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[2003] VCAT 1487
respondent. Tribunal fixed total compensation payable to the Respondent at $105,191 made up of market value $95,000, disturbance $645, professional expenses $4,796, and solatium $4,750; costs to be applied...
The Victorian Civil and Administrative Tribunal determined compensation for compulsory acquisition of two consolidated lots at Mt Evelyn. It fixed market value at $95,000 as at the acquisition date 8 April 1999, accepted certain disturbance and professional expenses totalling $5,441, and awarded solatium at 5% ($4,750), making total compensation $105,191. The Tribunal rejected valuation evidence premised on post-acquisition facts or unlawful subdivision potential, disallowed expenses incurred in prosecuting the Tribunal proceedings and expenses of the claimant's son, and found no effective extension of time under s 57.
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The Minister for Environment and Conservation compulsorily acquired Mr Hubert Herman Kupfer’s interest in two consolidated lots, Lots 75 and 76 on Plan of Subdivision No. 9350, Blakiston Avenue, Mt Evelyn. The Notice of Acquisition recorded the acquisition date as 8 April 1999 (see [8], [10]). The acquisition formed part of a government fire‑prevention buy‑back program and a planning amendment (L96) had reserved the land for proposed public open space (see [2], [14]). The Authority’s early internal valuation (March 1999) had assessed market value at $70,000 and that figure was communicated to Mr Kupfer (see [11], [15]). The claimant contested compensation and the Authority applied under s 80 of the Land Acquisition and Compensation Act 1986 for the Tribunal to determine the disputed claim (see [1], [3], [5]).
2 cited instruments linked from this judgment.
The Tribunal heard evidence over multiple days, inspected the subject land and several comparable sales, and received valuation evidence from three valuers: Mr Hollingsworth (for the Authority), Mr Penry (for the claimant), and Mr Bourke (report only). Planning evidence (Mr Verhoeven) described the planning constraints in force on 8 April 1999. The Tribunal reserved decision, later reconvened to deal with a request for inspection of additional properties, and delivered reasons and orders on 26 September 2003 (see hearing dates and [42]-[59]).
The Tribunal fixed total compensation at $105,191 composed of:
Statutory framework: The Tribunal’s task was statutory: determine compensation under ss 41 and 44 of the Land Acquisition and Compensation Act 1986 and make orders under s 89 (see [3]-[6], [24]). Key statutory points were:
Valuation, date and lawful use: The Tribunal accepted the expert evidence of Mr Hollingsworth, who valued the consolidated 5,118 m2 site by direct comparison at $95,000 as at 8 April 1999 (applying $18.50/m2 and comparable sales adjusted and inspected) (see [10], [15], [36]-[41]). Crucially, planning evidence (Mr Verhoeven) established that at the acquisition date the planning controls precluded subdivision and the erection of two separate dwellings (see [16], [31]). Because some claimant evidence (Mr Penry) valued the land as if the two lots had separate development potential or used comparables from 2003 or later, the Tribunal found that evidence unhelpful or unreliable for the valuation date and therefore rejected it (see [30]-[33]). The Tribunal emphasised that valuation must be anchored to the lawful highest and best use at the acquisition date.
Expenses and timing: The Tribunal conducted a line‑by‑line review of claimed expenses (exhibits 4–6). It allowed only those professional accounts and expenses it was satisfied were necessarily incurred by reason of acquisition and were not costs of prosecuting Tribunal proceedings. Items incurred after the Tribunal application was served (items 8 and 9 in exhibit 6 and certain legal fees) were excluded pursuant to s 41(4) as costs of prosecuting proceedings (see [85]-[89]). The Tribunal also excluded costs said to be incurred by the claimant’s son as not being the claimant’s expenses (see [81]-[83]). It allowed professional costs totalling $4,796 (items identified in the reasons) as necessarily incurred (see [89]-[90], [105(c)]).
Disturbance: The Tribunal allowed $645 for building permit related payments which it accepted were paid and could not be acted upon because of the acquisition, a classic disturbance item (see [65]-[66], [77]).
Solatium: The Tribunal exercised its discretion under s 44 and awarded solatium at 5% of market value ($4,750). The award was informed by the statutory factors and the claimant’s clear attachment to the land and distress at its loss (see [91]-[96]).
Interest/extension: The Tribunal considered whether correspondence between the claimant and departmental officer constituted an extension under s 57. It concluded that no defined extension period was established, so the extension contention failed; interest was treated as payable up to 9 July 1999 for the period conceded by the Authority (see [98]-[103]).
Before: The governing law is the Land Acquisition and Compensation Act 1986 with established principles: compensation measures under Part 4, concept of market value at acquisition date, inclusion of disturbance and certain expenses, and discretionary solatium (ss 41, 44). Authorities such as Roads Corporation v Dacakis were available guidance on solatium principles and earlier cases such as March v City of Frankston provided descriptive definitions of solatium (see [92]-[95]).
After: This VCAT decision applies those statutory principles to the facts and exemplifies discrete points of application:
The decision does not create new doctrine but demonstrates rigorous application of the statutory scheme and evidentiary scrutiny by a tribunal.
Paragraph 6: "Section 90 of the Act makes it clear that... the Tribunal is not bound by the exercise of any discretion of the Authority..."
Paragraph 31: "We accept the evidence of Mr Verhoeven that the planning controls... meant that the land could not have been subdivided..."
Paragraph 40: "Having regard to the evidence... we consider the valuation of $95,000... represents the market value..."
Paragraphs 85–88 (summary of expense exclusions): the Tribunal disallowed costs incurred after the application was served and costs which were prosecuting the case.
Paragraph 95–96 (solatium reasoning): the Tribunal considered statutory factors and decided to award solatium at 5%.
This VCAT decision is a Tribunal determination applying statutory provisions and is persuasive for subsequent Tribunal matters or lower courts dealing with comparable valuation and expense questions. The reasoning is orthodox: it applies established principles, market value at acquisition date, necessity of expenses, exclusion for costs of prosecuting proceedings, and discretionary solatium. Later decisions in Victoria considering detailed line‑by‑line assessments of claimed expenses, or valuation evidence premised on unlawful uses at the acquisition date, will likely follow the Tribunal’s methodology of close evidentiary scrutiny and strict adherence to the acquisition date (see [30]-[33], [70]-[90], [91]-[96]). Practitioners should treat the case as a practical guide to how VCAT applies ss 41 and 44 in contested valuations.
Practical takeaway for practitioners: ensure valuation evidence is squarely tied to the acquisition date and lawful use then, itemise and substantiate claimed expenses with invoices and timing to show necessity and that they pre‑date litigation; and frame solatium submissions around the statutory factors, addressing non‑pecuniary injury with documented evidence of attachment and distress.
Land Valuation List - s.80 Land Acquisition and Compensation Act 1986 - compulsory acquisition of owner's interest in land - determination of amount of compensation to be paid
Minister For Environment and Conservation as successor to the Minister For Conservation and Land Management
Lot 75 & 76 Plan of Subdivision No. 9350 (land in Plan of Consolidation No. 359685Y) Blakiston Avenue, Mt Evelyn
1. The amount of compensation payable to the Respondent arising from the acquisition of the subject land is fixed at $105,191.00 made up as follows -
* market value of the interest acquired $95,000.00
* legal, valuation and other professional expenses
necessarily incurred by the Respondent by reason of the
2. Any application for costs (including supporting submissions) is to be made in writing and filed with the Tribunal and served on the other party within 21 days of the date of these Orders.
Applicant: Mr P Connor of Counsel, instructed by Victorian Government Solicitor
1. The Minister for Environment and Conservation (the Authority) applied to the Tribunal under section 80 of the Land Acquisition and Compensation Act 1986 (the Act) for the determination of a "disputed claim". The application arose from the compulsory acquisition of the interest of Mr Hubert Herman Kupfer, the Respondent /Claimant (Mr Kupfer) in Lots 75 and 76 on Plan of Subdivision No. 9350, (land in Plan of Consolidation No. 359685Y) Blakiston Avenue, Mt Evelyn, being the land contained in Certificate of Title Volume 10328 Folio 935 (the subject land). Mr Kupfer was the owner of the subject land at the date of acquisition.
2. The purpose of the acquisition was stated in the letter dated 13 April 1999 to Mr Kupfer from the then Department of Natural Resources and Environment in the following terms -
"... your property is being acquired for fire prevention purposes. Amendment L96 to the Yarra Ranges Planning Scheme, which was approved by the Minister for Planning and Local Government on 10 December 1998, explained that reservation of the land for Proposed Public Open Space has occurred because of this Department's fire prevention buy-back program."
3. Section 80 of the Act provides in part that the "Authority" or the "claimant" may apply to the Tribunal for determination of a disputed claim in accordance with the Act.
4. It was not in issue that Mr Kupfer was entitled to make a claim for compensation under the Act. It was equally not in issue that this was a "disputed claim".
5. Section 89 of the Act obliges the Tribunal to determine the amount of compensation in accordance with the Act to be paid in respect of the claim, and to make any orders necessary to give effect to that determination.
6. Section 90 of the Act makes it clear that in determining the compensation payable the Tribunal is not bound by the exercise of any discretion of the Authority or by any opinion or determination of the Authority, but must determine the compensation payable in the particular circumstances of the case having regard to the provisions of the Act.
7. Part 4 of the Act concerns the measure of compensation. Section 41 sets out general principles on which compensation is to be based. Sections 43 and 44 concern matters affecting compensation and solatium respectively. Part 6 of the Act is concerned with the payment of compensation and interest on compensation.
8. The subject land is described in the Notice Of Acquisition published in the Victoria Government Gazette on 8 April 1999 as follows -
"Lots 75 & 76, on Plan of Subdivision No. 9350, (land in Plan of Consolidation No. 359685Y) Blakiston Avenue, Mt Evelyn, being the land contained in Certificate of Title Volume 10328 Folio 935"
9. The valuation reports of Mr Hollingsworth and Mr Penry, both of whom gave evidence before us, describe the subject land as being on the north west side of Blakiston Avenue, Mt Evelyn with a frontage totalling 48.04 metres, being irregular in shape with a total site area of approximately 5,118 square metres**.**
10. The valuation placed by the Authority on the subject land was $95,000 as detailed in a Report and Valuation dated 5 February 2003 of Mr Neil Hollingsworth of Hollingsworth St Clair Property. The report states that in Mr Hollingsworth's opinion the market value of the subject land was estimated to be $95,000 as at 8 April 1999.
11. We note that at the time of acquisition of the subject land the Department's valuer had assessed the amount of compensation payable for the market value of the subject land at $70,000, based upon an earlier Certificate of Valuation provided by Neil Hollingsworth and Associates Pty Limited, a copy of which was provided to Mr Kupfer at that time.
12. Mr Kupfer stated at the outset of the hearing that his claim was for $270,000 based on the valuation of Mr Penry. During his evidence, upon being referred to section 41(1)(a) of the Act, Mr Kupfer stated, in effect, that he considered the market value of his interest in the land on the date of acquisition to be $150,000 to $160,000. Thereafter in his evidence he stated that his claim was for $270,000 plus expenses.
13. We discuss the valuation evidence presented at the hearing in more detail later in these reasons.
14. Geoffrey Philip U'ren stated that his statement of 15 May 2003 filed with the Tribunal was true and correct. That statement and his oral evidence included evidence to the following effect -
* He was a senior property manager - land acquisition, Port Phillip Region, Department of Sustainability and Environment.
* In October 1994, the then Minister for Conservation and Environment announced that 28 properties would be acquired for fire prevention purposes to complete the Government's buy back program in the Dandenongs. The subject land was one such property. The aim was to acquire isolated properties in vulnerable situations, to consolidate forest boundaries to facilitate fire protection works for the protection of residential areas, and to conserve the natural values of the Dandenong Ranges.
* The Yarra Ranges Planning Scheme was amended by Amendment L96, gazetted on 10 December 1998. This amendment reserved the subject land and 6 other properties for "proposed public open space" so that they could be acquired in accordance with the then Department of Natural Resources and Environment fire prevention strategy.
* The subject land had been acquired to create a consolidated section of the Dandenong Ranges National Park to enable fuel reduction programs to be carried out. Residential development, if allowed to occur, would have posed a fire risk to people living on the land and adjoining residential areas, and would have restricted the Department's fire prevention programs.
* He had not received a completed Form 11 under the Land Acquisition and Compensation Regulations 1998 from Mr Kupfer. He did receive a number of letters from Mr Kupfer where Mr Kupfer indicated that he did not accept the offer. Mr Kupfer did not discuss the valuation very much at all.
* By letter dated 30 June 1999 Mr Kupfer had requested an extension of time in which to respond to the Department's compensation offer. At the time of his letter to Mr Kupfer of 29 January 2002 no claim for compensation had been received from Mr Kupfer.
15. Neil Hollingsworth stated that the content of his valuation report filed with the Tribunal was true and correct and contained opinions that were held by him. That valuation report, and his oral evidence, included evidence to the following effect -
* He was a certified practising valuer in the State of Victoria. He was a fellow of the Australian Property Institute, a fellow of the Real Estate Institute of Australia, and held a Diploma of Valuations and a Certificate of Business Studies In Real Estate from RMIT. He had been involved in continuous practise as a real estate valuer since 1976, being first registered in 1980.
* In his opinion the market value of the subject land was estimated to be the sum of $95,000 as at 8 April 1999.
* He considered the most appropriate method for determining the value of the subject land was the "Direct Comparison" approach to property valuation.
* His valuation of the subject land had proceeded by applying a value of $18.50 per square metre which, further to the land having a land area of 5,118 square metres, resulted in a figure of $94,683 which he had rounded up to $95,000.
* He considered the valuation of the subject land was a value that was applicable to the area in which the land was located.
* The analysed sales information equated to between $10.93 per square metre for 17,376 square metres of land to $34.59 per square metre for 2,457 square metres of land. In respect to those properties more comparable to the subject land in terms of land size and location, the analysed rate was between $12.16 per square metre of land to $15.70 per square metre of land. The rate of $18.50 per square metre for the subject land compared favourably with the analysed property sales. There was no allowance for improvements and the valuation did not include any allowance for solatium.
* He had valued the subject land as a separate lot capable of taking 1 dwelling and without subdivisional potential.
* The land was on the low side of the road sloping gradually and a little more steeply towards the north and north western boundaries. It was quite heavily treed. It was an attractive allotment with possibly 2 potential home sites which did not necessarily involve significant excavation and road construction costs.
* He referred to the following "Schedule Of Sales Information" included as an appendix to his report. All such sales were of vacant land.
Sloping land. South-East aspect. High side of road. Quite heavily treed. Gravel road.
Sloping allotment. Land rises from Mt Dandenong Road to Inverness Road. Internal views. Quite heavily treed. More of a built up area. Access from Inverness Road.
Irregular shaped allotment. High side of road. Quite heavily treed. Sloping land. Westerly aspect. More of a built up area. Gravel road.
High side of the road. Northerly aspect. Sloping land. Treed. Gravel road.
Irregular shaped allotment. Abuts a reserve. Gently sloping. Internal views. Quite heavily treed. Sealed road.
Triangular shaped allotment. Gently sloping. Quite heavily treed. Abuts a reserve. Internal views. Sealed road.
* Of the 6 sales in the schedule sale 2 had the most similar characteristics to the subject land. It had a gradual fall from Inverness Avenue to Mt Dandenong Tourist Road. In his assessment he had adjusted the property upwards by about $10,000 because the sale was 9 months prior to the relevant date, there would be road noise from the tourist road and there would be an increased cost of fencing because of there being 2 road frontages. Sale 2 had mains water which the subject land did not.
* Sale 3 had some similarities. The road was gravel and the zoning was similar. The land was on the high side and had a sweeping uninterrupted westerly aspect. Mains water and mains gas was available. It was almost an "A grade" location. Sale 3 set the benchmark.
* Sale 4 set the lower level of value. This land had similarities to the subject land but was a little more isolated. It was included in a high debris flow risk area, and was encumbered by a zoological significance overlay. He considered it to be a costly block to build on.
* Sale 1 was an attractive block with a level of value not dissimilar to the subject land.
* Sale 5 was a 4 acre block in a superior location and much larger than the subject land.
* The earlier $70,000 valuation prepared by his office and dated 25 March 1999 "stood" up until the time he attended a conference of valuers. He had taken "on board" information provided at the conference. He provided a further valuation which he felt was justified.
*The statement in the $70,000 valuation that "Blakiston Avenue is not formed or accessible" was not correct. Blakiston Avenue was formed and accessible.
* in 1997 the 2 lots comprising the subject land were consolidated.
16. Martin Verhoeven stated that his report filed with the Tribunal was true and correct and contained opinions that were held by him. That statement and his oral evidence included evidence to the following effect -
* His qualifications included Bachelor of Town and Regional Planning (Melbourne University), Member, Planning Institute of Australia and Diploma of Civil Engineering (RMIT). During the past 40 years he had gained a broad experience of general town planning, engineering and building matters with specific reference to local government.
* The current land holding in relation to the subject land was formed by the consolidation of 2 allotments, being lot 75 (Vol 6192 Fol 1238316) and lot 76 (Vol 7861 Fol 008) on Plan of Subdivision 9350.
* Having regard to the planning controls which applied to the subject land on 8 April 1999, the subject land could not have been subdivided, could not have been developed with 2 dwellings, and could not be developed with 2 dwellings that could be disposed of separately.
17. Trevor Penry, valuer. His valuation reports and his oral evidence included evidence to the following effect -
* He was a fellow of the Australian Property Institute, held a certificate of qualification issued by that institute, and had been a practising valuer since 1966.
* Property 2 in Mr Hollingsworth's "Schedule of Sales Information", being 1162 Mt Dandenong Road faced east, had no sun, was cold and not secluded.
* Properties 5 and 6 in Mr Hollingsworth's schedule, being 119 and 121 Mt Dandenong Road he knew in particular. To his observation, those sites did not possess views, had an easterly outlook, and would not be as warm as a westerly facing site. They did not have the outlook the subject land possessed.
* The valuation of the subject land as 2 separate lots would achieve more than as 1 large lot.
* Blakiston Avenue was formed and accessible for a passenger vehicle.
* He was initially instructed to assess the current market value of the subject land on the basis that it could be sold under normal circumstances in the current market. He considered that the value of the land at February 2003 as consolidated was $245,000.
* The value of the 2 individual sites at February 2003, on the basis that they could be developed as individual lots was $270,000. This was on the basis of $120,000 for the northern part of the site and $150,000 for the southern part of the site.
* It was not possible for him at the time of giving his evidence to value the subject land as consolidated at the 1999 valuation date. The valuations he had provided were those he was instructed to undertake.
* The comparable sales referred to in his first valuation report of 6 February 2003 reflected the instructions he was given to produce a market valuation, so he had chosen sales proximate to 5 February 2003. He agreed that those sales would be unhelpful in assessing the value of the subject land as at 8 April 1999.
* Subsequent to his first valuation report he had received instructions to do a valuation as at 8 April 1999. He had assumed that the controls that applied in February 2003 still applied in April 1999. He had valued the site on the basis that the 2 lots had not been consolidated.
* He valued lot 75 at $70,000 and lot 76 at $100,000. He had not previously seen the report of Mr Verhoeven. He accepted the report's conclusions. The report indicated that it would not be possible to develop the land with 2 dwellings.
18. Hubert Herman Kupfer. It was quite clear from the evidence of Mr Kupfer that the acquisition of the subject land had caused him considerable anguish.
19. We suspect that to this day he harbours hope that the acquisition may in some way be reversed. It was equally clear that he has found the process relating to the acquisition disturbing. He stated that the original $70,000 valuation of the subject land had "caused us a lot of hardship and disappointment". He considered the valuation figure was nowhere near what the subject land was worth. Apart from the $70,000 valuation figure, the statement in the valuation that "Blakiston Avenue is not formed or accessible", acknowledged by Mr Hollingsworth in his evidence to be incorrect, further dismayed Mr Kupfer. It is clear that he also did not accept the reason for the acquisition, as set out in paragraph 2 above.
20. A considerable amount of the evidence of Mr Kupfer focussed on the matters referred to in the preceding paragraph. His evidence also included evidence to the effect that -
* He had purchased the land for his 2 sons. One son had moved away. His other son had plans to build on the subject land. He wanted his son living close to him.
* The land was more important to him than monetary compensation.
* It would not now be possible to buy comparable land for $95,000.
* Up until the time that the matter came to the Tribunal, despite numerous letters from Mr U'ren requesting that he put in a claim, he did not do so. The reason being that he always thought there might be a chance he might get the land back.
* The first time he had put hard figures down on paper was his letter of 15 April 2003 to the Tribunal when he requested "$270,000 - plus expenses".
* In relation to the expenses/matters claimed by him as set out in exhibit 4 -
Item 1, "land survey". This was conducted in 1974. Whilst the figure claimed was $3,500, he had paid $250 at that time. To arrive at the figure of $3,500, he had "added inflation and estimated it", and that to get a survey done in the area now that is the figure one would be looking at.
Item 2, "burning + clearing over 25 years". The amount claimed was $12,000, and related to his and his son's labour in relation to a burn conducted perhaps every 2 years.
Item 3, "collecting fencing materials, chain wire, posts and others + storing same". The claim was for $800. He had not paid for these items and it was mostly labour intensive. Further, that the collection of the fencing materials took place when the permit to build was obtained in 1997.
Item 4, "attending to surveyors & council", a claim for $350, involved "running around and going to the council".
Items 5 and 6, "building permit" and "permit", related to the building permit issued around about 1997 and 1998. The claim was for a total of $600.
Item 7, "shed pull down & deliv... by my truck", being a claim for $550, had occurred in 1997 or 1998.
Item 8, "attending to council meetings", $150, was in relation to the council meeting that dealt with the land "in 1998 or thereabouts", and was a claim for his time to attend the meeting.
Item 9 "renewing permit", a claim for $150, related to the renewal of the building permit. He had renewed the permit after the date of acquisition when the property was not his.
Item 10, "Letter writing (see folder), attending to valuator, meetings with NRE, solicitors, surveyors, phone calls", a claim for $10,000, which included a claim for stress.
* In relation to the expenses/matters claimed by him as set out in exhibit 5, headed "Blakiston Rd Expenses", the amounts claimed total $4966.78. These expenses were his son's expenses.
* In relation to the expenses/matters claimed by him as set out in exhibit 6, he had not terminated Mr Bourke's services as a valuer. He had been unhappy with the services of his first solicitors. This led him to consult another firm of solicitors.
21. In the presence of a representative of the Applicant and Mr Kupfer we inspected the subject land on 30 June 2003.
22. Further to discussion during the hearing we determined to view the 6 properties listed in the "Schedule Of Sales Information" included in the appendices section of Mr Hollingsworth's report.
23. We have more to say later in these reasons about the viewing of properties.
24. It is clear from section 89 of the Act that the Tribunal must determine the amount of compensation to be paid in respect of the claim. Sections 41 of the Act sets out the general principles upon which compensation is to be based, listing a number of factors to which the Tribunal must have regard.
Section 41(1)(a) The market value of the interest held by the claimant in the subject land on the date of acquisition.
25. Mr Hollingsworth in his report and valuation of 5 February 2003 valued the subject land at $95,000.
26. Mr Connor submitted that we ought accept Mr Hollingsworth's evidence in full, contending that this was the evidence of greatest assistance. He submitted that Mr Hollingsworth had, among other things, adopted a definition of market value which had the same import as that contained in section 40 of the Act, had appropriately adopted 8 April 1999 as the relevant date, had considered the highest and best use of the land, and had demonstrated a thorough and considered approach to comparable sales.
27. He further contended that Mr Hollingsworth's evidence was the only sworn expert evidence before the Tribunal that constituted an appropriate valuation of the subject land on the relevant date.
28. Mr Kupfer in his evidence suggested a claim of $150,000 to $160,000 under section 41(1)(a) of the Act for the subject land.
29. We have earlier referred to the reports and evidence of the valuers.
30. As we have earlier observed, Mr Penry's evidence was to the effect that it was not possible for him at the time of his evidence to value the subject land as consolidated as at the 1999 valuation date.
31. We accept the evidence of Mr Verhoeven that the planning controls which applied to the subject land on 8 April 1999 meant that the land could not have been subdivided, could not have been developed with 2 dwellings and could not be developed with 2 dwellings that could be disposed of separately.
32. Accordingly, in our view, Mr Penry's valuations are of no assistance, principally for the following reasons. First, Mr Penry's earlier valuation values the subject land at 5 February 2003 whereas the date upon which the market value of Mr Kupfer's interest in the land is to be assessed is the "date of acquisition" as defined in section 3 of the Act, namely 8 April 1999. Second, his later valuation, whilst valuing the land as at 8 April 1999, does so on the basis that the 2 lots had not been consolidated.
33. The valuation report of Mr Bourke dated 24 August 2000 valued the subject land as at 8 April 1999 at $110,000.
34. As referred to by Mr Connor in his submissions to us, Mr Bourke was not called to give evidence. Whilst we acknowledge Mr Connor's submission that Mr Bourke's report contains no information concerning comparable sales, the report states that the assessment of value was made on the basis of sales of allotments in varying degrees comparable to the subject property which were located in the general area. The report states that the details of such sales would be made available "if, and when, required".
35. In our view, Mr Bourke's report is of limited assistance in our deliberations. Correctly, in our view, it values the land as at 8 April 1999, and is made on the basis that a dwelling could be erected. We note that under the heading "Basis of Assessment" it is stated that "special value to the owner has been a consideration in assessing compensation". We accept the submissions of Mr Connor that Mr Bourke's report should be given much less weight than Mr Hollingsworth's evidence, substantially for the reasons put by Mr Connor.
36. Further to our inspection of the subject land we consider the land description section of Mr Hollingsworth's report to be a fair description of the subject land. We note that as it is in excess of 4 years since the acquisition, and that in that time some growth in trees would have occurred, and the condition of Blakiston Avenue may well have deteriorated.
37. In assessing the 6 properties in M r Hollingsworth's schedule of sales information, we have taken into account factors including date of sale, location, size and access and amenities. As would be expected in an area such as the Dandenong Ranges, allotments are not of standard dimensions. Generally we consider the comments made by Mr Hollingsworth in his report to be an accurate description of the 6 properties.
* sale 2, which is now developed with a timber dwelling. The property enjoys good access from Inverness Road and is surrounded by developed allotments.
* sale 4, now improved, but a substantially smaller site.
* sale 3, located in a built up area, the price reflecting a large sized allotment in a good area.
* sale 1, some 40% larger than the subject site, being sloping land on the high side of the road with a good open view.
39. Sales 5 and 6 were of significant variance in size and could only be regarded as being of limited assistance.
40. Having regard to the evidence and material before us, our inspection of the subject land, and our viewing of the properties set out in the schedule to Mr Hollingsworth's report, we consider the valuation of $95,000 of Mr Hollingsworth represents the market value of the land on the date of acquisition.
41. Accordingly, we assess the market value of Mr Kupfer's interest in the subject land on the date of acquisition as $95,000.
42. The following paragraphs in this section of our reasons concern the re-listing of the proceeding on 5 September 2003 further to a request by Mr Kupfer, made after the hearing, that we view additional properties.
43. At the conclusion of the hearing on 25 June 2003 we reserved our decision and determined that we would in the presence of a representative of the Applicant and Mr Kupfer inspect the subject land on 30 June 2003. We also made it clear that we intended to view, in the absence of the parties, other properties in the nature of comparable sales.
44. The inspection of the subject land and the viewing of the other properties occurred on 30 June 2003.
45. By letter dated 30 June 2003, Mr Kupfer wrote to the Tribunal. In part that letter requested that we look at certain additional properties. We caused a copy of that letter to be sent to the solicitor for the Applicant.
46. By letter dated 17 July 2003 addressed to a Senior Registrar at the Tribunal, the Victorian Government Solicitor advised that the acquiring authority believed that it was not appropriate for further correspondence to be sent to the Tribunal by any party, and that the letter from Mr Kupfer should be ignored.
47. By letter dated 23 July 2003, Mr Kupfer again wrote to us. That letter enclosed a copy of a letter to the solicitor for the Authority written in response to the solicitor's letter to the Tribunal of 17 July 2003.
48. It was in those circumstances, after some deliberation, that we determined to reconvene the hearing on 5 September 2003.
49. At the reconvened hearing, Mr Kupfer in effect, submitted that we ought particularly view 15 Mountain Crescent, Montrose, land at the south west corner of Mountain Crescent and Harrison Road, Montrose, and land at Hereford Road, Mount Evelyn.
50. Mr Connor submitted that we ought not inspect any of these properties. He submitted that the Tribunal had a charter to deal with matters expeditiously. Further, that there had been a significant break between the second and third hearing dates which had afforded Mr Kupfer an opportunity to gather his thoughts as to comparable properties. He also referred to various matters which he contended distinguished the subject land when compared to these properties, and that an inspection was not warranted.
51. Mr Connor also submitted that, with the exception of 15 Mountain Crescent, Montrose, if we determined to inspect the properties the Applicant wished to be notified, and may seek the opportunity to re-open the hearing for the purpose of calling valuation and planning evidence regarding those properties.
52. We observe that Mr Kupfer in his letter of 30 June 2003 acknowledged that during the earlier hearing he was asked whether he wished that we view any properties. His letter of 30 June 2003 states in part, "Mr Chairman you asked me many times whether I wanted you + Mr Robinson to look at some land. At the time I was a bit taken back and speechless in this regard".
53. We further observe that, prior to the re-convening of the matter, the hearing was conducted over 3 days. We made it clear at the end of the second hearing date and the third hearing date that on the inspection date we would visit the subject land with Mr Kupfer and a representative of the acquiring authority, and we would then visit on our own other properties in the nature of comparable sales and we would then determine the matter.
54. We have determined that we should not accede to Mr Kupfer's request that we inspect any further properties. We do not consider that to do so would assist us in our deliberations, principally based on the following considerations.
55. In relation to 15 Mountain Crescent, Montrose the principal issue was its proximity to the subject land. Mr Connor informed us that it was not in dispute that the property was proximate to the subject land. We were able to identify from the street directory the distance both by road and "as the crow flies" between the 2 properties. Our inspection of the subject land afforded us the opportunity to assess the views from the subject land.
56. In relation to the land at the corner of Mountain Crescent and Harrison Road, Montrose, the sales of that land occurred in March and August 2001, a period 1 year and 11 months and 2 years and 4 months after the date of acquisition of the subject land, in what Mr Connor contended was a market moving substantially. We consider that compared to the lands we viewed on 30 June 2003, these sales would be of no assistance.
57. In relation to the 15 ½ acre sites in Hereford Road, Mount Evelyn, we understand these sites to be approximately 4 kilometres distant from the subject land. We note the advertising brochure produced at the reconvened hearing suggested that these sites are on a sealed road and have all services. We consider that when compared to the lands we viewed on 30 June 2003 these sales would be of no assistance.
58. We also note the statement in Mr Kupfer's letter to us of 30 June 2003 that Mr Bourke who provided a valuation exhibited before us in the proceeding was shown the above properties.
59. We record that at the conclusion of the re-convened hearing we reserved our decision as to whether we would view any further properties. We also reserved the costs of the re-convened hearing date.
Section 41(1)(b) Any special value to the claimant on the date of acquisition.
60. "Special value" is defined in section 40 of the Act to mean -
"in relation to an interest in land, means the value of any pecuniary advantage, in addition to market value, to a claimant which is incidental to his ownership or occupation of that land."
61. When we referred Mr Kupfer to section 41(1)(b) of the Act he contended that his son would have been able to build on the subject land. He stated that he would have helped his son with ideas. We conclude that Mr Kupfer had a picture of an environment in which he had ongoing contact with his son who would have resided close to him on the subject land. He informed us that he still liked visiting the subject land.
62. Mr Connor submitted that "special value" was not applicable to any of the expenses claimed in the "Blakiston Road Expenses" document exhibited before us.
63. On the basis of the evidence and material before us we do not consider there to be any "special value to the claimant" in the context of special value as defined in section 40 of the Act.
64. It is clear, in our view, having regard to the definition of "loss attributable to severance" in section 40 of the Act, and the material and evidence before us, that there can be no acceptable claim in this matter for loss attributable to severance.
65. When referred to this provision, Mr Kupfer stated, in effect, that it would be hard to find another block of land to replace the subject land.
66. Mr Connor referred to the building permit and submitted that if the $150 receipt attached to Mr Kupfer's "List of Expenses" (exhibit 4) concerned the building permit then it was compensable as it was a permission that could not be proceeded with arising from the acquisition. Mr Connor conceded that it was an appropriate amount under this provision. He further conceded that, if we were satisfied that the $450 at item 6 of exhibit 4 (amended to $495) was payment for a building permit or additional payment, it was a permit that could not be acted upon.
67. Mr Kupfer's evidence was to the effect that the payment referred to in item 6 related to the same building permit in item 5 of exhibit 4. We accept that evidence and consider that the $645 costs incurred by Mr Kupfer in relation to the building permit ought be included in the compensation payable.
Section 41(1)(e) The enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the implementation of the purpose for which the land was acquired
68. As we understand his submission, Mr Kupfer contended that the acquisition of the subject land had made his property at Mountain Crescent Montrose less attractive.
69. Mr Connor submitted that the provision was not relevant.
70. Mr Kupfer's land in Mountain Crescent does not adjoin the subject land. We do not consider there to be any compensable claim under section 41(1)(e) of the Act.
Section 41(1)(f) Any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition of the interest.
71. Mr Kupfer gave evidence in relation to a number of matters concerning expenses. We have referred to some of that evidence earlier in these reasons.
72. It is most convenient to deal with the issue of "expenses" having regard to the claims made in the documents produced during the hearing and given exhibit numbers 4, 5 and 6. We deal with them in that order.
73. We have at paragraph 20 set out details of the amounts claimed in exhibit 4 as expenses.
74. Mr Connor submitted that items 1 and 2, concerning the survey of the subject land and burning and clearing were too remote and not compensable. Further to the evidence of Mr Kupfer in relation to these matters to which we have earlier referred, we accept Mr Connor's submissions that these "expenses" are not compensable.
75. Mr Connor submitted that there was no nexus between item 3 and the acquisition. Having regard to Mr Kupfer's evidence on this item to which we have earlier referred, we agree that the item is not compensable.
76. In relation to items 4 and 8, Mr Connor referred us to Cachia v Hanes (1994)179 C.L.R. 403 and submitted that it was inappropriate for the Applicant to claim for his time in attending to these matters. We note that Mr Kupfer stated that part of the time related to time spent in obtaining the consolidation of the 2 blocks. We do not regard items 4 and 8 as compensable.
77. We have previously stated that we have allowed the claims for items 5 and 6 under section 41(1)(d) of the Act.
78. We accept Mr Connor's submission that there was no nexus between item 7 and the acquisition, and that it was not compensable.
79. Mr Connor submitted that item 9 was not claimable. Mr Kupfer's evidence was to the effect that he had renewed the building permit after the date of acquisition. In these circumstances we do not consider such payment to be compensable.
80. Mr Connor submitted that the matters in item 10 had not been particularised and should not be allowed. Having regard to Mr Kupfer's evidence to which we have earlier referred, we agree that these items are not compensable.
81. Exhibit 5 is headed "Blakiston Rd Expenses". The amounts claimed total $4966.78. Mr Kupfer in his evidence stated that these expenses were his son's expenses. Apart from his oral evidence, the figure of $4.966.78 is referred in exhibit 6 under expenses as "my sons as per 21" being the first page of exhibit 5.
82. Mr Connor submitted that these expenses were not expenses within section 41(1)(f) of the Act. Whilst he conceded that it could be argued that a number could be losses attributable to disturbance, because the expenses were not Mr Kupfer's expenses, the claim by Mr Kupfer for these expenses must fail.
83. We accept the submission of Mr Connor. In our view in determining the amount of compensation payable to Mr Kupfer as claimant, we may not include an amount of compensation for asserted losses of his son.
84. The amounts claimed in exhibit 6 are particularised in part as follows -
85. Mr Connor submitted that items 8 and 9 in exhibit 6 were not within the terms of section 41(1)(f) of the Act as they were costs incurred by Mr Kupfer in the course of prosecuting the proceedings, as provided in section 41(4) of the Act. He submitted that this was also the case in relation to the legal costs referred to in items 4 and 7.
86. Section 41(4) of the Act provides that the expenses referred to in sub-section 41(1)(f) of the Act do not include any costs incurred by a claimant in the course of prosecuting any proceedings in the Tribunal or the Court under Part 10 of the Act. The application to the Tribunal in this proceeding was filed with the Tribunal on 7 August 2002 and served on Mr Kupfer on 10 August 2002.
87. Items 8 and 9 relate to the valuations of Mr Penry. We are satisfied on the basis of the evidence and material before us, including the tax invoices forming part of exhibit 6, that these expenses were incurred by Mr Kupfer in the course of prosecuting the proceeding before the Tribunal and, accordingly, are not allowable.
88. We are also satisfied this is the case in relation to items 4 and 7 of exhibit 6. We conclude that these costs were incurred after the application was served on Mr Kupfer. We also note the evidence of Mr Kupfer to the effect that he had not paid the amount being item 7, and may not do so.
89. In relation to the other costs listed in exhibit 6, namely items 1, 2, 3, 5 and 6, Mr Connor conceded that it was entirely appropriate for the acquiring authority to pay something that was a "fair thing". However, Mr Connor further contended, in effect, that it would be unfair for the Acquiring Authority to pay all the accounts from professional advisers in circumstances where Mr Kupfer had moved from one professional adviser to another and not accepted any of the advice given to him.
90. We do not consider the evidence as to the conduct of Mr Kupfer concerning items 1, 2, 3, 5 and 6 ought cause any of those items to be disallowed. We are satisfied that they were "necessarily incurred" for the purposes of section 41(1)(f) of the Act. We further consider each to be an allowable claim under section 41(1)(f) of the Act. The amounts allowed total $4796.
91. In exhibit 4 Mr Kupfer claims solatium of $10,000.
92. Mr Connor referred us to Roads Corporation v Dacakis [1995] VicRp 70; [1995] 2 VR 508, and passages in 'The Law of Resumption and Compensation in Australia', (Jacobs, LBC Information Services 1998). Whilst acknowledging that the matter of solatium was a matter for the Tribunal's discretion, he submitted that where so few of the considerations in section 44 of the Act were relevant, the solatium to be awarded ought be at the lower end of the scale.
93. In his written submissions Mr Connor contended that it was arguable that there had been "intangible and non-pecuniary disadvantages resulting from the acquisition" for the purposes of section 44(1) of the Act. He stated that this non-pecuniary disadvantage was constituted by Mr Kupfer's sense of loss arising from the inability of his son to build a dwelling on the subject land. He noted that it was conceded by Mr Kupfer that the subject land had not been occupied and that no resident had been disturbed.
94. We have given consideration to what we consider to be all relevant circumstances, including the matters referred to in sub-section 44(2)(a) to (g) of the Act. It is clear from the opening words of the sub-section that the matters set out in paragraphs "(a)" to "(g)" are not intended to be an exhaustive list of matters to be taken into account. Whilst many seem directed to circumstances where the claimant is resident on the land, we note that paragraphs (a) and (f) are specifically not related to occupation or residence.
95. We have earlier in these reasons referred to the hopes that Mr Kupfer had in relation to the usage of the subject land. Mr Connor referred to Mr Kupfer's sense of loss arising from the inability of Mr Kupfer's son to build on the land. It is clear that a very strong attachment of Mr Kupfer to the subject land was broken by its compulsory acquisition. We are of the view that this is a relevant circumstance applicable to the claimant in assessing the amount payable by way of solatium. In this context we refer to the following passage in 'The Law Affecting Valuation of Land in Australia' (Hyam, The Law Book Company Limited 1995) at page 264 -
"The ordinary meaning of the word 'solatium' is 'a sum of money or other compensation given to a person to make up for loss or inconvenience', to which the Shorter Oxford English Dictionary (3rd ed) adds, 'specifically in law a sum of money paid over and above the actual damages as solace for injured feelings.' As Barber J said in March v City of Frankston (No 1) [1969] VicRp 44; [1969] VR 350 at 356:
It is an expression apt to describe an award of some amount to cover inconvenience and in a proper case distress caused by compulsory taking. It is quite inapt to describe an amount awarded for provable loss to which the claimant is entitled."
96. We have earlier determined the market value of the subject land as $95,000. In all the circumstances we consider the amount payable by way of solatium under section 44(1) of the Act ought be 5% of the market value of the land, namely $4,750.
97. Whilst we see the question of interest as following our determination rather than being part of it, we consider that we ought say something about the submissions that were put to us by Mr Connor concerning interest and, to assist the parties, make certain findings.
98. In his written submissions Mr Connor contended that interest in this case had been suspended by the operation of section 57 of the Act. He referred to exhibits E and F in the proceeding.
99. Exhibit E is a letter dated 30 June 1999 from Mr Kupfer to Mr U'ren. The letter states in part -
"Please excuse my letter about 10.4.99 and also study the statement at the L96 Council meeting. Till then please extend the time which I believe closes on 13.7.99"
100. Exhibit F is a letter dated 9 July 1999 from Mr U'ren to Mr Kupfer. The final paragraph is in the following terms -
"Whilst your response to NRE's offer is due by 13 July 1999, I am happy to give you an extension of time in which to respond. Please let me know how much time you think you will need. I hope I have addressed all your concerns, however please feel free to ring me on ... during business hours should you wish to discuss any issue further."
101. It seems from exhibit E that Mr Kupfer sought an extension of time to respond to the initial offer made to him by letter dated 13 April 1999. His letter of 30 June 1999 did not specify the period of extension sought. In our view, the letter dated 9 July 1999 from Mr U'ren, whilst evidencing a preparedness to grant an extension, did not by its terms extend the time. The letter sought Mr Kupfer's advice as to the period of extra time he needed. We conclude that, had a specific period of time been sought by Mr Kupfer in response to Mr U'ren's letter, further consideration would then have been given to the extension application. Section 57 of the Act in our view contemplates a defined period of extension. It follows that we do not consider exhibits E and F constitute an extension of time as contended by Mr Connor. In forming this view, we have also had regard to the terms of Mr U'ren's letter of 1 June 1999 (exhibit D).
102. We would observe in this context that the Authority made the application to the Tribunal. It is empowered to do so in circumstances where there is a "disputed claim". If exhibits E and F constituted an extension of time for Mr Kupfer to lodge a claim under section 33 of the Act, then it would seem the matter could not become a disputed claim during the currency of the extension. It would appear that it would only be when the extension expired that the Authority would be able to make an application under section 80 of the Act.
103. Mr Connor conceded that interest was payable as to the period between 8 April 1999 and 9 July 1999 being the period after the acquisition and prior to the date upon which he contended that an extension had been granted.
104. Having regard to our assessment of the evidence and material before us, the submissions of the parties, and our inspection of the subject land and other properties, we have determined that the amount of compensation for the acquisition of the subject land is fixed at $105,191.
105. The amount determined is made up as follows -
(a) market value of the interest in the land - $95,000
(c) legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition of the interest (being items 1, 2, 3, 5 and 6 of exhibit 6) - $4796.
106. Section 91 of the Act deals with costs of proceedings before the Tribunal. We further determine that any application for costs (including supporting submissions) is to be made in writing and filed with the Tribunal and served on the other party within 21 days of the date of our Orders
Minister for Environment and Conservation
Kupfer [2003] VCAT 1487
Tribunal fixed total compensation payable to the Respondent at $105,191 made up of market value $95,000, disturbance $645, professional expenses $4,796, and solatium $4,750; costs to be applied for within 21 days (Order and [104]-[106]).