Pastrello v Roads and Traffic Authority of New South Wales

Land and Environment Court (NSW)|1998-09-04|Before: Talbot J, Mr J

For the reasons outlined above, the Court prefers the evidence of Mr Aubin and therefore determines, on the basis of that evidence, the market rental value of the service station site was not reduced as a consequence of the compulsory acquisition or the relocation of the Federal Highway.

There is considerable force in the respondent's argument that the loss of the land taken has not materially affected the commercial value of the overall site comprising the service station, hotel and caravan park. However, it must be recognised that it has been necessary to utilise, more or less, equivalent areas elsewhere on the land to allow for reinstatement of facilities. That land is no longer available to the applicants for other purposes.

Mr Aubin reached the conclusion that the service station site increased in value. No witness suggested the balance of the land suffered a loss in value. Nevertheless, it is not appropriate to offset any perceived increase in value of the service station against the market value determined by McCann and Associates in circumstances where the opinions are so widely diverse and conflicting.

The applicants have physically lost 2.67 hectares and the Court accepts that it is just they be compensated for that loss on the basis that consistent with Mr Palmer's view, the land provided utility to the owners by providing a passive buffer zone between the highway and the commercial activities on the land. It is not appropriate to attribute a commercial site value based on comparable sales as Mr Jeffress attempted to do.

The Court determines compensation for the land taken at market value in accordance with s 55(a) at $53,400. No compensation is allowed in respect of the claim made pursuant to s 55(f).

The undisputed evidence is that there were 13 lights in the existing car park, five of which were of the tall street light type. None of the tall lights are now functioning, three of them are lying on the ground. The remaining lights were smaller perimeter lights, none of which have been replaced.

The respondent seeks to take credit for new lighting installed near the caravan park reception office and along the access road. In the after situation the reception office has been relocated away from the car park area. The reception area and hotel are now serviced by different service roads. No perimeter lighting has been provided for the car park in its new location.

The applicants claim the cost of 13 car park lights to place them in the same position in the after situation as they were in the before situation. The cost of $19,780 is not in dispute. The respondent merely seeks an allowance for the equivalent of five replacement lights in the sum of $8,000.

The Court is satisfied that the applicants will incur a financial cost of $19,780 in replacing the lighting for the car park to the full extent claimed.

The respondent has already accepted responsibility for three items of reinstatement work at a total cost of $46,448. It is prepared to acknowledge a further claim by the contractor, Kenoss Contractors Pty Ltd in the sum of $48,263 for work already completed.

The applicants claim a further $101,355.50 as a financial cost that they will incur to bring the car park area up to a standard which makes it capable of being used for cars and buses. The RTA disputes the necessity for any additional work of a substantial nature.

The Court agrees that a comparison of the materials and finished surface with the existing car park before the compulsory acquisition is not the appropriate test. What is required is that the applicants can make the same use of the land for car parking at the alternative site as the use they could make of the original car park.

Whereas the resumed site was reasonably level, the alternative site by comparison has a significant drop in height from one side to the other. The new car park site demands a more stable surface with adequate drainage and retention works. The quote for these works at $101,355.50 is not challenged.

The Court will allow the amount of $101,355.50 as a disturbance cost.

The applicant alleges that there were two operational water bores which provided a source of fresh water prior to acquisition, although one was not functioning at the date of acquisition. Mr Pastrello says the latter bore was in existence and only needed to be recleaned to make it operational. It had been sunk many years ago and had been cleaned three years ago.

The respondent admits that it is liable for the replacement of the bore which was actually working at the date of resumption but says it is difficult to appreciate how the loss of an unused and unlicensed bore hole can be regarded as compensable as a direct and natural consequence of acquisition.

Mr Pastrello explained that the bore provided an alternative supply in dry times and was therefore kept in reserve. He was not able to furnish proof of its viability when asked by the RTA because by then the site had been destroyed by a bulldozer working on the road construction.

Although the bore was unlicensed, it nevertheless can be recognised as having some potential for use and added value to the site as a facility to provide water in dry times.

The Court is prepared to make the added allowance for disturbance in respect of this item in the sum of $10,000.

Summary of disturbance items allowed by the Court s 59(f)(i) Replace 13 car park lights $19,780 Balance cost to reinstate car park $101,355.50 Replace water bore $10,000 $131,135.50

Summary of disturbance items the subject of agreement after commencement s 59(a) Legal Costs $721 s 59(b) Valuation fees $4,000 Cost of car park work to date $94,711 Cost of hotel extensions $10,000 Reinstate Swagman sign $5,700 Relocate BBQ and fence $5,000 Replace water bore $10,000 $130,132

The above items do not include the value of the reinstatement work undertaken directly by the RTA being:- Construction of new office/reception area; tennis courts and screen fence; metal screen fence; aviary; counter in reception.

The Court determines the amount of compensation as follows:- Market value $53,400 Disturbance $261,267.50 Compensation payable $314,667.50

No argument has been presented on the costs issue and it will be necessary for the parties to consider their respective positions in the light of this judgment and the reasons.

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

121. Summary of disturbance items the subject of agreement after commencement

s 59(a) Legal Costs $721

s 59(b) Valuation fees $4,000

122. The above items do not include the value of the reinstatement work undertaken directly by the RTA being:-

123. The Court determines the amount of compensation as follows:-

124. No argument has been presented on the costs issue and it will be necessary for the parties to consider their respective positions in the light of this judgment and the reasons.

Acquisition (Just Terms Compensation) Act 1991

CITATION : Pastrello v Roads and Traffic Authority of New South Wales [2000] NSWLEC 164 APPLICANTS: Lorenzo Antonio Pastrello and Carla Liliana Pastrello PARTIES : RESPONDENT: The Roads and Traffic Authority of New South Wales FILE NUMBER(S) : 30005 of 1999 CORAM: Talbot J KEY ISSUES: Compensation :- potential for highway service centre - assessment of affect on service station business LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991 CASES CITED: DATES OF HEARING: 03/07/2000, 04/07/2000, 05/07/2000, 06/07/2000, 07/07/2000, 10/07/2000, 11/07/2000, 26/07/2000 written submissions DATE OF JUDGMENT: 08/03/2000

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