255 On this basis his assessment was claim A (6.07ha) at a rate of $30,000/ha resulting in a figure of $182,100; claim B (1.45ha) at a rate of $30,000/ha resulting in a figure of $43,500 and claim C (8.56ha) at a rate of $30,000/ha resulting in a figure of $256,800. The total is $482,400, rounded to $485,000.
Claim D - Mr Lunney
256 Because there was no change in the before and after scenarios for claim D Mr Lunney considered there was no change in value as a result of the acquisition. He assessed compensation as nil.
Conclusion
257 Mr Wotton considered that under scenario 1, compensation of $5,681,651 was payable for market value and injurious affection (plus the noise barrier claim of $2.093 million). The Court could not arrive at that figure based on the evidence because no figure was provided by Mr Wotton for injurious affection for claim A. Mr Lunney's calculation of the before value ($18,400,000) and after value ($17,950,000) resulted in compensation of $450,000 (plus $125,000 for disturbance). However when calculated piecemeal, above, a rough figure of $485,000 was arrived at.
Finding on rate/hectare in before and after valuation
258 The Court must determine what a hypothetical purchaser and vendor would do as at the date of acquisition when determining compensation, calculated here on the before and after approach .
(i) lot yield/development constraints
259 The majority of the land (claims A, C and D) is timbered compared to the majority of the comparable sales, which are largely cleared. Part of claim C is identified as core koala habitat on Council's Area 13 - Thrumster LES. Generally the land the subject of the claim is considered to be highly constrained as identified in the RTA's evidence on fauna, particularly in relation to koalas, and flora to a lesser extent. It is agreed that 70-80 per cent of claim D is within the Council's 1:100 year flood plain mapping. A large proportion of claim D is low lying and therefore constrained from development.
260 The Applicant submitted that the relevance of the ecological issues was to determine dwelling yield rather than whether or not there can be development consistent with the finding in relation to fauna at par 177. The ecological constraints raise more fundamental questions for a prudent hypothetical purchaser and vendor than simply what yield a prudent hypothetical purchaser might apply. The Court accepts the RTA's submission that the vendor and purchaser would, after negotiation, consider that the land had some development potential in the future in the medium to long term, not the short term (see next section).
261 Having regard to the uncertainty of when the claim areas may be rezoned given the level of environmental constraint, and the range of opinions expressed on lot yield, the lot yield basis of assessment (a hypothetical development calculation), is considered to be too subjective and unreliable at this stage of the planning process of the Applicant's land. For example, for claim C Ms Hollis applied a lot yield of 7 lots/ha, Mr Wotton 4 lots/ha because he considered a conservative approach was warranted and Mr Sanders 0 to 2 lots/ha. That approach is rejected in favour of the direct comparable sales method of valuation for rural sales with future development potential which Mr Lunney adopted as his planning approach.
(ii) time frame for development
262 The valuers applied different time frames for the redevelopment of the residue land assuming it is zoned as rural with development potential. Mr Wotton assumed zoning within three years, and Mr Lunney within 10-15 years. An environmental study must be prepared before rezoning of the Applicant's land will be considered by the Council as identified in HUGS.
263 The Court agrees with the RTA's submissions that the sale at Ocean Parade relied on by Mr Wotton is not comparable and clearly had far less environmental constraints on development than the Applicant's land. It provides no useful guide that rezoning is likely to occur in three years on the Applicant's land. Having regard to the development history of the Applicant's land on Mill Hill and Maher's Headland set out above at par 59-61 and the difference in the ecological evidence of the parties' experts, the Court does not consider the land will be rezoned in two to three years. The time frame is more likely to be considered by the hypothetical purchaser as mid to long term (10-15 years).
264 Further, by virtue of the Council's planning process in Thrumster Area 13 large areas of land adjoining the Applicant's land are zoned for residential use. Timing for residential development in stages is provided for in the DCP. Secondly, in order to develop the northern areas of the Applicant's land, the land to the north and west must be developed first. All these factors suggest that a prudent hypothetical purchaser would consider 10-15 years was a reasonable time frame for development.
(iii) Access in after scenario
265 The Court has considered the issue of access above (par 205-214). The acquisition did result in claims A, B and C losing access to Philip Charley Drive, a public road. The Court also considered access for these northern claim areas was likely to be obtained in the future as part of rezoning for residential use of the land to the north and west of the site in the Thrumster area based on the Council's planning instruments in force at the acquisition date. These matters suggest that Mr Wotton's substantial reduction (90 per cent) in value for loss of access is too great. Mr Lunney considered a reduction of ten per cent was appropriate. The Court held above at par 213 that the appropriate amount which a prudent hypothetical purchaser would apply in the after scenario for loss of value due to lack of access to a public road for claims A and C is 60 per cent. Claim D has not lost access to Philip Charley Drive but a new road needs to be constructed to enable this to occur.
Should Applicant's claim areas be applied?
266 The Court considers that no logical explanation has been provided by Mr Wotton or any other person called by the Applicant as to why the claim areas have been so defined. In particular, there appears to be no logical basis for valuing claims C and D together, Mr Wotton simply adopting the claim as presented to him by the Applicant. The Court does not agree that the approach to the topographical, environmental and ecological features of the varying claim areas is dealt with entirely appropriately by either valuer. As already noted above the claim areas chosen are artificial. The large area of claim D that is flood affected needs to be reflected in a lesser value for that area than either Mr Wotton's approach (because he aggregates it with claim C) or Mr Lunney's approach (because he arrives at one value for the whole of the land, not with separate values for constrained areas).
267 Large parts of claim D have the same environmental constraints as claim B and should be valued accordingly. Claim D should be valued similarly to claim B which it adjoins and with which it shares greater physical similarity given that both are largely flood prone.
268 The Court considers that the following rates are applicable to the Applicant's land having regard to the following considerations.
Claim A
269 Claim A should be valued as rural land with mid to long term potential for residential development. Mr Lunney's sale 1 was not relied upon by Mr Wotton in his report. This sale indicates that the $80,811/ha adopted by Mr Wotton for land zoned rural with some potential for urban zoning is too high. The most comparable sale to claim A is Mr Lunney's sale 4 which showed a rate of $45,832/ha. After adjusting this sale to reflect the Applicant's land's superior location, closer to Port Macquarie, and inferior development potential due to ecological constraints, the Court adopts a rate of $40,000/ha. The before value of claim A is $610,800 being 15.27 ha at a rate of $40,000/ha.