The Respondent also relied upon affidavit evidence of Michael Jordan (Millar Merrigan, engineering)

1. The applicant, Robert Alexander Moore ('Moore'), seeks compensation arising from the compulsory acquisition by the Roads Corporation (also known commonly as Vic Roads)('Authority') of part of his land at 700 Hume Highway, Craigieburn ('subject land').
2. Prior to the partial acquisition, the subject land comprised a single lot, being Lot 5 on PS No. 4646 and more particularly described in Certificate of Title Volume 8415 Folio 415. This land comprised an area of 73.3925 ha, with a generally trapezium shape with boundaries at the west to the Hume Highway, to the east to the Melbourne to Sydney rail line, and with parallel boundaries to the north and south.
3. Moore became the registered proprietor of the subject land on 18 August 1989. Although the subject land was zoned rural, it lies just to the north-east of Craigieburn on the northern fringes of Melbourne, and there was a reasonable expectation that the land would be rezoned in the future to facilitate an urban use. Moore obviously sought to benefit from this future potential.
4. By 1989, there had already been various proposals, designations and declarations concerning the status and upgrade of the Hume Highway at or near the subject land. The relevance and consequences of these earlier schemes was a matter contested in the proceeding.
5. In 1999 and 2000, Advisory Committees were appointed to consider various options for the proposed Craigieburn Bypass - a freeway bypass connecting the Western Ring Road with the Hume Freeway just north of Craigieburn[1]. The Victorian Government announced the preferred alignment in early 2001, following a route that traversed the subject land.
6. Pursuant to the Land Acquisition and Compensation Act 1986 ('LAC Act'), Notices of Intention to Acquire were served by the Authority on Moore in September and November 2001, with the stated purpose being 'the construction of the Craigieburn Bypass - Hume Link'. A Notice of Acquisition was published in the Government Gazette on 15 November 2001 - this therefore being the relevant date for valuation purposes ('relevant date') in relation to this compensation claim.
7. A potentially complicating factor is that the subject land is close to where the Craigieburn Bypass re-connects with the Hume Freeway, and at a point of a proposed (and now constructed) interchange. The acquisition therefore comprised five separate parcels of land totalling 15.4235 ha, and had the effect of dividing the balance of Moore's landholding after acquisition into three separate and irregular shaped parcels (that together comprise the 'after land') as follows:
   • an area of approx. 8.54 ha fronting the Hume Highway, and lying between the Hume Highway and Craigieburn bypass ('Parcel 1');
   • an area of approx. 6.21 ha lying between the Craigieburn bypass and a north-south section of land acquired for the extension of Amaroo Road ('Parcel 2'). The reservation for Amaroo Road previously terminated at the northern boundary of the subject land, but the road was extended through the land to provide access to the freeway interchange and the Hume Highway.
   • an area of approx. 43.11 ha at the rear of the subject land, and lying between Amaroo Road and the Melbourne to Sydney rail line ('Parcel 3')
8. The total area of this 'after land' is 57.969 ha. All of the separate land parcels acquired from the original landholding (i.e. the 'before land') and remaining in the 'after land' are shown more clearly on Plan of Survey SP 20075[2].
9. Although some slightly different figures are recorded in different documents, the compensation claimed by Moore at the commencement of the hearing was in the vicinity of $4.5 million, whereas the Authority's offer was in the vicinity of $600,000 - both figures primarily reflecting that party's view of the difference between the 'before' and 'after' values of the land.
10. As a generalised introductory comment, it might also be said that this substantial difference in the claim and offer primarily reflected a difference of opinion by the valuers for each party as to the 'before' value of the land. The difference does not however represent a substantive difference in the application of legal or valuation principle - which would have been surprising given the standing and competence of the valuers involved. The difference can be ascribed primarily to a difference in the expert opinions and background facts that each valuer relied upon as a basis for the valuation. This included the extent of the purpose or 'scheme' underlying the acquisition, access to the land in the 'before' analysis, and (most significantly) the likely timing of future rezoning and development. These factors lead the valuers to adopt different comparative sales (or apply a different emphasis or weighting to those sales) or different valuation methodologies. It is our findings on these contentious matters that therefore play a large part in determining the outcome of this proceeding.
11. Although, in the reasons that follow, we have referred to the evidence of several witnesses in expressing our findings, we have not cross-referenced each finding to particular hearing transcript. However, we note for the record that many such cross-references appear in the written submissions of both parties, and we have checked the hearing transcript as necessary, in addition to the primary reports, affidavit material and exhibits, in confirming our findings.

1. Both parties referred us to the relatively recent judgement of Justice Osborn in Murdesk Investments Pty Ltd v Roads Corporation[3] ('Murdesk'). The judgement is helpful in two important respects:
   • It usefully sets out certain 'propositions of law' that comprise the critical elements in the statutory framework in Victoria within which compensation falls to be assessed[4];
   • The subject matter of Murdesk also concerned a compulsory acquisition of land for the 'Craigieburn Bypass - Hume Link' within a relatively similar timeframe[5], and the Murdesk land was used as a comparative sale in this proceeding - albeit being some kilometres distant from the subject land and with differing views as to its weighting and/or relevance.
2. The second aspect of Murdesk is discussed further, below, in our valuation analysis. Insofar as the first aspect is concerned, neither party sought to disagree with the 'propositions of law' set out in Murdesk nor did it appear to us that there was any substantive disagreement between the parties on matters of legal principle. We have therefore adopted and applied these propositions of law in this proceeding.
3. For present purposes, we make the following general comments:
   • Section 41 of the LAC Act requires us to have regard to the 'market value' of the interest on the date of acquisition. Section 40 defines 'market value' as follows[6]:

'market value' in relation to any interest in land on a particular date, means the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser.

• As indicated, the relevant date in this case is 15 November 2001. Whilst regard may be had to events subsequent to the acquisition date as confirming or tending to confirm the foresight that a hypothetical purchaser would have had at the relevant date[7], care must be taken not to impute the hypothetical purchaser with hindsight of events not reasonably within his or her knowledge or expectation at that time. In the present case, this means that matters such as the introduction into the Hume Planning Scheme of the Urban Growth Boundary and related planning provisions in October 2002 - potentially affecting the timing of rezoning or development of the subject land - must be disregarded.
• Section 41(3) of the LAC Act essentially requires the assessment of market value to be undertaken by way of a 'before and after' analysis[8]. All valuers proceeded on this basis, and by having regard to the potential highest and best use available to the land at the relevant date. As Justice Osborn had noted in Murdesk:

In applying this notion, the potential highest and best use may itself be to hold the land for a potential future use. Thus, there is a distinction which may be drawn between land ripe for the subdivision and land having the potential for future subdivision.[9]

We believe this distinction also to be important in this case, and also directly relevant to the choice of appropriate valuation methodology as between comparable sales evidence and a hypothetical subdivision analysis[10].

• Section 43(1)(a) of the LAC Act reflects the Pointe Gourde principle in requiring a valuer in the 'before' analysis to disregard any increase or decrease in market value "arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired"[11]. The extent of the scheme or purpose underlying the acquisition was contested in this proceeding, and is dealt with further, below.
• In the 'after' assessment, the scheme or purpose underlying the acquisition must be taken into account[12]. Again, all valuers proceeded on this basis, although there was some difference of view as to the choice of appropriate valuation methodology, and the potential relevance of a hypothetical subdivision analysis in this assessment.
• As indicated in Murdesk, "a valuer like any other expert must reveal the factual and intellectual basis of an opinion"[13]. We are satisfied that this occurred through the detailed reports and evidence from all three valuers in this proceeding, all of whom were subjected to extensive cross-examination. To the extent all three valuers had relied, in part, on the expert opinions of others, those 'other' experts (planners, traffic engineers and the like) had also prepared detailed reports and evidence and were similarly called and subjected to cross-examination before us[14] in order to test the assumptions that had underscored the valuation analyses.

1. It is also appropriate to make specific comment on one additional matter of legal principle canvassed by the parties. It was stated in Murdesk:

Other things being equal if there is a doubt as to the amount properly payable by way of compensation that doubt should be resolved in favour of the more liberal estimate.[15]

We of course accept this principle. However, taken to its extreme, all issues in a valuation exercise might be argued to involve some level of 'doubt', given assumptions being made as to hypothetical vendors and purchasers, and reasonable expectations as to the future use and development potential of land. We believe the proper application of the 'doubt' principle suggests we should perhaps 'lean in favour' of the claimant in resolving matters of genuine doubt in the valuation assessment. For example, this might mean taking the more liberal estimate where two or more valuers are only a relatively small amount apart or have a relatively slight difference of opinion as to adjustments to be made[16].

1. However, in relation to disputed issues of fact or expert opinion, we agree with the Authority's view that the 'doubt' principle is appropriate to apply only where the Tribunal is unable to itself resolve the matter. We certainly do not believe the 'doubt' principle requires us to resolve all substantive matters of contested fact or evidence in favour of a claimant; rather we are required to determine those matters fairly and on the evidence before us. In this regard we adopt the comments of Bignold J. that the 'doubt' principle:

... is not to be applied in a mechanical or slavish fashion. Nor is it to be resorted to by the Court as a substitution for the undertaking of its duty to adjudicate on disputed issues of fact (including, of course, conflicting expert opinion)[17]:

Joint reports on agreed facts and points of difference

1. As we indicated earlier, the significant difference in valuations in this matter primarily stems from a difference in the expert opinions that each valuer relied upon on as a basis for the valuation, and our findings on the contentious matters are therefore central to the determination of this proceeding.
2. We are however fortunate in this proceeding to have three joint reports, prepared by the parties' experts, that set out with reasonable clarity those matters agreed between the parties, and indicating points of difference. These reports comprised:
   • A joint report on traffic engineering issues dated 18 May 2007 prepared by Jason Walsh, Kate Partenio and Henry Turnbull ('Joint Traffic Report')[18];
   • A joint report on engineering and servicing issues dated 15 May 2007 prepared by Elizabeth Hamila and Michael Jordan ('Joint Engineering Report')[19]; and
   • A joint report on town planning issues dated 30 April 2007 prepared by Andrew Biasci, Brendan Rogers, and David Whitney ('Joint Planning Report')[20].
3. The joint reports significantly narrowed the issues in dispute, and had the benefit of agreeing many other issues. Both the valuers and the Tribunal could therefore essentially rely upon these 'agreed' issues without further analysis.
4. We will deal with the contentious matters in more detail, under specific sub-headings below. For present purposes, the following comments can be made:
   • In the 'before' analysis, although the subject land was zoned 'Rural' at the relevant date, it is agreed that the land could have been reasonably anticipated to be re-zoned 'Industrial' in the future. The rural zoning in this case ought to be regarded as a holding zone for future urban use. There is however a significant difference of opinion on the likely future timing of re-zoning and development;
   • In the 'before' analysis, it is agreed that suitable access to the subject land would have been resolved at the time of re-zoning. However, there is a significant difference of opinion in relation to:
     • the access restrictions or limitations (if any) applying to the subject land at the relevant date - this being dependent on the status of the Hume Highway at the time, and the extent of the scheme or purpose underlying the acquisition; and
     • whether the future access to the subject land, when developed, would have been available from the Hume Highway and, if so, whether via a T-intersection or a grade-separated interchange.
   • If either a T-intersection or grade-separated interchange are utilised for access from the Hume Highway to the subject land, the costings for these are agreed;
   • It is agreed that sewerage would have been available to the subject land within 4 to 5 years from the relevant date;
   • To the extent a hypothetical subdivision is relevant to the 'before' analysis, the Pariossen plan[21] is a suitable plan of subdivision, and its costings are generally agreed;
   • To the extent a hypothetical subdivision is relevant to the 'after' analysis, the Coomes plan[22] is a suitable plan of subdivision, and its costings are generally agreed.

The purpose or 'scheme' underlining the acquisition

43(1) In assessing compensation, the following matters must be disregarded-

(a) any increase or decrease in market the value of the interest in land which is acquired arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired.

As indicated, this provision reflects what is known as the Pointe Gourde principle[23] - a principle designed to ensure a fair valuation in the 'before' analysis unaffected by the specific circumstances (i.e. the scheme or purpose) underlying the acquisition. The rationale is that neither the claimant nor acquiring authority should benefit from, nor be disadvantaged by, the proposal on which the acquisition is founded[24].

1. In cases of acquisition for major new linear infrastructure such as the Craigieburn Bypass, the application of the Pointe Gourde principle can sometimes be difficult. For example, if the freeway purpose is disregarded in the 'before' analysis, how wide should the net be cast in disregarding other matters arising from this? Would the development corridor opened up by the freeway have occurred in the same way or at all? Fortunately, in this case, the Joint Planning Report largely resolves this difficulty. The planners agree that the land's potential for future urban employment use would still have existed in the absence of the Craigieburn Bypass because of its frontage to the Hume Highway and the Melbourne to Sydney rail line.
2. The application of the Pointe Gourde principle arises in this case in a somewhat different way. It is common ground that the purpose for the acquisition is as set out in the formal LAC Act documents - i.e.'the construction of the Craigieburn Bypass - Hume Link'. Unfortunately, though, there is no common ground as to the extent of this stated purpose.
3. Moore contends that the 'Craigieburn Bypass - Hume Link' forms part of a broader longer-term scheme for the transport corridor in this vicinity, with this scheme also including an earlier project known as the 'Hume Bypass (Craigieburn - Kalkallo section)' declared in 1969. The relevance is that, if this contention is correct, restrictions on access to the subject land imposed by the 1969 declaration would be properly considered to arise from the same scheme as the current acquisition, and ought to be disregarded under the Pointe Gourde principle.
4. On behalf of Moore, Mr Delany took us to authority for the proposition that a wide view should be taken of steps or activities that are part of a scheme[25]. However, having reviewed those authorities, we do not believe that they require us to take an overly expansive view of what actually comprises the scheme or purpose underlying the acquisition. That is a matter to be determined on the evidence. Rather, we see these authorities as expressing a view that, once the scheme or purpose has been fairly established, the Pointe Gourde principle should not necessarily be limited to only the obvious and direct consequences of the acquisition purpose. The use of the words "arising from" in s 43(1)(a) suggest a less direct causal connection, and might allow less direct consequences of the acquisition arising from its purpose to be disregarded under the Pointe Gourde principle.
5. It is therefore necessary for us to establish the extent of the scheme or purpose underlying the acquisition in this case. Through the joint book of documents, we were provided with extensive historical material for the Hume transport corridor and its relationship to broader metropolitan and rural freeway projects - in particular for the period of the 1960's and through to the mid 1970's. We also received evidence on behalf of Moore from William Saggers (a traffic engineer with the Country Roads Board 'CRB') at the relevant time), and on behalf of the Authority from Donald Purdue (a traffic engineer contracted to the Authority).
6. Despite the potential difficulties in drawing proper inferences from an incomplete set of historical documents and recollections, we have little difficulty from the evidence in finding that the earlier project known as the 'Hume Bypass (Craigieburn - Kalkallo section)' declared in 1969 was not part of the same scheme or purpose as the current acquisition for the 'Craigieburn Bypass - Hume Link'.
7. During the 1960's, there were several studies and projects underway or under consideration in and surrounding the Hume transport corridor. In 1968, the CRB had approved the 'Hume Bypass (Craigieburn section)' - also referred to in some documents as the 'Craigieburn Deviation' - to eliminate the at-grade crossing of the Hume Highway with the Melbourne to Sydney rail line. The new overpass was adequate for highway standards, but was not constructed to a freeway standard. As far as we can ascertain, this 'deviation' was at the southern end of the 'Hume Bypass (Craigieburn - Kalkallo section)'.
8. The 'Hume Bypass (Craigieburn - Kalkallo section)' was conceived in or around 1963 as part of a program for rural bypass roads or freeways, and sought to deal with the physical duplication of the Hume Highway from the Craigieburn Deviation to the north at Kalkallo. As far as we can ascertain, these works were authorised in 1965, completed over the next two or three years, and culminated in the declaration of the 'Hume Bypass (Craigieburn - Kalkallo section)' in 1969 ('1969 Declaration')[26]. [The consequences of this 1969 Declaration on access are dealt with separately, below].
9. In the 1960's, there were also proposals to develop a freeway standard route along the Hume corridor from Melbourne to the NSW border. This included consideration of the extent to which existing highway reservations could be converted to a freeway standard, but also included consideration of other alignments bypassing established rural townships or existing highway reservations where this was more appropriate. In the Craigieburn area, there was the added issue of developing a satisfactory link from the rural freeway network to the road and freeway network of the Melbourne metropolitan area.
10. In 1966, it appears that the CRB resolved to defer this issue of the future Hume freeway alignment[27] in the Craigieburn area pending the completion of the Metropolitan Transportation Study[28]. That Study formed the foundation for a broader urban freeway network in and around Melbourne, including the metropolitan ring road and a link (then known as the 'F2') to join the Hume Freeway north of Melbourne. The study was completed in 1969. Although some of the MMBW's 'grand plan' for Melbourne's freeway network embodied in the study was dismantled in later years, the F2 link north of the metropolitan ring road remained a live and important proposal resulting from this study. However, the Metropolitan Transportation Study did not finally settle the F2 alignment, and there is some evidence of disputes between the CRB and MMBW through the 1970's as to where the F2 might link back to the Hume near Craigieburn. The final alignment was not resolved until 2001 following the Advisory Committee processes in 1999 and 2000.
11. What is reasonably apparent is that there was no expectation at the time of the 1969 Declaration that the F2 proposal or route had been advanced with any certainty, or that it would follow the same or a similar route to the then existing alignment of the 'Hume Bypass (Craigieburn - Kalkallo section)'. Indeed, the evidence suggests the contrary was always more likely, and the limitations of the 'Craigieburn Deviation' meant that the F2 was always more likely to re-join the Hume at some point further north of the rail overpass and therefore not utilise all of the 'Hume Bypass (Craigieburn - Kalkallo section)' as part of its alignment.
12. We therefore agree with the Authority that, although the F2 may have had its genesis in the same period as the 'Hume Bypass (Craigieburn - Kalkallo section)', the latter project was for a discrete, separate and more limited purpose. On the evidence, we disagree with Mr Saggers that it is 'inconceivable' that the 'Hume Bypass (Craigieburn - Kalkallo section)' was considered in isolation from the F2 or the proposed freeway from Melbourne to the NSW border. The project was separately conceived and approved. The works were completed before the completion of the Metropolitan Transport Study and some 32 years before the F2 alignment was settled leading to the acquisition in this case. We find that the 'Hume Bypass (Craigieburn - Kalkallo section)', along with the 'Craigieburn Deviation', were both simply concerned with upgrading the Hume Highway commensurate with the transport needs of the time. At the relevant time, the F2 alignment was deferred and unresolved. We find that the 'Hume Bypass (Craigieburn - Kalkallo section)' would have proceeded irrespective of the F2 ever being undertaken, and neither project was dependent on the other.
13. It follows that the F2 (or the 'Craigieburn Bypass - Hume Link' as it became known) was for a quite separate purpose to the earlier 'Hume Bypass (Craigieburn - Kalkallo section)' road project. In the application of the Pointe Gourde principle in this case, a valuer is therefore to disregard only the consequences of the more recent purpose underlying the 'Craigieburn Bypass - Hume Link'. The valuer is not required to disregard the consequences of the separate 'Hume Bypass (Craigieburn - Kalkallo section)' road project. This means that a valuer is entitled and required to take into account the access restriction to the subject land consequential upon the 1969 Declaration, as this access restriction does not 'arise from' the same purpose for which the current interest is being acquired.

1. Our finding that a valuer must take into account the access restriction to the subject land stemming from the 1969 declaration does not, of itself, provide a sufficient resolution of the issue for valuation purposes. The extent and implications of the access limitation is itself a matter of some contention between the parties[29].
2. Again, through the joint book of documents, we were provided with extensive historical material on this issue, and evidence from a number of witnesses. In addition to Mr Saggers and Mr Purdue, this evidence included evidence from Christopher Boardman[30], and from the three traffic engineers who had prepared the Joint Traffic Report. These three traffic engineers each expressed a view on the Authority's 'attitude' to access from declared roads and freeways in its network, and the likelihood of obtaining access for new development.
3. Prior to the 1969 declaration, the subject land appears to have had unrestricted access to its Hume Highway frontage. The 1969 Declaration followed the works that included the duplication of the Hume Highway along this frontage. Importantly, the CRB's 'decision' embodied in the 1969 Declaration indicated the following approvals:

(i) declaration, by resolution, of Hume Bypass Road (Craigieburn-Kalkallo Section);

(ii) authorisation, by resolution, of points of access shown on Plans 73885 and 73886;

(iv) advice to owners and affected public and govt authorities where access is authorised to the bypass road.

1. The relevant Plan 73885[32] shows the southern area of the bypass, including the frontage to the subject land. At the south-west corner of the subject land, there is a small 'open' area shown on the frontage boundary marked 'F' that corresponds to the legend on the plan as "access authorised across open section". The plan bears a scale, but is not of a size or level of detail where the width of the opening can be scaled with any specificity save to say it is clearly less than 50 feet. It is common ground that there was an existing farm gate at this point at the time. The balance of the subject land frontage is marked with a thick black line that corresponds to the legend on the plan as "access prohibited across this line". Other large properties are dealt with in similar fashion. At the south, an existing subdivision is shown on the plan with a service road adjoining the bypass. The point of access from the service road to the bypass, at the end of Kingswood Drive, corresponds to the legend on the plan as "temporary access authorised across hatched section".
2. Moore contends that, at the relevant date, a hypothetical purchaser would be entitled to assume that access existed to the subject land from the bypass - at least from the single point 'F' on Plan 73885 - and that this access was permanent, and capable of providing at-grade access from the bypass to accommodate the future development of the land for an industrial subdivision. On behalf of Moore, Mr Delany saw it as important that, despite the Authority having conducted exhaustive research of its files, it could not produce any document that contradicted a finding to this effect.
3. Whilst Moore's argument has an initial attractiveness in its simplicity, having reviewed the extensive material and evidence on this issue, we prefer the alternative outcome contended for by the Authority.
4. As a starting point, there is no doubt that the subject land enjoyed access to the Hume Highway from point 'F' for the 32 years from the 1969 Declaration to the relevant date.
5. Following the 1969 Declaration, Moore's predecessor-in-title (a Mr Petty) had been notified in early 1970 of the access authorisation[33]. The notification letter included the following:

Section 105(1) of the Country Roads Act provides that "No person shall enter cross or leave any by-pass road except at a crossing or point of access for the time being authorized for such purpose by the Board .....". In accordance with this section of the Act the Board has decided to authorize for the time being the points of access as shown on plans numbers 73885 and 73886.

Under Section 105(1) of the Act the authorization of access is for the time being only and therefore the Board may withdraw the authorization at any time if it so desires.

Under Section 104(1) of the Country Roads Act it is not permissible for any person to construct or provide any additional means of access to the by-pass road unless the written consent of the Board is first obtained.

The plan of the authorized points of access shows that access to the by-pass road from your property can only be obtained at the permanent point of access marked at point 'F' on plan number 73885 attached, this being at the existing gate.

[The underling emphasis appears in the original letter.]

1. In 1968, the CRB had also foreshadowed to Mr Petty that access was to be restricted "except at a permanent point of access to be authorised by the Board at the existing gate at the south west corner ..." [our emphasis][34]. The plan attached to this letter is similar in effect (albeit a different plan) to the Plan 73885 referred to in the 1969 Declaration.
2. Both the 1968 and 1970 letters therefore assist in interpreting the access authorisation on Plan 73885 as being limited to access at the then existing farm gate.
3. At the time of the 1969 Declaration, the land was zoned rural, and an industrial subdivision was not capable of being permitted. For practical purposes, the access enjoyed was in the nature of 'rural access' via the farm gate to an unserviced paddock. We accept the Authority's evidence to the effect that the continuation of existing rural access was routinely authorised as highways were upgraded to a bypass or freeway standard. We also prefer the Authority's view - in particular as expressed by Mr Boardman - that the access authorised by the 1969 Declaration should be construed as being limited largely to the type and level of access then being utilised, with any change or intensification requiring the Authority's consent[35]. There is nothing to suggest that the Authority routinely considered its access authorisations to provide permanent access for all future purposes.
4. Whilst there was some debate at the hearing as to what was meant by permanent access, it is clear that even so-called 'permanent' access could be withdrawn by the Authority[36]. The 1970 letter referred to above itself refers to (and emphasises) that the access is authorised 'for the time being' and may be withdrawn at any time. It follows that, even if Moore's initial argument is correct and the access restriction imposed by the 1969 Declaration is not limited to the type and level of access then being utilised (i.e. rural access via the existing farm gate), the Authority can achieve the same outcome, for practical purposes, by withdrawing access for any other purpose.
5. Some additional support for these finding also appears in the historical material. In 1968-69, the CRB had declined a request to offer further points of access to the road or to provide a service road[37]. In 1970, the CRB indicated a preparedness to consider alteration to the access point only "when a suitable submission has been received"[38], with the correspondence acknowledging that a change in access required the Authority's consent.
6. The 1968 letter, referred to above[39], had also provided:

If and when any permanent access authorisation is withdrawn and alternative access to the public road system is not available, the Board is prepared to negotiate, without prejudice, on the subject of further compensation payable (if any).[40]

1. Importantly, the subject land also has 'alternative' available access to the public road system, at the northern boundary from Amaroo Road[41]. A withdrawal of permanent access to the upgraded Hume Highway frontage (or the refusal of access to accommodate a new industrial subdivision on the land) would not therefore have had the effect of removing road access to the land completely or preventing its future subdivision for industrial use. It is also acknowledged that the 'compensation' referred to in this letter is quite different to the compensation for compulsory acquisition in this case.
2. The proper question in our view is what ought to be the reasonable expectation of a hypothetical purchaser at the relevant date, as to how the access issue might be resolved, and how likely the Authority might be to authorise access directly to the subject land from the Hume Highway.
3. In this regard, we note that the Joint Planning Report had agreed that rezoning would be dependent on, amongst other things, "achieving suitable access"[42]. There was however no agreement as to the form of access, and whether it might have comprised a T-intersection or half diamond interchange providing access from the Hume Highway, or whether it might have required access only via Amaroo Road, with a less direct link from Amaroo Road to the Hume Highway. A similar position arises in the Joint Traffic Report.
4. We disagree with Mr Delany's assertion on behalf of Moore that the joint reports had agreed or assumed some form of access to the subject land from the Hume Highway, and that the only options that could be considered by us were therefore the T-intersection or interchange. Our reading of the joint reports and the evidence is such that these two options were considered in some detail for the purposes of a hypothetical subdivision analysis based on two agreed subdivision scenarios, but only "if direct access ... was to occur"[43]. The Authority's experts had not however discounted the scenario of access only via Amaroo Road (i.e. with no 'direct' access from the subject land to the Hume Highway), and this is the scenario contended for by the Authority and the scenario we consider most likely.
5. We prefer the Authority's evidence -from Mr Boardman, Mr Purdue, Ms Partenio and Mr Turnbull - that the Authority would be most unlikely as a matter of policy to allow at-grade access to a major new industrial subdivision from a bypass or freeway. The general consensus of these witnesses was, as Mr Turnbull put it, that the Authority would flatly and categorically deny such access. Even Moore's evidence through Mr Walsh was to the effect that such access would likely be opposed by the Authority and be difficult to achieve.
6. The fact that there may be other historic points of access from the Hume Highway to other subdivisions (e.g. Kingswood Drive to the south of the subject land[44]) does not detract from the proposition that the Authority would likely seek to progressively remove existing at-grade access, and limit further access, to declared by-pass roads and freeways. We accept the evidence from Mr Purdue[45] that no direct access would have been permitted by the Authority in the 'before' analysis (other than continuation of the pre-existing rural purpose) because of the potential adverse impact on traffic capacity, volume, speed and/or safety along the Hume Highway.
7. This finding ought not to be considered surprising. It is consistent with the Authority's current access management policies for bypass roads and freeways[46]. The limitation of access to bypass roads and freeways is, we believe, a reasonably well understood policy of longstanding, and would have been in the reasonable contemplation of a hypothetical purchaser at the relevant date in 2001.
8. We disagree with the argument on behalf of Moore that the Hume Highway might have been down-graded from its bypass/freeway status to a highway status at or near the subject land, to facilitate direct at-grade access for the industrial subdivision via a T-intersection. In the 'before' analysis, where the Craigieburn bypass is to be disregarded, we consider this most unlikely. We agree with Mr Turnbull's evidence, paraphrased by Mr Wren in the Authority's Closing Submissions[47], to the effect that freeway reservations and access limitations are hard fought by the Authority and not easily given up - particularly to suit the needs of a proposed new development. Whilst there are some examples where panels have made recommendations against the Authority's preferred outcome[48], these appear isolated and particular to their circumstances. We agree with Mr Wren that congestion and accident rates in the undeclared section of the Hume Highway to the south of the subject land would have rendered it unlikely that the Authority would down-grade the status of an already declared section with controlled access in this location.
9. We also find the scenario of a half-diamond interchange immediately adjacent to the subject land, and specifically to service the subject land, to be unlikely. Although Moore's valuation under this scenario assumes a 30% cost contribution, there is no certainty that other landowners in the immediate vicinity (or the Authority) would have contributed the balance in a timely manner to support a subdivision within the relatively short development timeframe contemplated by Moore. At the relevant date, there was no development contributions plan existing or proposed in the Hume Planning Scheme to deal with this sort of infrastructure in this area. As the 'pioneer' developer, Moore may therefore have had to bear a higher up-front cost. We agree with Mr Wren that it is more likely a developer would wait until there was greater certainty of defraying the significant cost of such an interchange - which we were told was approximately $4.5 million - or look to alternative access arrangements.
10. There are other unknowns with this scenario -its design and location, how effective it would be as a half-diamond (as opposed to full diamond) interchange, and its impact on the subject land and associated land given it could not be constructed wholly within the existing road reserve. More importantly, based on the evidence, there is no certainty in the 'before' analysis that the Authority would have agreed to an interchange in this location primarily to service this land - particularly where the subject land had alternative public road access via Amaroo Road. We agree with the evidence of Mr Rogers that it is more likely that the Authority would choose to locate an interchange to accommodate existing and proposed arterial roads in the area on a more strategic planning basis.
11. Even if we are wrong on this last assumption, we believe little turns on it. A half-diamond interchange adjacent to the site with an access road, or access via a nearby interchange and Amaroo Road, would both impact significantly on value in the 'before' analysis. In the valuation analysis, Mr Stephen (whose valuation we have preferred) simply assumed grade separated access would be required, without being specific as to how this might be accommodated.
12. We therefore find that a hypothetical purchaser in the 'before' analysis would have had a reasonable expectation that direct access to the Hume Highway from the subject land to accommodate a new industrial subdivision would be opposed by the Authority and would be very difficult to achieve, if at all. The more likely scenario is that access to a new subdivision from the Hume Highway would be less direct and via Amaroo Road. These matters would influence the price a hypothetical purchaser would pay for the subject land.

1. The final contentious matter, and the one we believe has the greatest overall impact on valuation, concerns the likely timing of rezoning and development.
2. The Joint Planning Report resolves most 'planning' issues other than timing. The planners agree that, in relation to the subject land, its rural zoning was a 'holding zone' for future urban use. The land could be differentiated from more distant rural land because it was designated within the Hume Planning Scheme for 'Future Employment' on a Strategic Framework Plan, and within a 'Future Urban Employment Investigation Area' on the Somerton and Campbellfield Structure Plan. The planners agree that the future urban employment use existed in the absence of the Craigieburn Bypass (i.e. applying the Pointe Gourde principle) by reason of these designations and its location between the Hume Highway and Melbourne to Sydney rail line[49].
3. On the timing issue, the Joint Planning Report then records the following:

Andrew Biasci believes the land would be rezoned in 4 to 5 years from the relevant date.

David Whitney believes the land would be rezoned in 7 to 10 years from the relevant date, and certainly not within 5 years.

Brendan Rogers believes the land would be rezoned in the longer term (at least 10 years) from the relevant date.

1. Our view is that Mr Whitney's opinion should be preferred. We are tempted to draw an analogy with Goldilocks tasting the three bears' porridge and declaring one to be 'too hot', one 'too cold' and the other 'just right'. Certainly, we believe in the circumstances of this matter, Mr Biasci's 4 to 5 year rezoning timeframe is 'too hot' and unduly optimistic. Equally, we believe Mr Rogers' projected timeframe of more than 10 years is 'too cold' and represents an overly pessimistic view of the planning and market factors that might influence the timing of rezoning.
2. Our support for Mr Whitney's view as being 'just right' is not however just because he has adopted a mid-line position between these extremes. We find his evidence to be the most compelling in combining an appreciation of the strategic planning attributes and imperatives affecting the subject land with a pragmatic attitude as to the vagaries of the planning process. Central to this is Mr Whitney's view that it is simply impossible to be adamant about timing. Indeed, Mr Whitney's criticism of Mr Biasci's and Mr Rogers' projections was largely that they were both 'too adamant' about the likely timing of rezoning and development in an uncertain planning environment.
3. We agree with Mr Wren that, in considering the matter of timing, we should evaluate the same factors that the expert planners took into consideration in reaching their respective views.
4. Availability of services: The first of these is a matter of common ground. In the 'before' analysis, it could reasonably be assumed that all services would be available to the subject land within 4 or 5 years. This then is the 'minimum' timeframe for development. Although the Authority observed that sewerage services did not actually occur within this timeframe, we have disregarded that use of hindsight given the difficulty in adopting an 'after' scenario to qualify a 'before' assumption, and given the consensus position reached by the planners in the Joint Planning Report.
5. Whilst a longer term impediment in the availability of services may have been relevant to timing (as it was, for example, in Murdesk and in some of the comparative sales), we do not think the converse always applies. We agree with Mr Whitney to the effect that the availability of services is not in itself a basis for rezoning. We do not consider the availability of services in 4 or 5 years, by itself, to be a material factor to the timing of rezoning of the subject land in this case.
6. Site attributes: The second matter relates to site attributes. All planners accepted the future urban potential of the land by virtue of its location adjacent to the Hume Highway and the Melbourne to Sydney rail line, and its apparent lack of topographical or environmental constraints to development. The main differentiating factor relates to 'access'. Mr Biasci relied on instructions that essentially adopted Moore's view as to the availability and benefit of a permanent point of access to the Hume Highway. Given our findings on that view, we think Mr Biasci's opinion is optimistic. In evidence, Mr Biasci conceded that rezoning would not have occurred until access was resolved. A prospective developer would need to wait until there was some greater certainty as to how access was to be achieved and funded.
7. We agree with Mr Rogers that a more likely strategic planning outcome is that a grade separated interchange would ultimately have been located to accommodate the arterial road network in the area (rather than to support the development of the subject land)[50], and this may have dictated the timing of access and sequential development opportunity. Given that some level of structure planning for this part of the Hume municipality had commenced (see further, below), we think however that Mr Rogers view that this would not be resolved until the much longer term to be a little pessimistic. Mr Whitney also took the view that the access issues may be a cause for some delay in rezoning. In evidence, he tempered this view by indicating that access was not a fundamental issue in his consideration of timing in this case. He thought it was a matter that would have been sorted out by the engineers in due course, but still as part of a process that he considered was likely to occur (for other reasons) within a 7 to 10 year timeframe. We agree with this assessment.
8. Strategic planning: The third matter is the strategic planning framework for the area, as evident at the relevant date from relevant provisions in the Hume Planning Scheme. At the broadest level[51], the subject land was included on the Hume Strategic Framework Plan 1 as part of a large area from Cooper Street to Summerhill Road designated as a future employment area. At the next level[52], clause 21.02-5 includes the subject land within the Somerton and Campbellfield Structure Plan in a still relatively large area designated as a "future urban employment investigation area". Neither component of the local planning policy framework in the Hume Planning Scheme gives any indication of the likely timing of "future" employment or investigation. It is perhaps also worth noting that the local policy framework in the Hume Planning Scheme at the time also contemplated the Craigieburn Bypass, a matter which must be disregarded in the 'before' analysis.
9. The "strong" strategic support for a short to medium term rezoning that Mr Biasci reads into this material is not at all evident to us, nor his view that all of the land in the 'future' employment area might be rezoned at a similar time. We agree with Mr Whitney and Mr Rogers that there is certainly no indication in the Municipal Strategic Statement or the local planning policy framework of any impetus to develop the subject land or land in the immediate area in the short to medium term, nor in a non-sequential fashion, nor to give it a higher level policy status such as is given to the Cooper Street employment precinct to the south. The planning scheme at the time had simply (and quite properly) noted the future urban potential of the land.
10. We agree with Mr Whitney and Mr Rogers that there was a significant amount of strategic planning yet to be undertaken as part of the planning 'investigation' of the area contemplated by the planning scheme. The extensive work undertaken by Whittlesea and Hume Councils for the Cooper Street employment area to the south provides an example of this. We also agree that there is nothing to suggest that industrial land rezoning would have proceeded other than in a logical outward fashion along the Hume corridor, with a rezoning in the vicinity of the subject land unlikely to occur until there was a reasonable take-up of the extensive developable areas to the south. Whilst there were medium term servicing issues with at least some of this land (including some at Cooper Street), we do not believe on the evidence that this would have seriously impacted upon an orderly development of the area, nor created a circumstance whereby rezoning and development of the subject land might 'leap-frog' other rezoning and development by several years.
11. As between Mr Whitney and Mr Rogers, we have indicated earlier that we believe Mr Rogers timing assessment to be a little pessimistic given there is at least some acknowledgment in the planning scheme that the subject land was in a future investigation area. A greater than 10 year time horizon for rezoning may well have eventuated. However, we think that a hypothetical purchaser might reasonably have had a 'hope' factor that a rezoning could be achieved a little sooner - but certainly not within Mr Biasci's projected timeframe. It was clearly some way-off. Whilst Mr Whitney had also initially formed a view that the rezoning might take 10 years or more by reason of the factors outlined above, this view was tempered in evidence (and in the Joint Planning Report). Taking all of the strategic planning evidence into account, we agree with Mr Whitney's more pragmatic assessment of a 7 to 10 year timeframe for rezoning, this allowing for both the additional strategic planning work to be undertaken, and then the statutory planning process for the rezoning itself.
12. Views of Council staff: The fourth matter raised was the views of Council staff. Mr Biasci relied on the strong support of the Council's economic development officer as a basis for forming an opinion that the Council may have supported a rezoning within a shorter timeframe, or a spot rezoning of the subject land out-of-sequence from other development in the area. We agree with Mr Rogers that there is simply no strategic planning evidence to support this view[53]. Unlike the Cooper Street employment precinct to the south, with a longstanding strategy underscoring its rezoning and future development, there is no identifiable policy basis or need to kick-start development in the vicinity of the subject land through a spot rezoning or to warrant development other than in a sequential outward fashion within the Hume corridor.
13. Demand and supply of industrial land: The fifth and final matter considered by the planners to be relevant to timing in this case was the demand for, and available supply of, developable industrial land in the area. Mr Biasci indicated that had relied upon the conclusions of the property analyst Robert Buckmaster and had made no independent enquiries. Mr Buckmaster's conclusion had been that, at the relevant date, there were only 8 to 9 years supply of available industrial land within the area, based on a take-up rate at the time of approximately 35 to 36 hectares per annum. In a planning context, Mr Biasci indicated that state planning policy would suggest there should be a minimum 15 year continuous land supply[54], and an actual available supply well below this figure supported further rezoning of industrial land in the area in the short term, including the subject land.
14. The foundation for Mr Biasci's opinion clearly rests on the integrity of Mr Buckmaster's conclusion, and Mr Buckmaster was called as a witness to explain his conclusion. His evidence and answers in cross-examination became a matter of some controversy, with Mr Wren for the Authority later describing it variously as disingenuous, manufactured, contrived and artificial. Whilst we might choose less pejorative language, it is fair to indicate that we found Mr Buckmaster's evidence unreliable and his ultimate conclusion unsupportable.
15. Our first concern with Mr Buckmaster's conclusions is that he had chosen an arbitrary 10 km radius around the subject land, within which to consider available industrial land supply. This area therefore captured extensive areas of rural land to the north, and only limited industrial areas to the south closer to Melbourne. The 10km radius also ignores other industrial land supply in the region, or in other industrial precincts on the urban fringe, that might be said to 'compete' with this area in the mind of a hypothetical purchaser looking for land. Mr Buckmaster agreed in cross-examination that such a hypothetical purchaser would look to other established and planned industrial precincts.
16. The land supply figures relied upon by Mr Buckmaster were based on Departmental figures some 18 to 20 months before the relevant date[55]. Putting aside whether these figures are sufficiently contemporaneous to the relevant date, they nonetheless showed some 620.77 hectares of vacant industrial land in the area. Using take-up rates for the period from 1995 to 2000[56] Mr Buckmaster considers an average take-up rate of 35.5 hectares per annum. This exercise produces a conclusion that the overall supply of undeveloped industrial land in the area ranged between 17.09 years in 1995, 14.92 years in 1998, 17.49 years in 2000 and (on his projections) some 15.5 years in mid-2002[57]. These figures are also broken down as between Industrial 1 and Industrial 3 zoned land[58], with 19.1 years of undeveloped Industrial 1 zoned land projected as at mid-2002. The fluctuations between years reflects, on the one hand, the lands sales and development depleting 'available' land and, on the other hand, the occurrence of occasional rezoning to supplement availability.
17. Despite some misgivings about the quality of the input data and assumptions, Mr Buckmaster's exercise to this point represents at least a half-reasonable attempt to undertake a desktop study of undeveloped industrial land in the area based on limited publicly available material. It would however support a conclusion, even at this very simplistic level, that there is an adequate supply of industrial land to meet the then state policy target of 15 years supply.
18. This then brings us to the second and more fundamental concern with Mr Buckmaster's evidence. Curiously and somewhat inexplicably, he discounts his own projections of 'undeveloped' industrial zoned land to get to his generalised conclusion of an 8 to 9 year 'available' supply. He indicates that this is "due to the phenomenon of land banking"[59]. To get to this, he forms the view that there are only 5 major industrial subdivisions "presently being marketed" within the 10 km radius catchment[60]. These have, he indicates, only approximately 306 hectares of residual stock. He therefore determines to disregard all of the other industrial zoned land in the area that is not being subdivided and marketed at that time, on the basis that it is being land banked for future development and not currently 'available'. Applying his take-up rate of 36 hectares per annum to only these 306 hectares, he therefore forms the view that there is actually only 8.4 years available supply left.
19. We simply do not accept Mr Buckmaster's basis for disregarding industrial zoned land not currently subdivided and being marketed at the relevant date. In our view, the state planning policy basis for a 15 year land supply is not predicated on the basis that the whole 15 year supply is actually serviced, subdivided and being marketed on any given day of the 15 year period. At the very least, it includes all of the land already zoned and available to be brought to market during the period in an orderly manner to meet market demand[61]. This is part of the very rationale for rezoning. Industrial land is earmarked and available to meet projected market demand over a medium to longer-term period, and in sufficient quantity to ensure competitive land prices, and with flexibility to provide different sized land parcels to meet different market requirements as they arise. The 'land banking' of some of this 15 year supply, to await and meet market demand during the period, and allow for orderly supply over time, is a natural part of the market cycle and planning process. It cannot be said that this industrial zoned land is not available as part of the 15 year supply that may be relevant to the timing of when further land might be rezoned. It is already zoned for its intended purpose. If take-up rates and demand increase, this land would presumably be brought to market quickly, and there would then be an impetus then to look to further rezoning to supplement the 15 year supply.
20. It follows that we believe Mr Buckmaster's reliance on only 5 currently marketed industrial subdivisions as the only evidence of longer-term available industrial land supply represents a fundamental and fatal flaw in his analysis. If the other industrial zoned land is not disregarded then, even on Mr Buckmaster's own desktop analysis, a greater than 15 year supply (and over 19 year supply for Industrial 1 zoned land) existed in the area of the subject land.
21. Mr Delany on behalf of Moore sought to discredit Mr Rogers' reliance on an article in the Age newspaper as evidencing a greater industrial land supply in the northern and western regions, although neither party was able to produce the proprietary CB Richard Ellis data upon which that article was founded. There was also some debate about the ability to rely on later data comprised in a 2003 Departmental report[62] that indicated sufficient zoned and available industrial land in Melbourne's 'North' region for at least 25 years, based on take-up rates at that time. In the event, based on our conclusions drawn from Mr Buckmaster's material, we do not need to rely on that later material.
22. With Mr Buckmaster's conclusion undermined, Mr Biasci's reliance on that conclusion is also undermined. It is the proverbial 'house of cards'. Mr Biasci conceded that if there was an available industrial land supply of 15 to 20 years, this would clearly affect the timing of rezoning of the subject land. In his valuation evidence, Mr Stephen also indicated an opinion, from his experience, that there was an ample long-term supply of industrial zoned land in the area at the relevant date. Apart from Mr Buckmaster's creative discounting of Department data, it appears that there is a consensus in the material to support such a finding. Given that the state planning policy of a 15 year supply appears to us to be being met at the relevant date, we also agree with Mr Whitney that the 'supply and demand' argument is not a significant factor in this case to support an argument for a shorter timing for rezoning. It does not undermine his view of a likely 7 to 10 year timeframe, and certainly not a rezoning within 5 years.

1. It follows from all of the above that we find that, in the 'before' analysis, a hypothetical purchaser at the relevant date would have or ought to have known that:
   • there was a substantial supply of industrial zoned land already available in the region;
   • there was no particular site attribute or other reason to necessarily warrant the subject land 'jumping the queue' or being rezoned out of sequence;
   • rezoning of the subject land would therefore be likely to be in the vicinity of 7 to 10 years, and certainly not within 5 years - i.e. over the 'longer term'[63] - allowing for strategic planning to be completed and for the individual rezoning process;
   • although access would be sorted out at the time of rezoning, direct access to the Hume Highway from the subject land to accommodate a new industrial subdivision would be opposed by the Authority and would be very difficult to achieve, if at all.
   • access to a new subdivision from the Hume Highway would more likely be less direct and via Amaroo Road, or from an interchange servicing the arterial road network rather than the subject land itself.

1. We received detailed valuation reports and evidence from Brian Dudakov and Rodney Stephen on behalf of the Authority, and from Leslie Brown on behalf of Moore. Indeed, all three valuers had prepared multiple reports over the period of the claim, and had revised their valuations as new information became available.
2. We note for the record that an inspection tour of the subject land and several 'comparative sales' locations was undertaken in the presence of the parties as part of the hearing.
3. As an introductory comment to the valuation analysis, we agree generally with the submissions on behalf of Moore that:

It is ... not part of the role of the Tribunal in a compensation case such as the present to bring a "third set of opinions into the arena" or to piece together its own valuation.[64]

1. We take this to mean that we should not undertake our own independent valuation exercise - and we have not - but rather that we should decide on the evidence before us. The application of this principle does not, in our view, prevent us from accepting the comparative sales evidence and market valuation of one valuer, and making an adjustment (e.g. for severance) based on other evidence before us. This is essentially the task the court undertook in Murdesk.
2. In any event, we have ultimately found the Stephen valuation and evidence to be the most compelling for the reasons set out below.
3. During the proceeding, we also received several 'alternative' valuations from the valuers to cover the eventuality that we might agree with a valuer on some assumptions but not others. From this, it became readily apparent that the different assumptions made by the valuers in relation to the likely timing of rezoning and development (based on their respective planners' opinions) represented the major difference between them, in both the choice and adjustment of comparative sales and the choice of valuation methodology, rather than any major disagreement in valuation principle.

1. As indicated earlier, it had been noted in Murdesk that the potential highest and best use of broadacre land may itself be to hold the land for a potential future use, and this land with potential for future subdivision should be distinguished from land 'ripe for subdivision'[65].
2. Given the evidence before us, it is clear that the subject land was broadacre land being held by Moore for its potential future industrial use (and that this was its highest and best 'use'), and the subject land was not ripe for subdivision at the relevant date nor had any higher or better use arising from its then rural zoning. Even on Mr Biasci's optimistic projection of a rezoning in 4 to 5 years, the land could not have been considered ripe for subdivision at the relevant date, and none of the valuers approached the 'before' valuation on such a basis.

1. For convenience in the valuation analysis, we will paraphrase Mr Whitney's timeframe (i.e his belief that the subject land "would be rezoned in 7 to 10 years from the relevant date, and certainly not within 5 years") to be an indication that the rezoning would not occur until the 'longer term'. By this we mean the foreseeable longer term, rather than what we might call the indefinite or very long term. Just as Mr Whitney was keen not to be adamant about a precise time for rezoning, we believe a hypothetical purchaser at the relevant date would not have adopted an expectation of a precise time for rezoning. Given the vagaries of the planning process, we think a hypothetical purchaser would have, or ought to have had, an expectation that the rezoning would not occur until the foreseeable longer term, albeit perhaps with a hope that, if all went smoothly, it would be the medium to longer term rather than the long term. To this extent, any reference in the valuation analyses to a 'precise' figure of, say, exactly 7 years or exactly 8 years, is probably unhelpful.
2. This comment should not be taken in any way as an indication that we think timing is irrelevant. We do not accept Mr Brown's opinion that his 'before' value based on a 4½-year development horizon would be 'no different' if based on a 7-year timeframe, even if he believes the former valuation to be conservative. Without being precise or adamant about time, we think these timeframes clearly represent different 'ranges' of expectation within the mind of a hypothetical valuer and clearly affect value.

Valuation Methodology - comparable sales vs. 'hypothetical subdivision'

1. The fact that the subject land is broadacre land not ripe for subdivision leads us to a view that a valuation analysis based on comparative sales will provide the best basis for valuation in this case.
2. We note that this view is consistent with both Murdesk, and Coastal Estates Pty Ltd v Bass Shire Council[66]. We do not find anything in Mr Delany's references to other authorities, such as Boland Corporation Pty Ltd v Yates Property Corporation[67] that suggests we ought to take a different view in a case such as this.
3. In Coastal Estates, Justice Gobbo had expressed a view that, although it was impossible to be prescriptive, reliance upon a hypothetical subdivision analysis where development may be more than three years away (or, in some cases, an even shorter period) was fraught with doubt because of the uncertainties in the use of current estimates of sales prices and costs. In applying Coastal Estates in Murdesk, Justice Osborn had also noted that a delay in rezoning or sewer connection would impact significantly on value through additional holding costs, interest charges, and allowance for profit and risk.
4. With our finding that rezoning of the subject land in this case would not occur until the longer term, a hypothetical subdivision analysis would be of even greater doubt over such an extended and uncertain period of perhaps 7 to 10 years. This is particularly the case given uncertainty as to the assumptions that would need to be relied upon in relation to future sales, costs, allowance for profit and risk, and other factors. The uncertainty was to some extent 'exposed' in the sensitivity analyses undertaken through the adjustment of different assumptions in different valuation exercises. We are satisfied that there are sufficient comparative sales in this case to adopt a valuation based on comparative sales, and it is not appropriate or necessary in this case to utilise an alternative valuation methodology.
5. We note that all three valuers used a comparative sales analysis in the 'before' analysis. Moore's valuer, Mr Brown, had purported to use a hypothetical subdivision analysis[68] as a check upon his primary analysis. As we have found the material on the hypothetical subdivision analysis in the 'before' analysis to be sufficiently uncertain as to be unreliable, we do not propose to analyse it as part of these reasons. Although Mr Brown confirmed in evidence that his hypothetical subdivision analysis had been used only as a check, we note that this valuation was based on a 4½-year development timeframe (rather than the longer-term period we have found more likely). We suspect some of the parameters of his shorter to medium term hypothetical subdivision 'exercise' may have influenced his comparative sales analysis and explains part of the difference between his assessment and that of Mr Dudakov and Mr Stephen.
6. In the 'after' analysis, Mr Dudakov and Mr Stephen relied again on a comparative sales analysis. For similar reasons to those set out above, we think this is appropriate. Mr Brown however utilised a hypothetical subdivision[69] analysis. In evidence, he indicated that he wasn't assisted by any comparative sales evidence in the 'after' analysis, given the impact of the acquisition. We have however also found the material on the hypothetical subdivision analysis in the 'after' analysis to be sufficiently lacking in reliability if extrapolated over a longer-term development horizon, or even a 5-year development horizon. We agree with Mr Dudakov and Mr Stephen that the comparative sales evidence in this case is sufficient to adopt a valuation based on comparative sales in the 'after' analysis. [We note in any event that, in the 'after analysis, the two different methodologies do not produce materially different outcomes.]
7. We do not therefore propose to deal with the alternative hypothetical subdivision analysis as part of these reasons despite it having been canvassed and debated at some length in the hearing before us. We agree with Mr Stephen that the hypothetical subdivision analysis could at best assist in the 'after' analysis in testing costings relevant to the allowance for severance[70], and we have ultimately preferred Mr Stephen's 'after' valuation to that of Mr Dudakov because of Mr Stephen's more transparent approach to this factor.

More Detailed Consideration of 'Comparative Sales' Analysis

1. A comparative sales analysis relies on applicable sales, properly adjusted for time and any other relevant factors. The valuers collectively produced a list of 14 comparative sales drawn from their reports[71], although there was certainly no agreement as to those considered relevant, or most relevant, or the adjustments that ought to be made.
2. Four of these comparative sales related to properties in Cooper Street, Epping[72]. Mr Brown thought these Cooper Street sales to be of primary relevance, with perhaps the 'Murdesk' land at 337-413 Cooper Street being his 'most telling' sale[73]. It is fair to reflect that the Murdesk land, although already zoned Industrial, had servicing difficulties affecting at least half the site that meant it was unlikely to be fully developed until the medium to longer term. We were advised that the Murdesk land was sold in February 2000, with the sale conditional on rezoning - thereby eliminating a zoning uplift in value to the purchaser as it was essentially already factored in[74].
3. Mr Delany also expressed the view that the sale of 300 Cooper Street was the 'key sale' in the proceeding in that it was the only one identified and used by all three valuers from an early stage as comparable[75].
4. Mr Brown considered the subject land in the 'before' analysis to be superior to Cooper Street, with the subject land in his view representing something of a gateway site. We however prefer the views of both Mr Dudakov and Mr Stephen that the contrary position actually applies. At the time of the comparable sales, the relevant Cooper Street properties were zoned or in the process of being zoned for industrial and employment use. The properties formed part of an area known as the Cooper Street Employment Area, which has had long term and well-documented strategic planning and policy support at a state and local level, and formed a central component in planning for Melbourne's northern growth corridor. The Cooper Street Employment Area is also several kilometres closer to Melbourne within this growth corridor. Access to the properties off Cooper Street was direct, and had been resolved. Some Cooper Street properties were 'ripe for subdivision' and, despite potentially significant servicing issues affecting some others, we agree with the Authority that all four of the Cooper Street properties used in the valuation analysis were still very much closer to being subdivided and developed than the subject land. We agree with Mr Dudakov and Mr Stephen that the Cooper Street properties would attract a locational premium.
5. It follows that we accept Mr Stephen's opinion, as at the relevant date, that an appropriate value of 300 Cooper Street (adjusted for time) showed $62,000 per hectare and the Murdesk land some $78,720 per hectare. In relation to the latter, whilst Justice Osborn in Murdesk placed a higher value on the Murdesk land at an earlier date, we do not accept Moore's argument that this should directly translate into a similar figure in this case. In the hypothetical 'before' analysis in each case, different assumptions may apply. We must form a view of the respective valuers' opinions based on our findings as to the appropriate 'before' scenario relevant to this case.
6. Mr Stephen then applied a discount of 40% to 50% to the adjusted values for 300 Cooper Street and the Murdesk land, in terms of bringing them into comparability with the subject land, based on a number of factors. These included Stephen's view that Cooper Street is vastly superior, the comparative time frame for rezoning[76], and access difficulties with the subject land. In his final address[77], Mr Delany sought to criticise the discount made on the basis of these factors. However, given our views coincide with Mr Stephen on each of these matters, rather than those of Mr Brown or the other Moore witnesses, we find the discount appropriate. Applying the discount Mr Stephens view is that, for example, a range of $31,000 to $37,000 per hectare is appropriate for the subject land on a comparative basis with 300 Cooper Street. We think this more realistic than the $80,000 per hectare figure Mr Brown draws from his analysis, based on a contrary view. It is interesting to note that Mr Brown's starting point for 300 Cooper Street, adjusted for time, is $70,000 per hectare[78] - not too far distant from Mr Stephen's adjusted value of $62,500 per hectare. Mr Brown however adds a premium, on the view that the subject land is superior, whereas Mr Stephen applies the discount outlined above. We find Mr Brown's view impossible to sustain on the material before us, and his value is further undermined by his primary reliance on the Biasci/Buckmaster conclusion that the subject land would be rezoned and available for development in 4 to 5 years.
7. Putting the Cooper Street sales to one side, we think that a further seven of the 14 main comparative sales considered by the valuers are of only limited assistance:
   • We agree with Mr Brown that the two sales at Donnybrook Road, Yan Yean[79] and the sales at Mickleham and Kalkallo[80], relied upon by Mr Dudakov and Mr Stephen, had at best only a hope value for some distant future development potential, rather than being capable of being characterised as being in a 'holding' zone like the subject land[81]. The Mickleham and Kalkallo sales were also very small parcels;
   • We believe that the two sales in Campbellfield[82] and one at Somerton[83], are of land already zoned Industrial and much closer to being subdivided, and superior to the subject land. In the case of the Austrak site in Campbellfield, the site is clearly superior to the subject land and attracts a premium due to its railway siding and its identified 'inland port' potential, and the sale also requires substantial adjustment for time from a 1998 sale. The Somerton site is also quite small at only 13.39 hectares, and is a clearly superior site at major intersection;
8. Mr Dudakov and Mr Stephen both relied upon three sales in Craigieburn. These were at 535 Mt Ridley Road, 65 Amaroo Road, and 745 Summerhill Road. These we believe are all of potential relevance as being zoned rural, being in the broad vicinity of the subject land and covered by the same planning framework, and therefore having the same 'holding' zone potential for rezoning and development within a similar timeframe. We agree however with Mr Brown that the latter two sales are of much lesser relevance, being much smaller parcels than the subject land (at only approximately 12 hectares each) and more likely to attract a different class of buyer.
9. We however agree with Mr Dudakov and Mr Stephen in relation to the Mt Ridley Road sale, and believe it to be perhaps one of the better indicators of value. It is of a reasonable size at 55 hectares, with a value per hectare of approximately $21,720 per hectare within a month or two of the relevant date. We agree with the uplifting of this value by 60% by Mr Stephen, for comparability with the subject land, to reflect the longer-term development of the Mt Ridley Road site for residential use, some uncertainty as to the timing of services, and the superior location of the subject land. This suggests the subject land ought to be valued at approximately $35,000 per hectare, based on this comparator. One of the reasons Mr Brown discounted the Mt Ridley Road sale[84] was based on advice from Hume Council that the Mt Ridley Road would not be developed for 5 to 10 years. This, however, is a similar time frame to the subject land. We agree however that the subject land would, in the normal course of events, have been rezoned and developed before Mt Ridley Road.
10. It follows from the examination of the evidence above that, in the 'before' analysis, we accept Mr Stephen's adjustments to relevant comparative sales such as 300 Cooper Street and 535 Mt Ridley Road in providing a range of $31,000 to $37,000 per hectare (in the former case) and $35,000 per hectare (in the latter case) for the subject land, and therefore adopting $35,000 per hectare. This is a little more than Mr Dudakov's value of $32,500 per hectare. We prefer Mr Stephen's valuation of $35, 000 per hectare to that of Mr Dudakov, because of his view of the adjustments outlined above, his perhaps more transparent view of further adjustments made following the joint reports, and perhaps his greater willingness to consider and adjust the relevant Cooper Street sales evidence. The values per hectare are not however markedly different, and we still find Mr Dudakov's conclusions in the 'before' analysis to be reasonably defensible and very much 'in the ballpark'. Based on the 'doubt' principle discussed earlier, and given the similarity between the methodologies and outcomes, Mr Stephen's 'before' valuation ought also to be preferred of the two, as the one favouring the claimant.
11. As we have indicated, we find Mr Brown's value of approximately $80,000 per hectare[85] impossible to sustain on the findings we have made on contentious matters, and in his inflated view and use of the Cooper Street sales evidence.

1. In one sense, there is little disagreement with the 'after' value. Mr Delany on behalf of Moore in fact urged us to accept Mr Stephen's valuation that had been prepared on behalf of the Authority. His simple premise for this was that we should apply the 'doubt' principle, on the basis that Mr Stephen's value in the 'after' analysis was the lowest of three relatively similar values, and the one that favoured the claimant[86]. On this basis, Mr Delany did not 'test' the valuations of either Mr Dudakov or Mr Stephen in the 'after' analysis through extensive cross-examination or submission.
2. Application of the 'doubt' principle in this way certainly bolsters our support for Mr Stephen's valuation in the 'after' analysis. However, for the record, we believe that Mr Stephen's valuation is also to be preferred on its own merits, primarily for the following reasons:
   • For reasons stated earlier, we do not believe the 'hypothetical subdivision' methodology utilised by Mr Brown is appropriate in this case, other than to test the parameters of loss due to severance. Mr Stephen adopted this latter approach[87];
   • Although we are not bound to do so, we see some merit where appropriate in adopting the 'before' and 'after' analyses of the same valuer, so that there is a consistent use of assumptions and a consistent flow of reasoning;
   • We think Mr Stephen's use of comparative sales in the 'after' analysis, combined with his consideration of severance and enhancement, is sound - see further, below;
   • We agree with Mr Stephen's assessment of the 'after' land by separate reference to each of the three severed land parcels, in providing an 'after' value of $36,000 per hectare for Parcel 1 (reflecting its enhanced 'frontage' exposure and value) and $26,000 per hectare for Parcels 2 and 3, providing for his average of $27,500 per hectare[88];
   • Mr Brown's 'before' value of $80,000 per hectare and 'after' value of approximately $30,000 per hectare[89] would have us accept that the loss that might be apportioned to severance is in the order of $50,000 per hectare or some 62%, and with no enhancement. There is simply no evidence to support severance of this magnitude[90] and it seems, both intuitively and on the evidence and submissions, to highlight the flawed approach and assumptions leading to this view;
   • Equally, Mr Dudakov's 'before' and 'after' valuations of $32,500 per hectare in each case would have us accept that there is no nett loss due to severance at all. We do not think this likely. We accept there will be additional subdivision and development costs, particularly in relation to sewer and servicing, for the three irregular-shaped land parcels created following the acquisition. These additional costs would be recognised by a hypothetical purchaser in the 'after' scenario, and would affect value.
3. We note that the Authority's formal offer to Moore had been predicated on Mr Dudakov's valuations (rather than Mr Stephen's), with a 'before' and 'after' value in each case of $32,500 per hectare, and with no nett loss therefore apparently attributed to severance. Mr Dudakov had however allowed for severance in some of his earlier reports. It is therefore appropriate that we comment further on this anomaly. At the conclusion of Mr Dudakov's evidence, when we queried this, the Authority still maintained that there was an allowance for severance in Mr Dudakov's final analysis. Leave was therefore given to the Authority to provide further information on this in writing. However, the subsequent letter of 1 February 2008, filed by the Authority's solicitors, simply maintained that Mr Dudakov's assessment "incorporates the effects of severance". The letter provided no supporting information other than a reference to the transcript where we had first raised the issue, and which in our view reinforces the ambiguity[91]. We find this unsatisfactory as a matter of evidence, given the Authority's continuing reliance on Mr Dudakov's valuation as a basis for its offer, and the valuation we should prefer in this case. Mr Dudakov's opinion (or lack of satisfactory opinion) on severance is one of the key differentiating factors between his conclusion and that of Mr Stephen.
4. Mr Stephen's view on severance and enhancement is much clearer, as a basis for explaining and apportioning the differences in the 'before' and 'after' valuations[92].
5. We agree with Mr Stephen's opinion that the Coomes Plan (i.e. the agreed hypothetical subdivision in the 'after' analysis) is helpful in demonstrating the likely costs of roads and services following acquisition[93], with the allowance appropriately ascribed across the whole of the 'after' land. We think his allowance for severance of 25% is therefore reasonable.
6. We also agree with Mr Stephen that Parcel 1 in the 'after' land (i.e the area of approx. 8.54 ha fronting the Hume Highway, and lying between the Hume Highway and Craigieburn bypass) will have some enhancement. This is primarily associated with the provision of road access, proximity to the new Amaroo Road interchange, and the improved road network following the acquisition of the Craigieburn bypass and associated works. Any uncertainty associated with access is thus resolved. We agree with Mr Stephen that this betterment could arguably apply to the whole of the 'after' land, but endorse his more conservative approach to apply this only to Parcel 1 as the betterment is more obvious in relation to this parcel. We have no reason to challenge his allowance of 29% for enhancement for this parcel, to be netted off against the severance.

Principal conclusions on 'before' and 'after' values

1. It follows that, in accepting the Stephen valuation on the market value of the land acquired, we support his conclusions[94] as follows:

1. Moore had initially sought 10% solatium but, at the conclusion of the hearing, sought to 'accept' the Authority's offer of 4%. The Authority, on the other hand, having earlier offered this 4% as part of its broader offer of compensation, sought to reduce solatium to zero on the basis that:
   • Its broader offer of compensation had not been accepted; and
   • Moore was a speculative investor in the subject land and had not suffered intangible and pecuniary disadvantage from the acquisition within the factors ordinarily considered under section 44(2) of the LAC Act.
2. Despite argument from Moore, we are not convinced that the Authority's offer of 4% should be treated as an admission against interest from which it could not resile. Its offer had clearly indicated that the Authority reserved the right to seek a lesser amount at the hearing.
3. Equally, neither party produced any evidence on the issue, although Mr Delany made some submissions on behalf of Moore in his closing submissions that suggested some level of inconvenience and disruption.
4. If the Authority was acting properly within its charter and believed no solatium was payable at all, it ought not to have consistently offered 4% solatium in each of its several formal and open offers during a lengthy acquisition process. If it was a 'without prejudice' sweetener intended to promote and facilitate a settlement, it ought to have been put as such. Either way, the Authority needed to properly make its case before us, if it was now of the view that solatium ought to be assessed at zero. Accordingly, although we consider Moore's claim for solatium to be marginal, we have determined in the circumstances of this case to give him the benefit of the doubt and award solatium at 4%.

1. We accept that the Authority could argue, as it did, that part of the claimed expenses included expenses dealing with valuation assumptions and scenarios that we have not found in favour of, and that the Authority ought not to have to pay the expenses for Moore to pursue a flawed approach to valuation.
2. Although the Authority opposed the overall quantum of expenses, it did not however call evidence or seek to contest the affidavit of Megan Schroor on behalf of Moore in relation to expenses. The expenses, in full, were included in the Authority's offer - including in its amended offer lodged part way through the hearing. In the circumstances, and in the absence of any serious attempt by the Authority to isolate and attack particular expenses, we have determined to give Moore the benefit of the doubt and award the expenses in the amount claimed.

1. The Authority has already made substantial payments to Moore in line with its offer. Our findings and order lead to a higher award of compensation, so there will be a further nett payment to Moore.
2. Interest is payable on any unpaid amounts in accordance with sections 53(1) and 56 of the Land Acquisition and Compensation Act 1986, and our orders allow for this. We do not have sufficient material before us to ourselves determine interest, nor know the date of ultimate payment(s). We expect the Authority can quickly assess the appropriate amount at the time of payment, and this should not be a matter of any controversy. However, if there is any disagreement, our orders allow interest to be determined by the Tribunal.

[1] It is noted for the record that DP Dwyer had, at an earlier directions hearing, declared to the parties a prior involvement in broader planning issues in this Advisory Committee process in 1999-2000, but without involvement in particular land acquisition or valuation matters. Senior Counsel for both parties indicated an awareness of this involvement and that they had no objection to DP Dwyer sitting in this matter.

[2] Contained in the joint book of documents filed by the parties at page 1345 (CB1345)

[3] [2006] VSC 363, Supreme Court. After the hearing before us had concluded, we were advised that the Court of Appeal had handed down its decision dismissing an appeal from that judgement, now reported at [2008] VSCA 16 (20 February 2008). The appeal had primarily concerned the assessment of severance and, in particular, whether the court's assessment of severance was properly calculated and consistent with the evidence. Because the matter of severance ordinarily turns on the facts of each case, and because the appeal was in any event dismissed, we have not found it necessary to analyse the appeal decision at any length in these reasons.

[4] [2006] VSC 363, at paras [21] - [39] inclusive

[5] The relevant date for the Murdesk land was 11 February 2002, compared to 15 November 2001 for the subject land.

[6] See also Murdesk, at paras [22] - [24]. Section 40 follows the test formulated by the High Court in Spencer v Commonwealth [1907] HCA 82; (1907) 5 CLR 418

[8] See also Murdesk, at paras [25] - [26]

[9] Murdesk, at para [28] applying Crompton v Commissioner of Highways (1973) LGRA 8 at 25

[10] See also Murdesk, at paras [34] - [35]

[11] See also Murdesk, at paras [29] - [32] and the additional authorities there cited.

[12] Murdesk, at para [33], applying section 41(1)(e) of the LAC Act, and the definition of "loss attributable to severance" in s 40.

[13] Murdesk, at paras [36] - [37]

[14] save for some survey and engineering matters not in dispute between the parties.

[15] Murdesk, at para [39], following Commissioner of Succession Duties SA v Executive Trustee and Agency of SA Ltd [1947] HCA 10; (1947) 74 CLR 358 at 374 per Dixon J.

[16] This also seems to us to be the view of the parties. See, for example Moore's "Final address" at paras [23] - [30] and the references to Brown "Land Acquisition" (4th ed) at 3.20; and Latimer v North Coast NA&I Society (1938) 17 LVR (NSW) 67 at 73 - the Tribunal's approach should be to resolve disputed issues "in a generous rather than a niggardly spirit". See also the Authority's "Closing Submissions" at para [1.4]

[17] Peter Croke Holdings Pty Ltd v Roads & Traffic Authority of NSW (1998) 101 LGERA 30 at 50, referred to in the Authority's "Closing Submissions" at para [1.4.3]

[18] CB 43. The respective parties also called all three traffic engineers as witnesses.

[19] CB 46. Neither engineer was required to be called, as there were no material engineering or servicing issues in dispute.

[20] CB 48. The respective parties also called all three planners as witnesses.

[21] CB 384, plan for 91 lot subdivision prepared by Pariossen Grant & Associates, revision June 2005

[22] CB 392, plan for 78-lot subdivision prepared by Coomes Consulting dated 3 October 2002.

[23] Following it having been most clearly articulated in Pointe Gourde Quarrying and Transport Co Ltd v SubIntendent of Crown Lands [1947] AC 565.

[24] See also Coastal Estates Pty Ltd v Bass Shire Council [1993] VicRp 92; [1993] 2 VR 566

[25] See, for example Moore's "Final address" at paras [70] - [89] and the cases referred to therein.

[26] The 1969 declaration is at CB 1679. It refers to a Plan 73885, the relevant part of which is at CB 1682.

[27] i.e. for the freeway standard route from Melbourne to the NSW border

[28] See Saggers statement of evidence, CB 60 at para [18], and CRB file note at CB 89.

[29] Indeed, as indicated, Moore contends that the extent of the scheme or purpose underlying the acquisition is not critical to its case, as sufficient permanent access exists from the Hume Highway. See Moore's "Final address" at para [210]

[30] a network policy officer with the Authority who had worked in its Land Information and Survey Department and who undertook some of the historical research

[33] Letter from CRB Secretary to AE Petty dated 11 February 1970, CB 1680

[34] Letter from CRB Secretary to AE Petty dated 1 May 1968, CB 543

[35] For example, at CB 533. Contrary to Mr Delany's objection, we do not believe Mr Boardman's opinion to this effect is inadmissible. Having some 30 years of experience with the Authority and its predecessors, we believe Mr Boardman is able to express an opinion on the common practices and understandings of the Authority in its day-to-day operations at the relevant time. It is a matter of 'weight' as to how this material ought to be considered by us.

[36] Although this may be subject to compensation - see generally s104-107 of the then Country Roads Act 1958.

[37] Letter from Douglas Wallace (Petty's valuer) dated 7 November 1968, CRB Secretary's reply dated, 21 January 1969 and Wallace's further response of 31 January 1969, CB 1412,1413 & 1414

[38] Letter from CRB Secretary dated 30 September 1970 responding to a letter from Malleson's on behalf of a prospective purchaser expressing an intention to subdivide, CB 1370, 1371. Contrary to Moore's assertion that this latter letter is an admission against interest that contemplates urban development, and is not restricted to "rural" access (see Moore's "Final address" at para [231] - [232]), we think this is a very long bow to draw from the letter. The letter does not refer in any way to urban development, is made on behalf of a purchaser named 'Teck Pastoral Pty Ltd' (our emphasis) and, although contemplating subdivision for an unspecified purpose, refers only to the single point of access being moved to a more suitable location.

[39] Letter from CRB Secretary to AE Petty dated 1 May 1968, CB 543

[41] Moore does not contest this - see Moore's "Final address" at para [204]

[42] In evidence, the planners agreed that this access would have been capable of being resolved at the time of rezoning.

[43] For example, see the Joint Traffic Report, CB 43 -44, at paras [7] and [8].

[44] We note this is shown as a 'temporary access' on Plan 73885 referred to in the 1969 Declaration.

[46] For example, Vic Roads Access Management Policy 2006, Policy AMP1 (Exhibit R5)

[48] For example, Amendment C11 to the Hume Planning Scheme (Exhibit A20)

[50] Mr Rogers believed any interchange would most likely have been sited in the Mount Ridley Road/Summerhill Road area.

[51] See clause 21.02-5 of the Hume Planning Scheme as it existed at the relevant date.

[52] See clause 21.03-7 of the Hume Planning Scheme as it existed at the relevant date

[53] Mr Rogers also cast doubt on whether the view of Council's economic development officer was predicated on the construction of the Craigieburn Bypass, such that it could not be given weight in the 'before' analysis.

[54] For example, Clause 12 of all VPP based planning schemes, including the Hume Planning Scheme.

[55] Industry in Melbourne, published by the Department of Infrastructure (2000). The information in this report is drawn in part from spatial information derived from aerial survey.

[56] This included comparison with other Department of Infrastructure data for 1995 and 1998.

[58] For Industrial 1 zoned land, the undeveloped land supply ranges between 19.65 years in 1995, 17.02 years in 1998, 21.10 years in 2000 and (on his projections) some 19.10 years in mid-2002

[60] Buckmaster report, CB 197-8, These are the National Business Park, Austrak Business Park, Northpoint Industrial Estate, Victorian Transport Centre Development, and Northcorp Industry Park.

[61] Indeed, there was argument that 'available' supply for the 15-year supply was not limited to already zoned land, but also included land in a holding zone and earmarked for future rezoning on strategic plans and structure plans for the area.

[62] Urban Development Program, Report 2003 produced by the Department of Sustainability and Environment (Exhibit A33)

[63] See further on this in the valuation analysis, below.

[64] Moore "Final address" at para [7], following Brewarrana Pty Ltd v Commissioner of Highways (No.2) (1973) 6 SASR 541 at 544-5; and 101 Collins Street Pty Ltd v City of Melbourne (unreported, Supreme Court, 2 April 1996 per Batt J.)

[66] [1993] VicRp 92; (1993) 2 VR 566, 676-7 per Gobbo J.

[67] [1999] HCA 64. In that case, Callinan J simply confirmed that the hypothetical development or discounted cash-flow analysis were valid methods of valuation that may be applicable in certain cases. He noted that there was no legal principle that dictated for all time what might be the most acceptable method in a given case.

[68] Based on the agreed Pariossen plan referred to earlier in these reasons.

[69] Based on the agreed Coomes plan referred to earlier in these reasons.

[72] 300 Cooper Street, Lot A 360 Cooper Street, Lot B 360 Cooper Street (Northpoint), and 337-413 Cooper Street (Murdesk).

[73] This was the land that formed the basis of the decision in Murdesk. Mr Dudakov had not initially taken this sale into account in this case, but conceded its relevance in evidence, albeit not to the same extent as Mr Brown. Mr Stephen considered this site in his last affidavit, by way of response to Mr Brown's material - see for example at CB 2176.36.

[74] It is not therefore relevant that the purchaser may have later waived that condition, as contended on behalf of Moore.

[75] Mr Stephen refers to this sale as 350 Cooper Street, rather than 300 Cooper Street

[76] We note for the record that, in Mr Stephen's final report, he had adjusted his valuation to reflect a more optimistic view of the timeline for development (based on the Joint Planning Report and the "Whitney" view) than his earlier view that rezoning was in the much longer term.

[77] See, for example Moore's "Final address" at para [262]

[78] See Brown's revised calculations in his letter dated 15 October 2007, at CB 2386

[80] 15 Gunns Gully Road, Kalkallo and 410 Old Sydney Road, Mickleham

[81] We note neither Mr Dudakov nor Mr Stephen dwelt on these two sales in their evidence, and they did not form part of the Tribunal's site visits arranged by the parties. We were also informed that the site at 1910 Donnybrook Road had been purchased by Whittlesea Council for a future golf course.

[82] 'Ford' site at Hume Highway, Campbellfield, and 'Austrak' site at Cnr Hume Highway and Somerton Road

[83] 130 Hume Highway, Somerton (Cnr O'Hearns Road) relied upon by Mr Brown.

[84] Mr Brown agreed generally with the 'value' for this site, but disagreed the sale was comparable.

[85] See Brown's revised calculations in his letter dated 15 October 2007, at CB 2388

[86] See, for example Moore's "Final address" at para [333], referring to the 'Succession Duties' principle. This follows Murdesk, at para [39] which, in turn, follows Commissioner of Succession Duties SA v Executive Trustee and Agency of SA Ltd [1947] HCA 10; (1947) 74 CLR 358 at 374 per Dixon J.

[87] Stephen 'final' report, dated 20 November 2007 at CB 2176.26

[88] Mr Stephen refers to these as Parcels 6, 7 & 8. For consistency, we have converted these to accord with our land parcel references outlined earlier in these reasons.

[89] See Brown's revised calculations in his letter dated 15 October 2007, at CB 2388, showing an 'after' value of $1,800,000. For 57.969 ha, this equates to approx. $30,000 per hectare (rounded).

[90] In this regard, we do not believe Mr Delany's submissions on severance (i.e. in Moore's "Final address" at paras [336] to [351]) demonstrate a loss of this magnitude.

[91] See Transcript p1007, lines 8 to 18. What Mr Dudakov says there is "...if there was no access it would form part of a larger development and the cost of severance would have been amortised over a much larger holding so there would be no - to that extent I didn't believe there was severance."(our emphasis). Contrast this with Transcript p1006, lines 15 to 21, where Mr Dudakov indicates he did allow for severance of between 13.75% and 15% due to increased sewerage costs.

[92] Stephen 'final' report, dated 20 November 2007, in particular at CB 2176.26 and 2176.27

[93] See in particular at CB 2176.27 under the heading 'Conceptual development plans and costing'.

[94] As in Mr Stephen's report, all figures have been rounded by the valuer.