Macarbell Pty Limited v RTA, Michael Nasser v RTA

Land and Environment Court (NSW)|1996-12-05|Before: Jagot J

CITATION : Macarbell Pty Limited v RTA, Michael Nasser v RTA [2006] NSWLEC 366

Proceedings 30801 of 2004 APPLICANT Macarbell Pty Limited

RESPONDENT Roads & Traffic Authority of New South Wales PARTIES : Proceedings 30802 of 2004 APPLICANT Michael Nasser

FILE NUMBER(S) : 30801 of 2004; 30802 of 2004

KEY ISSUES: Compulsory Acquisition of Land :- compensation - "before" and "after" valuations, decrease in value of land caused by proposal, comparable sales

Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 LEGISLATION CITED: Liverpool Local Environmental Plan 1997 National Parks and Wildlife Act 1974 Rivers and Foreshores Improvements Act 1948 Roads Act 1993 Threatened Species Conservation Act 1995

Blacktown City Council v Lasseter (unreported, Court of Criminal Appeal, 5 December 1996); Boland v Yates Property Corporation Pty Ltd and Another (1999) 167 ALR 575; Brewarrana Pty Ltd v Commissioner of Highways [No 2] (1973) 6 SASR 541; Collins and Another v Council of the Shire of Livingstone (1972) 127 CLR 477; Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358; Crompton v Commissioner of Highways (1973) 5 SASR 301; De Ieso v Commissioner of Highways (1981) 27 SASR 248; Downie v Sorell Council (2005) 141 LGERA 304; E J Cooper & Son Pty Limited v Baulkham Hills Shire Council (2003) 131 LGERA 226; Emerald Quarry Industries Proprietary Limited v Commissioner of Highways (South Australia) (1979) 142 CLR 351; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307; Fraser and Others v City of Fraserville [1917] AC 187; Griffith City Council v Polegato and Another (1990) 20 NSWLR 696; Hornsby Shire Council v Roads and Traffic Authority of New South Wales (1998) 100 LGERA 105; Housing Commission of New South Wales v San Sebastian Proprietary Limited and Others (1978) 140 CLR 196; CASES CITED: Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430; Mario Piraino Pty Ltd v Roads Corporation (1990) 76 LGRA 263; Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426; Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331; Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2004] NSWLEC 612; Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 [No 3] (1991) 71 LGRA 441; R K Morgan Holdings Pty Ltd v Melbourne & Metropolitan Board of Works (1992) 77 LGRA 102; Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159 ; Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd (2005) 143 LGERA 192; RTA v Muir Properties Pty Ltd [2005] NSWCA 460; Roads and Traffic Authority of New South Wales v Perry and Another (2001) 52 NSWLR 222; Sebastian Cannavo and Alfia Jennifer Busa v Roads and Traffic Authority of New South Wales [2004] NSWLEC 570; Smith v Roads and Traffic Authority of New South Wales [2005] NSWLEC 438; Spencer v The Commonwealth of Australia (1907) 5 CLR 418; Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407; The Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co and T D Charlesworth & Co [1901] AC 373

DATES OF HEARING: 1/5/2006, 2/5/2006, 3/5/2006, 4/5/2006, 5/5/2006, 8/5/2006, 9/5/2006, 10/5/2006

APPLICANTS Mr N Hemmings QC (solicitor) SOLICITORS Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Dr J Griffiths SC with Mr J Maston SOLICITORS Corrs Chambers Westgarth

TABLE OF CONTENTS Paragraphs Introduction 1 - 3 The land and its surrounds generally 4 - 7 General observations 8 - 16 Zoning east of Ash Road Background 17 - 26 Evidence about zoning east of Ash Road 27 - 41 Conclusions on zoning east of Ash Road 42 - 49 Vegetation and snails Vegetation - overview 50 - 73 Alleged illegal clearing 74 - 77 Snails - overview 78 - 79 Conclusions - vegetation and snails 80 - 87 Flooding and landfill Evidence on flooding and fill 88 - 96 Conclusions on flooding and fill 97 - 115 Access and accessibility Background - access issue 116 - 123 Access in the before situation 124 - 125 Access in the after situation 126 - 133 Conclusions on access - after situation 134 - 147 Sewer and water 148 - 150 General planning 151 - 154 Development costs 155 - 161 The offers 162 - 163 Comparable sales and adjustments General 164 - 168 M7 benefit to comparable sales? 169 - 172 16 Lyn Parade 173 - 174 The other comparable sales 175 - 183 The Yulong site 184 - 193 The Showground site 194 - 204 Yarrawa Street and Yarrunga Road site 205 - 209 Conclusions on comparable sales 210 - 215 Before value 216 - 222 After value 223 - 236 Conclusion 237

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES Respondent

1 These are objections under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (the "Just Terms Act") to the amounts of compensation offered by the respondent to the applicants on the compulsory acquisition of part of the applicants' land at Prestons on 10 October 2003. The respondent offered amounts of compensation (excluding disturbance) of $2,222,000 to the applicant Macarbell Pty Limited, and $5,890,000 to the applicant Michael Nasser ($8,112,000 in total). The applicants did not accept the offers and proceeded by way of objection to this Court.

2 The applicants contend that they are entitled to compensation (excluding disturbance) of $31,496,176. The respondent contends that the applicants are entitled to compensation (excluding disturbance) of $8,700,000 (reduced from $10,550,000 as set out in the primary report of Mr Lunney, valuer).

3 The parties proceeded on the common basis that this phase of the hearing would resolve the compensation payable to the applicants, other than in respect of disturbance (that is, all heads of compensation in s 55 of the Just Terms Act, other than s 55(d)). The evidence in one proceeding was agreed to be evidence in the other. I have determined compensation (excluding disturbance, interest and costs) in the sum of $13,578,522. My reasons are set out below.

4 Macarbell Pty Ltd owned lot 25 in DP 752060. Michael Nasser owned lots 286 and 287 in DP 752060. Michael Nasser controlled Macarbell Pty Ltd.

5 The land is in the southern part of the Prestons Industrial Release Area. The lots were similar in area. Lot 25 had an area of 6.5756 hectares, lot 286 an area of 6.778 hectares, and lot 287 an area of 6.475 hectares. The total area of the three lots was thus 19.8286 hectares. 17.544 hectares of the land was located west of an unformed Crown road known as Ash Road. 2.284 hectares of the land was located east of Ash Road. The southern, western and northern boundaries of all the lots were regular, forming a large rectangular parcel. The eastern boundary of the lots was somewhat irregular, following the path of Maxwells Creek.

6 On 10 October 2003, the respondent compulsorily acquired part of lots 25, 287 and 286 for the purposes of the Roads Act 1993. The respondent acquired three lots from lot 25 (lots 46, 47 and 48 in DP 105760), two lots from lot 287 (lots 45 and 49) and one lot from lot 286 (lot 44). The residue of lot 25 (left in the ownership of Macarbell Pty Ltd) was designated as lot 41. The residue of lots 287 and 286 (left in the ownership of Michael Nasser) were designated as lots 42 and 43 respectively.

7 From lot 286 (6.778 hectares), the respondent acquired 3.144 hectares and left a residue of 3.634 hectares. From lot 287 (6.475 hectares), the respondent acquired 1.81 hectares and left a residue of 4.665 hectares. From lot 25 (6.5756 hectares), the respondent acquired 9946 sqm and left a residue of 5.581 hectares. From the 19.8286 hectares of land owned by the applicants, the respondent acquired 5.9486 hectares (5.749 hectares west of Ash Road and 2000 sqm east of Ash Road), and left a residue of 13.88 hectares (11.795 hectares west of Ash Road and 2.084 hectares east of Ash Road). In percentage terms, the respondent acquired just over 30% of the applicants' land.

8 The primary task is to ascertain the price which a buyer would give and a seller take for the land in all the relevant circumstances at 10 October 2003, where both are assumed to be willing but not anxious parties proceeding "not by means of a forced sale, but by voluntary bargaining … willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration", and both being "perfectly acquainted with the land, and cognizant of all circumstances which might affect … [its] value" ( Spencer v The Commonwealth of Australia (1907) 5 CLR 418 at 441 per Isaacs J). Although the applicants referred in submissions to the relevant value being the value to the owner over and above market value, nothing in the applicants' claim or the evidence supported any suggestion of special value or provided a basis for concluding that the market value as provided for in s 56 of the Just Terms Act (embodying the Spencer principle) did not reflect the value to the owner (see, for example, Boland v Yates Property Corporation Pty Ltd and Another (1999) 167 ALR 575 at [79] to [83], [292] and [354]).

9 In applying the Spencer test, it is conventional to refer to the views of the "hypothetical prudent purchaser". I understand this to encompass the ultimate point at which the notional buyer and seller posited by the statute would meet (s 56(1) of the Just Terms Act). For convenience, I generally adopt the terminology of the "hypothetical buyer" on the basis that the reference includes the notional buyer and seller, cognizant of all circumstances which might affect the value of the land and acting on ordinary business considerations (as identified by Isaacs J in Spencer ).

10 Various circumstances potentially affecting the development potential of land (and thus its value) may arise. The relevant issue is the view of the hypothetical buyer and seller about those circumstances and their effect on the value of the land, not the circumstances per se ( E J Cooper & Son Pty Limited v Baulkham Hills Shire Coun cil (2003) 131 LGERA 226 at [9], referred to as "the correct approach" in Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331 at [20] per Handley JA, Tobias JA and Brownie AJA agreeing. See also De Ieso v Commissioner of Highways (1981) 27 SASR 248 at 252).

11 In resolving the competing opinions of the experts "through the judgment of the hypothetical buyer and seller premised by Isaacs J for the purpose of making the test work" ( De Ieso at 252), I may determine that qualifications or modifications of those opinions are required, and am not bound to accept or reject the whole of one or other opinion ( Hornsby Shire Council v Roads and Traffic Authority of New South Wales (1998) 100 LGERA 105 at 108, Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd (2005) 143 LGERA 192 at [89], Brewarrana Pty Ltd v Commissioner of Highways [No 2] (1973) 6 SASR 541 at 544-545 and 578, and Downie v Sorell Council (2005) 141 LGERA 304 at [31]).

12 Where a genuine doubt relevant to value remains, that doubt should be "resolved in favour of a more liberal estimate" ( Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [356], citing Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Limited and Others (1947) 74 CLR 358 at 373 - 374).

13 The applicant called evidence from Mr Fanning (ecologist), Dr Webb (hydrologist), Mr Varga (traffic engineer), Mr Rhodes (planner), Mr Meredith (quantity surveyor) and Mr Neskovski (valuer). The respondent called evidence from Dr Clements (botanist), Dr Ambrose (zoologist), Mr Rowbottom (hydrologist), Mr Brogan (transport planner), Mr Sanders (planner), Mr Saunders (quantity surveyor) and Mr Lunney (valuer). The respondent also called evidence from Mr Shatford, one of its officers responsible for dealings with land.

14 Both valuers used the before and after method (relying on comparable sales) to found their opinions with respect to the total compensation payable to the applicants by reason of the acquisition (excluding disturbance). This method was described as according with conventional valuation principles in RTA v Muir Properties Pty Ltd [2005] NSWCA 460 at [103] - [104]. Both assumed that the hypothetical buyer (before and after acquisition) would have obtained expert advice about the development potential of the land.

15 Given the size of the land, the nature of the vegetation upon it, the presence of Maxwells Creek on its eastern boundary and clear potential for flooding from that creek, I accept that the hypothetical buyer would have obtained expert advice about various potential constraints on development and likely development costs. I also consider that the hypothetical buyer of land of this size and character would be reasonably sophisticated. While the hypothetical buyer would obtain expert advice on various issues, the buyer would ultimately deal with the advice as a whole. The buyer would bring to bear upon that advice their own sense of the relevant circumstances and probable outcomes in terms of likely development potential and constraints.

16 With these matters in mind, I deal with the issues in the following order: - (i) the issue of the zoning east of Ash Road at the acquisition date, (ii) the views of the hypothetical buyer about the expert advice they would have obtained relating to various circumstances affecting the land, (iii) the comparable sales relied on by the valuers, and (iv) the value of the land (before and after acquisition) at the relevant date. In so doing, I have been assisted by a view of the land and its surrounds, including each of the comparable sales relied on by the valuers.

17 At the acquisition date, the whole of the land west of Ash Road (and Ash Road) was zoned 4(a) Industrial. The whole of the land to the east of Ash Road was zoned 5(a) Special Uses - Drainage. In the 5(a) zone, limited uses are permissible with consent. Clause 55 of the Liverpool Local Environmental Plan 1997 ("the 1997 LEP") provided that the owner of land so zoned may request the Council to acquire the land. The Council was obliged to acquire the land in the circumstances identified in the clause. Clause 10(11) made development of such land for any purpose permissible with consent, but only if it would not render the land unfit for the land use for which it may be required to be acquired. Clause 24 provided for development permissible in an adjoining zone to be carried out on land zoned 5(a), but only in the circumstances specified. At this stage, I will assume that land zoned 4(a) would be decreased in value by the imposition of a 5(a) zoning, despite cll 10(11), 24 and 55 of the 1997 LEP. The question is whether any such decrease in value was caused by the proposal to carry out the public purpose for which the land was acquired (s 56(1)(a)).

18 The public purpose for which the land was acquired was said in the Gazette notices to be "for the purposes of the Roads Act 1993". It is not in issue that the particular purpose of the acquisition was the provision of the M7. The scope and genesis of that proposal, however, is in issue.

19 The Prestons Industrial Release Area was released for industrial development from about 1982 onwards. The land was included within a second stage of the release pursuant to draft LEP 201 (which rezoned land in the release area from non-urban to Industrial 4(a)). Draft LEP 201 was made on 12 October 1990, but the area to the south of Jedda Road (including the land) was deferred from that instrument. On 28 February 1992, the deferred area (including the land) was rezoned to 4(a) Industrial by the making of LEP 243. LEP 243 zoned the whole of the land both west and east of Ash Road 4(a) Industrial, other than a strip of land with an average width of 20 metres on the eastern boundary of the land (formed by Maxwells Creek), which was zoned 5(a) Special Uses - Drainage.

20 Liverpool Local Environmental Plan 1997 was made on 29 August 1997. The 1997 LEP zoned all of the applicants' land to the west of the unformed Ash Road 4(a) Industrial (as did LEP 243). The 1997 LEP zoned all of the applicants' land to the east of the unformed Ash Road as 5(a) Special Uses - Drainage (unlike LEP 243). The applicants submitted that the 5(a) zoning east of Ash Road must be disregarded in the before situation under s 56 of the Just Terms Act, as that zoning was caused by the proposal to carry out the public purpose for which the land was acquired (that is, provision of the M7).

21 In Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407 Basten JA (with whom Beazley JA and Stein AJA agreed), insofar as relevant, said that s 56 is not engaged by steps preparatory to a proposal, but concrete steps to achieve an identified aim (at [39] and [82]). Further, that in most cases involving a failure to change a zoning, it will be inappropriate to treat the land as having been rezoned (at [83]). In all cases, "it is necessary to distinguish between conduct which constitutes a proper exercise of planning powers irrespective of the ultimate resumption and a use of planning powers in pursuit of a proposed resumption" (at [85]).

22 In this case, unlike Walker Corporation , the issue is not the failure to change a zoning. Apart from the 20 metre strip, the land to the east of Ash Road was zoned 4(a) Industrial in 1992, before any proposal to provide the M7.

23 In Roads & Traffic Authority of New South Wales v Perry and Another (2001) 52 NSWLR 222 Handley JA (with whom Powell and Hodgson JJA agreed) adopted that part of Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307 at 315 where Lord Hope of Craighead said: "[T]he whole question must be approached upon a consideration of the state of affairs which would have existed if there had been no scheme" (at [14]). Hence, "[t]he Pointe Gourde principle requires the court to identify "the scheme for which the property is compulsorily acquired": Fraser and Others v City of Fraserville [1917] AC 187 (at 194) cited (at 227 [16] supra).

24 In Smith v Roads and Traffic Authority of New South Wales [2005] NSWLEC 438 at [120], McClellan J identified that the decision in Walker Corporation confirmed that "once it has been determined that the zoning which actually exists at the date of acquisition should be disregarded, proper enquiry must be made as to the circumstances which would otherwise have existed at that date. Along with other matters that factual enquiry will be informed by an examination of the circumstances which existed at the time when the relevant public purpose was first initiated".

25 In Emerald Quarry Industries Proprietary Limited v Commissioner of Highways (South Australia) (1979) 142 CLR 351 at 357 Gibbs J cited Lord Russell of Killowen in Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 at 434 that "[u]nder the principle in Pointe Gourde …the landowner cannot claim compensation to the extent to which the value of his land is enhanced by the very scheme of which the resumption forms an integral part: that principle, in their Lordships' opinion operates also in reverse." Gibbs J (also at 357) observed that it "will sometimes be difficult to determine whether a change in value or in circumstances is due only to the scheme underlying the resumption, or to other causes as well", and referred to another decision of the trial judge ( Crompton v Commissioner of Highways (1973) 5 SASR 301 at 310) where the trial judge had referred to the potential for multiple causes to effect value.

26 In contrast to the observation in Crompton at 310, the effect on value of the imposition of a zoning is indivisible. In Blacktown City Council v Lasseter (unreported, Court of Criminal Appeal, 5 December 1996), Beazley JA (Cole and Priestley JJA agreeing) characterised the causal requirement as one of "sufficient connection" between the relevant condition of the land and the resumption. The decisions referred to in Smith support a "but for" approach to the question of causation.

27 The Council's planning for the Prestons Industrial Release Area, insofar as relevant, shows that in March 1992 the Council received the Hoxton Park Stage II Release Area Total Catchment Management Study (Kinhill engineers). A plan, 17/94, is described as the adopted Trunk Drainage Strategy. It included an area designated as Basin 18. The whole of Basin 18 was south of the land. Basin 18 was part of a scheme of such basins, intended to manage the flow of waters in the catchment assuming its release for urban development (basically, that post-development flows should remain the same as pre-development flows). This approach obviated the need for individual on-site detention basins or compensatory excavation to ameliorate the impacts of urban development. The catchment wide basins were to be funded through the Council's s 94 contributions plan.

28 In February 1993, Kinhill prepared the Cabramatta Creek Catchment Management Study for the Water Board. This report included a plan that included an area designated as long-term floodway extension east of Ash Road, between Basin 18 and Jedda Road. On or about 21 July 1993, the Council adopted a landfill strategy plan for the Prestons Industrial Release Area. That plan included Basin 18 south of the land in the same area as shown on the earlier plans, and a drainage channel north of Basin 18, generally consistent with the 5(a) zoned land on the 1992 zoning map, linking Jedda Road with Basin 18. That plan did not adopt the "floodway" proposal in the 1993 Kinhill study.

29 Council documents from 1994 to 1995 referred to the respondent having notified the Council of a proposal to link the M5 at Prestons with Cecil Park. This was later absorbed into the M7 proposal (which links the M5 at Prestons with West Baulkham Hills). Correspondence from the respondent to the applicant dated 8 January 1996 shows that, by that time, the M7 (Western Sydney Orbital) proposal was well advanced. On that date, the respondent wrote to the applicant Michael Nasser, enclosing two sketches of five options for the route of the M7. Two of the options passed through the applicants' land and three through Basin 18. The covering letter to Mr Nasser stated that Option 5 (or a variation) could be the preferred line. Option 5 passed through the middle of Basin 18 and through the applicants' land. I infer that the same information must have been available to the Council.

30 In October 1996, the respondent communicated to the Council that the environmental impact statement for the M7 was nearing completion and was to be exhibited late in 1996 or early in 1997. At around the same time, the Council was preparing and exhibiting the planning instrument that became the 1997 LEP. In the final iteration of the draft LEP as exhibited the land to the east of Ash Road between Kurrajong and Jedda Roads, which had been zoned 4(a) in 1992, was zoned 5(a) Special Uses - Drainage. This zoning was to accommodate a series of detention basins. A letter dated 24 June 1997 to the owner of 48 Jedda Road in the Prestons Industrial Release Area relating to that owner's submission to the exhibition of amendments to the draft LEP (then dated 1996) stated that the Council had resolved to adopt the draft LEP on 16 December 1996. The submission had objected to the proposed detention basin on that property. The Council's response was that: Council's Drainage Assets section requested this basin to make up for volume expected to be lost by the proposed Western Sydney Orbital Highway and the landfill strategy for the Prestons Industrial

31 Correspondence between the Mayor of the Council and the Minister for Roads continued throughout this period. One of those letters stated "[u]p until now, Council has co-operated with the Commonwealth by not rezoning lands affected by the proposed WSO". In the context of the correspondence as a whole, I construe this as a reference to land zoned non-urban but intended for release for residential purposes and known as Precinct 3A (a different area from the applicants' land). A letter dated 30 July 1997 disclosed a change in the anticipated provision of the M7 in this period due to a change in the Federal Government funding for the project. The terms of that letter contrast those of the letter received by the Council on 15 October 1996. The 15 October 1996 letter had been to the effect that construction of the M7 would commence on approval, which was anticipated by mid 1997. The 15 October 1996 letter was two months prior to the Council's adoption of the instrument that became the 1997 LEP. The 30 July 1997 letter was six months after the Council had adopted the draft LEP and one month before the Minister made the LEP.

32 The 1997 LEP was made on 29 August 1997. The zoning map shows a 5(a) zone of about 250 metres wide above Kurrajong Road, narrowing to about 175 metres wide at the land (extending from the eastern boundary of Ash Road into the Showground site). Above Jedda Road, the 5(a) zone narrows to about 30 or so metres. Below Kurrajong Road the 5(a) zone also narrows to about 40 metres.

33 On 26 September 1997 (after the 1997 LEP was made and, I note, the 30 July 1997 letter suggesting that the M7 construction was in abeyance due to Federal Government funding changes), the respondent forwarded a facsimile to the Council which stated that "[t]he site for Basin 18 is affected by the proposed WSO. The location is as per your plan - copy follows. If the basin can be relocated or modified the RTA may be prepared to compensate Council. Please advise of options." The attached plan depicted the M7 passing through Basin 18. That plan was described as "your" (that is, the Council's) plan. In other words, the Council must have sent the plan to the respondent before 26 September 1997.

34 All other facts post-date the 1997 LEP by a significant period. In March 1999, Bewsher Consulting prepared a working paper for the Council relating to the Council's basin strategy. The review stated that the Council's strategy was not "achieving the objectives originally intended" as development that had occurred to date in the release areas had already caused an increase in peak flows at creeks including Maxwells Creek (p 3). The review referred (p 16) to the Council's recent proposal to divide Basin 18 into two or possibly three stages, extending from Jedda Road to Kurrajong Road. It identified a required main basin volume, excluding the M7 and other items, of 240,000 cubic metres. The Kinhill recommended volume in 1992 was 170,000 cubic metres.

35 The total storage in the main basin recommended by Bewsher in March 1999 was 330,000 cubic metres (including storage required for the M7 and the basin site itself, but not lost storage from the fill strategy of 80,000 cubic metres). The M7 was identified as generating an additional storage requirement of 50,000 cubic metres. The review continued "[i]t may be feasible to compensate for the landfill [i.e., the 80,000 cubic metres] by additional channel works between Basin 18 and Jedda Road, however the compensatory flood storage for the Western Sydney Orbital and the basin site itself will most likely have to be provided within Basin 18".

36 Appendix D to the review dealt specifically with Maxwells Creek. It stated (p 2) that in 1997 the Council undertook a review of potential detention basin sites within Maxwells Creek and recommended a strategy which involved making Basin 18 two basins - 18C adjacent to the Showground site of 120,000 cubic metres and 18A located immediately downstream of Basin 18A of 61,000 cubic metres. Immediately downstream of the Showground is the applicants' land. The 1997 Council review is not in evidence.

37 In May 1999 (after the rezoning to 5(a) but before the acquisition), Bewsher Consulting finalised the Cabramatta Creek Floodplain Management Study and Plan on behalf of the Council and Fairfield Council. That report referred to the 1993 Kinhill study. The report stated that deficiencies in the Council's basin strategy had been identified arising from the same matters referred to in the March 1999 review. With respect to the M7, the report said that a large proportion of the route was within the floodplain and likely to have a significant impact on flood behaviour arising from loss of floodplain storage, reduction in creek capacity, increase in impervious area, local increases in flood levels and the route which passed through several basins.

38 The environmental impact statement for the final M7 proposal was exhibited in 2000. The respondent's formal determination under Pt 5 of the Environmental Planning and Assessment Act 1979 (to proceed with the proposal) was made on 12 March 2002. In January 2002, Bewsher Consulting and WBM Oceanics prepared a report on the M7 for the respondent. The report reiterated the floodplain impacts of the M7 contained in the May 1999 report. The report stated that the M7 would be located in the wide floodplain of Maxwells Creek, essentially all the way between the M5 and Jedda Road.

39 Mr Rhodes, planner, said that he understood that the rezoning east of Ash Road in 1997 was caused by the need to alter the drainage strategy in that area due to the M7. The land had been zoned 4(a) in 1992 and the M7 was the only new factor after that date. Mr Rhodes agreed that he was relying in this regard on the sequence of events rather than any specific document. Mr Sanders, planner, said he did not know why that land had been rezoned from 4(a) to 5(a).

40 Dr Webb, hydrologist, said that his review of the documents led him to conclude that at the same time the Council recognised that the volume requirements for Basin 18 had to be increased, the M7 was proposed through the location for the basin. The M7 had a large impervious footprint, would generate its own requirements for additional flood storage volumes, and was proposed to be located on the land best suited for such additional flood storage. Dr Webb described this as a "squeeze coming on through this whole area between Kurrajong Road and Jedda Road", leading to a series of attempts to redesign and increase storage in the area. I understood Dr Webb to mean that the "squeeze" was apparent by 1996 - 1997, prior to the 1997 LEP being adopted by the Council and made by the Minister.

41 Mr Rowbottom, hydrologist, stated in his report that Basin 18 had been enlarged to allow for loss of floodplain storage associated with the filling of land west of Ash Road and the M7 (p 7). In his oral evidence, Mr Rowbottom concluded that the applicants' land east of Ash Road had been rezoned 5(a) due to the flooding characteristics of that land rather than the M7. Mr Rowbottom said that the 1993 Cabramatta Creek study was known to the Council and had recommended that area for a long-term floodway. Although Mr Rowbottom accepted that this proposal had not been adopted by the Council, he considered the use of the rezoned land for basin storage was consistent with the Council's intention to do major drainage works on the rezoned land, being an intention having its genesis in 1993 (prior to the M7). Hence, Mr Rowbottom's opinion was that the 5(a) zoning was imposed so as to accommodate a floodway or the Council's own trunk drainage requirements. While he thought it essentially a planning issue, Mr Rowbottom said that it would be "very unusual" for the Council to rezone land in 1997 because of the M7, at a time when the environmental impact statement for the proposal (and thus its precise route) had not been finalised. He also observed that the M7 additional storage requirement was 50,000 cubic metres out of a total of 410,000 cubic metres (that is, 330,000 cubic metres plus the 80,000 cubic metres for filling west of Ash Road) or 12%.

Conclusions on zoning east of Ash Road 42 I do not accept the respondent's submission that the earliest date on which the "proposal" existed was in 2000 when the environmental impact statement was exhibited. The proposal to carry out the public purpose (being the provision of the M7) existed by 1995 (if not earlier). The respondent had taken steps at that time in pursuit of its proposal. It had put the Council and the applicants on notice of its intention to construct the M7 and identified the likely and preferred route options. It was obvious from early 1996 that this public purpose involved a large impervious area very likely to be located in the floodplain between Kurrajong Road and Jedda Road, and likely to traverse the land which the Council had set aside for Basin 18.

43 Before the 1997 LEP was made the Council said to an objector that its reasons for the rezoning of the land east of Ash Road from 4(a) to 5(a) were twofold - its own drainage strategy and the M7. I accept Dr Webb's opinion that the convergence of events involved a "squeeze", which the Council recognised before the 1997 LEP was finalised.

44 I do not accept Mr Rowbottom's opinion that the genesis of the change to the 5(a) zoning can be sourced to the 1993 study. Although I accept that the Council would have had access to that information, the floodway proposal was identified as "long-term" and there is no evidence that the Council adopted it. To the contrary, later in 1993 the Council adopted, and thereafter acted in accordance with, a landfill strategy that did not provide such a floodway. I also do not accept Mr Rowbottom's opinions that the M7 was unrelated to the rezoning because of the date of the rezoning (29 August 1997) compared to the finalisation of the M7 preferred route (2000) or the proportion of flood storage directly attributable to the M7 (12%). The opinion is inconsistent with the Council's disclosure of its reasons before the 1997 LEP was made and the circumstances, as communicated by the respondent to the Council, before the Council adopted the instrument which became the 1997 LEP in December 1996.

45 The respondent submitted that: - (i) it did not request the rezoning, (ii) there was no evidence that the Council imposed the rezoning because of a perceived desire of the respondent or because of the M7 proposal, and (iii) Dr Webb's opinion was pure speculation. It emphasised the 30 July 1997 letter as disclosing a high level of uncertainty about the construction of the M7 given the Federal Government's changed position on funding, and that this pre-dated the rezoning on 29 August 1997. That letter must be considered in the context of the processes of Part 3 of the Environmental Planning and Assessment Act 1979 for preparing, exhibiting and making local environmental plans. The Council had exhibited and adopted the draft LEP by December 1996. The Council did so in circumstances where the respondent had said that the M7 proposal would be determined by mid 1997, with construction to commence immediately thereafter. Moreover, the 26 September 1997 letter suggests that it would be wrong for me to infer that the M7 proposal was understood by the Council to be in abeyance as at July 1997.

46 The statutory reference is a decrease in value caused by the proposal. If the rezoning resulted from a direction or request by the respondent, the required causal connection is likely to be found. Equally, if the rezoning resulted from the Council's own planning objectives, the required causal connection would not be found (see, by analogy, Griffith City Council v Polegato and Another (1990) 20 NSWLR 696 at 701 and Roads and Traffic Authority of New South Wales v Mosca [2006] NSWCA 159 at [19]). The absence of a direction or request is not necessarily determinative of the factual issue. See Housing Commission of New South Wales v San Sebastian Proprietary Limited and Others (1978) 140 CLR 196 at 207.

47 In this case, the rezoning did not result from a unilateral act by the Council, disconnected from the steps which the respondent had taken in pursuit of the M7 proposal. The respondent had formulated the proposal, identified the likely and preferred route options, worked out the time for delivery, and informed the Council and the public to that effect. Most of the route options went through Basin 18, the planned flood storage for part of the industrial release. The rezoning of the 4(a) land east of Ash Road to 5(a) enabled Basin 18 to be relocated and reconfigured, outside the preferred route of the M7, and enlarged to accommodate the storage requirements of the industrial release and the M7. These facts disclose a direct and substantial causal connection between the M7 proposal and the rezoning of the 4(a) land east of Ash Road to 5(a) to accommodate the flood storage to be displaced by the M7, and the increased flood storage needed for both the overall drainage strategy and the M7.

48 I am satisfied that there were two reasons for the rezoning of the land east of Ash Road - the inadequacies of the basin strategy and the future need to accommodate the M7 within the floodway, both of which were apparent to the Council before the 1997 LEP was adopted and made. The rezoning of the applicants' land east of Ash Road from 4(a) to 5(a) was the result of the convergence of these reasons. Would the rezoning from 4(a) to 5(a) have occurred absent the M7 proposal and by reason of the perceived inadequacies of the basin strategy alone (in which event the required causal connection should not be found)? I am satisfied, for the reasons given above, that the convergence of these events (the "squeeze", to use Dr Webb's word) was the necessary cause of the rezoning. I do not accept that the deficiencies in the Council's basin strategy alone would have caused the Council to rezone land from 4(a) to 5(a) in 1997, when such land had been released from a non-urban zoning only five years earlier (in 1992).

49 Hence, any decrease in the value of the applicants' land east of Ash Road (excluding the 20 metre strip which was zoned 5(a) in 1992) must be disregarded in the before situation, because that decrease in value was caused by the proposal to carry out the public purpose for which the land was acquired. Prior to the 5(a) zoning, the land east of Ash Road (but for a 20 metre strip) was zoned 4(a). In the before situation, it must be assumed that the zoning position would not have changed. Nothing in s 56(1), however, requires me to disregard the fact that the Council's basin strategy was known to be deficient well prior to the acquisition date of 10 October 2003. I deal with that issue below, in the context of the evidence about flooding.

50 Dr Clements and Mr Fanning gave evidence about vegetation.

51 Mr Fanning inspected the land in 1995, 1996, January 2004 and subsequently. His January 2004 inspection was for the purpose of preparing a report to the Valuer-General on potential ecological and conservation constraints to development of the land. The January 2004 report is in evidence. This report was used by planning consultants (Hassall and Associates) to prepare a further report to the Valuer-General dated February 2004 on the development potential of the land. The February 2004 report is also in evidence.

52 In the January 2004 report, Mr Fanning said that that none of the vegetation on the land was in excellent or even very good condition (in contrast to the open space reserve land to the south). Areas he mapped as moderate constraint were the best examples of native vegetation on the land. No part of the land was subject to a high conservation constraint. It was likely that the moderate constraint areas of vegetation would be retained in any development of the land. Some incursions into those areas, or potentially some low key development, would be acceptable, but it was likely that an assessment under s 79C of the Environmental Planning and Assessment Act 1979 would lead to the conclusion that those areas of vegetation ought to be substantially retained in any future development. Determining areas of the land appropriate for development depended on a range of factors, including "political" considerations.

53 In his evidence in the proceedings, Mr Fanning confirmed that he considered that the land along its eastern boundary (Maxwells Creek) and in its north-eastern corner supported the Sydney Coastal River-Flat Forest (SCRFF) community. The western part of the land supported regenerating Cumberland Plain Woodland (CPW) community. The former was listed as an endangered ecological community under the Threatened Species Conservation Act 1995 in 1999, and the latter in 1997.

54 In Mr Fanning's opinion, the SCRFF vegetation on the eastern boundary of the land was substantially cleared and disturbed, other than in the north-eastern corner. The CPW vegetation to the west of Ash Road had been subjected to a regime of tree removal and slashing since about 1994. At the acquisition date, canopy trees were limited to stands. The understorey was disturbed and modified regenerating open woodland typical of much of the remaining vegetation in western Sydney. The height of the regenerating bushland was substantially less in January 2004 when he visited the land (about 1 metre or so), than on the view on 3 May 2006.

55 Mr Fanning said that, consistent with his opinion in 2004, he would have advised the hypothetical buyer at the acquisition date that none of the land was subject to high conservation constraint, some of the land was subject to moderate conservation constraint, and most was subject to low to low-moderate conservation constraint. The areas of moderate constraint value were a constraint to development, which would need to be the subject of more detailed investigation. Development of the whole of the land could not be expected. Having regard to the range of factors he had in mind in his earlier report, Mr Fanning would have advised that development must retain (and rehabilitate): - (i) a 20 metre band of vegetation along Maxwells Creek and the patch of vegetation in the north-eastern corner, and (ii) a band of approximately 50 metres of vegetation on the western boundary (in the mapped moderate constraint area). Otherwise, the hypothetical buyer could reasonably expect the land to be able to be developed, subject to preparation of a species impact statement. Mr Fanning said "there are many, many, many examples of sites in New South Wales for which species impact statements have been required over which development has occurred".

56 Mr Fanning readily accepted that his mapping of development constraints was broad-brush, and had not been based on the type of systematic quadrat surveys carried out by Dr Clements. He considered his mapping a "rough guide", which would be refined through the development application process, as part of which further work would need to be done. He agreed that the 50 metre band on the western boundary was a narrow part (perhaps less than one quarter) of the land he had mapped as subject to moderate constraint in 2004. He accepted that he would also have advised a buyer that there was an element of risk involved with respect to the vegetation on the land (albeit not what he considered a high element of risk given the circumstances of the land). In dealing with regulatory authorities, a band of up to 100 metres of vegetation on the western boundary might be required to be retained (which would be about half of his mapped moderate constraint area), as well as some possible compensatory habitat elsewhere. These opinions applied both before and after acquisition.

57 Dr Clements inspected the land in October 2004 when retained by a prospective purchaser of the residue land and an adjoining site fronting Bernera Road. The purchaser had noted that their site inspection showed a cleared site with development potential, but that a Council map suggested "the total site is to remain". The map attached to the email instructions to Dr Clements apparently had no issue date. The version tendered in evidence had an issue date of 8 May 2006 and a legend "Extract of Map - Biodiversity Strategy Conservation Significance (October 2003)". This map shows the land designated as mainly conservation significance "core - regional", with parts as "support for core". Dr Clements' draft conclusion at 1 November 2004 was that prior to recent clearing, it was likely the residue land supported an endangered ecological community. She recommended that the prospective purchaser seek a legal opinion on the implications of the recent clearing. This map was not referred to in Dr Clements' draft advice, nor in her written evidence in these proceedings.

58 For her evidence in the proceedings, Dr Clements reviewed the available literature from 1991 to date and caused to be carried out selective sampling of the land. This involved selecting twenty quadrats and systematically identifying plant species and frequency in the quadrats. Dr Clements noted in her report that a 1997 National Parks and Wildlife study of a 100 hectare area (of which the land formed part) concluded that remaining bushland in the area was of high conservation value, and that the cleared land had conservation value due to the remaining natural soil profile. Dr Clements said that the whole of the land supported the regenerating CPW community, the vegetation may be consistent with another endangered ecological community (Shale Gravel Transition Forest, listed in or about 2002) and that the SCRFF community was limited to one quadrat.

59 Dr Clements concluded that there were major flora constraints on the land that would need to be considered prior to any future development. She disagreed with Mr Fanning's constraint maps. Dr Clements said in her report that her advice to the hypothetical buyer would have been that if the whole of the land were to be developed, then off-setting would be required (that is, as I understand it, replacement conservation land provided off-site). She noted that the off-setting ratio applied to the M7 had been 1 developable to 2 conservation.

60 In their joint statement, Dr Clements and Mr Fanning agreed that the land had been largely cleared in 1994 and 1995 (before the listing of any of the relevant endangered ecological communities), and that parts of the land had continued to be cleared thereafter. At the acquisition date, the cleared vegetation was regenerating. Dr Clements also said "from experience with other development in Liverpool LGA, I would expect at least half of the entire landholding to be constrained".

61 Dr Clements explained in oral evidence that her investigations showed that the land had a high species diversity, was clearly regenerating CPW at the acquisition date (an opinion with which Mr Fanning agreed, with respect to the land west of Ash Road). The 50% constrained opinion was the product of Dr Clements' experience in respect of a site within the Prestons Industrial Release Area known as the Tesrol site (which had been subject to clearing in the mid 1990's and was criss-crossed by tracks), and another site at Minto. She said that, on this basis, she would have advised the hypothetical buyer as follows: A third would be developable in terms of his bidding and at the best to expect to get a half. So somewhere between a third and a half would be what he could develop on the land and for his bidding process go for a third and then expect, after a lot of negotiation, he might get a half.

62 Dr Clements considered the preparation of a species impact statement quite a serious thing. Dr Clements explained that: …what happens after you have purchased means you go through a full analysis of what is potential that can be developed where when it's advice to a potential purchaser, one takes a very conservative attitude about what is likely to be constrained or potentially constrained…

63 Mr Fanning considered that the Tesrol site was different from the land for numerous reasons, including: - (i) the Tesrol site had long been identified as of conservation value, (ii) a threatened species (Acacia pubescens) was present in abundance on the Tesrol site, (iii) another threatened species, the Cumberland Plain Land Snail, was also present on that site in abundance, (iv) although partially cleared in the mid 1990's, that site had vegetation in good to excellent condition on it, and (v) Mr Fanning would have mapped that vegetation as high constraint value.

64 Mr Fanning criticised Dr Clements' selective sampling method as reflecting a bias towards the edges of the land and better vegetated areas. The applicants, in submissions, also criticised the method as not reflecting the approach likely to be adopted in advising a hypothetical buyer.

65 The hypothetical buyer and seller would have had access to other material to assist them in assessing the ecological advice they would have received.

66 The material reasonably proximate to the acquisition date (excluding material created for the purpose of the M7) included the 1997 zoning map. The map shows a small part only of lot 286 (on part of its northern boundary) hatched as environmentally significant land (and thus subject to cl 16 of the 1997 LEP). Most of the lots to the north of the land are shown as environmentally significant land, the whole of the 6(a) land to the south is so shown, as is much of the land in and around what I understand to be the Tesrol site. The hypothetical buyer would also have been aware that the lots to the north of the land had been cleared after 1994 and before 1998 (from the aerial photographs), well prior to the acquisition date.

67 A National Parks and Wildlife map dated 2002 shows the whole of the area to the south and a band to the west of the land as vegetation units 103 and 11, which are apparently SGTF and alluvial woodland vegetation units respectively. That map shows an area in the western part of the land as unit 103 but with less than 10% canopy cover (broadly similar to Mr Fanning's moderate constraint area), an area in the middle of the land as the same designation, and a narrow band on the eastern boundary as unit 11 but less than 10% canopy cover. Another National Parks and Wildlife map, also bearing a 2002 date, shows the same mapped areas on the land as "support to core habitat". The core habitat includes the 6(a) land to the south and the band to the west mapped as units 103 and 11.

68 The species impact statement prepared for the M7 in 2000 is irrelevant in the before situation because the assumed hypothetical state of affairs excludes the direct and indirect effects on value of the scheme underlying the acquisition (s 56(1)(a) and, for example, Housing Commission of New South Wales v San Sebastian Proprietary Limited and Others (1978) 140 CLR 196 at 205 - 206). A map in the species impact statement shows the land east of Ash Road as cleared CPW. It shows the 6(a) land to the south and an area to the west of the land as CPW. It also shows the land as "cleared and regenerating" on a map designated "potential compensatory habitat" for the M7. That is, at one time, the applicants' residue land was nominated as compensatory habitat for the M7. That fact, and its effects, must be disregarded in the before situation.

69 In her primary report, Dr Clements did not refer to the Council map annexed to the 2004 instructions (showing the land as core or support conservation habitat) as relevant to her advice to the hypothetical buyer. The availability of that map at the acquisition date is unclear. Mr Fanning did not refer to the map. In these circumstances, I do not accept that this map would have been the subject of advice to the hypothetical buyer in October 2003. It is also possible that this map was affected by the M7 compensatory habitat proposal for the land. Another document, described by Mr Fanning as an Urban Development Framework, adopted by the Council in 2005, supports this inference. For these reasons, it would be inappropriate to give weight to this map in ascertaining how the hypothetical buyer would assess the circumstances of the land in the before situation.

70 A letter from the Council (the Team Leader - Drainage and Floodplain Assets) to Mr Sanders, the respondent's planning consultant, dated 13 January 2004, stated that the land had been removed from the Council's landfill strategy at that time "as Council possesses information indicating that filling of the subject lots would not be permitted due to environmentally significant vegetation. However, should the issues regarding environmentally significant vegetation on the site be resolved such that landfill is permitted, Council will revise the landfill strategy". A version of the Council's landfill strategy also showed the land with a handwritten notation on lot 25 "significant vegetation to be retained".

71 The information possessed by the Council is not identified in the letter. The letter is dated shortly after the acquisition. In their primary reports neither Dr Clements nor Mr Fanning referred to either of these documents as relevant to any ecological advice that they would have given to a hypothetical buyer. The plan showing the notation on lot 25 was forwarded under cover of a letter from the Council in 2005. The letter said that the attached plan takes into account the impacts of the M7 (which must be disregarded in the before situation). In these circumstances, I do not accept that these documents would have been the subject of advice to the hypothetical buyer in October 2003.

72 The respondent's valuer (Mr Lunney) referred to the development consent for the Liverpool Showground site, which included a condition for a 40 metre riparian zone (in contrast to Mr Fanning's opinion that a 20 metre retained vegetation zone from Maxwells Creek on the land would be required). The Showground consent is in evidence. It is dated 29 July 2005. Given that the Showground consent was granted about 19 months after the acquisition of the land, a hypothetical buyer of the land could not have taken the imposition of that condition into account.

73 Prior to the acquisition date, the Rivers and Foreshores Improvements Act 1948 operated to require approval to be obtained from the Department of Land and Water Conservation for development within 40 metres of protected waters. This would have resulted in the referral of any development application including such development to the Department as integrated development. The Department issued guidelines for such development in February 2000. These stated, amongst other things, that a riparian area of local native vegetation should be maintained and enhanced wherever possible adjacent to (relevantly) rivers, and that, generally, a minimum riparian area of 40 metres wide from the top of each bank was recommended for major watercourses and 20 metres for minor watercourses. Although the guidelines contain a note that they would apply until the introduction of the integrated water legislation, none of the material before me suggests any alteration to that basic position of the Department. The hypothetical buyer would have been aware (or made aware) of these guidelines.

74 Dr Clements raised the issue of the clearing (post 1997 in any event) being potentially illegal. Dr Clements said that the legality of the clearing was part of the foundation for her opinion that she would have advised the hypothetical purchaser to expect about a third (or, at best, half) of the land to be developable. The respondent submitted that the hypothetical buyer would be aware that development consent for clearing bushland was required since the coming into force of the 1997 LEP (by cl 10(16)), and that a licence to clear the endangered ecological community (CPW) was required since its listing as such on 27 June 1997. The respondent submitted that the hypothetical buyer would not assume that the clearing (presumably after 1997) was an advantage in obtaining the Director-General's concurrence to clearing the land (assuming a species impact statement was required - s 79B(3) of the EPA Act). Although the respondent raised s 56(1)(c) of the Just Terms Act, it did not ultimately rely on that section (for reasons I consider apparent when regard is had to the terms of the section).

75 The applicants pointed to a letter from the Council to Mr Nasser to the effect that the Council's records showed approvals to remove trees on lots 286 and 287, but not lot 25. The applicants noted the absence of any action taken by any regulatory authority in respect of the clearing which had commenced in or about 1994 (nearly ten years before the acquisition). A letter from the Department of Environment and Conservation to a solicitor employed by the respondent's solicitor dated 8 December 2005 (some two years after the acquisition) records that the Department was conducting a "confidential investigation" into alleged breaches of the National Parks and Wildlife Act 1974 that may have taken place on lots 41, 42 and 43 and that may have damaged endangered ecological communities.

76 The illegal clearing issue is immaterial for a number of reasons. (1) The land cannot be assumed to be in a condition different from its actual condition at the date of acquisition ( Collins and Another v Council of the Shire of Livingstone (1972) 127 CLR 477 at 497, also Fraser and Others v City of Fraserville [1917] AC 187 at 194 cited in Roads and Traffic Authority of New South Wales v Perry and Another (2001) 52 NSWLR 222 at 227).

(2) There was no material from which a hypothetical buyer, as at 10 October 2003, would have inferred that any regulatory authority was contemplating taking any action with respect to the clearing of the land. The absence of any action in the face of clearing since 1994 would have been plain to the hypothetical buyer. An investigation in 2005, two years after the acquisition, cannot be said to confirm some foresight about action for alleged illegal clearing. The 2005 "confidential" investigation is irrelevant.

(3) Dr Clements, in her report for the purpose of the proceedings (in which she specifically addressed the advice she would have given to a buyer of the land), did not suggest that she would have raised any concern about the legality of the clearing with a prospective purchaser. Nor was the issue raised subsequently in the joint statement prepared by Dr Clements and Mr Fanning. The issue emerged only in Dr Clements' oral evidence as part of the reasoning process she used to support her opinions.

77 Hence, I do not accept that a hypothetical buyer in October 2003 would have been concerned about the potential consequences of possible illegal clearing of the land, or that such a consideration would have entered into the buyer's deliberations.

78 Dr Ambrose and Mr Fanning gave evidence about the presence of the Cumberland Plain Land Snail on the land. This snail is listed as an endangered species under the Threatened Species Conservation Act 1995 (listed in 1997).

79 Dr Ambrose and Mr Fanning agreed that the small number of snails on the land at the acquisition date could easily be translocated to other more suitable habitat in the locality. Mr Fanning and Dr Ambrose also agreed that most of the land was unsuitable or marginal snail habitat at the time of acquisition, although Dr Ambrose observed that he could not comment on its suitability prior to clearing (see above).

80 I find that the hypothetical buyer of the land at the acquisition date would have: (1) obtained the advice of an ecological consultant;

(2) recognised that the land had been cleared, and supported patches of mature trees and varying quality of understorey;

(3) been informed by the ecologist that the vegetation across the land was the endangered ecological community CPW, which had been subject to a regime of clearing over a number of years and exhibited varying degrees of intactness and weed infestation, but was regenerating as the endangered ecological community;

(4) been informed that the land to the east of Ash Road along Maxwells Creek also contained an endangered ecological community SCRFF, which was degraded in terms of weed infestation and intactness, but which in part formed a riparian zone or area for Maxwells Creek;

(5) been informed that that development of the land would require preparing a species impact statement, primarily to address the clearing of CPW (but possibly also dealing with the SCRFF and snails);

(6) recognised that the presence of the endangered ecological community CPW, in particular, would present a constraint to development of the land;

(7) recognised that the riparian vegetation would also present a constraint to development; and

(8) understood that development consent for clearing would require the concurrence of the Director-General of National Parks and Wildlife.

81 The hypothetical buyer would have recognised that assessing the expected extent of the constraint to development presented by the vegetation involved making a judgment about the relative weight to accord to various, and potentially inconsistent, objectives. Obtaining ecological advice would not have been seen as removing the uncertainties inherent in this judgment.

82 Although I do not consider the criticisms of Dr Clements' methodology were justified, I am satisfied that Dr Clements' opinion about the extent of the development constraint should not be accepted. First, Dr Clements' "one third" developable opinion was based on the off-setting ratio applied to the M7 itself. The off-setting ratio applied to the M7 (presumably over the whole of its length through four local government areas) does not immediately present a rational connection with the constraint to development presented by the vegetation on the applicants' land. Secondly, the hypothetical buyer would be likely to accept Mr Fanning's opinion that the Tesrol site was in a different position from the land at the acquisition date for the reasons he gave. Hence, Dr Clements' experience with that site would not be taken as a reliable indicator of development potential for the applicants' land. Thirdly, Dr Clements did not present any information in her primary report or joint statement about the Tesrol site (or the Minto site). Dr Clements gave no other basis for her opinion that one third to half the land would be developable. In the circumstances I have described, that opinion would not readily be accepted as the product of a careful process of reasoning, applying to the facts Dr Clements' specialised knowledge based on her study, training and experience.

83 For these reasons, the hypothetical buyer would not have accepted Dr Clements' opinion either at face value or as a reasonable assessment of the development constraints presented by the vegetation on the land at the acquisition date, particularly when weighed against all relevant circumstances pertaining to the land (its location, zoning and the context of surrounding land). I accept, however, Dr Clements' opinion that a hypothetical buyer would have been informed and would otherwise have known that the requirement to prepare a species impact statement was a serious matter and indicative of the fact that conservation of the vegetation on the land, given its status as an endangered ecological community, would be a material consideration for any development proposal. This supports my finding that that hypothetical buyer would have recognised the uncertainty affecting the required judgment about the constraint to development presented by the CPW vegetation regenerating across the land at the acquisition date.

84 Mr Fanning's approach to ecological constraint mapping was broad brush and rough, providing indicative constraint levels only, and would be recognised as such by the hypothetical buyer. I am satisfied that Mr Fanning has been far too sanguine about the constraints presented by the vegetation on the land at the acquisition date. Mr Fanning's opinions do not adequately reflect the status of the vegetation as an endangered ecological community, the significance of the rehabilitation of riparian areas, the weight which ought to be given to the National Parks and Wildlife Service 2002 mapping or the likely requirements for retaining part of the endangered ecological community through the species impact statement assessment process. If the hypothetical buyer had obtained advice consistent with that of Mr Fanning based on his mapping (that is, 50 metres to the west and 20 metres to the east to be retained - or about 1.8585 hectares of the land) the hypothetical buyer, in all of the relevant circumstances at the acquisition date, would have reached a conclusion far less optimistic than Mr Fanning about the level of constraint the vegetation presented.

85 As Mr Lunney observed, neither valuer made a specific allowance for risk associated with the vegetation over and above the areas for retention recommended by the ecologists, even though there may be a basis for so doing. While the valuers made no specific allowance for risk on this account (and, as such, I do not propose to do so), this circumstance applies to my findings below and is relevant to my consideration of the valuers' evidence about the comparable sales.

86 Resolving all doubts in favour of the applicants, I am satisfied that the hypothetical buyer would have expected a requirement to retain and rehabilitate the whole of the western moderate constraint area (as part of any overall industrial subdivision consent). This is an area similar to the National Parks and Wildlife 2002 mapping. The calculation of this area in the Hassall and Associates' report (which is very similar to Mr Fanning's mapping for the western area) is 3.48 hectares. While this area does not include an extension of the retained area to the northern boundary (which might also be required), it reflects the expectation that the hypothetical buyer reasonably could have had with respect to the western part of the land.

87 With respect to the eastern part of the land, given the presence of the endangered ecological community (albeit degraded), the National Parks and Wildlife 2002 mapping, Mr Fanning's moderate constraint mapping and the guidelines for treatment of riparian zones by the regulatory authorities available at the acquisition date, I am satisfied that the hypothetical buyer would have expected a 40 metre setback requirement to Maxwells Creek. This equates to a retained area to the east of Ash Road of about 11,020, sqm. I consider this position would have been effectively the same both before and after acquisition.

88 Dr Webb and Mr Rowbottom gave evidence on flooding and landfill.

89 Their evidence needs to be assessed in the context set by the 1997 LEP (disregarding the 5(a) zoning on that part of the land to the east of Ash Road previously zoned 4(a)). The 1997 LEP defined "flood liable land", identified any total catchment strategy as a relevant consideration for development (cl 13), contemplated that development would be carried out on flood liable land, specified relevant considerations for such development (cl 21, also cl 22), and contemplated that filling of land may be carried out and specified relevant considerations for such development (cl 26).

90 The Council adopted DCP 19 for the Prestons Industrial Release Area in 1991. Clause 9 identified that efficient stormwater and sewer systems could not be provided in the area without landfill. The clause stated a requirement that land be filled in accordance with the Council's general requirements and the landfill strategy plan. The Council adopted Development Control Plan No 6 for industrial development generally in March 1998. Clause 4.9 dealt with development on flood liable land. It contemplated the filling of such land (other than a "floodway" - an area where a significant volume of water flows during floods), provided not more than 10% flood storage was displaced.

91 Dr Webb and Mr Rowbottom agreed that the main source of flood impact was Maxwells Creek, not Cabramatta Creek. They agreed the land was shown on the Council's flood mapping at the acquisition date as mostly inundated in the 1% AEP event. They agreed that the Council's basin strategy was intended to avoid on-site compensatory storage requirements. They agreed that a landfill strategy from 1993 applied to the land and provided for filling of most of the land west of Ash Road. They agreed that various fill strategies appeared after 1993, but did not agree on the significance of these strategies. They agreed that, at the acquisition date, the land was not the subject of any landfill strategy, but disagreed on the reasons for its exclusion. Dr Webb thought this was primarily due to the M7, and Mr Rowbottom primarily due to environmental constraints (that is, the vegetation). In this respect, Mr Rowbottom relied on a version of the landfill strategy noted "significant vegetation to be retained" (see the comments in [70] and [71] above).

92 In Dr Webb's opinion, the various landfill strategies were intended to depict design contours that would make properties flood free in the 1% AEP event. Dr Webb referred to a series of Council documents that disclosed that the Council had treated land filled in accordance with its landfill strategy as developable and acceptable in terms of flooding. Dr Webb said that the Council's flood liable land mapping failed to take into account the filling that had taken place and thus did not show reliable flood levels for the land. He concluded that the M7 affected all Council action relating to filling of the land after the 1993 strategy and that, disregarding the M7, the 1993 landfill strategy would have remained applicable. Under this strategy, filling of the land was straightforward and simple: the land east of Ash Road was to be excavated and the land to the west filled, and the cut/fill balance resulted in a surplus of 6,500 cubic metres of fill. This represented the "before M7" position.

93 The "after M7 position", according to Dr Webb, was far more complicated than the "before". In short: - (i) the land east of Ash Road had all been zoned 5(a) (see above), (ii) the M7 had caused damming effects on the land and caused a major afflux in the 1% AEP event. This was disclosed in the Bewsher Consulting and WBM Oceanics report on the M7 from January 2002 which identified that the M7 would result in some localised "unacceptable impacts" that would need to be addressed either through land acquisition or refinement of structures without major changes to the design concept. Further, a design change to the M7 culverts had exacerbated this damming effect, (iii) there was no applicable landfill strategy, and thus uncertainty about the capacity to fill the land and the required levels, (iv) nevertheless, it was apparent that a further 1.5 to 2 metres of fill above the 1993 fill level would be required to fill the land west of Ash Road (180,000 to 240,000 cubic metres).

94 In Mr Rowbottom's opinion, disregarding the M7, the relevant flood levels were those based on the Council's 2001 flood study, which would have been available at the acquisition date through notations on the s 149 certificates for the land. Further, the Council's flood liable land map disclosed that about 65% of the land would be inundated in the 1% AEP event. As such, the Council's Floodplain Management Plan would apply. That plan provided that the minimum development level was the 1% AEP event level, and filling above that level would require compensatory storage. A 1997 version of the fill strategy existed which appeared to be free from M7 influences. The landfill strategy did not provide levels above the 1% AEP event level (as it was primarily intended to provide for positive drainage), although the Council was likely to permit development below that level provided it complied with the landfill strategy levels (for example, with raised floor levels of buildings). Even after filling in accordance with the strategy an area of 4.7 hectares west of Ash Road was still flood liable (with depths varying from 600mm adjacent to Ash Road to zero at a distance of 180 metres from Ash Road). The land between Ash Road and Maxwells Creek was a "high hazard floodway" which would not have been able to be filled. Most of the land to the west of Ash Road would be considered "low hazard floodway/flood storage". A drainage channel 10 metres wide on the north of the land was also required. Further, Ash Road would need to be raised as it would flood to 600mm in the 1% AEP flood event.

95 The "after M7 position", according to Mr Rowbottom, would be similar to the "before" situation, although he accepted that about 0.8 to 1 metres of additional fill would be required above the 1997 fill levels (that is, an average of 1 metre). Mr Rowbottom thought it more likely that the industrial development (and filling for it) was the cause of the adverse afflux on the land, and that the Bewsher Consulting and WBM Oceanics report of January 2002 was incorrect to state otherwise. He also referred to the conditions imposed on the M7 determination relating to flooding as onerous and, in effect, sufficient to ensure the absence of adverse impact from the M7.

96 Dr Webb disagreed that there was a high hazard floodway to the east of Ash Road in the "before" situation. There was a grass lined channel which Dr Webb said would safely convey the 1% AEP event. He also disagreed with Mr Rowbottom's opinion that any part of the land comprised a "floodway". He observed that the 1997 landfill strategy depicted the enlarged Basin 18 and thus had itself been affected by the M7 proposal (despite the legend on the plan stating to the contrary). Dr Webb also considered that Ash Road would not need to be raised in the before situation. In the after situation, access to the south along Ash Road would also not require the raising of that land.

97 I am satisfied that the hypothetical buyer would have obtained the advice of a hydrological expert (or experts) to assist in determining the likely constraints to development of the land by reason of flooding and fill requirements.

98 In the before situation, the hypothetical buyer would have had access to the Council's flood mapping, s 149 certificates and landfill strategy, and would have had a general familiarity with the way in which the Council had approached other development in the floodplain over time. The hypothetical buyer would have appreciated that the land was largely flood affected (to varying extents), that filling would be required to provide development platforms and that, accordingly, flooding and the capacity to fill were potential constraints to development.

99 Although Dr Webb and Mr Rowbottom debated whether the hypothetical buyer would have relied upon the flood mapping and s 149 certificate levels or the landfill strategy levels, I am satisfied that the hypothetical buyer would have sought to understand all of the available information and, assisted by expert advice, would have assessed that information by reference to whether it was up to date and reliable. In so doing, the hypothetical buyer would have appreciated, as Dr Webb indicated, that the flood map was out of date (because it did not take account of the filling of other land in the catchment), and that the land was not affected by flows from Cabramatta Creek as the flood map indicated. That is, the land was largely an area of flood storage (as opposed to flood flow). The hypothetical buyer would have been aware that the s 149 certificate levels were based on out of date topographical information.

100 These factors mean that I do not accept Mr Rowbottom's opinion that the Council would consider a large part of the land to be a low hazard floodway in the 1% AEP event. I prefer Dr Webb's opinion that the hypothetical buyer would be aware (from expert advice and their own knowledge) that the Council's flood level information did not reflect the flood conditions of the land by the acquisition date. Hence, I do not accept Mr Rowbottom's conclusion that filling of some parts only of the land to the west of Ash Road may have been possible. That conclusion is at odds with the Council's inclusion of the land within its landfill strategy in 1993. It also disregards the condition of the land at the acquisition date having regard to the actual topography of other land filled in accordance with the landfill strategy.

101 Accordingly, I generally prefer the opinion of Dr Webb that the hypothetical buyer before acquisition would not view the majority of the land as sterilised from development by reason of flooding. Nevertheless, I am satisfied there are matters to which Dr Webb has not given sufficient weight, and which mean that his advice would have been understood by the hypothetical buyer to be inappropriately optimistic about the flood affectation of, and the fill situation for, the land.

102 The hypothetical buyer at the acquisition date would have faced uncertainty about the levels of fill likely to be required and permitted on the land irrespective of the M7. The Council, by 1997, was aware that its landfill strategy created greater impacts than it had anticipated in 1992. In the face of that awareness, and on the necessary hypothesis that Basin 18 had not been extended north onto the land east of Ash Road between Jedda and Kurrajong Roads, I do not accept that the 1993 landfill strategy would have remained in place or, if in place, would have been seen as providing a simple means to ensure that the land could be filled. The hypothetical buyer would have been aware that it could not rely on any such strategy as a straightforward answer to the flooding and fill issues.

103 The hypothetical buyer in the before situation, deemed to be cognisant of these matters and informed by ordinary business considerations, would have recognised that the fill levels likely to be permitted and required were uncertain and could affect the overall development potential of the land. As part of the same consideration, I do not accept that the hypothetical buyer would have assumed that the Council would permit excavation of a drainage channel along Maxwells Creek, which is likely to have been perceived as inconsistent with the ecological values of the riparian zone. Hence, I do not accept Dr Webb's opinion that the channel provided for in the 1993 strategy would have been assumed by the hypothetical buyer at the acquisition date to be adequate to convey the whole of the 1% AEP event. A wider area would have been expected to be necessary for the conveyance of flood waters. The hypothetical buyer would have judged that the whole of the ecological constraint area (the 40 metre strip) would also be necessary to perform the additional function of flood conveyance.

104 For the same reasons, I do not accept that the hypothetical buyer would assume that the whole of the balance of the land east of Ash Road was free from any development constraint by reason of flooding. The hypothetical buyer would not have accepted Mr Rowbottom's opinion that the whole of the land to the east of Ash Road would have been identified as high hazard floodway at the acquisition date, and necessarily incapable of any development. That opinion would be seen as inconsistent with the zoning of the land in 1992 and its inclusion in the 1993 landfill strategy. Nevertheless, the hypothetical buyer (for the reasons underlying Mr Rowbottom's opinion) would have recognised that the known inadequacies of the basin strategy presented a significant risk to the development potential of that land and the prospect of it being required to be left free from development to accommodate flood flows.

105 The hypothetical buyer also would have known that development in accordance with the 1993 landfill strategy would contribute to flows in Maxwells Creek greater than the Council had anticipated. The hypothetical buyer thus would expect that future development of the land would need to address this issue insofar as practicable. Most likely, a flood study would be required to accompany any development application. This too would have contributed to uncertainty about filling the land before acquisition.

106 Dr Webb and Mr Rowbottom disagreed whether the outcome of filling land in accordance with the landfill strategy would or would not raise the land above the 1% AEP event (Mr Rowbottom saying that the landfill strategy was addressing the need for positive drainage rather than flooding per se). The hypothetical buyer would have focused on the capacity to develop the land (whether or not the result was above the 1% AEP event level assumed at the time). Mr Rowbottom agreed that the practice of the Council (as the Council's documents demonstrate) was to accept land filled in accordance with its landfill strategy as appropriate for development, and that conditions could be (and were) imposed on flood levels of buildings to ensure they were above the flood levels. In these circumstances, and given that the hypothetical buyer would assume that a flood study of some form would be likely to be required to accompany a development application, I am satisfied that the hypothetical buyer would not exclude from future development, land which may be designated as "flood liable" by reason of a comparison between the flood maps and s 149 certificate levels (based on out of date topographic information) and the final design levels of the land.

107 Hence, I do not accept either Mr Rowbottom's opinion that, before acquisition, 4.7 hectares of the land west of Ash Road would be assumed to remain flood liable after filling, or the respondent' submission that this land would be identified as incapable of being developed. Although the respondent referred to the provisions of the Council's Floodplain Management Plan to support is submission, and the spectre of liability if the Council did not comply with such a plan, the fact is (as Mr Rowbottom said in his primary report), the Council had apparently relaxed these requirements for the development of flood liable land in the Prestons Industrial Release Area. The respondent's related submission (that this area would be seen as incapable of development due to anticipated higher building costs in that area) is inconsistent with the evidence of the Council's routine acceptance of filling of land in accordance with its strategy as rendering land appropriate for development. For the same reasons, the hypothetical buyer would not have assumed a need to raise Ash Road to provide for flood free access to the land, before acquisition.

108 Provision would need to be made for drainage before acquisition. To the extent Dr Webb suggests otherwise in the before situation, I do not accept his evidence. Given the industrial context of the land and, in particular, the nature of industrial development on the land to the north, Mr Rowbottom's opinion that the Council would have required or accepted a grass-lined channel rather than a piped system along this boundary would be seen as speculative. The hypothetical buyer most likely would have perceived piped drainage as necessary both before and after acquisition.

109 Having regard to the matters set out above and resolving all remaining doubts in my mind in favour of the applicants, I am satisfied that in the before acquisition situation the hypothetical buyer: (1) would have recognised that, unless and until the flood study was completed, the capacity to fill the whole of the land west of Ash Road (outside the ecological constraint area) to a level suitable for subsequent industrial development absent ameliorating measures (raised floor levels, for example) would be subject to some uncertainty. Expert advice absent a specific flood study would reduce, but not altogether remove, that uncertainty. With expert advice, the hypothetical buyer would have expected to be able to fill the land west of Ash Road outside the ecological constraint area. The precise fill levels necessary and acceptable, however, would have to be determined through the flood study. The 1993 landfill strategy would not have been seen as reliable for this purpose;

(2) with respect to the land east of Ash Road, would have expected to retain the whole of the 40 metre ecological area which would also function to convey flood waters; and

(3) would have made a significant allowance for risk with respect to the balance of the land east of Ash Road. To assume otherwise would be to posit an imprudent hypothetical buyer, not informed by ordinary business considerations, which is impermissible. Weighing the nature and materiality of the issues which I have found Dr Webb has not fully recognised with those parts of Mr Rowbottom's reasons I have accepted, I consider that the hypothetical buyer would have applied only 60% of the value of the unconstrained land west of Ash Road to the land east of Ash Road outside of the 40 metre setback area.

110 With the above constraints in mind, I am satisfied that the hypothetical buyer would not have expected, in addition, any particularly onerous conditions relating to onsite storage or offsite flood mitigation works (contrary to the respondent's submission), such being inconsistent with the Council's prior dealings with such land and the policies underlying the planning for the Prestons Industrial Release Area.

111 Taking into account: - (i) the likely developable areas of the land based on ecological and flooding considerations, (ii) excavation not being permitted adjacent to Maxwells Creek due to ecological considerations, but excavation of drainage channels elsewhere on the land producing some fill, (iii) the anticipated higher flood flows in Maxwells Creek, (iv) the 1993 landfill strategy being available as a rough guide only to filling levels (but one which underestimated the fill required), (v) the conflicting opinions of Dr Webb and Mr Rowbottom as resolved by me above, and (vi) the approaches taken by the quantity surveyors based on the conflicting evidence of Dr Webb and Mr Rowbottom, the hypothetical buyer would have expected to import fill in the before situation. On the basis of these factors, I find that the hypothetical buyer would have allowed for about 30,000 cubic metres of imported fill in the before situation.

112 With respect to the after situation, I do not accept Mr Rowbottom's opinion that the Bewsher Consulting and WBM Oceanics report of January 2002 incorrectly identified the M7 as a source of unacceptable localised impacts. I prefer the opinion of Dr Webb that the hypothetical buyer, at the acquisition date, would reasonably perceive the M7 as having increased the flooding levels on the land. Nevertheless, I do accept Mr Rowbottom's opinion and the respondent's submission that, in the after situation, the hypothetical buyer would be aware of, and have regard to, the conditions imposed on the M7 determination. The conditions establish a regime for the preparation of sub-plans and drainage designs, and their approval, which are intended to ensure that the M7 does not exacerbate existing flooding (for example, conditions 1, 134, 135, 141, 142, 143, 144, 145 and 146). The existence of these conditions, to a very large extent, would ameliorate the risk perceived by the hypothetical buyer of exacerbated flooding of the land caused by the M7 being left unaddressed. For the same reasons, the hypothetical buyer would not consider that the level of Ash Road would need to be raised to provide access in the after situation. That having been said, the M7 caused other effects on the land that must be taken into consideration.

113 First, as I have found above, the 4(a) land to the east of Ash Road had been zoned 5(a). The imposition of that zoning effectively excluded the potential for that land to be developed for industrial purposes. I do not consider that a hypothetical buyer would place any weight on cll 10(11) or 24 of the LEP as a source of development potential for that land. However, the hypothetical buyer would be aware of cl 55 of the LEP, as well as the capacity to dedicate that land to the Council and credit its underlying value against s 94 contributions.

114 Secondly, Mr Rowbottom and Dr Webb agreed that, at the acquisition date, there was no landfill strategy applying to the residue land. As I do not accept that the 1993 landfill strategy would have applied in the before situation or, if technically applicable, would not have been perceived as reliable by the hypothetical buyer, I do not see this risk issue as materially different.

115 Thirdly, Mr Rowbottom and Dr Webb agreed that the fill levels would need to be greater after the M7. I am satisfied that the hypothetical buyer would allow for more fill to be imported by reason of the M7, despite the M7 approval conditions. Given that I have found that Dr Webb's reliance on the fill levels from the 1993 landfill strategy would not be seen as warranted by the hypothetical buyer, I find that the hypothetical buyer is most likely to adopt Mr Rowbottom's approach to this issue. That is, about one metre of additional fill over the developable areas would be expected to be required. If provided, this would also be seen as addressing the potential 600mm afflux caused by the M7. Taking into account an average increased fill depth of one metre and that the whole of western area would not be filled due to the ecological constraint area, a hypothetical buyer in the after situation would have estimated that about 100,000 cubic metres of fill would need to be imported.

116 Mr Varga and Mr Brogan, traffic consultants, as well as Mr Rhodes and Mr Sanders, planners, gave evidence about this issue. Mr Shatford, an officer of the respondent, also gave evidence relevant to the after situation.

117 The land is in the industrial area bounded by Hoxton Park Road to the north, Wonga Road to the east and Bernera Road to the west. Excluding the Liverpool Showground site (which was zoned Industrial 4(a) in 1999), the industrial land does not extend to Kurrajong Road in the south. An area of land zoned 1(e) Rural - Future Urban is located between the industrially zoned land and Kurrajong Road. The land to the west of Bernera Road is also zoned 1(e). The land to the east of Wonga Road is zoned 2(a) - Residential, as is the most of the land to the south of Kurrajong Road.

118 The 1997 LEP included a proposed extension of Lyn Parade from Jedda Road to Kurrajong Road, running through the industrially zoned land (in particular, through an area with a circular road system called Enterprise Circuit and Progress Circuit). The Lyn Parade extension continues adjacent to the Liverpool Showground site to Kurrajong Road. The Lyn Parade extension is zoned 5(d) Special Uses - Local Road on the 1997 LEP zoning map (the only road so zoned in the industrial area). In the 5(d) zone, limited development purposes are permissible. The zone objective is to identify land required for proposed local roads. The Lyn Parade extension has not been constructed between Jedda Road and the Liverpool Showground site, where it traverses a development known as Enterprise Court. Given cl 53A of the 1997 LEP, it would need to be constructed for access to the Showground site when developed.

119 Ash Road runs north-south off Hoxton Park Road and traverses the land. Between Hoxton Park Road and Jedda Road, Ash Road is an industrial standard road (with capacity for parking on both sides). South of Jedda Road for a distance of about 180 metres, Ash Road is formed, but with a narrower pavement width and with kerb and gutter on the western side only. Ash Road beyond this 180 metre point (about 110 metres north of lot 286 - the northern most lot owned by the applicant Michael Nasser) was unformed. These three sections of Ash Road are Crown public road transferred to the Council as roads authority under s 151 of the Roads Act 1993 on 21 February 2003. Section 151 enables the Minister to transfer any Crown road to another roads authority. On transfer, the road ceased to be a Crown road and became a public road vested in fee simple in the Council (s 145 of the Roads Act 1993).

120 Ash Road, as an unformed Crown public road vested in fee simple in the Crown as Crown land (s 145(2) of the Roads Act 1993), then continued through lots 286, 287 and 25, dividing each lot into a western section (the bulk of the land) and an eastern section (extending from Ash Road to Maxwells Creek). Ash Road then traversed the eastern boundary of the 6(a) land to the northern boundary of lot 2 DP 405571 (land belonging to Sule College). From that point south to Kurrajong Road (on the eastern boundary of Sule College), Ash Road is unformed Crown public road vested in fee simple in the Crown as Crown land, but also subject to an enclosure permit granted to the Feza Foundation (responsible for Sule College). The enclosure permit (granted 3 February 1999) stated that it is "an interim arrangement only until the RTA and Liverpool City Council have finalised the Western Orbital and Retention Basin proposals". It allowed gates and fences to be erected with approval, but a condition says that they are not to interfere unnecessarily with any traffic.

121 That is, part of the northern boundary of lot 286 abutted Ash Road as an unformed public road vested in the Council. Otherwise, the western and eastern portions of lots 286, 287 and 25 each had frontage to the unformed Ash Road as a Crown public road vested in the Crown. Lot 25 had a frontage to the unformed Crown public road of about 95.5 metres. Lots 286 and 287 had frontages of just over 90 metres each. The total frontage to the unformed Crown public road was thus about 276 metres. The acquired land removed the frontage of the western residue to Ash Road.

122 DP 1057670 (registered on 26 August 2003) is endorsed with statements that lots 44 to 47 inclusive are required for freeway under s 48 of the Roads Act 1993, and lots 48 and 49 are required for road and after construction will be dedicated as public road under s 10 of the Roads Act 1993. Lots 44 to 49 were created by the acquisition.

123 Lots 48 and 49 form a strip of land adjoining the eastern boundaries of the western residue land. The southern boundary of lot 48 adjoins another small lot also acquired by the respondent from the land to the south of the former lot 25 (that is, from the 6(a) land). That small lot is lot 22 in DP 1049307. Lot 22 is between the southern boundary of lot 48 and the boundary of the southern section of the unformed Ash Road. It was acquired from the reserve to the south and is heavily vegetated. DP 1049307 (registered 26 March 2003) is also endorsed with a statement that lot 22 is required for road and after construction will be dedicated as public road under the Roads Act 1993.

124 There is general agreement between the experts about the access arrangements that would have applied to the land in the "before" situation. The whole of the land would have been accessed via Ash Road to the north. This would have required construction to industrial standard of a section of Ash Road of about 110 metres to join with the already constructed section of Ash Road south of Jedda Road (funded by s 94 contributions). This access would have provided a connection with the surrounding industrial area and the higher order road network (via Hoxton Park Road) via the signalised traffic intersection of Hoxton Park Road and Ash Road.

125 The hypothetical buyer would have seen this access arrangement as consistent with the planning of the release area (namely, for industrial traffic to be directed north and isolated from residential areas, insofar as practical), and as providing the land with benefits from the traffic infrastructure funded from the development contributions from the release area (including those which would be required on development of the land). A hypothetical buyer would not have made any allowance for risk on access (the only allowance being for construction costs). The buyer would assume that, on construction, the Ash Road extension would be transferred from the Crown to the Council and have the status of ordinary public road rather than Crown road.

126 Mr Shatford gave evidence that the respondent did not intend to construct a road over lots 22, 48 and 49 but, if any request had been made (or were to be made) to construct a road over lots 22, 48 and 49 at any time from acquisition, the respondent would have granted (and, I infer, will grant) approval to do so at no cost (that is, no cost of approval or access to that land). This would include the respondent granting owner's consent to any development application lodged with the Council for that purpose (I note that roads are permissible with consent on land zoned 4(a) and 6(a)). Further, when the road had been constructed, the respondent would have arranged (and, I infer, will arrange) for dedication of that land as a public road under s 10 of the Roads Act 1993 (which does not require the consent of the Council). Alternatively, the respondent would have (and, I infer, will) dedicate the land as Crown public road. The road would be unformed but, after construction, in common with the northern section of Ash Road in the before situation, would be transferred to the Council under s 151 of the Roads Act 1993, and thus become public road. I accept Mr Shatford's evidence. The hypothetical buyer would have made an inquiry about the notations on the deposited plans, and having been provided with information consistent with Mr Shatford's evidence, would not have perceived any risk about constructing a local road over lots 22, 48 and 49. The vegetation on lot 22 is only a small corner of the former reserve and would not be seen as presenting a constraint to that land being used for the road purpose for which it was specifically acquired.

127 Mr Rhodes accepted that Mr Shatford's evidence provided certainty for lots 22, 48 and 49, but considered that, in the after situation, there was a real question about the position the Council would adopt with respect to access south to Kurrajong Road. He described that part of the access as "still very much an unknown". This opinion was based on his understanding that the Council's planning for the area envisaged Ash Road south being closed, and industrial traffic being directed away from the residential areas (supported by Council's concern with respect to industrial traffic on Wonga Road and the actions it had taken to remove industrial traffic from that road). The southern side of Kurrajong Road was residential, and much of its northern side (zoned 1(e)) was intended to be residential.

128 Mr Rhodes concluded that the Council would be "very sensitive" about allowing the land to be developed so as to provide access south via Ash Road adjacent to the school (particularly given that the residue, if all developed, could generate up to 700 vehicle movements per hour). Mr Rhodes said that, if there were to be such access, there was a real possibility that the Council would apply a significantly more onerous assessment of the traffic implications of industrial development on the land (leading to potentially reduced development potential). He also thought that, at best, the Council might permit left in and left out at Kurrajong Road, which would be sub-standard access, but that: Now it is simply bad planning to force industrial traffic through residential road systems, albeit sub-arterial standard but still bad practice when there is an alternate route direct to the arterial road system through a fully industrialised area.

129 That having been said, Mr Rhodes accepted that the M7 had benefits for the area overall. However, Mr Rhodes was dubious about the prospects of the Lyn Parade extension being completed within any reasonable time (which would allow vehicles from the land access to the north in the after situation). Mr Rhodes said that the extension passed through the land of two owners who would not agree to provide the land, let alone construct the road, and the Council had not done so (since 1997) and would not take it upon itself to do so. While Mr Sanders thought that construction of Lyn Parade was required through conditions of consent, Mr Rhodes thought that its completion was "very much up in the air".

130 Mr Sanders' opinion was that the southern section of Ash Road was Crown public road, not subject to any weight restriction, and thus available for use by industrial traffic from the land. Although development along Kurrajong Road was residential on its southern side, a buffer could be provided for future residential development on the northern side. Mr Sanders considered that much of the traffic from the land would be accessing the M7 in any event and thus only staying on Kurrajong Road for a short period (which, I infer, assumes the completion of the Lyn Parade extension). Mr Sanders also thought that the M7 generally offered considerable access benefits to the land.

131 The alternate route that Mr Rhodes mentioned was a possible new road connecting the land to Bernera Road. Any such road would pass over industrially zoned land in different ownership and would require intersection treatment at Bernera Road. Mr Rhodes and Mr Sanders agreed that such access was only relevant in the absence of access being provided south via Ash Road. Mr Rhodes considered that, although such access was better from a planning perspective, there was a major issue about the intersection treatment that would be required and that three of the blocks to the west already had consents for industrial development which did not include provision of an industrial standard road to service the western residue of the land. While Mr Sanders thought it unthinkable that a council which had opposed access south via Ash Road would not facilitate alternative access via the industrial land to Bernera Road, Mr Rhodes thought that there was "no way in the world Liverpool Council is going to go out and attempt to acquire any land to solve this problem".

132 Mr Varga considered that: - (i) access south via Ash Road would be complicated by the presence of Sule College adjoining Ash Road (including but not limited to the enclosure permit), (ii) if access south was permitted, the Council would be expected to limit such access to left in and left out only, (iii) otherwise, the Council would expect an industrial standard roundabout at the Ash Road and Kurrajong Road intersection of about 25 metres radius, requiring land acquisitions, (iv) given the Kurrajong Road reservation width, even a seagull would also require land acquisition, (v) there was uncertainty about when the Lyn Parade roundabout would be constructed, and there was no evidence of it being constructed during the site inspection, (vi) until then, traffic from the land would have a lengthy and circuitous route to Hoxton Park Road and Bernera Road (and thus the M7 interchange), (vii) the Council and respondent could be expected to resist any new intersections on Bernera Road (except perhaps converting an existing junction to a 4-way junction), (viii) any new access road to Bernera Road would need to be industrial standard, 20 metres wide reservation with a 13 metre wide pavement, (ix) the residue could generate 700 vehicle trips per hour as Mr Rhodes said, and (x) there were no mechanisms in place to allow for a new road to the west (to Bernera Road).

133 Mr Brogan considered that: - (i) the access to the land had improved as a result of the M7 as there was an interchange 1.7 kilometres from the land, (ii) there was capacity to provide for all movements at Kurrajong Road by a seagull or roundabout, (iii) with a roundabout or seagull at Kurrajong Road, the increase in travel time to the Hoxton Park/Ash Road interchange would be slight, (iv) any new road linking to the west to Bernera Road would need to satisfy traffic access and safety standards.

134 It is convenient immediately to dispose of some issues. An option was raised for access to the land in the after situation - the obtaining of an easement for access over the land to the west pursuant to s 88K of the Conveyancing Act 1919. This proposal, at one point, was part of the basis for Mr Lunney's assessment of compensation (but did not form part of his final assessment). Insofar as this option may remain an issue in the proceedings (which is unclear), I am satisfied that it is unrealistic and would not form any part of the consideration of the hypothetical buyer of the land in the after situation.

135 In particular: - (i) the traffic and planning consultants had not assessed this option or suggested that it was realistic or feasible, (ii) any expectation that a large industrial site could obtain access via an easement would be recognised by the hypothetical buyer as fanciful, (iii) the risks involved in obtaining such an easement would be considerable, yet did not figure in the (limited) evidence relating to this option, and (iv) the calculations prepared by Mr Lunney for this option were founded on the assumptions of the quantity surveyors, which were unrealistic.

136 The respondent relied on conditions 98 and 107 of the M7 approval as relevant. Condition 107 required that affected access "is reinstated to an equivalent standard or that adequate compensation is negotiated with the relevant landowner(s)". For the reasons given below, I do not accept that the residue land has equivalent access. Nor has compensation for this item been agreed. The conditions are not an answer to the applicants' case on this issue.

137 The issue is not the willingness of the respondent to facilitate access over lots 22, 48 and 49 (in respect of which I have accepted Mr Shatford's evidence). The issue is the market's potential perception of the residue land as an industrial site with provision for access inconsistent with the Council's planning for the industrial area.

138 The hypothetical buyer would be aware of: - (i) the role of the Council in determining development applications for the land (including its access arrangements), (ii) the planning intent of separating industrial traffic from residential development (supported to some extent by cl 52 of the 1997 LEP), (iii) the existing residential development on the southern side of Kurrajong Road, (iv) the likely future residential development on the northern side of Kurrajong Road, (v) the potential for traffic conflicts with the school and its parking (but not, in my view, conflicts with the enclosure permit itself, which cannot prevent access), (vi) the need to deal with the large drain that I infer is located, at least in part, on Ash Road (an issue I find would not be seen as an impediment to development of itself, but which would be an item of cost), (vii) the inferiority of the access between Ash Road south and Kurrajong Road absent intersection treatment, and (viii) the need for land acquisition to obtain the necessary land area to achieve any such intersection treatment. These factors mean that, contrary to Mr Sanders' opinion, the access in the after situation would not be perceived as the same as in the before situation.

139 I am satisfied that the hypothetical buyer would expect to obtain access south via Ash Road because: - (i) specific arrangements had been put in place to facilitate such access, and (ii) such access (manifestly) would be reasonably necessary and appropriate given the physical circumstances of the residue land, that the land has long been zoned for industrial development and that the traffic engineers both accepted that Kurrajong Road can accept such traffic. This finding, however, does not mean that the hypothetical buyer would not see access as an issue in the after situation. The hypothetical buyer would perceive access in the after situation as an issue requiring resolution with the Council, the most likely consequence of which would be a real potential for delay in obtaining development consent for industrial subdivision. The hypothetical buyer would also expect the Ash Road and Kurrajong Road intersection to be limited to left in and out, absent intersection treatment (roundabout or seagull). I do not accept that the hypothetical buyer would factor in a risk of materially reduced development potential, in respect of which I consider Mr Rhodes' opinions unduly pessimistic.

140 Hence, contrary to the applicants' submission, the hypothetical buyer would not consider the residue land to be land locked or the equivalent of land locked. The arrangements put in place by the respondent provide a link to a public road, across land the respondent will make available for a public road. While I am satisfied that the hypothetical buyer would see access as an issue requiring resolution and involving potential delay, I do not accept that they would see a material risk of the land being the equivalent of land locked.

141 It follows that I do not accept the respondent's submissions that the absence of limits on truck numbers down Ash Road ensures equivalent access for the residue land. I also do not accept that the 1996 Sule college consent (that included a seagull arrangement at the Ash Road intersection) undermines the conclusions I have reached above. The relevant issue is the expectation of the hypothetical buyer, which I have addressed.

142 The various offers to acquire the residue land (relied on by both parties, but to support opposite submissions on the access issues) do not alter my conclusions. While the offers could support an inference that the market recognised that access via Ash Road south would be an issue requiring resolution, they do not found an inference that the land would be perceived as landlocked. I address the offers further below.

143 I am not satisfied that the option of access via a new road to the west (to connect with Bernera Road) would ameliorate the perception that access in the after situation was an issue, when it had not been an issue in the before situation. The land over which such a road would pass is zoned 4(a) (if a direct route were taken) or 1(e) (if a dogleg to the south was taken). All the land is in private ownership. The evidence before me on the potential cost of acquiring sufficient land to the west was unsatisfactory (it emerged in oral evidence, was virtually "in passing" and was unsupported by any analysis). The technical problems with such access would also be perceived as real. I accept Mr Varga's opinion that any new intersection at Bernera Road would be closely scrutinised by the Council and the respondent. I also accept Mr Varga's opinion that there were (and are) no mechanisms in place to achieve the new road to the west.

144 The other problem with such access is that a western connection would pass through that part of the land that Mr Fanning identified as of moderate conservation significance and which I have accepted would have to be retained in any new development. The 4(a) zoned land to the west itself has retained vegetation on its eastern boundary, generally consistent with the National Parks and Wildlife Service 2002 mapping. Shifting the planning focus to a road to the west would be seen by the hypothetical buyer as a fundamental alteration of the expected development in the area, and be recognised as potentially raising substantial ecological issues.

145 The issue of benefit from the M7 in the after situation remains. The residue land has good visual exposure to the M7. With the Lyn Road roundabout and/or the Lyn Parade extension, access could readily be obtained from the residue to the M7 interchange in Bernera Road. I consider that, at the acquisition date, the hypothetical buyer would know that the Lyn Parade extension was planned and would expect that it would be provided. The extension is specifically shown as a road on the 1997 LEP zoning map - the only planned new road in the industrial area, being land subject to a zoning which has as its specific objective the provision of the road. Moreover, the hypothetical buyer would be aware that the development of the Showground site would be dependent on the completion of that extension. The Showground site sold within two months of the acquisition at public auction - but was plainly intended for sale after the 1999 rezoning and was sold after a due diligence period. Intractability of the owners of the land over which the extension passed (referred to by Mr Rhodes) would be expected by the hypothetical buyer to be resolved. That having been said, the hypothetical buyer would not expect completion of the Lyn Parade extension within the short term (two to three years). Doing the best I can on the evidence, I consider that the Lyn Parade extension would be perceived as a medium term proposition linked to the development of the Showground site - up to five years out from the acquisition date - but that there would be no real doubt about its ultimate provision.

146 Mr Varga said that, presently, there was no evidence of the construction of the Lyn Road roundabout. Mr Brogan, relying on Council and other correspondence, said the roundabout was scheduled for completion within months. I prefer to remain with the expectations of the hypothetical buyer at the acquisition date. At that time, the hypothetical buyer would be aware of Amendment No. 19 to the 1997 LEP made on 9 December 1999 rezoning the Showground site 4(a) and providing for a large scale industrial or warehouse development on that site. The hypothetical buyer would assume that such a development would be likely to require intersection treatment at Lyn Parade and Kurrajong Road (even taking into account the terms of cl 53A of the 1997 LEP). In the circumstances, I am satisfied that the hypothetical buyer, at the acquisition date, would have expected a roundabout at Lyn Parade/Kurrajong Road to be constructed. Again, the timing of provision of the roundabout would be the issue rather than its provision. Doing the best I can on the evidence, I consider that the Lyn Parade extension also would be perceived as a medium term proposition linked to the development of the Showground site - up to three to five years out from the acquisition date.

147 Accordingly, I accept the opinions of Mr Sanders and Mr Brogan that the hypothetical buyer would perceive the proximity of the land to the M7 in the after situation as a significant benefit both by reason of exposure to the M7 and the potential for general accessibility to and from the residue in the future.

148 The parties were unable to agree whether sewer and water were available to the land at the acquisition date. Mr Rhodes thought both services were available and that a carrier had been constructed in Ash Road (which is consistent with at least one plan attached to a 1996 letter to the applicant from engineers for Sydney Water) and that, in the worst case, a main would need to be constructed to Jedda Road. The cost of so doing in excess of the contribution would then be refunded under Sydney Water's policy. Mr Sanders said that the nearest water main was in Jedda Road and noted cl 20 of the 1997 LEP. Mr Neskovski, based on his local experience, thought that both sewer and water were available to the land in the before situation and that the after situation had made access to the Ash Road carrier from the western residue more difficult.

149 Mr Lunney relied on a letter from Sydney Water sent in response to his inquiry to the effect that there was no water main fronting the land. An extension to the south to Kurrajong Road would be required, and capacity was available. Further, there was a sewage carrier in Ash Road, but insufficient capacity at the acquisition date to service the land. Works to amplify capacity were completed in 2004, but the extension of the Ash Road carrier was not due for completion until 2006.

150 All aspects of the issue of sewer and water are trivial in the overall context. These issues would not have troubled the hypothetical buyer to any extent. I accept Mr Rhodes' evidence that the hypothetical buyer would assume that they could fund the relevant connections and achieve the development potential of the land within a reasonable time of acquisition. Given the size of the land, the hypothetical buyer would assume that they could carry out the extensions required and recover any cost above their proportionate responsibility. This conclusion is supported by the availability of capacity other than in the mains by 2004 and the terms of cl 20 of the 1997 LEP which refer to connection either now or in the future. The hypothetical buyer would consider that this issue could be addressed as part and parcel of the development in the ordinary course.

151 Mr Rhodes and Mr Sanders also gave evidence on general planning issues.

152 Mr Rhodes considered that while each lot in the before situation could be separately developed, it was more likely that the land would be developed as a combined development site. The land in the before situation was regularly shaped, with good depth to frontage, suited to development running off a new internal access road running west of Ash Road. The land had good access, was well placed to benefit from the transport infrastructure provided by the Council funded by s 94 contributions, and had good links with the balance of the industrial area. In the after situation, by contrast, Mr Rhodes' opinion was that the M7 severed the land from the balance of the industrial area, complicated access to Hoxton Park Road and cut the land off from the transport infrastructure provided by the Council funded by s 94 contributions, left the land in an irregular shape, removed the capacity easily to develop in regular blocks running off a central road, and occupied the best part of the land for development (that is, immediately west of Ash Road).

153 Subject to the other constraints such as ecology and flooding, Mr Sanders basically agreed with Mr Rhodes with respect to the before situation, other than the notion of connectivity with the balance of the industrial area. He agreed that the shape was somewhat less regular in the after situation which he accepted would have some impact on the ease of industrial subdivision, but noted that the width of the land was maintained. He also considered that the land would obtain significant benefits from the M7 in the after situation.

154 Mr Rhodes' views about the general planning context of the land in the after situation are unduly pessimistic. The hypothetical buyer would have perceived some disadvantage in the after situation (by reason of the shape and separation from the main industrial area). I consider Mr Sanders' opinions on these general planning issues to better reflect the likely views of the hypothetical buyer, including the benefits presented by the M7.

155 Mr Meredith and Mr Saunders, quantity surveyors, gave evidence about development costs for the land to be provided with access and filled. I accept that the hypothetical buyer would have obtained advice about, and/or otherwise estimated, development costs for these items.

156 The quantity surveyors adopted varying fill rates depending on the quantity of fill involved and whether it must be imported or sourced from on site excavation. Given the variation in rates for imported fill referred to by Mr Meredith in his primary report (which I accept) and my findings above on fill, I am satisfied that the hypothetical buyer would adopt the imported fill rate for all purposes associated with its cost estimates.

157 Hence, the hypothetical buyer would allow for the following costs in the before situation: Extend and make good Ash Road at Jedda Road - $600,000 (agreed estimate).

Total estimated cost of external road, drainage and fill - $1,900,000.

158 Absent intersection treatment at Ash Road/Kurrajong Road, access to the residue land would be limited to left in and left out. The intersection treatment (roundabout or seagull) would require land acquisition. At least part of the land acquisition costs would be likely to be borne by the developer (as the residue will be most directly serviced by the intersection). I do not have sufficient evidence about the area of land required or what it would cost to acquire it. As such, I do not factor in the cost of the intersection treatment, even though that option would have been recognised as available to the hypothetical buyer as a means to improve access to the residue. On this basis, access would be seen the hypothetical buyer as limited to left in and left out, but with the capacity to obtain all directions access by intersection treatment (at a cost).

159 The hypothetical buyer would allow for the following costs in the after situation for the land west of Ash Road (recognising that the land east of Ash Road cannot be developed in the after situation but has value given the potential for acquisition by the Council or offset against s 94 contributions): Ash Road south to Kurrajong Road, excluding intersection treatment (seagull) but including traffic safety measures at school - $1,000,000 (agreed estimate).

Dealing with Ash Road drain - $250,000 (agreed estimate for large sized drain).

Drainage channel (slightly shorter) - $635,000 (agreed estimate)

Total estimated cost of external road, drainage and fill - $3,885,000.

160 I do not accept the respondent's submission that no allowance ought to be made for the Ash Road drain because there is no evidence it is in the road reserve. Based on the view, the searches and the enclosure permit, all of which would have been available to the hypothetical buyer, I am satisfied that the hypothetical buyer would conclude that the drain would need to be dealt with in the construction of Ash Road south at their expense. I accept it is appropriate to allow for the more costly agreed estimate having regard to the size of the open drain apparent on the view. I do not accept Mr Meredith's allowance for an additional $70,000 in the after situation for the M7 bridge crossing or an additional $50,000 for a series of box culverts, as I am not satisfied on the evidence that these items would be seen as reasonably necessary.

161 The quantity surveyors agreed that to provide for access from the eastern residue via Ash Road north in the after situation would involve additional costs of $398,000. This is relevant to the hypothetical buyer's recognition of potential to require acquisition by the Council of part of the 5(a) land and/or to use its dedication to obtain s 94 credits at a developable value (where the notional costs of realising such development potential would have to be taken into account).

162 I referred above to certain offers for purchase of the residue land after the acquisition date. There are many decisions about the difficulty of relying on offers as evidence of value, despite some capacity to do so (see, for example, the discussion in Alan Hyam, Valuation of Land in Australia , 3rd ed. at 92 - 99).

163 The applicants submitted that I should accept the offers as demonstrating that Mr Lunney's valuation in the before situation was too low, that the Showground sale was out of line and that the land was effectively landlocked. I do not regard the offers in this matter as capable of carrying that evidentiary burden. The offers were heavily qualified in many respects (including, in one case, satisfactory development consent for the purchaser's development and, in another, board approval, as well as acquisition with another lot fronting Bernera Road). The offers do not provide a reliable foundation to support the inferences that the applicants ask me to draw.

164 Mr Neskovski and Mr Lunney gave valuation evidence. Mr Neskovski relied on four properties as comparable sales (16 Lyn Parade, Prestons, the Yulong site at 208 Moorebank Avenue, Moorebank, the Showground site at Kurrajong Road, Prestons and the ICA site at Yarrawa and Yarrunga Road, Prestons). Mr Lunney relied on three of these sales (not the 16 Lyn Parade sale).

165 In their primary valuation reports, both valuers generally adopted an approach of assessing the comparable sale and applicants' land overall and made a few major adjustments. In contrast, in the joint statement, the valuers presented a table of up to nine separate percentage adjustments (one on top of the other) for each comparable sale. Mr Neskovski performed this exercise twice for each sale (once for the before situation and once for the after situation).

166 I am aware that the Class 3 Compensation Claims Practice Direction Standard Directions seek that valuers disclose the factors relied upon in making adjustments from comparable sales to the subject site. While those directions require an identification of the overall percentage adjustment made, they do not require and, I infer, were not intended to encourage, an exercise of percentage adjustment on percentage adjustment.

167 As observed by Gobbo J in R K Morgan Holdings Pty Ltd v Melbourne & Metropolitan Board of Works (1992) 77 LGRA 102 at 108 and 109 (citing Mario Piraino Pty Ltd v Roads Corporation (1990) 76 LGRA 263), the approach of percentage on percentage adjustment gives the rate arrived at "an illusory appearance of certainty and accuracy", when each percentage adjustment is liable to error and the approach overall liable to "distract a valuer from facing the implications of sales that may…be the most comparable sales of all". See, to the same effect, the observations in Pamalco Pty Ltd v Minister Administering the National Parks and Wildlife Act 1974 [No 3] (1991) 71 LGRA 441 at 454.

168 Both parties made strong closing submissions about the inadequacy and lack of credibility of much of the valuation evidence given by the valuer retained by the opposing side. I have given careful consideration to these submissions in the context of the valuers' written reports, joint statements and oral evidence. Regrettably, I have been forced to conclude that much of Mr Neskovski's evidence was unsatisfactory. Overall, Mr Neskovski reached unreasonable conclusions in favour of the applicants on many issues. I did not form the impression that Mr Lunney had adopted an inappropriately niggardly approach to his task. Mr Lunney did make numerous changes to his valuation as the matter progressed, but the changes had a rational explanation. On some issues, I found Mr Lunney's reasoning unpersuasive. As discussed below, these issues were isolated and did not undermine my confidence in his overall approach to his task in this matter.

169 In Mr Lunney's opinion all of the comparable sales benefited from the M7 to a greater or lesser extent. He adjusted the comparables to the land in the before situation (on the basis that the land must be assumed not to have had that benefit). In his primary report, Mr Lunney adjusted the comparables by 15% to reflect the advantage provided by the M7 on the basis that the motorway would greatly increase the accessibility of the industrial lands in its vicinity. In support of his view, he mentioned the adjustment of (7)% made in the matter of Mir Bros Unit Constructions Pty Limited v Roads and Traffic Authority of New South Wales [2004] NSWLEC 612 (which he thought too low), the growth rate for industrial land in the vicinity of the M7 and compensation agreed between the respondent and the Department of Lands on acquisitions of parts of the Showground site.

170 In the joint statement, Mr Lunney mentioned a range of considerations he considered relevant, and concluded that the issue of M7 benefit was difficult to prove analytically. Hence, a subjective assessment was required based on the valuer's expertise and experience. In his oral evidence, Mr Lunney said that analysis of two sales did show the benefit of the M7 to industrial land, particularly the Bluescope Steel site at Erskine Park. I do not consider Mr Lunney's analysis of that sale to be cogent evidence demonstrating the benefits from the M7 to the comparable sales (as the analysis failed to distinguish between a site with poor pre M7 access and sites with good pre M7 initial access). Nevertheless, I accept his opinion that industrial land in the vicinity of the M7 would have benefited from the greater accessibility to the Sydney area presented by that motorway (given its important linking function between the M5 and M2). I also accept that assessment of the degree of benefit (and thus quantum) must be based on the valuer's expertise and experience. It is not inappropriate for valuers to make such allowances based on expertise and experience ( The Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co and T D Charlesworth & Co [1901] AC 373 at 391).

171 Mr Neskovski made no adjustment for the benefits of the M7 to any of the comparable sales. He considered that all of the comparable sales had good access absent the M7 (particularly from the M5). Given the scheduled completion date for the M7 in 2007 and the date of the comparable sales, he thought it unlikely that purchasers had paid any additional sums for the future M7 benefit. He thought that purchasers used the M7 only as a marketing tool. To support these opinions, Mr Neskovski carried out an analysis of sales to attempt to establish growth rates of localities. He said that although he had made an allowance of 7% for M7 benefit for a property in Prestons in the matter of Lalic v Roads & Traffic Authority of New South Wales [2005] NSWLEC 430, his subsequent detailed analysis had now yielded a different conclusion. Mr Neskovski's statistical analyses and associated reasoning is not persuasive. I accept Mr Lunney's criticism of that analysis.

172 Accordingly, I accept Mr Lunney's approach to the benefits presented by the M7 to industrial land in its vicinity. I am satisfied that the buyers and sellers of the comparable sales would have factored in the benefit presented by the M7 to the sale sites.

At a glance

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Judgment (273 paragraphs)

Cases Cited (23)

Cited By (6)