1. In this matter, the amount of compensation payable arising from the compulsory acquisition of the acquired section of the property at 2234-2302 Western freeway, Rockbank is resolved as follows:
   • $630,000 market value payable by the Acquiring Authority to the Claimant, but then taking into account the $1,475,000 already advanced by the Acquiring Authority to the Claimant, which on a net basis requires the Claimant to re-pay $845,000 to the Acquiring Authority pursuant to Section 51(7) of the Land Acquisition and Compensation Act 1986 (Act);
   • $25,000 payable by the Acquiring Authority to the Claimant for solatium;
   • $0 payable by the Acquiring Authority to the Claimant for disturbance;
   • $36,241.62 payable by the Acquiring Authority to the Claimant, which the parties have agreed upon[1] as the applicable pre-referral legal costs and disbursements;
   • $9,350 pre-referral expert planning and valuation pre-referral expenses agreed to by the parties[2], which in practice was earlier advanced by the Acquiring Authority to the Claimant's valuer Mr Love

being on a net basis $783,758.38 to be re-paid by the Claimant to the Acquiring Authority. This amount must be repaid by the Claimant to theAcquiring Authority within 90 days of the date of these orders.

1. The repayment of this $783,758.38 by the Claimant to the Acquiring Authority must (as applicable) include any interest payable on this amount pursuant to the Act. Any such interest payable must be agreed between the parties or, failing agreement, to be determined by the Tribunal.
2. Costs reserved.
3. Any application for costs must be made in writing (including supporting submissions) and filed with the Tribunal and served on the other party within 60 days of the date of this Order.

Mr P Chiappi of Counsel, instructed by Garland Hawthorne Brahe lawyers. Mr Chiappi called the following evidence:

• expert traffic engineering evidence from Ms Kate Partenio;
• expert planning evidence from Mr David Whitney;
• expert valuation evidence from Mr Robert Baird; and
• lay evidence from the Roads Corporation officer Mr Don Purdue.

Mr P Barton of Counsel, instructed by Pearce Webster Dugdale lawyers. Mr Barton called the following evidence:

• expert traffic engineering evidence from Mr Russell Symons;
• expert planning evidence from Ms Teresa Coldebella;
• expert valuation evidence from Mr John Love; and
• lay evidence from the Claimant Mr Anthony Longo.

1. This is an Application to the Tribunal under Section 80 of the Land Acquisiton and Compensation Act 1986 (Act) for it to resolve an offer of compensation made by Roads Corporation to the Claimant Mr Anthony Longo for the purchase of the relevant section of the property at 2234-2302 Western Freeway in Rockbank ("subject land").
2. While we do not need to repeat the full detail of the background to this dispute, a summary follows.

1. The subject land as at the 18 December 2006 acquisition date was vacant grazing-type land, facing on to the western highway/freeway. There is a mild slope of the review site down to the north-west. As at the date of acquisition:
   • the subject land had a water bore/water connection and electricity/telephone connection was readily available[3];
   • the only improvements to the subject land were a small set of old timber stockyards "in a poor and unworkable condition"[4].
2. The area of the whole title prior to the date of acquisition was 11.734 hectares and Mr Longo has owned the site since 1980. The review site lies on the north-west corner of the intersection of the Western highway/ freeway (which runs roughly east-west) and the northern section of Leakes Road (which runs roughly north-south and as at the acquisition date extended from the north down to the freeway and then continued further south on the other side of the freeway). The freeway is a four lane divided road with a 100kph speed limit and relatively heavy traffic levels. Leakes Road is a sealed two-way rural road. As at the acquisition date, an at-grade opening of the freeway at this intersection enabled a driver coming down from the north to cross over to the southern section of Leakes Road on the opposite side of the freeway, or turn east or west on to the freeway (and vice-versa for a driver coming up Leakes Road to the freeway from the south). The small township of Rockbank lies on the opposite (south) side of this section of the freeway.
3. Following the earlier creation in April 2006 of a Public Acquisition Overlay whose area the subject land came within, on 18 December 2006 a Notice of Acquisition by the Acquiring Authority of 7.909 hectares of the subject land was gazetted. In practice the acquired area was purchased to assist in the re-alignment of Leakes Road on both sides of the freeway, which in turn has enabled the construction since the date of acquisition of a north-south vehicle bridge over this section of the freeway.
4. In terms of the "after" situation, Mr Longo has retained ownership of two parcels of land, being:
   • a parcel to the east of the re-aligned Leakes Road, with an area of 5,700 sqm; and
   • another parcel to the west of the re-aligned Leakes Road with an area of 3.825 hectares.

1. The subject land was affected by a Public Acquisition Overlay which was gazetted in the Melton Planning Scheme on 6 April 2006. This was exhibited as a proposed rezoning in October 2004 and went ahead despite an objection being lodged by Mr Longo as part of the associated hearing process.
2. The Acquiring Authority then wrote to Mr Longo on 28 December 2006, enclosing a copy of the Notice of Acquisition together with the requisite accompanying Statement. On 18 January 2007 it wrote to Mr Longo offering $645,000 compensation for the acquired land, enclosing a Certificate of Valuation dated 18 December 2006. Although this Valuation actually valued the acquired land at $630,000, it was explained that the extra $15,000 was an inclusion intended to be an allowance for valuation and planning expenses.
3. Mr Longo requested an advance on the $645,000. An agreement to this effect was signed on 8 February 2007 and we understand actioned soon afterwards.
4. On 8 March 2007 the Valuer-General signed a second Certificate of Valuation of the acquired land, valuing it at $1,460,000 as at the date of acquisition. A Roads Corporation letter dated 2 May 2007 sent to Mr Longo enclosed this second Certificate and in summary indicated that since making its first offer, the Roads Corporation had received further planning advice and was prepared to offer the sum of $1.46 million, less the $645,000 already advanced. This revised offer was otherwise expressed to be on the same terms and conditions as the first one.
5. On 7 May 2007 Mr Longo wrote back to the Roads Corporation, stating that he did not accept the revised offer, but requested an advance of the additional $830,000 (which was apparently paid soon afterwards).
6. On 21 November 2007 Mr Longo signed a Response to Offer form. In essence, Mr Longo through this document rejected the revised offer and claimed $2,165,774.85 total compensation for the acquisition of the relevant land. The breakdown of this figure is $1,591,020 claimed for market value, solatium at 10% and $343, 620.61 compensation for disturbance.
7. Further more routine correspondence followed.
8. More significantly, on 21 February 2008 the Roads Corporation's lawyers wrote to Mr Longo's lawyers advising that the $1.46 million offer of compensation of 18 January 2007 was revoked, with the fresh offer being $657,600. It was indicated that this figure constituted $630,000 basic compensation, plus $12,600 solatium and $15,000 allowance for legal, valuation and other like expenses.
9. On May 2008 the Roads Corporation paid $9,350 to Mr John Love, being the valuer acting for Mr Longo. Part of this payment in practice was for the costs of the town planner assisting Mr Longo, being Ms Teresa Coldebella.
10. On 8 November 2011 Roads Corporation commenced this proceeding at the Tribunal.

1. After an initial conference and various case management by the Tribunal, this proceeding came before us as a three day hearing over 13-15 February 2013.
2. At the beginning of the hearing, Mr Barton (Counsel for Mr Longo):
   • advised that Mr Longo still wishes to accept the above-mentioned $1.46 million compensation offer made earlier in the process;
   • argued that this offer was legally still operative ie it was not legally open to the Roads Corporation to seek to revoke the $1.46 million offer, noting that these monies had in reality been advanced to Mr Longo;
   • urged the Tribunal to take the view that if the $1.46 million offer was still on foot, and with the offer being accepted through Mr Barton's submissions at the beginning of the hearing, there was no longer any dispute to be resolved and the Tribunal should simply make orders confirming the acceptance of the $1.46 million offer;
   • sought an immediate Tribunal ruling to this effect.
3. In response, Mr Chiappi indicated that he had received no prior notice of this request, and that he was quite unprepared to make any proper immediate response. Hence he opposed the Tribunal making any immediate ruling on this issue, but indicated that he would be in position to provide a proper response by the third (final) allocated hearing day. Following this approach, Mr Chiappi urged the Tribunal to let the hearing move forward in the usual way.
4. After considering these submissions, Member Martin ruled that it would be unreasonably prejudical to the Roads Corporation for Mr Chiappi to be expected to make immediate submissions in response, given the complete lack of notice to Mr Chiappi. However it was confirmed that Mr Chiappi needed to respond to this issue on the final hearing day (which he did).
5. After the provision of this ruling, Mr Barton then alternatively sought an adjournment of the hearing. For the reasons provided orally at this point, the Tribunal heard from both advocates on this issue and ruled that no convincing case for an adjournment had been provided by Mr Barton, in the situation where both parties were otherwise ready to run the hearing in the usual way.
6. Over the balance of the three days of hearing time, we heard submissions from Mr Barton for the Claimant and from Mr Chiappi for the Roads Corporation. We received the expert and lay evidence from the witnesses listed above. By agreement, any lay evidence was received on a sworn basis, whereas expert evidence was not.
7. Soon after the hearing we conducted a site inspection of the review site and surrounding Rockbank area. We also (to the extent practicable) inspected the two other comparable sale sites referred to in the Valuation Statement by Mr Love.
8. For the reasons set out in detail below, our overall findings have been that:
   • It was lawful for the Roads Corporation to have earlier revoked its $1.46 offer. Hence we do not accept Mr Barton's contention that this offer was still 'on the table' at the beginning of the hearing.
   • We do not see any credible case that as at the date of acquisition, the highest and best use of part of the review site was as a freeway service centre. Hence we accept that it is the correct approach for the valuation of the review site to simply disregard this "freeway service centre" aspect and instead value the whole of the acquired land on a 'rural use' basis.
   • The assessment of compensation by the Acquiring Authority's Valuer is preferred, as this assessment of compensation is based on the above finding that the whole of the acquired land, in the 'Before' and 'After' scenario, should be assessed on a rural use basis.
   • Whilst we accept that the Claimant is entitled per se to claim, conceptually, for any 'blight on the land' that is the direct result of the acquisition, the Claimant cannot claim for potential increases in interest rates prior to exhibition of the amendment to the planning scheme. In addition the Claimant (as part of any "disturbance" claim) is required to properly substantiate changes in interest rates that may have negatively impacted on his financial situation, in a manner that the Acquiring Authority and the Tribunal can verify. As this evidence has not been presented, we have made no adjustment for "disturbance".
   • Solatium has been assessed at $25,000 for intangible and non-pecuniary disadvantages resulting from the acquisition.

1. As at the acquisition date, the review site was zoned Green Wedge Zone under the Melton Planning Scheme. We refer to our comments above regarding the site as this time also being affected by a Public Acquisition Overlay, noting however that in the 'Before' valuation scenario, this Overlay is disregarded because it is part of the process that led to the acquisition.
2. Pursuant to this zoning, Clause 35.04 of the Planning Scheme in the usual way sets out those uses which are as-of-right, subject to permit and prohibited. A "Freeway service centre" is listed as a "subject to permit" use, albeit on the condition that "Must meet the requirements of Clause 52.30". Clause 52.30 is the stand-alone scheme provisions dealing with freeway service centres.
3. At the beginning of Clause 52.30 the purposes of that clause are set out as follows.

To ensure that freeway service centres are appropriately designed and located.

To ensure that access to a freeway service centre from a freeway is designed to the requirements of the Roads Corporation.

To ensure that freeway service centres with access to a rural freeway provide only essential services and facilities which encourage drivers to stop and take an effective break at appropriate intervals in the interests of driver safety.

To ensure that any new freeway service centre meets an identifiable need to provide essential services and facilities along a freeway where those services and facilities are not readily available.

To ensure that the use of land for a freeway service centre does not adversely affect the amenity of the surrounding land uses.

1. The next section of Clause 52.30 is 52.30-1, being "Requirements to be met". There is then three sub-headings, being "Facilities and services", "Access to freeway service centres" and "Metropolitan freeway service centre adjoining a residential zone". The final provision is Clause 52.30-2, being "Decision guidelines", with the more relevant one being that the decision maker (in this case the Tribunal) must consider the "Freeway Service Centres Design Guidelines, May 1997".
2. In relation to the text under the "Access to freeway service centres" sub-heading, two more relevant aspects in summary are that:
   • It is provided that "No vehicular access between a freeway service centre with access to a metropolitan freeway and a local road network may be permitted".
   • A permit cannot be granted for a freeway service centre (FSC) unless approval for access has been granted by the Roads Corporation.
3. As mentioned during the hearing, keeping in mind that the Roads Corporation here is wearing two hats of "statutory road authority" and also an acquiring authority, we have taken an objective rather than a subjective approach to how we assess the permission required under this second bullet point ie would a reasonable road authority have approved a FSC for the purposes of this hearing under Clause 52.30?

1. Section 80 of the Land Acquisition and Compensation Act 1986 (Act) provides as follows.

(a) apply to the Tribunal for determination of a disputed claim in accordance with this Act; or

(b) refer to disputed claim to the Court for determination in accordance with this Act."

1. The operation of the jurisdiction of the Tribunal compared to the courts is set out at Section 81 of the Act, and the relevant criteria for awarding costs re set out at Section 91.
2. In terms of the "Determination of the Claim", Section 89 of the Act relevantly provides the following.

"(1) On an application or referral of a disputed claim under this Part, the Tribunal or Court is to determine the amount of compensation in accordance with this Act to be paid in respect of the claim and may make any orders necessary to give effect to that determination."

1. In relation to the "Principles to be applied in determining compensation", Section 90 of the Act provides as follows.

"In determining the compensation payable the Tribunal or the Court is not bound by the exercise of any discretion of the Authority or by any opinion or determination of the Authority, but must determine the compensation payable in the particular circumstances of the case having regard to the provisions of the Act."

1. Section 94 of the Act provides that the sum awarded as compensation by the Court or Tribunal must be paid within one month after the sum awarded has been determined.
2. Part 4 of the Act (Sections 40 to 45) is the key part of the Act in setting out the basic framework for assessing the compensation payable here. In particular , Section 41(1) sets out the following process for assessing compensation.

"Except as otherwise provided for in this Part, in assessing the amount of compensation payable to a claimant in respect of an interest in the land which is acquired under this Act, regard must be had to the following factors-

(a) the market value of the interest on the date of acquisition;

(b) any special value to the claimant on the date of acquisition;

(e) the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the implementation of the purpose for which the land was acquired;

(f) any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition of the interest".

1. We also found helpful and have set out below the following text from paragraphs 11- 14 of Roads Corporation opening written submissions:
   1. ...Section 41(3) requires, if less than the whole of the land in which the claimant's interest subsists is acquired, market value to be determined on a before and after basis.
   2. Section 43(1)(a) requires that any increase or decrease in the market value arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired is disregarded. Section 43(1)(d) requires that any restriction upon use or development imposes by or being a consequence of the reservation of the land be disregarded.
   3. In this case, the purpose for which the interest was acquired was the construction of "the Leakes Road and Western Freeway interchange identified in both the Government's 2001 Outer Western Suburbs Transport Strategy and Western Highway (M<8/A8) Corridor Strategy as important to improve safety and traffic flow on the Western Freeway" - as stated in the explanatory report for Amendment C43 to the Melton planning scheme.
   4. The Application of ss.43(1)(a) and (d) is that the purpose of construction of the interchange is to be dis-regarded in the assessment of the market value of the land.
2. With respect to the need for a "Before" and "After" assessment here pursuant to Section 41(3) of the Act, we adopt the helpful statement of the Tribunal in Moore v Roads Corporation [2008] VCAT 838 that:

Whilst regard may be had to events subsequent to the acquisition date as confirming or tending to confirm the foresight that a hypothetical purchaser would have had at the relevant date, care must be taken not to impute the hypothetical purchaser with hindsight of events not reasonably within his or her knowledge or expectation at that time...

1. We are also conscious of the definition of "Market value" from Section 40 of the Act, which is "...the amount of money that would have been paid for that interest if it had been sold on that date by a willing not not anxious seller to a willing but not anxious purchaser".

1. Council relied on the valuation evidence of Mr Robert Baird, who valued the acquired land at $630,000 as the date of acquisition. Mr Baird submitted a written valuation report, inclusive of numerous annexures. A summary of his assessment is as follows:
   • On page 7 of Mr Baird's Valuation Report under "General Comments" it is stated that the instructions provided by VicRoads were to assess compensation "...on the assumption that planning approval for a Service Station would not be forthcoming in the 'before scenario'".
   • Mr Baird assessed the highest and best use of the whole land title area (11.734 ha) in the 'Before' scenario as being for a rural use. He applied a value of $60,000 per hectare to the total 'Before' land area, being 11.734 hectares. The allocated 'Before' value on this basis is $705,000;
   • In the "After" situation, the residual land compromises two land areas, a 3.255 ha piece of land and a severed 0.57 ha piece of land, equating to a total residual land area still owned by Mr Longo of 3.825 hectares. Mr Baird applied in the 'After' sitaution a rate per hectare of $60,000 to the 3.255 ha piece of land, reduced by 65% and a rate per hectare of $60,000 to the 0.57 ha piece of land, reduced by 80%. The valuation of the two pieces of land in the 'After' scenario was calculated at $229,500 less $154,305 for items of severence, equating to $75,195, rounded to $75,000.
   • Mr Baird off-sets this $75,000 against the original $705,000 figure, so as to reach his compensation assessment of $630,000. This is apportioned as being $474,500 for the value of the land acquired, and $155,500 for severance.
   • We have attached as Annexure 2 to this decision the Schedule of "Comparable sales" relied upon by Mr Baird, taken from page 8 of his report.

1. Mr Longo relied upon the valuation evidence of Mr Love, who valued the acquired land at $1,591,020.
2. Mr Love's Valuation Report relies on the town planning advice from Ms Coldebella. In particular, it is stated on page 7 of the Valuation Report that:

Town planning advice from Ms Teresa Condebella indicates that it is highly likely that a permit for a Service Centre would have been approved.[5]

1. Mr Love's valuation proceeds on the basis that the highest and best use of the subject land (Mr Love assume three hectares would be required) is for a FSC in the 'Before' scenario.
2. Following this approach, on page 8 of his report, Mr Love's basic approach is as follows:
   • he assumes 3 hectares would be used for a FSC, with this particular area being valued at $1,261,275;
   • he also assumes the balance area of 8.734[6] hectares should have a "rural lifestyle" type highest and best use, with Mr Love allocating a value of $55,000 per hectare. Following this approach, Mr Love valued this balance area at $480,370[7];
   • the combined (corrected for the typo) "Before" value then comes to $1,741,645;
   • Mr Love then values the 3.825 hectares of residual land in the "After" situation at $25,000 per hectare, giving him a total "After" value of $95,625;
   • When the "Before" and "After" values are reconciled, Mr Love's opinion (corrected for the typo) is that the overall compensation payable is $1,646,020.
3. Mr Love relies on the following two sales, both of which were conditional on the granting of a permit for a FSC:
   • The 1267-1291 Beattys Road property (with freeway frontage), which compromises a land area of 4.033 hectares and which was granted a planning permit for a FSC. The property sold in August 2006 (conditional upon gaining FSC planning permission) for $650,000. It is common ground that this FSC permit has been extended so as to still be a live permit, although our site inspection where we drove along Beattys Road confirmed that there was no sign of construction commencing at that time.
   • 789-1793 Western Highway, Rockbank (with freeway frontage) comprises a land area of 12.97 hectares, sold for $1.7 million[8] subject to a FSC permit being granted. We took note of the general location of this property when driving past it, each way along this section of the freeway. We were told at the hearing that a FSC permit for this site was issued, but then lapsed.
4. No other sales evidence was provided by Mr Love. Mr Love's report analyses both of the abovementioned sales and then he provides this analysis to the subject property. A rate of $55,000 per hectare was applied to that part of the acquired land which Mr Love expected to be used for rural purposes in the 'Before' scenario. However Mr Love did not provide any sales evidence to substantiate how he arrived at this figure.

Findings of Tribunal - is Roads Corporation still bound by its earlier $1.46 million compensation offer?

1. As mentioned above, the preliminary legal issue raised by Mr Barton on behalf of the Claimant is whether or not the Roads Corporation is still bound by its earlier $1.46 million offer, in the situation where Mr Barton advised at the beginning of the hearing that Mr Longo wished to accept that offer. For the reasons already explained above, we did not allow any adjournment on this basis, but instead allowed Mr Barton to present his submissions on the first hearing day and Mr Chiappi's submission in response on the third hearing day. There were also final "rights of reply" at the end of the hearing.
2. The findings on this issue are made by Member Martin alone, as the Presiding Legal Member.

1. The most important statutory provision relied upon by Mr Barton on this issue is Section 31(8) of the Act, which reads as follows.

(8) To the extent that an amount of compensation offered under this section, or any part thereof, is not disputed, the amount offered is binding upon the Authority unless the Authority can demonstrate that the information contained in the offer and relied upon by the Authority in making the offer was incorrect".

1. In brief, Mr Barton's submission that the Roads Corporation is still bound by its earlier $1.46 million offer flows from his following points. It is noted at this point that Mr Barton did not pursue any general _'_estoppel' type argument, but more focussed on the following features of the Act that he saw as favouring his case.
2. First, his reliance upon the contents of Section 31(8).
3. Second, his submission about what Mr Barton sees as the inter-connected nature of the relevant provisions of the Act. Following this approach, it is common ground that Mr Longo by way of his Response to Offer dated 21 November 2007 rejected the $1.46 million offer and instead claimed $2,165,774.85 pursuant to Section 33(1)(b) of the Act. Mr Barton submits that when the Roads Corporation then rejected this higher amount and repeated its $1.46 million offer pursuant to Section 36(2)(c), this choice of Section 36(2)(c) (ie. instead of 36(2)(a) or (b)) in turn ties the Roads Corporation into Section 36(9). Section 36(9) provides that:

To the extent that the claimant rejects the revised offer of the Authority, or the Authority rejects the claim by the claimant, the claim becomes a disputed claim for the purposes of the Act.

1. Mr Barton argues that given this inter-connection and how events have unfolded here, the net result is that Section 36(9) makes the Roads Corporation obliged to treat the higher $1.46 million offer as the "disputed claim", such that this was the disputed amount when the Tribunal hearing commenced and the Roads Corporation was bound to accept Mr Barton's acceptance of that offer when the hearing began.
2. Third, even if (contrary to Mr Barton's "inter-connected provisions" submissions) the Tribunal was to give weight to Section 36(6) of the Act, Mr Barton argues that 36(6) only allows an upwards revision of an offer, not a downwards one. Section 36(6) reads as follows:

(6) Subject to Section 106(1), if the Authority offers to increase or vary the compensation previously offered, the claimant must within two months after the date of service of this revised offer-

1. Mr Barton submitted that Parliament's choice to use both of the words "increase or vary" in 36(6) when it could have simply used "vary" creates a reasonable inference that the word "vary" does not allow for any downwards revision of an offer. It is claimed that the relevant text of Justice Gobbo at page 213 of Coastal Estates v Shire of Bass [1994] VicRp 13; [1994] 1 VR 210 supports this line of thinking.

1. In response, Mr Chiappi's written submission disputes this position and emphasises that:
   • Mr Longo never accepted any part of the earlier $1.46 million offer, but rather claimed the higher amount of $2,165,774.85.
   • Section 31(8) does not apply to the $1.46 million offer, since that was the second not the first offer by the Roads Corporation, and 31(8) only applies to the initial offer[9]. In the alternative, even if the provisions of Section 31(8) do prima facie apply to the situation here, Mr Chiappi argued that the earlier $1.46 million offer was in reality overtaken at a later point by the revised offer of $645,000 ie. Section 31(8) does not 'stop the clock' but merely applies to whatever is the current offer.
   • Where Section 31(3) of the Act required the Roads Corporation to make a "fair and reasonable" assessment of the compensation payable, the reality of the situation was that after making the higher offer, the Roads Corporation then received updated planning advice from Mr Whitney which caused it (in a fair and reasonable way) to revised its offer back down to $645,000.
   • Mr Chiappi in his oral submissions disputed Mr Barton's preferred interpretation of the words "increase or vary" in Section 36(6) of the Act.

1. Turning now to the Tribunal's findings, the Tribunal finds that the Roads Corporation was not bound by its earlier $1.46 offer at the time of the beginning of the Tribunal hearing. Rather, the Tribunal accepts that the $1.46 million offer was made redundant when the Roads Corporation made its more recent offer of $645,000. The Tribunal relies upon the following points in reaching this conclusion.
2. The reality is that nowhere in the Act does it expressly say that the acquiring authority cannot revise its initial offer downwards. If this was Parliament's intent, it could have spelt this out clearly in the Act, but did not do so. This in itself counts significantly against Mr Barton's position on this issue.
3. Section 51(9) states "An amount of compensation paid to a person under subsection (8) shall not prejudice the final settlement or determination of the amount of compensation payable to that person under this Act". This section in the Tribunal's view gives weight to the possibility that a final amount of compensation may be less than a previous offer under advancement.
4. In relation to Section 31(8) of the Act, whilst at a glance it is helpful for Mr Barton's position, nowhere does 31(8) go on to say that any earlier offer made remains binding on the acquiring authority. Rather, the Tribunal considers it a reasonable inference that either:
   • Section 31(8) only applies to an initial offer, relying on the fact that the Section 31 provisions lie under the heading (with the Tribunal's emphasis) of "Initial offer of compensation"; or in the alternative
   • where multiple offers of compensation have been made pursuant to Section 36(6) of the Act, the contents of Section 31(8) only apply to the most recent offer.
5. The opening words of Section 31(8) begin with the following qualification - "To the extent that an amount of compensation offered under this section, or any part thereof, is not disputed...". That Mr Longo was disputing the whole of the compensation offered to him is reinforced by the fact that Mr Barton's Preliminary Submission at page 2 paragraph 9 acknowledges that Mr Long's Response to Offer dated 21 November 2007 featured the statement that "I dispute the amount of compensation which the Roads Corporation has offered and claim the sum of $2,165,744.85 for compensation...".
6. In relation to the contested interpretation of the words "increase or vary" in Section 36(6) of the Act, the Tribunal is unconvinced by Mr Barton's suggestion that the word "vary" for the purposes of this proceeding only means "vary upwards". To suggest that the average person on the street would see the word "vary" as excluding the possibility of adjusting downwards is surely straining common sense and credibility.
7. The Tribunal's difficulty with Mr Barton's preferred interpretation of "vary" is reinforced by the following definition of that word from the 2nd Edition of the Macquarie Dictionary:

"Vary" - 1. to change or alter, as in form, appearance, character, substance, degree etc. 2. to cause to be different, one from another. 3. to diversify (something); relieve from uniformity or monotony... etc.

1. Of the 10 possible meanings given to "Vary" in this dictionary, none exclude downwards adjustments.
2. Where Mr Barton sought to argue that the Parliamentary choice of both "increase" and "vary" supports his case, the Tribunal sees the opposite as applying. Where the word "increase" has already been utilised, the better view seems that utilising the second word of "vary" indicates a Parliamentary intent to have flexibility both upwards and downwards. If the only intent had been to allow for upwards revisions, why bother using another other word beyond "increase"?
3. To take the approach that Section 36(6) effectively locks in any acquiring authority to only ever make upwards adjustments to their earlier offer(s) also seems hard to reconcile in terms of how day to day compensation negotiations can unfold. Surely it is reasonable for any one acquiring authority to be able to make a revised lower offer pursuant to Sections 31(3) and 36(6) if new information comes to hand which reasonably points to the proper compensation value being lower than initially thought.
4. Where Mr Barton sought to rely on the Coastal Estates case to bolster his position on this issue of interpretation, the Tribunal sees the quoted passage from page 213 of that decision as very inconclusive for the purposes of this issue. Whilst it is true the language used at page 213 refers to an offer being increased, nowhere does it go on to say that Section 36(6) excludes the possibility of a downwards revision of an earlier offer.
5. In relation to Mr Barton's "inter- connected provisions" line of argument, the Tribunal considers this to be ultimately speculation on Mr Barton's part, which carries minimal weight. There is nothing in the legislation itself (nor did Mr Barton provide us with any caselaw) which substantiates the alleged connections between the provisions which Mr Barton sought to promote. Rather, this seems an extremely optimistic attempt to leverage off a "the knee bone is connected to the thigh bone, the thigh bone is connected to the hip bone" line of thinking.
6. While Mr Barton did not particularly pursue the issue, for the record we do not see anything particularly turning on the fact that the full $1.46 million has in practice been advanced to Mr Longo on an interim basis. It should have been clear to Mr Longo that the parties were still very much in dispute regarding the compensation payable and hence the interim advance was very much subject to any final adjustments (up or down). Indeed, Section 51(7) of the Act makes it clear that if the interim payment is more than the final amount of compensation determined, then the balance is a debt due to the acquiring authority.

Findings of Tribunal - in the "Before" situation, what is the highest and best use of the subject land?

1. The Tribunal sees the key single issue in this proceeding as being whether or not the "Before" valuation of the subject land should have been done on the basis that for at least some of the subject land at the date of acquisition, a freeway service centre (FSC) was the highest and best use of that land.

1. The Claimant's case in brief is that:
   • The expert traffic engineering evidence of Mr Symons is that as at the date of acquisition, there were three feasible roadworks treatments/options of the northern side of the freeway/Leakes Road intersection that would still have allowed for the development of a FSC on the review site. The first option involves a modified at-grade roundabout being constructed, the second involves the freeway median strip being closed at this location, whereas the third involves a half-diamond being constructed on the eastern side of the intersection as part of a new north-south bridge. With options 1 and 2, vehicles east-bound along the freeway would directly enter the hypothetical FSC off the freeway, then get back onto the freeway via Leakes Road. The third option would involve the same entry arrangement but assumes that land is purchased on the eastern side of Leakes Road (north of the freeway), to create a new east-bound on-ramp back to the freeway.
   • On the strength of this traffic advice and having regard to the applicable planning framework, the Claimant's planner Ms Coldebella considers that it is "possible and likely"[10] that a FSC would have received planning approval on the review site.
   • On the strength of this traffic and planning advice, Mr Love's valuation proceeds on the basis that 3 hectares of the review site should be assumed to have received planning approval as a FSC i.e. that is the highest and best use for these three hectares. Hence, Mr Love's valuation assigns a much higher valuation figure for these three hectares in the "Before" scenario, with the balance of the review site being valued on a much lower "rural lifestyle" basis.

1. In response, the Roads Corporation's case in summary is that:
   • Its traffic engineer Ms Partenio considers that as at the date of acquisition, there were strong indications that any reasonable road authority considering potential works to the northern side of the Leakes Road/freeway intersection would be looking for a longer term solution, not a short-term approach. In this regard, Ms Partenio relies on the 2001 strategic road planning document[11] which indicates a strategic intent over the longer term to upgrade Leakes Road to a north-south arterial road (Ms Partenio's evidence was that such an upgrade in turn required a grade-separation for this intersection). Ms Partenio otherwise relies upon the fact that this intersection by 18 December 2006 had already since about the year 2000 been listed as a "black-spot" high-risk intersection, together with this location being part of a seven kilometre stretch of the Western freeway having the status of an "accident blacklength"[12].
   • Following this approach, Ms Partenio considers it unrealistic and fanciful to contemplate any reasonable road authority as at 18 December 2006 approving Mr Symons option 1, given her view that an at-grade roundabout treatment would effectively be a "band aid solution" where this was already a black-spot rated intersection and an "accident blacklength" section of the freeway. In other words, Option 1 would just make an already bad road safety situation worse.
   • With respect to option 2, Ms Partenio saw it as very unlikely any reasonable road authority would have approved same as at the date of acquisition, as option 2 would cut Leakes Road in half, which would be contrary to the stated strategic intent for Leakes Road to over time be upgraded to a north-south arterial road ie so as to have an important through-traffic role in the longer term.
   • In relation to option 3, Ms Partinio's view is that it would be very difficult if not unviable to build the bridge and create the half-diamond contemplated under option 3 without altering the alignment of Leakes Road further to the west, given the likely major impacts on the existing commercial businesses and/or dwellings abutting Leakes Road on the southern side of the freeway.
   • For these reasons, Ms Partenio's conclusion at Section 4.1 of her report is that "The Claimant's land is not of a suitable configuration and generally appropriate for the development of a FSC, being adjacent to Leakes Road which prevents the ability to provide a freeway standard exit from the FSC". The balance of her conclusion reinforces her "the site is unsuitable for a FSC" finding with reference to the blackspot/blacklength issue, the fact that the boundary of the review site facing the freeway is too short to provide full length free entry and exit ramps clear of the Leakes Road intersection, and the anticipated exacerbated traffic safety risks with option 1 if a FSC on the review site attracted more traffic which in turn had to utilise an already problematic at-grade roundabout.
   • Relying on this traffic engineering advice from Ms Partenio, the Road Corporation's planner Mr Whitney saw this advice as strengthening the reservations he had already expressed in his earlier written reports (notably his document of 26 June 2008) that a proposed FSC on the review site would "...have difficulty in satisfying the guidelines[13] in respect of both 'separation' and 'need'". In relation to the "separation" and "need" aspects, Mr Whitney was essentially referring to the negative planning consequences for the review site which he saw flowing from the fact that the Beattys Road site only 5 km or so further west had by the date of acquisition already received Council support[14] for the planning consent for a FSC, bearing in mind that east-bound cars along this northern section of the freeway would pass this Beattys Road property before getting to the subject land (not the other way around).
   • This is in the situation where Section 4.1 of the Freeway Service Centre Design Guidelines 1997 sets out a preferred separation distance between FSCs of at least 50 kms. On this basis, Mr Whitney supported the approach taken by the Roads Corporation of valuing the review site in the "Before" scenario on the basis of the site's rural use, rather than on the assumption that permission for a FSC could be obtained.
   • Relying on this traffic and planning advice, the Road Corporation's valuer Mr Baird took the approach that it was appropriate to value the review site in the "Before" scenario on the assumption that there was no credible prospect at all of a FSC being approved on the review site. That is to say, the "highest and best use" of the whole of the acquired land is simply for rural purposes.

1. Putting to one side for the moment traffic engineering considerations and simply assessing the degree of likely planning support for a FSC on the review site in the "Before" situation, we see several negative factors for the Claimant.
2. First, we accept that the fact that Council had resolved to grant planning permission for a FSC on the Beattys Road site about five kilometres to the west of the review site counts significantly against the Claimant. Indeed, in the course of her cross-examination Ms Coldebella conceded that this Beattys Road FSC approval constituted a "significant risk" to the prospects of any FSC approved for the review site as at the date of acquisition. With it being clear that Council had formally resolved through a Notice of Decision to Grant a Permit to issue the Beattys Road FSC permit by 18 December 2006, we see little turning on the fact that the actual permit issued two days after that date.
3. A further consideration is that under the 1997 FSC Design Guidelines which are a reference document under Clause 52.30, the preferred interval for FSCs along Victorian freeways is at least 50 km. While we acknowledge and accept that real weight should be given to the Claimant's submissions and evidence that by 18 December 2006 the Roads Corporation was already taking a quite relaxed approach to the preferred separation distance, we nevertheless take the view that:
   • Even if the Roads Corporation by 18 December 2006 were taking this relaxed approach, any proposal for a FSC on the review site had to be approved by Council (whose Planning Dept might not automatically be so relaxed) and was likely to be contested at VCAT by the Beattys Road site owner. In a review situation at the Tribunal, similarly it is not clear how the Tribunal would regard this "preferred separation distance of at least 50 km" benchmark - it is possible the Tribunal might have still given it some weight.
   • Regardless, the purposes of Clause 52.30 include a requirement to consider the issue of "identifiable need" ie To ensure that any new freeway service centre meets an identifiable need to provide essential services and facilities along a freeway where those services and facilities are not readily available. This consideration of "identifiable need" counts against the Claimant, because the Beattys Road site where Council had by the date of acquisition resolved to grant FSC approval is not only a very short distance away (about 5 km) but in the more advantageous position in terms of east-bound passing traffic. In fact, we are unaware of any other freeway location in Victoria where two FSCs on the same side of the freeway have been approved only 5 km apart from each other[15].
4. Third, we also accept that it significantly counts against the prospect of the review site gaining planning approval for a FSC as at the review date that Mr Symons' options 1 and 2 require vehicles using a hypothetical FSC on the review site to exit via a local road. Even Option 3 involves a FSC customer needing to cross over Leakes Road to get to the entry ramp leading back on the freeway east bound. We refer here to the Clause 52.30 provisions including the design preference that "No vehicular access between a freeway service centre with access to a metropolitan freeway and a local road network may be permitted". This reinforces the basic limitation to the review site for FSC purposes that:
   • it is located on a corner location, rather than on an ordinary section of the freeway; and
   • its frontage to the freeway is too short to enable normal entry and exit ramps off and on the freeway, without overlapping with the Leakes Road intersection.
5. Turning now to the traffic engineering evidence of Ms Partenio compared to Mr Symons, we find Ms Partenio's evidence more persuasive. To avoid duplication, we refer to the various problems she identified with Mr Symons' options 1, 2 and 3 in reaching her conclusion that "The Claimant's land is not of a suitable configuration and generally appropriate for the development of a FSC, being adjacent to Leakes Road which prevents the ability to provide a freeway standard exit from the FSC".
6. In contrast to our finding that Ms Partenio's conclusions are strongly based on a rigorous assessment of the shortcoming of the site for a FSC as she has indicated, we find Mr Symons' attempts to justify the possibility of a FSC being approved as at the date of acquisition (ie. through options 1, 2 and 3) to be highly speculative and very open to the criticism of being unrealistically optimistic about possible outcomes. To the extent that Mr Symons sought to rely on the Longworry existing FSC to bolster his position, we regard this Longworry FSC as essentially turning on its own facts, since it has some quite different features to the review site, eg. a more rural type of location, less freeway traffic and a local road oriented at 90 degrees to the freeway. By contrast, the review site is located in what we consider an urban-fringe location, the Western freeway has higher traffic levels and the Leakes Road intersection is more complicated because Leakes Road is oriented at about 60 degrees to the Western freeway.
7. In particular, we are underwhelmed by Mr Symons' attempts to justify his options 1, 2 and/or 3 in the face of:
   • the gaping problem that by 18 December 2006 this location already had the status of a black-spot/black-length intersection and section of freeway. We agree with the Roads Corporation that fundamentally none of Mr Symons' options address this "black-spot/black-length" issue. We are struggling to see why any reasonable road authority would consider works to this intersection with a short-term focus, when major road safety issues already existed as at the date of acquisition. With Mr Symons' Options 1 and 2, we agree with the Roads Corporation that it seems to defy common sense that neither of these options involve grade-separation, but rather through the anticipated FSC would in fact attract substantially more vehicles to this at-grade intersection, thereby exacerbating the pre-existing black-spot/black-length road safety problems;
   • the strong stated strategic intent by 18 December 2006 that Leakes Road over time be upgraded to an arterial level north-south through-road. Given this intent, Option 2 which cuts off Leakes Road at this part seems quite unrealistic;
   • the strong evidence that option 3 would be untenable (or close to) without re-aligning the new bridge further to the west, to avoid major and potentially very costly interference with the existing Rockbank businesses or houses located on the eastern side of that section of Leakes Road just south of the freeway. Option 3 also has the significant disadvantage that it does not allow vehicles to continue westbound along the freeway. Indeed, as part of the cross-examination of Mr Symons, he was forced to concede that Option 3 is a "remote possibility".
8. In summary, we accept the traffic engineering evidence of Mr Partenio. To the extent that Mr Symons's evidence has taken a different approach, we reject same as unconvincing. This finding is reinforced by the fact that Ms Partenio's evidence in our view was not compromised by her cross-examination, whereas we consider the cross-examination of My Symons by Mr Chiappi to have reinforced the major shortcomings in Mr Symons' evidence as we have identified above.
9. When our finding to prefer the evidence of Ms Partenio is combined with the three significant negative planning factors discussed above which go against a potential FSC on the site, we accept in totality that the Road Corporation has made out its case that there was no real prospect of approval being granted for a FSC on the subject land at the date of acquisition. Hence we find that in the "Before" situation, the "highest and best use" of the whole of the review site for the purposes of this compensation dispute is simply for rural purposes.

1. The fundamental difference between the two valuations is whether or not it should be assumed as part of the 'Before' valuation exercise that a permit for a FSC could have been secured in relation to the acquired land, as at the date of acquisition.
2. Leaving this issue aside, whilst the two valuers Mr Baird and Mr Love have used similar rates per hectare in both the 'Before' and 'After' valuation of rural land, if Mr Love's rate per hectare of $55,000 in the 'Before' value of the acquired land was applied to the whole site, the difference in the 'Before' and 'After' value would be approximately $550,000 ($645,370 less $95,625), which is less than Mr Baird's valuation of $630,000.
3. At a conference of valuers held at the offices of the Valuer-General on 22 January 2007, the same issue of whether or not a planning permit for a FSC may have issued was discussed. A letter addressed to VicRoads dated 8 May 2007 states "...it was agreed at the conference that formal planning advice should be obtained from a town planning consultant". It is noted that Mr Love was not in attendance at that meeting.
4. Given our finding on this "FSC issue" discussed further above that there was no real prospect of approval being granted for a FSC on the subject land at the date of acquisition, we are satisfied that the 'highest and best use' for the whole of the subject property in the 'Before' scenario is for rural purposes.
5. Given this "no real prospect of approval being granted for a FSC' finding together with Mr Baird's valuation report providing a higher level of sales evidence and analysis for rural land:
   • Mr Baird's valuation of assessing compensation at $630,000 has been adopted; and
   • We find the 'Before" aspect of Mr Love's evidence unconvincing. It was clear from Mr Love's verbal evidence presented at the hearing. that he was entirely reliant on Ms Coldebella's planning evidence regarding the possibility of 'FSC planning approval'. Mr Love's valuation took a black and white approach to Ms Coldebella's advice, that is, either a FSC would be achievable on the subject site or it wouldn't. In this instance, Mr Love's valuation report was (erroneously in our view) based on the premise that a FSC would be achievable on a portion of the subject site.

1. The relevant section of the Act here is Section 44, which sets out that up to 10% of the market value of the subject land may be awarded "...by way of solatium as is reasonable to compensate the claimant for intangiable and non-pecuniary disadvantages resulting from the acquisition". We have had regard to the various criteria set out at Clause 44(2) to be considered in the assessment of the appropriate solatium to be awarded here.
2. In particular, we have taken into consideration Mr Longo's length of occupation of the land[16], the inconvenience suffered by reason of removal of the land and the length of time which (but for the acquisition) the Claimant may have occupied the land. Whilst it is acknowledged that the acquired land is not the Claimant's principal place of residence, it is very clear that the Claimant has been inconvenienced by the compulsory removal of the acquired land.
3. In summary then, we accept that further compensation of solatium of $25,000 should be paid, which does not exceed 10% of the market value.

1. Section 41(1)(d) of the Act allows the Claimant to claim "any loss attributable to disturbance".
2. The Claimant made a "disturbance" claim in relation to three sums of money, to cover the alleged loss of interest on loans secured by a mortgage over certain properties owned by the Claimant including the subject land (see the Response to Offer document dated 2 May 2007), with this claim including associated costs and expenses. Four particular items are claimed, as we have outlined below:
   • The Nincervic Loan - a claim for the total interest payable on a loan of $950,000 from 15 October 2004 to 23 February 2007 calculated at the difference between the original interest rate of 13% less the reduced interest rate of 8%. The quantum claimed is $262,776.70.
   • The Westside Loan - a claim for the total interest payable on a loan of $250,000 from 9 February 2005 to 23 February 2007, calculated at the difference between original interest rate of 13.5%, then 15.5%, less the reduced interest rate of 8%. The sum claimed is $42,368.84.
   • The Nincervic and Westside Loans - After the first initial payment, a compensation adjustment to the two loans between 23 February 2007 and 25 May 2007. The quantum claimed - $38,475.17.
   • Costs and expenses associated with defaults of mortgages. Sum claimed - $36,472.24.
3. Mr Barton's final submission addresses the mortgage loss by stating "This submission cannot add anything to the evidence on the mortgage loss, which is claimed under loss attributable to disturbance"[17]. Mr Barton ironically goes on in the next sentence to state that "Evidence was given this morning that Mr Longo was offered a loan at in effect 13% and accordingly allowance could be made for the difference between that and the 17% actually paid by him". However this statement by Mr Barton does not accord with description of the relevant interest rates outlined in the Response to Offer document dated 2 May 2007 as mentioned above.
4. Mr Chiappi's submission for the Acquiring Authority outlines two threshold issues with this 'disturbance' claim. First, at paragraph 49 of his main written submission he states that:

The Corporation submits that the definition of "loss attributable to disturbance" under the LAC Act does not encompass planning blight - blight arises, in this case from the amendment and not from the divesting of an interest in land. There is a separate remedy for blight under Section 98 of the Planning and Environment Act 1987.

1. The second threshold issue raised is "That there is no evidence that the cliamant would have been able to obtain finance at 8%"[18].
2. The Tribunal's findings of the loss attributable to disturbance is as follows.
3. Dealing initially with the second threshold issue, the Tribunal finds the aquiring Authority's position more persusasive, for the following reasons:
   • there is an obvious complication in that the relevant loans in fact involved several properties owned by the Claimant, of which the subject land is but one;
   • it has not been made clear to us how the creation of the PAO in itself had the type of drastic influence on available interest rates that Mr Longo spoke about during his lay evidence. Beyond the allegations made during his lay evidence, Mr Longo has not provided us with any credible independent evidence (eg from an independent loan broker) supporting the proposition that significantly lower interest rates would have operated in relation to the acquired land but for the gazettal of the PAO. No accounts or tax returns in relation to the relevant period were shown to us. Rather, we consider that Mr Chiappi's cross-examination of Mr Longo on this issue reinforced that (even on a generous view) it is highly speculative whether Mr Longo realistically could have secured lower interest rates, given Mr Longo's apparently problematic/strained overall financial situation over some years.
4. We are also conscious that two of the three relevant loans in fact commenced prior to the exhibition of the PAO in October 2004 ie these loans commenced in August 2003 and August 2004.
5. In summary, we consider the Mr Longo's "Disturbance" claim fails due to the absence of any proper supporting evidence. Having made this finding in relation to the second fundamental issue, we are not required to make any formal ruling on the first threshold issue raised by the Authority. However we make the following comments more by way of initial impressions.
6. Section 98(1)(a) of the Planning and Environment Act 1987 does provide for the owner or occupier of land an avenue to claim compensation from a planning authority for financial loss of land being reserved for a public purpose under the relevant planning scheme. However there is no overt indication in the text of 98(1)(a) that this provision 'covers the field' in terms of a potential compensation claim involving the blighting of land due to land being reserved for a public purpose under a planning scheme. Hence it seems a real point for debate whether 98(1)(a) is the only legislative option available to a owner to claim compensation in these type of circumstances.

Legal Fees, Evaluation and Other Professional Expenses

1. Mr Barton's submission included claiming his clients' pre-referral legal, evaluation and other professional expenses pursuant to Section 41(f). Since the hearing, we have received a fax dated 15 March 2013 from Garland Hawthorn Brahe lawyers, confirming that the parties had recently reached agreement regarding the quantum of pre-referral expenses in this proceeding pursuant to Section 41(1)(f) of the Act. That is, such agreement was reached that this aspect of compensation should be a payment of $45,241.62, comprising:
   • legal costs and disbursements of $36,241.62 including GST; and
   • valuation and planning expert expenses if $9,350 including GST (but noting that this figure had in fact been earlier paid by the Roads Corporation to the Claimant's valuer Mr Love).
2. Our orders above reflect this position.

1. Our orders both provide for the basic net repayment to be made by the Claimant to the Acquiring Authority and also cover off on the possibility of any interest needing to be paid by the Claimant on this net amount[19].

1. Given our findings above, the various compensation we have found should be paid in summary involves:
   • $630,000 market value for the acquired land, which needs to be reconciled with the $1.475 million already advanced by the Roads Corporation to the Claimant, together with the "$9350 planning and valuation expenses" payment already made by the Roads Corporation to the Claimant's valuer Mr Love. This reconciliation process on a net basis comes to $845,000 to be repaid by the Claimant to the Acquiring Authority;
   • $25,000 to be paid by the Acquiring Authority to the Claimant for solatium; and
   • $0 to be paid by the Acquiring Authority to the Claimant for disturbance

in the situation where the parties have reached a consent position regarding the pre-referral expenses in relation to legal costs and disbursements plus valuation and planning expert expenses.

1. In total, when the abovementioned reconciliation against the monies already advanced is done, the net result is $783,758.38 to be repaid by Mr Longo to the Roads Corporation pursuant to Section 51(7) of the Act.

[1] See the Hawthorn Garland Brahe letter of 15 March 2013.

[3] See pages 4 and 5 of Mr Baird's valuation report.

[5] Noting however that the key words in Ms Coldebella's report were in fact "possible and likely..." - see the "Conclusion" section of her report.

[6] Although his report shows the balance area as being 7.734 hectares, in response to a query from Member Jacono, Mr Love conceded this was a typo, and that the correct figure was 8.734 hectares.

[7] The actual figure shown at page 8 of Mr Love's report is lower, but he conceded this figure is tainted by the typo referred to above. Hence we have worked with the correct figure which accounts for the typo.

[8] No date is given for this sale, at the top of page 8 of Mr Love's report.

[9] Noting that Section 31 has the heading in bold "Initial offer of compensation".

[10] See Ms Coldebella's conclusion at Section 8 of her report.

[11] We refer here to the Outer Western Transport Strategy Plan dated October 2001

[12] This "blackspot" and "blacklength" situation was verified by the evidence of Mr Purdue.

[13] That is, the Freeway Service Centre Design Guidelines 1997.

[14] We understand that the actual permit for the Beattys Road FSC was issued two days after the 18 December 2006 date of acquisition in question here. However given that we were told at the hearing that the necessary Council resolution to issue the permit had been passed by 18 December 2006, it seems reasonable that we treat this situation as the next best thing to the actual permit issuing.

[15] The closest separation we are aware of, in relation to two FSCs on the same side of a freeway in Victoria, is the two FSCs on the north-bound side of the Geelong freeway, about half way between Melbourne and Geelong. We understand these two FSCs are about 16 km apart.

[16] The Certificate of Title provided in Appendix 4 of Mr Baird's Valuation Report confirms Mr Longo's ownership of the review site since 14 November 1980.

[17] See the first sentence of paragraph 8.

[18] See paragraph 50 of Mr Chiappi's main written submission.

[19] Noting that the Act appears to be silent on this issue.