19. If acquisition cost is irrelevant, it is even more erroneous to take into account maintenance expenditure. Landowners undertake maintenance expenditure in order to maximise use and enjoyment of their land during the period of their ownership and to retain its capital value. Because maintenance costs are recurring items, like rates and taxes, it would be absurd to include those costs in an assessment of the capital value of the land. It would be even more absurd to do so without allowing for the benefits of that expenditure over the period of ownership and its diminishing effect over time. The point is illustrated by the present case. The applicant seeks to have the Court take into account road maintenance expenditure over a period of 45 years, without making any allowance for the facts that Liverpool rate-payers, and other road-users, have enjoyed the benefit of that expenditure during that time and that the benefit of the early expenditure must have long disappeared.

20. Although construction costs, strictly so called, may properly be regarded as capital costs, the same difficulty arises in relation to them. Some of these costs were incurred many years ago. The constructed items must have depreciated. It is anomalous to adjust the historic cost upwards, to allow for inflation, without also adjusting downwards to allow for depreciation.

21. Finally, in relation to counsel's alternative way of putting this approach, the proposition assumes an ability to sell the roads at resumption day. For reasons that I will develop, this assumption is invalid.

The applicant's second contention: assumed purchase by adjoining owners

22. The other basis of assessment argued on behalf of the applicant comes from a valuation report written by Frank Egan, an experienced consultant valuer. This basis values the resumed land at $3,500,000. Mr Egan explained that he felt bound to assume a sale of the subject land on 17 July 1991, the reason being the definition of "market value" in s.56 of the Act. He observed that "(f)or the land to be sold, the roadways have to be assumed to be closed". New South Wales law permits the closure of public roads, subject to compliance with specified procedures. At the date of resumption, the relevant provisions were contained in Part 4 of the Crown and Other Roads Act 1990, to which I will return. Mr Egan said that, because of s.60 of the Lands Acquisition Act, he had disregarded the proposed airport and "assumed the highest and best use of the adjoining land is as currently utilised; i.e. small to medium sized rural holdings, residential cottages, schools etc". Mr Egan argued that it followed from the assumption that, at the relevant date, the subject roads were closed, that there would be no vehicular access then available to a significant portion of the adjoining land. He called that the "landlocked" area. It is bounded on the east by Badgery's Creek and presently accessible by, but only by, resumed roads. As Mr Egan analysed the position, even on these assumptions, there would still be vehicular access to the remainder of the adjoining land, off Elizabeth Drive, which runs east-west along the northern border of the airport area, or The Northern Road. However, in order to take advantage of that access, the landowners would need to combine their allotments and re-subdivide. They would then run into the difficulty that the current minimum lot size in the area is 40 ha. Mr Egan pointed out that, if this standard had to be complied with, "almost all existing lots in this area would have to be amalgamated; thus reducing their value".

"(r)ealistically, the only viable purchaser of the roads

are the adjoining owners; in this case the FAC (Federal

Airports Corporation), as they own all of the adjacent

land".

He said he considered the value of the landlocked land, "redundant unless access can be provided", to be over $18 million. The value of the land accessible off The Northern Road and Elizabeth Drive was at least $34 million. He said:

"A 'willing but not anxious buyer' of the subject land would have full

knowledge of the need to ensure access to all of its holdings. Further,

it would be aware there is a limited market for the subject land.

Conversely, 'a willing but not anxious seller' would have full knowledge

of the adjoining owners' need to acquire the subject land in order to

safeguard an investment of many millions of dollars. Such a seller would

also be aware of the cost of purchasing similar replacement land in close

proximity if the need arose.

It is our opinion the total market value of the properties that are

landlocked, as per Item 1 above, as at the 17th July 1991, would be to

order of at least $18,000,000. The total market value of the properties,

as per Item 2 above, as at the 17th July 1991, would be at least

$34,000,000. We considered therefore the owner of such lands, realising

he is the only viable purchaser of the subject properties, would be

prepared to pay only 10% of the value of the landlocked properties and 5%

of the value of the remaining properties to ensure their continued

viability. This represents a total purchase price of $3,500,000."

24. As a check on this assessment, Mr Egan considered the per hectare value of land in the area. He said that, although there were some larger lots within the proposed airport site, the predominate lot size was 2 ha. He referred to some sales of 2 ha lots that he thought indicated a value at resumption day of about $100,000 per hectare. He applied that rate to the area of the resumed land (32.25 ha) and reached a figure of $3,250,000.

25. The figure formally adopted by Mr Egan was $3,500,000, based on his primary assessment of value.

26. Mr Egan's approach was heavily criticised, both by the valuer who gave evidence on behalf of the respondent, Charles Woodley, and by counsel for the respondent. A major objection to the figure of $3,500,000 is that it depends directly upon two arbitrarily-adopted percentages: 10% and 5%. Why these figures, rather than greater or less percentages? In particular, on the assumptions made by Mr Egan, why would the hypothetical vendor not exact from the hypothetical purchasers, the adjoining landowners, full "ransom value"; that is, the price that they would agree to pay sooner than lose the ability to use or sell their land. This price would be well above 5% or 10%. Particularly in the case of the landlocked land, it would have to be close to the full value of the adjoining land. Mr Egan was unwilling to go that far. No doubt he realised that the effect of that argument would be to require the Commonwealth to pay twice for the land in the airport area. I can understand his reticence, but there is no logic in his decision to stop where he did.

27. However, there is a more fundamental objection to Mr Egan's approach. It is incorrect to assess compensation on the assumption that the roads were closed at the date of acquisition. They were not. A valuer who assesses the value of a property by reference to its market value must, contrary to the fact, assume a sale on the relevant day; but otherwise the valuer takes the facts as they really were. A valuer is no more entitled to assume a change in the status of land, to make it saleable, than he/she would be entitled to assume a more favourable zoning, location or market situation. If the status of the land precludes the possibility of sale on the relevant day, value may have to be assessed in some other way, rather than by reference to market value.

28. If justification for the principles just expressed is necessary, it is provided by the present facts. At the relevant day, the date of resumption, s.276 of the Local Government Act provided that a public road, other than a temporary road, could be closed permanently only in accordance with Part 4 of the Crown and Other Roads Act. That Part provides a procedure whereby any person may apply to the Minister (of Lands) to close a road (s.43(1)). The Minister may refuse an application for any apparently appropriate reason (s.43(8)). If the Minister proposes to consider closing the road, the Minister must publish a Gazette notice particularising the proposal and inviting the lodgment of objections at the office of the Department of Lands (s.44(1)). The Minister must publish an advertisement drawing attention to the notice in a local newspaper and cause service of a copy of the notice on the owner of each "major interest" in any land having frontage to the road proposed for closure (s.44(2)). Only after that procedure has been undertaken, may the Minister close the road (s.45(1)).

29. When those provisions are considered, the artificiality of Mr Egan's assumption becomes apparent. Having regard to the nature and scale of development in the airport area and the existing road pattern, it may be dogmatically asserted that, absent a major development proposal, it would be unthinkable simultaneously to close all the roads the subject of the acquisition. The airport proposal must be disregarded. There was no other major development proposal. Consequently, the assumption of road closure must be examined on the basis of a continuation of present land uses. If somebody had applied to close all these roads, almost certainly the Minister would have rejected the application immediately. If he had decided to consider the proposal, he would have needed to give notice to each landowner whose property fronted an affected road. This means virtually all owners within the airport area. The recipients would have felt outraged. Politically, it would have been impossible for any Minister to proceed to closure.

30. I accept that, if value is to be assessed by reference to market value, it is necessary to assume a sale; even though no sale took place on the relevant day. Otherwise, the facts should be taken as they are. There are enough complexities and artificialities in the assessment of value without including an assumption about the happening of another event, that did not happen and would never have happened. By reason of the assumption on which it is based, Mr Egan's primary approach must be rejected.

31. Mr Egan's check value of $3,250,000, calculated by applying a rate of $100,000 per hectare to 32.5 ha, suffers from the same objection. This check also assumes that the land was sold at the relevant day, stripped of its status as public roads; in other words, that the roads were closed.

32. I cannot accept any of the bases of valuation advanced on behalf of the applicant.

The respondent's first contentions: value to the Commonwealth

33. The respondent's valuer, Mr Woodley, rejected a "market value" approach. He said that the requirement that the roads be used as public roads meant that they had no market value; the council could not sell them.

34. Mr Woodley considered two other approaches. First, he noted that, by resumption day, the Commonwealth owned all the other land in the subject area. He asked himself what was the value of the resumed land to the Commonwealth and said that -

"(h)aving regard to limited evidence of market value for

large holdings with non-urban zoning the land value

determined on this approach would not exceed $10,000 per

hectare".

On this basis, the land would have a total value of about $320,000.

35. The problem about this approach is its underlying assumption. I agree that it is always legitimate to regard the acquiring authority as a potential purchaser. So the Commonwealth should not be excluded from consideration. And, by resumption day, the Commonwealth owned all the adjoining land. If the roads had value to the Commonwealth, as an owner of non-urban land rather than an airport authority, it would be proper to take that value into account. Circumstances can be imagined in which the roads would have such a value; for example, because their incorporation into the adjoining holdings facilitated a re-subdivision or major new development of those holdings, other than for an airport. If those circumstances had applied, the council might have contracted to apply to the Minister for closure and transfer to the Commonwealth. However, those circumstances do not exist in this case. So far as the evidence indicates, apart from the airport proposal, there has never been a suggestion of a major new development on the adjoining land or for a more remunerative form of use than the existing mix of small farms and rural residences. Absent the airport proposal, there would be no reason for a person who owned all the other land in the area also to acquire the roads. Many allotments are already smaller than the minimum size allowable in new subdivisions. Mr Woodley acknowledged these matters. His assumption that the Commonwealth would be prepared to pay $10,000 per hectare was based on the fact that the purchase would enable inclusion of the land in the airport. But s.60 requires that the airport proposal be disregarded. It follows that it is impermissible to value the land upon the basis of its value to the Commonwealth.

The respondent's second contention: council's income and expenditure

36. Mr Woodley's second approach was to look at the council's local income and expenditure. That approach was complicated by the fact that, after the date of resumption, the Commonwealth and the council made an agreement whereby the Commonwealth agreed to make payments to the council in lieu of rates and, in return, the council agreed to maintain some of the resumed roads in accordance with an agreed program. The agreement was intended to operate only temporarily, until all the properties that the Commonwealth had acquired ceased to be occupied by their former owners or other private tenants. On the basis that this agreement should be entirely disregarded, Mr Woodley initially calculated that the resumption of the roads resulted in a net annual loss to the council of $50,000, and that this figure ought to be capitalised at $480,000. Paragraphs 23-25 of Mr Woodley's first affidavit show his calculations:

"23. Estimated 1991 annual rate income

with public road access $500,000

Estimated 1991 annual rate income

without public road access $300,000

Estimated annual loss $200,000

Deduct annual savings

in road maintenance costs $150,000

Net annual loss $ 50,000

24. This loss would continue until rezoning for

redevelopment and if a 10 year deferral is adopted

the average annual loss is estimated to approximate

$75,000.

25. On the basis of these estimates the payment required

to adequately compensate the Council for the net

annual loss of rates would be the present value of

$75,000 per annum for 10 years allowing an average

annual earning rate of 9% (factor 6.4) i.e. $480,000."

37. Mr Woodley later discovered that he had overestimated the council's rate income from the subject area. If the land in the airport area had all been privately owned in 1992, it would have yielded the council $231,815 in rates. If that income was reduced by 40% because public road access was no longer available, as Mr Woodley previously assumed, the loss to revenue would be $92,726. But that figure is less than the amount that the council spent each year on the resumed roads. Accordingly, Mr Woodley argued, the loss of the roads improved the council's financial position, rather than the contrary.

38. This approach, also, is open to serious criticism. Understandably, Mr Woodley was not able to refer to any material justifying his estimate that, if the adjoining land lost public road access, its value, and therefore the council's rate income from that land, would decline by 40%. It seems to me that this estimate is much too low. As Mr Egan's analysis demonstrates, the closure of the resumed roads would have a catastrophic effect on land values within the airport area, considering that land as non-urban land unaffected by an airport proposal. If I had to make a judgment about the matter, I would double Mr Woodley's figure of 40%. On this basis, the lost revenue would slightly exceed the annual road expenditure.

39. However, in my opinion, it does not matter what is the correct percentage loss of rate income. The assessment of compensation cannot be approached in this way. It is meaningless to compare the rate revenue derived by a council from a part of its area with the moneys it spends on roads in the area. Councils receive road funds from a variety of sources, including State (and even Federal) Government grants. The relationship between needs and funding was not investigated at the hearing, but it is reasonable to suppose that there is some such relationship and that a reduction in the length of a council's public road system might lead to a reduction in its government grants. Moreover, roads are only one of the services, financed from rates, that councils provide to residents. It is wrong to appropriate all the council's rate income from the airport area to the provision of roads.

40. The factors I have mentioned bear in opposite directions. They are not intended to indicate the proper result; but merely to make the point that it is incorrect to approach the matter in this way.

41. Mr Woodley went on to consider the annual loss sustained by the council, taking into account the terms of its agreement with the Commonwealth. Once again, he had to adjust his initial figures. Having done that, he calculated an effective annual loss of $49,000. He capitalised this at $384,000 and adopted that figure as his assessment of the compensation properly payable to the applicant.

42. This last exercise has all the defects of its predecessor, with the addition that it is wrong in principle to take into account the terms of the agreement.

43. The council's claim for compensation crystallised on resumption day. In the words of s.55(1) of the Act, on that day the council became entitled to such an amount of compensation as would justly compensate it for the acquisition. That entitlement having arisen on resumption day, its quantum could not be affected by a subsequent event such as the agreement on maintenance. I accept that evidence of post-resumption events is sometimes admissible; for example, a sale made shortly after a resumption day may cast light on the level of the market on that day. But such evidence only assists the court to quantify the entitlement that crystallised on resumption day. It is different in kind from evidence of a new event that occurred after resumption day and, if taken into account, would change the claimant's entitlement. This point will be obvious if I illustrate it by referring to a less unusual event such as an unexpected rezoning of the resumed land. But it applies equally to the making of an agreement regarding the future use or maintenance of the land or payments to be made in connection therewith.

44. In the result, I find myself unpersuaded by any of Mr Woodley's approaches.

The respondent's third contention: no market, no value

45. The preferred position of the respondent is that the applicant is entitled to no compensation, or at best a nominal figure. Counsel point to the principle that compensation must be assessed by reference to the value of the land to the owner, not its value to the acquiring authority. They refer to the line of authority that includes such well known cases as Stebbing v Metropolitan Board of Works (1870) LR 6 QB 37; Re Lucas and Chesterfield Gas and Water Board (1909) 1 KB 16; Cedars Rapids Manufacturing and Power Company v Lacoste (1914) AC 569; and Corrie v McDermott (1914) AC 1056.

46. Counsel say that, in this case, the land was inalienable at resumption day: see s.232(3)(d) of the Local Government Act. As a result, it had no value. They mention the facts of Stebbing, where a Divisional Court held a rector not entitled to compensation in respect of the compulsory acquisition of part or all of three graveyards vested in him. The reason was that he had no power to alienate the land. Counsel place particular stress on the decision of the Judicial Committee of the Privy Council in an Indian case, Manmatha Nath Mitter v Secretary of State for India (1897) LR Ind. App. 177. This was a claim for compensation arising out of the compulsory acquisition of three strips of land. Each strip comprised part of a public road, but the trial judge held that the plaintiffs had title to the subsoil of two strips and awarded compensation for their acquisition. The High Court in Bengal set aside the award on two grounds: the plaintiffs had not established their title and they had not proved that the land had a separate market value. The Judicial Committee affirmed the High Court's decision. Their Lordships said that the High Court was "so clearly right on the question of value" that they need not enter into the matter of title. They went on, at 182:

"The land was taken for a public purpose under the provisions of the Land

Acquisition Act, 1870, and the plaintiffs' right is not to recover the

land, but to claim compensation for it. By ss.13 and 24, the market

of the land at the time of awarding compensation is to be taken into

consideration. It is not suggested that there is any market value of

these lands as roadways. Mr. Graham argues that when the compensation

awarded in this case the roads had been broken up, and therefore the

Subordinate Judge rightly valued the land as belonging absolutely to the

plaintiffs, free from the burden of the roads and capable of being used

for any purpose. In their Lordships' opinion that would be a very

unreasonable construction of the Act. There is an express provision in

s.25 that the assessor shall not take into consideration any increase to

the value of the land acquired likely to accrue from the use to which it

will be put. That points to the time when the land is acquired as the

time for ascertaining its value. Independently of that provision, it

would lead to very strange and capricious results if changes in the

condition of the land between the time when it was taken and the actual

conclusion of the award were to increase or to lessen its value. The

time of awarding compensation must be construed as meaning the time of

compensation - the time at which the right to compensation attaches. At

that time these plots of land were roadways; and the plaintiffs are

claiming for a supposed loss of value which had no existence when the

ownership of the land was changed."

47. In response to this argument, counsel for the applicant referred to the decision of the High Court of Australia in Commonwealth of Australia v Arklay [1952] HCA 76; (1952) 87 CLR 159. The issue in that case was the basis upon which compensation should be assessed where sales of land were subject to war-time price controls. The trial judge, Webb J, held that, at the date of resumption, the Commonwealth Treasury would not have approved a sale of the land at a price exceeding pounds 3,400, but this price would not have represented the land's true value. He thought that, immediately upon the removal of controls, the land would have sold for pounds 4,100 and, six months later, it would have been worth pounds 4,550. Webb J thought the owner would have anticipated this rise and, at resumption date, would have elected to retain the land rather than sell it at the controlled price. He based his assessment on the figure of pounds 4,550 but deducted pounds 200 because of the delay that would occur before that price became available. The Commonwealth appealed against this decision, arguing that Webb J erred in principle in assessing compensation at a figure higher than Treasury was likely to allow. The Full Court (Dixon CJ, Williams and Kitto JJ) disagreed. They pointed out that the assumption underlying an assessment of market value, a sale between a willing but not anxious vendor and a willing but not anxious purchaser, presupposed that a vendor could ask any price that it would be reasonable to expect the purchaser to pay. That price would normally exceed that fixed by a price controller; if it were not so, there would be no need for price control. So an owner, though otherwise willing to sell, might elect to wait, in the hope that price regulation would terminate. As the task of the court was to assess compensation based on the value of the land to the owner, this possibility must be taken into account. At 174 their Honours said:

"In the case of goods produced during a period of price control for

immediate sale and consumption the fixed price might well provide fair

compensation. Much would depend upon how the price was fixed and whether

this price was a fair and reasonable price having regard to the costs of

production and the margin of profit allowed in the light of the general

control of the problem of inflation. Such goods, especially perishable

goods, might have no retention value and no value to the owner except

he could then presently obtain. But the Lands Acquisition Act is dealing

with compensation for the compulsory acquisition of land. It is an Act

designed to provide just terms for the acquisition at all times whether

Australia be at peace or war. Land is a permanent asset and it has a

value capable of surviving temporary controls and financial strains and

stresses that occur during hostilities."

48. The facts of Arklay are remote from those of the present case. On 17 July 1991, the present applicant was not faced with a system of price control or a temporary restriction on its power to alienate the land. It was faced with a total prohibition that would enure indefinitely, unless the law was changed. It was most unlikely that the law would be changed in such a way as to permit local authorities to alienate public roads. The constraint on Liverpool City Council's ability to exploit the commercial potential of its land was considerably greater than that faced by Ms Arklay.

49. Nonetheless, Arklay is helpful in resolving the present case. The legislation under which Arklay was decided, the Lands Acquisition Act 1906, contained no equivalent of s.55(1) of the 1989 Act. Yet the decision applied an aspect of the principle that came to be expressed in that subsection. That expression is in wider terms than anything said in Arklay and is framed as a fundamental principle. It is important that everybody concerned with the assessment of compensation bear the principle in mind. Market value is a very useful tool in assessing compensation. In the majority of cases, it will provide the surest guidance. But the concept must be kept as a tool. It must not be allowed to dominate the process of assessment, forcing error; for example, the making of a complementary but unwarranted assumption, as in Mr Egan's evidence, or the entire rejection of compensation simply because the resumee had no capacity to sell, as in the submissions of counsel for the respondent. From time to time there will be cases where compensation cannot satisfactorily be determined by reference to market value. In those cases it is necessary to remember the principle expressed in s.55(1), and stand back from the market and consider the total financial effects of the acquisition on the resumee.

50. Secondly, Arklay illustrates the positive aspect of the concept called "value to the owner", as distinct from the negative aspect emphasised in the line of cases cited by the respondent's counsel. Arklay shows that "value to the owner" may exceed the price available to the owner, even from a willing but not anxious purchaser, on resumption date. Of course, if there was no prospect whatever, on resumption day, of the owner being able to sell the land (as in Stebbing), and the owner will not suffer any loss of income or other financial disadvantage in parting with the land, the land will have no value to the owner. However, if the retention of the land offers even a prospect of later financial advantage, that prospect represents value to the owner. The prospect must be taken into account in determining the appropriate compensation.

51. It is clear that the resumed land was not saleable on resumption day, that the council earned no income from the land, and that its loss did not cause the council any immediate or certain financial disadvantage. However, there was one prospect of financial return which the council lost on resumption: the possibility that, one day, a part or parts of the roads would be closed, the land sold and the council receive the sale proceeds.

52. Section 276 of the Local Government Act, as it stood at resumption day, provided that if a public road vested in a council is closed in accordance with Part 4 of the Crown and Other Roads Act and the fee simple in any part of the land is subsequently disposed of under that Act or the Crown Lands Acts by way of sale, "the council is entitled to any of the proceeds that remain after deducting the costs of carrying out the sale". The subject resumption deprived the council of the chance of ever receiving the proceeds of sale of any part of the resumed land. In accordance with the principle embodied in the notion of "value to the owner", the council is entitled to be compensated for the loss of this chance.

53. It is very difficult to assess what amount is appropriate to compensate the council for the loss of the chance. Logically, the assessment involves three elements; all to be considered on the basis that there was no airport proposal and no road resumption but, otherwise, on the basis of the facts existing on 17 July 1991. The three elements are: the rate per hectare that would be realised if land within a closed road was sold; the proportion of the total road system within the area ever likely to be closed; and the discount to be made because of the time that must elapse before any sale proceeds would become available to the council. In the present case I think the third factor may be put to one side. The resumed land is located in a developing area whose property values were increasing at a greater rate than the inflation rate. Having regard to the situation of the land and the rapid increase in the population of western Sydney, it is reasonable to assume a continuation of this trend, in the absence of the airport. The greater the period before the roads were closed, and the land sold, the greater the likely real value of the land at that time. It is sensible to offset deferment against rising real value.

54. Returning to the first two factors I have mentioned, the first is the easier to assess. The relevant prospect is of one or more strips of road being, one day, closed and the land sold to an immediately adjoining owner. The valuers agree that, in this area, values per hectare vary considerably, depending on lot size. The valuers used sales evidence to determine likely values per hectare, at resumption date, for land in three categories: 2 ha lots, 10 ha lots and 40 ha lots. On Mr Egan's analysis, 2 ha lots were yielding about $100,000 per hectare. Mr Woodley thought the range for 2 ha lots was $85,000 to $90,000 per hectare. The valuers agreed that 10 ha lots sold for about $30,000 to $35,000 per hectare. Mr Egan thought the range for 40 ha lots was between $25,000 and $30,000 per hectare. Mr Woodley selected slightly lower figures, $20,000 to $25,000.

55. As the prospect is of one or more sales of a section of road to an immediately adjoining landowner, the most relevant figures are those relating to smaller holdings. The area of land sold to any one purchaser would be likely to be small. On the other hand, there is a premium element in the price of 2 ha lots; the purchase of such a lot enables the purchaser to erect a house. Although the acquisition of part of an adjoining road might add to the amenities of a property, assuming that alternative access was available or procured, that acquisition would not enable the purchaser to erect a second house or subdivide the land. I think the selected rate per hectare should be greater than the agreed 10 ha rate ($30,000 - 35,000) but below the rate available for 2 ha lots. It would be reasonable, I think, to work on the basis that closed road land would fetch an average of $60,000 per hectare.

56. The more difficult task is to determine how much (if any) of the resumed roads would ever have been closed, in the absence of an airport proposal. I think very little. I have not calculated the areas of land within each road, but it is obvious that a large part of the total 32 ha is contained within the major distribution roads. It is difficult to imagine circumstances, absent the airport, that would have led to their closure. I suppose there was always a chance of a developer, public or private, proposing a major development for which it was prepared to consolidate a large site and incur the cost of purchasing many houses and house sites. The existence of the possibility is demonstrated by the fact that the Commonwealth decided to take that course in connection with the airport. But realism suggests that the prospect was remote.

57. However, not all the resumed roads are major distributors. As previously mentioned, a number of roads serve only a few properties. Some are cul-de-sacs. At resumption day there existed a somewhat greater prospect that, sometime in the future, one or more of these roads might be closed and the land sold to the adjoining owner or owners; perhaps in conjunction with a new development requiring an aggregation of some allotments, perhaps as part of a consolidation and re-subdivision of land. It must be remembered that, at resumption day, the airport area was still comparatively undeveloped.

58. In a case where the task of assessing compensation comes down to the evaluation of a chance, it will rarely be possible to demonstrate that any particular figure is correct. I certainly cannot do so in this case. I can only consider all the relevant factors and make a judgment about them; a "best guess" perhaps. Specifically, I must bear in mind the total area of the resumed roads (32 ha in round figures) and apply the figure of $60,000 to that number of hectares as expresses my best assessment of the proportion of the roads that would eventually have been closed and sold. Approaching the matter in this way, I select the figure of 10%. So I multiply 3.2 by $60,000 and assess the applicant's compensation in the sum of $192,000.

59. Compensation will be assessed in the sum of $192,000. This figure is less than the amount advanced by the respondent. So a refund will be necessary. As I have mentioned, the Commonwealth filed a cross-claim seeking an order for the repayment to it of the difference between the advance and the assessed amount. However, counsel for the applicant informed me that it was unnecessary to make an order; if the Court assessed the compensation at a figure less than the advance, his client would co-operate with the respondent in calculating the appropriate refund and paying that amount. I accept this assurance. I will not deal with the matter of a refund, except to reserve liberty to apply in case any difficulty arises.

60. In relation to costs, the matter is a little complex. The assessed amount is more than that on offer to the applicant after 23 September, but it is less than that available at any earlier stage. I think that the applicant should have the costs incurred by it between 23 September and the date of this judgment, together with the costs of preparation for the hearing whenever incurred. These costs should not include the costs incurred in relation to Mr Strickland's or Mr Egan's evidence, both of which categories of evidence were misconceived. Moreover, as the case would have finished comfortably in one day, in the absence of this evidence, the applicant's costs should be taxed upon the basis of a single day's hearing.