48 I conclude therefore that as at the date of acquisition, ignoring the proposal for the WSO, the zoning of the land at the date of acquisition would have remained as it is presently. Having regard to the overall general constraints of the land and the advice of Mr Rowbottom together with the general uncertainty as to when the land would be rezoned for an urban purpose, if at all, it is my view that the hypothetical purchaser when determining the purchase price with a hypothetical vendor would not have made any allowance for, or recognition of, a prospect that the land could be rezoned for an urban purpose. On balance, it is my view that consistent with the respondent's case the perceived development potential of the land in the Rural 1(e) zone would have been limited to the uses permissible in that zone. My opinion is principally based upon the constraints associated with the flooding potential of the land. The noise affectation from Hoxton Park aerodrome and the impact of the need to gain access through existing residential areas only compound the problem.
49 That leaves two issues to be determined, namely the price that the hypothetical purchaser would have agreed with the hypothetical vendor and compensation for disturbance.
Sales evidence
50 The sale of an area of 6.59ha fronting Cowpasture Road, north of the subject land and similarly constrained, after making some adjustments in relation to the true purchase price paid, the value of improvements and a 20 month time adjustment refects a value of $21.18 per m2. Having regard to the inherent and other constraints equally applicable to this land as to the subject land, I am not satisfied the proposal for the WSO significantly impacted on this sale as Mr Webster submits but neither am I satisfied that the proposal for the WSO necessarily enhanced the value of the land as Mr Wood suggested.
51 A further sale of land in Wilson Road, Hoxton Park comprising 3.198ha adjacent to Hinchinbrook Creek, opposite the subject land, similarly flood affected as the subject land and cut by a transmission line easement reflects an adjusted price of $16.29 per m2. The adjoining lot was purchased as a single house site and reflected a rate of $20.6 per m2 over the total area.
52 According to an analysis undertaken by Mr Wood, physically constrained vacant land at First Avenue, Hoxton Park comprising an area of 2.023ha acquired by Liverpool City Council was purchased in February 1999 for $700,000. That amount was deduced after allowing for the value of residential land included in the same transaction. Assuming that his analysis is correct the price paid for the area baldy affected by natural water course equated to $17 per m2 adjusted to $22 per m2 for time.
53 Relying upon the above sales, Mr Wood, the respondent's valuer, ultimately adopted a rate per m2 of $25 on the assumption that the subject land remained in the Rural 1(e) zone.
54 Mr Dobrow on the other hand deduced $70 per m2 in support of the applicant's case. Essentially, the applicant did not rely upon any alternative sales to justify a theoretical purchase price which reflected the Rural 1(e) zoning with urban development potential constrained by the impacts of flooding and the other environmental concerns identified above. Primarily Mr Dobrow proceeded to value the land by adopting comparable sales of englobo finished lots for industrial purposes and englobo land with residential potential.
55 Mr Dobrow only referred to the above sales used by Mr Wood for the purpose of establishing a value for land with environmental significance along Hinchinbrook Creek. He eventually deduced a rate of $47 per m2 which he says is consistent with the rates in the Council's s 94 Contribution Plan. I cannot fathom any basis for adopting a rate derived from a s 94 Contribution Plan in circumstances such as the present. Moreover, there is no detailed justification for the rate of $70 per m2 advocated by Mr Dobrow in the joint report prepared by the valuers following their conference pursuant to the Expert Witness Practice Direction. He says that the latter rate of $70 per m2 was based upon sales of rural residential land, which he has dealt with in other cases and his general experience. One previous case he makes specific reference to is Filip Yakas v Roads and Traffic Authority of New South Wales [2004] NSWLEC 525, unreported where Pain J, in the course of her judgment at [51], lists a number of sales which prima facie show a rate of about $75 per m2. However, I note that her Honour did not accept Mr Dobrow's evidence in Yakas and I have no independent testimony analysing the sales referred to that would justify adopting them in this case.
56 Using the Before and After Method for one basis of his original valuation Mr Wood calcualted a diminution in market value of $800,000. Using Mr Wood's value of $25 per m2 for the area of 34,291m2 would yield a theoretical market price of $857,275.
57 Mr Wood states that the 3.6ha originally held by the applicant would have been valued as a rural homesite at $1,100,000 before the resumption. The improved value of the residue land upon which a cottage is erected, without taking account of injurious affectation is agreed between the valuers at $500,000. The valuers have also agreed that the injurious affectation of the WSO on the residue land is $150,000. Using the Before and After method on that alternative basis demonstrates a diminution in value of $750,000.
58 I am prepared to accept that the Before and After approach taken by Mr Wood could be regarded as conservative. It is appropriate to err in favour of the dispossessed owner and accordingly doing the best that I can I determine the willing but not anxious vendor and purchaser would have reached an agreement that a reasonable price to be paid for the acquired land at the date of acquisition would have been $875,000. I therefore adopt that figure of $875,000 as the market value of the land acquired. To this must be added the sum of $150,000 as the detrimental effect of the WSO on the retained land.