HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, oOh!media Fly Pty Ltd, had a leasehold interest (the Lease) in a strip of land next to Qantas Drive, a much used road in the vicinity of Sydney Airport which had enabled it to erect 18 large billboard signs directed at motorists. The Lease was compulsorily acquired by the respondent, Transport for NSW (TfNSW) for the purpose of facilitating construction, operation and maintenance of the "Sydney Gateway" road project. The dispute here is over the compensation to which the appellant is entitled under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Act) for acquisition of the Lease. The appellant had been planning to digitise some of its signs which would have increased their value, but discontinued those plans upon learning of the potential impact on the Lease of the Sydney Gateway project.
The Valuer-General determined the compensation payable to be some $3.8 million. The appellant challenged that determination in the Land and Environment Court, seeking some $52.2 million or alternatively $32.6 million. The primary judge rejected the substance of the appellant's arguments and subsequently quantified the compensation as some $2.7 million.
On appeal the issues in dispute were whether the primary judge:
1. denied the appellant procedural fairness by rejecting a "profit rent approach" to market value compensation under s 56(1)(a) of the Act on the basis that there was no relevant market (ground 1);
2. applied the statutory disregard test in s 56(1)(a) incorrectly in rejecting the appellant's claim for compensation on the basis of notionally digitised signs (grounds 2 and 2A, and a notice of contention from TfNSW);
3. erred in not making allowance for the potentiality of the signs to be digitised when assessing the market value of the Lease (ground 3, put in the alternative to grounds 2 and 2A); and
4. failed to give adequate reasons for rejecting the appellant's claim for a "tax gross-up" as a "special value" of the land under s 57 of the Act or a "loss attributable to disturbance" under s 59(1)(f) of the Act (ground 5).
The Court (Kirk JA, Leeming and Adamson JJA agreeing) dismissed the appeal and held:
Ground 1:
- Senior counsel appearing for TfNSW below had been clear in saying in closing oral submissions that there was "certainly no evidence" of the type of market activity postulated by the appellant. The appellant is thus incorrect to say that that proposition was not put to the trial judge by either party. The appellant had every chance to respond to it in its oral reply submissions: at [23]. The primary judge did not take the submission out of context: at [24]. It is true that TfNSW's written submissions did not refer to an absence of evidence about investor market participants. Important points should be made in written submissions. Nevertheless, Australian courts continue to operate within an oral tradition. One of the responsibilities of appearing in court is having constantly to be alert to what is being said and being ready to respond: at [28].
- There was no requirement that the primary judge spell out what he understood the submission to mean. Procedural fairness does not require a court to give a running commentary upon submissions: at [29]. Given the evidence of the industry experts to which the valuation experts deferred, it was open for the primary judge to reach the conclusion that he did: at [43].
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, referred to.
Grounds 2 and 2A and the notice of contention:
- This Court's decision in Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5; (2024) 258 LGERA 197 (Drivas CA) to overturn G&J Drivas Pty Ltd v Sydney Metro [2023] NSWLEC 20 (Drivas LEC) rendered the merits of the primary judge's basis for distinguishing Drivas LEC irrelevant. Correctly declining to follow an erroneous decision would not establish material error, even if the reason given for doing so was ill-founded: at [48]. The primary judge's reasoning on point is consistent with Drivas CA and does not manifest error: at [53]-[54].
Drivas CA; Drivas LEC, referred to.
- This case is relevantly indistinguishable from Drivas. In each the claimant was asserting that the market value of its interest in land should be assessed on the basis that development which had not been undertaken as at the date of acquisition had been undertaken. The only material factual difference is that in Drivas the claimant was more advanced with its development plans. In cases such as this it is the land as it is on the date of acquisition which is valued, not the land as it would have been if development had been undertaken which was not pursued because of the proposed compulsory acquisition: at [58]-[60]. Paragraph 89 of Drivas CA should not be understood as suggesting that if the claimant establishes a certainty of development consent or rezoning by the date of acquisition but for the public purpose, then the claimant has a right to compensation for undertaking works on the land that had not been done as though they had been done: at [63]. It is clear from the evidence that the decision to put a halt to digitising the signs was in response to being informed of the projected acquisition of the signs and the Lease: at [72]. A putative increase in market value not in fact achieved because of a claimant's own choices made prior to the date of acquisition contemplating the possibility or certainty of its interest in the land being acquired is not required to be disregarded by s 56(1)(a) of the Act.
Drivas CA, applied.
Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259, referred to.
Ground 3:
- The appellant's submission mixed up the issue of the primary judge's counterfactual finding of what the appellant would have done in digitising its signs by the date of acquisition but for the Sydney Gateway project with the issue of how the market would have viewed the development potential of the site as at that date: at [84]. Assessing the development potential of the signs on the site was a complex factual issue which the appellant had not sought to address at the trial. The primary judge's conclusion, when considering what final orders to make, that addressing these matters would "necessitate a further hearing" with "the necessity for extensive further evidence" was neither surprising nor unreasonable: at [85]. There was no constructive failure by his Honour to exercise jurisdiction. In substance the appellant was applying to reopen its case. No error has been shown in his Honour's discretionary decision to decline to allow that to occur: at [87].
Coffs Harbour City Council v Noubia Pty Limited [2022] NSWCA 32; VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, referred to.
Ground 5:
- Little attempt was made by the appellant to show why the claimed absence of reasons was material. The appellant's claim raised issues of law which were not developed at any length in this Court: at [90]. In any event, ground 5 is without merit. A tax gross-up was not claimed as special value other than as part of two particular special value claims which the primary judge rejected, which rejection is not challenged: at [92]. A claim for a tax gross-up had not been sought under s 59(1)(f) of the Act: at [91]. The primary judge cannot be criticised for failing to give reasons with respect to a claim not made: at [95].