(m) While Mr and Mrs Horton may have acted reasonably in renting before buying a replacement property, that did not mean that they were necessarily entitled to recover the rent as compensation. That entitlement depended upon whether in the circumstances it was just and reasonable to include such rental.
126 In my opinion, the respondent's submissions should be accepted and those of the RTA rejected. At [106] of his reasons, the primary judge found as a fact that the disputed disturbance items all flowed from the necessity of the respondent to relocate from the acquired land as a result of the acquisition. There is nothing in his Honour's findings to suggest that it was not necessary as a direct and natural consequence of the acquisition and the requirement of the RTA that the respondent vacate her residence upon the acquired land, that she rent alternative premises until she was able to construct a new residence upon the residue land.
127 In this context, loss attributable to disturbance is by virtue of s 55 a separate head of compensation to which a dispossessed owner is entitled where the relevant loss has been "reasonably incurred". In Horton Talbot J accepted that the financial costs of renting alternative premises fell within the terms of s 59(c). Furthermore, the approach that his Honour took at [19] of his reasons seems to be at odds with that which he took at [20] and [22] where he said:
"20. I nevertheless take a different approach to the claim for payment of removalist expenses to be incurred on a second move. Mr and Mrs Horton managed to minimise the cost of the first removal to the temporary rental accommodation by enlisting the assistance of their two children and by hiring a Pantec truck and trailer at a nominal cost. I believe it is reasonable for them to be reimbursed for the actual cost of the second move. It is a cost they will incur solely as a consequence of the necessity to relocate, following the compulsory acquisition and the pressure from the Council to make the property available for the public purpose. In those circumstances the costs, when incurred, will be financial costs reasonably incurred.
…
22. The land was used as a permanent residence. A direct and natural consequence of the acquisition was the need to vacate the premises within a shorter time than that which might generally be regarded as reasonable for finding an alternative permanent residence. I consider it reasonable that the applicants saw fit to move into temporary accommodation to enable them in the meantime to gain a proper understanding of their ultimate financial position before making a commitment and also sufficient time to search for, negotiate and settle on the purchase of the new house. I propose to allow the sum of $2,000 being the amount Mr Horton deposes to as the approximate quotes he has received from a removalist, including estimated associated costs."
128 There was no suggestion in the present case that it was not a direct and natural consequence of the acquisition that the respondent needed to vacate her existing residence and to rent alternative premises until such time as she could relocate her residence onto the residue land. It was not suggested that she had unnecessarily delayed in doing so which would, if it had been the case, have justified a finding that the rental incurred by her was not, at least in part, reasonable in terms of the period during which it was incurred.
129 Furthermore, Talbot J accepted in the paragraphs of his reasons set out at [127] above, that Mr and Mrs Horton should be reimbursed the costs of their removal from their acquired residence to temporary accommodation for the purpose of enabling them to gain a proper understanding of their ultimate financial position before making a commitment to negotiate and settle on the purchase of a new home. Accordingly, his Honour accepted that their removal costs from their existing residence to their temporary residence was one incurred solely as a consequence of the necessity to relocate following the compulsory acquisition and was, therefore, a financial cost "reasonably incurred".
130 In these circumstances, it is difficult to understand the legal basis upon which his Honour rejected Mr and Mrs Horton's claim for rental paid by them with respect to the temporary accommodation which his Honour found they were entitled to incur in order to relocate. Provided the payment of rent was a cost "reasonably incurred" within the meaning of either s 59(c) or (f) (and it is not suggested in the present case that it was not), then they were entitled to be compensated for what was a loss attributable to the disturbance caused by the acquisition.
131 Although the RTA submitted that the claimed cost must not only be "reasonably incurred", but also have a causal nexus to the acquisition and, further, that the quantum must be acceptable, once it was determined (as the primary judge did) that the payment of rental by the respondent was a financial cost incurred in connection with her relocation or otherwise related to the actual use of the acquired land as a direct and natural consequence of the acquisition, it followed that the causal nexus was established. The quantum must only be acceptable in the sense that the incurring of the relevant cost must be reasonable. It thus follows that once a claim falls within either s 59(c) or (f), there are no further requirements to be met before the claim is payable.
132 I would also reject the RTA's submission that notwithstanding that the claim for rental was incurred within the meaning of s 59(c) or (f) and was otherwise reasonable, that it was open to the primary judge to reject the claim upon the basis that it would overcompensate the respondent. Given that loss attributable to disturbance is a separate head of compensation, and provided the rental cost has been reasonably incurred, it is difficult to see how it could be asserted that any compensation that accords with s 59(c) or (f) could be regarded as other than just.
133 In this respect two matters need to be kept in mind. The first is that s 3(1)(b) of the Just Terms Act, which provides that one of the objects of the Act is "to ensure compensation on just terms for the owners of land that is acquired", focuses on ensuring just terms for the dispossessed owners rather than for the acquiring authority.
134 The second is that s 54(1) focuses on the amount of compensation to which a person is entitled under Part 3 "having regard to all relevant matters under this Part" which will justly compensate that person for the acquisition of their land. The emphasised words require just compensation to be assessed having regard to those matters including, relevantly to the present case, loss attributable to disturbance.
135 Accordingly, in my respectful opinion, it is not open to the court assessing such compensation to stray outside the "relevant matters under" Part 3. In particular, subject to any question of double-dipping (which relevantly means that the claimant is compensated twice for the same loss), it was not open to Talbot J in Horton or the primary judge in the present case to, in effect, set-off against financial costs which otherwise met the requirements of s 59(c) or (f), what I would regard as matters not recognised as "relevant matters under" Part 3. Section 61(b) would be a relevant matter which, had the RTA been successful in its appeal in establishing that that provision was engaged, would have had the effect of denying the respondent's claim for disturbance loss. But that is far different from Talbot J's and the primary judge's reliance on matters falling outside the provisions of Part 3.
136 Furthermore, Talbot J was in error in taking into account statutory interest as, in effect, offsetting disturbance loss in the form of rental. Such interest is payable pursuant to s 49(1) of the Just Terms Act. How this statutory entitlement can be used to deny, whether in whole or in part, compensation for loss attributable to disturbance defies explanation.
137 Returning to [19] of Talbot J's reasons in Horton, it is to be noted that his Honour did not actually carry out a set-off exercise as such. He did no more than assume, without finding, that interest "may" be earned on the balance of an advance payment of compensation (which the acquiring authority is empowered to make pursuant to s 48 of the Just Terms Act).
138 Further, his Honour did no more than regard it as "arguable" that Mr and Mrs Horton "could" be saving on a commitment to interest on future borrowings. To the extent that the primary judge adopted the same assumptions without making an express finding, he was in error. To deny an otherwise proven claim to disturbance under s 59(c) or (f) in this manner is incapable of being assessed as "just" within the meaning of s 3(1)(b) or s 54(1). The RTA's submission to the contrary is without merit.
139 In essence the approach of Talbot J at [19] of Horton which, with respect, I regard as legally erroneous, seems to have been as follows: where land is compulsorily acquired upon which is located the residence of the dispossessed owner, that owner is not entitled as a matter of principle to claim as a loss attributable to disturbance the amount paid or payable as rent with respect to their occupation of temporary premises pending relocation to a permanent residence because that rent, although reasonably incurred, is off-set by various savings unintentionally achieved by the dispossessed owner as a consequence of the acquisition. Those savings would include the usual costs of owning property such as rates, charges and insurance as well as interest payable under any mortgage charged upon the acquired property which would be paid off (or at least reduced) to the extent of any advance payment of compensation (if made) by the acquiring authority.
140 To the extent to which this generalised approach was, as a matter of principle, adopted by the primary judge, he also erred in law. The approach was legally wrong because it was inconsistent with, and failed to accord with, the exclusive statutory regime contained in Part 3 of the Just Terms Act which details the only bases upon which compensation is to be assessed.
141 Of course, it may be that Talbot J was purporting to only make findings of fact at [19] of Horton. But if he was, they were not authorised by Part 3 of the Just Terms Act. However, as I have attempted to illustrate at [137] and [138] above, his Honour seems to have made assumptions rather than findings of fact. In simply applying what Talbot J said at [19] of Horton to deny the respondent her rental claim as a loss attributable to disturbance in the present case, the primary judge made the same error. As the facts of Horton were obviously different from the facts of the instant case, even if the set-off approach of Talbot J was permissible, it behoved the primary judge to carry out that exercise with some precision for otherwise the respondent may have been denied just compensation. His failure to do so constituted legal error although it may be explained by the fact that his Honour considered that the respondent's rental claim was in any event denied by s 34(3) of the Just Terms Act.
142 Finally, as to the RTA's submission with respect to double-dipping, it only applies, as its submissions acknowledge, where compensation is awarded twice for the same loss. Accordingly, the RTA's contention that the facts found by Talbot J at [19] of Horton, if applied to the present case, involve double-dipping in that the earning of interest, statutory or otherwise, or the saving of costs of ownership is the same as having to pay rent, cannot be sustained.
143 In summary, I am of the following views: