MMTR Pty Ltd v Roads and Maritime Services

Land and Environment Court (NSW)|2012-10-26|Before: Craig J

Solicitors: Ritchie & Castellan Solicitors (Applicant) Ashurst Australia Lawyers (Respondent) File Number(s): 30484 of 2009

Judgment

MMTR Pty Limited (MMTR) is the owner of a parcel of land at Thrumster, about 9km west of Port Macquarie on the New South Wales mid-north coast. Prior to March 2009, the parcel of land then held by MMTR had an area of 133.65ha.
By a notice published in the Gazette on 27 March 2009, the Roads and Traffic Authority (the RTA) compulsorily acquired a little over 2ha of MMTR's land. The published notice stated that the land was acquired for the purpose of the Roads Act 1993 (NSW).
As the compulsory acquisition of that land was one to which the Land Acquisition (Just Terms Compensation) Act 1991 NSW (the Compensation Act) applied, the RTA was required by s 42 to offer compensation for acquisition of the land. The amount so offered, as determined by the Valuer-General, was $1,122,500.
MMTR objects to the amount of compensation offered by the RTA. It brings these proceedings pursuant to s 66(1) of the Compensation Act. Although the compensation for which it contends has varied from time to time, the maximum amount which it seeks is $21,448,273. That is the sum which it contends should be determined by the Court pursuant to s 66(2) of the Compensation Act.

The acquired and residue lands

Prior to acquisition by the RTA, MMTR held the following land: Lot 5 in DP 809815 Lot 1 in DP 1125824 Lot 2 in DP 1125824 These Lots had a total area of 133.65ha. It is convenient to refer collectively to those three Lots as "the parent parcel" or "the parent land". The land acquired by the RTA comprised five Lots, being: Lot 68 in DP 1095861 Lot 69 in DP 1095861 Lot 12 in DP 1130560 Lot 13 in DP 1130560 Lot 14 in DP 1130560 The total area of those five Lots is 2.04211ha. It is convenient to refer to these Lots collectively as "the acquired land".
As identification of the acquired land required subdivision of the parent parcel, the lands that remain in the ownership of MMTR are now identified as being: Lot 62 in DP 1095861, Lot 10 in DP 1130560, Lot 11 in DP 1130560. It is convenient to refer to these three Lots collectively as "the residue land". As I have earlier recorded, the aggregate area of the residue land is 131.6ha.
Each of the three Lots that comprised the parent parcel were irregular in shape with their longer boundaries oriented north-south. Lot 5 adjoined Lot 2 on the east while Lot 1 adjoined Lot 5 on the west. Each of Lots 1 and 5 were in two parts with those parts separated by a strip of land oriented in an east-west direction. These lands had been acquired by the RTA for the OHU. The two strips of RTA land were separated by Lot 2 of the parent parcel which had an hour glass shape, with its narrow pinch point, having an area of about 7070m² that separated the two east-west oriented strips of land that had been acquired by the RTA. Lot 2 had an area of 33.1ha. That narrow strip of land provided the only access to be gained by MMTR from the southern part of Lots 1, 2 and 5 to the northern section of Lots 1 and 2 which, in turn, had frontage to the old Oxley Highway or John Oxley Drive. Lot 13 of the acquired land was the portion of the former Lot 2 that linked the two east-west oriented strips of land that had been acquired by the RTA. The former Lot 2 minus the acquired land is now Lot 11 in the residue land, albeit separated by the acquired Lot 13.

The land and the Oxley Highway upgrade: a brief synopsis

At the date of acquisition the parent parcel was undulating land, partly cleared and apparently used as grazing land. Lot 62 within the residue land would appear to be that which, in the main, is heavily timbered while the remaining Lots of the residue land have been substantially cleared. The parent parcel is located within the Port Macquarie-Hastings Local Government Area. At the date of acquisition the relevant land use controls applicable to the land were those contained in Port Macquarie-Hastings (Area 13 Thrumster) LEP 2008 (LEP 2008). Upon the making of LEP 2008, the land was rezoned from a rural zoning principally to R1 General Residential. That rezoning took effect on 24 December 2008.
As will become apparent, planning for the area had extended over many years. The area on and in the vicinity of the parent parcel was included in what became known as "Area 13 Thrumster" (Area 13 or Thrumster). In spite of the consideration that had been given to the planning of the area, little development, beyond either rural or rural residential land use, had occurred in Area 13 as at March 2009.
The history of planning as well as the history of proposals for an upgrade of the Oxley Highway between Port Macquarie and the Pacific Highway may conveniently be given in summary form at this juncture. Greater detail addressed to elements of this history will need to be given when addressing the issues raised between the parties.
Following representations made in 1980 by Hastings Council (as it was then known) to the Department of Main Roads (the statutory predecessor to the RTA), the latter prepared a "location proposal" for the Oxley Highway between 4.3km and 14.7km west of Port Macquarie. A number of options were investigated resulting in the preferred option then identified as including the construction of an interchange where the Oxley Highway intersected with the Pacific Highway. The location of the Oxley Highway realignment then selected was rejected at head office of the Department of Main Roads, with the result that further options were then investigated.
In January 1986 a proposal for both the construction of an interchange where the two highways intersect and for a new section of the Oxley Highway, came to be known as the Southern Deviation Corridor. That proposal, as a concept, was approved by the RTA (or its predecessor) in September 1986. Apart from that approval allowing more detailed consideration to be given to interchange and road design, it enabled the Corridor to be identified to planning authorities so that account could be taken of its location in planning for those areas.
Over the ensuing years, approximately 15ha of land within the Corridor was acquired by the RTA or its statutory predecessor. Relevantly, in 1988 and 1991 land that I have earlier described as the east-west strips of land separating the northern and southern sections of both Lots 1 and 2 of the parent parcel were purchased by the Commissioner for Main Roads and RTA respectively.
Between 1999 and 2004 MMTR acquired its interest in the three Lots that comprise the parent parcel. Each of Lots 1 and Lot 5 of the parent parcel were, at the time of purchase by MMTR, burdened by restriction as to user affecting any means of access onto or across the strips of land owned by the RTA and which separated the northern and southern parts of each of those Lots.
On 30 October 2000 Hastings Council adopted the Hastings Urban Growth Strategy (HUGS). With three qualifications that are not presently relevant, HUGS was endorsed by the Director-General of the Department of Urban Affairs and Planning on 30 August 2001. The purposes of HUGS included the adoption of a "comprehensive Urban Land Release Strategy prior to any significant residential urban land releases". One of the areas identified within HUGS as accommodating "the bulk of the expected population growth" was the Thrumster locality, then identified as Area 13. That area was identified for further urban investigation. Maps included in the HUGS showed the relocated Oxley Highway along the Corridor identified by the RTA in 1986.
In August 2002, the Minister for Roads announced that the Oxley Highway between Wrights Road in Port Macquarie and the Pacific Highway would be upgraded. This did not include the highway interchange with the Pacific Highway, that interchange having been constructed and completed in 1990. The announcement by the Minister in August 2002 was the trigger for the detailed planning and design of the upgrade.
Between 2002 and 2004, MMTR, the Council and the Lewis Land Group (Lewis), acting for a group of landowners seeking to develop land in the Area 13, met to discuss land release for urban purposes in that area. As among the landowners, those discussions resulted in several project agreements as well as a development consultancy agreement being entered into on 2 July 2004. MMTR was a party to those agreements. The development and consultancy agreement required Lewis to provide development and consultancy services to assist the landowners to rezone, subdivide and develop their land. The landowners, in effect, agreed to comply with the directions of the project committee, comprising representatives of both the landowners and Lewis, pertaining to the development of all of the land to which the agreement applied. The parent parcel was included in that land.
Between 2004 and 2008 discussions continued among Lewis on behalf of the Area 13 landowners, the Council and the RTA concerning the precise location of the OHU, elements of its construction and points at which the upgraded highway would intersect with local roads. It was made known that the upgraded highway would be a controlled access road with the consequence that only a limited number of access points would be available.
A concern expressed by Lewis and the Council to the RTA was the provision of access from the southern part of the residue land to the northern parts of that land as both parts fell within the design for a new town centre. The prospect of twin bridges being provided over a section of that land beneath which provision for an underpass would be made was the subject of discussion among those parties. Those discussions resulted in the preparation of plans, including a plan of a road to be known as Carlie Jane Drive, showing the alignment of that road passing under the OHU so as to provide north-south access within Area 13.
On 12 June 2008 the Council adopted the Area 13 Thrumster Development Control Plan (the DCP). Parts 1 to 4 of the DCP contained general controls for Area 13 as well as identifying six "neighbourhoods" within the Area. The parent land north of the proposed OHU was identified as being within the North Oxley neighbourhood while the parent land south of the proposed OHU was identified as being within the South Oxley neighbourhood. The DCP required that further development control plans for each neighbourhood be prepared "before urban development occurs within the neighbourhood".
The DCP identifies the road hierarchy within Area 13. Both the OHU and John Oxley Drive are identified as arterial roads. Collector roads are identified as are the intersections between those collector roads and the arterial roads. Carlie Jane Drive is shown as intersecting with the OHU by means of an underpass.
At the meeting of the Council on 12 June, it also considered amendments that had been made to a draft voluntary planning agreement proposed to be entered into by the major landholders in Area 13 pursuant to s 93F of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act). The parties to the agreement included MMTR as well as the Council. By that time, Area 13 was also known as "Sovereign Hills". Not only did the agreement make provision for monetary contributions consequent upon the grant of development consent, but also for the carrying out of works or dedication of land within Sovereign Hills. One of those works to be carried out by the landowners, as developers, and for which a full offset of costs was to be provided against contribution otherwise payable to the Council was the construction and dedication of land to the Council for the underpass beneath the OHU which was then known as "the Port Gateway".
On 24 December 2008 the LEP was published in the Gazette. As I have earlier recorded, it rezoned most of the parent parcel, together with large tracts of land within Area 13, as Zone R1 General Residential. The LEP also contained provisions relevant to Area 13, proscribing the grant of development consent for the land unless a development control plan had been prepared in respect of the land to be developed.
At the time of publication of the acquisition notice on 27 March 2009, a development control plan had been prepared for the North Oxley neighbourhood, excluding a part of the residue land located within lot 62. However, no further neighbourhood DCP had been made relating to the excluded area of lot 62 or for the South Oxley neighbourhood by that date.
The North Oxley Development Control Plan along with the Town Centre Development Control Plan were incorporated into the general DCP to which I have earlier referred. That DCP, including its North Oxley neighbourhood component, came into effect upon the gazettal of LEP 2008 on 24 December 2008.
This summary of relevant events is provided by way of background so as to understand the claim made for compensation by MMTR and the issues that arise for determination, as identified by the parties.

The issues

I have earlier stated the aggregate claim for compensation made by MMTR. Apart from claims for legal costs and valuation fees under s 59 of the Compensation Act, totalling $25,377, the principal components of the claim are identified as being: Market value at $50/m² $1,020,000 Severance $16,000,000 Cost of a bridge over the OHU $4,372,896
In final submissions, MMTR appeared to retreat from the claim that its severance loss and cost of the bridge overpass were to be aggregated. That is a matter to which I will turn in due course.
I have already indicated in a summary way the response to the claim given by the RTA. Leaving aside the disturbance costs claims which are not in issue, it denies an entitlement to claim for severance, contends that "betterment" results in any other head of claim being assessed at nil or, at its highest, at $535,377, the market value of the land as residential land being assessed at $510,000 or $25 m².
In order to address these differences, the parties have identified the following issues for determination. 1. whether the residential zoning of the Area 13 under the LEP occurred by reason of the proposal to carry out the public purpose for which the land was acquired. 2. whether the residue land enjoyed betterment as a result of the proposal to carry out the public purpose. 3. if so, whether the betterment outweighs other heads of compensation. 4. if not, what is the appropriate rate per square metre to be determined for the market value of the land, allowing for adjustment to comparable sales for size and any other factors identified as relevant by the expert valuers? 5. whether there is severance of the residue land caused by the acquisition. 6. if so, does it result in loss of access to a public road for the residue land? 7. whether any loss of access results in any reduction in the market value of the residue land. 8. if so, what is the appropriate reduction? 9. whether the applicant was a "land banker" and therefore entitled to compensation for purchase of replacement land. 10. whether the cost of a bridge overpassing the OHU is a cost which might reasonably be incurred relating to the actual use of the land as a direct and natural consequence of the acquisition.
In final submissions, MMTR accepted that it was not a land banker, with the consequence that it was not entitled to claim legal costs and stamp duty on the acquisition of a replacement property. Claims for those sums had been included in its initial claim but, in light of its concession, I have not included the quantum of those claims when nominating the total compensation for which MMTR now contends.

Statutory provisions

In order to place the issues raised by the parties in their proper context, it is necessary to identify the relevant provisions of the Compensation Act that govern the determination I am required to make.
First to be noticed is s 54. Subsection (1) provides: "54 Entitlement to just compensation (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part will justly compensate the person for the acquisition of the land."
The requirement to determine just compensation in accordance with s 54(1) does not afford a discretion that is at large. As will be noticed, the amount of compensation is to be determined having regard to "all relevant matters under this Part", that is, under Part 3 of the Compensation Act. The provision of Pt 3 of relevance to the determination of compensation is s 55, as the expressions used in that section are further defined or explained in ss 56-60, together with the limitations or qualifications expressed in ss 61-65. It is within the confines of those sections that the determination of just compensation conformably with s 54 is to be made (Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; 149 LGERA 439 at [37]; Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority (NSW) [2006] NSWCA 314 at [45]). It will therefore be seen that s 55 is critical.
Relevant to the issues raised in these proceedings, the section provides: "55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): 1. the market value of the land on the date of its acquisition, 2. … 3. any loss attributable to severance, 4. any loss attributable to disturbance, 5. … 6. any increase or decrease in the value of any land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired."
The provisions of s 55(f) are not the subject of any further explication in Pt 3 of the Act. However, those other heads of consideration identified in s 55 are the subject of definition in the succeeding sections. Market value is addressed in s 56. Relevantly, that section provides: "56 Market value (1) In this Act: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law."
A difference will be noticed between the statutory language used in s 55(f) and s 56(1)(a) when addressing the impact upon the land to which the respective provisions are directed, as that impact arises from the carrying out of or the proposal to carry out the public purpose for which the land was acquired. Section 56(1)(a) speaks of an increase or decrease in value "caused by the carrying out of, or the proposal to carry out, the public purpose" whereas s 55(f) addresses impact "by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired" (added emphasis). These differences, if of any substance, will be addressed in due course.
Severance occasioned by acquisition of land is addressed in s 58. That section provides: "58 Loss attributable to severance In this Act: loss attributable to severance of land means the amount of any reduction in the market value of any other land of the person entitled to compensation which is caused by that other land being severed from other land of that person."
Having identified the critical provisions of the Compensation Act, I turn then to consider the issues as identified by the parties.

Issues 1, 2 and 3: "The public purpose" and "betterment"

It is convenient to address these issues under a single head, albeit that there are several topics to be considered in order to resolve the issues. The course of addressing these issues first is taken because of an agreement reached between the consultant valuers retained by the parties.
Mr Lopco Neskovski was the consultant valuer retained by MMTR, while Mr David Lunney was the valuer retained by the RTA. Although there are significant differences between them both, as to the market value of the acquired land and the quantum of compensation to be assigned to "severance", if any, they are agreed upon one of the approaches to valuation taken by Mr Lunney. That agreement is expressed in their joint report (Exhibit D, Vol 3 p 696): "It is agreed that if the assumptions made by Mr Lunney in his valuation Scenario 2 are to be adopted, the amount of betterment accruing to the Residue Land would substantially exceed all other heads of compensation, including market value and as such no compensation would be payable to the applicant. The assumptions made in relation to Mr Lunney's valuation Scenario 2 are: The rezoning of the Parent Parcel occurred by reason of the proposal to carry out the OHU, and The OHU is a single public purpose spanning from approximately 1986 to the current date."
Mr AJJ Thompson, who appears for MMTR, accepts the conclusion expressed in the agreement reached between the valuers. However, on behalf of MMTR he submits that the two stated assumptions upon which that agreement is founded have not been established. As a consequence of the agreement and its acceptance in principle by MMTR, it is apparent that if the assumptions founding the agreement are established, it will be unnecessary to determine the remaining issues identified by the parties.
In the context of the Compensation Act, the primary provision relevant to the determination of the present issues is s 55(f). The two matters arising from that provision that must be addressed are first the determination of the "public purpose" for which the land was acquired and second the determination as to whether, at the date of acquisition, the asserted increase in value of the residue land that adjoined or was severed from the acquired land occurred "by reason of" either the proposal to carry out or the carrying out of that "public purpose".
Before addressing each of those issues, there are two further matters that should, for present purposes, be noticed. First, I have recorded that the acquired land was, at the date of acquisition, zoned R1 General Residential under the provisions of LEP 2008. The residue land was principally so zoned albeit that areas within Lots 11 and 62 of that land were zoned Environmental Conservation, Environmental Management or Public Recreation. In spite of these additional zonings, for small areas within those Lots, it is accepted by the parties that the residue land may properly be categorised as having been zoned for urban purposes.
Secondly, Mr Thompson accepted that if the two assumptions upon which the valuers reached their agreement are established, the parent parcel would have been zoned Rural 1(a1) under Hastings Local Environmental Plan 2001 (Tcpt 296; 9-17). Upon those assumptions being established he accepted that the provisions of s 55(f) would be engaged with the consequence that the residential or urban zoning of the residue land occurred by reason of the proposal to carry out "the public purpose" for which the acquired land was acquired (Tcpt 293: 16-35).

Public purpose

The acquisition notice published in the Gazette stated that the five Lots acquired from MMTR were acquired for the purposes of the Roads Act. The purposes of that Act are many and varied. In the context of both s 55(f) and s 56(1)(a) of the Compensation Act, the public purpose for which land is acquired by compulsory process must be determined at a level of particularity beyond mere reference to the legislation under which the acquiring authority exercises a power of compulsory acquisition (Davies v Sydney Water Corporation [2012] NSWLEC 130 at [67]). In his expert report, Mr Neskovski contended that there were two public purposes for which the land was acquired by the RTA. However, in final submissions, Mr Thompson disavowed that contention (Tcpt 292:41-293:6). He submitted that the public purpose was the OHU. However, he submits that the action of the Council in rezoning land within Area 13 for urban purposes was unrelated to or not causally connected with the OHU.
For its part, the RTA also contends that the public purpose was the OHU between Port Macquarie and the Pacific Highway. It submits that the rezoning of Area 13 for urban purposes occurred by reason of the proposal to carry out the OHU.
I accept that the public purpose may be so described. Acceptance of that description of the public purpose is not confined to the precise detail of that which came to be identified in the approval given on 18 April 2006 for the OHU project. Such a narrow view of the public purpose would be inconsistent with authority. That public purpose which can extend to elements of the proposal to carry out the OHU, including the early consideration of potential alternate routes, can be considered as part of the identified public purpose.
So much is consistent with observations made by members of the Court of Appeal in Roads and Traffic Authority of New South Wales v Perry [2001] NSWCA 251; 52 NSWLR 222. The Court was there considering an appeal from a decision in this Court determining compensation for land compulsorily acquired for realignment of the Pacific Highway south of Coffs Harbour. Prior to acquisition, the land was used for grazing purposes and included the site of a disused quarry. When addressing the public purpose for which the land was acquired, Handley JA said at [66]: "The resumption of land in the middle of a substantial extension to an existing railway or highway will be for the public purpose of that scheme or project as a whole, and not just for whatever part of it is to be constructed on that land. Section 56(1)(a) would fail to achieve its evident purpose if the Court could award compensation for an increase in value due to the construction of the new railway or highway up to the boundaries of the land resumed and only had to ignore the proposal as it directly related to that land."
In the same case, Hodgson JA observed at [100]: "I do not think there are any clear rules determining how the relevant purpose or the appropriate level of generality is to be determined. Factors to be taken into account would, in my opinion, include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority. In the present case, I think it unlikely that the relevant public purpose could be as wide as the upgrading of the Pacific Highway between Sydney and the Queensland border; while on the other hand, assuming there have been a number of versions of the Perry's Hill extension, I think it unlikely that the public purpose could be as narrow as just the last of those versions. The public purpose could be as wide as the Raleigh Deviation generally, encompassing all the variations of that project including all versions of the Perry's Hill extension … ."
These observations are apt to be applied when considering the interrelation, if any, between the OHU and the actions of the Council directed to the rezoning of land at Thrumster.

The OHU and the planning regime

The relationship between the proposal for the OHU and the actions of the Council in altering the planning regime applicable to Area 13 necessitates a detailed examination of the evidence. Each of the parties retained consultant town planners to undertake this task, resulting in each planner expressing a conclusion called for by s 55(f) of the Compensation Act. Mr Michael Brown was the consultant planner retained by MMTR while Mr Harvey Sanders was the consultant retained by the RTA. Their respective conclusions as to whether any increase or decrease in the value of the residue land, consequent upon its urban purpose zoning, occurred by reason of the OHU is essentially founded upon the documents that they identify in their respective reports.
The separate and joint reports of the planners are recorded by each of the valuers as having been considered by them for the purpose of preparing their evidence. Relevantly, those reports are said to have been considered at the time at which the agreement between valuers that I have earlier recorded was reached.
Although there is disagreement between the planners on a number of topics, including the question as to whether the rezoning of the Area 13 land occurred by reason of the proposal to carry out the OHU, they were not called to give evidence at the hearing. The documents that founded their conclusions on that topic have been tendered in the proceedings as part of an agreed bundle of documents (Exhibit 1). Without intending any disrespect to them, the consideration of those documents and the drawing of inferences from them, relevant to the question to be determined, is ultimately an exercise that I am required to undertake in order to address what is a question of mixed fact and law. The parties volunteered that approach as appropriate to explain why the planners were not called.
The evidence indicates that representations were made to the RTA (or more correctly, its predecessor) by the Council concerning the Oxley Highway between Port Macquarie and its intersection with the Pacific Highway. As a result of those representations, in 1980 the RTA prepared a location proposal for a section of the highway located between 4.3km and 14.7km west of Port Macquarie. Three options were considered, namely a deviation of a section of the highway to the north, an upgrading of the highway along its existing alignment and thirdly a southern deviation. Following those investigations, the northern deviation was the subject of an internal recommendation in February 1983.
That recommendation was rejected in February 1983, followed by a suggestion within the RTA that widening the existing section of highway to four lanes would be satisfactory.
Upon further investigation, it was recommended internally that the southern deviation or realignment route initially considered was the most appropriate proposal to be adopted. The internal recommendation was that the road upgrade should include the construction of an interchange at the junction of the Oxley Highway and the Pacific Highway. Approval of that concept was given by the RTA in 1986 "for the purpose of developing the Corridor and obtaining a planning scheme reservation to preserve the land from adverse development". An environmental impact assessment of that realignment was not undertaken at that time.
In the meantime, the Council and the Department of Planning had jointly prepared a planning strategy document known as the Hastings Coastal Development Strategy and Residential Release Program. This strategy document was published in September 1983 (the 1983 Strategy). The expressed "overall" aim of the document was "to ensure the provision of sufficient serviced land to meet projected demands for different forms of housing and for tourist accommodation while maintaining appropriately zoned areas to prevent deterioration of land of the particular environmental quality which makes the area an attractive place to live and visit".
One of the specific purposes of the study, as expressed in para 1.3 was to: "(iv) Identify and advise the Department of Environment and Planning and Hastings Municipal Council on the provision, timing and financing of water and sewerage augmentation, major road works and community facilities appropriate to the residential release program."
Among the issues addressed in the 1983 Strategy were what was described as "engineering services". The services included "roads". Under that subheading, the general observation is made that many of the roads in the area "are substandard and require improvement". The 1983 Strategy also states that the Department of Main Roads "has long-term plans for bypasses in the area west and south-west of Port Macquarie" for the Oxley and Pacific Highways. The authors of the report comment that "both these roads … are even now in need of realignment".
The 1983 Strategy identified areas that were then considered to be free of both environmental and servicing constraints. Thrumster is not identified on the relevant map as being free from servicing constraints. While coastal areas within the local government area are identified as being within the short or medium term strategy, further areas were identified as "long term alternative areas for possible urban expansion". Thrumster is one such area. However, in respect of that area, the 1983 Strategy states: "Development to the west of Port Macquarie would present a more extensive area of urban sprawl and may detract from the present rural scenery that characterises this main approach road to the Port Macquarie centre. Major urban expansion to the west will pose further problems for disposal of sewage effluent in a manner that does not have severe environmental impact on the adjacent estuarine systems."
Finally, the 1983 Strategy sets out the residential release program for the period between 1984 and 1991. Area 13 is not so included.
Hastings Local Environmental Plan 1987 was published in the Gazette on 2 October 1987 (LEP 1987). Under LEP 1987, the parent parcel, along with other land in Area 13, was zoned Rural 1(a1). The map identified in the LEP, an extract of which was attached to the expert report of Mr Sanders, shows both the alignment of the then existing Oxley Highway between Port Macquarie and the Pacific Highway. The map also shows by dashed parallel lines what appears to be the approximate alignment of the then approved concept location for the OHU. According to the evidence of Mr Sanders, the legend to the LEP map indicated the area within these broken parallel lines as being "proposed arterial road". No different zoning was indicated for this proposed road, nor for any other road that appears on the map.
As I have earlier recorded, in 1990 an interchange was constructed at the intersection of the Pacific Highway and the Oxley Highway. This is the interchange that had been considered and approved in concept in September 1986.
In October 1999 the Council endorsed for exhibition a draft urban growth strategy for its area. The draft was on exhibition for a period of 6 months. Following exhibition and further revision, on 30 October 2000 the Council adopted that strategy known as Hastings Urban Growth Strategy 2001 (HUGS). Upon its adoption, the HUGS was forwarded to the Department of Urban Affairs and Planning for endorsement. That endorsement was received on 30 August 2001.
The HUGS identified areas for investigation as areas within which new urban development should take place. One such area was Area 13. The document stated, in terms, that the identification of an area for urban investigation did not mean that it would be rezoned for urban purposes and that any rezoning would only take place following further environmental and other investigations in order to determine its urban potential or constraints.
Two things should be observed from the content of the HUGS. First, the map identifying Area 13 shows the alignment of the OHU, indicated by the words "Proposed Oxley Highway Realignment". The road appears to be shown on the approximate alignment that was ultimately approved for it by the RTA. It passes through the centre of Area 13.
Secondly, the HUGS identifies "key uncertainties" for Area 13. The first of those identified uncertainties is "what long-term route the Oxley Highway will take, and the timing of any change".
Section 9 of the HUGS identified physical infrastructure issues. Although addressed briefly, the document states that the Council's "major roads network upgrading plans will need to be updated to support this Strategy".
Hastings Local Environmental Plan 2001 was published in the Gazette on 8 June of that year. The parent parcel maintained its zoning as Rural 1(a1) as did substantial areas of land in and surrounding Area 13.
In August 2002, the Minister for Roads announced that the OHU would proceed. As a consequence, a project team was assembled for the purpose of designing and implementing that upgrade. Part of that process involved the preparation of a Preferred Option Report completed in August 2003. Its purpose was to analyse in more detail than had previously occurred the corridor option for the upgrade, ultimately recommending that the southern deviation corridor, approved in concept in 1986, be the route of the proposed upgrade that should be the subject of detailed investigation and design preparation.
The Preferred Option Report stated that the existing highway alignment was of a poor standard. The number of access points along its length caused significant safety concerns, conflicts and time delays. Land already developed for urban purposes by subdivision adjacent to the existing highway had further resulted in an increase in traffic congestion.
In evaluating the possible new corridors for the highway upgrade, the Preferred Option Report made a number of assumptions in evaluating the preferred corridor. Those assumptions included an understanding of existing land uses as well as areas earmarked for future urban development. It was also assumed that land severance and acquisitions would be required, whichever option was selected. The stated assessment criteria include that the proposed upgrade "supports economic development (including future urban development as well as industrial areas)"; caters for future local traffic needs and provides ease of access to and from the chosen route. The inadequacies of the existing highway were such that a "do nothing" option was not considered because of congestion and safety issues.
Other matters of present relevance that were addressed in the Preferred Option Report included the following: 1. land along the preferred southern corridor had been purchased by the RTA following the conceptual approval of that corridor in 1986; 2. the HUGS identified Area 13 as a major growth area for Port Macquarie and the preliminary planning undertaken by the Council in that regard had been based on the location of the preferred southern deviation corridor; 3. that planning limits the ability of the RTA to move from the selected corridor; and 4. maintaining the preferred corridor will allow the existing highway to serve as a local access road. The Report records that it was prepared in consultation with the Council and followed a consultative process with community groups.
On 6 August 2003 a meeting was held among representatives of the RTA as well as representatives of major landholders in Area 13. A minute of that meeting records the RTA personnel as indicating that, at that time, "there is no preferred corridor". That is understandable as the Preferred Option Report was either about to be completed or had just been completed and was to be submitted to senior management of the RTA for endorsement of the recommendation there made.
The minutes of that meeting also record the RTA personnel indicating that the southern or preferred corridor was most likely to be announced as the preferred option.
In April 2004 a report was prepared by consultants Environmental Resources Management Australia (ERM) entitled Land Use Impacts Report upon the proposed OHU. The report was prepared for the RTA. As its title suggests, the stated objective for the report was to assess the potential implications for, and impacts of, the proposed OHU. Those impacts assessed were principally upon the existing and likely future land uses in the areas through which the OHU was proposed to pass. The author of the report observes that future urban development "will be substantially shaped by the location of a new highway and by the location and type of access provided".
The ERM Impacts Report acknowledges that Area 13 was identified in the HUGS as being investigated for "substantial urban development". The medium population prediction from the HUGS is 6,200 by the year 2021 with increases of up to 20,000 after 2021. It is, of course, to be remembered that at the time at which the HUGS was prepared, the southern deviation route was identified as passing through Area 13. The road design was intended to address access requirements for future development as identified in the HUGS, that is, urban development of the kind contemplated in the HUGS.
In May 2004 RoadNet Pty Ltd prepared a traffic study for the RTA in respect of the proposed OHU. It identified the existing two lane highway, with its limitations, as being "at capacity by year 2009", noting that the highway deviation was proposed to meet existing and future traffic needs. The study records that the OHU is being planned and designed to carry existing traffic, projected through traffic "and traffic generated by urban development in Area 13 for the medium population levels contained in the HUGS strategy to the year 2021".
The study contains traffic and transport data used to justify the project "and to assist in the design of the road and intersections". It records at para 5.4 that if no action is taken "the amount of urban development achievable within the study area would be severely limited". The study area is identified as being the area between the Pacific Highway/Oxley Highway intersection and Wrights Road, Port Macquarie. It includes the area identified by the Council in the HUGS as Area 13.
A detailed Concept Report in respect of the OHU was prepared in August 2004. This, so it seems, was the precursor to completion of a review of environmental factors for the project. The project objectives are expressed in the Concept Report as being the improvement of road safety and provision of improved access between the Pacific Highway and Port Macquarie. Issues relating to the Highway upgrade included support for economic development and the provision of transport solutions that are "complementary with land use and that take into account future development".
Much of the material contained in the Concept Report repeats what was written in the Preferred Option Report of August 2003. I do not repeat that material in addressing the present issue. The Concept Report maintains that limited but appropriate access would be provided to the OHU to meet the medium projected population growth identified in the HUGS "and resulting traffic generated for the locality 20 years into the future". The Report continues at para 6.8: "The Area 13 planning process is still under review and the RTA will continue to liaise with both Council and other stakeholders to ensure a smooth interface between the Oxley Highway Upgrade and any future development."
The Report makes the general statement that the proposed deviation of the Oxley Highway or OHU will have significant benefits to planning of the surrounding area. In particular, it is acknowledged at para 6.7 that the Council has undertaken a lot of its preliminary planning "based on the location of the original Southern Deviation Corridor" with the promise of continued consultation between the RTA and the Council in relation to the new OHU and the Council's detailed planning for Area 13.
There followed the preparation of the Review of Environmental Factors for the OHU (the REF). The REF was completed and published in September 2004. In its stated "background", the REF repeats much of the material found in the Preferred Option Report, the Land Use Impacts Report, the traffic study and detailed Concept Report to which I have earlier referred. That material includes reference to the purpose of the OHU and the inadequacy of the existing highway between the Pacific Highway and Port Macquarie to cater for existing and future traffic. Reference is again made to the HUGS and the investigation of Area 13 for urban development. At para 1.5.2 the REF records: "The development of a new urban area in Area 13 would have major implications on the existing Oxley Highway. The highway upgrade and the timing of construction will also have an important relationship with the planning for Area 13. Urban development in the highway upgrade corridor would result in substantially increased sub-regional and local traffic."
Paragraph 5.1 of the REF identifies the proposed OHU as fitting "within a series of transport planning initiatives and regional development strategies initiated by the State Government and Hastings Council". It is unclear whether the "initiatives" identified in that paragraph refers to the representations made by the Council in or prior to 1980 that resulted in the RTA instituting the location proposal for the highway upgrade or is a reference to the planning initiative reflected in the HUGS. Each is relevant to the present issue.
The REF discusses, in some detail, environmental impacts that are not relevant to be considered for the purpose of addressing the present issue. It also discusses, in some detail, the environmental impacts of the construction stage of the proposal, followed by a summary of all environmental effects, both beneficial and adverse, should approval to proceed with the OHU be given. The REF is signed by its author, a consultant planner, and countersigned on the basis that the document has been reviewed and accepted on behalf of the RTA by the project manager for the OHU.
The REF was placed on exhibition and subsequently reviewed internally by the RTA. Those steps led to the preparation of a Revised Decision Report, recommending that the OHU proceed subject to identified conditions. That recommendation was approved by the relevant officer of the RTA on 18 April 2006.
One of the documents accompanying the REF was a further report prepared by ERM in May 2004 entitled "Planning and Zoning Issues Report". That report was prepared for the RTA. It was prepared to address "statutory and strategic planning issues in relation to the preferred route for the proposed Oxley Highway upgrade".
The ERM Report identified statutes and regulations relevant to the consideration of the proposed OHU before a decision to proceed was made. Having identified those provisions, the Report then proceeds to address both State and local strategies and policies having implications for the proposed upgrade. In that context the proposed urban development of Area 13 Thrumster is addressed. At para 5.4.1, the ERM Report states: "The development of a new urban area in Area 13 would have significant implications for the highway upgrade. The draft Master Plan is being prepared with regard to the preferred route. The timing of construction of the Highway Upgrade would also have a significant impact on the planning for Area 13. Urban development along the preferred route corridor is reliant on the proposed highway upgrade and would result in a significant increase in both sub-regional and local traffic." (Emphasis added).
The Report next records the intention to provide access to the OHU at three locations. It also acknowledges that the location of the highway upgrade would bisect future urban areas with the comment then made that "[c]areful planning and design of residential, commercial and industrial areas will be necessary to ensure that the new highway does not present an unacceptable physical barrier between future development areas to the north and south of the highway".
In November 2003 PBAI Australia Pty Ltd, the consultants retained by the major landholders at Thrumster (including MMTR), prepared a report recording its findings of a "preliminary investigation" into the proposed Area 13 land release. Its purpose was to provide an overview of the existing traffic and transport network in the area, as well as the opportunities and constraints "in the master planning process" for development in Area 13. In addressing the proposed road network, the author of the report observed that the OHU would have "a significant impact on planning for Area 13". The further observation is made (p 5): "The proposed road provides opportunities for the planning of Area 13, including dispersing traffic and reducing congestion, while maximising the opportunity for good public transport operations and pedestrian and cycle links."
In 2003, the Council engaged a consortium of consultants to prepare a structure plan for the urban investigation of Area 13. That structure plan was the subject of public consultation in 2004 and culminated in the preparation of an Area 13 Local Environmental Study (the LES) published in October 2005. The LES addresses a wide range of topics relevant to the potential development and impacts of that development in Area 13.
One such impact or implication for urban planning of the area is identified in para 9.5.4 directed to roads and transport. The first issue identified in that regard is the proposed OHU for which, so it is stated, the RTA has programmed construction. The LES continues: "The corridor choice to a great extent controls the land use proposals arising from the Area 13 Structure Plan and LES. However commencement remains subject to receipt of approval (from the RTA itself as Determining Authority under Part 5 of the Environmental Planning and Assessment Act 1979)."
The LES then notes that an environmental impact assessment had been undertaken of the corridor for the OHU in which both habitat of endangered species and endangered ecological communities had been identified. Consequently, so it is said, "there is a risk that an 11th hour Oxley Highway route change could potentially unravel the entire planning basis for this Study".
The LES also considered the implications for traffic within and through the study area on the assumption that the alignment of the OHU will remain as it had been since 1986 and identified in the REF published in 2004.
Following the preparation of the structure plan a further report was prepared and published in May 2006. It was titled the Thrumster Structure Plan Implementation Report (the Implementation Report). That Report identifies Thrumster as being "well placed geographically" to take a major share of Port Macquarie's growth "in the foreseeable future". The final population is estimated to be over 11,300 people housed in some 5,100 dwellings. If urban development is to be achieved the Implementation Report identifies, as a necessity for the area's orderly development, what is described as "primary early infrastructure". The first item so identified is the "relocation of the Oxley Highway".
A staging sequence is identified, with suggested land uses for each stage in a manner intended to inform the preparation of a land zoning map to be incorporated in a planning instrument. The OHU is incorporated on that plan with the parent parcel both to the north and to the south of the OHU shown generally to be within suggested residential areas.
Paragraph 1.25 of the Implementation Report provides a suggested program for action in order to implement strategic planning for Thrumster. For the year 2006, recommended action includes the adoption of the local environmental study prepared and exhibited in the previous year as well as seeking agreement "on Oxley Highway relocation timetable". The latter action is further explained in para 1.26. The report states that while the relocation of the Oxley Highway prior to any residential development at Thrumster "is a very strong preference, if the RTA cannot commit to a timetable within the next two years, the Thrumster program should proceed".
As para 1.26 makes clear, the concern of the authors of the report is as to timing of construction rather than raising any question as to whether the OHU is to proceed. It will be recorded that some two months prior to publication of the Implementation Report, approval under Pt 5 of the EPA Act had been given to proceed with the OHU.
In its overview of the structure plan for Thrumster, the authors of the Implementation Report identify the relocation of the current Oxley Highway in the corridor generally proposed by the RTA as a key element of Thrumster's development (para 4.1). The OHU project is identified as having an estimated cost of $80,000,000. Once the OHU is completed, the Implementation Report states that the present highway would become the arterial road access for Thrumster and be extended to the south, providing a central sub-arterial road system that "provides the central spine for a semi-grid and collector road system to service local precincts" (p 32).
The Structure Plan Implementation Report and LES prepared on behalf of the Council were publicly exhibited and provided to a number of government agencies including the RTA. Representation by way of correspondence was made by the RTA to the Council in respect of those documents. Relevantly, on 9 May 2006 the General Manager of the Council wrote to the RTA concerning representations made in respect of the Structure Plan. In that letter the General Manager stated: "As previously advised, Council has undertaken planning for the Thrumster area on the assumption that the State Government would honour its commitment to construct the Oxley Highway realignment (the Port Gateway), commencing in 2005. Although Council has not formerly [sic] accepted responsibility for management of the existing highway, allowance has been made in the Thrumster Structure Plan for upgrade works on the existing Oxley Highway, assuming that the Port Gateway will be in operation."
That statement would appear to encapsulate what had appeared in various reports and studies, prepared both for the Council and the RTA, identifying the interrelationship between the proposed OHU and the development of an urban strategy for Thrumster or Area 13. As the General Manager's letter had foreshadowed, the Council did adopt both the strategy and the LES on 29 May 2006.
The statement by the General Manager in his letter of 9 May was also consistent with a traffic study prepared for the Council by SMEC Australia Pty Ltd in May 2007. The study was directed to an analysis of the road network "operability" on the assumption that development proceeded not only in Area 13 but also in an area known as Sancrox, located to the west of Area 13, parts of which were being investigated for rural residential use and parts for industrial use. Although the SMEC Study was essentially directed to traffic modelling, the author of the report opines at para 3.1.1 that the current Oxley Highway would need to be upgraded in light of "expected Area 13 developments". The study then records the understanding that "an alternative parallel" for the current Oxley Highway is planned by the RTA.
I have earlier referred to the fact that at its meeting on 29 May 2006, the Council adopted both the Thrumster Strategy and the LES. The report prepared for that meeting is in evidence. The report records that the Structure Plan had been prepared on the assumption that the State Government would deliver on its commitment to construct the Oxley Highway deviation, expected to commence in 2005. The report also records more recent indications from the RTA that it would be seeking to enter into developer deeds whereby contributions would be made to the cost of the OHU and the entry into those deeds made a condition of rezoning. While the report records that further details had been sought from the RTA in relation to its requirement for contributions, the RTA had indicated, and the Council accepted, that there would be consultation between the two bodies during the preparation of a local environmental plan for Area 13. Those observations were made in the context of the statement that the Oxley Highway was a "key issue" in relation to the structure plan for Area 13.
The report further acknowledges that the Council "has no choice but to consult with the RTA during the preparation of the Area 13 LEP". Nonetheless, it is recommended that the Council not necessarily accept that there should be any local contributions towards the Port Gateway. It is acknowledged that preparation of a draft local environmental plan, draft development control plan and draft contributions plan will depend upon "the satisfactory resolution of key issues with the RTA".
At its meeting on 29 May 2006, the Council not only adopted the Structure Plan and LES but also a number of recommendations made to it that included: 1. that it consult with the RTA, reiterating that planning for Area 13 had been based on the commitment to construct the Oxley Highway realignment and requesting the timetable for construction as well as the justification for developer levies; and 2. that it proceed with the preparation of a draft development control plan and local environmental plan for Area 13.
Following the Council's adoption of the LES and structure plan it proceeded with the preparation of a draft local environmental plan for Thrumster together with a development control plan. By the time those drafts came to be exhibited, the Council also had available for exhibition the voluntary planning agreement to which I have earlier referred.
Following exhibition and consultation with authorities, those draft documents were considered by the Council at its meeting on 12 June 2008. Included in that report was a discussion upon proposed infrastructure provisions of the draft documents. In respect of roads, the author of the report recorded that "the Oxley Highway will be realigned in accordance with plans developed by NSW Roads & Traffic Authority, based on funding commitments by the NSW State government during preparation of the Area 13 Structure Plan". The report records that work on the OHU had commenced. Possible infrastructure levies are discussed, including four elements of the OHU, as well as identifying the need "for satisfactory arrangements for transfer of the existing Oxley Highway to Council".
At its meeting on 12 June 2008 the Council resolved to approve the DCP, so far as it then contained Pts 1 to 4. It will be remembered that the DCP contemplated amendment by the inclusion of further Parts, each of which was to be directed to specific controls for each of the neighbourhoods identified in Pt 2. At that meeting, the Council also resolved to submit the draft local environmental plan to the Director-General of Planning with a request that it be made as a statutory instrument.
I have earlier referred to a number of provisions of the DCP which I will not repeat. Paragraph 2.3 identifies Area 13 as the principal urban investigation area identified in the HUGS. That Area is identified as playing "a major role" in accommodating projected urban growth in the Port Macquarie-Hastings local government area over the ensuing two decades with a projected population of 10,000 people.
The provision of the DCP (para 3.1) requiring detailed neighbourhood development control plans to be prepared before development of those neighbourhoods can be undertaken has already been mentioned. Notwithstanding that requirement, Pt 4 contained a number of detailed provisions generally applicable to development within Area 13. Relevantly, para 4.4.1 identified the location of intersections for local roads with both the old Oxley Highway and the OHU by stipulating that access to the latter two roads was limited to those intersections shown on Map 4.11. One of those "intersections" was identified as an underpass, being an underpass located beneath the OHU at a point that was a short distance to the east of acquired Lot 13. That underpass location provided one of two means by which vehicular and pedestrian access was available between the South Oxley and North Oxley neighbourhoods. Para 4.4.2 identified, by reference to Map 4.12, a road hierarchy, unsurprisingly identifying both the old Oxley Highway and the OHU as arterial roads with proposed collector roads intersecting each of the arterial roads at the points identified in Map 4.11. The identified collector roads include the road passing beneath the OHU at the underpass that I have earlier identified.
At the date of acquisition of MMTR's land, neighbourhood DCPs had been prepared and adopted for both the North Oxley neighbourhood and the Town Centre neighbourhood. Those amending DCPs were adopted on 2 October 2008 and came into effect on 24 December of that year when the LEP was published in the Gazette.
Part 6 of LEP 2008 made specific provision for "urban release areas". By reference to the applicable map, most of Area 13, including most of the parent parcel, was identified as falling within that description. There are two provisions of that part to which reference must presently be made. First, cl 6.1 addressed contributions required for "designated State public infrastructure" by requiring that the Director-General certify in writing to the consent authority that satisfactory arrangements had been made to contribute to the provision of "designated State Public Infrastructure" in relation to a lot of land created by subdivision that provided for lots smaller than the minimum size of a lot permitted on the land prior to the land being included in an urban release area. The expression "designated State Public Infrastructure" was defined in the Dictionary to the LEP to mean public facilities or services provided or financed by the State, including "State or regional roads". Clause 6.1 of the LEP was therefore apt to address the concern that had been expressed by the Council when considering the LEP as to the contributions sought by the RTA toward the OHU. In effect, it left developers seeking to subdivide land for urban purposes to deal with the Department of Planning in relation to contributions.
Secondly, cl 6.3 is the clause to which earlier reference was made, proscribing the grant of development consent on land in an urban release area unless a development control plan had been prepared for that land that included matters specified in subclause (3). Among the matters specified by the subclause was the requirement for an overall transport movement hierarchy, showing major circulation routes and connections for the movement of "private vehicles, public transport, pedestrians and cyclists". The DCP had gone part of the way in addressing that requirement but left refinement to the individual neighbourhood development control plans.

Increase in value "by reason of … the public purpose"

I have recorded in some detail key aspects of the documentary evidence in order to determine whether, considered in their totality, the provisions of s 55(f) relevantly apply. As the evidence makes apparent, there has, for some time, been a synergy between the actions of the RTA directed to the OHU, including the years planning for it, and the Council's decision to investigate and ultimately rezone Area 13 at Thrumster from its long-time rural zoning to zones having the effect of authorising urban development upon the land.
It is not disputed that upon Area 13 being rezoned for urban purposes, its value increased substantially above that which reflected its value as rural land. Mr Lunney determined the value of the land falling within the Rural 1(a1) zoning at Thrumster at $40,000 per hectare. Mr Neskovski did not appear to dispute this figure as a value for rural land although he denied its relevance for the purpose of determining compensation.
Mr Lunney determined the value of the land zoned in the manner identified in the LEP, that is for urban purposes, at $25/m² which equates, simply for comparison, at $250,000 per hectare. Mr Neskovski contended that the correct rate for land zoned for urban purposes under the LEP was $50/m².
For present purposes, it is unnecessary to resolve these differences. Whichever figure is taken, it is readily apparent that the value of MMTR's land increased substantially once rezoned in December 2008 for urban purposes.
The question to be addressed by reference to the facts that I have recorded is whether the increase in the value of the residue land occurred "by reason of" (relevantly) the proposal to carry out the OHU purpose for which the acquired land was acquired. I pose the question in this truncated way by reference to the provisions of s 55(f) for two reasons. First, so far as the evidence reveals, through most of the process culminating in the rezoning of Area 13, the OHU is more aptly described as a proposal to carry out that public purpose rather than one that was being carried out. The report to the meeting of the Council in June 2008, when it resolved to adopt the draft LEP, recorded that the RTA had only just commenced construction of the OHU.
Secondly, there was no contention advanced by MMTR that the residue land did not adjoin the acquired land. Copies of the various deposited plans that identified the parent parcel, the acquired land and the residue land, clearly demonstrate that the lands were adjoining land in the sense required by s 55(f).
I have earlier made reference to the OHU as being the public purpose for which land was acquired from MMTR. The identification of that purpose requires elaboration, particularly having regard to the earlier recorded observations of Handley and Hodgson JJA in Perry.
Included among the tendered documents was a map on which were marked both the proposed northern and southern deviation corridors of the Oxley Highway, first considered by the RTA between 1980 and 1983. Each involved a route that was not significantly removed from the existing Highway alignment, requiring deviation from close to the intersection of the Oxley Highway with the Pacific Highway and rejoining the existing Oxley Highway near to its intersection with Wrights Road. Indeed, for some distance before the intersection with the existing Oxley Highway near Wrights Road, both proposed deviations shared a common alignment.
On the documents available, I am satisfied that identifying the public purpose for which the MMTR land was acquired as being the OHU is sufficient to comprehend the proposal for that highway upgrade as it was identified in the early 1980s with the southern deviation corridor being that selected in September 1986. The highway upgrade project that was ultimately approved in 2006 maintained its location as generally being within the southern deviation corridor that had earlier been identified.
All of these nuances of the proposal for a highway deviation are, to my mind, appropriately comprehended as being a component of the public purpose for which the land of MMTR was ultimately acquired. That the purpose should be identified as dating back to the early 1980s, at least in an embryonic form, is evidenced by the reference to a proposed highway deviation in the 1983 Strategy prepared jointly by the Council and the Department of Planning and to which I have earlier referred. The reference in that document to a long-term plan by the RTA for bypasses to the west and south-west of Port Macquarie is of present relevance.

Relevant case law

In the context of litigation under the Compensation Act to determine compensation following the compulsory acquisition of land, the interaction between the increase or decrease in the value of land and the proposal to carry out or the carrying out of a public purpose more frequently arises under s 56(1)(a) of the Act. In paragraph (a) of the subsection, such an increase or decrease is to be disregarded if "caused" by the carrying out or the proposal to carry out the public purpose for which the land was acquired. Referrable to that provision, the judgment of the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 stated at [54]: "The construction of the market value disregard in para (a) for which the Foreshore Authority correctly contends, links 'the proposal' to that of the resuming authority. It puts aside anterior discussions or agitations by the Council and others in favour of classifying the Land as public space. In this way there is reflected in the terms of para (a) of s 56(1) a policy to require a disregard only of that increase or decrease … in value for which the resuming authority is responsible."
There are two matters to be noticed from that passage. Neither in that paragraph nor elsewhere in the judgment of the High Court is "cause" discussed, other than to acknowledge its use in the text of s 56(1)(a). Secondly, it was clearly the linking verb identified in the last sentence of the quoted paragraph by identifying the "disregard" as being an increase or decrease in value "for which the resuming authority is responsible". That seems to suggest, at least in context, that the relevant "cause" has operation only if the increase or decrease in value is one for which the resuming authority is responsible. Whether that responsibility must be direct or indirect was not required to be considered in that case, given that the impact on value there being considered was a decrease consequent upon the zoning of the land for which the public purpose of the acquiring authority had played no part. That is, the proposal was not causally related, even indirectly, to the decrease in value of the land acquired from the former owner.
In AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325; 163 LGERA 245 the Court of Appeal was required to determine, in an appeal from this Court, whether there was legal error in the manner in which this Court had determined whether the purpose for which the land in question was compulsorily acquired had included an alteration to the zoning of the residual land which had caused, so it was claimed, the value of that land to be decreased. The issue involved consideration of s 55(f). It was addressed by Hodgson JA (Bell JA and Gyles AJA not dissenting on this point).
Although in his judgment, Hodgson JA quoted the relevant passage from the judgment of this Court that referred to s 55(f), his Honour's judgment does not appear to discuss, in terms, the different connecting phrase used in s 55(f) from that used in s 56(1)(a). This appears to be so because in [96] his Honour said: "96 In my opinion, in determining what increase or decrease in value occurs 'by reason of' or is 'caused by' the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, it is first necessary to identify the public purpose and its relevant scope or generality. This may be a matter of some difficulty … ."
After referring to the earlier decision of the Court in Perry, directed to the identification of public purpose, his Honour continued: "98 Once the public purpose is thus identified, it may then be necessary to identify what is comprehended by 'the proposal' to carry it out and/or 'the carrying out of' the purpose. Then it may be necessary to identify the scope of what occurs, 'by reason of' or is 'caused by' these things. In these steps also, I do not think there are clear rules, but there may need to be judgments of degree which take into account considerations of reasonableness and fairness. 99 The mere circumstance that the public purpose is a contributing factor to changes which in turn affect value is not necessarily sufficient, particularly if the changes depend also on discretionary decisions made by other authorities. 100 The primary judge made the judgment that planning changes, to which the PRL was a contributing factor but which also involved discretionary decisions by other authorities, should be disregarded for the purposes of s 55(f). In my opinion, there was no error of law in that decision."
Despite the absence of any express distinction drawn by his Honour between the phrase "by reason of" in s 55(f) and "caused by" in s 56(1)(a), I do not take his Honour's reasons as necessarily excluding the relevance for the purpose of s 55(f) of an indirect connection between the increase or decrease in value of residual land as a consequence of the proposal to carry out an identified public purpose by an acquiring authority and the manner in which that land has been zoned under a planning instrument. His Honour's reference to a "contributing factor" as not being "necessarily sufficient" and his ultimate conclusion that the decision made on the facts before the trial judge did not result in error of law being demonstrated, rather suggests that the relevant nexus between increase or decrease in value and the proposal to carry out the public purpose will depend upon the facts that are proved. That understanding of his Honour's judgment would be consistent with his observations at [98], particularly his reference to the absence of "clear rules" and the possible need for "judgments of degree".
As would be apparent from what I have said, focus upon the text of s 55(f) and its context within Division 4 of Pt 3 of the Compensation Act directed to the determination of compensation, suggests to me that the phrase "by reason of" in s 55(f) must have been intended by the legislature to be different from the phrase "caused by" in s 56(1)(a). Neither provision has been amended since the Compensation Act commenced on 1 January 1992.
The phrase "by reason of" has been the subject of judicial consideration where legislative provisions have used that phrase. Clearly, one must exercise considerable caution in applying the meaning given to that phrase in a statutory context differing from that in which the phrase is being construed for present purposes.
In a number of cases the phrase has been held to connote a cause and effect relationship. So much was recognised by French CJ in Republic of Croatia v Snedden [2010] HCA 14; 241 CLR 461 at [22], citing earlier authorities of both the Federal Court and the Full Court of Victoria. In WBM v Chief Commissioner of Police [2012] VSCA 159, Warren CJ (Hansen JA agreeing) said at [34]: " … the phrases 'by reason of', 'because of' and 'by virtue of' have been found by Australian courts to imply a relationship of cause and effect and 'a practical application of ordinary causation principles is required' (DC Pearce and RS Geddes Statutory Interpretation in Australia 7th Ed, 2011) [12.9]."
The nature of the "cause and effect" relationship was considered by Morling J in Re Michael Vickers v Minister of Business and Consumer Affairs; Comptroller-General of Customs; T Young; Francis Ivor Kelly [1982] FCA 72; 43 ALR 389 where at 407 his Honour referred to earlier cases in which the phrase "by reason of" had been interpreted. Consistent with the determination in those cases he identified the relationship required by the phrase as involving cause and effect. He also expressed agreement in an earlier decision by Bray CJ in Main Electrical Pty Ltd v Civil and Civic Pty Ltd (1978) 19 SASR 34 to the effect that the relationship of cause and effect need not be direct.
The approach of Morling J in that case was applied in this Court by Pain J in Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority (NSW) (No 3) [2010] NSWLEC 234; 179 LGERA 47 at [103]. That decision involved the determination of compensation for land acquired by the RTA that adjourned the MMTR land, albeit that the Vilro land was not affected by rezoning in the same manner as the MMTR land was so effected. The Vilro land was not included within LEP 2008.
Several of the cases to which the phrase "by reason of" has been considered referred to the phrase as also requiring the practical application of the principles of causation explained by the High Court in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; 171 CLR 506 at 509-510. In the context of cases in this Court determining compensation under the Compensation Act, reference to those principles has also been made in Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109 at [52] and in Vilro at [108].

Section 55(f) is engaged

Applying the judicial exegesis that I have discussed to the phrase "by reason of" in s 55(f) of the Compensation Act, I have concluded that the evidence available to me does demonstrate the increase in value of the residue land to have occurred by reason of the proposal by the RTA to carry out the OHU. Without the urban zoning imposed by the LEP, that increase in value would not have occurred. Further, the evidence satisfies me that the decision by the Council to adopt the draft LEP and to request its making by the Minister would not have occurred had the proposal for the OHU not been adopted by the RTA. In this way the practical application of causation principles resulted in that rezoning effecting the increase in the value of land at Thrumster. Expressed differently, while the immediate cause of the value uplift is the rezoning, that effect is the consequence of the proposal by the RTA to carry out the public purpose of the OHU.
In support of the conclusion that I have reached, I do not repeat all of the evidence to which I have earlier referred for the purpose of considering this issue. However, some of its features do need to be identified and, as necessary, repeated.
The sequence of initiating events have earlier been identified. Importantly, it was the approach of the Council to the RTA in 1980 and the response of the RTA by undertaking a route selection that identifies the initial formulation of the proposal to carry out the OHU.
That process of selection was not complete when in 1983 the 1983 Strategy was adopted by the Council. While Thrumster was then identified as an area for possible urban expansion "in the long term", it was not then favoured for short or medium term consideration. One of the matters identified in the 1983 Strategy was the need for improvement in the existing Oxley Highway linking Thrumster to Port Macquarie and the observation in that context of the long-term plans of the RTA for bypasses.
By September 1986 the RTA had selected the southern deviation corridor. As a consequence, that corridor was marked on the zoning map when LEP 1987 was made.
The decision of the RTA to select the southern corridor and the identification of the proposed OHU on the LEP 1987 map are important events. They provide background to the position taken by the Council to development at Thrumster when it adopted (and the Minister approved) the HUGS in 2000 and 2001. The urban expansion into Area 13 is, by that time, favoured for investigation although a number of "key uncertainties" are identified. Foremost among those is both the precise location of the route for the OHU and the timing of its construction. In identifying that as one of the key issues, the HUGS recognized that implementation of the OHU proposal significantly affected the capacity to implement urban development of the kind being considered by the Council.
That concern for the detail of the OHU and its timing is repeated in a number of the studies and documents to which I have earlier referred as being the prerequisite to the rezoning of land in Area 13 taking effect. This concern is understandable by reference to the various traffic reports that had been prepared, demonstrating the serious shortcomings of the design and structure of the existing Oxley Highway between its intersection with the Pacific Highway and Port Macquarie coupled with the prediction that it would be at peak capacity by the year 2009. That concern remained, notwithstanding that in August 2002 the Minister for Roads announced that the OHU would proceed.
Exemplifying my conclusion that the proposed urban zoning was dependent upon the proposed OHU are several reports. As I have earlier recorded, the ERM Report of April 2004, addressing land use impacts, stated that future urban development would be "substantially shaped" by the location of a new highway and by the location and type of access provided. A further ERM Report annexed to the REF prepared prior to approval to undertake construction of the OHU recorded that urban development along the preferred route corridor was "reliant upon the proposed highway upgrade". To the same effect is the LES prepared for the Council in which two statements are made that I find significant for present purposes. They are first the statement that the corridor choice "to a great extent" controls land use proposals for Area 13. The second is the statement that "an eleventh hour" route change for the Oxley Highway "could potentially unravel the entire planning basis for this Study".
The concern of the Council that the OHU proposal proceed and the dependence upon it for implementation of the Council's planning proposals is well reflected in the General Manager's letter to the RTA of 9 May 2006. As I have recorded at [106], the letter makes clear that proposed planning changes for Thrumster have been undertaken "on the assumption" that the Government would honour its commitment to construct the OHU. The letter also demonstrates that construction of the OHU would then allow the existing highway alignment through Area 13 to play an important role in the planning for that area. So much had earlier been identified in earlier reports as the intent of the proposed OHU.
The submission by Mr Thompson that the tendered documents demonstrate parallel courses of action by the Council and the RTA respectively may be accepted. However, the undertaking of parallel paths is no more than a reflection of the different legislative regime under which each was required to proceed in order to achieve change in the planning regime on the part of the Council and the pursuit of a proposal for public infrastructure by the RTA. What is critical for the purpose of s 55(f) is to determine whether the rezoning path, resulting in an uplift in land value, occurred by reason of the course taken by the RTA to give effect to its proposal to carry out the public purpose of providing road infrastructure. For the reasons that I have stated, the response to that implicit question is "yes".
That conclusion has the consequence that the assumptions upon which the agreement between valuers earlier identified and accepted by Mr Thompson on behalf of MMTR have been established on the evidence. Conformably with that agreement, the increased value of the residue land exceeds "all other heads of compensation, including the market value" of the acquired land, subject to the qualification earlier mentioned.
The qualification that must be expressed is that MMTR is entitled to recover by way of compensation, the disturbance claim under paragraphs (a), (b) and (e) of s 59 of the Compensation Act (Tolson v Roads and Maritime Services [2014] NSWCA 161; 201 LGERA 367 at [83]). The compensation sought for those items are agreed in the sum of $25,377. A further sum of $30,000 claimed under s 59(f) was not the subject of any evidence, nor of any submission on behalf of MMTR.
I should record that in the course of his submissions, Mr Thompson referred to observations made by Hodgson JA in AMP Capital Investors Ltd v Transport Infrastructure Development Corporation at [62]-[63] to the effect that the owner of land that is compulsorily acquired may be entitled, as a minimum, to the "market value" of that land by way of compensation under the Compensation Act. His Honour's observations were rejected by all members of the Court of Appeal in Tolson as not reflecting the proper construction of the relevant provisions of the Compensation Act. Notwithstanding the reference by Mr Thompson to the observations of Hodgson JA, his ultimate acceptance of the valuers agreement directed to s 55(f), subject to proof of the assumptions underlying that agreement, implies that he did not rely upon those observations to sustain an entitlement to the market value of the acquired land.
The decision of the Court of Appeal in Tolson was delivered after I had reserved judgment in these proceedings. The fact of the decision was drawn to my attention in an email directed to my Associate by junior counsel for the RTA without comment. A copy of that email was, according to my understanding, provided to the solicitors acting for MMTR. Neither party sought to address me further on that decision which upheld the first instance decision of this Court. The latter decision was the subject of reference by the parties in the present proceedings.

Other issues

The finding that I have made renders it unnecessary to address the other issues raised in the proceedings. However, in light of those issues there are two further matters that I should mention. First, it will be recalled that if the assumptions underlying the agreement directed to s 55(f) were not established in fact, the most substantial components of compensation claimed by MMTR were severance in the sum of $16,000,000 and the cost of an overpass bridge at $4,372,896. As the case was finally argued, both the statutory foundation for each of those claims and the factual basis upon which they had been calculated proved to be elusive. The Amended Points of Claim filed on behalf of MMTR identified the cost of the overpass bridge as being a claim made under s 59(f) of the Compensation Act. The foundation for that claim was this: 1. upon the acquisition of the acquired Lot 13, the land of MMTR was severed by all the land owned by the RTA with the consequence that all of MMTR's land south of the acquired corridor was landlocked; 2. in order to provide access from the southern land to the northern land, it was necessary to construct a bridge over the road corridor, the cost of which was estimated to be the figure claimed.
The claim for $16,000,000 also arose from the consequence that the acquisition by the RTA of Lot 13 severed access, having the consequence that at the date of acquisition the southern area of the residue land, comprising about 105 hectares, could not be developed until a proposed underpass was constructed. This would result, so it was contended, in either a 45% reduction in the value of the land or a 5 year delay from the date of acquisition in implementing residential development. That delay was to be compensated at 12.5% of holding costs on the market value of the land at $50/m² for a period of five years. Neither the basis for the reduction of 45% nor holding costs calculated at 12.5% for a period of five years was appropriately explained in the evidence.
In his final submissions, Mr Thompson stated that both the bridge overpass claim and the claim for $16,000,000 were both founded upon the provisions of s 55(c), that is both were losses attributable to severance. Neither claim was advanced as a claim for disturbance under s 59(f). He also submitted that the two sums should be treated as alternate ways of expressing the same basis of claim so that it was for the Court to elect which sum should be applied. The basis upon which a judicial valuer should make that election was not clearly identified. At one point it was suggested that if the claim for $16,000,000 did not appear to meet a "reality check" test (Roads and Traffic Authority (NSW) v Collex Pty Ltd [2009] NSWCA 101; 165 LGERA 419 per Hodgson JA at [231]) then a net present value calculation, reducing the period of deferment from five years to two years would result in a claim of $7,730,000. Again, this figure would appear to be an alternate to the figure representing the cost of constructing an overbridge.
Apart from identifying the difficulty experienced by MMTR in identifying the precise basis of this claim and identifying alternate sums, any one of which it was open for me to select, the foundation for awarding any severance claim was not well-founded. By assigning the cost of the bridge overpass to a claim for severance under s 55(c), it was necessary for MMTR to confront the provisions of s 58 by which the expression "loss attributable to severance" is defined. The definition requires consideration of a reduction "in the market value" of other land, relevantly owned by MMTR, caused by the severance of its southern land from its northern land. Acknowledging that MMTR was required to address a reduction in market value, rather than a cost item, Mr Thompson was left to make the submission that the cost of a bridge overpass might provide some evidence of the quantum effect on land value. In the absence of any evidence to that effect (and it would be surprising if there were any), that submission could not, with respect, be accepted.
There can be no doubt that the acquisition by the RTA of Lot 13 did have the effect of severing MMTR's remaining landholding. While the northern section of MMTR's landholding had direct access to the existing Oxley Highway, the southern section of its land, severed by the RTA owned road corridor, meant that it was landlocked. However, on the facts and circumstances that existed at the date of acquisition of Lot 13, that circumstance, so the RTA submitted, did not effect any reduction in the market value of the residue land.
As my earlier detailed reference to the evolution of both the OHU and urban development of Area 13 discloses, the location of the OHU had been the subject of discussion between the RTA and the Council over a number of years. The formulation of the Council's LES, the LEP as a draft and the DCP planning for the manner in which various forms of urban land use would be distributed among the lands within Area 13 were the subject of detailed discussions. These discussions not only involved the Council and the RTA but also the principal landholders within Area 13, gathered under the general umbrella of Lewis and its associated companies. MMTR was a part of that process by dint of the project agreements to which I have earlier referred.
As it is unnecessary for me to make precise findings in lieu of the decision I have otherwise reached, I will not record the detail of documents reflecting the process of these discussions in the evolution of detailed planning. Suffice to record that they culminated in both the zonings and detailed plans included in the DCP in the terms in which it was operative in March 2009 when Lot 13 was acquired by the RTA. Parts 1 to 4 of the DCP, coupled with the neighbourhood DCP prepared for the North Oxley Precinct clearly identified the link road between North Oxley and South Oxley by way of underpass beneath the OHU. Those plans also showed connection from the South Oxley Neighbourhood, including from the MMTR land, through to a roundabout to the west that was to be constructed near to the end of the OHU, and located only a short distance east of the intersection between the Oxley Highway and the Pacific Highway.
There are three matters of relevance that follow from the planning regime as it applied at the date of acquisition of Lot 13.
First, no development could take place unless it was the subject of a development control plan. Second, the terms of the development control plan, so far as it operated at the date of acquisition, required that roads within Area 13 be located in accordance with the plan that formed part of the DCP. The northern access road was that indicated by way of underpass beneath the OHU a short distance to the east of what had been Lot 13 of the acquired land. The second means of access to and egress from South Oxley was to the west in the manner that I have indicated.
The third matter to be noticed is that at the date of acquisition, no neighbourhood DCP had been prepared for South Oxley. As a consequence, the urban development of that land could not then have been undertaken. The need for an underpass to provide a north-south link in Area 13 was well known to and had been the subject of discussion with the RTA well before the date of acquisition. The 2004 REF prepared for the RTA identified the need for continued discussions with the Council "for an additional traffic underpass at the western end to service new residential development to the north and south". The concept of the OHU then being considered was identified as being "sufficiently flexible" to facilitate those movements.
In 2006, consultant engineers retained by the RTA prepared engineering plans for what became known as "the Twin Bridges", being the section of the OHU intended to accommodate the underpass in accordance with the road plans for Area 13 then in contemplation by the Council. Moreover, the voluntary planning agreement entered into between the Council and the land developer interests in Area 13, including MMTR, made specific provision for the underpass to be constructed by the developers, with credit for its cost to be offset against contributions to which the Council would otherwise be entitled under s 94 of the EPA Act. That agreement was entered into in 2007 and quite properly contemplated that the OHU would be constructed such as would accommodate land for an underpass at the relevant location.
It is correct to observe, as did Mr Thompson, that the construction of the Twin Bridges so as to accommodate the underpass was not identified, in terms, in the approval given in 2006 to construct the OHU. A review of environmental factors for the construction of the Twin Bridges was not published until November 2009 and the requisite approval was not given until 5 March in 2010. The consideration in the review indicates that the construction of the bridges was considered a component of the Oxley Highway Upgrade Project.
I am not satisfied that the absence of any formal access between South Oxley and North Oxley in March 2009 would have had any measurable impact in diminishing the value of MMTR's landholding south of the OHU corridor. As all of the documents and events that I have described were in the public domain, the hypothetical purchaser of the southern land would have understood that development of that land could not then take place because of the absence of a development control plan relevant to that neighbourhood. Further, that purchaser would have understood that all relevant authorities had understood and accepted the need to provide for an underpass in the location shown on the DCP plans. The purchaser would also have understood that, identifying the highest and best use of the land as residential, such use would likely be achieved only if development was to take place in conjunction with other land that had been included in the overall development design for Area 13. It could not seriously have been contemplated by the hypothetical purchaser that a stand-alone development of the MMTR land could have been effected in isolation from other land necessary to give effect to the statutory planning for Area 13. That hypothetical purchaser would also have been aware of the voluntary planning agreement and the project agreements entered into by MMTR.
Those are the principal factors that, to my mind, would militate against any significant diminution in value of the severed land as at the date of acquisition of Lot 13.
The second general matter to which it is appropriate to make reference is the evidence of Mr Neskovski. If it was necessary to determine the market value of the acquired land at the date of acquisition, I could not accept his contention that such land should be valued at a rate of $50/m². As I have otherwise determined the result of the claim for compensation, it is unnecessary to recite in detail the sales upon which Mr Neskovski relied and analysed for the purpose of deriving his figure for market value. It is sufficient to observe that there were several reasons why I could not accept his conclusions.
First, he relied upon a number of sales that related to small parcels of land or residential lots in order to derive a rate per square metre. He declined to accept that the rate so derived would require adjustment when applied to the MMTR land. The latter land would necessarily be considered as an englobo parcel of land with a residential zoning. To suggest that the rate to be applied to the market value of such a parcel, having an area in excess of 133 ha should be the rate derived from the sale of a residential block or a small parcel of only a few hectares is counter intuitive. No evidence was addressed to support such an approach.
Secondly, Mr Neskovski considered it unnecessary to adjust the sales evidence upon which he relied for the time difference between the date of the sale being analysed and the acquisition date of the MMTR land. This was particularly relevant as some of the sales upon which he relied had occurred prior to the Global Financial Crisis (the GFC), generally accepted as commencing in late 2007. He maintained that although the GFC had a depressing effect on sales in 2008, the market had recovered by March 2009.
Apart from the sale and resale of one urban residential block, no evidence was adduced by Mr Neskovski to support the absence of adjustment for date and particularly the absence of adjustment for the effect of the GFC. In contrast, Mr Lunney said, and I accept, that in the case of large tracts of englobo residentially zoned land such as that held by MMTR at the acquisition date, the GFC continued to have a depressing effect on land values, particularly because of the limitation on finance for development of such land. He produced evidence of the sale and resale of land before and after the onset of the GFC, demonstrating a diminution in value in sales effected after the GFC onset and into 2009.
Thirdly, Mr Neskovski relied upon square metre rates derived from the sale of land that was ready for immediate development, with services available for immediate connection and development consent having already been granted by the relevant planning authority. At the date of acquisition of the MMTR land, services were not available; no development consent had been granted for development of land in the North Oxley neighbourhood and development in the South Oxley neighbourhood was not yet permissible. Yet, no adjustment was made on that account when applying the rate derived from the former sales to the determination of the value of the MMTR land.
When these matters were raised with Mr Thompson in final submissions, as he sought to address the evidence of Mr Neskovski, his ultimate response, fairly made, was that he could not "take it any further" (Tcpt 305:4-14). As a consequence no submission was made in support of Mr Neskovki's determination of market value.

Conclusion

I have determined that at the date of acquisition of the acquired land, the zoning applicable to all of the MMTR land at Thrumster had the consequence that the value of that land had significantly increased above that which it would have had under its prior zoning as rural land. I have also determined that the urban zoning of the MMTR land at that date had occurred by reason of the long term proposal of the RTA to implement the public purpose of the OHU.
For reasons earlier explained, those interconnected circumstances provide the necessary causal link between the uplift in value of the residue land and the RTA's public purpose proposal for the OHU land. As a consequence, the provisions of s 55(f) of the Compensation Act were engaged.
In light of the agreement reached and accepted by MMTR that upon the matters just identified being established, the 'betterment' or increase in value accruing to the residue land "substantially exceeds all heads of compensation payable to MMTR, including market value", proper effect is thereby given to the provisions of s 55(f), save for the claim made for disturbance under s 59. The sum so claimed is agreed at $25,377.
The question of costs has not been argued. In light of my decision, the parties may need to consider these reasons before addressing that question. Accordingly, costs will be reserved.

Orders

For the reasons that I have given the orders that I make are as follows: 1. Determine compensation under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the acquisition on 27 March 2009 of land being Lots 68 and 69 in DP 1095861 and Lots 12, 13 and 14 in DP 1130560 in the sum of $25,377. 2. Costs reserved. 3. Exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2015

Transport Legislation Amendment Act 2011(NSW)

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