits the consequential losses it claims are a direct consequence of the Taking. Furthermore, because it has had an interest acquired under s 241(2), it is also entitled to the range of compensation that is available under the various heads of s 241(6).
2. The Applicant's losses include business disruption and relocation expenses, loss of profit, as well as costs associated with the need for an additional banking facility to meet those costs.
3. Ultimately, Ms Young submits that:[65]

The answer to this question, ... is that fidelity to the principles of statutory construction must compel the result that subsection 241(6) claims are not tied to the value or the nature of the interest in subsection 241(2).

1. The Applicant's claim for consequential losses is for $2,116,350.04 plus solatium and interest, particularised as follows:

(a) $84,342.87 for removal expenses (s 241(6)(a));

(b) $1,504,366.13 for business restatement costs (s 241(6)(b));

(d) $129,833.04 for funding costs (s 241(6)(b)).

1. The evidence relating to the Applicant's claim for losses associated with removal expenses is found in the statement by Mr Khazaly.[66] The items claimed include inter alia:

(b) Landlord expenses in lieu of makegood payment ($10,000);

(d) Disruption to gas supply agreement ($8,845.61).[67]

1. Likewise, the evidence relating to the Applicant's claim for losses associated with the disruption and reinstatement of a business, and increased funding costs under s 241(6)(b), as well as its claim for lost profits, are found primarily in the statement of Mr Khazaly.[68] The items claimed include inter alia:

(e) Extraction hood and stainless-steel fittings ($46,650); and

1. The WAPC disputes the entirety of the Applicant's claim for consequential losses.
2. The WAPC submits that to allow the Applicant's claim under s 241(6) would not result in fair compensation, having regard to the nature of the interest that was acquired.
3. To pay compensation in the amount sought would place the Applicant in a far superior position as a result of the Taking, by reason of its Woodvale restaurant being larger than the Premises, newly fitted out, and operated under the terms of a secure lease. That is not the purpose nor intent of the compensation provisions in s 241 of the LA Act.
4. Mr Misso, counsel for the WAPC, made the following submissions in response to the claim for consequential losses:[70]

The applicants operated their restaurant from a tenancy that was terminable on 30 days' notice. The applicant's interest in the land was taken. It is agreed that the value of the taken interest was nil. Because of the limited tenure, the business could not be sold as a going concern, and its value was limited to removable plant and equipment, furniture and fittings that could not be removed from the premises and reused.

The applicants have nonetheless claimed just over $2 million in compensation, primarily for disruption and reinstatement of the business. They say that consequential losses are to be assessed independently of and without reference to the nature of the interest that has been acquired. Further, they say that for the purpose of assessing consequential loss, the nature of the interest itself is what it would have been but for the taking.

The respondent submits that this approach is contrary to the proper construction of the Land Administration Act, to authorities that have considered this issue both in WA and in other jurisdictions, and produces a result which is incompatible with the principle of equivalence, which should inform the assessment of compensation.

1. The Development Approval is a relevant aspect of the context in which the Applicant's claim for consequential losses falls to be assessed. Each party referred to the Development Approval in advancing their respective cases.
2. From 1994 the Intersection Land was reserved for primary regional road purposes in the MRS. Nevertheless, Tah Land was granted the Development Approval to develop and use the Intersection Land in 2003. However, unlike most development approvals, it was not granted to endure indefinitely.[71] Rather, it was time-limited to expire on 30 April 2021.
3. In my view, it is important to appreciate that, as a basic principle of planning law, at the point that Tah Land acted on, and implemented, the Development Approval it, and any successors in title, became bound by its terms.[72] A development approval, once acted on, generally takes effect as a right in rem that binds the world.[73] A development approval cannot be separated from the conditions which have been imposed; they are inextricably linked.[74] A development approval, and the conditions which attach to it, come into effect uno flato and are together, 'one thing'.[75]
4. Here, the terms of the Development Approval included the requirement, by Condition 4, for the Intersection Land to be transferred without compensation. Accordingly, when Tah Land took advantage of the right granted under the Development Approval to develop and use the Intersection Land, it became bound by its terms and conditions. Nor was that obligation negated by the City's decision to terminate the Deed in 2019.[76] Tah Land's obligation to transfer the Intersection Land was a binding term of the Development Approval.
5. I pause here to note that the Development Approval was granted to Tah Land and not the Applicant. As I work my way through this background, I am mindful not to simply import Tah Land's knowledge of the terms of the Development Approval onto the Applicant. Although, having said that, as I will come to explain, a claimant's subjective belief in a state of affairs that may not be accurate, cannot dictate the quantum of compensation that is payable by an acquiring authority. That is especially so where, as is the case here, the acquiring authority is not responsible for a claimant's erroneous state of belief.
6. As has been set out, the Development Approval, and its history, figures prominently in the relevant background to this matter. That is because it is the Development Approval that authorised the development and use of the Intersection Land for the period specified, and for the land uses authorised by Condition 2, being video shop, fast food outlets and restaurants.[77]
7. Absent the Development Approval, the Lease and the Premises do not exist. That is because it is the Development Approval that made lawful the commercial development that operated on the Intersection Land through to the Taking Date. By reason of the Intersection Land being reserved for public purposes under the MRS at the time the Development Approval was granted, there is no corresponding development approval issued under a local government planning scheme authorising development of the Intersection Land.[78]
8. From a town planning perspective, the lawfulness of the restaurant operating from the Premises only ever had one source: the Development Approval. Upon its expiry, any continued commercial use of the Intersection Land that was premised on the Development Approval, would become unauthorised.
9. The Applicant seeks to leverage from the terms of the Development Approval to suggest, in effect, it should not be regarded as time limited, such that Tah Land had, but by reason of the Taking has lost, the opportunity to continue to lease the Premises to the Applicant. It does so by reference to the words in Condition 1 which provide that the term of approval is fixed to expire on 30 April 2021, 'unless a prior approval is granted by the [WAPC]' for an extension is granted.[79] From those words the Applicant seeks to infer that in, effect, the Development Approval contemplated extensions. I reject that submission.
10. The fact that the Development Approval was capable of varying the time of expiry is not to the point. What is important is that the Development Approval was, by its terms, not granted as a right that would endure. To the contrary, it was granted on a time-limited basis, so as to allow such land to be used for commercial purposes on an interim basis, ahead of its ultimate use for the designated public purpose as a primary regional road.
11. Furthermore, while the terms of the Development Approval were to the effect the expiry date was 30 April 2021, unless a prior extension was granted, it cannot be said that Tah Land had a right to extend the Development Approval. At its highest, it had a right to seek approval for an extension from the WAPC.
12. Accordingly, the fact that the Development Approval referred to the possibility of an extension does not change its essential character as being a time-limited, as against an enduring, approval.

1. A lease is the time limited grant of exclusive possession of specified land. While now recognised as constituting a property right, leases were historically viewed as purely a contract and thus conferred only contractual rights as against a landlord. Even now, in most instances, leases are created by contract. For this reason, leases have been described as 'a curious hybrid, hovering between the worlds of property and contract'.[80]
2. Under the Torrens system,[81] the greatest estate in land known to the law is freehold, namely the fee simple interest. An estate in fee simple has been described as 'for almost all practical purposes the equivalent of full ownership'.[82] Unlike a leasehold interest, the rights of a fee simple owner endure indefinitely.
3. Accordingly, a leasehold interest is a more limited, and is thus inferior to, a fee simple interest. The distinction between the extent of these interests is evident in the terms of the LA Act which, by s 241(7), provides that only fee simple owners are entitled to compensation for damage to any 'adjoining land' affected by a taking.[83]
4. As I will come to explain, because a leasehold interest is, in general terms, limited to a specified period, the unexpired nature and extent of the rights granted to a lessee at the point of compulsory acquisition will, in my view, very much colour the position of a claimant and thus the assessment of what is 'fair' compensation.
5. It can be accepted that in some instances the difference between the extent of the interests of a leasehold, as against a fee simple, interest, will be almost indistinguishable. For example, in 1919 the University of Western Australia entered a 999-year lease for its Crawley campus. As we sit in 2025, an unexpired lease term of that duration is, in practical terms, akin to fee simple ownership.
6. However, claims for compensation arising under the acquisition of lease rights which, as is the case here, are more limited in nature and extent, require careful consideration in the light of the applicable terms of s 241 of the LA Act.

(5) Claims for disturbance costs in the context of leasehold interests: the authorities

1. Both parties referred to case authorities on compensation for disturbance of a leasehold interest from both within this jurisdiction and elsewhere. I turn, next, to review some of those authorities.

1. The High Court's decision in Minister v NSW Aerated Water & Confectionary Co Ltd,[84] explained that compensation is directed to assessing the 'nature and circumstances' of the interest acquired which, in that case, was a lease. The Court reasoned that the value of the lease must be calculated by reference to guaranteed rights, not based on unrealised prospects of extensions and renewals.
2. The focus on the 'nature and circumstances' of the acquired interest, is evident in the reasons of both Griffith CJ[85] and Barton J.[86]

1. In Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW),[87] land was used as a mobile home display and sale business which was compulsorily acquired for road purposes. The land had been operating for 20 years by an entity, which was related, but different, from the fee simple owner under an informal arrangement. The applicable statute was the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (JTC Act), s 59 of which provided for 'losses attributable to disturbance' including:

...

(c) 'financial costs reasonably incurred in connection with the relocation of those persons ...'; and

...

(f) 'any other financial costs reasonable incurred ... relating to the actual use of the land, as a direct and natural consequence of the acquisition'.

1. Bignold J, sitting in the Land & Environment Court (LEC), surveyed the pre-JTC Act authorities and emphasised that 'disturbance losses' were required to be treated as a separate head of compensation to the market value of the interest.[88] Moreover, he explained that a 'loss attributable to disturbance' is not dependent upon that claimant also establishing 'any separate or additional entitlement to compensation in respect of the 'value' (market or special) of [sic] his leasehold interest'.[89]
2. Peter Croke was followed by Preston CJ in George D Angus Pty Ltd v Health Administration Corporation,[90] where premises were used for a medical practice under an indefinite arrangement with the fee simple owner, being a related company. The medical practice's tenancy was terminable at the will of either the landlord or tenant on one month's notice. The tenancy had no relevant market value but a claim for compensation was made for losses attributable to disturbance, including:

(a) costs incurred in relocating the medical practice; and

(b) forgone income/profits from the medical practice arising from the need to relocate.

1. In applying Peter Croke, Preston CJ awarded relocation costs of $16,129.22 as well as $1,539,688 (plus interest) for financial costs reasonably incurred which were held to be a 'direct and natural consequence' of the acquisition.[91]
2. Preston CJ's decision was appealed.[92] One of the issues for the Court of Appeal in George D Angus was whether Preston CJ erred in finding that, but for the compulsory acquisition, the tenancy would not have been terminated but instead would have endured indefinitely.[93]
3. Tobias AJA (Emmett JA and Leeming JA agreeing) held that the tenancy would endure unless and until the lessor took the decision to give one month's notice, and there was no reason to assume it would. Aerated Water was distinguished on the facts.
4. Tobias AJA explained that while the tenancy had no market value, the compulsory acquisition thereby converted the relevant interest into an entitlement to compensation under the JTC Act. The acquisition gave rise to losses attributable to disturbance where the losses related to the actual use being made of the land and were reasonably incurred as a direct and natural consequence of the acquisition. His Honour held that the acquisition triggered the entitlement to claim, and the nature of the interest so acquired mattered not for the purposes of assessing losses due to disturbance.[94] The nature of the interest acquired informed only the question of market value.[95]
5. The decision in George D Angus was visited upon two years later by the Court of Appeal in Roads and Maritime Services v Allandale Blue Metal Pty Ltd.[96] Land that was leased for a quarry was acquired for a highway. The landlord and the tenant made separate claims for compensation. The focus of the appeal was the acquiring authority compliant that it was, in effect, paying the same compensation twice: to both the landlord and the tenant. It is important to note that the decision in George D Angus was not directly challenged on the appeal.
6. Nevertheless, Basten JA (with whom Ward JA agreed) explained that the approach to compensation in George D Angus was not consistent with High Court's decision in Aerated Water, and the need to take account of the 'nature and circumstances' of the lease in question.[97]
7. Basten JA described the approach in George D Angus as 'puzzling' on the basis that the business was found to have no compensable value because the legal interest was insecure, but then disturbance costs were awarded on the premise that it was a secure tenancy.[98]
8. Thus, there was a divergence in reasoning between George D Angus and Allandale Blue Metal on the principles that apply to the assessment of compensation for disturbance of a leasehold interest under s 59(f) of the JTC Act.
9. For that reason, in Roads and Maritime Services v United Petroleum Pty Ltd,[99] being the next occasion that the Court of Appeal was required to visit upon the question, the Court was enlarged to comprise five justices: Basten JA, Macfarlan JA, Payne JA, Sackville AJA as well as Preston CJ of the LEC.[100]
10. United Petroleum (United) operated a service station and restaurant business under an oral lease arrangement which the landowner could terminate on one month's notice. The land was compulsorily acquired and United was unable to relocate its business. At trial,[101] United was awarded compensation for losses attributable to disturbance (calculated as a capital sum based on maintainable earnings for an indefinite period) pursuant to the relevant terms of the JTC Act.
11. On appeal, Basten JA (Macfarlan and Payne JJA agreeing) referred to the High Court's decision in Aerated Water as establishing the following principles, which remained applicable to the assessment of compensation for leasehold interests:[102]

(1) Spencer's Test applied to the valuation of both fee simple and leasehold interests;

(2) in valuing a leasehold interest, the valuation exercise will turn on the nature and circumstances of the interest in question, including its unexpired term (a personal relationship between the tenant and lessor, which may have provided a favourable basis for a renewal, was not a factor to which regard could be had in the valuation exercise); and

(3) it would be inconsistent to allow a tenant compensation for disturbance on an assumption that the leasehold interest had a value beyond its termination date, being a value not reflected in the market value of the lease.

1. Importantly, even though Basten JA accepted that while the JTC Act distinguished between 'the market value of the land'[103] and 'loss attributable to disturbance',[104] as separate heads of compensation, the phrase 'loss attributable to disturbance', defined to include 'any other financial costs',[105] should not be interpreted as giving rise to an entitlement to an assessment of compensation divorced from the interest in land that has been acquired. Basten JA explained that to do so would be to disregard the statutory context in which the words appeared.[106]
2. Sackville AJA described George D Angus as 'plainly wrong'. He explained that the 'error' lay in the assumption that simply because the tenancy was compulsorily terminated, the loss of profits must therefore, without more, be the direct and natural consequence of the acquisition.[107] He explained that more detailed analysis was needed in order to determine whether such costs were the direct and natural consequence of the compulsory termination of the leasehold interest. In his view, to accept United's argument would be to assess compensation without regard to the fragility of its legal interest.[108]
3. Also in United Petroleum, Preston CJ, who was the trial judge in George D Angus (LEC),[109] revisited his view of the application of s 59(f) of the JTC Act and preferred a different construction. In something of a palinode, he stated 'the matter does not appear to me now as it appears to have appeared to me then'.[110]
4. Accordingly, the approach outlined by Tobias AJA in George D Angus was not followed by the enlarged quorum in United Petroleum. The consequence being that, in New South Wales, the nature of the acquired interest is not relevant only to assessing its market value, but as a matter of context, flows through the remainder of the applicable provisions, including those directed to consequential losses.
5. Following United Petroleum, in Trustee for Whitcurt Unit Trust v Transport for NSW,[111] Pain J was dealing with a claim by a lessee for disturbance due to relocation of its business under the JTC Act, or alternatively, reinstatement under that same Act. The claimant operated a golf driving range business from land which was owned by another entity, being the Inner West Council.
6. The applicant claimed compensation for the fit-out of a new facility as a golf driving range at another location, ancillary relocation expenses and losses incurred due to business disruption, being profits foregone in the ramp-up period of a new business. It was a term of the applicant's lease that either party could terminate the tenancy at any time by giving the other party two months' notice.
7. Pain J found that the claimant had only a very limited tenancy interest and noted that the compensation is to provide the money equivalent of what has been acquired. His Honour noted that the claimant was essentially seeking compensation for the loss of an opportunity to enter a longer-term lease, 'but for' the acquisition. Pain J observed that while the 'but for' test applies to the determination of the value of the acquired interest, taking account of the so-called Pointe Gourde principle, he doubted that the principle applied to disturbance losses. Certainly, he observed that no case authorities were referenced in support of the claimant's submission.
8. Pain J declined to award compensation on the basis that it should be regarded as being more extensive than the interest than what was, in fact, acquired.[112]

1. Like the JTC Act in New South Wales, the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act) includes a definition for consequential costs arising from an acquisition as being '[losses] attributable to disturbance', the chapeau of which requires the pecuniary loss that has been suffered by a claimant to be a 'natural, direct and reasonable consequence' of the acquisition.[113]
2. In Secretary to the Department of Economic Development, Jobs, Transport and Resources and Manor Lakes (Werribee) Pty Ltd,[114] the Victorian Court of Appeal emphasised (again) that the expression 'natural, direct and reasonable consequence' connotes 'a very close and limited causal connection'.[115]
3. In Secretary to the Department of Transport v Provan's Timber Pty Ltd,[116] the Victorian Court of Appeal considered the question of the meaning of 'losses attributable to disturbance' under the LAC Act. Consistent with, and by reference to, United Petroleum, the Court took account of the nature of the interest that was acquired in terms of compensation for '[losses] attributable to disturbance suffered by a claimant as the natural, direct and reasonable consequence' (disturbance costs) of the acquisition.
4. In Provan's Timber, the claimant held an interest as tenant at will. Despite this, at first instance,[117] Emerton J awarded the claimant $12.49 million, including disturbance costs of $2.871 million, being relocation costs. The acquiring authority appealed the award of $2.871 million for disturbance costs on the basis that, by reason of the claimant's interest only being a tenancy at will, any divestment of its interest could only be of a limited nature.[118]
5. The Court of Appeal allowed the appeal on the basis that Emerton J's award for disturbance costs did not reflect the limited nature of the interest that was acquired:[119]

Here, the cause of Hardware's vulnerability to the ever-present need to relocate, and thereby to incur relocation costs, was its decision to conduct a business operating over the long term under a lease which could be terminated at any time on very short notice ... the principal or direct cause of Hardware's relocation costs was the insecure tenancy on which it based its business.

In our view, while the closure of Hardware's business on the Land might be a natural, direct and reasonable consequence of the fact that Hardware's interest in the Land had been divested, the costs of its relocation are not so because the direct cause of those costs is the exposure of its business to relocation at any time.

1. The final authority that I was directed to arises from this jurisdiction, Caltex Petroleum Pty Ltd v Commissioner for Main Roads.[120]
2. Caltex owned a site in Midvale which it leased to a third party. The lease provided that, despite the lease term that had otherwise been agreed, where the site was compulsorily acquired, Caltex had an entitlement to terminate the lease on 30 days' notice.
3. Caltex's land was acquired for road widening and an appeal against the arbitrator's award of compensation was heard by McKechnie J. His Honour upheld the arbitrator's decision to value the lease on the basis that it was an interest terminable on 30 days' notice, as against a value that reflected a longer-term leasehold interest.[121]
4. I turn, next, to discuss the terms, and context, of the Lease.

1. It is common ground that the circumstances leading to the Lease were as follows:

(a) Tah Land provided Kam Khazaly with a Lease disclosure statement (Disclosure Statement) on 3 July 2009; and

(b) The Lease was undated (but refers to a commencement date of 1 August 2009).

1. The materials provided to the Applicant during the Lease negotiations included information directed to the basis on which the Intersection Land was available to lease.[122]
2. For example, included in, and forming part of, the Lease was a 'Tenant Guide'. The Tenant Guide included a heading 'Assume you won't be able to renew' with a statement as follows:

You should not rely on a new lease being entered into at the end of the lease period.

1. The Disclosure Statement was provided to the Applicant pursuant to s 6(4) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). It warned against signing a lease agreement or any associated document until the terms of the Disclosure Statement were fully understood. Prospective lessees were advised to take independent legal and accounting advice.[123]
2. The Disclosure Statement included the following statement under the heading 'Term':

If the Tenant expects to extend his or her lease after the expiry of its Term and options, the Tenant must make enquiries of the Landlord before entering into the Lease.[124]

1. The Disclosure Statement also included an 'Additional Information' section. Under the sub-heading 'The Development', the Disclosure Statement provided that the development is to be completed in accordance with the approvals of all relevant authorities. Under a further sub-heading 'The Landlord's interest' there was information about the Deed, including Tah Land's obligation to transfer the Intersection Land to the City. Upon the transfer of the Intersection Land, Tah Land will then hold a leasehold interest in the Intersection Land.
2. Furthermore, the Disclosure Statement explained that Tah Land's leasehold interest in the Intersection Land would run 'until 30 April 2021'.[125]

1. The Lease, which was entered into in 2009, secured the Applicant a 10-year term (the initial term with the option of the further term).
2. The Lease included a holding over clause which provided that inter alia, if the Applicant remained in the Premises after the expiry of the lease term, with the consent of Tah Land, the base rent, plus 20%, would be payable as well as monthly outgoings. However, either party, on one month's notice, could terminate the tenancy.[126] On termination, the Applicant was obligated to restore the Premises to its original state.[127]

1. As at March 2014, Kam Khazaly wanted to expand the restaurant. The adjoining tenancy (Tenancy C3) was then operated as Eagle Boys Pizza under a lease set to expire in 2015.
2. In April 2014, Tah Land and the Applicant discussed the terms by which Tenancy C3 could be added to the Lease for Tenancies C1 and C2. Tah Land indicated that at the time that Kam Khazaly's lease of Tenancy C3 commenced, the Lease would be extended for a further 5-year period.
3. On 12 April 2016, Tah Land advised Kam Khazaly that Tenancy C3 had become available. Via an undated document, the Lease was varied with effect from 13 June 2016 to add Tenancy C3 and to extend the term by 5 years under the further extended term, which would expire on 12 June 2021 (seemingly beyond the (then) expiry date of the Development Approval).

1. I turn now, to examine the Applicant's evidence relating to its aspirations to retain the Lease on a long-term basis.
2. At the time that the Applicant secured its lease of Tenancy C3 for the further extended term, it undertook extensive renovations at the Premises, costing between $750,000 and $1,000,000.
3. Mr Khazaly explained that such works were undertaken to 'accommodate anticipated business growth over the coming years' as 'part of a long-term commercial strategy to ensure the longevity and continual growth of the business'.[128] This is because the Applicant 'had every intention for the business to continue to trade from the premises at the [Shopping Centre] indefinitely'.
4. Mr Raymond Tan, indicated that Tah Land was prepared to negotiate further leases of the Premises beyond the further extended term.[129]
5. However, those negotiations never progressed. By March 2020, Mr Khazaly had become frustrated as to Tah Land's disinclination to enter discussions to extend the Lease beyond the further extended term. Perhaps to explain its reluctance, on 7 March 2020, Tah Land provided the Applicant with a copy of the WAPC's decision, made in February 2020, to refuse the Intersection Land DA.
6. The reasons why the WAPC had refused the Intersection Land DA were based on the Intersection Land being imminently required for its designated public purpose. Reason 3 expressly provided that Main Roads WA had allocated funding for the grade separated intersection and that the Intersection Land was now required.
7. Rather than extending the Lease, the Shopping Centre management instead offered the Applicant a lease for different premises. Mr Khazaly was frustrated by the prospect of having to move from the Premises. He emailed the leasing manager expressing his displeasure at the location of the proposed new lease. He was also critical of the transport authorities for making an 'imprudent decision' to require the transfer of the Intersection Land. Mr Khazaly stated that the acquisition will be a 'burden on the re-election' of government ministers at the next election.[130]
8. By reply, the Shopping Centre management explained that it considered the WAPC's decision to acquire the Intersection Land as being 'definitive' and that the Applicant should negotiate a relocation along with its proposed lobbying strategy.[131]
9. Of course, shortly thereafter these emails, on 16 March 2020, a state of emergency was declared by reason of the COVID-19 pandemic.[132] The COVID-19 Act commenced on 12 September 2020, the effect of which was to extend all valid development approvals by two years.[133] Accordingly, the Development Approval was extended to 30 April 2023.
10. The further extended term lapsed with the effluxion of time on 12 June 2021. The Applicant remained in the Premises, in a holding over capacity, and continued to trade. While Tah Land made the Judicial Review Application, in an effort to retain control of the Intersection Land, its application was dismissed in February 2023. In April 2023, upon registration at Landgate, the Taking Date was fixed as being 7 December 2022.

1. The fundamental issue raised by the Applicant is largely a question of statutory construction. To that end, I note that the principles of statutory construction are well settled. In Aliraja v Commissioner of Titles,[134] Quinlan CJ recently set out that:

Statutory construction involves the attribution of meaning to statutory text. The Court's task in that regard must begin and end with the statutory text as a whole, considered in its context, including its objectively discerned statutory purpose.

1. Accordingly, I turn now, to address some key aspects of the statutory scheme for compensation provided for in the LA Act.

The 'provisions' and 'operation or effect of' the MRS are to be disregarded in assessing the value of the Lease; but not otherwise

1. I have already noted the terms of s 241(2) require the interest in land to be valued, in this case, 'without regard to any increase or decrease in value attributed wholly or in part to any of the provisions contained in, or to the operation or effect of, the relevant planning scheme'.
2. I have already explained that s 241(2) is a statutory manifestation of the Pointe Gourde principle. While the application of s 241(2) is not in contest in this matter, it is necessary to explain that, in assessing the claim for consequential losses under s 241(6), the reservation of the Intersection Land, and the scheme leading to the reservation, need not be disregarded in the sense explained by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority.[135] That is for two reasons.
3. The first is disregarding the planning controls leading to the reservation is only relevant to determining the unaffected value of the interest acquired for the purposes of s 241(2). Unlike, s 241(2), the remainder of s 241 deals with the factual consequences of the interest having been taken.[136] In this case, there is no dispute as to the value of the acquired interest. No relevant Pointe Gourde inquiry is required.
4. The second is that in this case, the reservation of the Intersection Land pre-dated the Development Approval, and the Lease made between Tah Land and the Applicant. That is, the Lease was made against the factual backdrop of the Intersection Land being reserved in the MRS. The reservation was not imposed on the Lease; rather the Lease was imposed on the reservation. At all times, the Lease was on land reserved for primary regional road purposes. And, as I have explained, the lawfulness of the Applicant's interest in the Intersection Land as at the Taking Date derives from the Development Approval.

1. Part 9 of the LA Act is directed to the manner in which interests in land may be compulsorily acquired. By s 202(1), every person having an interest in land under Pt 9 is entitled to compensation for the interest from the acquiring authority.
2. Part 10 is headed 'compensation'. Division 1 establishes the entitlement to claim and Div 2 deals with the making of a claim for compensation. Division 3 sets out how claims may be offered and either accepted or rejected and, if agreement is not reached, how compensation is then to be determined, including by referral to the Tribunal. Division 4 is directed to how the Tribunal deals with claims for compensation referred under Div 3. Division 5, which includes s 241, is headed 'assessing compensation'. Division 6 is directed to the payment of 'compensation'.
3. The headings of Parts and Divisions form part of the written law.[137] It follows that Pt 10 is directed to 'compensation' and Div 5, the assessment of that 'compensation'. Thus, the exercise of s 241 is to assess 'compensation'.
4. The term 'compensation' is not defined in the LA Act and therefore bears its ordinary meaning. The notion of 'compensation' in the context of resumption statutes such as Parts 9 and 10 of the LA Act has been described:[138]

... as a payment made as reparation for the loss of an owner's land. It is a payment to make amends for the taking of land. To compensate means to make up for what is lost; to neutralise the effect of a loss; to counterbalance the loss; or to supply an equivalent.

1. Thus, Pt 10 of the LA Act, and in particular s 241, is directed to an assessment of the 'compensation' that is payable to a claimant.

Compensation is to be 'fair' and is premised on 'equivalence'

1. In Nelungaloo Pty Ltd v Commonwealth,[139] the High Court explained that the prima facie meaning of 'compensation' is 'recompense for loss'.
2. One of the statements of principle in relation to compensation that I have earlier referred to, is the notion that it must be 'fair'. I accept, of course, that the surest guide to what is to be regarded as 'fair' lay in the terms of, in this case, the LA Act.
3. The principle of 'fairness' was discussed in Shun Fung,[140] where a milling business in Hong Kong was entitled to recover lost profits for the period between when it was notified of the acquisition (November 1981) and the actual resumption (October 1985). The Privy Council, by majority, found that the impending acquisition had a 'paralysing effect' on the business, as it was operating under 'the threat of resumption' and that the claimant was entitled to be 'compensated fairly and fully for [its] loss'.[141]
4. Lord Nicholls of Birkenhead delivered the majority opinion. His Lordship explained that the purpose of compensation provisions is to provide 'fair compensation for a claimant whose land has been compulsorily taken from him'.[142] His Lordship further explained that 'built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of [their] land, but not to any greater amount'.[143] The principle of 'fair compensation' was described as being the 'ultimate touchstone'.[144]
5. Likewise, in Horn v Sutherland Corporation,[145] Scott LJ described the principle of 'equivalence' as laying at the 'root of compensation' and that an 'owner should be paid neither less nor more than [their] loss'.
6. In my view, as a matter of text, context and purpose, there is no reason to doubt the application of such principles to the assessment of compensation under s 241 of the LA Act.
7. Indeed, the principle of equivalence was evident in the recent reasons of the Court of Appeal in DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority.[146] In explaining why s 241(6)(b) of the LA Act required any benefits and savings accruing to a claimant from the acquisition to be taken account of, the Court referred to the two subsections in s 241 which required land to be valued (s 241(2) in relation to the acquired land; and s 241(7) in relation to any adjoining fee simple land), and noted that in each instance, any increase in value due to the taking needed to be disregarded.[147]
8. That is to say, the Court applied s 241 on the basis that a claimant is only entitled to be compensated for their loss. The LA Act does not operate to allow a claimant to be put in a superior position both in the assessment of the value of land, but also any consequential losses.

1. I turn, next, to discuss the terms of s 241(6) and authorities directed to its proper construction.
2. Section 241(6) relevantly provides as follows:

Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of -

(a) removal expenses; or

(b) disruption and reinstatement of a business; or

(e) any other facts which the acquiring authority, the court, or the State Administrative Tribunal considers it just to take into account in the circumstances of the case.

1. The leading authority on the construction of how 'consequential losses' are approached in this State remains Virtue J's decision in Konowalow v Minister for Works,[148] the application of which was discussed in detail, and applied, by Edelman J in Lenz.[149]
2. In Konowalow, Virtue J described s 241(6) as being directed to 'compensation for loss or damage resulting from the interference with the activities being carried on by the plaintiff on the land'.[150] Implicit within his Honour's analysis is that there must be a causal connection between the loss and the activities being carried on by the plaintiff.
3. Konowalow also explains that the subparagraphs of s 241(6), are to be read and applied ejusdem generis, [151] despite the apparent breadth of the words 'any other facts that ... [is considered] just to take into account' in s 241(6)(e).
4. In this case, the Applicant presents s 241(6)(e) as an alternative basis on which such compensation may be awarded.[152]
5. In Lenz, Edelman J also emphasised that s 241(6) does not permit recovery of prospective or potential losses; only those that have been suffered.[153]
6. As I have already mentioned that in DBW Reynolds, the Court recently examined the operation of s 241(6) of the LA Act, in particular, s 241(6)(b).
7. In doing so, the Court noted that the chapeau of s 241(6) requires regard to be had to 'the loss or damage, if any, sustained by the claimant by reason of ... disruption and reinstatement of a business'. The expression 'by reason of' requires that there be a causal nexus between 'the loss or damage, if any, sustained by the claimant', on the one hand, and the 'disruption and reinstatement of a business', on the other.[154] The Court explained that 'sustained' means 'to suffer'.[155]
8. The Court further explained that it is implicit in the text of s 241(6)(b) that, in assessing a claim for consequential losses, the following steps, or considerations, arise:[156]

(a) identifying any loss or damage claimed to have been sustained by the claimant;

(b) demonstrating the causal connection between that loss or damage and the 'disruption and reinstatement' of the business; and

1. While it is true that the Court's analysis was directed to the need for any benefits that accrued to a business to be accounted for in assessing a claim for consequential losses, its reasoning also directs attention to the causal connection of the loss being 'demonstrated', which, in turn, requires consideration of the circumstances of the business in question.

The assessment of leasehold interests under the LA Act: relevant principles

1. As I turn to address what I consider the relevant principles that may be drawn from my earlier review of the authorities on the acquisition of leasehold interests, I am, of course, mindful that my task is to apply the terms of the LA Act.
2. The High Court's decision in Aerated Water confirmed that the Spencer Test applies to the valuation of leasehold interests. In assessing compensation for leasehold interests, attention must be directed to the 'nature and circumstances' of the acquired interest.[157] Such considerations are expressly embraced by the language of s 241(2) of the LA Act.
3. In my view, it is the unexpired, and objectively secure, term of the leasehold interest at the point of acquisition which is critical to the assessment of compensation. I say 'objectively secure' because the Courts, such as in Aerated Water and United Petroleum, have been unwilling to assess compensation for leasehold interests which are, in effect, premised on private and personal associations and relations. In Aerated Water, Isaacs J[158] explained that the value of leasehold interests cannot be enhanced by future expectations that were not secure at the time of acquisition. Again, I see no reason why such principles would not be relevant to the assessment of compensation under the LA Act.
4. A long-term secure lease, which is disrupted by a taking must be compensated under s 241(2) for the market value of that interest as it stood at the point of acquisition. In addition, the acquiring authority will be liable for the consequential losses suffered by that business. Fair compensation may well require the acquiring authority to meet relocation expenses as well as the losses associated with the disruption and reinstatement of the business.
5. That is, as was made clear in Aerated Water, the acquisition of a leasehold interest directs attention, for the purposes of compensation, to the nature and circumstances of that interest as it stood at the point of acquisition. A claimant is entitled to compensation for not only the market value of its interest, which will take into account both its profitability as well as its remaining duration, but also the disturbance and disruption associated with the compulsory termination of that unexpired term.
6. Unlike fee simple, the extent of a leasehold interest diminishes incrementally with the passage of time. Nevertheless, fair compensation is properly payable, as at the acquisition date, for compensable consequential losses caused to a leasehold claimant for the unexpired term of their interest. It is that unexpired term which forms the basis on which 'regard' is to be had for the assessment of compensation for both market value and, once that has been undertaken, any consequential losses.
7. To fail to have regard to the nature and circumstances of the acquired leasehold interest, in assessing claims for disturbance or consequential losses, would be to treat that interest as being, in effect, an unlimited, fee simple interest. That is the very criticism made of the approach that was taken in George D Angus which the New South Wales Court of Appeal declined to follow in United Petroleum. The Victorian Court of Appeal reached a similar view in Provan's Timber as did McKecknie J in Caltex Petroleum.
8. Furthermore, while United Petroleum and Provan's Timber do confirm that the value of the interest acquired and disturbance costs are discrete heads of compensation, and must be assessed separately, that is not the key principle to be drawn from these authorities.
9. What is more relevant, in my view, is that in assessing compensation for disturbance costs, both the New South Wales and Victorian Courts of Appeal had regard to the nature and extent of the legal interest that was acquired as an aspect of the statutory context, in which such a claim for disturbance costs fell to be assessed.
10. It is how that assessment is to be undertaken that is the 'fundamental issue' raised in this case, which I now come to.

1. During her oral submissions, Ms Young agreed that the Applicant's case is to the effect that 'once you're in, you're in'.[159] That is, once a claimant has passed through the 'gateway' of s 241(2), the remainder of the compensation provisions in s 241 apply independent of, and without regard to, the nature of the interest acquired.
2. I cannot accept that proposition for at least four reasons.
3. The first is that, by their terms, the various subsections in s 241 must be read together to determine the compensation payable. That is because such an approach accords with the orthodox canons of statutory construction, as well as the need to take account of the evident legislative purpose, being to 'compensate'. The requirement that the provisions of the compensation statute must be read and applied together, as a matter of statutory context, was also evident in both United Petroleum and Provan's Timber.
4. It is also evident in the Court of Appeal's decision in DBW Reynolds which I referred to earlier. I have already set out that in explaining the proper construction of s 241(6)(b), the Court's analysis took account of the remaining subsections of s 241, namely s 241(2) and s 241(7). The point being, the Court did not construct s 241(6) as if it operated as a standalone provision.
5. While the effect of s 179(b) of the LA Act is to extinguish the interest in land at the point of acquisition, and to convert that interest into a claim for compensation, that does not have the effect that the nature of that acquired interest becomes irrelevant as one comes to the terms of s 241.
6. As I have explained above, the nature of the acquired interest provides the context for, and informs the compensation payable, under s 241(2), (6) and (7) of the LA Act.
7. The second is that, as I explained in Jandakot Capital, the operation of s 241 is premised on a series of assessments as to: (i) the value of the acquired land; (ii) any damage caused to adjoining land; and (iii) any consequential losses.[160]
8. I have already explained that the first assessment is the value of the acquired interest under s 241(2), as that assessment influences how the remaining subsections may be applied.
9. An example is where the interest in s 241(2) is based on a prospective 'highest and best use',[161] which attracts a higher rate of compensation than the current use of the land. In such instances, the claimant is not then entitled to compensation for consequential losses relating to the actual use being made of the land.
10. Likewise, s 241(7), which relates to damage to adjoining land by way of severance or injurious affection, is only engaged where the interest under s 241(2) is fee simple.
11. These examples reinforce the point that while s 241(2), (6) and (7) are separate heads of compensation, they operate together as parts of the same statutory scheme.
12. The third is that the various assessments that I refer to above are, in effect, a series of evaluative judgments.
13. The word 'regard' is used throughout s 241. In s 241(2), 'regard is to be had to the value of the [land or the interest] of the claimant ...'.[162] In s 241(4), no 'regard' is to be had to improvements made to land without the consent of the Minister following the registration of a notice of intention to take.[163] In s 241(6) 'regard is to be had to the loss or damage, if any suffered by a claimant [due to consequential losses]'. In s 241(7) 'regard' is to be had to the damage occasioned to any adjoining land that is owned in fee simple by a fee simple claimant.
14. In my view, the repetition of the need to have 'regard' to:

(ii) the consequential losses that may have resulted; and

links back to the opening words in subsection (1) that 'in determining the amount of compensation (if any) ... regard is to be had solely' to the matters set out below.

1. The ordinary meaning of the verb 'regard', as it is used in the context of s 241, means 'to take into account; consider'.[164] That is to say, each time the word 'regard' is used in order to assess what compensation may be payable under the various heads of compensation, the task in each instance involves an evaluative judgment of what compensation ought to be payable, having regard to the circumstances of the case in question.
2. The use of the word 'regard' throughout s 241, including in s 241(6), expressly links the operation of the various subsections, so as to enable that evaluative assessment; guided, in each instance, by inter alia the principles of fairness and equivalence. As I will shortly come to, that evaluative assessment, as it applies to s 241(6), also embraces the notion of causality embedded within Virtue J's analysis in Konowalow.
3. The fourth is that to read s 241 in the manner invited by the Applicant would be to apply its terms in a mechanical and artificial manner, with the result that consequential losses must be blindly assessed without 'regard' to what the claimant has, as a matter of fact, lost by the compulsory acquisition.
4. The Applicant's mechanical 'but for' construction of s 241(6) was the approach that was rejected in both United Petroleum and Provan's Timber, on the basis that it would result in the award of compensation for losses not directly attributable to the acquisition but instead, in each of those cases, loses that were relevantly caused as a result of the claimant's insecure tenancy. In each instance, the nature of the acquired legal interest informed the basis on which the relevant cause of disturbance costs were to be properly assessed.
5. In my view, the principles and reasoning in these Court of Appeal authorities should not lightly be departed from. That is because, those same principles are embedded with the statutory scheme for compensation in this State. That is so because Konowalow has long been accepted as authority that it is necessary for a claimant seeking consequential losses, to demonstrate the causal link between the acquisition and the interference with the activities being carried out on the land.
6. By reference to Konowalow, Mr Misso submitted that:[165]

[His Honour refers] to the fact that there is a need for the claimant to be carrying out activity and using the land for a particular purpose. The resumption has interfered with that, and he is entitled to compensation because of what it is necessary for him to do in respect of such interference or because the money which he has spent on such activity hasn't been thrown away by reason of the presumption. That's effectively, the causation test that we say should apply and should properly be imported into when the tribunal is construing section 241(6)[.]

1. Mr Misso further submits, which I accept, that while the LA Act does not use the terminology of either the JTC Act ('direct and natural') or the LAC Act ('natural, direct and reasonable'), there is still the need to establish a causal link between an acquisition and losses claimed under s 241(6) of the LA Act.
2. That anterior question of causation, which in this State focuses on the 'interference with the activities being carried on the land', directs attention to the circumstances in which the claimant carried out such activities. The basis on which a claimant carries out the activities directs attention to its legal authority to do so. Its legal authority to do so includes the nature of its interest in the land either as, for example, a fee simple owner, a lessee or the holder of easement. It follows, necessarily in my view, that the legal interest colours the basis on which 'regard' may be had to the consequential losses claimed under s 241(6).
3. Accordingly, despite being derived from different statutory contexts, the analysis in United Petroleum and Provan's Timber, is relevant to s 241(6) of the LA Act, as in each instance there is anterior question of causation that needs to be satisfied for consequential losses to be payable.
4. While Ms Young sought to distinguish United Petroleum and Provan's Timber on the facts, by reason of the Applicant's formal Lease, I cannot myself find any proper basis to distinguish them.
5. The critical point, in my view, is that it is erroneous to focus on the security of a lease at the point it was entered or that it once had. Rather, what does matter is the extent and duration of the unexpired term of that lease as at the point of acquisition.
6. True it is that, in this case, the Lease was secure for a 10-year period, and then for a further 5-years. However, as at the Taking Date, the Applicant's interest had diminished to the point where all that remained was its right to hold over, terminable on one month's notice. At the point of acquisition, which is the critical point, the Applicant's interest was, in my view, analogous to the facts in both United Petroleum and Provan's Timber. The security the Applicant once had under the Lease was simply no longer relevant as at the Taking Date.
7. To my mind, the Applicant's construction invites me to follow a path that has been rejected in both United Petroleum and Provan's Timber, in circumstances where the principle of causation which underpins these authorities, applies to the assessment of compensation under the LA Act. In my view, the construction advanced by the Applicant is contrary to the text, context and purpose of Pts 9 and 10 of the LA Act.
8. Accordingly, for these reasons, the nature of the interest acquired in s 241(2) provides the context in which 'regard' may be had to a claim for consequential losses under s 241(6).

1. Drawing all this background together, on the evidence before me, I make the following findings.

The Development Approval binds Tah Land and the Applicant

(1) Since 1994, the Intersection Land has been designated, and reserved in the MRS, for primary regional road purposes.

(2) As at 2009, Tah Land, and the world at large, was bound by the terms of the Development Approval which it had taken steps to implement. The Development Approval committed Tah Land to transfer the Intersection Land. Notwithstanding that the transfer never proceeded, the Applicant's interest in the Premises, which were located on the Intersection Land, being land that by that time (2009) had long been identified as a future primary regional road. Accordingly, the Applicant's desire to lease the Premises on a long-term basis must be assessed against the factual reality of the Development Approval, regardless of whether this was drawn to its attention or not.

The Lease provided fair notice that the Premises were on the Intersection Land

(3) At the time the Lease was entered, having regard to the Disclosure Statement, the Applicant was given express notice that the Premises were located on the Intersection Land, which had long been identified as being required (and which Tah Land had agreed to cede) for primary regional road purposes. The fact of the reservation was public knowledge long before 2009, and a certificate under the MRS (as it then stood)[166] available upon payment of a fee, would have certified the planning context of the Intersection Land.

(4) The Lease provided for a maximum term of 10 years (being the initial term and the further term). Moreover, if there was an intent to stay beyond that term, prospective lessees were expressly advised to speak with Tah Land about this first. There is nothing in the Lease, or incorporated materials, before me, that provides a reasonable basis for the Applicant's aspirations to occupy the Premises on a long-term basis.

(5) In March 2020, before the COVID-19 pandemic was declared, and the Development Approval was extended for two years, the Shopping Centre management advised the Applicant that it regarded the WAPC's position that it required the Intersection Land as being 'definitive'. At no point was the Applicant formally offered a secure term beyond the further extended term. Instead, Tah Land tried to persuade the Applicant to relocate to new premises, away from the Intersection Land.

The Taking did not disrupt the operation of the Lease

(6) The terms of the Lease reflected the limited nature of Tah Land's interest in the Intersection Land, which provided security to the Applicant only for the initial term, the further term and, in 2016, the further extended term, all of which would expire within the timeframe set by the Development Approval.[167]

In 2016, when the further extended term was agreed, there is no evidence before me that there was any reasonable prospect of any further lease term being granted. As I will shortly come to, the fact that Mr Tan and the Applicant carried hopes of a long-term arrangement is not probative evidence that there was a realistic prospect of a further extension.

(7) The Lease never provided the Applicant with long-term security for the operation of its Nando's restaurant. The WAPC did not act to truncate, or in any way, disrupt the terms of the Lease that had been agreed between Tah Land and the Applicant in 2009 and again in 2016. The further extended term expired with the effluxion of time on 12 June 2021, at which time the holding over provisions came into effect. The Applicant remained in possession of the Premises up until the point Tah Land advised that it was required to vacate. The Applicant ceased trading on 17 April 2023 and vacated the Premises, not by reason of the WAPC, but because its interest in the Intersection Land had lapsed in accordance with the terms of its Lease.

Tah Land's efforts to retain the Intersection Land are of no moment

(8) Tah Land's desire to retain the Intersection Land, and the Applicant's intentions to extend the Lease, and any discussions between Tah Land and the Applicant in this regard, go nowhere. They only serve to confuse matters.

(9) The conversations between Tah Land and the Applicant about extending the Lease must, logically, have been premised on the Development Approval being extended or varied, and the Intersection Land continuing to be available for commercial purposes. However, there is no evidence that the WAPC, which administers the MRS, has ever waivered from its view that the Intersection Land would be required for its designated purpose at the point the Development Approval expired. Any applications for approval that Tah Land lodged, or legal challenges it made, should not be construed as constituting a change-in-position on the part of the WAPC.

(10) Tah Land had no reasonable basis to doubt that, following the expiration of the Development Approval, the WAPC would take steps to secure control of the Intersection Land, given that it had not been transferred to the City, as required by Condition 4 of the Development Approval. Accordingly, the Applicant's intentions to remain in the Premises were not, on the evidence before me, realistic nor were they reasonable.

(11) This is not a case where, without notice and any forewarning to a landlord, it suddenly emerges that commercial land is required for a public purpose, so as to disrupt the long-term aspirations of both landlord and the tenant. Nor is it a case where, at the point of the acquisition, the tenant held a long-term lease over the affected land so as to disrupt and frustrate its secure interest in a formal lease.

(12) To the contrary, as I have already explained, and now repeated, the Intersection Land was designated, and identified as being required, for a public purpose long before the Applicant and Tah Land agreed the Lease which, by its terms was to, and in fact did, expire in June 2021.

(13) Once the background to the Intersection Land is understood, Tah Land's subsequent actions to extend the commercial life of the Intersection Land, and to make the Judicial Review Application, should not be interpreted as colouring the Taking so as to be seen as being unexpected, unreasonable or controversial.

The WAPC is not responsible for the Applicant's decision to refurbish the Premises

(14) A prominent feature in this case is the Applicant's frustration with the Taking, as against the backdrop of the extensive renovations undertaken on the Premises in 2016. However, the decision to expend considerable moneys on the Premises at the commencement of the further extended term was a commercial decision the Applicant made for its own reasons.

(15) As at 2016, there is no evidence before me to suggest that the WAPC induced Tah Land, or the Applicant, to believe the Development Approval would be extended or that the Intersection Land was not required. The WAPC is not responsible for the Applicant's commercial decision to renovate the Premises.

(16) The fact that the Applicant may not have appreciated the reality that, in 2016, the Premises would very likely not be available for commercial use beyond the short-to-medium term cannot serve to bolster its entitlement to compensation. Nor can Tah Land's desire to retain the Intersection Land, and to extend the Lease, provide a basis for the Applicant to claim consequential losses in the manner in which it seeks to. The evidence simply does not support the Applicant's premise that its long-term aspirations have been frustrated by the Taking. On the facts as I have found them, that simply is not so.

The Applicant's consequential losses were not caused by the Taking

(17) In order to sustain a claim for consequential losses, and consistent with Konowalow, a claimant must be able to demonstrate that such losses were caused by, or due to, the acquisition of their interest. Here the Applicant's case proceeds on the premise that because it remained in occupation of the Premises as at the Taking Date, the door to consequential losses under s 241(6) swings open. However, in my view, the bare fact of occupation is not, of itself, sufficient to causally link losses and expenses that may become payable by a claimant and the compulsory acquisition of their interest. In the language of United Petroleum, more analysis is needed.

(18) On the facts, I find that the consequential losses claimed by the Applicant were not, for the purposes of s 241(6), relevantly 'caused' by the Taking.

(19) While it is accepted that the Taking may have been the final step in the closure of the restaurant, it does not follow that the Taking relevantly 'caused' the costs and expenses that were incurred in the closing, vacating and relocation of the restaurant. Properly understood, the direct cause for the Applicant's consequential losses lay elsewhere.

(20) Firstly, the expenses occasioned on the Applicant are directly attributable to the Applicant's commercial decision to remain in the Premises for 17 months beyond the expiration of the further extended term of the Lease. By remaining in the Premises, as at the Taking Date, all that remained of the Applicant's compensable interest was its readily terminable, fragile and faint holding over rights.

It is the Applicant's decision to remain in occupation of the Premises well beyond the point at which it had any security in the Intersection Land, that is the direct cause of its losses. While the Taking was the final step in the closure of the restaurant, the fact is that the compensable value of the Applicant's interest had all but expired on 12 June 2021.

As was the case in Provan's Timber, the principal or direct cause of the Applicant's relocation costs and expenses was the insecure tenancy on which it chose to continue to run its business. The WAPC is not obliged to pay compensation for the leasehold interest the Applicant once enjoyed, only the interest as it subsisted as at the Taking Date.

(21) Secondly, looking back even farther, I find that a further, but related, direct cause of the Applicant's expenses in closing the restaurant and relocating to Woodvale lay in its 2009 decision to lease land that was reserved for primary regional road purposes, which Tah Land was, at that time, already obliged to transfer at a future point fixed by the Development Approval. The fact that Tah Land never transferred the Intersection Land is not to the point.

What is relevant is that at no time can it be said that the Applicant secured a lease over land which had long-term commercial prospects. It chose to lease land that had been identified for a public purpose, but which was available for lease for an interim period. It is that decision that resulted in the need, in time, to relocate the business away from the Intersection Land.

1. The notion that land required for a public purpose in the medium term should, in the interim, be made available for other productive uses, makes commercial sense. However, at least in this case, the reversion of such land back to its designated public purpose has not been orderly, nor without consequence.
2. Before I conclude, I feel it necessary to record that I am not blind to the fact that the Khazaly family has on the evidence before me, worked extremely hard to open and then operate a restaurant which was commercially successful, and likely would have been in the longer term.
3. Nor am I blind to the reality that sitting behind the legal manoeuvring of Tah Land and the WAPC as to the future of the Intersection Land, were families with leasehold interests who would be very materially, and financially, affected by the outcome.
4. Without being critical of anyone, while the Intersection Land being made available for commercial land uses for 20 or so years no doubt carried some benefits, I am not sure that, in the result, all affected parties benefitted equally from those interim arrangements.
5. Nevertheless, whatever sympathy I have for the Applicant, and the position it found itself in as a result of the Taking, I am duty bound to put to one side and faithfully apply the terms of s 241 of the LA Act.

1. I have found that the Applicant did not, at any relevant time, secure itself a long-term right to lease the Premises. As at the Taking Date, the further extended term had lapsed, and the Lease endured most tenuously, only on account of the right to holding over. The Applicant's occupation of the Premises from 12 June 2021, was vulnerable to termination at any time, on minimal notice. As I have explained, the Applicant's interest in the Intersection Land, as at the Taking Date, had become fragile and faint.
2. I agree with the Respondent's fundamental proposition that the compensation that is payable under s 241 must be proportional and equivalent to the interest that has been acquired. The Respondent's construction aligns with my view that the provisions in s 241 operate and apply together. While they are separate heads of compensation, they remain part of the same statutory scheme which, together, are directed to an assessment of fair compensation.
3. Within that, as I have explained, the interest in s 241(2) operates as a key contextual consideration, even touchstone, for the manner in which compensation is assessed in the remaining subsections. That is because it is the legal interest that has been acquired, that is the source of the entitlement to compensation.
4. The principles of fairness and equivalence embraces the Respondent's notion of proportionality which, in turn, directions attention to the nature and circumstances of legal interest that the owner has been deprived of. Such a proposition makes evident sense and is fundamental to the notion of the purpose of 'compensation'; being 'recompense for loss'.

The Applicant's claim does not reflect its compensable interest

1. The purpose of 'compensation' is not to put a claimant in a superior position to that which they were in before the Taking. Those principles are evident in the decisions of the New South Wales Court of Appeal in United Petroleum and the Victorian Court of Appeal in Provan's Timber, and the decision of McKecknie J in Caltex Petroleum, all of with which, I respectfully agree. Such principles were recently explained by the Court of Appeal in DBW Reynolds,[168] where it stated:

... the broader context and purpose of pt 9 and pt 10 of the LAA, which is to ensure that a person whose interest in land is taken, is awarded compensation for the loss of that interest in land. The scheme developed by the legislation provides for an award of compensation to ensure that the person is compensated for any loss caused by the taking and the associated public work. As part of that regime, any positive impact caused by the taking and public work must either be disregarded or also be taken into account.

1. The subsections with s 241 are not, as the Applicant invites, to be read in a disjointed, divorced and isolated manner.
2. Nor can I accept the Applicant's argument that 'but for' the Taking, the Lease would have been extended. While s 241(6) might encompass lost commercial opportunities in some circumstances,[169] the case authorities on the acquisition of leasehold interests, including Aerated Water, very much focus on the terms and nature of the lease arrangement that was, in fact, acquired rather than prospective promises or agreements.[170]
3. Moreover, it is an argument that does not align with the terms of s 241. As I have explained, while the value of the legal interest under s 241(2) is assessed without regard to the operation or effect of the planning scheme, such that 'but for' questions may well arise; the actual effect of the acquisition is taken account in assessing compensation under the remaining subsections of s 241.
4. Accordingly, I cannot accept the Applicant's case on how compensation for its leasehold interest should be assessed under s 241 of the LA Act.
5. In my view, to allow the Applicant's claim for consequential losses, which exceed $2 million, would be to treat the Applicant as if the Taking disrupted and obliterated an interest that was secured under a long-term lease. It would, as the Respondent submits, be an assessment of consequential losses completely divorced from, and blind to, the fragile interest held by the Applicant. It would result in the costs of the Applicant's relocation to its Woodvale premises, and associated loss of profits and funding costs, being met entirely by the WAPC, in the context of its faint holding over interest, an interest which had no market value.
6. As I have found, while the Taking may have been the final step in the closure of the restaurant, it is not the cause of the expenses occasioned on the Applicant in vacating and relocating its business. The commercial decisions the Applicant made to run its business on a holding over basis after expiry of the Lease and, prior to that, to lease future land required for a future regional road, are the root causes of these expenses.
7. In having 'regard' to the consequential losses claimed in the context of the Applicant's interest as at the Taking Date, for the reasons I have explained, there is not a sufficient causal connection between those losses and the Taking such as to, in effect, open the door to compensation under s 214(6).
8. Implicit with the statutory scheme of the LA Act is that compensation under s 241 is to be 'fair', is premised on 'equivalency' and is directed to 'recompense for loss'. Consideration of those principles in the context of the Applicant's interest as it stood as at the Taking Date, I find, leads to the result that no compensation for consequential losses is payable.
9. To be clear, I am in no doubt that the Applicant has had to meet the expenses it claims and has, in broad terms, lost the profits it points to. However, as I have found, those losses are not attributable, for the purposes of the LA Act, to the Taking.

The contest as to the scope of s 214(6) need not be determined

1. While the parties largely ran their cases on what was termed a 'death or glory' basis, the Respondent did put in issue the meaning of the term 'removal expenses' in s 241(6)(a), given that the claim included itemised matters such as, for example, a $10,000 'make good' payment made to Tah Land on 1 May 2023.
2. There is considerable force to Ms Young's submission that the Respondent's interpretation of 'removal expenses', as being limited to physically 'moving' or 'shifting' items from one place to another, may well be too narrow.[171]
3. I tend to agree, without needing to decide, with Ms Young that 'removal expenses' cannot be limited, for example, to 'the cost of hiring the removalist truck'.[172] I say that having regard to the legislative purpose of s 241, being to compensate, as well as the principle of equivalence.
4. However, I do not need to take that any further. What constitutes fair compensation for consequential losses including, relevantly, removal expenses as well as for disruption and reinstatement of a business under s 241(6)(b) in the context of any claimant, but particularly a claimant holding a leasehold interest, will turn on the relevant facts, including the nature and extent of the interest acquired as assessed under s 241(2).
5. However, any such losses do not arise for consideration in this case.

1. For these reasons, I find that the Applicant's entitlement to compensation under the LA Act as a result of the Taking of the Lease as at the Taking Date is:

1. The parties should confer on the orders necessary to give effect to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 (Lenz) [409] (Edelman J).

[3] Wanneroo Road is a 'primary regional road' and Hepburn Avenue is 'other regional road' under the MRS.

[4] Initially, the Intersection Land was reserved as 'Other Major Highways', this was later amended to be a 'primary regional road' reserve in 1999.

[5] There is a Second Applicant in this proceeding, being Shedan & Shahzad Khazaly Pty Ltd. The directors of the Second Applicant (Mr Shedan and Mrs Shahzad Khazaly) are the parents of Mr Kamvar Khazaly, the sole director of the Applicant. Mr Khazaly's evidence was presented on behalf of both applicants. These reasons will be directed only to Kam Khazaly Pty Ltd, but the Second Applicant is noted.

[6] Director of Buildings & Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 (Shun Fung).

[7] City of Wanneroo v Tah Land Pty Ltd [2022] WASCA 53 [1] (the Court) (Wanneroo v Tah Land).

[10] By consent orders made on 6 November 2003 in the (then) Town Planning Appeal Tribunal in No 166 of 2003.

[16] Tah Land Pty Ltd v Western Australian Planning Commission [No 3] [2023] WASC 35 (Smith J) (Tah Land v WAPC).

[18] As set out in the Applicants' Further Amended Particulars of Compensation Claimed, filed 1 April 2025.

[19] State Administrative Tribunal Act 2004 (WA) (SAT Act), s 15.

[21] Jandakot Capital Pty Ltd and Commissioner of Main Roads [2024] WASAT 90; (2024) 115 SR (WA) 201 (Jandakot Capital) [42].

[22] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [41] (McLure JA); approved by the High Court in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2; (2010) 240 CLR 409 [33] (French CJ, Gummow, Crennan & Bell JJ). But see, s 191(1A), s 191(1B) of the PD Act; inserted by s 16 of the Planning and Development Amendment Act 2020 (WA).

[24] By reference to the Privy Council decision in Pointe Gourde Quarrying and Transport Company Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565; (1947) 63 TLR 486.

[25] Jandakot Capital Pty Ltd and Commissioner of Main Roads [2024] WASAT 90; (2024) 115 SR (WA) 201 [56] (Jandakot Capital).

[26] McKay v Commissioner of Main Roads [No 7] [2011] WASC 223 [156] - [158], [162] - [163], [175] - [176], [179] - [198], [213], [228], [339] - [379], [478] - [479], [1503], [2213] (Beech J) (McKay [No 7]); see also the Court of Appeal in McKay v Commissioner of Main Roads [2013] WASCA 135 [137], [139] - [147] (Murphy JA, with whom Martin CJ and Buss JA agreed).

[27] Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6; (2012) 186 LGERA 58 [65] (Edelman J) (Lenz).

[28] Italiano v The Water Corporation [No 2] [2020] WASC 112 [73] - [77] (Kenneth Martin J).

[29] Konowalow & Felber v Minister for Works [1961] WAR 40, 41; (1960) 8 LGRA 75, 76 - 77 (Virtue J) (Konowalow).

[30] Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Co of South Australia Ltd [1947] HCA 10; (1947) 74 CLR 358, 373 - 374 (Dixon J) (Executor Trustee).

[32] Kelliher v Commissioner for Main Roads [No 2] [2015] WASC 478 [157] (Kelliher [No 2]).

[34]DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2023] WASC 165 [32] (Kenneth Martin J).

[35] Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; (1999) 74 ALJR 209; (1999) 167 ALR 575, [265] and [271] (Callinan J) (Boland v Yates).

[36] McKay [No 7] [144]; referring to Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547; (1981) 50 LGRA 334, 570 (Mahoney JA).

[37] Spencer v Commonwealth [1907] ArgusLawRp 146; (1907) 5 CLR 418; (1907) 14 ALR 253, 432 (Griffith CJ) (Spencer Test); Mount Lawley Pty Ltd v Western Australian Planning Commission [No 3] [2008] WASCA 158 [25] (the Court).

[38] Spencer Test (441), (Isaacs J).

[39] ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447; (2008) 162 LGERA 59 [40] (the Court) (ISPT); Commonwealth Custodial Services Ltd (as Trustee for Burwood Trust Fund) v Valuer-General (NSW) (2006) 148 LGERA 38, 45 [15] (Biscoe J).

[40] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 (2008) 233 CLR 259; (2008) 170 LGERA 345 [51] (Walker Corporation) (the Court); Boland v Yates [271] - [274] (Callinan J).

[41] Executor Trustee (373) - (374) (Dixon J); Boland v Yates [100] (Gaudron J); [111] (Gummow J); [356] (Callinan J); Avila and Main Roads Western Australia [2023] WASAT 79 [246] to [252].

[43] Walker Corporation [47] (Gleeson CJ, Gummow, Hayne, Heydon & Crennan JJ).

[46] A tenancy at will is a tenancy that may be terminated by either party at any time: Commonwealth Life (Amalgamated) Assurance Ltd v Anderson [1945] NSWStRp 31; (1945) 46 SR (NSW) 47, 49 (Jordan CJ, Halse Rogers and Street JJ concurring).

[47] Department of Transport v Provan's Timber [2020] VSCA 210 [152] (the Court) (Provan's Timber).

[49] Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 [132] (Pain J).

[50] Provan's Timber [155]; Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 236 LGERA 389 [22], [26] (Basten JA; MacFarlan JA agreeing).

[53] Including the claim for lost profits; Exhibit 2, page 479.

[54] Prince Alfred Park Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75, 81 (Pearlman J); Mekpine Pty Ltd v Moreton Bay Regional Council [2016] 1 Qd 148; (2014) 206 LGERA 120 [67] (McMurdo P, Morrison JA agreeing).

[56] Jandakot Capital [156] - [161].

[57] Applicant's Outline of Opening Submissions, 25 March 2025, para 25.

[58] Respondent's Outline of Opening Submissions, 25 March 2025, para 16.

[61] Mount Lawley Pty Ltd v WAPC [2004] WASCA 149; (2004) 29 WAR 273 [183].

[62] McKay [No 7] [170]; referring to Downie v Sorell Council [2005] TASSC 74; (2005) 141 LGERA 304 [33] (Slicer J, Blow J and Hill JA agreeing).

[63] St John Ambulance Association of Western Australia (Inc) v East Perth Redevelopment Authority [2001] WASC 85; (2001) 114 LGERA 112 (Hasluck P, Priest RJ, Gauntlett GI).

[66] Exhibit 5, paras 111 to 114, read with Annexure KK 8 and Exhibit 2, page 479.

[68] Exhibit 5, para 115, read with Annexure KK8 (last page); Exhibit 2, page 479.

[71] House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 [37] (Mason P, Stein & Giles JJA agreeing).

[72] Low v Swan Cove Holdings [2003] WASCA 115 [182] (Roberts-Smith J) (Swan Cove Holdings); Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42 [250] (Martin J).

[74] Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42; (2013) 197 LGERA 35 [10] (Estcourt J).

[75] Lawyers for Forests Inc v Minister for the Environment Heritage and the Arts [2009] FCAFC 114; (2009) 168 LGERA 220 [54] (the Court).

[77] Aside from Building 'D', which provided for 'commercial' development.

[78] University of Western Australia v City of Subiaco [1980] WASC 28; (1980) 52 LGRA 360, 364 - 365 (Burt CJ).

[80] Gray and Gray_, Elements of Land Law_, 5th Ed, Oxford University Press, UK, 2009, 307.

[81] Based on the Real Property Act 1858 (SA).

[82] Gumana v Northern Territory [2007] FCAFC 23; (2007) 158 FCR 349 [83] (the Court).

[84] Minister v NSW Aerated Water & Confectionary Co Ltd [1916] HCA 48; (1916) 22 CLR 56 (Aerated Water), 64; see also Barton J, 71.

[87] Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW) (1998) 101 LGERA 30 (Peter Croke).

[90] George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212; (2013) 205 LGERA 357 (George D Angus (LEC)).

[91] George D Angus (LEC) [62], [199].

[92] Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352; (2014) 88 NSWLR 752 (George D Angus).

[96] Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7; (2016) 212 LGERA 307 (Allandale Blue Metal).

[97] Allandale Blue Metal [29] - [30].

[98] Allandale Blue Metal [31].

[99] Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 99 NSWLR 279; (2019) 236 LGERA 389 (United Petroleum).

[100] See, by way of comparison, Marks v Coles Supermarkets [2021] WASCA 176 [4] (Quinlan CJ, Buss P, Mazza JA, Mitchell JA & Beech JA).

[101] Elmon Pty Ltd v Roads and Maritime Services [2016] NSWLEC 168 (Robson J).

[102] United Petroleum [24] - [26].

[104] JTC Act, s 55(d) defined in s 59(1).

[106] United Petroleum [45] - [48].

[110] United Petreleum [128]; by reference to Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 [137] (Mason P).

[111] Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 (Whitcurt Unit Trust).

[112] Whitcurt Unit Trust [131] - [133].

[114] Secretary to the Department of Economic Development, Jobs, Transport and Resources and Manor Lakes (Werribee) Pty Ltd [2017] VSCA 114; (2017) 224 LGERA 195 [76] (The Court).

[115] See also Melbourne City Link Authority v Teford Pty Ltd [2001] VSCA 54; (2001) 113 LGERA 102 [24] (Batt JA, Tadgell & Chernov JJA agreeing).

[116] Secretary to the Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210 (the Court).

[117] Provan's Timber Pty Ltd v Secretary, Department of Economic Development, Jobs, Transport and Resources [2019] VSC 390.

[119] Provan's Timber [156] - [157].

[120] Caltex Petroleum Pty Ltd v Commissioner for Main Roads [2004] WASC 239 (Caltex Petroleum).

[121] Caltex Petroleum [20] - [21], [34].

[122] Save for the fact that the modified lease term had an expiry date beyond that of the expiry date of the Development Approval.

[132] Emergency Management Act 2005 (WA), s 56.

[134] Aliraja v Susan Dukes, Commissioner of Titles [2025] WASCA 103 [23].

[135] Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122; (2003) 27 WAR 403 [12] - [16]; see also R v Murphy [1990] HCA 42; (1990) 95 ALR 493, 496 (Callinan J).

[136] See, for example, City of Wanneroo v Bakota [No 2] [2025] WASCA 62 [37] (Buss P); [490] (Solomon J).

[137] Interpretation Act 1984 (WA), s 32(1).

[138] Newton G, Connolly C (2017) Land Acquisition, 7th ed, LexisNexis Butterworths, NSW, [3.1], page 109.

[139] Nelungaloo Pty Ltd v Commonwealth [1947] HCA 58; (1948) 75 CLR 495, 571 (Dixon J).

[145] Horn v Sutherland Corporation [1941] 2 KB 26, 49.

[146] DBW Reynolds Pty Ltd as trustee for The DBW Reynolds Family Trust v Public Transport Authority [2025] WASCA 43 (the Court) (DBW Reynolds).

[147] DBW Reynolds [391] - [392].

[148] Konowalow v Minister for Works [1961] WAR 40; (1960) 8 LGRA 75 (Konowalow).

[157] See Caltex Petroleum generally.

[160] Jandakot Capital [152] - [161].

[161] Turner v Minister of Public Instruction [1956] HCA 7; (1956) 95 CLR 245; [1956] ALR 367; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [123] (Steytler, Templeman & Simmonds JJ).

[162] I note here that s 192(1)(a) provides that the valuation of land acquired under the PD Act is to be undertaken 'without regard to any increase or decrease in value attributed wholly or in part to any of the provisions contained in, or to the operation or effect of, the relevant planning scheme'.

[163] Not applicable to acquisitions under s 191 of the PD Act.

[167] Leaving to the side that the further extended term expired on 12 June 2021, beyond the expiry term specified in Condition 1 of the Development Approval.

[170] See, for example, Aerated Water, Allandale Blue Metal, United Petroleum, Provan's Timber.

[171] Respondent's Outline of Opening Submissions, paras 43 - 44; ts 49 - 50, 8 April 2025; ts 133, 9 April 2025.