Plaintiff v Defendant

STATUTORY INTERPRETATION - Construction of s 41(7) of the LAC Act, 'B value' component - Market value of land at time of previous compensation triggers - Literal construction approach versus contextual approach - Whether 'actual zoning' required to have existed for the purposes of the B value - Historical context of land reservation and zoning - B value capable of being determined in all of the circumstances.

LAND VALUATION - EVIDENCE - Comparable sales - Weight to be given to retrospective versus contemporaneous valuations - 'Willing but not anxious' vendor - LAC Act, s 40, and Spencer v the Commonwealth (1907) 5 CLR 418 - Reliability of comparable sales - Contemporaneous valuations preferred - Valuations upon which previous compensation was based carry significant weight - Uncertainty or obscurity of compensation to be resolved in favour of the dispossessed landowner - Rigby v Secretary to the Department of Sustainability and Environment [2012] VSC 427 applied.

1 The plaintiff parties in these proceedings are David Ronald Kingston ('Mr Kingston') and Jomaring Pty Ltd ('Jomaring'), which is a company owned by Mr Kingston (together, 'the Claimants'). Mr Kingston is the sole director and secretary of Jomaring.

2 The Claimants seek compensation for the compulsory acquisition in 2019 of two land holdings they respectively owned, land which is the remnant of a larger title once owned by the grandfather of Mr Kingston. Large portions of both land holdings were acquired by the predecessor of the respondent ('the Authority') in order to facilitate the construction of the (now completed) Mordialloc Freeway.

3 The lands in question have a complicated history of subdivision, sale, and previous monies paid in respect of compulsorily impacted land prior to the 2019 acquisition in 1984 ('the Previous Payments'). The relevant legislation and the relevant planning scheme also have a complicated history.

4 As a result of the narrowing of issues between the parties,[1] the key matter for determination is whether s 41(5) of the Land Acquisition and Compensation Act 1986 (Vic) ('the LAC Act') is engaged. This requires determination as to whether s 41(5) applies in respect of the monies previously paid to Mr Kingston's family in 1984, including consideration of whether the Previous Payments amount to 'compensation' in the sense of the LAC regime.

5 If s 41(5) is engaged, the 'prescribed amount', which is deduced from the formula set out in s 41(7), must be determined. This will depend on the proper construction of the elements of s 41(7) of the LAC Act and the evidence of the market value of the land at the time the Previous Payments were made.

6 On 29 March 2019 ('the Acquisition Date') the Authority's predecessor, the Roads Corporation, compulsorily acquired portions of two land holdings situated at 260 Centre Dandenong Road ('the Acquired Land').

7 The state of the two relevant land holdings, the Kingston Land and the Jomaring Land, prior to the present acquisitions can be depicted as follows:

Figure 1 - Status of land holdings prior to 2019 acquisition.

(a) 3.02 ha ('the Acquired Kingston Land') out of 3.35 ha described in Certificate of Title Volume 09757 Folio 263, owned by Mr Kingston ('the Kingston Land');[2] and

(b) 5.07 ha ('the Acquired Jomaring Land') out of 6.33 ha described in Certificate of Title Volume 10199 Folio 121, owned by Jomaring ('the Jomaring Land').[3]

9 Between the two land holdings runs a sewerage pipetrack owned by Melbourne Water, shown above in purple, which has an area of 1.39 ha and is parcels 24, 28 and 30 on Roads Corporation Survey Plan SP23743 ('the Melbourne Water Land').

10 Parcels 23, 25, and 26 (as marked on Figure 1 above) were acquired, with the Acquired Land depicted in yellow in the following aerial image (Figure 2). Parcel 29, the remaining Kingston Land (0.3329 ha), is depicted in purple, and parcel 27, the remaining Jomaring Land (1.26 ha), is depicted in green.

Figure 2 - Aerial image showing acquired and remaining lands.

11 Upon these compulsory acquisitions, the Claimants were entitled to claim compensation pursuant to s 30 of the LAC Act. On 12 April 2019, the Authority made an initial offer of compensation being $610,187 for the Acquired Kingston Land and $908,432 for the Acquired Jomaring Land.

12 The parties could not agree on the appropriate compensation and on 3 December 2020 the Claimants commenced these proceedings by way of a Notice of Referral filed in relation to each of the two land holdings.

13 By their Particulars of Claim,[4] the Claimants contended that as a result of the acquisitions they were entitled to $52,782,234.23 in compensation (plus interest and further costs), comprising of:

(a) $18,251,386.26 in respect of the Acquired Kingston Land; and

(b) $34,530,847.97 in respect of the Acquired Jomaring Land.

14 By its Particulars of Offer,[5] the Authority offered a total of $1,724,922.31 in compensation (plus interest and further costs), comprising:

(a) $718,946.64 in respect of the Acquired Kingston Land; and

(b) $1,005,975.67 in respect of the Acquired Jomaring Land.

The Narrowing of Issue in Dispute - Sections 41(5) and 41(7) of the LAC Act

15 The figures contended by the parties are, clearly, drastically different. The key reason for this is that the parties take opposing views as to the applicability of s 41(5) of the LAC Act, which if engaged will operate to reduce the quantum of compensation in each of the proceedings. Following the narrowing of issues between the parties,[6] this became the primary issue at trial.

16 Section 41(5) of the LAC Act currently provides:

If compensation has previously been paid in respect of the land pursuant to Part 5 of the Planning and Environment Act 1987, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.

17 If s 41(5) applies, the prescribed amount is then determined in accordance with a mathematical formula set out at s 41(7). This provides:

In this section the prescribed amount in relation to land is the amount calculated by the following formula -

x C

where -

A = the amount of compensation previously paid in respect of the land for loss of market value due to -

(i) the reservation or proposed reservation of the land or part of the land for a public purpose in a planning instrument; or

(ii) any part of the land being required for a public purpose.

B = the market value of the land in respect of which the compensation was paid, that value to be determined on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation.

C = the compensation payable under this Part for market value and severance less the value of the land attributable to improvements of a durable nature made -

(i) with the consent of the Authority under section 12(1)(b); or

(ii) after the last date on which compensation was paid in respect of the land and before service of the most recent notice of intention to acquire an interest in the land.

18 The precise way in which s 41(7) should operate, should it be enlivened, was also in issue at trial. The key issues which the Court must determine, and the subsidiary questions raised, are set out in detail below at [165].

19 The Authority contended that s 41(5) was enlivened due to the Previous Payments received in 1984 in respect of the same land by Mr Kingston's father and aunt (Dr William Kingston and Irene Young, aka Graham, or 'the Previous Claimants'). The Previous Payments totalled $532,680 and was comprised of two payments being:

(a) $166,680 paid by the Road Construction Authority ('RCA') to the Previous Claimants on 6 September 1984 in respect of land that included the Kingston Land; and

(b) $366,000 paid by the RCA to the Previous Claimants on 17 October 1984 in respect of the Jomaring Land.

20 The relevant historical matters leading up to and following the receipt of the Previous Payments will now be outlined.

21 On 4 July 1921, Samuel Kingston acquired a large rectangular block of land at the intersection of Centre Dandenong Road and Boundary Road, Dingley ('the Parent Title').[7] It extended approximately 703 metres to the east of the intersection and 772 metres to the south, and comprised some 54.4 ha. The approximate location of the Parent Title is marked in red on Figure 3 below.

22 South of the Parent Title were two other large blocks, as depicted below. The block immediately to the south came to be owned (largely)[8] by the Coram family ('the Coram Land'). Further to the south was a block owned by the Follett family, which was later purchased largely by the company AMP and developed for industrial purposes.

Figure 3 - Parent Title, Coram Land, and Follett/AMP Land.

23 In 1943, after Samuel Kingston's death, his wife Mabel Kingston became the registered proprietor of the Parent Title. Then on 1 September 1970, following her death, the Previous Claimants became the joint registered proprietors of the Parent Title.[9]

1971 to 1978: Early Subdivision and Transfers of the Land

24 Throughout the 1970s, the following sections of the Parent Title were transferred by the Previous Claimants:[10]

(a) a small section (approx. 0.25 acres) in the north‑east corner of the Parent Title was transferred to the Country Roads Board on 5 May 1971 and was recorded in Dealing E32968 on the Parent Title;

(b) the diagonal area of land which became the Melbourne Water pipetrack was transferred to the Melbourne and Metropolitan Board of Works ('MMBW') on 23 February 1972 and was recorded in Dealing E312444 on the Parent Title; and

(c) an additional segment beside the Melbourne Water pumping station, just to the south of Centre Dandenong Road, was transferred to the MMBW on 5 September 1978 and was recorded in Dealing H223054 on the Parent Title.

25 These transferred sections are depicted in the annexures to the (now cancelled) Certificate of Title for the Parent Title on the following drawn map[11] (marked for clarity according to the lettered paragraphs above):

Figure 4 - Parent Title as depicted on original Certificate of Title.

26 On 23 August 1978, the area bought by AMP from Mr Follett was rezoned to Reserved Light Industrial, by way of Amendment No. 21 Part 8A to the Melbourne Metropolitan Planning Scheme ('MMPS').[12] This area was subsequently developed into an industrial estate, the 'Redwood Estate', development of which was completed by 1982.

27 The growth in the area, and the suburbs beyond, necessitated the eventual creation of a freeway (ultimately, the Mordialloc Freeway). Further rezoning occurred as well as the reservation of particular land for future road purposes.

28 On 26 April 1979, Amendment No. 21 Part 8B resulted in the following rezoning:[13]

(a) the land owned by the Kingstons and Coram family to the east of the proposed freeway reservation was rezoned to 'Reserved Living'; and

(b) the land owned by the Kingstons and Coram family to the west of the proposed freeway reservation was rezoned to 'Garden Industrial'.[14]

29 The rezoning was depicted as follows in Amendment No. 21 Part 8B:[15]

Figure 5 - Segment of Map 70, Amendment No. 21 Part 8B.

30 This amendment did not alter the zoning of the Jomaring Land and the Kingston Land in issue in the present dispute, and this land remained zoned rural. The reservation of the affected Kingston and Jomaring Lands for a proposed main road occurred on the gazettal of Amendment No. 60 Part 1 on 12 December 1979.[16]

31 These reservations included the following, as relevant to the Acquired Land:

(a) a reservation reserving land for a proposed main road, which is now the Mordialloc Freeway ('the Main Road Reservation'); and

(b) a road widening reservation, concerning the future widening of Boundary Road and Centre Dandenong Road ('the Road Widening Reservation'),

32 These reservations are depicted in Amendment No. 60 Part 1 as follows:[17]

Figure 6 - Segment of Map 70, Amendment No. 60 Part 1.

33 The following depiction (Figure 7) demonstrates how these reservations impacted the land in question, showing the Acquired Land and the remaining Kingston and Jomaring Lands, as well as the original Parent Title boundary (approximate) for reference:

Figure 7 - Overlay of maps demonstrating the alignment of the reservations with the acquired land.

34 It can be seen that the Authority did not ultimately acquire the totality of the Main Road Reservation, but did acquire the majority of that land.

1981 to 1987: Sales of the Eastern Residential Land to the Bardoel Family

35 Between 1981 and 1987, the lands once owned by Samuel Kingston were further divided and several sales of sections of the land occurred. These sales all pertained to the eastern section and were all to the Bardoel family or entities owned by that family. Whilst this area of the land did not form a part of the ultimately Acquired Land, the history of the immediate vicinity provides some context to the valuation exercise. This land was developed over time for residential purposes.

36 The subdivisions and sales, depicted below at Figure 8, were as follows:

(a) On 9 January 1981, Plan of Subdivision LP136103 created Lot 1 (19.37 ha) to the east and Lot 2 (33.43 ha) to the west, with Lot 2 connected either side of the pipetrack by a vinculum, as well as a road (R1) at the northern edge of Lot 1.[18]

(b) On 16 March 1981, Plan of Subdivision LP136636 divided the eastern lot into two smaller lots, Lot 1 (6.716 ha) and Lot 2 (12.65 ha).[19] The northern lot (Lot 1, depicted below in purple) was sold for $150,000 with transfer effected on 8 April 1981.[20]

(c) On 21 August 1986, the southern lot was divided further by Plan of Subdivision LP202476N, which created Lot 1 (1.634 ha) and Lot 2 (11.02 ha).[21] Lot 1 (depicted below in red) was sold for $66,000 with transfer effected on 1 October 1986.[22]

(d) On 10 December 1986, two sequential subdivisions occurred, being LP204599K[23] and LP205216A.[24] This effectively created three lots (1.461 ha, 1.484 ha, and 7.903 ha respectively) which were sold for $74,000, $75,000 and $295,000 respectively, with transfer effected on 12 February 1987.[25]

37 The total benefit for the Previous Claimants from these sales was $660,000. This equates to an average price per acre of approximately $13,800 (or $34,000 per ha).

Figure 8 - Series of subdivisions to the Eastern part of the lands, 1981-1987.

1983 to 1987: Creation of the Permanent Trustee Land, Kingston Land and Jomaring Land

38 Throughout a similar time period, transfers occurred pertaining to the western side of the Parent Title (i.e. Lot 2 depicted at (a) on the previous graphic). This area of land contained the land that has become the Acquired Land and the land subject of the Previous Payments.

39 By Transfer K366646[26] lodged for registration on 11 May 1983 (in respect of which the Plan for Transfer Purposes was lodged prior to registration), the Parent Title was subdivided to create Lot A (27.10 ha) and Lot B (6.332 ha).[27] Transfer K366646 effected the sale of Lot A (below, Figures 9 and 10, white) ('the Permanent Trustee Land')[28] to Permanent Trustee Nominees (Canberra) Ltd ('PT Nominees') on 22 April 2023. Lot B (below, Figures 9 and 10, green) is the Jomaring Land, being part of the remaining land untransferred in the Parent Title at all times up until the cancellation of that title on 9 June 1994.

40 On 8 July 1987, Plan of Subdivision LP204907B[29] further divided the Permanent Trustee Land and resulted in the creation of a parcel of land shown as Lot A (3.35 ha) on that plan, which is the Kingston Land (below, Figure 10, red).[30]

Figure 10 - Plan for Acquisition Purposes, Transfer K366646 (left) and Plan of Subdivision LP204907B (right).

41 Through this period of time the Permanent Trustee Land was subject to the aforementioned reservations under the MMPS as depicted below:

(a) part of the Road Widening Reservation affecting 1.426 ha situated along the northern and western boundaries of the Permanent Trustee Land; and

(b) part of the Main Road Reservation affecting 3.353 ha situated on the eastern portion of the Permanent Trustee Land (ultimately the Kingston Land).[31]

42 The Jomaring Land remained wholly subject to the Main Road Reservation.

1982 to 1983: Sale of the Permanent Trustee Land to AFT/PT Nominees

43 It is important to set out some further detail regarding the sale of the Permanent Trustee Land, being the Garden Industrial zoned land, as at 22 April 1983.

44 In 1982, the Previous Claimants began considering selling the land west of the pipetrack (i.e. ultimately the land which is known as the Permanent Trustee Land), after they were approached by the Australian Fixed Trusts Group ('AFT') through John Lawson of Hamilton Lawson Pty Ltd. Mr Lawson was conducting business as a real estate broker and a land valuer. AFT (the parent company of PT Nominees) intended to develop the land for industrial purposes, and was simultaneously negotiating the purchase of the nearby Coram Land. Mr Lawson also represented the Corams in that sale.[32]

45 AFT's attraction to the Permanent Trustee Land in order to create an industrial park known as 'Redwood Gardens' was explained by Thomas Scott Keck in a valuation report in 1984 (the report itself being discussed in context below at [80]):

Further to the south [of the land], at the intersection of Boundary Road with Lower Dandenong Road, an Industrial Estate developed by the AMP Society about Redwood Drive had been established for a couple of years, and contained quite good quality factory premises but was well removed from the subject property.

The significance of the location is that subsequent to the development of the Industrial Estate by AMP in 1978, and which was fully developed and sold out by mid‑1982, the land adjoining to the north, previously owned by "Coram" and in turn abutting immediately to the south of the subject property, was presented to AFT as a suitable site for a new concept Industrial Park. This site of 12.38 hectares was a little less than half the size of the subject property, but was thought sufficient for the proposed use. In short, AFT purchased the site on the 21st February 1983 and immediately proceeded with its planning. Known as "Redwood Gardens", the first stage of the development is now complete, and comprises very contemporary good quality warehouse/office facilities designed to have particular appeal to high technology growth industries.

The Estate is to include a commercial centre with Banks, Restaurants, Medical Suites, professional suites for Accountants, Solicitors, and associated business support professions, and will also have relaxation and recreation facilities including an ornamental lake, picnic areas and barbecues, a jogging track, volleyball and basketball courts, and cricket and soccer fields etc.

As early as its initial purchase of the land adjoining immediately to the south of the subject property, AFT was convinced of the suitability of this area for its proposed development, and recognised its need for additional land for further stages of the Estate. The subject property was the only possible land suitable for that purpose, being adjoining and of a complimentary zoning, and as you would be aware, it was in fact purchased by AFT on the 22nd April 1983.

In summary, I understand AFT is now committed to a total industrial development of the subject and adjoining lands of approximately $45,000,000 over the next five years, the result being, I believe, to firmly establish this immediate location over that time as probably the major south‑eastern suburban industrial sector to the metropolitan area.[33]

46 In mid‑1982, the Previous Claimants arranged an independent valuation of the Permanent Trustee Land through Mr Graham Burns of Colliers International Property Consultants Pty Ltd ('Colliers'). By way of letter dated 27 October 1982, Mr Burns estimated the market value of the land as between $5,000 and $10,000 per acre, noting the detrimental impacts of the reservations and of the Garden Industrial zoning ('the Colliers Letter').[34]

47 Whilst the Colliers Letter was in response to a request pertaining to the Permanent Trustee Land, it should be noted that the letter referred to 33.5 ha of land which is the total sum of the Permanent Trustee Land and the Jomaring Land (noting this was prior to the subdivision which created those lots).

48 Discussions occurred in late 1982 between the Previous Claimants and AFT regarding sale of the land at a price of $14,800 per acre.[35] There was an initial Sale Note[36] signed by the Previous Claimants citing a total price $841,155.00 (with a price adjustment if the land was greater or less than 22.768 hectares). This Sale Note, however, expired due to AFT not confirming Board approval for the purchase in time, in accordance with condition 6.[37]

49 The Previous Claimants subsequently became aware of certain proposed amendments to the MMPS which would make the Garden Industrial Zone less restrictive (discussed further below at [72]-[73]). On that basis, on 28 February 1983 the Previous Claimants wrote to the solicitors for AFT withdrawing the sale at $14,800 per acre and offering a price of $20,500 per acre.[38]

50 A draft contract based on the Previous Claimants new price calculation was prepared by their solicitors on 7 March 1983, and conveyed to the purchaser on that date.[39]

51 By way of response dated 25 March 1983, AFT made a counter‑offer which included the following proposals:[40]

(a) The price would be $14,800 per acre for 22.31 ha (i.e. 55.129 acres), being the area of the Permanent Trustee Land after subtracting the areas affected by the Road Widening Reservation and the Main Road Reservations.

(b) However, despite no price being allocated to the areas affected by the Reservations, those areas would be included as part of the land sold. In particular, the Road Widening land would be included on the basis that the vendors (the Previous Claimants) would be entitled to all compensation up to an area of 1.43 ha; but if the acquired area was greater the compensation for the additional area would be for the purchaser (i.e. AFT), and if less the purchaser would pay the vendor for the remaining area at the contracted rate per acre.

(c) The contract would contain a conditional clause whereby, should the proposed amendments to the Garden Industrial Zone actually take place, an additional sum would be payable equivalent to the increase in price had the land been valued at $20,500 per acre.

(d) There would be a 99 year lease (as originally proposed in the 7 March draft contract)[41] by AFT back to the Kingston family in relation to the land affected by the Main Road Reservation (i.e. the Kingston Land) at a nominal rent.

52 The letter stated that AFT wanted the negotiations finalised quickly, as by 29 March 1983 the Coram Land would be settled and AFT had to make "immediate decisions on whether [their] development was for all or part of the land".[42]

53 On 26 March 1983, the Mr David Kingston met with the AFT Manager (Mr Athorn) and Mr Lawson and negotiated a final agreement. At the time Mr Kingston was a solicitor and was assisting his father and aunt, the Previous Claimants, in the absence that day of their paid solicitor Mr Thomas Callander. Mr Kingston and Mr Athorn settled the negotiations at $14,800 per acre, with the following additional terms:

1. Contract provides that increased price per acre of $5,700.00 to be paid upon Contingent Event [i.e. the MMPS amendment] within nine years.
2. Escalation or interest on $5,700.00 after year 1 (at bank overdraft rate in excess of $100,000.00).
3. AFT covenants to use best endeavours to effect amendment to MMBW P/S within two years.
4. At expiration of two years AFT has option to terminate "bonus provisions" upon covenanting that it shall not develop in excess of 20% [of the land] ...[43]

54 On 22 April 1983, the contract was executed for the sale of the Permanent Trustee Land (27.10 ha) for a total sum of $832,891.[44] Whilst the entire lot was sold, the price was calculated to the exclusion of the lands affected by the Road Widening Reservation and the Main Road Reservation - i.e. on the basis of 22.31 ha of viable land. When $832,891 is divided by 22.31 ha, that provides a price equivalent of $37,318 per ha or $15,110 per acre. That is slightly more than the negotiated price of $14,800 per acre. That is due to the commission of $16,980 paid to the estate agent (Mr Lawson).[45]

55 A lease (i.e. 'the 99 year lease')[46] and an option to purchase[47] in the name of the claimant Mr David Kingston were also executed on that day. These pertained to the Kingston Land (3.35 ha) which was subject to the Main Road Reservation and was nominally valued at $10.[48] The 99 year lease was for rent of $1 per annum[49] and the option to purchase was exercisable on a nominal sum of $1, providing Mr Kingston with an eventual fee simple interest in the land. However the option could only be exercised once that land became a separate allotment[50] (which, as discussed above at [40], did not occur until 8 July 1987).

56 The contract also enabled the sale to trigger the eventual 'compensation' claim (discussed below at [76]-[85]). By condition 8(a) of the contract, the Previous Claimants remained entitled to all compensation that was payable associated with the future acquisition of the Kingston Land.[51] The parties executed a further written document,[52] also dated 22 April 1983, outlining the precise terms of the agreement as to future compensation (in line with AFT's counter‑offer summarised at [51(b)] above).

57 As note above (at [39]), the transfer of the Permanent Trustee Land was effected on 11 May 1983 by Instrument K366646, which also divided that title so that the Kingston Land became a separate lot.

58 As aforementioned, in 1982 and 1983 AFT were also negotiating the purchase of a large part (12.405 ha) of the Coram Land which abutted the Permanent Trustee Land immediately to the south, with the intention of combining these lands (other than the reservation‑affected land including the Kingston Land) to form the Redwood Gardens Industrial Estate. The sale also concluded around the same time, in April 1983.

59 In order to effect the sale, on 1 April 1983, the lands once held by the Coram family (depicted in yellow on Figure 3 above at [22]) were subdivided by Plan of Subdivision LP141797. The Corams also held a small parcel of land on a separate title which sat along the western boundary of their main holdings, about midway down the frontage to Boundary Road.[53] The land ultimately sold (12.405 ha) was comprised of the small parcel holding and Lot 1 of the subdivision. Lot 1 and the small parcel are depicted on LP141797 as follows:

60 It can be seen that this subdivision aligns with the subdivision of the Permanent Trustee Land depicted above (at [40], Figure 10), in terms of the diagonal lines which carve off the reserved land in both instances.

61 Negotiations between AFT and the Corams commenced in early‑mid 1982 and were ongoing when the negotiations with the Kingstons regarding the Permanent Trustee Land were intensifying in late 1982. The connection between the two purchases, and whether the purchase of the Permanent Trustee Land was conditional on the successful purchase of the Coram Land, is of some contention in these proceedings.

62 By letter dated 21 December 1982, Mr Athorn on behalf of AFT advised Mr Lawson as follows:

Re: Purchase of Land from Estate of Kingston and Coram

This will confirm that our Board has formally approved the purchase of the above parcels of land ...

We wish to reiterate at this point that the Board approval is on the basis of both parcels of land being purchased, the purchase of each being interdependent on the purchase of the other.[54]

63 However, in a further letter to Mr Lawson three months later, dated 25 March 1983, Mr Athorn stated as follows:

Finalization must be reached quickly as by the 29th March the Coram land will be settled and we must make immediate discissions [sic] on whether our development is for all or part of the land.[55]

64 The sale of the Coram Land settled on 21 February 1983 and was ultimately effected by Transfer K338294 on 15 April 1983,[56] one week prior to the settlement of the Permanent Trustee Land. The Coram Land sold for $672,535, which for an area of 12.40 ha equates to approximately $21,900 per acre or $54,200 per ha.[57]

Difference between the Coram Sale Price and the Kingston Sale Price

65 As discussed, the Permanent Trustee Land purchased from the Kingstons sold for $14,800 per acre or $36,570 per ha. That is approximately 30% less per acre than the Coram Land.

66 In the 25 March 1983 letter, Mr Athorn explained the difference between the price per acre for the Coram Land and the price per acre for the Permanent Trustee Land:

The price paid to Coram was higher, due to the closer proximity of sewer, water, drainage, electricity and the gas service to the Coram land, and the requirement for less service road on the Boundary Road frontage.[58]

67 However it can be noted that Mr Keck in his 1984 valuation report, after citing this explanation by AFT, remarked as follows:

Furthermore, I imagine AFT considered itself the only purchaser, apart from which the subject land represented a vehicle for future planning stages for some years ahead, involving considerable holding costs. Accordingly, AFT remained firm at an offer considerably lower than the asking price.[59]

68 What conclusions can be drawn from this price difference will be discussed in the analysis to follow.

1983 to 1985: Relevant Status and Amendment of the Garden Industrial Zone

69 At the time of the sale on 22 April 1983, the Garden Industrial Zone ('GIZ') (and thus both the Permanent Trustee Land and the Coram Land) was restricted by Clause 7 of the MMPS, the Table to which provided (at Section 17B, Column 3) with respect to any 'Light Industry' development on such land that:

(a) the site shall not be less in area than 2 hectares;

(b) the total floor area shall not exceed 20 per centum of the area of the site;

(c) no building shall exceed 2 storeys in height;

(d) no building or works (other than for the provision of means of access or for lawns, gardens and improvements ancillary thereto and other than a fence, an advertisement if permitted by or pursuant to this Ordinance, and sewerage, drainage, water and gas mains, or pipelines, electricity transmission lines operating at a voltage of less than 220,000 volts and telephone lines) shall be constructed closer than -

(i) 20 metres from the site frontage;

(ii) 10 metres from any other boundary; and

(e) All storage of machinery, equipment, materials or goods takes place within a building.[60]

Any purpose specified in Column 3 of this Section of this Table if the conditions set forth opposite such purpose are not complied with.

71 The effect of this was that, where the Column 3 conditions were not met, the use of the land for 'Light Industry' was prohibited.

72 At a similar time, the Springvale Council was considering requesting that the planning authority, the MMBW,[61] consider an amendment to the MMPS which would allow a higher site coverage for land subject to the GIZ. This was discussed at a meeting on 6 December 1982 ('Springvale Council meeting'), at which the Council determined to recommend to the MMBW an amendment to the following effect (among other things):

The total site coverage for the estate, exclusive of public roads, shall not exceed 45%, including outside storage areas, providing that the responsible authority may grant bonuses of up to 2% for each of the following: fully co‑ordinated architectural and landscape treatments, an ornamental lake of at least 1000m2, recreation facilities, a café‑restaurant‑club, or other features considered by the responsible authority to be worthy of such encouragement ...[62]

73 However, these amendments were not effected at the time of the sale of the Permanent Trustee Land, and the MMBW ultimately did not accept all of the recommendations of the Council including the 45% coverage recommendation.

74 It was not until 19 June 1985 that the amendment, being Amendment No. 233 Part 4 to the MMPS, was gazetted.[63] Among other matters, with respect to the GIZ, this amendment:

(a) reduced the minimum lot size from 2 ha to an average of 0.6 ha (with no lot to be less than 0.25 ha in area);

(b) increased the site coverage limit from 20% to 35%; and

(c) removed the 2 storey height limit.[64]

75 As noted above, the 'Previous Payments' comprised two separate payments of monies:

(a) $166,680 paid by the RCA to the Previous Claimants on 6 September 1984 in respect of the Permanent Trustee Land which included what became the Kingston Land ('the Kingston TCP Payment'); and

(b) $366,000 paid by the RCA to the Previous Claimants on 17 October 1984 in respect of the Jomaring Land ('the Jomaring TCP Payment').

76 On 27 January 1984, the Previous Claimants lodged with the RCA a claim under s 41 of the Town and Country Planning Act 1961 (Vic) ('the TCP Act') for loss or damage arising out of the 1983 sale of the Permanent Trustee Land[65] ('the Loss on Sale Claim'). The claim sought payment in the amount of $120,000, based on the valuation of Mr Lawson as set out in his report for the Previous Claimants dated 1 June 1983.[66]

77 However, Mr Lawson's valuation related only to the 3.353 ha affected by the Main Road Reservation (i.e. the Kingston Land) and did not account for the 1.426 ha affected by the Road Widening Reservation.[67] Therefore, on 27 March 1984, the Previous Claimants lodged an amended claim under s 41 of the TCP Act ('the Amended Claim').[68] The Amended Claim sought the sum of $172,386.10, which comprised:

(a) $120,000 for loss on sale allegedly occasioned by the Main Road Reservation (i.e. as impacting the Kingston Land); and

(b) $52,386.13 for loss on sale allegedly occasioned by the Road Widening Reservation (i.e. as impacting the northern and western boundaries of the Permanent Trustee Land).[69]

78 On 13 June 1984, the Previous Claimants referred the matters in dispute arising from the Amended Claim to the Land Valuation Board of Review ('the Board').[70]

79 The RCA obtained two valuations as to the appropriate monetary payment. The RCA instructed the valuers to make a valuation as at 22 April 1983 in respect of the loss on sale with reference to two aspects of the Permanent Trustee Land:

(a) the 3.353 ha subject to the Main Road Reservation (i.e. the Kingston Land), which was marked in the instruction as Area A; and

(b) the 1.426 ha subject to the Road Widening Reservation, which was marked as Areas C and D.[71]

80 On 13 July 1984, Mr Keck furnished an independent report for the RCA providing an assessment as to loss on sale as follows ('Mr Keck's 1984 Kingston Report'):[72]

(a) a primary valuation of $170,998 comprised of:

(i) $117,783 for Area A; and

(ii) $53,215 for Areas C and D; and

(b) a residual value of $7,345 pertaining to Area A only.

81 On 18 July 1984, Anthony Colson, on behalf of the Valuer‑General Victoria ('the VGV'), furnished a report for the RCA providing an assessment as to loss on sale as follows ('Mr Colson's 1984 Kingston Report'):

(a) a primary valuation of $164,180; and

(b) a residual value of $7,500 comprised of:

(i) $7,400 for Area A; and

(ii) $100 for Areas C and D.[73]

82 The same day, the Department of Property and Services ('the Department') gave approval to the RCA to make an offer of settlement based on the assessment prepared by Mr Colson.[74] This offer totalled $166,680 and was comprised of:

(a) $164,180, being the primary valuation provided by Mr Colson; and

(b) $2,000, being valuation fees; and

(c) $500, being legal fees.[75]

83 A Notice of Offer on these terms was provided to the Previous Claimants the following day, 19 July 1984.[76] Then on 1 August 1984 a conference was held between the parties and their solicitors, at which the Previous Claimants agreed to accept the offer.[77] The valuers, Mr Lawson and Mr Colson and the current claimant Mr Kingston were also present at that conference.[78]

84 By a Deed of Release dated 6 September 1984,[79] the sum of $166,680 was paid to the Previous Claimants in full and final settlement of the claims and entitlements for the financial loss incurred on the sale of the Permanent Trustee Land by reason of the relevant reservations. The Deed of Release specifically provided that in consideration of the payment of $166,680:

1. The Claimants HEREBY RELEASE AND FOREVER DISCHARGE RCA from any action of any description whatsoever or any entitlement in respect of any claim for compensation which the Claimants may have in respect of any claim for loss or damage arising out of the sale of the land.

2. THE CLAIMANTS HEREBY INDEMNIFY RCA in respect of any action of any description whatsoever which may be made by any other person or corporation at any time in respect of a loss or damage claim arising out of the sale of the land to the intent that if RCA is required to pay compensation in relation thereto to any such person or corporation the Claimants will re‑imburse RCA fully in respect thereof.[80]

85 On 1 November 1984, a statement prepared under s 41(3) of the TCP Act was lodged with the Registrar of Titles in respect of the Kingston TCP Payment paid on 6 September 1984.[81]

86 On or about 18 October 1983, a planning permit application (no. TP1072, 'the Permit Application')[82] was made on behalf of the Previous Claimants to the MMBW to use and develop the Jomaring Land. The intention was to develop the land for the purposes of "light industry" in accordance with the conditions contained within Column 3 of Section 17B (GIZ) of the Table to clause 7 of the MMPS.[83] At the time, the Main Road Reservation applied to the whole of that land.

87 On 27 January 1984, the MMBW refused the Permit Application on the ground that part of the land was required for a public purpose being the Proposed Main Road ('the Permit Refusal').[84]

88 On 28 March 1984, the Previous Claimants lodged a claim under s 41 of the TCP Act with the RCA for loss or damage arising out of the Permit Refusal in the sum of $485,037, based on a valuation conducted by Mr Lawson [85] ('the Permit Refusal Claim').

89 On 13 June 1984, the Previous Claimants referred the dispute to the Board[86] (as discussed above, the claim for the Kingston TCP Payment was also referred to the Board on that date). The RCA subsequently requested valuations as to the financial loss incurred as a result of the Permit Refusal.

90 On 13 July 1984, Mr Keck furnished an independent report for the RCA providing an assessment as to loss as follows ('Mr Keck's 1984 Jomaring Report'):[87]

(a) a primary valuation of $300,000; and

(b) a residual value of $13,000.

91 Mr Colson, on behalf of the VGV, provided the following assessment as to loss:

(a) a primary valuation of $318,950; and

(b) a residual value of $16,000.[88]

92 The Jomaring Land was also discussed at the 1 August 1984 conference, however no settlement was reached as to an appropriate figure at that time, and the valuers Mr Colson and Mr Lawson were asked to reconsider their positions as to valuation methodology.[89]

93 The VGV's valuer did reassess his valuation, and on 20 August 1984 furnished a report providing as follows ('Mr Colson's 1984 Jomaring Report'):

(a) a primary valuation of $362,373; and

(b) a residual value of $16,700.[90]

94 On 25 September 1984, the Department gave the RCA approval to make an offer of settlement based on the reconsidered valuation prepared by Mr Colson.[91] The offer was in the sum of $366,000 which comprised:

(a) $362,373, being the primary valuation provided on Mr Colson's reassessment; and

(b) $1,300, being valuation fees; and

(c) $2,000 being legal fees;

with the total rounded to the nearest thousand.[92]

95 By a deed of release dated 17 October 1984, the Previous Claimants agreed to accept the sum of $362,373 in full and final settlement of their claims and entitlements in respect of the loss or damage compensation arising from the Permit Application refusal.[93] The RCA paid that sum to the Previous Claimants on that date. The Deed of Release provided that:

The Claimants accept the aforementioned sum in full and final settlement of all their claims and entitlements and costs of or incidental thereto pursuant to the Claimants' claim for compensation mentioned above and pursuant to the provisions of the Town and Country Planning Act 1961, the Valuation of Land Act 1960, the Lands Compensation Act 1958, the Transport Act 1983 and all other Acts and Regulations AND HEREBY ABSOLUTELY RELEASES RCA from any action of any description whatsoever or any entitlement in respect of the abovenamed refusal to grant the application to develop or the Claimants' claim for compensation herein mentioned.[94]

96 On or about 1 November 1984 a statement prepared under s 41(3) of the TCP Act was lodged with the Registrar of Titles in respect of the monies paid to the Previous Claimants on 17 October 1984.[95]

1991 to 1994: Transition to Proprietorship by the Present Claimants

97 On 25 February 1991, William Ronald Kingston became the sole proprietor of the balance of the Parent Title including the Jomaring Land.[96]

98 On 8 October 1993, William Ronald Kingston and Jomaring Pty Ltd executed a Transfer of Land Form, the effect of which was to transfer the Parent Title (including the Jomaring Land) to Jomaring Pty Ltd (of which he was the director at the time). The transfer was recorded in Instrument T136333T dated 8 October 1993 registered on 9 June 1994.[97]

99 By Instrument S762399J dated 26 October 1993, Permanent Trustee Australia Limited (formerly PT Nominees) transferred the Kingston Land to the claimant Mr Kingston. He formally became the registered proprietor of the Kingston Land upon registration of Instrument S762399J on 28 October 1993,[98] after exercising the option to purchase contracted for in April 1983 (discussed above at [55]).

100 On 9 June 1994, upon registration of Instrument T13633T, the Parent Title was cancelled and Certificate of Title Volume 10199 Folio 125 was issued in respect of the Jomaring Land.[99] The claimant Jomaring became the registered proprietor of the Jomaring Land, described in Certificate of Title Volume 10199 Folio 125 as Lot 1 on Title Plan 095013T (formerly known as part of Lot 2 on Plan of Subdivision LP136103).[100]

101 In 2004, following the death of Mr William Kingston, the claimant Mr David Kingston became the sole director of Jomaring,[101] and thus from that point effectively had proprietorship over both the Jomaring Land and the Kingston Land.

1999: Introduction of the New Format Planning Scheme

102 On 22 December 1999, the Kingston Planning Scheme was gazetted as part of the New Format Planning Scheme system.[102] It was at this point that the distinction between land being designated as within a 'zone' as distinct from a 'reservation' ceased to exist. The New Format Planning Scheme system instead designated all land to be within a 'zone' of a particular kind, and then subject to varying 'overlays'.

103 The Kingston New Format Planning Scheme applied an 'Industrial 1 Zone' to the Kingston Land and a 'Residential 1 Zone' to the Jomaring Land, and a 'Public Acquisition Overlay 1 (with Purpose of Acquisition - Roads)' over all of the Kingston Land and Jomaring Land.[103] This is depicted as follows:

Figure 13 - Zones and Overlays under the Kingston (New Format) Planning Scheme.

Status of the Land at 29 March 2019 - the Acquisition Date

104 Accounting for the amendments discussed, as at the Acquisition Date:[104]

(a) the Kingston Land was subject to the following controls under the Kingston Planning Scheme ('KPS'):

(i) the Industrial Zone, Schedule 1 (entirely);

(ii) the Public Acquisition Overlay, Schedule 1 (entirely); and

(iii) the Special Building Overlay (partially);

(i) had direct access to Centre Dandenong Road; and

(ii) was subject to the following controls under the KPS:

(1) the General Residential Zone, Schedule 3 (entirely);

(2) the Public Acquisition Overlay, Schedule 1 (entirely); and

(3) the Special Building Overlay (partially);

(i) contained the main outfall sewer known as the South Eastern Trunk Sewer; and

(ii) was subject to the following controls under the KPS:

(1) the Road Zone, Category 1 (entirely);

(2) the Public Acquisition Overlay (partially); and

(3) the Special Building Overlay (partially); and

(d) an open drain, depicted as dashed lines on LP136103 (shown above at [36(a)]), affected part of the Kingston Land, the Jomaring Land, and the Melbourne Water Land.

105 These zones and overlays, as applicable to the Kingston Land and Jomaring Land, are depicted below.

Figure 14 - Zones and Overlays as at Acquisition Date.

The Road Construction Authority, Roads Corporation and the Authority

106 On 1 July 1989, the former statutory functions of the RCA vested in Roads Corporation ('VicRoads') pursuant to the Transport (Amendment) Act 1989 (Vic).[105]

107 On 1 January 2020, the former statutory functions of VicRoads vested in the Authority by Order in Council dated 23 December 2019 published in the Victoria Government Gazette on 27 December 2019 pursuant to the Transport Integration Act 2010 (Vic).[106]

108 The history of legislative enactments and amendments regarding compensation for land acquisition in Victoria is pertinent to the central issues in dispute in these proceedings.

109 The Town and Country Planning Act 1944 (Vic) ('TCP Act 1944') was the first comprehensive planning enactment in Victoria. The TCP Act 1944 established the first system of planning schemes, empowering planning authorities to prepare and manage planning schemes[107] and to prohibit the development of land pending approval of the relevant scheme.[108]

110 This new regime required a system of compensation for planning blight. Any person interested in lands "injured or prejudicially affected" by an interim development order or planning scheme could obtain compensation from the responsible authority (subject to the provisions of the Act).[109] Compensation was to be assessed under the Local Government Act 1928 (Vic), which (in s 801) provided "principles" for determining compensation, a key principle being that the measure of damages was the "direct pecuniary injury to the claimant".

111 Responsible authorities were separately empowered to "compulsorily purchase" land,[110] with compensation for acquisition to be assessed under the Lands Compensation Act 1928 (Vic). In assessing compensation, s 35 of that Act directed that "regard" be had to several factors, including the value of the land. There was no reference at this time to a deduction for compensation previously paid.

112 The concept of compensation for compulsory acquisitions by authorities other than responsible planning authorities was introduced in 1958. The Lands Compensation Act 1958 ('LC Act') required "compensation" to be paid for such an acquisition. Section 11B set out four "principles" for how compensation was to be assessed (including market value), but again there was no requirement to reduce the payment due to previous compensation paid.

1961 to 1965: Recognition of Previous Compensation in Acquisition Law

113 The Town and Country Planning Act 1961 (Vic) ('TCP Act') came into effect on 19 December 1961.

114 Under the TCP Act, as first enacted, it remained the case that planning authorities could prepare planning schemes and make interim development orders,[111] with planning blight compensation available[112] (subject to limitations)[113] and with such compensation to be assessed under the Local Government Act 1958 (Vic). Planning authorities could also "compulsorily take" land[114] and in that regard had to pay compensation, to be assessed under the LC Act which remained in force.

115 What was new in the TCP Act was that, pursuant to s 42(4), when a responsible authority was required to pay compensation under ss 40 or 41, "regard" had to be had to any amounts of compensation already paid or payable under the TCP Act "or any corresponding previous enactment".

116 However, no formula or other stipulation as to the mode of assessing the relevance of previous compensation was provided. Therefore, there was no consistent approach across the valuation industry, with both arithmetic and proportional approaches being common and established practice.

117 In 1965, s 41(2) of the TCP Act was amended to provide for the assessment of compensation for planning blight to be done under Part III of the Valuation of Land Act 1960 (Vic) ('VLA') with "such adaptations as are necessary" (required because Part III dealt with compensation for acquisitions only). However, the VLA continued the requirement that assessment of compensation be determined in accordance with s 11B of the LC Act (discussed at [112] above).

118 On 8 May 1986, the Land Acquisition and Compensation Bill 1986 ('the LAC Bill') was introduced into Parliament. This followed a report which Stuart Morris, barrister, had provided to the relevant Minister in 1983 on the operation of the compulsory acquisition legislation ('the Morris Report').[115] The Minister then established the Land Acquisition Task Group to work on the reforms and that Task Group prepared a subsequent report.

119 The Second Reading Speech for the LAC Bill explained that the "[t]he Morris Report as modified by the task group report formed the basis of the Bill"[116] and set out the following major objects of the Bill:

1. to establish uniform practices to be adopted by acquiring authorities in the course of compulsory or negotiated acquisition of land;
2. to reform, consolidate and codify the law relating to compensation for interests in land;
3. to establish a system of land acquisition which is equitable to all landowners and which does not impose such burdens on Government so as to prevent proper planning and public sector activity;
4. to ensure certainty in the practices of land acquisition;
5. to encourage a cooperative rather than a confrontationalist relationship between Government and landowner; and
6. to establish a speedy system of resolution of disputed claims concerning acquisition of interests in land.[117]

120 The LAC Act was assented to on 23 December 1986 and came into operation on 29 November 1987. The LAC Act continued the scheme for the recognition of previous compensation in assessments for compensation, by the combined operation of ss 41(5) and 41(7).

121 Meanwhile, on 17 September 1986, the Planning and Environment Bill 1986 ('P&E Bill') was introduced into Parliament and read for a second time the following day. Notably, that version of the Second Reading Speech contained the following remarks:

The compensation provisions set out in Part 6[118] largely reflect the existing provisions of the Town and Country Planning Act. Nowhere in the Bill is the evidence of plain language and straightforward style more striking. The right to claim compensation has been clarified and the possibility of payments for solatium to householders and necessary expenses to all claimants has been recognised. Following the report on compensation by Mr Stuart Morris, the right to claim in cases of proposed reservation for public purposes has been clarified and the Minister administering the Land Acquisition and Compensation Act is given power to deal with cases of hardship. For administrative reasons, very small claims will not be allowed and compensation will not be recoverable when reservations are removed if it was paid more than six years previously.[119]

122 Following some delay caused in the Legislative Council, the P&E Bill was reintroduced into the Assembly (largely in the same form, but now dated 1987) on 25 February 1987 and was read a second (or a 'second‑second') time the following day.

123 In the (second) Second Reading Speech, the P&E Bill was described as a "total overhaul of the now outdated Town and Country Planning Act".[120] The following objectives of effective planning legislation were also stated:

recognise that planning is an activity involving elected officials, appointed advisers, interested members of the public, individually or in groups, and professional practitioners;

provide for continual strategic planning, attempting to clarify our view of the future;

ensure that values can be made explicit, through articulation of objectives and policies;

provide an ability to set rules about the use and development of land;

establish a framework for making, amending, administering and enforcing those rules by appropriate levels of government;

provide a framework for the resolution of disputes about the way land should be used and developed;

provide for compensation for those whose land is or will be required for a public purpose.[121]

124 The P&E Act was assented to on 27 May 1987, but did not commence until 16 February 1988. Therefore, there was a period of about 11 weeks (29 November 1987 to 15 February 1988) where the LAC Act operated according to its original terms.

125 Under those terms, s 41(5) provided (emphasis added):

If compensation has previously been paid in respect of the land pursuant to section 41 of the Town and Country Planning Act 1961, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.

126 On 16 February 1988, three things happened simultaneously upon the commencement[122] of the P&E Act:

(a) Part 5 of the P&E Act was enacted;

(b) most of the TCP Act, including ss 40, 41 and 42, was repealed;[123] and

(c) s 41(5) of the LAC Act was amended to refer to Part 5 of the P&E Act rather than s 41 of the TCP Act.[124]

127 These amendments brought s 41(5) into its present form:

If compensation has previously been paid in respect of the land pursuant to section 41 of the Town and Country Planning Act 1961 Part 5 of the Planning and Environment Act 1987, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.[125]

128 The Explanatory Memorandum and Second Reading Speech do not specifically refer to this change.

129 At this time, as originally enacted, the s 41(7) formula in the LAC Act for calculating the "prescribed amount" expressed integer B as follows:

B = the market value of the land in respect of which the compensation was paid, that value to be determined as if the underlying zoning applied to the land at the date which was the basis for the calculation of that compensation.

130 In 2006, the Road Legislation (Projects and Road Safety) Act 2006 (Vic) was enacted. Section 59(1) introduced the new s 43(1A) into the LAC Act, dealing with the situation where a reservation is used by a planning authority to create a zone boundary, and where the decision to impose the boundary is unrelated to the original purpose of the reservation. In addition, s 59(3) amended s 41(7) of the LAC Act as follows, to bring it into its present form:

B = the market value of the land in respect of which the compensation was paid, that value to be determined as if the underlying zoning applied to the land on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation.[126]

131 Again, the Explanatory Memorandum and Second Reading Speech were silent as to this particular change.

132 The considerable amendments over time to the relevant legislation are part of the network of facts which become relevant upon the statutory construction exercise presently before the Court. They demonstrate how the relevant law has been shaped.

133 It is now pertinent to set out the relevant law, as at the Acquisition Date of 29 March 2019 (and as it remains at present).

134 As noted, the key provisions in issue are ss 41(5) and 41(7) of the LAC Act. These are extracted both above at [16] and [17] and below at [166] and [246], and therefore will not be repeated here.

135 Of relevance to the interpretation of s 41(5) of the LAC Act is s 16(b) of the Interpretation of Legislation Act 1984 (Vic) ('the ILA'). Discussed further below, s 16(b) relevantly provides:

Where an Act or a provision of an Act is repealed and re‑enacted (with or without modification) then, unless the contrary intention expressly appears -

...

(b) insofar as any subordinate instrument made or other thing done under the repealed Act or provision, or having effect as if so made or done, could have been made or done under the re‑enacted Act or provision, it shall have effect as if made or done under the re‑enacted Act or provision.

136 Section 16(b) is consistent with s 4(1)(a) of the ILA which provides:

(1) The provisions of this Act -

(a) unless a contrary intention appears in this Act or in the Act or subordinate instrument concerned, extend and apply to all Acts, whether passed before or after the commencement of this Act, and to all subordinate instruments, whether made before or after that commencement ...

137 The right to compensation for the acquisition of land is and remains entirely statutory.[127] Accordingly, the task of the Court is to accurately interpret and apply the express provisions of the LAC Act.

138 As with any statutory interpretation exercise, both the broader purposes or scheme of the relevant legislation and its specific provisions will guide the process. The High Court has frequently restated this fundamental principle.[128] It was recently and concisely stated by the plurality in SZTAL v Minister for Immigration and Border Protection[129] as follows:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[130]

139 This passage demonstrates that, whilst context and legislative intent cannot displace the clear meaning of the statutory text,[131] they carry significant weight in any construction exercise.

140 Further to these general principles, it has been recognised by this Court with respect to land acquisition matters that obscure matters should be resolved in favour of the dispossessed party. As Emerton J stated in Rigby v Secretary to the Department of Sustainability and Environment ('Rigby'):[132]

[T]he proper approach in compulsory acquisition matters is generally to lean in favour of the dispossessed proprietor, all other things being equal ... [T]o the extent that doubt arises or matters remain obscure, the doubt or obscurity should be resolved in the favour of the claimants.

141 Justice Emerton drew on the decision of Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd ('the Commissioner case'),[133] in which Dixon J compared the standard to be applied to value estimates in each compensation and tax revenue cases. His Honour said:

While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate.[134]

142 This liberal approach to resolving obscurities must be borne in mind.

143 Whilst there is no legal onus of proof under the LAC Act, each party naturally bears the practical onus of convincing the Court to find in their favour, and findings of fact must be made on all the evidence available to the Court and on the balance of probabilities.[135]

144 Section 30 of the LAC Act provides that every person whose "interest" in land has been divested or diminished by a compulsory acquisition "has a claim" for compensation.

(a) an "interest" is defined broadly to include not only legal or equitable estates, but also all rights, powers and privileges "in connexion with land"; and

(b) "compensation" is defined as compensation "to which a person is entitled under this Act".

146 Part 4 of the LAC Act is titled 'Measure of compensation' and is the key Part of the Act engaged in these proceedings.

147 Section 41(1) sets out the six "factors" to which regard must be had in assessing compensation, being (in short):

(a) market value;

(b) special value;

(c) severance loss;

(d) disturbance loss;

(e) injurious affection; and

(f) professional expenses.

148 The precise manner and result of the application of these factors to the present facts is, at least for some of these factors, a matter of controversy between the parties. It is therefore appropriate to further detail the law concerning some of these key valuation factors, and the matters now agreed between the parties will be otherwise noted.

149 Section 41(1)(a) of the LAC Act provides that regard must be had to the "market value of the interest on the date of acquisition".

150 Pursuant to s 40, "market value" is defined as follows:

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 ...

151 Application of this definition requires an objective consideration of the behaviour of hypothetical "willing but not anxious" parties. In such an exercise, the hypothetical parties are assumed to have access to all relevant information that is available.[136]

152 Where only part of a claimant's land has been acquired, as is the case in both proceedings here, s 41(3) provides the method of calculation of the market value - the market value of the claimant's interest in the whole parcel of land before acquisition, minus the market value of the claimant's interest in the residual land remaining after the acquisition. In other words, a "before and after" approach is to be taken.

153 The market value of land should be assessed by reference to the highest and best use of the land at the acquisition date, given planning and other restrictions and taking into account the potential for different uses in the future.[137]

154 Section 43 of the LAC Act sets out further matters affecting the assessment of compensation. Section 43(1) provides, as relevant, that where land was reserved for a public purpose prior to the acquisition the following matters must be disregarded:

(a) any increase or decrease in the market 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;

(d) in a case where the land in which the acquired interest subsists is reserved for a public purpose in a planning instrument, any restrictions upon the use or development of that land which are imposed by, or are a consequence of, the reservation ...

155 To apply these provisions, the Court must therefore proceed on a hypothetical basis, and decide the market value of the land supposing that there had never been the planning reservation or proposal to carry out the public works in question.[138]

156 It should be noted that the market value of each of the acquired parcels of land (inclusive of severance and injurious affection) as at the Acquisition Date has been agreed, as recorded in the Joint Memorandum filed on 24 July 2023.[139] However, the parties made it clear this does not mean they are in consensus as to the interpretation and determination of the particular 'market value' amounts referred to in the formula in s 41(7) of the LAC Act, the interpretation of which is a key issue in this dispute.

157 Despite an initial reliance on loss attributable to disturbance per s 41(1)(d) of the LAC Act, the Claimants noted in their closing submissions that they no longer pursued this aspect of their claim.[140]

158 The Joint Memorandum set out the parties' agreement as to the appropriate amounts payable for pre‑referral professional expenses per s 41(1)(f) of the LAC Act.

159 Section 44(1) of the LAC Act provides that the amount of compensation may be increased by an "amount, not exceeding 10% of the market value of the land, by way of solatium as is reasonable to compensate the claimant for intangible and non‑pecuniary disadvantages resulting from the acquisition", including but not limited to inconvenience, worry or distress.

160 This provision is typically relied upon in cases where the claimant has a particular emotional or familial connection to the land.

161 Whilst the Claimants originally indicated their intention to seek a solatium increase, this aspect of the claim was withdrawn in closing submissions.[141]

162 Pursuant to s 53 of the LAC Act, if a claimant obtains an award of compensation greater than the offer made by the relevant authority before the claim became a disputed matter, the excess will attract interest at the statutory rate of 10%,[142] running from the relevant date until the date the compensation is paid.

163 Assessment of compensation for compulsory acquisition of land as at the Acquisition Date attracts the consideration and application of the LAC Act. As discussed above, following the narrowing of issues in dispute between the parties, it is the interpretation and application of both ss 41(5) and 41(7) which remain for determination.

164 If the application of s 41(5) is properly triggered, the compensation owed to the Claimants in each of the proceedings will be reduced in accordance with the "prescribed amount" as determined by the formula in s 41(7). With respect to the latter part of that exercise, the Claimants raised arguments regarding both the construction of s 41(7) and (alternatively) aspects of the values to be entered.

165 In light of the various submissions of the parties, the primary questions before the Court in these proceedings are as follows:

(i) Was the characterisation of monies paid in 1984 "compensation" paid?

(ii) Were the previous monies paid "in respect of the land"?

(iii) If compensation was paid, was it compensation that can be said to have been paid "pursuant to Part 5" of the P&E Act?

(b) What is the correct construction of s 41(7)?

(c) What values should be ascribed to figures A, B, and C in calculating the "prescribed amount"?

(Noting that, should the formula be engaged, the A and C values are agreed whereas the correct construction of the B integer is contested).

If compensation has previously been paid in respect of the land pursuant to Part 5 of the Planning and Environment Act 1987, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.

167 In this statutory construction exercise, it is useful to break down the provision into its key elements. The initial question before the Court requires the following three questions to be answered:

(a) Was compensation previously paid? - In issue is whether the payments made in 1984 ($166,680 and $366,000)[143] were compensation or whether the monies paid should be properly characterised as something else.

(b) ... in respect of the land? - The land subject of the compensation needs to be identified. A comparison of the land for which compensation was paid and that land for which compensation is now to be paid under the acquisition needs to be conducted.

(c) ... pursuant to Part 5 of the Planning and Environment Act 1987? - The previous monies paid must be capable of being classified as compensation paid pursuant to Part 5 of the P&E Act. Given the complicated legislative history concerning s 41(5) of the LAC Act, the question of whether the amendment to that provision made in February 1988 reflects a re‑enactment of the relevant legislation at law is to be considered - this turns on s 16(b) of the ILA.

168 The facts relevant to the Previous Payments, which have the potential to be classed as 'compensation', are set out in detail above at [76]-[96]. Some of the key facts are worth briefly restating:

(a) On 22 April 1983, the Permanent Trustee Land (27.10 ha) was sold for $832,891 by the Previous Claimants to AFT at a rate of $15,100 per acre.[144]

(b) The Kingston Land (3.35 ha) was nominally valued at $10 and was leased back to Mr Kingston for 99 years for rent of $1 per annum with an option to purchase the land for one dollar. Mr Kingston exercised this option and became the registered proprietor on 28 October 1993.

(c) On 27 January 1984 the Previous Claimants lodged the Loss on Sale Claim in respect of the sale of the Permanent Trustee Land.

(d) Separately on 27 October 1983, the Previous Claimants applied for a planning permit to use the Jomaring Land for light industry.

(e) On 27 January 1984 the permit application for the Jomaring Land was refused due to the Main Road Reservation and the Road Widening Reservation applicable to the land.

(f) On 28 March 1984 the Previous Claimants lodged the Permit Refusal Claim for loss suffered as a consequence of the 27 January decision.

(g) On 13 June 1984 the Loss on Sale Claim and the Permit Refusal Claim were referred to the Land Valuation Board of Review. The claims were ultimately settled for the following figures:

(i) The Loss on Sale Claim - $166,680.

(ii) The Permit Refusal Claim - $366,000.

(h) The final deeds in settlement of the Loss on Sale Claim and Permit Refusal Claim were executed on 6 September 1984 and 17 October 1984 respectively. The deed in respect of the Loss on Sale Claim is set out above at [84] and the deed in respect of the Permit Refusal Claim is set out above at [95].

(i) The Previous Payments were both noted by statement on the relevant titles pursuant to s 41(3) of the TCP Act.

169 The Claimants argued that the Previous Payments are not to be properly characterised as payments of 'compensation' within the meaning of s 41(5). It was contended that "[t]he express language of the provision conveys that what is required is a payment in accordance with, and by force of, applicable legislation".[145] It was submitted that the Previous Payments were made pursuant to contract between parties as "a commercial matter to resolve the disputes between them".[146] This was said to be apparent from the terms of the deeds. The Previous Payments were said to be incapable of characterisation "exclusively" referable to the RCA's obligation to pay compensation under the applicable legislation, i.e. s 41(5) of the TCP Act.[147] Rather, it was contended that they were referrable to all potential claims and entitlements of the Previous Claimants, which included costs under any and all acts and regulations. It was said that the 1984 deeds represented the price to the RCA of a kind of security for its own purposes, granting wide releases and thus carrying a range of benefits.[148]

170 I disagree. The execution of the deeds followed from a claim for compensation, initiated in both instances as result of a trigger provided pursuant to s 41 of the TCP Act.

171 The process which was followed - including lodging the claims, the commencement of the process before the Valuation of Land Board, and the settlement of both claims - appears to me on all the surrounding evidence to be a commonplace resolution of a compensation claim of this type. There is nothing in the terms of the deeds which acknowledges a claim under any other legislation. Whist the words of the deeds in respect of each of the two claims is not the same (the Loss on Sale Claim deed is in more general and expansive terms, whereas the Permit Refusal Claim deed is both broad and specific to compensation legislation),[149] the genesis of the claim is the same - the process for claim of compensation followed the same path and the Valuer‑General's recommendation for compensation was accepted and paid by the RCA.

172 It is commonplace in land valuation compensation claims that a settlement of the claim is made following a negotiated process, rather than proceeding to a formal award. This construction of the deeds and the sequence of events urged upon the Court by the Claimants is unsustainable. There is just no evidence at all that there was any other claim in issue between the RCA and the Previous Claimants to be settled, which could be implied in the deed of release and the circumstances of the execution of the releases.

173 Further, I am of the view that there is no requirement that the deeds be 'exclusively' referable to the claim process under s 41(5) of the TCP Act. The deeds were clearly in response to and based upon the s 41(5) claims and triggers. The fact that the RCA chose to protect itself from future litigation of other kinds is a matter extraneous to the initiating basis for the deeds which does not detract from that basis.

174 For those reasons, I consider that the Previous Payments can be classed as 'compensation' for the purposes of s 41(5) of the LAC Act.

Were the Previous Payments paid "in respect of the land"?

175 Section 41(5) provides that the relevant previous compensation must be paid "in respect of the land". This component operates to ensure that any previous compensation and the compensation sought at the relevant time relate to the same land.

176 It was not in controversy that the lands in respect of which the Previous Payments were made were constituted of the same lands which became (though in smaller form) the Acquired Kingston Land and the Acquired Jomaring Land.

Were the Previous Payments made "pursuant to" Part 5 of the P&E Act?

177 This issue turns on whether the words "pursuant to" should be interpreted in the strict sense, or whether there is a justifiable reason to conclude that the Previous Payments should be inferred as having been made "pursuant to Part 5 of the [P&E Act]".

178 The Claimants argued that s 41(5) is only engaged "if compensation has previously been paid in respect of the land pursuant to Part 5 of the Planning and Environment Act 1987", in the strict sense. It was argued that the Previous Payments were not so paid - the P&E Act did not exist at the time the Previous Payments occurred. The language of s 41(5) is unambiguous and absolute in that it requires the payment to have been "pursuant to Part 5 of the [P&E Act]".

179 It was submitted that the use of the words or phrases "or any corresponding previous enactment"[150] had not been used in the legislation. It was argued that it was not surprising that Parliament did not choose to pick up previous payments under the TCP Act as it would have been "in effect retrospective, unfair and inequitable, for payments for planning blight sought and obtained under the quite different legislative regime of the TCP Act to be brought to account under the provisions of the LAC Act, with its new proportional formula in s 41(7)".

180 It was submitted that no previous legislation had employed a proportional approach or contained any sort of prescribed formula and, if s 41(7) of the LAC Act had applied in relation to compensation paid under the TCP Act, persons who made claims under the previous legislative regime would suffer adverse consequences at the time of any later compulsory acquisition in respect of the same land.[151] It was argued that the present matter exemplifies this point in that, if the Authority's construction is accepted, "$34m is said to shrink to about $1.7m".[152] It was submitted that it would have been "quite unjust to have overturned the reasonable expectations and investment decisions" by retrospectively subjecting landowners to a different regime which adversely affected the value of the land.[153]

181 Reference was made by the Claimants to the Morris Report as the "basis"[154] of the LAC Act which had recommended that "new legislation should not operate retrospectively".[155] The Claimants' submission in this regard was effectively that, because the LAC Act was so heavily based on the Morris Report, Parliament must have held the same view as Mr Morris regarding retrospectivity.

182 The Authority's primary position was that the requirement within s 41(5) regarding Part 5 of the P&E Act could be inferred as being met, due to the operation of s 16(b) of the ILA (extracted above at [135]) - Part 5 of the P&E Act is a "re‑enactment" of the relevant provisions of the TCP Act.[156] This became the main issue at trial in terms of the 'pursuant to' component of s 41(5), and regarding s 41(5) generally.

Is Part 5 of the P&E Act a Re-Enactment of the Relevant Provisions of the TCP Act?

183 As noted above, this is really the central issue in determining whether the Previous Payments were made "pursuant to" Part 5 of the P&E Act.

184 The Claimants, argued that Part 5 of the P&E Act could not be accepted as being a re‑enactment of the provisions of the TCP Act relating to planning blight. They contended that the Previous Payments were not things done under the TCP Act which "could have been done" (picking up the language of s 16(b)) under Part 5 of the P&E Act, for the purposes of s 41(5) of the LAC Act. The Claimants advanced three key reasons for this position.

185 First, the Claimants contended that relevant legislative amendments (particularly the creation of the LAC Act in 1987 and the February 1988 legislative events) were so extensive that Part 5 of the P&E Act cannot be characterised as a re‑enactment of the TCP Act, even a re‑enactment with modifications. On this point, it was said that:

(a) The P&E Act was intended as a total overhaul of the updated TCP Act. The statutory purpose was to establish a new planning framework rather than to consolidate the existing laws. Comparison of the legislation demonstrates the incompatible form and substance of the two.[157]

(b) The only part of the TCP Act which Parliament contemplated re‑enacting "in the classic sense" in the P&E Act was Part IIIF of the TCP Act.[158] However this was ultimately not included in the P&E Act at all.

(c) The legislative reforms included major reforms of substance and procedure, which considerably modified the assessment of the quantum of compensation. These were said to include: "the removal of significant restrictions on the kind of losses which could be compensated", the adoption of a scheme of general principles for the calculation of compensation which did not exist previously under the LC Act or VLA, and "the imposition of caps on compensation for market value and for solatium".[159]

(d) The nature of the reforms were such that it cannot be said, on any hypothetical set of facts, that the same quantum of compensation would be awarded under the P&E Act as would have been awarded under the TCP Act in the same circumstances.[160] As such, one cannot say that payment of a specific sum of compensation pursuant to the TCP Act is necessarily a thing that "could have been done" under the P&E Act, within the meaning of s 16(b) of the ILA.

186 Secondly, the Claimants argued that the Previous Payments were not a "thing done" under the TCP act for the purposes of s 16 of the ILA, because they were not 'compensation'.[161] This argument relies on the Claimants' earlier contentions about the proper characterisation of the monies paid, discussed above at [169] to [175], however I have concluded that the Previous Payments were compensation.

187 Thirdly, and alternatively, the Claimants submitted that even if s 16(b) is engaged in a preliminary sense, the application of that provision is defeated by virtue of s 4(1)(a) of the ILA.[162] Section 4(1)(a) (extracted above at [137]) vitiates the application of any provisions of the ILA to a given legislative instrument where "a contrary intention appears" in the instrument concerned. It was submitted that such a contrary intention is clearly implied in the present circumstances. This was said to be because:

(a) the terms of s 41(5) were so absolute in their reference to the P&E Act;

(b) s 41(5) as originally enacted did refer to payments pursuant to the TCP Act and this was then amended to refer to Part 5 of the P&E Act (see above at [125] to [128]); and

(c) the s 41(7) formula was drafted in a way that "makes it wholly inapposite to pre‑P&E Act compensation payments".[163]

188 Again, I must disagree with the Claimants. The appropriate conclusion in all of the circumstances is that the Previous Payments can be characterised as having been paid "pursuant to Part 5 of the [P&E Act]". In this respect, I accept and largely adopt the analysis argued by the Authority regarding the applicability of s 16(b) of the ILA.[164] I accept, applying s 16(b) of the ILA, that the Previous Payments were each "a thing done" that "could have been done" under Part 5 of the P&E Act and therefore that Part 5 of the P&E Act can be said to be a re‑enactment of the relevant provisions of the TCP Act.

189 On 16 February 1988, the majority of the TCP Act was repealed and Part 5 of the P&E Act was enacted. On the same date, s 41(5) of the LAC Act was amended to refer to Part 5 of the P&E Act instead of s 41 of the TCP Act. It can be said that on that date, for the purposes of s 16(b) of the ILA, the relevant provisions of the TCP Act were re‑enacted with modifications as Part 5 of the P&E Act. There was a clear substitution of the latter in place of the former.

190 On 16 February 1988, Part 5 of the P&E Act provided a continuation of the rights and obligations previously found in the TCP Act, including the entitlement to claim compensation and the process for that claim to be assessed. This is the precise kind of correlation and continuation of legal rights envisioned by s 16(b). That there are modifications to some parts of the process and rights (generally by their expansion) does not prevent such a conclusion. Section 16(b) specifically affords leniency regarding modification. In the present circumstances, it cannot be said that any modifications were so severe as to rebut the conclusion that a re‑enactment occurred. This is because many of the essential features of the planning blight regime under the TCP Act were carried through into the P&E Act regime.

191 The Authority drew the Court's attention to four essential features common between the two regimes:[165]

(a) a right to compensation on the part of owners or occupiers of land for planning blight can arise where land is reserved for a public purpose;[166]

(b) that right does arise where a permit is refused on the basis that land is required for a public purpose, or where land is sold at a loss due to the impact of such a reservation;[167]

(c) the compensation payable for loss is capped, and the cap under both regimes is the same: the compensation may not exceed the difference between the actual and unaffected value of the land on the date when the liability to pay compensation first arose;[168] and

(d) multiple claims in respect of the same plot of land can be made, however compensation previously paid must be factored into later claims.

192 The fourth point of commonality between the regimes highlighted by the Authority is, of course, the feature which is central to the present dispute. This feature, the recognition of previous compensation, sits at the heart of s 41(5) of the LAC Act and is the reason for that provision's existence. This statutory relationship adds weight, particularly in light of the fact the amendment to s 41(5) occurred on the same date that the regime under the P&E Act commenced, to the conclusion that this caveat on the right to compensation was intended to be continuous.

193 The deficiency in the Claimants' argument on the present issue is the reliance on a strict approach to what constitutes a re‑enactment. It is clear that repealed legislation might be re‑enacted in what the Claimants describe as 'in the classic sense', that being entirely in the same terms as the previous version, but the terms of s 16 of the ILA are not confined to legislation in the same terms. It is expressly provided that the re‑enactment may include modifications.

194 What is ultimately decisive on the issue of re‑enactment is the character of the new legislative instrument or provision, in the context of the rights and obligations which are carried over from the repealed instrument or provision, and whether it can be broadly characterised as an ongoing system or scheme. The issue must be approached, not in a strict sense, but in a conceptual and logical manner.

195 To describe the P&E Act as an entirely new regime would not accurately characterise the compensation provisions relevant here. Again, one cannot overlook the statutory interrelationship between the P&E Act in respect of planning blight (being the trigger for a claim for compensation) and the LAC Act (in terms of the assessment of the amount of compensation). It is really this aspect of the P&E Act which is under the microscope when considering whether the regime is a re‑enactment for the purposes of s 16 of the ILA or not. The P&E Act made significant changes to the planning regime in terms of planning permission, planning schemes, and other associated planning provisions. But the concept of compensation for planning blight remained a firm aspect of the regime, but with some minor modifications.

196 On this point, it is also important to emphasise that s 16(b) engages the decision‑maker in a comparison of a "repealed Act or provision" with a "re‑enacted Act or provision". On a plain reading of the sub‑section, there is no requirement that an entire legislative instrument be replaced for a re‑enactment to occur. Naturally, there are a variety of different re‑enactment situations that could arise and attract the applicability of s 16(b). There will be situations where more than one provision of a repealed instrument is re‑enacted and other provisions are abandoned. A re‑enactment might occur where only part of a statute is repealed, and that part is then reflected in a new statute or transferred as part of a different existing statute. There will also be situations where the various provisions of a repealed instrument are re‑enacted, but the parallel re‑enacted provisions are scattered between different new or existing statutes.

197 Therefore, in order to be satisfied that a re‑enactment occurred for the purposes of the present case, such that s 41(5) of the LAC Act is triggered, I do not need to be satisfied that the P&E Act represents a re‑enactment of the entirety of the TCP Act. Whilst, in my view and for the reasons that follow, the P&E Act does represent a re‑enactment of the majority of the planning provisions of the TCP Act, the key determination that I make is that the provisions pertaining to planning blight and compensation[169] within the TCP Act were re‑enacted with modifications as Part 5 of the P&E Act.

198 On 16 February 1988, there were in fact two new statutes enacted which repealed and amended the provisions of the TCP Act. The P&E Act repealed most of the TCP Act, with the majority of those provisions being re‑enacted in the P&E Act. The provisions that remained in the TCP Act (pertaining to offences for the operation of a brothel) were then, on that same day, impacted by a combination of amendments and repeals by way of the enactment of the Prostitution Regulation Act 1986 (Vic).

199 When the legislative history is properly inspected, what was done to the TCP Act on 16 February 1988 can be distilled down to three things:

(a) the bundle of rights and obligations pertaining to planning schemes, planning permits, planning blight and other relevant planning matters went into the P&E Act;

(b) the provisions regarding the illegal planning and management of brothels remained in the TCP Act and were amended to operate in conjunction with the Prostitution Regulation Act 1986; and

(c) any remaining redundant provisions were repealed without being re‑enacted.

200 It is clear that item (a) was the most substantial change, impacting the most provisions. This is also, upon a consideration of commonplace views within the Victorian planning law community, the legacy of the February 1988 legislative events. This is plainly demonstrated on the website of the Department of Transport and Planning - under the section describing the P&E Act, under the heading 'History of the Act', the Department states as follows (emphasis added):

The Planning and Environment Act 1987 became the Act on 27 May 1987. It came into operation on 16 February 1988.

The Act replaced the Town and Country Planning Act 1961, which replaced the Town and Country Planning Act 1958.[170]

201 A further example of the commonplace view that the P&E Act effectively replaced the TCP Act, which plainly draws on the legislative history, can be found in a 2009 discussion paper from the (now defunct) Department of Planning and Community Development:

In 1961, the Town and Country Planning Act 1961 was passed. It built on existing principles but improved the workability of the system. A series of amendments to this Act followed, to streamline planning systems, improve the review provisions, and provide for the establishment of regional planning authorities.

By the early 1980s the structural logic of the Act had ceased to be obvious. A series of reports followed, including Proposals for Revision of the Town and Country Planning Act and Related Legislation (Department of Planning, 1983), which set the scene for the preparation of a new Act.

The 1987 Planning and Environment Bill

The Planning and Environment Bill set out to overcome operational issues identified in the various reports, and by the Ombudsman ...[171]

202 In all the circumstances, what occurred on 16 February 1988 with respect the P&E Act was a re‑enactment of the majority of the TCP Act with respect to planning law. The legislative history clearly reveals that. The planning‑related provisions that were repealed and not re‑enacted were redundant, largely due to the manner in which the P&E Act overhauled the planning regime in Victoria in order to:

(a) create greater standardisation with a system centred around planning schemes, abolishing the previous system of separate instruments which included statements of planning policy and other planning orders; and

(b) cause greater centralisation of decision‑making power regarding planning schemes and other planning matters.

203 Further, on point (a), section 204 of the P&E Act (which was the only provision other than the preliminary provisions in Part 1 which commenced immediately upon assent) specifically allowed all previous planning instruments made under the TCP Act to be converted into planning schemes under the new P&E Act. This exemplifies the intention of Parliament to (as seamlessly as possible) carry over Victoria's planning regime from one Act to the other.

204 In a similar vein, s 208 of the P&E Act provides that:

(1) All permits in force under the Town and Country Planning Act 1961 immediately before the commencement of item 131 in the Schedule continue in force under this Act and, subject to sub‑sections (2) and (3), have the same effect and are subject to the same provisions as if they had been issued under this Act.

(2) A permit referred to in sub‑section (1) is cancelled at the end of three years after the commencement of item 131 in the Schedule if no action was taken before that commencement or within that three year period to carry out the use or development for which the permit was granted unless ...

205 Item 131 is the item in the Schedule to the P&E Act which repealed most of the TCP Act. Sections 209 and 210 are framed similarly to s 208, and operated respectively to allow ongoing permit applications and appeals commenced under the TCP Act to continue to be considered and determined, after the Act was (largely) repealed.

206 These provisions again show that the P&E Act was not an entirely new regime and that Parliament intended for there to be a relatively seamless transition from the provisions of the TCP Act. Put another way, it was a continuum of Victoria's slowly morphing planning regime.

207 When a careful comparison of the TCP Act (as it stood before 16 February 1988) and the newly enacted P&E Act is conducted, it can be seen that there are many provisions which were carried over and which demonstrate that the P&E Act represents a re‑enactment, to a substantial degree, of the TCP Act. A complete list of the provisions of the TCP Act which were re‑enacted in the P&E Act, on the Court's analysis, can be found below at 'Annexure A'.

208 In all the circumstances, the P&E Act represents a re‑enactment of the majority of the provisions of the TCP Act which pertained to planning matters, other than those that were inconsistent with the new more standardised and centralised system. This includes the matters regarding the assessment of compensation for planning blight in ss 41 and 42 of the TCP Act, which were re‑enacted (being modified and split into a greater number of sections) as the various provisions of Part 5 of the P&E Act, and in particular I note ss 98, 99, 102, 104, 106, 108, and 110 (further to what was described above at [192]). Section 43 of the TCP Act was re‑enacted with modifications as ss 111 and 112 of the P&E Act.

209 Section 40 of the TCP Act sits in a slightly different category, as it did not carry over into Part 5 of the P&E Act, but the circumstances of its re‑enactment add considerable weight to the conclusions thus far formed. Section 40 of the TCP Act was re‑enacted as s 172 of the P&E Act, and in this instance the re‑enactment occurred with minimal modifications. In particular, ss 40(1)(a)-(b) of the TCP Act and ss 172(1)(a)-(b) of the P&E Act are practically identical. This is a significant commonality, as these provisions provide the actual power of the Minister to compulsorily acquire land. The power of acquisition is the fundamental power from which the rights and obligations pertaining to acquisition and compensation stem. There would not be a system of compensation without it. Therefore, the fact that these key sub‑sections are effectively identical carries great weight for the purposes of the present analysis.

210 Regarding the question of why Parliament did not include the words "or any corresponding previous enactment" (or similar) in s 41(5) of the LAC Act, as raised by the Claimants, this issue is redundant where s 16(b) of the ILA applies in the manner that I have determined.

211 This is because what matters on an application of s 16(b) to any given scenario is whether a contrary intention appears indicating that the provision should not be applied. Whilst a contrary intention can be implied in some cases, for the reasons that follow, the lack of use of the words "or any corresponding previous enactment" is not a sufficient indicator of any contrary intention in the present circumstances.

Is There a Contrary Intention Which Would Override s 16(b)?

212 There are two places in the ILA where the words 'contrary intention' are used, as relevant to the present matter; ss 4 and 16(b) (extracted above at [135] and [136] respectively).

213 Section 16(b) uses the particular words "unless the contrary intention expressly appears".[172] Section 4 simply uses the words "unless a contrary intention appears".

214 This distinction makes no practical difference when applying the contrary intention consideration under these provisions. Various iterations of the contrary intention considerations can be found in other provisions of the ILA, including in ss 13 and 14.

215 As the Court pointed out in Mitchell v Latrobe Regional Hospital,[173] the phrase "unless the contrary intention expressly appears" was analysed in a series of decisions following the enactment of the ILA in 1984. Osborn and Beach JJA and J Forrest AJA referred to those earlier landmark decisions before jointly concluding as follows:

In our view, the authorities stretching over many decades and the application of common sense support the interpretation of the word 'expressly' which requires that s 14(2) not be read narrowly: 'expressly' means 'plainly', 'clearly', or 'by necessary implication' and, as such, does not require a line by line reference to every part of a piece of existing legislation.[174]

216 In all the circumstances in the present case, I find that there is no contrary intention in the P&E Act which overrides the operation of s 16(b) of the ILA either plainly, clearly, or by necessary implication.

217 What matters here is the test to be applied and the threshold to be met in order for a contrary intention to be found. In Waterfront Place v Minister for Planning ('Waterfront')[175] the Court of Appeal, in analysing the Victorian ILA, accepted that the test for establishing a contrary intention was one of "reasonable certainty", and noted that this "creates a very high threshold".[176] This reflects the general sense of caution held by the courts with respect to disturbing the legislative status quo or departing from the plain meaning or operation of a provision.

218 The Court in Waterfront went on to observe that "an interpretation statute is the setting in which substantive legislation is enacted".[177] The Court quoted Gleeson CJ in Attorney-General (Qld) v Australian Industrial Relations Commission[178] as follows:

Acts of Parliament are drafted, and are intended to be read and understood, in the light of the [interpretation statute]. A particular Act, and the [interpretation statute], do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.[179]

219 When one looks at both s 41(5) of the LAC Act and s 16(b) of the ILA with the complimentary ethos articulated by Gleeson CJ in mind, there is no contrary intention apparent. The provisions "work together" and thus it is superfluous that s 41(5) refers expressly to only the P&E Act and that Parliament did not choose to include in s 41(5) the caveat "or any corresponding previous enactment".

220 Further, accepting that a contrary intention need not be expressly communicated, there was a point made by counsel for the Authority at the trial which merits comment being:[180]

[Noting] what s 4 of the [ILA] says, and we say that the Acquisition Act, as amended by the Planning Act, could have made it clear expressly and unambiguously, that it didn't apply to compensation paid under the TCP Act. It didn't. And one would expect there to be such clear and unambiguous language if Parliament intended to allow recipients of compensation for planning blight under the TCP Act to be doubly or overly compensated for their loss, by giving them an amnesty from 1988[181] on.

221 This argument must be understood in the context of the Victorian planning regime and the relevant legislative history.

222 In Victorian acquisition law, the concept of factoring previously paid compensation into a current assessment for compensation had existed under the TCP Act since 1961.[182] As noted above at [120], that legal requirement was carried over upon the commencement of the LAC Act on 29 November 1987.

223 Further, the LAC Bill and the P&E Bill were being simultaneously drafted and progressed throughout 1986 and 1987, and it was only due to particular delays in the Houses of Parliament with respect to the P&E Bill that the latter was not enacted at a time closer to the enactment of the LAC Act (see above at [118] to [122]).

224 The LAC Bill, as drafted in 1986, contained the following form of section 41(5):

If compensation has previously been paid in respect of the land under this Act or another Act, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.[183]

225 The version of s 41(5) which commenced on 29 November 1987 referred only to s 41 of the TCP Act, and the version as amended on 16 February 1988 referred only to Part 5 of the P&E Act (see above at [125]-[127]).

226 There are two key distinctions to observe between the version of s 41(5) in the LAC Bill and both versions which have existed in the LAC Act:

(a) the words "under this Act" were removed before the provision was first enacted; and

(b) the original Bill version simply said "another Act".

227 Observation (a) is easy to explain. Section 41(5) relates to compensation for the final acquisition of an interest in land. Following any acquisition under the LAC Act the claimant has lost their interest in the relevant land and cannot have that interest acquired again. This was a logical and consistent amendment.

228 Observation (b) makes sense in terms of a draft provision in circumstances where the LAC Bill and the P&E Bill were being prepared at the same time. It was not yet clear whether s 41(5) would need to refer to the P&E Act as the P&E Act did not exist yet.[184]

229 That s 41(5) was amended ultimately to only refer to the P&E Act, in my view, does not contradict the re‑enactment argument with respect to s 41 of the TCP Act and the intention of Parliament to create a continuum of the previous compensation requirement given:

(a) s 16(b) of the ILA was already in operation since 1 July 1984 and Parliament was cognisant of that; and

(b) to treat s 41(5) as not continuing to mandate the recognition of previous compensation under the TCP Act beyond 16 February 1988 is irrational - it would undo a legal requirement which had existed since 1961 and had been continued under the LAC Act just 11 weeks earlier.

230 It can be inferred that the intention of Parliament was to provide for continuity, albeit with some modification, to enable clarity and consistency of approach in respect of previous compensation paid for planning blight. Support for this inference is found in the stated the objects of the LAC Act recorded in the Second Reading Speech. These are extracted in full above at [119], however I note in particular the following:

1. to establish uniform practices to be adopted by acquiring authorities in the course of compulsory or negotiated acquisition of land ...
2. to establish a system of land acquisition which is equitable to all landowners and which does not impose such burdens on Government so as to prevent proper planning and public sector activity;
3. to ensure certainty in the practices of land acquisition ...[185]

231 The interpretation contended for by the Claimants directly undermines these objectives. In my view, Parliament intended for the newly established qualification to compensation for compulsory acquisition set by s 41(5) to apply in the most uniform and equitable manner. That approach is easily facilitated by s 16(b).

232 On this point of legislative intention, the Morris Report's recommendation that the legislation "should not operate retrospectively"[186] must be put into context. Similarly, the Claimants' argument - that the operation of a formula such as that in s 41(7) falls foul of the presumption against retrospectivity (discussed above at [181]) - is misplaced. The legislative context is as follows:

(a) When the LAC Act commenced, the method by which previous compensation was factored into an assessment for payment was not specified.

(b) Under s 42(4) of the TCP Act, there was no clear guidance as to the methodology to be used to take previously paid compensation in to account was variously applied arithmetically or proportionally.

(c) The 'new' LAC Act s 41(7) explicitly set out a proportional adjustment as opposed to an arithmetic one.

233 This was a clarification of the operative process created by the expectation that monies paid for compensation prior to a full acquisition of land must be taken into account. The key legal right or duty at issue remains the same. It was not, as the Claimants characterised it, a case of "subjecting ... landowners, effectively retrospectively, to a new and different regime".

234 That a claimant should be fairly compensated is well acknowledged. Equally, a claimant should not be overcompensated nor receive an unfair windfall. Such a circumstance would be contrary to general legal presumptions of fairness and cannot find any lawful foundation in the context of compensation law. As Osborn J stated in McCann v Roads Corporation:[187]

The notion of compensation ordinarily envisages that an owner is entitled to be compensated fairly and fully for his loss, but is not entitled to receive more than fair compensation. Quoting from Scott LJ in Horn v Sutherland Corporation ... 'the owner shall be paid neither less nor more than his loss'.

235 At the time the Previous Claimants settled the claims in 1984, the approach taken by acquiring authorities in taking into account compensation already paid was inconsistent - some authorities were settling such claims on an arithmetic subtraction and others were using the proportional approach. This inconsistent position was known to the Previous Claimants (and Mr Kingston) at the time they entered into the claim for compensation in 1984. The legal advice obtained by the Previous Claimants identified this division of approach.[188] This inconsistency was also the subject of observation in the Morris Report.[189]

236 With this in mind, it cannot be said that the proportional formula introduced did more than make it clear that there was a preferred way to calculate previous compensation paid. This was, in my view, in response to that overtly identified issue. This is indicative of s 41(7) being a clarification or modification within the re‑enactment of the compensation regime, embodied in the combination of the P&E Act and the LAC Act, with consideration given to the concept of fair compensation.

237 As noted above (at [193]-[194]), the approach to the statutory interpretation task proffered by the Claimants is a restrictive one, overly focused on the comparison of the texts rather than one which embraces a contextual and purposive approach to the legislation. As a consequence, the Claimants' emphasis is on a phrase or a word in the respective planning legislation (the TCP Act and the P&E Act) and the compensation assessment legislation (the LC Act and the LAC Act). But words cannot be considered in isolation. The effect and application of the various provisions must be compared in their statutory context at the relevant time.

238 The amendment made to s 41(7) to change the language from "underlying zoning" to "actual zoning" (detailed above at [130]) is a good example of this. Under the TCP Act, the relevant planning scheme or instrument nominated land as being either zoned or reserved. For the purposes of assessing compensation, an assumption of an 'underlying zoning' was made by a valuer because reserved land was, in effect, of no or limited market value.

239 Under the P&E Act, the concept of an underlying zoning fell away as all land was zoned, and reservation was identified by way of a public acquisition overlay. The terminology used in s 41(7) consequently and necessarily changed, as this reflected the changing characterisation or nomination of what was otherwise land identified for the same public purpose.

240 In this context, it is in my view clear that Parliament's intention with respect to the TCP Act and P&E Act was one of substantial re‑enactment,[190] including the provisions applicable here. Given all the matters I have discussed, there is no reason to be persuaded that the high threshold set by the contrary intention test can be met.

Alternative Argument Based on s 206 of the P&E Act

241 The Authority argued an alternative position being that, by reason of s 206 of the P&E Act, s 41(5) of the LAC Act continues to apply in its original form to payments made under s 41 of the TCP Act. It was argued that in this regard, the Previous Payments were compensation payments made under or pursuant to that section.

Except as in this Act expressly or by necessary implication provided all persons, things and circumstances appointed or created by or under any Act which is amended or repealed by this Act or existing or continuing under that Act immediately before the commencement of the item in the Schedule amending or repealing that Act continue under and subject to this Act to have the same status, operation and effect as they respectively would have had if that Act had not been so amended or repealed.

243 There is a only subtle distinction between the application of s 16(b) of the ILA and the application of s 206 of the P&E Act in the present context. When one applies s 16(b) one is effectively pretending that, whilst s 41(5) of the LAC Act says "Part 5 of the [P&E Act]", those words also mean s 41 of the TCP Act. Whereas, on an application of s 206 of the P&E Act, one is effectively pretending that s 41(5) still says "section 41 of the [TCP Act]".

244 Ultimately, this distinction makes no difference; the outcome is the same and I have already made a positive determination as to the re‑enactment issue. For this reason, as well as the fact that the argument with respect to s 206 was not fully developed or properly discussed at the trial, there is no need to examine this argument further.

245 As s 41(5) has been enlivened, the task remaining is to determine the 'prescribed amount' by which to reduce the quantum of compensation per s 41(7).

What is the Correct Construction of Section 41(7)?

In this section the prescribed amount in relation to land is the amount calculated by the following formula -

x C

where -

A = the amount of compensation previously paid in respect of the land for loss of market value due to -

(i) the reservation or proposed reservation of the land or part of the land for a public purpose in a planning instrument; or

(ii) any part of the land being required for a public purpose.

B = the market value of the land in respect of which the compensation was paid, that value to be determined on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation.

C = the compensation payable under this Part for market value and severance less the value of the land attributable to improvements of a durable nature made -

(i) with the consent of the Authority under section 12(1)(b); or

(ii) after the last date on which compensation was paid in respect of the land and before service of the most recent notice of intention to acquire an interest in the land.

247 As aforementioned, the parties were at odds with regards to the correct construction of s 41(7) in the present circumstances.

248 The Claimants' arguments on this issue were initially threefold:

(a) The formula cannot be given any practical operation in a case where the acquired parcel of land is not the same size parcel the previously attracted compensation for planning blight.[191] This turns on the definition of "land" as utilised throughout s 41.

(b) It is factually impossible to say what sums were paid for loss of market value, being the basis of the A value.[192]

(c) The land in question did not have a zoning (it was 'reserved' land under the MMBW planning scheme in place at the time) and without a zoning the B value cannot be calculated.[193]

249 Whilst all of the above points were mooted at trial, in closing the Claimants conceded points (a) and (b) as follows:

[T]he Claimants accept that the "land" as referred to in both items "A" and "B" is the acquired land ...

If contrary to the submissions above, the 1984 Money, or some portion of it, can be characterised as "compensation" paid "pursuant to" the TCP Act, then the Claimants accept that, in these proceedings, the sum referable to the acquired land [for the A value] can be calculated on an apportioned basis, pro‑rata by area, as the Authority submits.[194]

251 The s 41(7) formula works where compensation was previously paid in respect of a larger area of land than that which is subsequently acquired. This has been and will continue to be a common occurrence; plans are prone to change as between when reservations are made for a public purpose and that public purpose is actually executed. Where only part of the compensation that was paid relates to the land that was ultimately acquired, the court simply only factors in that part. In the circumstances here, there is no difficulty in calculating that part because each of the Previous Payments were calculated on a consistent per hectare basis.

252 It is also clearly possible to identify the sums which were paid for loss of market value. These sums (as applicable to the reserved land) are set out in each of the Agreed Statement of Facts filed in the two proceedings as:

(a) $362,373 (out of $366,000) in respect of the Jomaring Land;[195] and

(b) $164,180 (out of $166,680) in respect of the Kingston Land.[196]

253 Additionally, contemporaneous documents indicate that these were the sums paid for loss of market value.[197] All that needs to be done in order to arrive at the A value is to calculate the relevant portion of those sums attributable to the Acquired Land using the relevant rates per hectare. This has been done and the agreed A values of the parties are set out below at [271] and [272].

254 What remains in issue is therefore the construction of the part of s 41(7) which provides for the calculation of the B value.

255 For the reasons that follow, I reject the Claimants' contention that the B value is unworkable in the present case and agree with the analysis proffered by the Authority.[198]

256 As noted, the Claimants submitted that the land in question did not have a zoning at the time of the Previous Payments (it was reserved but not zoned) and it must have one for the B value to be calculated. This proposition is based on the Claimants' particular interpretation of the B part of the formula in s 41(7); an interpretation that cannot be correct.

257 In my view, applying the principle of noscitur a sociis, the clause "which was the basis for the calculation of that compensation" in s 41(7) operates to inform the interpretation of the phrases "the actual zoning" and "the date". The provision must be read in context and it must be read as a whole. When this is done, it is evident that the crucial aspect of s 41(7) is the identification of the basis of the original calculation of compensation, at the time such calculation was made. In the present circumstances, the original calculation was based on a zoning (both valuers at the time proceeded as if the GIZ applied to the reserved land)[199] and s 41(7) can be understood and applied in those terms. Put another way, "actual zoning" means the zoning which was actually the basis for the calculation of the compensation.

258 The Claimants' construction, which reads the phrase "the actual zoning" strictly and literally, would mean:

(a) in cases where the land with respect to which compensation was paid was not the subject of any zoning (i.e. effectively all claims paid under the TCP Act where land was nominated as reserved land as opposed to non‑reserved land which did have a nominated zoning), the B integer would produce a windfall benefit to Claimants in that no previous compensation would be taken into account; and

(b) persons claiming compensation for acquisition could seek a deduction for previous compensation based on the "actual zoning" where that would be more beneficial than relying on the zoning upon which the previous calculation was actually based (e.g. previous compensation being based on land being zoned residential even though the land was actually zoned green wedge).

259 This analysis leads to an absurd result and cannot be what the legislature intended. Section 41(7) surely was intended to operate in a manner which best reflects and accounts for what actually occurred in the past.

260 As discussed above at [238]-[239], the history of the text of s 41(7) suggests that the use of the term "underlying zoning" in the earlier version of the LAC Act was utilised to describe the zoning which was assumed to apply to reserved land, where the planning regime at the time (under the TCP Act) differentiated in a binary fashion between reserved land and zoned land. As a consequence the land affected by the reservation and thus blighted would not have a value unless it was assigned an underlying zoning. When the P&E Act came into being, the differentiation between reserved land and zoned land disappeared and all land was zoned. Consequently, the reference to "underlying zoning" was replaced by the term "actual zoning". This change reflects this piece of Victoria's planning law history, but does so (in the context of the entire provision) without altering the purpose and application of s 41(7).

261 Again, the Claimants' construction is simply too literal and ignores the relevant context and the legislative history. The comments I made above at [237] with respect to the construction of s 41(5) are apposite here regarding s 41(7).

262 On any statutory interpretation exercise, the task for the court is to construe the words of the legislation so as to "give effect to the purpose and language of those provisions whilst maintaining the unity of all the statutory provisions".[200] Some meaning must be given to the provision; Parliament's words are unlikely to be utterly intelligible. The Claimants' submission that the provision cannot be made to work, whilst having elements of intellectual defeatism, is a result of the confined and narrow text‑based approach to statutory interpretation which has underpinned much of the Claimants' case in these proceedings.

263 Finally, the Authority's construction makes logical sense in the context of the both the purpose and mathematical arrangement of the formula. Upon this construction, the fraction A/B reveals the proportion of the value of the land in respect of which compensation for planning blight was previously paid. By way of hypothetical example, if the A value was $580,000 and the B value was $620,000:

264 When the formula is properly understood, this would represent (in this example) 94% of the land value having already been accounted for by way of compensation. In the context of the legislative purpose of s 41(7) and the objectives of the LAC Act generally,[201] this percentage when multiplied by the relevant C value operates to effectively reduce the compensation presently payable for land value by that percentage. This produces a compensation result which, prior to the addition of present‑day professional expenses, as fairly and as accurately as possible reflects the consequences of previous compensation in the context of the passage of time. By operating to produce a percentage of the previous land value which can then be applied to the present land value, the formula in s 41(7) attempts to circumvent the issues created by time such as monetary inflation and the like. This reflects the intent behind the LAC Act to produce equitable results for all landowners. A percentage‑based system, conceived in this way, is the most fair and consistent manner in which to approach this complex issue.

265 Whilst the formula is somewhat 'artificial', it is less artificial when the figures are based as much as possible on the understandings and calculations presented at the relevant historical time. In this sense, I repeat what I said above at [257].

266 Therefore, I find that the B value for the purposes of s 41(7) of the LAC Act is the market value of the land at the relevant date pertaining to the previous compensation (the date upon which the right to compensation was triggered), that value to be determined (in circumstances such as the present proceedings) on the basis of the zoning that would have applied but for the reservation of the land.

267 Having determined the issues with respect to the construction of ss 41(5) and 41(7), the remaining task for the Court is to apply the formula in s 41(7) on the present facts.

268 The Court must undertake the task of assessing the "prescribed amount" in each of the two proceedings, regarding the Kingston Land and the Jomaring Land respectively. Section 41(7) makes it clear that the "prescribed amount" is the amount calculated by the formula:

269 Applying the construction of the B integer determined above, this represents (in abbreviated form) the following:

270 As the A value and the C value are agreed, it is unnecessary for the Court to do anything more with regards to those values than apply the agreed figures.[202]

271 The agreed values in the Kingston proceeding are as follows:

272 The agreed values in the Jomaring proceeding are:

The B Values - Market Value at Previous Relevant Dates

273 As I have determined, the B value is the market value of the land at the relevant date pertaining to the previous compensation, that value to be determined on the basis of the zoning that would have applied but for the reservation of the land.

274 The actual assessment of market value for the purposes of the compensation paid to the Previous Claimants assumed the underlying zoning as Garden Industrial, in the absence of an actual zoning.[203] This is the same assumption that should be made now. In this context, the task before the Court is to determine the unaffected value of the Acquired Kingston Land as at 22 April 1983 and of the Acquired Jomaring Land as at 27 January 1984 ('the previous relevant dates').

275 The Court has before it the valuations conducted for the purposes of these proceedings by Nicholas Haines on behalf of the Claimants and Mr Keck on behalf of the Authority. Additional information was available to the Court, including the statement of valuation (not sworn) obtained by the Previous Claimants from Colliers, the claims for compensation made based on the valuation assessment of Mr Lawson, and the reports of Mr Colson which ultimately formed the basis of the Previous Payments.

276 At the trial, the parties called opposing evidence from their respective valuers regarding the market value of the land at the previous relevant dates (i.e. the B values). Mr Colson was, unfortunately, not able to be called due to his advanced age.

277 In making their respective assessments of market value, Mr Haines and Mr Keck both used the 'direct comparison approach'[204] to determine a market value per hectare for each of the two land holdings. The contended B values which are based on the valuations of Mr Keck and Mr Haines were formulated by multiplying their contended market value per hectare by the area of the acquired portions of land. The values based on Mr Colson's reports[205] (being the Authority's preferred B values) were calculated in a slightly different manner, where a rate per hectare was drawn from his actual valuation of the larger portions of land in each case and from the residual values he provided in respect of each of the land holdings.

278 It is prudent at this point, before delving into any of the proposed calculations, to recall that the area of the Acquired Kingston Land is 3.02 ha and the area of the Acquired Jomaring Land is 5.07 ha.

279 The Claimants placed primary reliance on the evidence of Mr Haines and the B value proposed by him, but also suggested an alternative B value calculated on the basis of certain propositions which the Claimants urged the Court to accept. The Claimants' contended values in each of the proceedings are as follows:[206]

280 The Claimants' primary B values were based on Mr Haines' evidence. The comparable sales upon which he relied are discussed below at [289]-[301].

281 The Claimants' alternative submission is explained below at [322] and discussed at [430].

282 The Authority submitted that the Court ought to prefer the evidence of Mr Keck over Mr Haines, but prefer the evidence of Mr Colson over that of Mr Keck.[207] The Authority therefore advanced a primary contended value in each proceeding as well as an alternative value, as follows:[208]

283 The primary B values contended by the Authority drew directly from the reports of Mr Colson, where a rate per hectare was determined for both the previous compensation and the residual values in each case,[209] those two rates were multiplied by the relevant land area, and the totals were then added together.[210] These calculations and the Authority's reasoning are explained below at [324]-[332] and analysed at [423]-[428].

284 The alternative B values were based on Mr Keck's evidence which is discussed below at [302]-[317].

285 Despite the Authority's primary submission being based on the assessments of market value made by Mr Colson for the purposes of the compensation claims, the Authority suggested that the Court should first consider the evidence of the two valuers who were present at the trial, and then consider whether the reports of Mr Colson should be preferred.[211] I agree that this is appropriate in all the circumstances.

286 Mr Haines and Mr Keck prepared two joint statements of matters in agreement and, where they had not agreed, the reasons for any disagreement.[212]

287 The valuers were in agreement as to the following:

(a) in general as to the property description, title details, measurement and occupation, topography, access and services, relationship to transport facilities and town planning;

(b) that the area was known to have been suited to a sophisticated industrial development typology;

(c) that the appropriate method valuation is by the direct comparison approach;

(d) that a valuation actually conducted at the relevant date tends to be an easier engagement involving less interpretation, analysis and adjustment to time, than a retrospective assessment, particularly as in this instance where the retrospective date is 39 years past;[213]

(e) the relevant municipal assessments (particularly for site value) for the subject property in 1982, 1983 and 1984 may have assisted in the retrospective assessment; and

(f) the relativity between the Kingston Land and Jomaring Land is that former is at a lower rate per hectare, being approximately 25% less than the rate appropriate to the Jomaring Land.

288 Whilst the valuers were in agreement as to the use of the direct comparison approach, they relied on different comparable sales in conducting their valuations.

289 Mr Haines wrote a separate valuation report regarding the Kingston Land[214] and the Jomaring Land[215] as at the respective relevant dates. However, in both reports, he relied on the same set of sales from 1979 to 1983 as comparable sales, set out in a table similar to the following:[216]

Crown Portion 91, Frankston‑Dandenong Road, Dandenong

Coram Land, Boundary Road, Dingley (see below: [293], [295])

290 At trial, Mr Haines placed particular emphasis on the following sales:

(a) Crown Porton 91, Frankston‑Dandenong Road, Dandenong;

(b) 185 Frankston‑Dandenong Road, Dandenong; and

(c) the portion of the Redwood Industrial Estate, Dingley.

291 Notably, of the nine sales upon which Mr Haines placed his reliance, Mr Keck challenged the relevance of seven of them - all but the two properties on Frankston‑Dandenong Road. The key criticism of the sales challenged by Mr Keck related to the time of sale (noting the recession that commenced in 1981 and had by 1982 significantly impacted the market), applicable zoning, size of site and location, and in particular the superiority of location.[217]

292 What can be observed from the above table is that, of the nine sales identified by Mr Haines, there are none which are easily identified as a direct comparison. A significant number of adjustments were required to be made in order to render the sales capable of comparison.[218] Clearly, where there are a large number of adjustments that have to be made, the reliability of the sale as a comparable indicator is reduced. In some circumstances, this would lead to a complete rejection of the sale's utility in such an exercise.

293 It is also important to note that Mr Haines dismissed the sale of the Permanent Trustee Land itself as having relevance to assessment of market value, whereas Mr Keck placed great reliance on the sale. Mr Haines dismissed the reliability of that sale and treated it as a low sale, and thus "not a reliable market value indicator" at the previous relevant dates.[219] Similarly, whilst he did include the Coram Land in his tables, Mr Haines considered it to be a low sale and only included it on this list as part of a "cap and collar approach", to demonstrate that it "sits below the lowest end of the analysed sales that [he] could find".[220]

294 Of the sale of the Permanent Trustee Land, Mr Haines' in his reports stated as follows:

Coupled with the instructed assertion that the vendors may have been over‑anxious and/or uninformed, and the sale itself was potentially complicated in part by the Reservations and the dual role of the agent involved, the 1983 transaction is not a reliable market value indicator.[221]

With the agent's dual role also noted in this transaction, the transfer being contingent on the sale of the Kingston land being completed, not to mention the significant difference between the Coram land and the subject land's transacted prices, this transaction - like that of the Kingston land - does not constitute a reliable market value indicator.[222]

296 These comments were the subject of some scrutiny during cross‑examination. In respect of the Permanent Trustee Land, this was particularly so in the context of a component of the instructions provided to Mr Haines by the Claimants' solicitors to consider whether the Previous Claimants "were, or may have been, over anxious to sell and that the sale was or may have been forced on them".[223] However, at trial Mr Haines stated that this instruction "didn't have any traction really in [his] thinking".[224]

297 Mr Haines summarised his position rejecting the sale of the Permanent Trustee Land by observing that of his nine key sales, all but three sold for a higher capital value than the Permanent Trustee Land and those which sold for a lower value were but a small fraction of the land size.[225] Ultimately, Mr Haines dismissed the sales of the Permanent Trustee Land and the Coram Land as being unsupported by other evidence and assessed the Kingston land in the 'before' situation by reference to extraneous sales from dates approximate to the previous relevant dates.[226]

298 Given the passage of time between the preparation of his report and the relevant dates (nearly 40 years), Mr Haines' research of the property market was undertaken by reference to, among other things, editions of Australian Property News (APN) published between 1978 and 1984. APN was a monthly property industry publication which is now defunct. Mr Haines relied upon the publication of sales evidence within APN to ascertain his nine comparable sales, confirming these transactions by reference to instruments of transfer and other government sales records.[227]

299 During this research Mr Haines found an APN article from June 1983 titled "AFT buys site for $40m Estate".[228] This article was the subject of much reference in the evidence of the valuers. The article makes reference to the sale of the Kingston and Coram sites to AFT/PT Nominees. In the joint statement of the valuers dated 15 November 2022, it is recorded that Mr Haines was of the view that this article confirmed to him:

(a) The sales had been finalised (though this was already known to him);

(b) The Redwood Gardens being a '$40m Estate' is a significant contrast to the collective Kingston and Coram sale prices which totalled $1,505,426; and

(c) Mr Lawson had acted as the marketing agent for the proposed estate and "had visited the United states (along with project managers of AFT's development) to 'study the latest trends of the development of industrial estates'".[229]

300 The joint statement records that Mr Haines formed the view that the Kingston and Coram transactions failed to demonstrate open market value, wherein the transactions cannot be said to have been free of conflicts of interest, given "Mr Lawson's significant ongoing involvement" with AFT's Redwood Gardens development project.[230] Mr Haines recorded that he

used his search for other industrial development sales to contrast the price achieved for the Kingston and Coram sites. Upon undertaking this exercising and finding little synergy, [he] considered the interdependent Kingston and Coram transactions unreliable.[231]

301 It is of note that the interdependency of the Kingston and Coram transactions was challenged by the Authority, in particular by reference to the correspondence between AFT and Mr Lawson, the same correspondence relied upon by Mr Haines to form a different view.[232] During cross‑examination, Mr Haines conceded that the notion that the sales were interdependent was "an important component" of his rationale in dismissing the reliability of the two sales, but said that "both sales have questions of reliability, regardless".[233]

302 As Mr Keck was one of the valuers who actually valued the relevant parcels of land in 1984, the written evidence he authored following his engagement in the present proceedings did not involve a full retrospective valuation report. Rather, Mr Keck was instructed to comment on both his historical valuations and the valuations of Mr Haines, and he did so in the form of four letters of opinion responding to his instructors.[234]

303 Mr Keck fully adopted his historical valuations. He clearly stated in his opinion dated 13 May 2022 that he had "carefully considered" his historical valuations and the methodologies he used in 1984 and had concluded that his methodologies were still relevant and his valuations accurate.[235] He did not resile from this position.

304 Unlike Mr Haines, Mr Keck did not use the same set of comparable sales to value each of the two parcels of land. During cross‑examination, when asked to explain why he utilised different methodologies or comparable sales for each of the two properties under valuation, he explained as follows:

So they were assessed differently ... and the difference in values is comparing those two conclusions. But they weren't dependent on each other. The... Permanent Trustee transaction, in my view, doesn't drive the value of the Jomaring land, and the Jomaring valuation doesn't drive the value of the Permanent Trustee land. I did the Jomaring valuation and concluded it.[236]

305 For the Permanent Trustee Land (the valuation for which translates to the Acquired Kingston Land), Mr Keck considered it sufficient to consider the sale of the Permanent Trustee Land itself with some comparison to the sale of the Coram Land, without reference to other sales.[237] He explained this further at trial as follows:

I was very impressed and accepting of the Kingston sale, and I think part of the reason for that was because the parties to that sale, Kingston and the trustees, negotiated that outcome between them but aware of the Coram sale.[238]

306 It was put in the joint statement of the valuers that the key reason for the valuations arrived at by Mr Haines and Mr Keck in relation to the Permanent Trustee Land being so markedly different (at $124,907 per ha and $37,318 per ha respectively), was "the acceptance or rejection of the Kingston sale, which Haines says is unreliable, and Keck embraces to the exclusion of all other evidence".[239]

307 For the Jomaring Land (the valuation for which translates to the Acquired Jomaring Land), Mr Keck's report referred to five sales which are summarised in the following table:

308 Mr Keck accepted completely that the sale of the Permanent Trustee Land and the Coram Land were reliable evidence of fair market value. Although Mr Keck no longer has the assistance of his original file notes, it is evident from his original report on the Permanent Trustee Land that he had some contact with Mr Lawson in the course of his engagement,[240] although he cannot now recall the details of any such conversations.[241] Notwithstanding, it is apparent from the commentary in his report that he was of the understanding that Mr Lawson was not only the valuer acting for the Kingstons but also an agent or (as he preferred to put it at trial) an advisor to AFT.[242] In all the circumstances, Mr Keck did not take any issue with that fact.

309 Neither Mr Keck nor Mr Haines had contact with Mr Lawson for the purposes of this proceeding. Mr Keck had the benefit of speaking with him at the relevant time. Mr Haines explained that his decision not to contact Mr Lawson was due to a concern that Mr Lawson would not provide him with information contemporaneous to the sales in 1983 and 1984, with the possibility that his recollection would be coloured by the passage of 40 years or otherwise injected with matters of hindsight.[243]

310 Putting aside the Permanent Trustee Land and the Coram Land, Mr Keck introduced three sales which Mr Haines did not consider in his reports. These three sales were raised with both valuers during cross‑examination, and the following matters are of note:

(a) Mills Road, Braeside: There was a question about $300,000 of extensive site improvements identified by Mr Keck. When adjusting the sale price to account for the hypothetically developable area (approx. 15% of the land was subject to an SEC easement), the valuers did not consider the $300,000 as impacting the valuation in the same manner. Mr Haines considered that the $300,000 should be added to the total purchase price (creating an effective value of $840,000) and thus producing a value rate of $83,582/ha, in contrast to the $46,036/ha arrived at by Mr Keck using the actual purchase price.[244] It was put during cross‑examination that this adjustment needed to be done in order to make the sale comparable to the Jomaring Land, however Mr Keck directly disagreed with this.[245] He explained during re‑examination that $300,000 was a "ridiculous figure" to conduct such works, which by his estimate would cost approx. $90,000 to $100,000, and that without reliable information as to what that money truly related to, it should not be factored in.[246]

(b) Lot 2 Malcolm Road, Braeside: Similar to the comments in respect of the Mills Road property, the parties originally disagreed as to the impact of $42,000 for filling works at Malcolm Road, where Mr Haines assessed the value rate as $58,316/ha and Mr Keck assessed it as $49,473/ha.[247] However, upon the second joint statement provided by the valuers, Mr Keck agreed with Mr Haines that this was a reasonable figure for filling works and could be included to render the sale more comparable.[248]

(c) Lot 7 Cochranes Road: Mr Haines was unable to confirm the transaction details other than two apparent records of the sale citing a price of $126,000 each for two individually titled allotments in this immediate precinct, between the same vendor and purchaser.[249] Mr Haines suspected that this was in fact two adjoining transactions. There was a dispute on the material before Mr Haines that recorded settlement dates of one to two months after the contract, instead of the five year term the settlement had nominated.

311 The Mills Road Braeside and Lot 2 Malcolm Road Braeside sales, although described by Mr Keck, were not able to be identified by Mr Haines as a matter of record and, as Mr Keck no longer has his field notes, no further supporting information was available.[250] Mr Haines agreed that those sales could be substantiated to be taken into account. Lot 7 Cochranes Road, Moorabbin was identified by Mr Haines in his research as 94‑98 Cochranes Road, Moorabbin.[251]

312 In relation to the Jomaring Land specifically, Mr Keck disagreed with the value per hectare concluded by Mr Haines, as he disputed Mr Haines' evidence of the process direct comparison he used for his valuation. In particular, Mr Keck took issue with the fact that in Mr Haines' two reports, in the 1983 Kingston valuation and in the 1984 Jomaring valuation, the same comparable sales analysis is set out "word for word".[252] Mr Keck criticised this as not demonstrating satisfactorily that Mr Haines had considered the relevance of the comparable sales as with respect to each of the two parcels of land individually.[253] Accordingly, he said Mr Haines valuation lacked merit.

313 Mr Haines disputes this criticism, whilst accepting that he used the same sales, he considered that he had set out the differing rationales appropriately.[254]

314 In the joint statement, the comments in respect of the sales evidence were discussed in the context of the Jomaring land with varying comments as to size, desirability of location and date of sales being identified and responded to by the valuers.[255]

315 Again, the key difference in the values arrived at by Mr Haines and Mr Keck was due to Mr Keck's acceptance of the Kingston and Coram sales as evidence of value, in contrast with Mr Haines dismissal of both sales. As it was put in the joint statement of the valuers, he rejected these sales

he asserts, significantly in part for his concern that Mr John Lawson was involved in these transactions, acting for both parties in the Kingston transaction and he suspects acting for both parties in respect of the Coram Land, and that consequently both sales were not reliable market indicators of value.[256]

316 How this observation in the joint statement sits (comfortably or not) with his oral evidence and his distinct disavowal[257] of the impact of the change of his instructions (extracted immediately below) is to be noted.

317 Mr Keck and Mr Haines were in substantial disagreement over the weight to be given to the Kingston and Coram sales. This coupled with Mr Keck's rejection of the other sales which Mr Haines relies upon, demonstrates the significant gulf between them, not only in dollar value, but in the approach and implementation of the valuation task.

318 By the close of the trial, the Claimants' had conceded that the Kingston and Coram sales were not necessarily bad indicators of market value such that they should not be taken into account in the comparable sales analysis. On 5 August, the third day of the trial, the solicitors for the Claimants wrote to Mr Haines withdrawing their former instruction which had been as follows:

We request that you assume that the consideration stated in Transfer K366646 (Kingston Transfer) does not, or may not, reflect the market value of the land transferred as at that date, and that the Transferors (vendors) were not then or may not then have been cognisant of all circumstances which might affect its value and were, or may have been, over anxious to sell and that the sale was or may have been forced on them.[258]

319 This change in instructions was also consistent with the decision not to call Mr Kingston to give evidence.

320 With this in mind, the following table and map represent the sales which the Claimants ultimately relied on in their closing[259] as having a strong degree of comparability:

Crown Portion 91, Frankston‑Dandenong Road, Dandenong

Portion of Redwood Industrial Estate, Dingley (i.e. portion of original Follett land)

Figure 15 - Map showing the comparable sales relied on by the valuers.

321 Therefore, in addition to adopting the Kingston and Coram sales as reliable, the Claimants' also adopted the Mills Road, Malcolm Road, and Cochranes Road sales and provided submissions explaining why these sales should be interpreted as indicating a higher value for the subject lands consistent with the valuation of Mr Haines.[260] This was, in sum, said to be due to inferior location, access, or other capacity for commercial activity.

322 The Claimants alternative submission as to the B values was as follows:

If the Court does not accept Mr Haines' values, then, at the least, two things are clear from all of the evidence the Court has heard. The first is that, at the time of its sale to AFT, the Permanent Trustee land was, at least, as valuable as the Coram land ($21,941/ac or $54,215/ha). The second is that, at its relevant date, the Jomaring Land was worth materially more per hectare than the Permanent Trustee Land and the evidence of Mr Haines and Mr Keck in this regard is very similar, with Mr Haines at 28% more and Mr Keck at 32% more. Applying the midpoint of these figures, namely 30%, the Jomaring land is seen to be have been worth (no less than) $70,478/ha.[261]

323 It should be highlighted that, in this submission, the second proposition regarding the value of the Jomaring Land is contingent upon acceptance of the first proposition regarding the value of the Permanent Trustee Land.

Authority's Primary B Values Based on Mr Colson's Reports

324 In the Kingston proceeding, the Authority contended that the B value is $110,414 which is determined by adding the compensation payable in respect of the Acquired Kingston Land ($103,749) and the residual value of the Acquired Kingston Land ($6,665).

325 The figure of $103,749 (which also happens to be the A value) was determined in the following manner:[262]

(a) 'the land' for the purposes of determining the A value is the land in which the interest was acquired (being the Acquired Kingston Land);

(b) since the relevant previous compensation was triggered by the sale of a larger parcel of land (being the Permanent Trustee Land), it is necessary to determine what portion of the Previous Compensation was paid in respect of the Acquired Kingston Land;

(c) properly analysed, the relevant previous compensation (of $164,180) was paid in respect of the reserved land only (4.779 ha) which translates to a rate of $34,354 per hectare of reserved land; and

(d) since the Acquired Kingston Land is 3.02 ha in size, the amount of the relevant previous compensation which was technically paid in respect of that land is $103,749 (being $34,354 x 3.02).

326 The calculation of the residual value of $6,665 was based on taking the total residual value of $7,400 attributed to that part of the Permanent Trustee Land subject to the Bypass Reservation, and dividing it by its area of 3.353 ha ($7,400 ÷ 3.353 ha) which calculates at a rate of $2,207 per hectare.[263] Applying that rate to the Acquired Kingston Land of 3.02 ha results in a rounded total of $6,665.

327 In the same manner, the Authority contended that the B value for the Jomaring Land is $303,474, determined by adding the compensation payable in respect of the Acquired Jomaring Land ($290,104) and the residual value in the Acquired Jomaring Land ($13,370).

328 The calculation of the amount of $290,104 (i.e. the A value) was again determined by commencing with the previous compensation (here, $373,000) and devising a rate per hectare ($57,220/ha) which was then applied to the area of the Acquired Jomaring Land (5.07 ha) ($57,220 x 5.07 = $290,104).[264]

329 The residual value of $13,370 for the Acquired Jomaring Land was calculated in the same manner, by taking the original residual value ($16,700) and determining the residual rate per hectare for the originally reserved land (6.333 ha) and then applying that to the acquisition ($16,700 ÷ 6.333 = $2,637/ha; and $2,637 x 5.07 = $13,370).[265]

330 The Authority contended that this disposition should be preferred as "it properly reflects the extent to which the Previous Claimants were compensated for the value of the Acquired Kingston Land in 1983 and the Acquired Jomaring Land in 1984".[266]

331 The Authority contended that Mr Colson's valuations, being the valuations that informed the Previous Payments, are the most appropriate to adopt for the purposes of determining the B values here.[267]

332 In support of that contention the authority relied on the evidence Mr Keck.[268] As previously discussed, Mr Keck's evidence was that the most comparable and reliable sale was the sale of the Permanent Trustee (i.e. Kingston) Land, and that the sales introduced by Mr Haines were not reliable comparators. If the sale of the Permanent Trustee Land is taken to be the best indicator of value, it logically follows that the preferrable valuation assessment is the one that was applied to the sale in the context of the Previous Payments, being contemporaneous with the previous relevant dates.

333 The evidence before the Court in respect of the market value for the B integer was not straight forward.

334 The Authority's approach to the evidence was to look at the contemporaneous valuations undertaken in 1984 for the purposes of the Previous Payments. These valuations were undertaken on behalf of the Valuer‑General and were done by Mr Colson and by Mr Keck. These documents were in evidence.[269]

335 These valuations were done relatively contemporaneously[270] with the relevant dates on which compensation was to be assessed. In my view, the fact that these valuations were done at such a close time to the relevant dates is a powerful factor in favour of their legitimacy.

336 Further matters which add credibility to these values are that:

(a) the Previous Payments (i.e. compensation) were signed off by the Valuer‑General, accepted, paid and recorded on the relevant titles;

(b) the valuations undertaken in 1984 were completed by experienced and accredited valuers with a contemporaneous understanding of the market and economic conditions of the time; and

(c) the Previous Claimants were advised by qualified and experienced agents, valuers, and lawyers who tested the valuations at that time.

337 The valuation case for the Claimants relies on undermining the legitimacy of the sale of the Permanent Trustee Land and, to an extent, the Coram Land. It is argued that these are outlier sales and not reflective of the market at the relevant dates.

338 Mr Haines was not a practicing valuer in the mid‑1980s. His valuation relied on research and data available from historic sources, from which he reconstructed the market of 1984. There is no criticism of this approach as there was no other option available to Mr Haines, save from personally interviewing sources, which he did not seek to do. All valuation exercises will involve an element of historic research. Few will require the scale of task that was undertaken by Mr Haines here.

339 I have serious concerns about the reliability of the recreation of the market by such an isolated and lengthy 'rear view window' or historic valuation approach. It is inevitable that some degree of time lag will occur in any valuation assessment for land acquisition compensation purposes. However, just as (for good reason) the reliability of a sale is diminished by the time difference from the relevant date (and requires adjustment to be made for time and market conditions), an analysis of sales from a perspective more than 40 years after the relevant date must be treated with caution.

340 This is particularly so when one of the sales in the pool of potential comparable sales is the sale of the actual land in question (or, perhaps more accurately in this case, the 'parent' of that land). The characteristics of the land, its location, desirability, and zoning makes the sale of the Permanent Trustee Land a key sale in my view.

341 I do not accept the demur by Mr Haines that the withdrawal at the eleventh hour of his instructions that the sale of Permanent Trustee Land may not have been an arm's length sale (in the sense of Spencer v the Commonwealth ('Spencer')[271]) did not affect or influence his conclusions.

342 I consider, the not‑so‑subtle attempts to create an odour around the role of Mr Lawson were at best an unfortunate diversion. I have not factored in a reduction of credibility of the market status of the Permanent Trustee Land sale as a consequence.

343 The contemporaneous letters and other documents which show the exchanges between the representatives of the Kingston family, and the fact that they had access to legal and valuation advice, are factors which add legitimacy as to the arm's length nature of the sale. There is no evidence of the either the seller or the purchaser being an anxious and unwilling party to the transaction (see further below at [378]-[397]).

344 If one starts with a '2023 view' of the land as it is now developed[272] (and the current values of the land) and then give the valuer instructions in a not‑so‑subtle manner that there was less than an arm's length sale which may have been driven by the role of the agent, this risks an assessment result which is significantly swayed by these matters. In all the circumstances, it would be open to conclude that the valuation undertaken by Mr Haines was coloured by this aspect in his rear view reconstruction. He effectively gave no credibility at all to the most comparable sale - the actual sale of the Permanent Trustee Land.

345 Mr Haines agreed he gave no weight to this sale because he had formed the view that it was a low sale. Throughout cross‑examination, Mr Haines could not explain why that was the case without referring to the so‑called 'dual role' of Mr Lawson in the transaction[273] or the contended 'interdependency' of the Kingston and Coram sales to AFT.[274] He agreed that Mr Lawson's role was the "principal reason"[275] and that the 'interdependency' was the "other reason".[276] However, he also conceded that there was no evidence that Mr Lawson acted dishonestly or unethically,[277] nor was there evidence that Mr Lawson was acting on behalf of both parties in respect of the sale of the Permanent Trustee Land itself.[278]

346 For the reasons address below (at [406]-[410]), I do not agree that Mr Lawson's role is indicative of an unreliable transaction or is otherwise a cause for any concern. Further (as addressed at [411]-[416]), I do not believe that there was an interdependency of transactions or sufficient inference as such so as to conclude that either the Kingston or Coram transactions with AFT were not concluded at arm's length.

347 Therefore, the only conclusion I can infer from the content of the cross‑examination of Mr Haines and his explanation (or lack thereof) for his 'low sale' conclusions is that he was influenced by the instructions given at the outset (despite their withdrawal and express disavowal of them as a factor).

348 I agree with Mr Keck that the best evidence of a comparable sale is one of the actual land and one undertaken in the same market conditions and at the same time frame. I shall address this point first.

Weight to be Given to the Contemporaneous Versus the Retrospective Valuation

349 The Authority submitted that weight should be given to Mr Keck's evidence as he was a qualified valuer in 1972 and by 1984 had 12 years' experience in land valuation. Mr Haines, by contrast, did not enter the profession for another two decades.

350 Reliance was placed on a Technical Information Paper issued by the Australian Property Institute (with the relevant New Zealand bodies) in respect of retrospective valuations in January 2020.[279] This paper recommends, where possible, that a valuer undertaking a retrospective valuation be "appropriately certified by the respective Institute(s) at the time of the retrospective valuation date and registered in those states where registration or similar by a regulatory/licensing body is required".[280]

351 In the context of this industry standard, and simply on a consideration of common sense and the value of direct lived experience, I must accept that Mr Keck's evidence holds greater weight than that of Mr Haines.

352 As the Authority put it, the recommendation of the Technical Paper reflects:

...the considerable advantages that a valuer who was practising and certified at the relevant time has, in being able to understand the factors that bore upon compensation at the relevant date, and in interrogating relevant materials.[281]

353 Mr Keck clearly held those advantages over Mr Haines in this proceeding. Mr Haines accepted that he had only been able to inspect the properties "37 or 38 years after the relevant events",[282] that his "capacity to appreciate the condition of the land at the relevant times, being 1983 and 1984 is substantially reduced",[283] and that he had been "denied the opportunity to engage with the market participants".[284] Mr Haines' analysis was principally based on a review of the APN. That publication does not guarantee the accuracy of the matters reported.

354 As I observed in the early part of the hearing, newspaper reports are not the most reliable source of accurate information. Further, whilst the APN recorded lists of sales, it also included a number of promotional and editorial articles within the publication. That Mr Haines was restricted to a retrospective and historical analysis using the APN as a source is not to be criticised. It should, however, not be taken as an infallible source. I acknowledge it was not the only documentary source he relied on, but it was a significant source for his market sales enquiry. Whilst it does appear that it is the practice of the valuers to engage directly with relevant agents when undertaking contemporaneous valuations, Mr Haines did not engage with any agents involved in the sales upon which he relied for his retrospective valuation. He chose not to engage with Mr Lawson, notwithstanding the pivotal role he was alleged to have played, at least in part of the preparation of the evidence (until Mr Haines' instructions were withdrawn on that subject).

355 Not only was Mr Keck practising at the relevant time but he had completed the (relatively) contemporaneous valuations of the Permanent Trustee Land and the Jomaring Land at the relevant dates. Whilst he no longer has access to his field notes and does not recollect the precise circumstances surrounding the preparation of his 1984 reports, there are several factors which lead me to conclude that Mr Keck's reports should be given considerable weight. These factors include that:

(a) they were prepared shortly after the relevant dates;

(b) they were prepared by a valuer who had a keen understanding of the market circumstances and the economic circumstances of the relevant time; and

(c) they were prepared with access to the key market participants.

356 That Mr Keck had a first‑hand understanding of the market circumstances in the 1980s is particularly relevant, given the manner in which the rare (and now extinct) GIZ factors into the valuation issues in these proceedings.

357 The effect of the GIZ on the market value of the land was explored by the parties at some length.

358 As discussed above (at [28]), the GIZ was introduced and applied to the Permanent Trustee Land and the Coram Land on 26 April 1979. Prior to that the lands were subject to the 'Rural Zone'.[285] At the time, the Permanent Trustee Land and the Coram Land were the first and only pieces of land in Metropolitan Melbourne that were subject to the GIZ.[286] There was therefore, for valuation purposes, no tested history of development under this zoning.

359 The submission of the Claimants was that there was an overly conservative approach to what was able to be developed on the land zoned under the GIZ and that Mr Keck had undervalued the land, placing greater restrictions on the utility of the land based on a misunderstanding that the site coverage restrictions applied across the board to all development and use, whereas that restriction was in fact not so extensive.

360 The Kingston Land and the Jomaring Land (in part) were subject to the GIZ. The Coram Land was subject to the GIZ. The Follett Land was not.

361 It is clear that, with respect to the GIZ, there appears to have been considerable trepidation around what was perceived to be restrictions on the style and density of industrial development to be accepted on this type of zoned land. However, in some ways the GIZ was not unlike other 'industrial' zones. It allowed, in column 4 of the zone as set out in the planning scheme,[287] for a variety of uses to be undertaken on land subject to the grant of a planning permit. Some of these uses - including but not limited to 'warehouse', 'office', 'health centre', 'animal husbandry' and 'hotel' - were similarly allowable with a permit under other more common types of industrial zoning, such as the Reserved Light Industrial Zone and Reserved General Industrial Zone.[288]

362 The evidence that there was an emerging new type of industrial park pioneered overseas in the United States, but yet to be established in Victoria, makes the uncertainty in the market understandable.

363 Amendment 150 to the MMPS, which came into effect in September 1983, provided at cl 5E(2)(g) that:

The objective of the Garden Industrial Zone is to provide for low density light industrial development which retains a rural or bushland atmosphere or creates a garden setting and to ensure that such development takes place in an orderly and proper manner.[289]

364 The distinguishing feature of the GIZ was the stringent limits that applied in respect of the use of the land for the purposes of light industry. Those limits at all relevant times were specified as conditions to column 3 of the GIZ provision as follows:

(a) the site shall not be less in area than 2 hectares;

(b) the total floor area shall not exceed 20 per centum of the area of the site;

(c) no building shall exceed 2 storeys in height;

(d) no building or works ... shall be constructed closer than -

(i) 20 metres from the site frontage;

(ii) 10 metres from any other boundary; and

(e) all storage of machinery, equipment, materials or goods takes place within a building.[290]

365 Where any of those conditions were not satisfied, the use of land for the purposes of light industry was prohibited by the terms of column 5 of the GIZ.

366 It is apparent from these conditions and cl 5E(2)(g) that a particular style of industrial or business development was expected - with a higher level of ascetic amenity lending to a more 'natural' or 'green' feeling environment.

367 By reason of the definitions of "industry" and "light industry",[291] where warehousing or office administration would be undertaken in association with light industrial activities, those activities would be characterised as "light industry" and subject to the limitations specified in the GIZ.

368 The limitations imposed were much more stringent than in other industrial zones. Neither the General Industrial Zone or the Reserved Light Industrial Zone contained comparable limitations in respect of use of land for light industry, or in fact for any other use. In those zones the use of land for purposes of light industry was not subject to specific limitations at all.

369 As noted, the limitations impacted the capacity of the land to be developed as an industrial estate, at least in what could be considered the traditional or expected form and capacity of estate at the time. The minutes of the Springvale Council meeting of 6 December 1982 record the effect of the 2 ha subdivisional limit and, more importantly, the 20% site coverage restriction as "severely undermining the viability of any development".[292]

370 It is reasonable to infer from the Council minutes that the restrictive nature of these controls and their effect on development potential resulted in the recommendation that a request be made to the MMBW to amend the terms of the GIZ to reduce the extent of the restrictions (see above at [72]).[293]

371 It is notable that the restrictive nature of the GIZ was a relevant matter in the context of the sale of the Permanent Trustee Land. Upon learning of the Council's recommendation to request that the MMBW amend the MMPS, the vendors through Mr David Kingston sought to negotiate an increase in sale price for that reason.[294]

372 Both Mr Keck and Mr Haines interpreted the planning control as being more restrictive relative to other industrially zoned land, all other things being equal.[295]

373 Mr Haines accepted that the restrictions contained in the control would "change the complexion of a development ... potentially significantly"[296] and all other things being equal, those controls "would have diminished the value of the land" relative to land subject to other industrial zones which did not contain the same limitation.[297]

374 In the context of the valuation evidence, I am of the view that the limitation would negatively affect market value relative to other industrially zoned land. In all the circumstances, this proposition is made out.

375 I do not accept Mr Haines' suggestion that a hypothetical purchaser would not consider the restrictions to be permanent or long‑term disabilities. Clearly, this would turn on the prospect of an amendment being prepared and ultimately being successfully implemented. Even with the benefit of hindsight, which is not the appropriate course, the amendment was not actually made until June 1985 and did not lessen the restriction to the extent of the recommendation made by the Springvale Council. This demonstrates the theoretical and presumptive nature of assumptions made about longer term changes to planning controls, the course of which are highly unpredictable both in terms of outcome and timing.[298] This is not something upon which a reasonable hypothetical purchaser would rely.

Negotiations on Price in the Context of the GIZ and in the Wake of the Coram Sale

376 The correspondence about the negotiations spurred by the Previous Claimants for an uplift in price and the meeting held around that time demonstrate that the vendor and purchaser:

(a) both knew about the GIZ and the restrictions it carried;

(b) both knew about the price agreed to be paid for the Coram Land;

(c) had discussed the features of the Coram Land which rendered it more valuable than the Kingston Land;

(d) agreed to a price, at arm's length, in all those circumstances; and

(e) negotiated a contingent term which allowed for an uplift in price per hectare if the restriction affecting the GIZ was lifted within a certain time frame.

377 The amendment to the GIZ did not occur as hoped. It took longer and the amended restriction was not as lenient as had been recommended. That is an incidental factor to the ultimately contractual result - that the land was sold for a total sum of $832,891. That a particular contingent condition was not triggered is a matter of usual course in the law and business of contracts.

Market Value and the 'Willing But Not Anxious' Vendor

378 Section 40 of the LAC Act (extracted above at [150]) provides the definition of 'market value' for the purposes of valuation as at a particular date. The statutory definition has its roots in the classic case of Spencer, in which Isaacs J stated:

To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them SO anxious to do SO that he would overlook any ordinary business consideration.[299]

379 I am of the view that the sales of the Permanent Trustee Land and the Coram Land must be included in the comparable sales analysis. There is no substantiated reason to consider that either sale is contrary to the definition of market value in that it did not occur at arm's length between competent and willing parties.

380 In the context of there being no other sales of GIZ land, or of land of a similar size in or around the same time and in the same market conditions, to ignore these sales is unjustifiable.

381 There is no evidence of a forced sale and, even with the odour fanned by the unsubstantiated allegations in respect of Mr Lawson's involvement, I am not satisfied nor can I infer that the sales were not true market sales.

382 This sale is a matter of significant contention between the two valuation witnesses. As discussed, Mr Keck accepted that the sale price of the Permanent Trustee Land is a reliable indicator of market value and accordingly adopted it as the basis for his valuation of the Kingston land.

383 By contrast, Mr Haines concluded that the sale price was unreliable and accordingly did not give it any weight. However he did concede (if only for the purpose of the argument) that if the Permanent Trustee Land were a reliable indicator of market value:

(a) it would constitute "the best evidence upon which to assess the valuation of the Permanent Trustee Land" (and by implication the portion of that land which became the Kingston Land);[300]

(b) it would have constituted "the premier sale" in his comparative sales;[301]

(c) it would have had a "marked impact" on the analysis contained in his report;[302] and

(d) it would have likely resulted in a different outcome.[303]

384 These concessions are well made. The authorities are compelling on the weight to be given to a contemporaneous sale, and a sale of the land in question. As Ipp JA said in Port Stephens Shire Council v Tellamist Pty Ltd:[304]

In my view, the overwhelming thrust of these authorities is to the effect that the hypothetical seller and purchaser are to be assumed, in the hypothetical situation postulated, to be aware of all information relevant to market price, about which a prudent purchaser would enquire.

385 Parties to a contemporaneous sale should be assumed to have a sufficient degree of knowledge of the market, and (as in the present case) that will be the market as at the relevant time for comparable valuation purposes. These concepts were discussed in detail by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd,[305] referring to the extended ratio of Spencer:

Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:

We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.

The market for the property is, therefore, assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property.[306]

386 I am satisfied that the sale of the Permanent Trustee Land was a 'Spencer sale' and one which is representative of the definition of market value contained in section 40 of the LAC Act.

387 I am satisfied that the evidence establishes that the Previous Claimants were prudent, well‑informed, and willing but not anxious vendors of the Permanent Trustee Land, and that there is no compelling evidence to establish that the sale of that land was not reliable. The hints and suggestions made at trial about Mr Lawson's role do not even come close to being compelling evidence.

388 In my view, it is significant that the Claimants withdrew the instruction to Mr Haines that the sale was not, or may not have been, an arm's length sale (extracted above at [318]).

389 Whilst Mr Haines, at trial, attempted to emphasise the fact that a consideration of whether the Previous Claimants "were" so‑influenced was different to a consideration of whether they "may have been",[307] ultimately this does not matter. What matters is that he was directed to assume either of these ('were' or 'may') in the positive.

390 The curious nature of this instruction was not assisted by the Claimants, on the eve of the hearing, advising that they did not intend to call Mr Kingston to give evidence. This decision was made despite Mr Kingston having prepared lengthy witness statements, dated 22 October 2021 and 24 November 2022, which contained significant information concerning the history of the land and the proceedings, and his direct knowledge and involvement in the dealings with respect of the land sales and the compensation claim preparations.

391 I am satisfied that it is open to me to conclude that the vendors of the Permanent Trustee Land acted prudently, because the course of the negotiations which started in the latter part of 1982 and culminated in the sale on 22 April 1983 demonstrate this. I record the factors which have led to my conclusion on this issue in the following paragraphs.

392 The negotiations between the parties commenced in the latter part of the 1982. The vendors were represented in the transaction by Mr Lawson acting as the agent. Mr Lawson was described by Mr Keck as the major agent in the locality, and unlike most other property agents, was also an expert and experienced valuer.[308] Mr David Kingston, himself a lawyer, obtained valuation advice from Colliers International Property Consultants in respect of the value of the Permanent Trustee Land, and that advice also pertained to the Jomaring Land (see above at [46]-[47]).[309] The parties originally agreed to sell the land on terms recorded in the Sale Note (discussed above at [48]). Because AFT did not confirm the purchase in accordance with special condition 6 of the Sale Note in the specified time,[310] the parties recommenced negotiations in January 1983 and those negotiations concluded in April 1983.

393 During the course of further negotiations the vendors attempted to achieve a higher price for the sale of the land. In the course of these discussions, the parties were plainly aware that the Coram Land was sold at a higher price per hectare than that at which the Permanent Trustee Land was proposed to be sold[311] and that the city of Springvale had made a request to the MMBW to amend the GIZ.[312]

394 The vendors were legally advised by an experienced planning and property law solicitor, Mr Callander, from at least March 1983 onwards.[313]

395 The parties concluded the sale on the terms recorded in the Contract of Sale[314] dated 22 April 1983 and discussed above at [51]-[56], including a sale price of $832,891.

396 The statutory declaration signed by the Dr William Kingston (on behalf of the Previous Claimants) supports the conclusion that the vendors acted prudently as that statutory declaration records that they:[315]

(a) sold the land "in good faith" and took "every reasonable step" to obtain the best price possible for the land;

(b) were "guided by" Hamilton Lawson Pty Ltd as to the best possible price;

(c) themselves "verily believe[d]" $832,891 was the best possible price;

(d) sold the land by private treaty sale on account of it being "the most appropriate method of selling in the circumstances"; and

(e) as executors, were "very conscious of the need to obtain the best possible price for the land".

397 There are similar statements contained in several of the historical documents which were available to the Court.[316] Consequently, there is no evidentiary basis to suggest that the vendors were not willing to sell the Permanent Trustee Land or were anxious to do so. There equally is no basis to suggest that the vendors were not cognisant of all the circumstances surrounding the sale of the Permanent Trustee Land, or were otherwise not well‑informed.

398 I am satisfied that the vendors were aware of the Coram Land sale price. So much is directly apparent, if only from the further negotiations and the terms of the agreement reached, which included the contingent condition to increase the price per hectare of the land.

399 Mr Keck's 1984 Kingston Report records that Mr Lawson advised Mr Keck that the vendors had been advised of the specific rate at which AFT had purchased the Coram Land ($54,324 per hectare).[317] The report also records that:

AFT expectedly resisted such an asking price on the basis that "Coram's" land was half the size, of more regular shape, was more immediately serviceable, and therefore more easily developed as it abutted to the existing AMP Estate.[318]

400 Whilst Mr Keck's report was authored after the fact and not in the possession of the Previous Claimants at the time of the sale of the Permanent Trustee Land, I am satisfied that this information (or similar) was in the possession of the vendors at that time. I find as such based on the level of representation they had and the knowledge that they and their advisers held. As prudent vendors, they appear to have taken all reasonable steps and sought appropriate and expert advice in their dealings. They had sold land previously in the Dingley area and so were not novices in this arena.

401 Further, one of their representatives, the agent Mr Lawson, was specifically told by letter from AFT dated 25 March 1983 (some four weeks prior to the conclusion of the sale of the Permanent Trustee Land) that:

The price paid to Coram was higher, due to the closer proximity of sewer, water, drainage, electricity and the gas service to the Coram land, and the requirement for less service road on the Boundary Road frontage.[319]

402 There is no evidence that Mr Lawson did not pass on this advice to the Previous Claimants or that they were not otherwise aware of the grounds upon which AFT considered the Coram Land more valuable. They can reasonably be assumed to have been aware of this reasoning. No one has given evidence that they were not.

403 On this point, the fact that Mr Callander and Mr Kingston did not give evidence has been criticised by the Authority. I also find it curious that those witnesses were not called, given they may possess information which would assist this part of the claim.

404 I have been invited to draw a Jones v Dunkel[320] inference, as Mr Kingston was actively involved in the sale at and around the relevant time. Similarly, Mr Callander was advising the vendors throughout this period.

405 There is an abject absence of cogent evidence to persuade the Court otherwise. I am satisfied that the only conclusion I can draw on the evidence is that the vendors were prudent, well‑informed and willing but not anxious participants. I cannot draw the conclusion that the Permanent Trustee Land was sold at a significant undervalue. Rather, I am satisfied that the sale represented the market value at that time.

406 Despite the Claimants' amended position and withdrawal of the 'over anxious' instruction to Mr Haines, it is prudent to make my views with respect to Mr Lawson clear. As indicated, I am not persuaded that Mr Lawson's role is suggestive of an unreliable transaction (with regards to either the Permanent Trustee Land or the Coram Land).

407 I agree with the Authority that "the Court should be slow to find that Mr Lawson acted improperly when he has not been given an opportunity to respond to any allegations of impropriety".[321] But, beyond this procedural fact, there is no evidence on the contemporaneous documents which could infer any misbehaviour or ill‑intention.

408 In respect of the sale of the Permanent Trustee Land, Mr Lawson was agent for the vendors and, on the evidence, the vendors only. The fact that Mr Lawson had or might have acted on behalf of AFT in respect of other transactions is, in all the circumstances, not surprising nor concerning. Nor, ultimately, is it relevant for the present purposes.

...Lawson was, if not the major, certainly equally the major with one or two other players, agents in this area. Not only was he an agent, unlike most of the other agents, he was also an expert and experienced valuer. So he was probably, you might say, as experienced and knowledgeable senior player in that market as anybody could be. So any developer, AFT or otherwise, Lendlease or some of the others that we're mentioning, they were coming into this precinct to play. They would obviously have engaged with him at some point at some level. So I am - I'm not suspicious that there - ah, it causes no red flag to me that there were reports of the area's major property professional dealing with the area's major developers.[322]

410 The dealings with respect to the Permanent Trustee Land, including the involvement of Mr Lawson, can be described as ordinary dealings in the context of the industrial property market as at the relevant time. The Previous Claimants, and indeed Mr Kingston, appeared to trust Mr Lawson and continued to use his services with respect to other property transactions subsequent to the sale of the Permanent Trustee Land.

411 As discussed, Mr Haines relied heavily on the notion that the sale of the Permanent Trustee Land and the sale of Coram Land were interdependent, to support his view that the sale of the Permanent Trustee Land was unreliable. He said that this added "strong complexity" to the sales,[323] and resulted in "ordinary market forces" not being "at play".[324]

412 The Authority argued that the two sales were not interdependent and that the material clearly demonstrated that the sale of the Coram Land was completed before, and independently of, the sale of the Permanent Trustee Land. I agree.

413 In particular, the letter of 25 March 1983 from Mr Athorn to Mr Lawson (being the later in time of the two letters discussed above at [62] and [63]) concludes by stating:

Finalization must be reached quickly as by the 29th March the Coram land will be settled and we must make immediate discissions [sic] on whether our development is for all or part of the land.[325]

414 Despite being shown this letter, Mr Haines did not concede that the two sales were independent.[326]

415 I have formed the view that, on the evidence before the Court, the sale of the Coram Land was going to proceed whether or not the Permanent Trustee Land sale occurred. This is not the same as suggesting that there was an interdependency. There may have been a commercial attraction on the part of AFT to the additional land, but that is not the same as being interdependent. The sales were negotiated and concluded independently.

416 AFT, having purchased the Coram Land, could have developed it without the Kingston Land. They were already fully committed to the Coram Land purchase. This was clearly the case from at least 25 March 1983, when the above letter was written, and this proved to be true when that the Coram transaction did indeed settle. The Previous Claimants and AFT took a period of weeks following the Coram settlement to continue negotiations and settle their own transaction. Either party could have withdrawn at any point during that time, and if that had occurred there might today be a much smaller industrial park sitting to the East of Boundary Road, Dingley, and perhaps no McDonalds there. But the transactions and negotiations would still have been independent.

417 It was a significant plank of Mr Haines' evidence that the Coram Land was not a reliable indicator of market value. He did not analyse this sale as part of his comparable sales analysis.

418 Mr Haines, in his Kingston 1983 valuation report, indicated that there were three key reasons for not doing so:[327]

(a) that Mr Lawson had been the agent for the vendors in the transaction;

(b) that the sales of the Permanent Trustee Land and the Coram Land were interdependent; and

(c) the difference in the prices paid in respect of the Coram Land and the Permanent Trustee Land.

419 Mr Haines described the Coram Land as lacking "the significant and highly desirable road frontages and corner location which is a positive attribute" of the Permanent Trustee Land. I cannot accept that this is an accurate description of the Coram Land, given the grounds upon which AFT considered the Coram Land more valuable, as included in the 25 March 1983 AFT letter[328] and Mr Keck's 1984 Kingston Report[329] (extracted and discussed above at [399]-[401]). Those contemporaneous documents, among other matters, indicate that the Coram Land had better road access with less service road work required for industrial development.

420 Mr Keck in oral evidence stood by his opinion that the price paid for the Coram Land being greater than that of the Permanent Trustee Land was justified:

... truthfully, no, because it's a much larger site, it's not adjoining to the AMP subdivision... where there's a adjoining benefit and activity to be taken advantage of. The circumstances were different.[330]

421 Mr Haines also accepted in cross‑examination that the Coram Land should be valued at a higher rate than the Permanent Trustee Land[331] (however, he did not express any view as to what an appropriate premium or relativity would have been). Additionally, the handwritten letter dated 11 April 1983 authored by Mr Kingston accepted all relevant points made by AFT in the 25 March 1983 letter.[332]

422 It is difficult to conclude that the relative prices paid for the Coram Land and the Permanent Trustee Land were anything other than reflective of market value, when the whole of the evidence is considered.

423 Finally, having concluded that the evidence of Mr Keck should be preferred over that of Mr Haines (on the basis of the various detailed matters considered above), I must consider whether the calculation of the B values based on Mr Colson's valuations should be preferred above all.

424 Whilst Mr Colson was not called to give evidence, the circumstances of that course was partially explained by his advanced age and the time elapsed since his retirement. That said, his valuation (like that of Mr Keck) was made at a time significantly more contemporaneous with the relevant date than Mr Haines. Importantly, his assessment did form the basis of the Previous Payments. This demonstrates the high‑level of credibility of that valuation, given that significant public money (in '1984 dollars') was being paid by way of compensation and thus that valuation was required to be authorised by the Valuer‑General's Office. The transparency of this approach, including the recording on the title of the subject land of the compensation, demonstrates its objectivity as a matter of public record.

425 Further, whilst Mr Colson's reports do not detail whether he utilised the direct comparison approach or another valuation methodology, this is not symptomatic of any flaw or that a reliable approach was not used. The level of sophistication and detail as to methodology set out in the valuation reports completed by Mr Colson and Mr Keck in the mid‑1980s is, understandably, not the same as what might be expected in 2023. The level of transparency and recording on the analysis has changed over time. Given the reliance placed on his reports by the Valuer‑General's Office, Mr Colson can reasonably be presumed to have utilised sufficient methodology in his valuations. Further, his assessment was not challenged by the Previous Claimants and the claims settled on the basis of his assessment of value.

426 Evidence of the care that Mr Colson took to ensure he produced a considered and comprehensive valuation can be seen in the records from mid‑1984. At a conference held on 2 July 1984, Mr Colson and Mr Keck met and discussed their respective valuations. At this point, Mr Keck had completed his detailed valuations and provided his figures, which are recorded in the minutes of the meeting, however Mr Colson had not yet finalised his process. It is recorded that Mr Colson had "carried out investigations" and that "his assessment would be fairly close" to Mr Keck's.[333] Approximately five weeks later, at a further meeting (the attendees of which included Mr Colson, Mr Lawson, Dr William Kingston, Mr David Kingston, and Mr Callander) Mr Colson explained that he had completed his valuation and provided his figure in respect of the loss on sale claim, which was slightly lower than Mr Keck's.[334] It is evident that Mr Colson took time within that five-week interim to independently consider his valuation and to arrive at a figure that was different to Mr Keck's.

427 However, ultimately the valuations of Mr Colson and Mr Keck are very similar, and hold essentially equal weight in terms of their contemporaneousness. On one hand, Mr Colson's reports formed the basis of the Previous Payments. On the other hand, Mr Keck was available to give evidence and the evidence he gave was persuasive. In this sense, I am compelled to treat the Colson and Keck valuations with the 'benefit of the doubt approach' encapsulated by Rigby and the Commissioner case (see above at [140] and [141]). Those authorities indicate that matters of doubt in assessments of compensation should be resolved liberally in favour of the dispossessed landowner.

428 Mr Keck's assessment of value was marginally more favourable in respect of the Kingston Land, and Mr Colson's valuation was more favourable in respect of the Jomaring Land. Accordingly, I shall adopt these valuations for the purposes of the respective B value in each proceeding.

429 The Claimants' alternative B values, as discussed above at [322], were calculated based on two propositions:

(a) That the Permanent Trustee Land was as valuable as the Coram Land (i.e. $54,215 per hectare); and

(b) The Jomaring Land was worth 30% more than the Permanent Trustee Land (i.e. 30% more than $54,215 per hectare which is $70,478 per hectare).

430 I have already determined, on the basis of the documentary evidence and the oral evidence of Mr Keck, that the Permanent Trustee Land was not more valuable than the Coram Land. In rejecting that first proposition, the second calculation is rendered nugatory as it is contingent upon the first.

431 I am not persuaded that the market reconstruction approach undertaken by Mr Haines should be preferred over that of the two valuers who actually valued the land almost contemporaneously with the previous relevant dates, particularly as the Keck and Colson valuations were very similar, with the Colson valuations forming the formal basis of compensation paid to the Previous Claimants. No doubt, it is a truism that all valuation assessments must be done retrospectively. That said, the valuation which is conducted closest to the time of the relevant date must have greater veracity, all things being equal. This proposition is inevitably amplified in situations such as this, where there are two valuations conducted at almost the same date in proximity to the relevant date, and the opposing evidence (of Mr Haines) is a reconstruction of the market almost 40 years later.

432 As noted above, the fact that the 1980s valuations were (expectedly) less detailed than the modern norm does not in my view diminish the authenticity of those earlier valuations. The information available as a matter of public record in 2023 is more extensive. However the identification of potential comparable sales remains the starting point, as it did in 1983 and as it is in contemporary times. Equally, a deep understanding of the market, the range of potential vendors and purchasers, the economic environment, and in general what might be described colloquially as 'a nose to the ground', are all parts of a valuer's toolbox. Mr Keck and Mr Colson possessed all of those advantages in the context of the previous relevant dates.

433 I hold significant disquiet in my assessment of the instructions given to Mr Haines; instructions which were of the odour of an allegation that the Permanent Trustee Sale was not arm's length due to the role of Mr Lawson and which plainly influenced Mr Haines' assessment to an irreversible extent. I harbour significant disquiet as to the shifting sands of the approach taken by the Claimants to the withdrawal of those instructions at the eleventh hour.

434 I also am concerned by the decision not to call Mr Kingston, the only person who may have been able to provide direct evidence of the circumstances which had been alluded to but then withdrawn. He was potentially the closest witness, who had the ability to provide contemporaneous evidence. The only witness who was involved in a contemporaneous way, albeit as a consultant valuer, was Mr Keck. Whilst he did not have any direct recollection of conversations or enquiries that he made, his valuation stands as a contemporaneous record and ought to be given significant weight.

435 The expected and preferred approach to retrospective assessments in the valuation industry is clear - contemporaneous reports are preferred and retrospective assessments should be done by valuers who were qualified at the relevant time, where that is possible. Consequently, I am of the view that the valuations ascribed by Mr Colson and Mr Keck to the market value of the Kingston Land and the Jomaring Land, at the time of the Previous Payments, represent reliable assessments of market value for the purposes of the B values in these proceedings. Both valuations were conducted at a time much more contemporaneous with the previous relevant dates.

436 I am not satisfied that there is any evidence that could persuade me that the sale of the Permanent Trustee Land was a forced sale or otherwise compromised, such that it could not be considered a true arm's length or Spencer sale. Additionally, I am satisfied that the parties were aware of the Coram Land sale price and that both of these sales represented the market value respectively.

437 I conclude that the valuations undertaken by Mr Keck and Mr Colson are to be preferred over that of Mr Haines. In so far as there is a difference in the valuation undertaken by Mr Keck and Mr Colson:

(a) Mr Keck's valuation should be preferred in the Kingston proceeding; and

(b) Mr Colson's valuation should be preferred in the Jomaring proceeding.

438 As discussed, the marginal difference in the Keck and Colson valuations is to be resolved by affording the more generous compensation payment in each proceeding.

439 Therefore, in the Kingston proceeding, I adopt the alternative B values contended for by the Authority based on the valuation of Mr Keck. In the Jomaring proceeding, I adopt the Authority's primary B values based on Mr Colson's report, the calculation of which is explained above at [327]-[329].

Determination of the 'Prescribed Amount' in Each Proceeding

441 The prescribed amount in the Kingston proceeding is $10,954,863. That amount is calculated as follows:

442 The prescribed amount in the Jomaring proceeding is $21,126,352. That amount is calculated as follows:

443 I have found that s 41(5) of the LAC Act is engaged in these proceedings, such that the compensation payable in respect of the present acquisitions (the relevant date being 29 March 2019) should be reduced due to the Previous Payments received by the Previous Claimants in 1984. Those were payments of compensation made pursuant to the relevant legislative framework such to engage that provision, due to the continuation by way of enactment of the legal rights and obligations under the TCP Act in the form of the P&E Act.

444 I have determined that there are no hindrances to the operation of s 41(7) of the LAC Act, by reason of construction or otherwise, and therefore a prescribed amount can be determined for the purposes of the reduction set out in s 41(5).

445 Upon a consideration of all of the evidence before me - particularly on the documentary evidence, on the evidence of Mr Keck and of Mr Haines, and on the veracity that can be attributed to those testimonies respectively - I have determined the appropriate prescribed amounts to be factored in for each of the proceedings.

446 Applying ss 41(5) and 41(7) of the LAC Act, in respect of these two proceedings I find that:

(a) The claimant Mr Kingston is entitled to $1,112,943 in compensation as follows:

- $10,954,863 (prescribed amount based on Mr Keck's valuation)

(b) The claimant Jomaring Pty Ltd is entitled to $1,126,635 in compensation as follows:

- $21,126,352 (prescribed amount based on Mr Colson's valuation)

447 Orders shall be made accordingly. I shall hear the parties on the final form of orders and in respect of costs.

The following table sets out the provisions of the TCP Act, as it stood immediately prior to the February 1988 legislative events, and what (in the Court's view) occurred in respect of each provision on 16 February 1988.[335]

Where modifications are noted, those modifications were understandably modifications to varying extents.

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed with right to amend planning schemes enacted

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Significant impact by new P&E regime, but existed under TCP

Repealed with right to amend planning schemes enacted

Absorbed into new planning scheme system per s 8 P&E Act

Repealed and re‑enacted in P&E Act (w modifications)

Minister to prepare scheme on default by municipality

Absorbed into new planning scheme system per s 8 P&E Act

Preparation of planning scheme by Minister (overriding power)

Agreements with authorities for preparation of schemes

Repealed and redundant (see P&E Act ss 204 and 207)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

RA may refuse to consider application (more information)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Notice given or published in accordance with order or scheme

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Determination after appeal against failure to issue permit

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

When permits deemed to be issued after appeal (re IDOs)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Persons convicted of certain offences not to hold permits

Repealed and re‑enacted in P&E Act (w modifications)

Modification of provisions of this Act in case of certain schemes

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Application of Local Government Act

Proof of existence and contents of orders and schemes

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Power to sell superfluous land to contiguous owners in certain cases

Compensation for damage resulting from schemes and orders

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Power of RA to require removal etc of certain buildings etc

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Application of Local Government Act

Repealed and re‑enacted in P&E Act (w modifications)

Partially repealed with aspects re‑enacted (w modifications)

Partially repealed with aspects re‑enacted (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Continuation of schemes when municipal district altered

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Repealed and re‑enacted in P&E Act (w modifications)

Conservation and enhancement of designated buildings

Repealed and re‑enacted in P&E Act (w modifications)

[1] Joint Memorandum of Counsel (filed 24 July 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria) ('Joint Memorandum').

[2] Being parcel 25 on Roads Corporation Survey Plan SP23743, depicted at Court Book (filed in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), doc 469, 6027 ('CB').

[3] Being parcels 23 and 26 on Roads Corporation Survey Plan SP23743, depicted at CB, n 2, doc 470, 6028.

[4] Filed 16 February 2021 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria.

[5] Filed 26 March 2021 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria.

[6] In particular, the Joint Memorandum filed by the parties on 24 July 2023 (n 1) sets out their agreement as to the market value of the Acquired Land (for the purposes of s 41(1)(a) of the LAC Act) and the amounts payable in relation to pre‑referral professional expenses (for the purposes of s 41(1)(a) of the LAC Act).

[7] A copy of the cancelled Certificate of Title for this property, as described in Volume 04461 Folio 106, was provided at CB, n 2, doc 228, 5179.

[8] A Mr Bennett owned a small 2 acre parcel to the north‑west of the Coram land.

[9] These registrations can be seen on the Certificate of Title, n 7.

[14] It should be noted that this is an atypical zoning which had very limited application, applying only to the lands in question and the surrounding lands. 'Garden Industry' was not defined in the Planning Scheme at the time; whereas more common types of industry zoning, such as 'Light Industry' and 'Rural Industry' were defined in Clause 2. Clause 2 also listed all types of 'Industrial Zone' and all types of 'Business Zone' but did not list Garden Industrial in either of these definitions.

[15] CB, n 2, doc 130, 8685 (segment of map extracted).

[17] Ibid, doc 133, 8687 (segment of map extracted).

[18] Ibid, doc 271, 5346 (map coloured for emphasis).

[19] Ibid, doc 233, 5201 (map coloured for emphasis).

[20] The Transfer instrument (at CB, n 2, doc 234, 5202) is dated 30 March 1981, however the transfer is recorded as Dealing J414892 dated 8 April 1981 on the Parent Title (see CB, n 2, doc 228, 5180).

[22] The Transfer instrument (at CB, n 2, doc 255, 5285) is dated 29 May 1986, however the transfer was not affected until after the subdivision had occurred.

[24] Ibid, doc 258, 5291 (the image above at (d) combines these two plans).

[25] The Transfer instruments (at CB, n 2, docs 262-264, 5301-5306) are dated 20 July 1986, however the transfer was not effected until the following year.

[27] Ibid, doc 17, 1532 (map coloured for emphasis).

[28] Being the land in Certificate of Title Volume 9526 Folio 099 (now cancelled).

[30] Graphic comprised of CB, n 2, doc 246, 5245 and doc 274, 5357 (coloured for emphasis).

[31] See above at [31]. Map derived from Survey Plan 16315, CB, n 2, doc 404, 5722.

[34] Ibid, doc 87, 4807. The estimate of value is in the form of a letter and not as a detailed report.

[37] Ibid, 5518. This required Board approval to be given by 1 December 1982 but it was not given until 21 December 1982 - see doc 342, 5531.

[53] Being that described in the Certificate of Title Volume 8224 Folio 984.

[57] However, it should be noted that any estate agent or other fees included in the sale price are not known to the parties or the court, and this could alter the price per acre slightly. As discussed at footnote 39, estate agent fees were included in the price for the Permanent Trustee Land.

[60] Melbourne Metropolitan Planning Scheme, Planning Scheme Ordinance (as at Reprint 10, dated 22 December 1982), cl 7, table s 17B, col 3.

[61] The Melbourne Metropolitan Board of Works ('MMBW') was the relevant planning authority prior to the introduction of the Planning and Environment Act 1987 (Vic).

[70] Ibid, doc 381, 5655 and doc 382, 5659.

[71] Ibid, doc 378, 5652 and doc 379, 5653.

[86] Ibid, doc 383, 5663 and doc 384, 5666.

[96] 'Joint Statement of Agreed Facts', filed 14 October 2021 in David Ronald Kingston v Head Transport for Victoria (S ECI 2020 04458, Supreme Court of Victoria), [14] ('Kingston Agreed Facts').

[105] Kingston Agreed Facts, n 96, [35].

[107] Town and Country Planning Act 1944 (Vic), s 7 ('TCP Act 1944').

[111] Town and County Planning Act 1961 (Vic) ('TCP Act 1961'), s 17.

[115] Stuart Morris, Land Acquisition and Compensation: Proposals for New Land Acquisition & Compensation Legislation: Report to the Minister for Planning (Ministry for Planning Victoria, 1983) ('Morris Report').

[116] Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1986, 2015 (JH Kennan, Minister for Planning and Environment) ('LAC Second Reading').

[118] This became Part 5 on the final draft of the Act.

[119] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1986, 670 (Frank Wilkes, Minister for Housing).

[120] Victoria, Parliamentary Debates, Legislative Assembly, 26 February 1987, 171 (Ian Cathie, Minister for Education).

[122] Most of the provisions came into operation on 16 February 1988, with Part 1 and s 204 of the Act commencing when the Act was assented to on 27 May 1987.

[123] Planning and Environment Act 1987 (Vic) (as originally enacted), s 205 and sch item 131. The latter reads:

The whole Act is repealed except sections 1, 3, 27A, 49(lA), 49(1B), 49(lC), 49A(1), 49A(lA), 49A(2), 49C to 49O and the Fourth Schedule.

[125] Amendment marked/emphasis added.

[126] Amendment marked/emphasis added.

[127] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259, [29]; Secretary to the Department of Economic Development, Jobs, Transport & Resources v Manor Lakes (Werribee) Pty Ltd [2017] VSCA 114; (2017) 224 LGERA 195 [VSCA], [24]-[25].

[128] See e.g., Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1994 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 ('Alcan').

[129] [2017] HCA 34.

[130] Ibid, 14 (Kiefel CJ, Nettle and Gordon JJ).

[132] [2012] VSC 427, [28] ('Rigby').

[133] [1947] HCA 10; (1947) 74 CLR 358 ('the Commissioner case').

[135] Kajag Pty Ltd v Head, Transport for Victoria [2023] VSC 392, [28] ('Kajag').

[136] Kenny & Good Pty Ltd v MGICA [1999] HCA 25; (1999) 199 CLR 413, [49]-[50].

[137] Valuation of Land Act 1960 (Vic), s 5A; see e. g. Rigby, n 132, [14]; ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447 (VSCA), [41].

[140] Claimants' Written Outline of Closing Submissions (filed 15 August 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), [3] ('Claimants' Closing Submissions').

[142] LAC Act, s 52; penalty rate applicable under the Penalty Interest Rates Act 1983 (Vic), which has been 10% since 1 February 2017.

[144] Including the commission of the estate agent Mr Lawson.

[145] Claimants' Outline of Opening Submissions (filed 30 July 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), [93] ('Claimants' Opening Submissions').

[150] See for example in s 42(4) of the Town and Country Planning Act 1961 and in s 102(1) of the Planning and Environment Act 1987.

[151] Transcript of Proceedings (Supreme Court of Victoria, S ECI 2020 04458 and S ECI 2020 04463, Quigley J, 2-17 August 2023), 87, lines 12-20 ('Transcript').

[153] Claimants' Opening Submissions, n 145, [98].

[154] Ibid, [99], citing Victoria, Parliamentary Debates, Legislative Assembly, 8 May 1986, 2015 (JH Kennan, Minister for Planning and Environment).

[155] Claimants' Opening Submissions, n 145, citing Morris Report, n 115, [55].

[156] Outline of Opening Submissions of the Respondent (filed 28 July 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), [30] ('Respondent's Opening Submissions').

[157] Claimants' Opening Submissions, n 145, [103].

[158] Ibid, [107], citing Explanatory Memorandum, Planning and Environment Bill 1987 (Vic), 3.

[163] Ibid, [113]. The third reason, (c), will be addressed in detail below where s 41(7) is analysed.

[164] 'Respondent's Outline of Closing Submissions' (filed 15 August 2023 in S ECI 2020 04458 and S ECI 2020 04463, Supreme Court of Victoria), 'Schedule', 41-45 ('Respondent's Closing Submissions').

[166] The relevant provisions in the TCP Act are ss 41(1) and 42(1)(c). The equivalent provisions in the P&E Act are ss 98(1) and 98(2).

[167] The relevant provisions in the TCP Act are ss 42(2) and 42(5). The equivalent provisions in the P&E Act are ss 99 and 106.

[168] The relevant provision in the TCP Act is s 42(6). The equivalent provision in the P&E Act is s 104.

[170] 'Legislation and Regulations', Department of Transport and Planning, (Web Page, 14 June 2023) .

[171] Department of Planning and Community Development, 'Modernising Victoria's Planning Act: A discussion paper on opportunities to improve the Planning and Environment Act 1987 (Vic)' (March 2009), 55.

[173] [2016] VSCA 342; (2016) 51 VR 581 ('Mitchell').

[175] (2019) 59 VR 556.

[176] Applying ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 and Mitchell, n 173.

[177] Ibid, [36] (Maxwell ACJ, T Forrest and Emerton JJA).

[181] Year corrected as mistranscribed.

[182] This aspect of the legislative history is detailed above at [113]-[117].

[183] Land Acquisition and Compensation Bill 1986 (Vic), cl 41(5) (emphasis added); the version of the Bill accessed via Austlii is Revision No. 4 dated 8 May 1986.

[184] Further to this, in my view, when Parliament realised that the LAC Act was ready to go but the P&E Act was not, and realised that s 41(5) when it first commenced would only be capable of picking up previous compensation under the TCP Act, the draft was amended to refer as such. Then, when preparing for the commencement of the P&E Act, it was realised that s 41(5) would need to be amended to refer to the P&E Act. I note, however, that I cannot conclusively infer this and that it does not bear on the decision I have made.

[185] LAC Second Reading, n 116, 2013 (emphasis added).

[187] [2011] VSC 96, [18] (emphasis added);

citing: Director of Buildings and Lands v Shun Fung Ironworks Limited [1995] 2 AC 111, 125; Waters v Welsh Development Agency [2004] UKHL 19; [2004] 1 WLR 1304, 1307; Transport for London (formerly London Underground Limited) v Spirerose Limited [2009] UKHL 44; [2009] 1 WLR 1797, 1822;

quoting: Horn v Sunderland Corporation [1942] 2 KB 26, 49.

[188] CB, n 2, doc 397, 5701 (advice from Mr C Canavan QC and Mr T Callendar).

[191] Claimants' Opening Submissions, n 145, [138].

[194] Claimants' Closing Submissions, n 140, [56],[58] (also repeated partly at [32].

[195] 'Joint Statement of Agreed Facts' filed 14 October 2021 in Jomaring Pty Ltd v Head Transport for Victoria (S ECI 2020 04463, Supreme Court of Victoria), [29].

[196] Kingston Agreed Facts, n 96, [30].

[197] CB, n 2, doc 391, 5680 and doc 403, 5719.

[198] Respondent's Closing Submissions, n 164, [24]-[27].

[199] CB, n 2, doc 89, 4812; doc 90, 4825; doc 91, 4840; doc 92, 4845.

[200] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70] (McHugh, Gummow, Kirby and Hayne JJ).

[201] I. e. those objectives discussed above at [230].

[202] The A values (agreed by the closing of the trial) were calculated by reference to the amount of compensation actually paid to the Previous Claimants, applying the same value per hectare to the portions of land that were actually acquired. The C values were calculated utilising the 'before and after' approach set down in s 41(3) of the LAC Act, and this agreement was recorded in the Joint Memorandum dated 24 July 2023 (n 1).

[203] CB, n 2, doc 89, 4812; doc 90, 4825; doc 91, 4840; doc 92, 4845.

[204] The direct comparison approach is a common land valuation method which involves analysing the sales of comparable properties occurring in a similar time period, in order to determine the market value of a given property. This process relies on the determination of a market value per hectare.

[205] Mr Colson's 1985 valuation reports were reports based on his market assessment undertaken for the purposes of the previous compensation claims. On the face of the reports it is not possible to identify the comparable sales used or the methodology adopted. However, the assessments were the unchallenged valuations of market value at that time for the purposes of compensation which were accepted as the basis of the claims paid. This is discussed further below at [423]-[428].

[206] Claimants' Closing Submissions, n 140, [69], [72].

[207] Respondent's Closing Submissions, n 164, [45]-[46].

[209] Hence there is no uniform rate and an approximate is shown in the table above.

[210] Respondent's Opening Submissions, n 156, [70]-[72].

[211] Respondent's Closing Submissions, n 164, [45].

[212] CB, n 2, doc 65, 4722-4738; and doc 66, 4739-4750.

[213] Mr Haines contended however that, around the relevant date, details of comparable transactions tended to be more opaque, as today's searchable databases did not exist.

[217] CB, n 2, doc 60, 4359-5360, and doc 65, 4728-4730.

[220] Transcript, n 151, 348-349, lines 21-1.

[224] Transcript, n 151, 302, lines 23-24.

[232] Transcript, n 151, 343-344, 28-10.

[234] CB, n 2, doc 60, 4345, 4355, and doc 61, 4373 and 4379.

[235] Ibid, doc 60, 4347-4348, [16]-[20], [32]-[34].

[236] Transcript, n 151, 489, lines 20-27.

[237] CB, n 2, doc 60, 4347, [16]-[20]; Transcript, n 151, 481, 482, 489.

[238] Transcript, n 151, 481, lines 12-16.

[241] See e. g. Transcript, n 151, 502, 503, 530.

[242] CB, n 2, doc 89, 4816; Transcript, n 151, 456, lines 26-27.

[243] Transcript, n 151, 286-287, lines 12-9.

[244] Ibid, 419-420, lines 30-2; CB, n 2, doc 65, 4732.

[245] Transcript, n 151, 664-665, lines 26-1.

[246] Ibid, 685, lines 5-29. Mr Haines' further views on this are detailed at CB, n 2, doc 66, 4746-4747.

[252] Ibid, doc 60, 4360, and doc 65, 4734.

[254] See Ibid, doc 65, 4734, where Mr Haines states that these different rationales can be seen at [97]-[109] of his Kingston report and [102]-[114] of his Jomaring report.

[257] See Transcript n 178, 265, lines 5-12.

[259] Claimants' Closing Submissions, n 140, [110]. The version of the table located in the Submissions is more detailed, providing alternative or adjusted figures for more of the properties. Whilst the table presented here is not reproduced in the same detail as that annexed to the Claimants' Closing Submissions, it is a useful summary of the key sales in contention.

[262] Respondent's Opening Submissions, n 156, [65].

[270] The relevant dates for the purposes of the valuations and the date of the valuation were not at precisely the same time but were done within 12 months and were done much closer to the relevant dates than the valuations undertaken by Mr Haines, which were done some 40 years after the relevant date.

[272] Photographs of the subject land and the surrounding developed land as at 2022/2023 were produced in the Claimants' opening - see also CB, n 2, docs 592-603, 10455-10466 (added to the Court Book in a supplementary bundle).

[273] Transcript, n 151, 314-338, particularly 323 and 337, lines 14-26.

[275] Ibid, 319, lines 12-15, and 323, lines 13-18.

[277] Ibid, 323, lines 19-25, and 337-338, lines 28-5.

[278] Ibid, 317, lines 6-11, confirmed again at 335, lines 1-5.

[279] Australian Property Institute, Property Institute of New Zealand, and New Zealand Institute of Valuers, 'Technical Information Paper - Retrospective Valuations (ANZVTIP 1)' (1 January 2020), extracted at CB, n 2, doc 589, 7149.

[281] Respondent's Closing Submissions, n 164,

[282] Transcript, n 151, 283, lines 4-6.

[285] Respondent's Closing Submissions, n 164, [106].

[287] Melbourne Metropolitan Planning Scheme ('MMPS'), Reprint No 10 (22 December 1982), 51, Table to cl 7, s 17B, col 4.

[288] See Ibid, 49 and 50, Table to cl 7, ss 16 and 17, col 4 of each.

[289] MMPS, Reprint No 11 (14 December 1983), 28, cl 5E(2)(g).

[290] MMPS Reprints No 10 and 11 (n 276 and n 278), Table to cl 7, s 17B, col 3.

[291] Both definitions can be found on 7-8 (at cl 2(1)(a)) of both MMPS Reprints No 10 and 11.

[295] Transcript n 178, 688, lines 7-13, and 354, lines 7-12.

[298] CB, n 2, doc 344, 5533; being a letter from Mr Thomas Callander of Rigby & Fielding to Mr David Kingston dated 7 March 1983, where Mr Callander observed "it is very difficult to predict just how ... planning scheme ordinance changes may be effected".

[300] Transcript, n 151, 300, lines 12-16.

[304] [2004] NSWCA 353; (2004) 135 LGERA 98, [489].

[305] [1999] HCA 25; (1999) 199 CLR 413.

[306] Ibid, [49]-[50] (McHugh J), quoting Spencer, n 269, 441 (Isaacs J).

[307] Transcript, n 151, 303, lines 2-18.

[308] Ibid, 636, lines 5-6, and 684, lines 13-14.

[310] Ibid, doc 337, 5518. This required Board approval to be given by 1 December 1982 but it was not given until 21 December 1982 - see doc 342, 5531.

[316] See e. g. : doc 358, 5585, being the Request to the Minister (per s 42(5) of the TCP Act) dated September 1983, at paragraph (d); doc 370, 5620, being the Notice of Claim for Compensation dated 27 January 1984, at [5]; doc 374, 5633, being the Notice of Amended Claim for Compensation dated 27 March 1984, at [5]; and doc 396, 5696, being Mr Callander's brief to Mr Canavan of counsel dated 7 August 1984, also at [5].

[320] [1959] HCA 8; 101 CLR 298.

[321] Respondent's Closing Submissions, n 164, [80].

[322] Transcript, n 151, 684, lines 11-24.

[326] Transcript, n 151, 343-344, lines 28-24.

[330] Transcript, n 151, 614, lines 17-21.

[335] Noting that item 131 to the Schedule to the P&E Act provided:

The whole Act is repealed except sections 1, 3, 27A, 49(1A), 49(1B), 49(1C), 49A(1), 49A(1A), 49A(2), 49C to 49O and the Fourth Schedule.

And noting that Prostitution Regulation Act 1986 (Vic) ('the PR Act') impacted sone of these remaining provisions.

[336] Being Reprint No. 8, which was the applicable version immediately prior to 16 February 1988.

[337] As first enacted 16 February 1988.