ROADS AND TRAFFIC AUTHORITY v HURSTVILLE CITY COUNCIL

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40389/99 LECt 30207/98 MASON P SHELLER JA POWELL JA

Friday 16 February 2001 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v HURSTVILLE CITY COUNCIL

The appellant compulsorily acquired land from the respondent under the Land Acquisition (Just Terms Compensation) Act 1991. The respondent rejected the market value figure of $157,000 calculated by the Valuer-General, and brought proceedings in the Land and Environment Court to have the market value of the land assessed at $750,000.

Talbot J determined the market value of the land to be $400,000. This is an appeal to have the determination set aside for error of law.

HELD by Mason P (Sheller and Powell JJA concurring), upholding the appeal:

No error of law was made out on the basis that Talbot J failed to take statutory restrictions on the use or sale of land into account when determining the market value of the land.

His Honour was not obliged in law to apply a valuation method which identified comparable market transactions (leases and licences) and determined the value of the acquired leasehold interest by analysing those transactions. In this case the actual income stream derived from leases and licences of the park would not be helpful. Compensation could be assessed at a premium rental derived from the capital land value.

His Honour erred in law by finding that the respondent enjoyed financial advantage incidental to its ownership of the park capable of giving rise to a claim for special value. The argument that special value arose because the respondent would pay a higher rent in order to retain the use of the land than lose it was circular. Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 (referred). Special value must "be something objectively ascertainable derived from the land or some attribute or property of it and cannot be recognised if it rests in mere subjective affection or emotional involvement". Bronzel v State Planning Authority (SA) (1979) 21 SASR 513 at 525 (referred).

Unnecessary to consider whether his Honour erred in law by failing to give adequate reasons for how special value was calculated.

There was no legal error in valuing the land according to alternative formulae and choosing a figure reflecting the composite conclusion. It is not necessary that every step of judicial valuations be separately justified.

Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 (referred), Bronzel v State Planning Authority (SA) (1979) 21 SASR 513 (referred), Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (referred).

Appeal upheld. 2. Set aside order 1 of the Land and Environment Court made on 4 May 1999. 3. Remit the matter to the Land and Environment Court for determination in accordance with the decision of this Court. 4. Respondent to pay appellant's costs of the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40389/99 LECt 30207/98 MASON P SHELLER JA POWELL JA

Friday 16 February 2001 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v HURSTVILLE CITY COUNCIL JUDGMENT

1 MASON P: The Land and Environment Court determined the market value of land which the appellant compulsorily acquired from the respondent. The appellant seeks to have the determination set aside for error of law. 2 I set out the first eight paragraphs of the judgment of Talbot J under appeal. They give the background and disclose the core matters addressed by the learned judge: 1. By notification dated 3 April 1998 the Roads and Traffic Authority of New South Wales (the RTA) acquired a lease over four parcels of land forming part of a larger parkland and recreational area known as Beverley Grove Park owned by Hurstville City Council.

The lease terminates after a term of four years or such earlier date as the RTA may require.

In general terms the permitted use under the lease is for the construction and support of a road, namely the M5 Motorway.

The subject lands are irregular in shape, flat level grassed areas which are currently used as playing fields, mainly soccer and cricket, and passive recreation such as walking dogs and flying kites.

The lands are zoned part 6(a) Open Space and part 9 Arterial Road Reservation under Hurstville LEP 1994.

The subject land is classified as community land. It is listed as a sports ground under the adopted plan of management.

For the purpose of assessing compensation, both parties have disregarded the Arterial Road Reservation and made their assessment on the basis of Open Space.

Community land can only be used in accordance with a plan of management. Section 45 of the Local Government Act 1993 provides that a council cannot sell, exchange or otherwise dispose of community land. There is a restricted opportunity to lease within the constraints of s46 and s47. 3 The acquisition was under the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act). The Valuer-General determined the compensation at $163,000, made up by $157,000 for market value (s55(a)) and $6,000 for loss attributable to disturbance (s55(d)). 4 The respondent rejected the market value figure and instituted Class 3 proceedings in the Land and Environment Court. It did not press its challenge relating to the disturbance factor. It did not claim special value as a discrete item, but it sought to have the market value of the land assessed at $750,000. 5 Talbot J determined market value in the sum of $400,000 (Hurstville City Council v RTA [1999] NSWLEC 100). Costs were reserved and have, I assume, never been determined. 6 The decision is final and conclusive unless there is an appeal on a question of law (see Land and Environment Court Act 1979, ss56-57). 7 The appellant raises six grounds of appeal. The respondent submits that the appeal is incompetent because the errors assigned do not exist in truth, the real complaint being factual at best. 8 At trial the respondent relied upon the evidence of Mr Dundas and the appellant relied upon the evidence of Mr Ferdinands. Each man is a registered valuer whose competence was not in issue. Each gave a supplementary report responding to the other's valuation report. There was cross-examination but its detail is not relevant to the issues raised in the appeal. 9 Both valuers agreed that compensation could be assessed at a premium rental determined at 6% of the land value capitalised for the term of the lease at 10% (cf Prince Alfred Park Reserve Trust v The State Rail Authority (1997) 96 LGERA 75). The figures involved in this formula were accepted as reasonable by Talbot J (Js16). 10 Mr Dundas also supported what he described as the most commonly accepted method of valuation of property affected by restrictive leases, ie deferral of the capital value of the property for the term of the lease. Talbot J held that the alternative formula was a reasonable check on the premium rental approach (Js19). 11 Ultimately Talbot J applied each formula to the facts as he found them (see Jss49-50). The premium rental basis produced a value of $356,600 and the deferred capital basis produced $389,800. In light of these two figures Talbot J adopted $400,000 as the value of the interest of the Council in the land over the four year term of the lease, including special value. 12 The appellant complained, somewhat faintly, about his Honour's adoption of the two formulae. Since there was unchallenged expert evidence as to the appropriateness of the formulae to the task at hand, I conclude without hesitation that no error of law is demonstrated in this portion of the judgment below. It is therefore unnecessary to consider whether it was open or preferable to value the interest resumed on a "reinstatement basis" in the sense of what it would have cost the respondent Council to have acquired alternative land for similar purposes for the four year term of the present acquisition. His Honour rejected such approach for reasons which strike me as compelling (Jss21-22, 27). None of this should be read as establishing as a proposition of law that the methods adopted by Talbot J were obligatory for the task at hand or as rejecting the reinstatement approach as a proposition of law. It is sufficient to record that there was no legal error in approaching the task according to the formulae applied by his Honour. 13 Each formula required the judicial valuer to determine the capital value of 15,000 square metres of suburban park land zoned "Open Space", classified as community land (cf Local Government Act 1993, Chapter 6, Part 2, Division 2) and used as such in the public interest. This was not an easy task for the valuers or his Honour, because there is not a large market for such land in Sydney. 14 Subject to the issue in ground 1 of the appeal which I address below, his Honour took account of the statutory restrictions applicable to the particular land. Accordingly, he approached the matter on the basis that the respondent had been deprived of the capacity to provide the public with the pre-existing facility for active and passive recreation during the period of the lease. Market value was to be determined on the basis of highest and best use. This meant that, if the parkland were to be placed for sale on the open market, it would be sold subject to the open space zoning and the statutory restrictions touching this particular community land, each of which placed significant restraints upon the exploitation of the land. It is common ground that what is to be valued in the present case is the value of the land to the respondent under the statutory conditions upon which the land was held at the time of resumption (see generally Corrie v MacDermott [1914] AC 1056 and Hornsby Shire Council v Roads & Traffic Authority of New South Wales (1998) 100 LGERA 105 at 107). 15 The respondent's valuer, Mr Dundas, originally advocated valuing the land as the price paid or payable by a statutory authority acquiring it for the purpose of open space. Applying this approach to comparable sales of residential land, he determined the value at $250/m². This is the "reinstatement basis" mentioned above. Talbot J rejected such approach because it required the Court to treat the land as something which it was not (Js27). In re-examination, Mr Dundas opined a market value of $150/m² if the valuation was approached on the conventional basis (see further below). 16 The appellant's valuer, Mr Ferdinands, pointed to a number of sales which he considered comparable for the purpose of assessing the market value of the land as open space. In the revised form of his evidence he concluded that the value of the subject site was $40/m². 17 It is convenient to set out ss37-48 of the judgment, because they contain the reasoning that led up to his Honour's determination of $125/m² as the appropriate capital land value: 37. Sales relied upon by Mr Ferdinands range from $24/m² for a sports centre at Milperra through to $50/m² paid by the National Parks Service to the Department of Health for land at Bedlam Bay for the purpose of establishing a regional park. He adopts the sale of Fraser Park at Marrickville at $48/m². However this sale included substantial improvements. He also made reference to a sale of land to Warringah Shire Council at Frenchs Forest which Bannon J had adopted as most comparable. This last sale analysed at $51.23/m².

Mr Ferdinands reduced the $48/m² achieved at Fraser Park to $40/m² to take account of improvements. This, he said, would represent a value at the higher end of the scale and would take account of the fact that the land was an actively used park. The bottom end of the scale is represented by the value determined for the Hornsby land by Bannon J at $33.23/m². However, the figure arrived at by Bannon J takes account of the discount applied for the restriction on the sale of community land.

Using $40/m² Mr Ferdinands determined an "upfront rental premium" of $36000 per annum for four years which, discounted at 10 per cent, gave a market value of $125526. This contrasts with $715000 calculated by Mr Dundas using the same method but adopting a land value of $250/m².

The Fraser Park sale took place in December 1990. Mr Ferdinands contends that there has been no appreciable change in the market value of open space land since that date. Despite the lack of evidence to the contrary, the Court finds it difficult to accept that values have not appreciated at least to some degree over the ensuing eight years.

Furthermore, the evidence discloses that the subject land is far superior to the Fraser Park land which was impacted by easements and rights of way and is surrounded by an elevated railway line which detracts from its amenity. Mr Dundas, who said he was familiar with the sale and the site, placed no value on the Fraser Park improvements in the light of subsequent events which included removal of the grandstand and conversion of the oval to another use.

In re-examination Mr Dundas expressed an opinion that, if he was forced to rely on the Hornsby case, the sale for the purposes of a recreation park from one government department to another at Bedlam Bay, and the Fraser Park sale, together with his own analysis of the Frenchs Forest sale relied upon by Bannon J, it would establish a market value for open space in the order of $150/m². This was an exercise undertaken by Mr Dundas in the witness box and has not been fully explained. However, the Court accepts that the true market value of the acquired land as open space would be something between the two valuers' figures after taking into account the superior nature of the subject site and the passage of time.

When dealing with a lease, it is appropriate to adopt the notion of a lease. It is not acceptable to directly apply the principles referable to the acquisition of freehold except for the purpose of determining the market value of the land as part of the derivation of, in this case, either the premium rental or deferred value.

In Spencer v The Commonwealth (1907) 5 CLR 418 the definition of market value was stated to be the price that a willing purchaser would, at the relevant date, have to pay to a vendor not unwilling but not anxious to sell. In Pastoral Finance Associated Ltd v The Minister [1914] AC 1083 the court expounded the principle in relation to placing special value to the owner as being the price which a prudent man would have been willing to pay for the property taken rather than lose it.

These principles may be applied directly to the present circumstances where the Court is required to determine the market value and any special value of the applicant's interest in the resumed land for the term of the lease.

The definition of "special value" in s57 of the Land Acquisition (Just Terms Compensation) Act 1991 defines it as the financial value of any advantage in addition to market value. The Court is satisfied that the council is entitled to compensation for the financial advantage it enjoyed from already owning the land rather than being forced to acquire an interest in other land at a market value not commensurate with acquisition for use as community open space.

The Court determines that there would be an element of special value to the council in that the council would pay a higher rent than market rent in order to retain the use of the land rather than lose it.

Doing the best that I can and basing my opinion on the evidence of both valuers, the Court determines that an appropriate land value for the purposes of determining a premium rental is $125/m². 18 The reference to a judgment of Bannon J is to Hornsby Shire Council v Roads & Traffic Authority, Land and Environment Court, unreported, 29 May 1996. It was affirmed on appeal: see (1998) 100 LGERA 105. 19 Starting from the capital land value of $125/m², Talbot J calculated $356,600 using the premium rental formula and $398,800 using the deferred capital value formula. The sums produced by these two methods were rounded up to $400,000, this being the market value determined by his Honour. 20 I now address the stated grounds of appeal. 1. His Honour erred in law by approaching the valuation of the resumed leasehold interest by seeking to assess the market value of the freehold of the land without regard to the statutory restrictions on the sale of the land and from that value, derive the value of the acquired leasehold interest.

21 I reject this ground. 22 Talbot J paid express and substantial regard to the statutory restrictions on the use or sale of the land (see Jss5-6, 8, 18, 22-27, 29, 30, 34). These affect value determined according to the conventional approach derived from Spencer v The Commonwealth (1907) 5 CLR 418 set out in s56 of the Just Terms Act. 23 The nub of the appellant's argument on ground 1 relates to statements in the last sentences of ss36 and 38 of the Judgment. In s36, after citing Corrie v McDermott, Talbot J said: The relevant value is the value to the owner while taking into account the effect of restrictions on disposition. The principles established by that decision and other authority cited by Bannon J are relevant only to the determination of market value of land where the whole of the fee simple is acquired. Paragraph 38 of the judgment is set out in the extract quoted in par 17 above. 24 In these passages, Talbot J appears to distinguish the valuation principles stated and applied by Bannon J in Hornsby Shire Council on the basis that the task in Hornsby Shire Council involved valuing the fee simple. This is curious, given that this was the very task at hand in light of the formulae accepted by Talbot J. Perhaps his Honour was endeavouring to restate the point that the Council's actual returns were not determinative (cf Js34.) The present case was on all fours with Hornsby Shire Council when it is recognised that the task immediately at hand was the determination of the capital land value of community land. The fact that this value was then to be applied to the two formulas for valuing the leasehold interest acquired in the present case is neither here nor there. The two sentences are difficult to understand, particularly in light of the many contrary indications in the judgment to the effect that the task at hand was determining the capital land value of comparable community land subject to an "Open Space" zoning. 25 Ultimately I have concluded that his Honour understood and applied such an approach in the determination of $125/m² as the appropriate capital land value. There are many indications in the judgment that the statutory restrictions were taken into account. An error of law must vitiate the operative determination before it will ground an appeal (Minister Administering the Crown Land Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249). 26 On this first ground of appeal, each side sought to draw comfort from s42 of the judgment (set out at par 17 above). The appellant submitted that this paragraph proved that his Honour valued the land disregarding the statutory restraints under which it was held by the respondent at the time of resumption. He submitted that the "two valuers' figures" mentioned at the end of s42 should be read as "Mr Ferdinand's $40/m² and Mr Dundas' $250/m²". I disagree. I read the first sentence of s42 as an acknowledgment that Mr Dundas re-did his figures in light of the principles in Hornsby Shire Council and thereby derived a market value in the order of $150/m². This was his ultimate opinion as to the true market value of the acquired land as open space, and it was this figure to which his Honour was referring in the final sentence of s42. On this reading of s42 of the judgment, ground 1 is not made good, notwithstanding the unfortunate and quizzical statements in ss36 and 38 expressing reluctance to apply principles stemming from Hornsby Shire Council. 27

2. His Honour, having regard to the findings of facts which he made, erred in law by failing to apply the method of valuation which identified comparable market transactions, in this case leases and licenses, and after analysis, determined the value of the acquired leasehold interest by an analysis of those transactions

28 I reject this ground. 29 Talbot J was not obliged in law to proceed in this manner. Both valuers accepted that compensation could be assessed at a premium rental derived from the capital land value, according to the formulae mentioned above. There was good reason to reject as unhelpful the actual income stream derived by the respondent from leases and licenses of Beverley Grove Park (see Js12, Blue AB 239-40). The respondent was understandably subsidising community organisations by declining to charge rental or licence fees that were even commensurate with its actual maintenance costs. Talbot J recognised this at Jss18 and 30. The willing but not anxious hypothetical buyer may have been more hard-nosed, even if forced to operate under the statutory constraints. 30 His Honour also held that it was inappropriate to make the direct comparison which Mr Dundas, the respondent's valuer, drew with commercial returns from other categories of land, because this produced a rent out of all proportion to a realistic expectation from this class of property. The Local Government Act and the particular plan of management imposed very significant restrictions (see Blue AB 65-66). This is indeed further proof that his Honour kept his eye on the statutory restrictions touching the particular land. 31 3. His Honour erred in law in that having regard to the facts as found he could not have held that the Respondent was entitled to any amount by way of special value within the meaning of the Land Acquisition (Just Terms Compensation) Act 1991.

4. His Honour erred in law, having regard to his findings of fact, in that the value he determined for the land was not reasonably open to him.

5. His Honour erred in law by deciding that part of the loss to the Respondent was the benefit or right to exploit the land for use by members of the public as public open space without charge.

32 The argument relating to those three overlapping grounds focused upon ss45-47 of the judgment. It is convenient to set them out again. 45. These principles may be applied directly to the present circumstances where the Court is required to determine the market value and any special value of the applicant's interest in the resumed land for the term of the lease. 46. The definition of "special value" in s57 of the Land Acquisition (Just Terms Compensation) Act 1991 defined it as the financial value of any advantage in addition to market value. The Court is satisfied that the council is entitled to compensation for the financial advantage it enjoyed from already owning the land rather than being forced to acquire an interest in other land at a market value not commensurate with acquisition for use as community open space. 47. The Court determines that there would be an element of special value to the council in that the council would pay a higher rent than market rent in order to retain the use of the and rather than lose it. 33 Three preliminary comments should be made, before turning to the appellant's challenge. 34 First, it is I think clear that his Honour was purporting to find that the land had "special value" in the technical sense (cf Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 252 [216], 253 [222] per Callinan J). 35 Secondly, the finding of special value played a part in the determination of an appropriate land value of $125/m² that is stated in the next succeeding paragraph of the judgment (Js48). That figure became the basis of the present value of the premium rental (expressed by his Honour as "$356,600 including special value: Js49) and the determination of $389,800 as deferred capital basis value (Js50). The matter is put beyond doubt in the ultimate paragraph of the relevant portion of the judgment: 51. The Court adopts $400,000 as the value of the interest of the council in the land over the four year term of the lease, including special value.

36 Thirdly, there is no ground of appeal complaining that special value should have been addressed as a separate item, segregated in money terms from the composite $400,000 market value determination. I am not suggesting that any such complaint would have been upheld had it been pressed (cf Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 188). The appellant did not need to press any such complaint because it suffices for its purposes if it makes good the proposition that there was error in law in concluding that this land had some special value to the Council. As indicated above, it is clear that such conclusion was made part and parcel of the ultimate reasoning stated in ss48-51 of the judgment. 37 As developed in argument, the attack on ss46 and 47 addressed: (i) the misstatement of the definition of "special value" in s57 of the Just Terms Act ; (ii) the conclusion that the respondent enjoyed a financial advantage from already owning the land ; (iii) the relevance and correctness of the conclusion stated in Js47; and (iv) the implicit conclusion that there was special value over and above the market value already determined on the basis of highest and best use (cf Js26). 38 These criticisms overlap to a degree and each draws some strength from the other. I have concluded that there were operative errors of law in this portion of the judgment, for the reasons which follow. 39 Section 57 of the Just Terms Act defines "special value" to mean: the financial value of any advantage, in addition to market value, to the person entitled to compensation which is incidental to the person's use of the land.

40 The reference to "financial advantage" reflects the common law. In Boland at 269 [292]-[293] Callinan J referred with approval to a definition adopted by the Australian Law Reform Commission as "that additional economic advantage which the owner obtains, by reason of his ownership … and which is not reflected in the market value". See also at 254 [227]. 41 I am unable to see that the respondent enjoyed any financial advantage capable of giving rise to a claim for special value. No such claim was propounded in the initiating process in the Land and Environment Court (see RB 17 and 18). "Special value" seems to have popped its head into the case at its tail end when the portion of Mr Dundas' report in reply which had originally been rejected was reinstated (see Blue AB 138). That portion of the report said: Should it be held the subject Community Land is of some reduced value by being so classified, I am of the opinion the subject land would then have Special Value to the Council; such Special Value being the financial advantage it enjoyed owning such land in preference to the cost of acquiring other property to have classified as Community land.

42 It will be seen that this appears to have been the blueprint for s46 of the judgment, including its omission to state the full definition of "special value". 43 The revenue stream derived by the respondent from Beverley Grove Park did not even cover the Council's maintenance expenses (Js12). The zoning, the plan of management and the political constraints under which the Council held the park meant that there were no realistic prospects for redevelopment or the enhancement of financial return. Under the plan of management it was held reasonable to assume that for the whole of the term of the lease, the Council would have continued to provide the land for the authorised community purposes of open space (Js29). In these circumstances, it is impossible to detect any financial or economic advantage to the Council incidental to its ownership of the Park. 44 In s47 of the judgment, the conclusion that there was an element of special value to the Council was based upon the finding that "the council would pay a higher rent than market rent in order to retain the use of the land rather than lose it". It is likely that his Honour was stating the conclusion in this manner, in order to reflect what he had written in s44 when he said: In Pastoral Finance Associated Ltd v The Minister [1914] AC 1083 the court expounded the principle in relation to placing special value to the owner as being the price which a prudent man would have been willing to pay for the property taken rather than lose it.

See also Yates Property Corporation at 165 per Mahoney JA.

45 Mr Tobias QC further submitted that the findings in ss46 and 47 of the judgment should be read as concluding that the land had special value to the Council, not in its own right, but because (if the park were resumed) the Council would have been put under special pressure to go into the market to acquire a substitute, paying for such substitute on the basis of its value to the vendor. This seems to be the same as Mr Dundas' reasoning (par 12 above). In my view, this is no more than an attempt to reinstate the reinstatement basis of valuation that had already been correctly rejected (par 12 above). In the present context, the argument is inherently circular, as the form of Js47 emphasises. There is nothing to show that the respondent's use of the land was different from that to which other hypothetical purchasers would put it, once it is recognised that they would acquire it subject to the statutory restrictions burdening it in the respondent's hands (cf Yates Property Corporation at 165-6 per Mahoney JA). 46 If special value exists, it must, in the words of Wells J in Bronzel v State Planning Authority (SA) (1979) 21 SASR 513 at 525: be something objectively ascertainable derived from the land or some attribute or property of it and cannot be recognized if it rests in mere subjective affection or emotional involvement.

No special value of this nature was established. 47 6. His Honour erred in law by failing to give adequate reasons for his judgment.

48 Under this ground the appellant challenged the absence of reasons showing how the special value was calculated. It is unnecessary to consider this challenge, because I have concluded that such reasons as were provided reveal errors of law. 49 Secondly, the appellant complained about the absence of reasons explaining the interrelationship between Jss49-51. I think that this argument expects too much of the judicial valuer. I see no error of law in looking at alternative available ways of approaching a problem and then choosing a figure that somehow reflects the composite conclusions. Here, of course, the rounding up produced a figure outside the range of the two more specifically derived figures. But the difference is small and the failure to enunciate why rounding up was chosen, while not to be commended, is not indicative of legal error in the present case. 50 In the field of judicial valuations, the task is ultimately evaluative. Within limits, courts do not require every step to be separately justified (see generally Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 at 391, Bronzel at 523; Yates Property Corporation at 160-1, 170-2). 51 Disposition Because of the errors relating to special value the appeal should be upheld and the matter remitted to the Land and Environment Court for determination by that Court in accordance with the decision of this Court.

2. Set aside order 1 of the Land and Environment Court made on 4 May 1999. 3. Remit the matter to the Land and Environment Court for determination in accordance with the decision of this Court.

4. Respondent to pay appellant's costs of the appeal. 52 SHELLER JA: I agree with Mason P's judgment and the order proposed. 53 POWELL JA: I agree with Mason P.

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