W and H Carter v Roads and Traffic Authority of NSW

Commercial Banking Co of Sydney Ltd v Penrith City Council (1970) 19 LGRA 366; Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company (1947) 74 CLR 358; Constantino v Roads and Traffic Authority of NSW (2004) 135 LGERA 365; Housing Commission of NSW V San Sebastian Pty Ltd (1978) 140 CLR 196; CASES CITED: Marshall v Director-General of Transport (2001) 205 CLR 603; Roads and Traffic Authority of NSW v J M Muir Properties Pty Limited [2005] NSWCA 460; Roads and Traffic Authority of NSW v Perry (2001) 116 LGERA 244; Smith v Roads and Traffic Authority of NSW [2005] NSWLEC 438; Sydney Harbour Foreshore Authority v Walker [2005] NSWCA 251

DATES OF HEARING: 11, 13/10/2005, 5-6/12/2005, 21-22/12/2005

APPLICANTS: Mr M McCall, Barrister SOLICITORS LEGAL REPRESENTATIVES: Hosie and Partners RESPONDENT: Mr R Lancaster, Barrister SOLICITORS Clayton Utz

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30609 of 2004 W AND H CARTER v ROADS AND TRAFFIC AUTHORITY OF NSW

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 This is an objection pursuant to the Land Acquisition (Just Terms Compensation) Act against the amount of compensation offered to the Applicant of $291,000 as determined by the Valuer-General, in respect of the compulsory acquisition by the Respondent of the frontage portion of the Applicants' property situate at Alstonville effected by Notice published in Government Gazette No 21 of 6 February 2004. The acquired portion of the Applicants' land comprises lot 19 in Deposited Plan 1059457 containing an area of 9,337 square metres with a frontage of 150 m to the Bruxner Highway located just before the existing Highway enters the established Village of Alstonville. 2 Prior to the acquisition, the Applicants' property comprised lot 10 Deposited Plan 577308 known as "Waratah" with the address 537 Bruxner Highway, having an area of 17.08 hectares and following the acquisition, the Applicants' residue parcel had an aggregate area of 16.15 hectares, comprised in lot 13 Deposit Plan 1059457. 3 According to the Notice of Compulsory Acquisition, the declared purpose of the acquisition of the Applicants' land (in common with the three other properties included in the Notice) was for the purposes of the Roads Act 1993 and it is common ground that the more particular purpose is to provide for the long planned for highway deviation around the existing Village of Alstonville. 4 According to their Amended Points of Claim filed on 26 October 2005, the applicants claim compensation on three alternative bases. The first basis detailed in par 10 claims compensation for the amount of $1,420,000 representing market value (vide the Just Terms Act, s 55(a) and for the amount of $7,416 representing disturbance loss (vide the Just Terms Act, s 55(d)). 5 The first alternative basis detailed in par 10A claims compensation for the amount of $255,000 representing market value (s 55(a)), for an amount of $7,416 representing disturbance loss (s 55(d)) and for an amount of $1,150,000 representing the decrease in value of the residue of the Applicants' property (vide the Just Terms Act, s 55(f)). 6 The second alternative basis as detailed in par 11 claims compensation in the amount of $390,000 representing market value and for an amount of $7,416 representing disturbance loss. 7 The highest amount claimed is $1,427,416, being the first basis for claim (the second basis yielding a slightly lesser amount of $1,412,416 and the third basis yielding a much lesser amount of $397,416). 8 In his final address, Counsel for the Applicants advanced the first basis of claim as reflecting the preferred "before and after" valuation approach to assessing compensation payable in respect of the compulsory acquisition, which approach captured the full amount of compensation in the one figure embracing the undifferentiated market value, severance damage and decrease in value of residue lands (vide the Just Terms Act, s 55(a), (c) and (f)): see Constantino v Roads and Traffic Authority of NSW (2004) 135 LGERA 365 for its exposition of the "before and after" valuation method. 9 In its Amended Points of Defence filed on 2 December 2005, the Respondent denied the Applicants' entitlement to compensation in the amounts claimed in the Applicants' Amended Points of Claim and asserted instead that the amount of compensation payable was $185,000, comprising (a) market value of $42,000 and (b) decrease in value of residue land of $143,000 plus disturbance. 10 At the end of the hearing, the parties reached agreement that compensation for disturbance should be determined in the sum of $7,442. 11 The competing amounts of compensation contended for by the Applicants and the Respondent are based upon the valuation evidence of the two experienced valuers who gave evidence - Mr Allsopp for the Applicants and Mr Hamilton for the Respondent. 12 Their evidence in turn was based upon the competing town planning evidence given by Mr Connelly for the Applicants and Mr Palmer for the Respondent. 13 Both the valuers and the town planners participated in a considerable amount of joint conferencing which yielded a number of Joint Reports, seemingly covering the fields of possibly relevant town planning and valuation opinions. 14 I have been considerably assisted by the comprehensive evidence given by the valuers and the town planners (despite the fact that very divergent opinions were expressed and the joint conferencing process did not yield any great degree of agreement.) 15 I have also been assisted by a comprehensive view of the relevant properties - the subject land and its physical context and environs and the principal sales relied upon by the valuers. 16 In fairness to the expert witnesses, it should be noted that they were asked in the course of the adjourned hearing to consider the valuation and town planning issues not only as they had perceived them in giving their original expert opinions, but also from the perspective said to emerge from the Court of Appeal's judgment in Sydney Harbour Foreshore Authority v Walker (2005) NSWCA 251 which was handed down on 27 July 2005, after the experts' original reports had been prepared and filed in the proceedings. The Applicants and their experts participated in this process even though it was the Applicants' submission that Walker's case did not apply to the present case. In adopting this stance, the Applicants had the benefit of the more recent judgment of McClellan CJ in Smith v Roads and Traffic Authority of NSW [2005] NSWLEC 438 involving the claim to compensation under the Just Terms Act made in respect of the compulsory acquisition (effected by the same statutory notice as in the present proceedings) of land comprising an area of 8.78 hectares being lot 1 in Deposited Plan 1052078 situate some 200 to 300 metres to the west of the subject land where his Honour declined to apply the approach adopted by the Court of Appeal in Walker, instead preferring to apply what he called the "traditional approach" consistent with the principles enunciated by the High Court of Australia in Housing Commission of NSW V San Sebastian Pty Ltd (1978) 140 CLR 196 and confirmed by the Court of Appeal in Roads and Traffic Authority of NSW v Perry (2001) 116 LGERA 244. 17 For abundant caution (I was informed that the Respondent has appealed McClellan CJ's judgment), the competing expert evidence has addressed the factual questions relevant respectively to (1) compensation for market value; and (ii) compensation for injurious affection raised in the present case by the Just Terms Act, ss 56 and 55(f) by reference both to the traditional approach (as applied in Smith) and to the apparently different approach adopted in Walker. As will later appear, I have not found it necessary to closely examine the expert evidence that has been presented in deference to Walker (albeit with obvious difficulties experienced by the several experts) because I am entirely satisfied that the present case can be properly determined according to the traditional approach. 18 In the present proceedings, the Respondent has re-agitated (but of course in respect of the facts of the present case), precisely the same types of issues which it had raised in Smith. Those issues are concerned with the legal and factual relationship between (i) the Bruxner Highway Deviation proposal bypassing the Village of Alstonville; and (ii) the town planning controls applying to the compulsorily acquired land and the Applicants' residue property, in the context of the admitted fact that, the 9(a) Zoning Reservations - Main Road Proposed of the compulsorily acquired land under the Ballina Local Environmental Plan 1987 (the LEP) should be disregarded for the purpose of determining the market value of the acquired land conformably to the Just Terms Act, s 56 because that zoning was imposed as a consequence of, and for the purpose of, the proposal to construct the Highway By-pass. 19 However, the Respondent denies in its Amended Points of Defence that the Highway Deviation Proposal prevented any part of the Applicants' property from being zoned under the LEP as Residential 2(a) and further denies that in consequence of disregarding the effect on value of the proposed Highway Deviation, the Applicants' property would have been zoned Residential 2(a). 20 In Smith (which involved the determination of separate questions under the adopted Part 31 of the Supreme Court Rules), McClellan CJ ultimately determined five questions (which had involved a refinement of the originally formulated questions in deference to the decision in Walker which was handed down after the original phase of the hearing had been completed). In Smith, an area of 8.78 hectares had been acquired for the purpose of the Highway Deviation out of a total land holding of 52 hectares. At the date of compulsory acquisition, the acquired land was zoned 9(a) "Main Roads Proposed" under the LEP and the relevant portion of the residue land was zoned 7(c) "Environment Protection (Water Catchment)" (that relevant portion being the higher land which did not form part of the Catchment of Duck Creek). 21 At par 7 of his judgment, McClellan CJ stated that the proceedings raised the question of "the development potential of the acquired land and part of the residue lands the value of which was claimed to be affected by the Highway Deviation proposal, where at the original hearing the parties had commonly accepted that that development potential depends upon whether or not, but for the proposal to construct the by-pass" the relevant land "would have been zoned for urban purposes". 22 Ultimately, the questions (refined in deference to Walker) requiring determination were as follows: 1. Was the zoning, or the failure to change the zoning, of that part of the land zoned 7(c) Environment Protection (Water Catchment) caused by the proposal to carry out the development of the by-pass? 2. If so, what was the prospect of zoning or rezoning that land to either 2(a) Living Area, 2(b) Village or 1(a1) Rural, had it not been zoned 7(c) Environment Protection (Water Catchment)? 3. Accepting that the zoning of that part of the resumed land zoned 9(a) (Main Roads Proposed) was a step in the proposal to carry out the development of the by-pass what was the prospect of zoning or rezoning that land to either 2(a) Living Area or 2(b) Village or 1(a1) Rural, had it not been zoned 9(a)? 4. As an alternative to question 2, at the date of acquisition, would the land have been zoned 2(a) Living Area, 2(b) Village or 1(a1) Rural had it not been zoned 7(c) Environment Protection (Water Catchment)? 5. As an alternative to question 3, at the date of acquisition, would the land have been zoned 2(a) Living Area or 2(b) Village or 1(a1) Rural had it not been zoned 9(a)? 23 His Honour's determinations of these questions were as follows: Question 1. Yes. Question 2. At the date of acquisition the prospect of it being rezoned 2(a) Living Area was highly likely and had been since at least 1989. In the early 1970s there was a reasonable prospect of the land being rezoned village. Question 3. At the date of acquisition the prospect of it being rezoned 2(a) Living Area was highly likely and had been since at least 1989. In the early 1970s there was a reasonable prospect of the land being rezoned village. Question 4. 2(a) Living Area. Question 5. 2(a) Living Area. 24 Although the decision in Smith essentially involved relevant factual findings based upon the evidence adduced in that case and accordingly that decision does not govern the outcome in the present proceedings, it is not without significance that in re-agitating the factual issues concerning the relationship between the Highway Deviation proposal and the manner in which the LEP has zoned the Applicants' land, the Respondent has essentially presented the same evidence (documentary and testimonial) as that which it presented in Smith (apart from the obvious differences in the precise details of the respective properties, which are geographically very proximate to one another). 25 Thus in this case, as in Smith, the documentary materials trace back to discussions, negotiations and decisions concerning the Highway Deviation in the early 1970s involving the Tintenbar Shire Council and the Department of Main Roads. There is no dispute between the parties that the documentary materials establish that by the mid 1970's the location of the Highway Deviation immediately to the south of the existing Village of Alstonville had been decided and was public knowledge. As in Smith, the Respondent relied upon the town planning evidence of Mr Palmer, a planning consultant. His evidence in the two cases, prepared at about the same time, was substantially the same - both in his methodology (investigating past records held by the Council etc) and in his opinions. 26 In Smith, his town planning opinions were firmly rejected by McClellan CJ who accepted the competing town planning opinions of Mr Thorpe (who had been the Engineer (Planner) of Tintenbar Shire during the 1970s) and of Mr Connelly (a planning consultant who had been an employee of the Ballina Council during the 1980's who was involved in the planning processes leading to the making of the LEP in 1987). 27 In the present case, the Applicants have called Mr Thorpe and Mr Connelly and their evidence in the present case again appears to be substantially the same as their evidence given in Smith. (In concluding that the expert planning opinion evidence in both cases was substantially to the same effect, I do not imply that I have seen their evidence given in Smith, rather I have reached my conclusion on the basis of the reasons for judgment in Smith where McClellan CJ provides a comprehensive summary of the competing town planning evidence and of his reasons for accepting the evidence of Mr Thorpe and Mr Connelly and for rejecting the evidence of Mr Palmer.) 28 It is because of these very obvious similarities between the issues raised in the two cases and the evidence presented in support of the competing cases that I venture to say that it is somewhat surprising that the Respondent would seek to re-agitate the same types of issues that it had raised in Smith upon the basis of substantially the same town planning evidence in circumstances where its case had been decisively rejected in Smith. 29 I appreciate that the Respondent's case preparation in both cases had preceded the decision of the Court of Appeal in Walker and I appreciate that after the Smith decision was given the Respondent sought to stay the present proceedings pending the determination of its appeal against the decision in Smith. However, when its application for a stay of the present proceedings failed, it had the opportunity to consider whether it would, in these proceedings choose to re-agitate the same issues upon which it had failed in Smith or would choose not to re-agitate them (but on a basis that would preserve its right of appeal along the same lines of its appeal against the decision in Smith). 30 In making these observations, I of course recognise the legal entitlement of the Respondent to re-agitate in the present proceedings the same issues based upon the same evidence upon which it relied in Smith. Rather, I am referring to matters of public policy and public responsibility and accountability that might reasonably be assumed to inform the decisions taken by the Respondent, even in the context of it being a party to proceedings brought against it for compensation under the Just Terms Act. 31 It will be apparent from what I have said that the key to determining the amount of compensation payable in the present case (representing (i) market value; and (ii) injurious affection in terms of the Just Terms Act, ss 55(a) and (f)) is to determine whether the Highway Deviation proposal has destroyed (or otherwise significantly impaired) the potentiality for urban development of the Applicants' property (both in respect of compulsorily acquired land and the residue land or any part of it) by virtue of the proposal's influence on the creation and maintenance of the restrictive zonings under the LEP applying to the Applicants' property, which preclude any development realising that potentiality. 32 The determination of that issue will facilitate the sifting and evaluation of the sundry valuation opinions that have been proffered in this case (necessarily so, given the various planning assumptions relevant to the development potentialities of the Applicants' property that the valuers have had to factor in to their multiple valuations). B. THE COMPULSORILY ACQUIRED LAND 33 Prior to the registration on 21 October 2003 of Deposited Plan 1059457, prepared on behalf of the Respondent preparatory to the compulsory acquisition of lands required for the Highway Deviation (including the Applicants' land), the Applicants' land comprised lot 10 in Deposited Plan 577308 containing an area of 17.08 hectares. (A copy of the relevant extract of Deposited Plan 1059457 is annexed hereto and marked "A"). 34 The following physical details relevant to the Applicants' property (immediately prior to its compulsory acquisition) are provided in Mr Allsopp's Valuation Report (Exhibit 7): Location The property is situated adjoining rural farm lands on the eastern entry to Alstonville in a 60 kilometre per hour speed zone, on the Bruxner Highway. The property is located on the western side of the highway in a rural environment, however, directly opposite is the residential Ocean View estate, with residential development commencing on the land's western boundary at the northern corner. Alstonville's business area, schools etc. are only one and half to two and half kilometres to the east, whilst Ballina is six to eight kilometres to the east. Access to Alstonville shops, football fields, services and facilities are available from the property by walking or by bike. The property adjoins the existing Bruxner Highway. Alstonville Alstonville is situated between Lismore (22 kms) and Ballina (8 kms) on the Bruxner Highway in north-eastern New South Wales. It is an attractive village with a small central core of older homes but has expanded significantly within the past 30 years to a population of around 4,773 (1996 census) with a growth rate of 0.2% (annual average). The village lifestyle, the mild climate, green country side and proximity to the coast make it a popular place for retired folk and young families. There are shopping and banking facilities, restaurants motel, hotel, primary and high schools, churches, sporting facilities including a community pool and community centre. The Land The property consists of about 11 hectares of gently sloping land which is, in the main, cleared having soils that are deep and volcanic in origin which are highly suitable for horticulture. The steeper slopes, which cover about 6 hectares, are part timbered with the southern boundary being the northern bank of Duck Creek. The home is situated about 120 metres south of the Bruxner Highway and is amidst attractive, mature shrubs and trees in a park-like environment. From the house pleasant local views are available, with the home curtilage area creating its own attractive ambience. A significant feature of the property, however, is the very appealing ocean views commencing at a point about 300 metres off the Bruxner Highway. These views are generally to the south and to the east which range from valley views to the lower cane fields to the Richmond River and thereto the South Pacific Ocean. Services: electricity, town water, septic telephone, with Bruxner Highway being bitumen sealed. Improvements A. Main Structure Present Use: Residence occupied by W G & H A Carter Building Type: Well restored, federation style timber home Built About: 1914 to 1918 (extensive renovations in the last 6 years) B. Ancillary Improvements · Landscaping, driveway, lawns and gardens surrounding the main homestead · Tennis Court · Triple car garage constructed of metal walls with a metal roof, concrete floor with three roller doors - no power · Tractor carport constructed of galvanised steel roof, earth floor · Old bail and dairy constructed of weatherboard with a galvanised iron roof part open concrete floor - no power · Macadamia nut plantation about 2500 trees (600 x 4 year old plus 1400 x 3 year old plus 500 x 2 year old). There are four different varieties · Creek water, town water supply · Fencing: Typical rural wooden post barbed wire fences, but part linkmesh to exclude wallabies from macadamia nut plantation. 35 At the date of compulsory acquisition, the Applicants' property (including the compulsorily acquired land) was the subject of the following easements (which were expressly excluded from the compulsory acquisition): (i) Easement for pipeline affecting the part(s) shown so burdened in the title diagram. (ii) Easement for right of carriageway affecting that part of the land within described shown as proposed right of carriageway 10 metres wide in DP 577308. (iii) Right of carriageway affecting the part of the land within described shown so burdened in DP 639947. (iv) Easement for transmission line affecting the part of the land within described shown as proposed easement for overhead transmission line 15 & variable width in DP 235226. 36 At the date of compulsory acquisition different parts of the Applicants' property were differently zoned under the Ballina Local Environmental Plan 1987 (the LEP) as follows: (i) the frontage strip comprising lot 19 in Deposited Plan 1059457 containing an area of 9,337 square metres was included in Zone No 9(a) " Road - Main Road Proposed "; (ii) the part next adjoining that zone and comprising approximately six hectares was zoned 7(c) " Environmental Protection (Water Catchment) "; (iii) the part next adjoining that zone and comprising approximately seven hectares was zoned 1(b) " Rural - Secondary Agricultural land "; and (iv) the remaining rear land comprising approximately three hectares was zoned 7(d) " Environmental Protection - Scenic/Escarpment ". 37 An extract from the zoning map referred to in the LEP is annexed hereto and marked "B" showing the Applicants' property with its various zonings. (The map also shows part of the Smith land two properties to the west of the subject land.) 38 Prior to the compulsory acquisition, the Highway Deviation Proposal was the subject of an Environmental Impact Statement publicly exhibited in 1998 and an Environmental Impact Assessment dated 2003. Those documents provide considerable detail of the proposal. In his Valuation Report, Mr Allsopp provided the following understanding of the impacts on the Applicants' residue property of the carrying out of the Highway Deviation proposal (which is relevant to his "after" valuation in his "before and after" valuation exercise): The area of the property before the acquisition was 17.08ha and following the acquisition it has been reduced to an area of 16.15ha. The current access will change from being directly onto the Bruxner Highway to a newly created cul-de-sac access. The Roads and Traffic Authority of NSW is to fence along the new property boundary and will reconnect all services. …………… The balance of the land would have been zoned 7(c) Environmental Protection Water Catchment and 7(d) Environmental Protection - Scenic/Escarpment and Rural 1(b) Rural - Secondary Agricultural Land. I assume that the public work will be constructed in accordance with the Environmental Impact Statement dated 1998 and the Environmental Impact Assessment dated February 2003. There have been some modifications to the proposal. Although this is a rural property it is within the 60 kilometre per hour speed zone of Alstonville and the Ocean View residential estate is directly opposite on the northern side of the Bruxner Highway. After the Alstonville Bruxner Highway bypass is in place the residue property will be impacted in terms of the highway being brought closer to the house, a loss in significant attractive buffer vegetation and the highway will be quite close to the owner's tennis court. One benefit will be that the property, in the after circumstance, will no longer have direct access onto the Bruxner Highway, none-the-less, presently ( Before ), this section of the highway is a designated 60 kilometres per hour speed zone and has a speed camera within 200 metres which has the result of causing traffic to not exceed that speed limit. Thus, the present access is quite safe. A negative aspect to the new access will be that it will now be a far longer walk to houses in Alstonville. C. THE PLANNING ASSUMPTIONS REQUIRED TO BE MADE IN ASSESSING COMPENSATION 39 As earlier noted, the Respondent conceded in its Amended Points of Defence that the 9(a) zoning of the compulsorily acquired land must be disregarded in determining the market value of the compulsorily acquired land conformably to the definition of "market value" contained in the Just Terms Act, s 56. 40 Additionally, in one of their Joint Reports (Exhibit 13), the valuers agreed that that zoning had the effect of decreasing the value of the compulsorily acquired land. 41 However, competing cases have been advanced as to what planning assumption must be made concerning the compulsorily acquired land to fill the void created by the statutorily mandated disregarding of the actual 9(a) zoning under the LEP. It was the Applicants' case (based upon the evidence of Mr Connelly and Mr Thorpe) that the required assumed zoning of the compulsorily acquired land was Residential 2(a) and that zoning would have been achieved at a time in the relevant planning history of the Village of Alstonville many years before the date of the compulsory acquisition. This opinion separately expressed by Mr Thorpe and Mr Connelly concerning the assumed zoning of the compulsorily acquired land also applied to that part of the Applicants' residue land which was outside of the Duck Creek catchment area. (It was common ground that the relevant part of the Applicants' property which lay outside that Catchment Area was the front portion of the property comprising an area of 2.061 hectares (which includes the compulsorily acquired land) as shown on the plan prepared by Mr Surveyor Taylor, being Exhibit 1). 42 The Respondent's competing case, based upon the evidence of Mr Palmer, was that the assumed zoning of the compulsorily acquired land would be 7(c) Environmental Protection - Water Catchment and that there would be no change in the actual zoning of the residue land. It was Mr Palmer's opinion as expressed in his Report (Exhibit A) at p 23 that "neither the subject land (ie the compulsorily acquired land) nor the original parcel would have been able to secure an urban zoning and approval for the development into residential lots. (C)onsequently the acquisition has had no adverse impact on the development potential of that portion of the original parcel retained by the Applicant". 43 Earlier in his Report at p 20, after noting that the Highway Bypass proposal had been informally identified in the 1975 Tintenbar Shire Council Land Use Strategy for Alstonville/Wollongbar showing the proposed By-pass route as "bordering the southern section of the existing Alstonville area", Mr Palmer expressed the opinion that had the By-pass corridor not been so shown in the 1975 Land Use Strategy for Alstonville, the subject land would have been identified in the Strategy as being "non-urban". This opinion is expressed to be based upon "the high agricultural value of the land and the need to protect the Duck Creek catchment from inappropriate land uses". 44 Mr Palmer's opinion as to the probable non-urban zoning of the Applicants' property had the Highway By-pass proposal not been shown in the 1975 Land Use Strategy for Alstonville is diametrically opposed to the following opinions expressed by Mr Thorpe in pars 21 to 24 (inclusive) of his affidavit (Exhibit 2): The southern development of the Alstonville village as indicated in the Strategy was defined by the Bypass which is coloured red and marked Motorway on the document. Had it not been for the Bypass I would have identified on the document further areas of Future Development south of the Bypass. This is because those lands had the same favourable attributes for residential development as the lands to the immediate north of the Bypass. I would have included lands south of the Bypass for future development up to the line of the Duck Creek water catchment area. Such an approach in my view would have been consistent with the principles expounded by Ian McHarg and which I was attempting to follow in the proposed development of Alstonville. I am familiar with the location of the property owned by Mr & Mrs Carter being the land compromised in Folio Identifier 10/577308 (now Lots 19 and 13 in DP 1059457), known as Waratah, 537 Bruxner Highway, Alstonville which is the subject of these proceedings. At the time of the preparation of the Strategy, Mr & Mrs Carter's property would have been identified as being suitable for future development up to the line of the Duck Creek catchment area if it had not been for the location of the Bypass. As it was the location of the bypass prevented the sensible identification of Mr & Mrs Carter's land as being suitable for Future Development because it would be inconsistent with the planning principles I was attempting to follow for the Alstonville area. Tintenbar Council and the Ballina Municipality were amalgamated with effect from January 1977. I was appointed Shire Engineer/Planner of the newly formed Council of the Shire of Ballina. The Council implemented Ballina LEP No 6 with effect from 2 October, 1981. The land affected by this instrument is marked 8 and shaded yellow on plan 4.1 to the Connelly report. It is my view that such zoning would have extended to part of the land owned by Mr & Mrs Carter up to the edge of the Duck Creek catchment area except for the Bypass proposal. 45 The reference in par 24 of the affidavit to the land shaded yellow and marked "8" is a reference to the land so delineated in Plan 4.1 included in Mr Connelly's Report (Exhibit 3). A copy of that plan is annexed hereto and marked "C". The front portion of the Applicants' property is shown on that plan and on the annexed copy of the plan, I have cross-hatched the Applicants' property to better appreciate its spatial relationship to the progressively expanded Village of Alstonville (including in particular Area "8"). 46 Earlier in his affidavit, Mr Thorpe discloses that he was employed by the Tintenbar Shire Council as Shire Engineer from 1967 and in 1970 following introduction of planning controls in the Shire, he was also appointed the Shire's Town Planner and it was in that capacity that he (i) negotiated in the early 1970's on behalf of the Council with the Department of Main Roads concerning the selection of the route of the proposed Highway Deviation (for the highway to by-pass the Village of Alstonville) and his participation strongly influenced the selection of the route; and (ii) authored the Tintenbar Land Use Strategy. 47 Mr Connelly's relevant opinion as expressed in Section 5.1 of this Report (Exhibit 3) is very similar to Mr Thorpe's opinion, when he states the following: In my opinion, the proposed highway diversion around the southern side of Alstonville has defined that edge of the village since at least 1973 and possibly earlier. Zone lines have been constructed to conform with this edge since that date. This is clear when one observes the southern shape of IDO Amendments 1, 2 and 4. A large swathe of land on the southern side of Alstonville is and was physically suitable for rezoning purposes. However, in my examination of the historic Tintenbar Land Use Study, rezonings that occurred as amendments to the then Tintenbar Interim Development Order (which I researched at the Grafton Office of DIPNR) Local Environmental Plan (which I researched at Ballina Shire Council), adopted the proposed Alstonville By-Pass as the southern edge of the village. The Carter property is a small piece of a larger swathe of land around the southern edge of the village which was outside the water catchment and physically suitable for development purposes. I am of the opinion that had it not been for the main road proposal all of the land physically suitable for urban purposes, as illustrated in Plan 5.1 , would have, in time, been zoned for 2(a) Living Area under the Ballina Local Environmental Plan.

( Plan 5.1 includes the relevant part of the subject property, together with neighbouring lands to the east and west (the latter including the Smith land.) 48 Mr Connelly's professional career includes five years employment by the Ballina Shire Council (from 1981 to 1986), during which period he was actively involved in the preparation of the Local Environmental Study and Draft Local Environmental Plan (which became the adopted LEP in 1987). 49 In my opinion, the town planning opinions of Mr Thorpe and of Mr Connelly are decisively to be preferred to Mr Palmer's competing opinions. In forming and expressing their opinions they enjoyed a great advantage over Mr Palmer by dint of their successive personal involvements with the planning decisions affecting Alstonville from 1970 when planning controls were first introduced to Tintenbar Shire (when the geographical extent of the Village was confined to Area 1 shown on Mr Connelly's Plan 4.1) to 1987 (when Ballina LEP came into force by which time the geographical extent of the Village had embraced Areas 1, 2, 3, 4, 5, 6, 7, 8 and 9 as shown on that Plan). In contrast to their personal involvements in the relevant planning history of Alstonville, Mr Palmer's opinions derive from his historical research into past events in which Mr Thorpe (in particular) and Mr Connelly were active participants. 50 But apart from the obvious advantage of personal involvements in the events constituting the relevant planning history for the Village of Alstonville, I am satisfied that the opinions of Mr Thorpe and Mr Connelly far more aptly, accurately and compellingly (than does Mr Palmer's competing opinion) demonstrate the zoning probabilities that necessarily arise by the application of the "but for" test (ie "but for" the emergence by the mid 1970's of the Highway Deviation proposal, what was the probable zoning scenario during the relevant planning history for the Applicants' property (in common with other lands adjoining the southern boundary of the Village of Alstonville) recognising its development potentialities by dint of its natural advantages, including its close proximity to the existing Village boundaries in the planning context of a recognised planning need for the orderly expansion of that Village?). Their opinions also, in my judgment, more aptly recognise the nexus or causal relationship between the Highway Deviation proposal and the zoning decisions relevant to the expansion of the Village of Alstonville during the relevant planning history spanning the years 1973 to 1989 as annotated on Mr Connelly's Plan 4.1 (reflecting the progressive expansion of the Village boundaries). 51 Like McClellan CJ in Smith, I have not been at all persuaded by the reasons supporting Mr Palmer's opinions. His Honour's reasons extensively revealed why he came to reject Mr Palmer's opinions and in particular his supporting reasons, and I too have come to a similar judgment for similar reasons (which need not be repeated here). Moreover, some of the reasons propounded by Mr Palmer for his competing opinion appear to me to be affected by hindsight in terms of more recent developing planning policies and actions which have occurred far later than the probable dates for the rezoning of the Applicants' property in common with the neighbouring properties. That this should occur is not at all surprising because the compulsory acquisition occurred some 30 years after the Highway Deviation proposal came into existence and first became publicly known (being delineated in the 1975 Tintenbar Land Use Strategy if (as is probable) not known earlier). Moreover, because the Highway Deviation proposal entirely foreclosed the option of expanding the Village boundaries to the south of the existing Village, a proper understanding of the planning history of the Village of Alstonville between 1973 and 1989 necessarily must recognise the continuing effect on that history of that planning foreclosure, and conversely what probably would have occurred in that planning history if there had not been that planning foreclosure. 52 These are intrinsically difficult tasks, but they must be properly undertaken in order to arrive at the determination of just compensation in the present case reflecting not only the market value of the compulsorily acquired land (unaffected by the proposed Highway Deviation) - in addition to s 56(1)(a), see the express object contained in the Just Terms Act s 3(1)(a)) - but also any decrease in the value of the residue land by reason of that proposal (see the Just Terms Act, s 55(f)). 53 For all of the foregoing reasons, I find that the existence of the Highway Deviation proposal which became a matter of public knowledge with the publication in April 1975 of the Shire of Tintenbar Land Use Strategy, has since that time profoundly influenced the subsequent planning history concerning the Village of Alstonville and its planned expansion progressively achieved during the period 1973 to 1989 by entirely foreclosing all options for the southerly expansion of the existing Village beyond the adopted route for the Highway Deviation. I further find that but for that Highway Deviation Proposal, lands adjoining the southern boundary of the Village (including the Applicants' property) would (except for those parts located within the Duck Creek Catchment Area) probably have been included within a southerly expansion of the Village which probably would have occurred by 1981 (when Area 8 was added to the Village). 54 Accordingly, and for all of the foregoing reasons, I find that the planning assumption to be made consequent upon disregarding the 9(a) zoning of the compulsorily acquired land (because it was a step in the resumption process and because it was a zoning directly related to and influenced by, the Highway Deviation proposal), is that the land was, at the date of acquisition, included in the Residential 2(a) Zone. 55 Further, I find that the actual zoning as 7(c) Environmental Protection (Water Catchment) of that part of the Applicants' residue land that is situate outside the Duck Creek Catchment Area was created and maintained (so as to exclude the realisation of its potentiality for urban development) "by reason of the Highway Deviation proposal" within the meaning of the Just Terms Act, s 55(f) and that for the purpose of determining compensation for injurious affection, it is necessary to disregard that zoning and that in consequence of the creation of that zoning void, it is necessary to determine how that part of the residue land would have been zoned "but for" the existence of the Highway Deviation Proposal. For the same reasons that justified the planning assumption in respect of the compulsorily acquired land, the planning assumption to be made in respect of that part of the Applicants' residue property is that it too is included in the Residential 2(a) Zone, as at the date of compulsory acquisition. 56 It was in respect of the injurious affection component of the Applicants' claim to compensation that early in the hearing I queried whether it was open to the Applicants to base their claim for injurious affection upon the disregarding of the actual zoning under the LEP of the residue property which had been created and maintained throughout the planning history by reason of the Highway Deviation proposal. In raising this query, I referred to my decision in Constantino while recognising that the facts of that case were very different from the facts of the present case. 57 It was in response to my query that during the adjournment of the hearing the Applicants filed their Amended Points of Claim which included an alternative claim based upon the Just Terms Act, s 55(f) (that I have earlier mentioned). 58 As I also have previously noted, in his final address, Counsel for the Applicants has advanced as the principal basis for the claimed compensation "the before and after valuation" undertaken by Mr Allsopp which adopts as the planning assumptions concerning the Applicants' property in the "before valuation" Mr Connelly's opinion (which I have now accepted in conjunction with my acceptance of Mr Thorpe's similar opinion) and adopts in the "after valuation" the actual zoning under the LEP of the residue lands. 59 This preferred basis for the Applicants' claim to compensation now appears to be supported by the very recent decision of the Court of Appeal in Roads and Traffic Authority of NSW v J M Muir Properties Pty Limited [2005] NSWCA 460 (which was handed down on 21 December 2005, coinciding with the filing of the Applicants' written submissions in reply in this case and accordingly not known to the parties). 60 The relevant passage in the judgment of Tobias JA (with whom the other Justices agreed), is found in the following extract (comprising pars 101 to 104 (inclusive)) dealing with the respondent's notice of contention: As I understand the respondent's argument on the issue raised by its notice of contention, it was submitted that his Honour's decision with respect to its claim for compensation for injurious affection should be affirmed upon the basis that the Pointe Gourde principle referred to in Murphy applied to s55(f). Accordingly, to the extent to which cl 44 was included in the LEP and DCP 200 was adopted by the Council at the instigation or urging of the appellant after it had taken the decision in 1999 to promote an expanded Windsor Road to provide the necessary public transport corridor to service the Mungerie Park Sub-regional Centre, they should be disregarded. As the primary judge correctly observed, the Pointe Gourde principle is now encapsulated in sub-paragraph (a) of the definition of market value in s56(1) of the Just Terms Act. As a matter of construction, that provision is confined to the determination of market value which, as a statutory expression, is referred to only in s55(a) of that Act. However, given the nature of the before and after valuation exercise called for by s55(f), I see no reason why, as a matter of valuation principle, the Pointe Gourde principle has no part to play in the determination of the issue of injurious affection under s55(f). In its oral submissions in reply, the appellant properly conceded as much. It is often the case that when only part of a dispossessed owner's land is compulsorily acquired, a before and after valuation exercise of the whole of that owner's land is conducted. In other words, the market value of the land before acquisition is determined (including the acquired land) as is its value after acquisition (excluding the acquired land). In this way the difference between the two values determines not only the market value of the acquired land but also captures any injurious affection to the retained land by reason of the acquisition for the public purpose. This approach will also, in an appropriate case, capture any loss due to the severance of the dispossessed owner's land by that acquisition. In proceeding according to that approach, there has never been any doubt that the Pointe Gourde principle is applied in the before valuation exercise. In other words, the before value is determined on the basis of disregarding any decrease in the value of the land arising out of the purpose of the compulsory acquisition and any steps in the scheme leading to that acquisition. It is only in the after value that any decrease by reason of the proposed implementation of the public purpose for which the resumed land was compulsorily acquired is taken into account. 61 His Honour's acceptance of the application of the "Pointe Gourde" principle to the determination of compensation for injurious affection in accordance with the Just Terms Act, s 55(f) may demonstrate the advantage that the doctrine of injurious affection may confer upon the landowner, part of whose land is compulsorily acquired, leaving a residue subject to a restrictive zoning (upon which the doctrine operates) compared with another landowner whose land is subject to the same zoning restrictions but because none of the land is compulsorily acquired, he has no claim to compensation in respect of that zoning restriction. 62 However, the decision of the High Court of Australia in Marshall v Director-General of Transport (2001) 205 CLR 603 mandates that a generous approach be given to the doctrine of injurious affection and to the application of that doctrine in a given case. 63 Accordingly, I am satisfied that the Applicants' primary basis of claim is legally sound and I propose to adopt it. This conclusion is not inconsistent with my holding in Constantino that the "before" and "after" valuation methodology was not appropriate because it produced a result that was contrary to the Just Terms Act, s 55(f): see at pp 372 to 374 (inclusive). 64 This is because in the present case I have found that the Highway Deviation Proposal was the cause for creating and maintaining the restrictive zoning of the Applicants' land whereas in Constantino there was no foundation in the evidence to attribute to the proposed public work (the new Motorway) the restrictive zoning (open space) applying to the residue land at the date of compulsory acquisition: see at pp 374 to 376 (inclusive). 65 Having established the relevant planning assumptions that are to be factored into the relevant valuations, it is now convenient to consider and adjudicate upon, the competing valuation evidence. D. THE COMPETING VALUATIONS 66 As earlier noted, the principal valuation relied upon by the Applicants is Mr Allsopp's "before and after" valuation exercise as set forth at pp 30 to 35 (inclusive) of his original Report (Exhibit 7) as corrected by him in the Valuer's first Joint Report (Exhibit 9) those corrections being the substitution of the figure of "2.061 hectares" for the figure of "2.994 hectares" (being the area of the Applicants' property that was situate outside of the Duck Creek Catchment Area (including the area of the compulsorily acquired land ie 9,337 square metres). The incorrect figure had originated in Mr Connelly's Report (Exhibit 3) by virtue of his misunderstanding of Surveyor Taylor's plan (Exhibit 1). 67 Mr Allsopp's corrected "Before" Valuation was as follows:

Land Component A 2.061 ha en globo: $80,000Per lot @ 14 lots $1,120,000

B 15.019 ha Homesite/farm with ocean views ($65,582 per hectare) $1,000,000

C Structures 1. House (excludes attractive trees and parklike surrounds and some improvements " lost " in the subdivision, including tennis court and garage.) The house would lose some of its appeal and it would not be well sited to the new street $250,000

3. Macadamia Plantation (2500 trees @ $30 per tree) $75,000

LESS an amount representing profit/risk and cost to clear some of macadamia trees and bring services to new 15.019 ha ocean view site Say $100,000

A. Land Component 16.15 hectares site. This site has excellent ocean views but the house is sited where there are no ocean views and it is relatively close to the highway. The value adopted reflects that fact $32,500 per hectare) $525,000

B. Structures Component Main house and surrounds $315,000 Landscaping/trees $10,000 Tennis Court $5,000 Garage $10,000 Old bails and dairy/tractor shed $10,000 Macadamia Plantation $75,000 $425,000

Less cost to reinstate building entitlement $ 15,000

Deducting the " after " value from the " before " value yields the following amount of compensation

"Before " Value $2,355,000 " After " Value $935,000 Difference = Compensation $1,420,000 68 The principal valuation relied upon by the Respondent is Mr Hamilton's "before and after" valuation exercise as set forth at pp 21 to 25 (inclusive) of his original valuation Report (exhibit B). In undertaking that exercise, Mr Hamilton had regard to Mr Palmer's town planning opinion as to the highest and best use of the Applicants' property and the underlying zoning of it after the 9(a) zoning is disregarded. 69 Additionally, Mr Hamilton, as a valuer expressed the following opinion at p 21 of his Report: Having regard to the attributes of the subject property in the before situation, it is my opinion that, any residential development of the property would have been unlikely to have been approved. The access arrangement that existed prior to the acquisition was unsuitable for residential development. In addition, the encumbrances on the property were significant and would likely have prevented residential development on a significant portion of the acquired land and some of the residue. 70 Mr Hamilton's "before" valuation is as follows:

Land 17.08 hectares @ $45,000 per hectare $770,000 Improvements Residence $400,000 Landscaping $ 80,000 Tennis Court/farm buildings $ 45,000 Macadamia trees $ 100,000 $625,000

Total $1,395,000 (I interpose that Mr Allsopp's " before " value on the assumption that the property possessed no residential subdivision potential was for $1,325,000. In their first Joint Report ( Exhibit 9 ), the Valuers agreed upon Mr Hamilton's " before " value if the property possessed no potentiality for higher development) 71 Mr Hamilton's "after" value was as follows:

Land 1.5 hectares @ $45,000 per hectare @ 20 percent diminution in value $54,000

14.65 hectares @ $45,000 hectares $660,000 $714,000

Improvements Residence $400,000 less 20 percent diminution in value $320,000

Landscaping $80,000 less 50 percent diminution in value $40,000

Tennis Court/farm buildings $45,000 less 20 percent diminution in value $36,000

Deducting the " after " value from the " before " value yielded the following result:

Difference = compensation $185,000 72 Although these competing valuations of $1,420,000 (Allsopp) and $185,000 (Hamilton) were yielded by the "before and after valuation" methodology contended for by the parties and their respective valuers, the valuers also helpfully prepared alternate valuations based upon common planning assumptions reflecting the overall spectrum of the town planning evidence given by Mr Connelly and Mr Palmer on the assumption that the Applicants' property, at the date of compulsory acquisition, did possess urban/residential development potentiality such as would be recognised and accommodated by an assumed Residential 2(a) zoning of that part of the property that was situate outside the Duck Catchment Creek Area. 73 The overall spectrum of planning opinion, based upon the planning assumption that that part (comprising 2.061 hectares) of the Applicants' property situate outside the Duck Creek Catchment Area is zoned Residential 2(a) can be summarised as follows:

(i) In the " Before acquisition " scenario, Mr Connelly proffered a residential subdivision layout yielding 14 lots compared with Mr Palmer's layout yielding 11 lots .

(ii) In the " After acquisition " scenario, Mr Connelly postulated a no residential/subdivision potential compared with Mr Palmer's opinion that the land offered a better prospect of a residential potential because of the improved access arrangement provided by the proposed service road running parallel to the proposed Highway Deviation.

(iii) On the planning assumption that the Residential 2(a) zone would continue to apply in the after acquisition scenario, Mr Connelly proffered a residential subdivision layout yielding 11 lots compared with Mr Palmer's layout yielding 9 lots. 74 It was in the light of this state of the town planning evidence that the Valuers were asked to address the following questions: 1. Did the 9(a) zoning of the acquired land decrease its value within the meaning of the statutory definition of market value contained in section 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991. 2. If the answer to question 1 is "Yes": (a) what was the value of the acquired land immediately prior to the acquisition if it is assumed that the acquired land was zoned Residential 2(a) at that time in each of the following cases: (b) what was the value of the acquired land together with the land adjoining the acquired land, north of the ridge line, immediately prior to the acquisition if it is assumed that that land was zoned Residential 2(a) at that time? 3. In answering question 2, the valuers are to have regard to the following scenarios: (a) the layout prepared by S J Connelly (containing 14 lots, incorporating the acquired land and the adjoining land) represents a reasonable hypothetical plan of subdivision? (b) the layout prepared by Jock Palmer (containing 11 lots, incorporating the acquired land and the adjoining land) represents a reasonable hypothetical plan of subdivision? 4. What is the value of the adjoining land after the acquisition having regard to the following scenarios: (a) residential potential of the adjoining land is lost by reason of the acquisition; and (b) residential potential of the adjoining land is retained notwithstanding the acquisition?

(To facilitate the valuing task raised by question 4(b), the planners were asked to prepare layouts. Mr Connelly's layout yielded 11 lots and Mr Palmer's layout yielded 9 lots.) 75 Their answers which were prepared during a two month adjournment of the hearing are recorded in detail in Exhibits 13, 13A, and 13B. It is sufficient if I extract the overall comparative results as follows (the Valuers, having agreed that question 1 should be answered affirmatively): A " Before Values " (assuming a residential zoning of 2.061 hectares located north of the ridgeline demarcating the Duck Creek Catchment boundary)

(a) Adopting the Connelly subdivision layout Property Component Allsopp Hamilton (i) North of Ridgeline $1,370,000 $1,160,000 (ii) Residue $985,000 $685,000 Total $2,355,000 $1,845,000

(b) Adopting the Palmer subdivision layout Property Component Allsopp Hamilton (i) North of Ridgeline $1,170,000 $910,000 (ii) Residue $985,000 $685,000 Total $2,155,000 $1,595,000

B After Value (assuming no residential potential) Allsopp Hamilton

Land 1.5 hectares @ $45,000 less 20 percent diminution Land 15.15 hectares @ $32,500 per hectare $525,000 14.65 hectares @ $45,000 per hectare $54,000 Structures/Plantation $425,000 Structures/Plantation $660,000 $496,000 Total $950,000 $1,210,000

C After Value (assuming the retention of the assumed residential zoning and residential potential)

(a) Adopting the Connelly subdivision layout Allsopp Hamilton 11 lots @ $80,000/lot $880,000 15.019 ha $1,000,000 11 lots @ $75,000/lot $825,000 Structures/Plantation: $335,000 15.019ha @ $45,000/ha $675,000 $2,215,000 Structures/Plantation: $335,000 Less Profit/Risk: $100,000 $1,835,000 $2,115,000 Reinstate Building Entitlement: Less Profit/Risk: $100,000 Total: $15,000 Total: $1,735,000 $2,100,000

(b) Adopting the Palmer subdivision layout Allsopp Hamilton 9 lots @ $80,000/lot $720,000

15.019ha $1,000,000 9 lots @ $70,000/lot $630,000 Structures/Plantation: $335,000 $2,055,000 15.019ha @ $45,000/ha $675,000 Less Profit/Risk: $100,000 Structures/Plantation: $360,000 $1,955,000 $1,665,000 Reinstate Building Entitlement: Less Profit/Risk: $100,000 $15,000 Total: $1,565,000 Total: $1,940,000

76 From this comparative valuation data it can be readily seen that in the case of each valuer, the highest amount of compensation is that yielded by adopting the Connelly residential subdivision layout in the "before" value and by adopting the "after" value that reflects the total loss of the residential potential. On this common valuation basis, Mr Allsopp's estimate of compensation if $1,405,000 ($2,355,000 less $950,000) and Mr Hamilton's estimate of compensation is $635,000 ($1,845,000 less $1,210,000). 77 In my opinion, that is the appropriate valuation basis to adopt in the present case. In so concluding, I consider that Mr Connelly's subdivision layout (yielding 14 lots) in the before acquisition scenario is a preferable layout to Mr Palmer's layout (yielding 11 lots) and is one that would more obviously appeal to the hypothetical prudent parties. It is a layout that more efficiently utilises the land resource while minimising the adverse impacts of the existing easements affecting the property. (It should be recalled here that Mr Palmer's principal opinion, even assuming a residential zoning of 2.061 hectares, was that it was unlikely that any residential development would be approved. He also expressed the view that residential development was more likely to occur on the residue after the Highway Deviation had been constructed. I have rejected these opinions.) 78 In the "after acquisition" scenario, it is both logical and more in tune with valuation law and practice to regard the residue land as it is actually affected by the Highway Deviation proposal. If, as I have held to be the case, it was that proposal which induced and caused the creation and maintenance of zoning controls which effectively negatived any residential/urban potential of the Applicants' property (in common with several other neighbouring properties located immediately south of the identified route of the Highway Deviation) it would be anomalous in the extreme to contemplate once the Highway deviation was in place, that a rezoning of the residue land would occur so as to enliven or release a residential urban potential of that land. 79 This must be so, even if the Highway Deviation will provide a service road access for the residue properties (thereby compensating them for the loss of existing highway access) which may result in an improved and safer access arrangement. 80 But even accepting an improved access arrangement for the subject land via the service road proposal (a feature of the Highway Deviation proposal that was much emphasised by both Mr Palmer and Mr Hamilton), it would be contrary to sound planning practice to release for urban development lands fronting onto the Highway Deviation. This was the planning opinion of Mr Connelly and I accept it. As McClellan CJ observed at par 16 in Smith, to have allowed urban development to take place on land situate to the south of the route of the Highway Deviation forming the physical southern boundary to the Village of Alstonville "would have defeated the purpose of having a by-pass constructed in the first place". 81 For all these reasons, I have concluded that in the "after" value, the residue land should be valued according to its actual zoning under the LEP and upon the basis that the existence of the Highway Deviation effectively negatived any potentiality of the residue for urban/residential development . 82 It follows from the foregoing that I am of the opinion that the appropriate valuation methodology to be employed in this case is a before and after valuation which adopts in the "before" value the planning assumptions of a Residential 2(a) zoning that I have held to be applicable (by virtue of the "Pointe Gourde" principle) to both the compulsorily acquired land and the relevant portion of the residue land situate outside the Duck Creek Catchment Area and which adopts in the "after" value the actual zoning under the LEP (and not the assumed zoning that applies in the "before" value because the residue land does not possess any residential/urban potential because of the existence of the Highway Deviation emphatically physically severing that land from the Village of Alstonville). 83 The consequence of adopting this "before" and "after" valuation approach for the present case is that the only relevant valuations out of the multiple valuations given in evidence are the two that I have earlier identified, namely Mr Allsopp's valuation of $1,405,000 (or $1,420,000 as stated in his original Valuation Report, Exhibit 7) and Mr Hamilton's valuation of $635,000. 84 It now becomes necessary to examine more closely the details of these competing valuations, in order to identify what issues are in dispute between the valuers as a prelude to adjudicating upon the competing valuations in order to determine the amount of compensation that is payable in this case. E. DETERMINATION OF COMPENSATION 85 In the case of their "before values" there are two differences between the valuers - namely the assigned en globo value of each of the 14 lots yielded by Mr Connelly's subdivision layout, Mr Allsopp adopting $80,000 per lot and Mr Hamilton adopting $65,000 per lot and secondly, the values assigned to the balance of the property which Mr Allsopp estimates at $985,000 and Mr Hamilton estimates at $685,000. 86 In the case of their "after" values, there are two differences between the valuers - firstly in the value of the land component (where Mr Allsopp adopts a rate of $32,500 per hectare compared with Mr Hamilton's adopted rate of $45,000 per hectare) and secondly, in the value of the structures/plantation (where Mr Allsopp adopts $425,000 and Mr Hamilton adopts $496,000). 87 In respect of the competing "before values" the valuers' assigned values per lot en globo are primarily based upon their selection and analysis of comparable sales and the application of those sales to the subject land with each valuer undertaking by way of check valuation, a hypothetical subdivision/development exercise. 88 The principal comparable sales employed by Mr Allsopp were of two adjoining lots fronting the Pacific Highway at Ballina as part of the Ballina Heights Estate purchased by the same purchaser (the Catholic Church) intending to develop the land for seniors housing. 89 The first sale (lot 20 in DP 1062002) occurred on 15 August 2003 at a contract price of $1,735,000 for an area of land comprising 2.03 hectares. The land was zoned Residential 2(b) with a potential for yielding 17 lots. Mr Allsopp's comments on the sale include the following: House and other improvements on the land are to be demolished to make way for seniors housing. Some ocean views, but distant and they will be built out - Adjoining owner purchase. Vendor owed purchaser about $200,000. This debt was extinguished on sale. Purchaser hoped to average $200,000/block as developed. Shows: 1. $853,838/ha (assume value of house = demolition cost) [or $952,246/ha on $1,935,000] 2. $102,059/block [or $113,823/block on $1,935,000] 90 The second sale (part lot 2 DP1071179) occurred on 30 March 2004 at a contract price of $2,225,000 for an area of land comprising 2.093 hectares. The land was zoned Residential 2(b) with a potential for yielding 22 lots. Mr Allsopp's comments on this sale include the following: Shows: 1. $1,063,067/ha (excluding GST) 2. $100,000/block N.B. Sales 1 & 2. Purchased to establish seniors housing and purchaser bought knowing they were to buy the two. Paid a price representing $100,000/block en globo where costs were $55,000 per lot and an anticipated gross realisation was $200,000 per block. Purchaser concerned about the noise/impact from the Pacific Highway and its proposed upgrade. 91 In applying these two sales to the subject land, Mr Allsopp's Report (Exhibit 7) states: Sales 1 and 2 show $100,000 per lot en globo. The subject has a slightly lower development potential but has higher development costs. It's value must be lower than $100,000 per lot en globo. 92 In his Report in Reply (Exhibit 19), Mr Allsopp supported his value of $80,000 per lot en globo by undertaking a hypothetical development (or residual value analysis) for a 14 lot subdivision of the subject land. (A similar exercise undertaken by Mr Hamilton in his Report (Exhibit B) confirmed his estimate of $65,000 per lot en globo). The different results yielded by these separate hypothetical development exercises is largely to be explained by the fact that Mr Allsopp's exercise was confined to that part of the Applicants' property to which the relevant planning assumptions were applied, whereas Mr Hamilton's exercise applies to the whole of the Applicants' property. Although there is valuation validity in both exercises, Mr Allsopp is, in my opinion, justified in confining the check valuation exercise to the relevant portion of the Applicants' property on the reasonable assumption that its development would be undertaken separately from the remainder of the property and that separation could be readily achieved by an appropriate and simple paper subdivision of the property. 93 Additionally, in his Report in Reply, Mr Allsopp supported his value of $80,000 per lot en globo by reference to sale prices being obtained for developed residential lots in the Alstonville Village which were perceptibly higher than the prices being achieved for completed residential lots away from the Village of Alstonville (eg in the Ballina Heights estate). 94 Mr Hamilton's assigned value of $65,000 per lot en globo was based upon comparable sales that he had relied upon and his check hypothetical development valuation exercise that I have just referred to. 95 The difficulty with the sales evidence relied upon by Mr Hamilton is that it shows en globo rates far less than his assigned value of $65,000 per lot in the subject land. 96 The only geographically proximate comparable sale was another sale in the Ballina Heights Estate. (The other two sales were located at Goonellabah and Murwillumbah). The analysis of the three comparable sales relied upon by Mr Hamilton showed rates of some $27,000, $43,000 and $47,000 per lot en globo. 97 The Ballina Heights sale (lot 1 DP 802860) showed on analysis, $43,000 per lot en globo. Its location was a few hundred metres removed from the two sales in the same estate relied upon by Mr Allsopp but the zonings were different. The sale occurred in June 2003 at the contract price of $6,000,000 for an area of 28.8 hectares. However, the sale land was not zoned for residential development. Instead, it was zoned partly 1(d) Urban Investigation and partly 7(f) Environment Protection. 98 Not surprisingly, Mr Allsopp in his Report in Reply was quick to point out that the zoning of the sale property was likely to involve a deferral of between three to five years before any likely residential zoning was achieved. I agree that the sale provides very little reliable evidence upon which to value the subject land. 99 In my judgment, Mr Allsopp's assigned value of $80,000 per lot en globo is justified, both by reference to the en globo residential sales evidence that he relies upon and by reference to other sources, namely the hypothetical development exercise undertaken by Mr Allsopp and the sales evidence of finished residential lots in the Village of Alstonville in comparison with prices for finished lots being achieved at Ballina Heights. 100 In so concluding, I think there is intrinsically greater assurance in Mr Allsopp's application to the subject land of the evidence of his comparable sales (involving a 20 percent reduction in the values revealed in sales evidence) than in Mr Hamilton's application to the subject land of the evidence of his comparable sales (involving very much higher percentage increases over the values revealed in the sales evidence). 101 Accordingly, for all these reasons, I accept Mr Allsopp's estimate of $80,000 per lot en globo in preference to Mr Hamilton's estimate of $65,000. 102 The only other difference in the competing "before" values is the value assigned to the remainder of the property (ie the 15.019 hectares below the ridgeline that demarcated the southern boundary of the highway frontage portion to which the assumed Residential 2(a) zoning was applied). Mr Allsopp's value of $985,000 reflects a rate per hectare of some $60,000 whereas Mr Hamilton's value of $685,000 reflects a rate of some $40,000 per hectare (after allowing an added value of $85,000 in respect of the existing Macadamia plantation ($75,000) and of old farm buildings ($10,000)). 103 Both values were based upon comparable sales, the two most relied upon, being two sales of rural properties situate at Tuckombil each fronting Teven Road (which commences at the junction with the Bruxner Highway) 100 metres to the west of the subject land). 104 The first sale was of the property known as No 981 Teven Road (some 5 kilometres north of Alstonville Village) comprising an area of 13.4 hectares. It sold for $1,000,000 on 16 March 2004. The analysis of the sale by each Valuer was very similar and in their first Joint Statement (Exhibit 9) they agreed that the analysis of the sale showed a rate of $66,045 per hectare (after allowing $115,000 for the modest improvements). 105 The other sale property was situate at No 1090 Teven Road (a further 1 kilometre north of the first mentioned sale). It occurred on 8 April 2004 for a price of $1,400,000. It was for a larger area (20.5 hectares). It was substantially improved by a house and large macadamia and avocado plantations. The Valuers' analysis of this sale differed only in respect of the value to be attributed to the improvements (Mr Allsopp estimating $588,000 and Mr Hamilton estimating $500,000). Because of these slightly different attributed values, the Valuers' analysis of the land component of the sale was slightly different - Mr Allsopp adopting a rate of some $40,000 per hectare and Mr Hamilton adopting a rate of some $44,000 per hectare. 106 The difficulty of seeking to reconcile these two Tuckombil sales (which revealed very disparate values on a rate per hectare basis) was not effectively undertaken by either valuer, although Mr Allsopp considered that the sale of 981 Teven Road evidenced the value of a rural/homesite offering outstanding distant views (including of the coastline and ocean) which qualities he regarded as being possessed by the remainder of the Applicants' property. 107 A profound difficulty for accepting Mr Allsopp's value of the remainder of the Applicants' property lies in its essential incompatibility with his alternate valuation of $1,325,000 in respect of the whole of the Applicants' property on the assumption that it had no residential/urban potential and with his agreement with Mr Hamilton in their first Joint Statement (Exhibit 9) that the value of the whole of the Applicants' property was $1,395,000 (being the amount adopted in Mr Hamilton's original Valuation Report Exhibit B). 108 The difficulty arises when regard is had to the several component elements of that agreed value of $1,395,000 which components are disclosed in Mr Allsopp's further Valuation Report (Exhibit 20) in which he seeks to demonstrate the extent of injurious affection caused to the Applicants' residue property by the construction of the Highway Deviation. 109 According to Exhibit 20 the component parts of the overall valuation in the agreed amount of $1,395,000 are as follows: 1. House $450,000 2. Garage $ 10,000 3. Tractor shed and old bails/dairy $ 10,000 4. Tennis Court $ 25,000

5. Landscaping "sense of arrival", "attractive entry" $ 75,000 6. Macadamias 75,000 7. Land - 17.08 hectares @ ($43,911/ha) $750,000 Total $1,395,000 110 Those values attributed to the several components compare closely with the content of Mr Hamilton's original Report (Exhibit B) at p 22 as follows:

Improvements Residence $400,000 Landscaping $ 80,000 Tennis Court/Farm $ 45,000 Buildings Macadamia Trees $100,000 $625,000 Grand Total $1,395,000 111 An obvious difficulty for Mr Allsopp's adoption of a value reflecting a rate of $60,000 per hectare is posed by the fact that the agreed value of the whole of the Applicants' property reflects a rate per hectare of $44,000 or $45,000. 112 A further difficulty for accepting Mr Allsopp's value lies in the component parts of the agreed valuation, and more particularly in the added values attributed to the house, garage, tennis court and landscaping (totalling $560,000) all of which, together with a further $90,000 reflecting the rural land value ($44,000 per hectare) of the area of 2.061 hectares, are subsumed by the en globo residential value attributed to the portion of the Applicants' property to which the assumed Residential 2(a) zoning has been applied. This is because all of those components were physically located within that area of 2.061 hectares. (Both Valuers included in their en globo residential values an amount of $250,000 representing the value of the house confined to one of the residential lots in the 14 lot subdivision.) 113 This suggests that an obvious check method of determining the value of the 15.019 hectares remainder of the Applicants' property, having its highest and best use as a rural homesite/farm, is to start with the agreed value (on the same highest and best use basis) of the whole of the property ($1,395,000) and to deduct therefrom so much of that value as pertains to the portion of 2.061 hectares that is available for residential/subdivision development, namely $650,000, resulting in a residual value of $745,000 for the remainder of the property. 114 This amount of course is very much closer to Mr Hamilton's value of $685,000. As earlier noted, that value reflects a rate of $40,000 per hectare if allowance is made for the added value of the existing macadamia plantation etc. If the value does not include (for whatever reason and I suspect an oversight) that allowance the value reflects a rate of $45,600 per hectare which compares very closely with the $45,000 per hectare applied in his original valuation (Exhibit B). 115 Mr Hamilton adopted the rate of $45,000 per hectare in his original valuation of the whole of the Applicants' property upon the basis of his analysis of the comparable sales evidence and in particular, the sale at 1090 Teven Road, Tuckombil, which he analysed at a rate of some $44,000 per hectare. 116 His analysis of the sales evidence (he examined eight rural sales but his principal sales were the two sales at Teven Road, Tuckombil which were the comparable sales that Mr Allsopp employed) induced him to apply to the subject property a rate of $45,000, which fell "in the higher end of the range". 117 As I have earlier noted, the agreed analysis of the other Teven Road sale (No 981), showing a much higher rate of $66,000 per hectare, was not, in my respectful judgment, satisfactorily explained or reconciled with the other sales, including in particular, the other Teven Road, sale analysed at a rate of $44,000 per hectare (where the sales were transacted within three weeks of each other). 118 It may be that there is force in Mr Allsopp's opinion that the sale of 981 Teven Road evidenced the price that buyers were prepared to pay for rural homesites with outstanding distant views (including of the coastline and ocean) but this opinion does not reflect the manner in which he valued the whole of the Applicants' property on the assumption that it had no residential/urban development potential and it is not at all consistent with the agreed value of $1,395,000 and in particular with how that agreed value was determined (including the adoption of a rate of $44,000 per hectare). 119 In all of these circumstances, I think that Mr Hamilton's value of $685,000 is much closer to the mark than Mr Allsopp's value of $985,000. However, I think that Mr Hamilton's value should be increased to reflect the added value of the macadamia plantation etc, namely $85,000. This provides a value of $770,000 which is very close to the check valuation exercise that I have earlier undertaken which yielded a figure of $745,000. 120 Accordingly, for all of the foregoing reasons, I would determine the "before" value in the sum of $2,140,000 comprising the following: (i) en globo value of the residential component representing 14 lots @ $80,000 per lot ($1,120,000) plus an amount of $250,000 in respect of the inclusion of the existing house within a lot in the 14 lot subdivision $1,370,000 (ii) Value of the remainder of the property 770,000 Before Value $2,140,000

121 Coming to the differences in the competing "after values" (Mr Allsopp's value is $950,000 and Mr Hamilton's value is $1,210,000), there are the two identified differences, namely:

(ii) the added value of the improvements. 122 When allowance is made for the value of the compulsorily acquired land as rural land (ie 9,337 square metres at $45,000 per hectare = $42,000), Mr Allsopp's "after" value of $950,000 represents a 30 percent diminution in the agreed value of the Applicants' property (as rural land) and Mr Hamilton's value of $1,210,000 represents a 10.5 percent diminution in that agreed value. 123 The difference in the land value component in the competing "after" values reflects Mr Allsopp's adoption of a rate of $32,500 per hectare for the residue (comprising 16.15 hectares) compared with Mr Hamilton, maintaining the same rate as in his "before" value (on a rural value basis) ie $45,000 per hectare while allowing for a 20 percent reduction in respect of the frontage portion of the land comprising 1.5 hectares, which functions as the entrance and curtilage to the existing house. 124 Mr Allsopp's Original Report (Exhibit 7) notes that while the residue "has excellent ocean views, the house is sited where there are no ocean views and it is relatively close to the highway". Mr Allsopp cites two rural lands sales showing rates of $39,000 and $31,000 per hectare with his comment that the sale properties were superior horticulturally, to the subject land. Mr Hamilton's opinion was that the residue (except for the 1.5 hectares functioning as an entrance and curtilage to the existing house) was not affected by the Highway Deviation. 125 In my judgment, Mr Hamilton's opinion is to be preferred on this issue. Putting aside the question of the injurious affectation on the curtilage of the existing house (both Valuers consider the house to be significantly injuriously affected), the majority of the residue land situate at the rear of the house is physically well removed from the Highway Deviation and its value as rural land would not appear to be adversely affected. This analysis is consistent with the agreed "before" value and is also consistent with the value of the residue land that I have adopted in my determination of the "before" value (in referring to "residue" here, I am referring to the land after excluding the 2.061 hectares that has the benefit of the assumed Residential 2(a) zoning). Mr Allsopp has not provided any cogent valuation reasons for a 26 percent reduction in the agreed before value of the property (reflecting a rate per hectare of $44,000 or $45,000) to the rate of $32,500 per hectare that he has adopted in his "after" valuation. 126 So far as concerns the injuriously affected curtilage comprising 1.5 hectares, Mr Hamilton has allowed a 20 percent reduction in value compared with Mr Allsopp's 26 percent reduction. The difference in values yields only a very small amount (some $4,000) and as I have generally preferred, Mr Allsopp's opinion concerning the extent of injurious affectation to the house and its accoutrements, I am content to adopt his estimation of the decrease in value of the curtilage of 1.5 hectares. 127 The difference in the building/improvements component of the competing "after" values reflects Mr Allsopp's higher estimate of injurious affection (38.5 percent) to this component of the overall "after" value compared with Mr Hamilton's estimate of 24.5 percent. (However, I should note that Mr Allsopp's estimate reflects a higher "before" value of the buildings/improvements of $570,000 (which he reduced to $350,000 in his "after" value) than does Mr Hamilton whose "before" value of the buildings/improvements component was $525,000 which he reduces to $396,000 in his after value. Obviously if the differences in their respective "before" values are reconciled and eliminated, then the difference in their estimates of the extent of injurious affection of the house and its accoutrements would be significantly narrowed. 128 I have earlier set out when determining the "before" value for the relevant portion of the residue, the values assigned by Mr Allsopp to the various components in reaching agreement with Mr Hamilton as to the "before" value of the Applicants' property of $1,395,000 as reflecting no residential/urban potential. 129 In the same document (Exhibit 20) Mr Allsopp details his estimates of the extent of injurious affection caused by the Highway Deviation to the several components of the overall valuation. 130 Although I have not accepted his estimate of injurious affection to the land component (except in respect of the 1.5 hectares curtilage), I do accept his estimates in respect of the house and its accoutrements. 131 The estimates proffered by both Valuers are very much in the nature of informed subjective judgments. Both Valuers agree that the delightful ambience created by the entrance and curtilage to the existing house has been significantly injuriously affected by the compulsory acquisition. 132 The estimation in terms of decrease in value of that injurious affectation is quintessentially a subjective judgment and it is to be noted that the competing judgments proffered in the present case do not represent a great amount of money, the difference being $46,000. 133 In these circumstances, I think that the adoption of Mr Allsopp's estimate (being the more liberal estimate) is justified: see Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company (1947) 74 CLR 358 at 373 per Dixon J. 134 The result of the foregoing adjudications on the competing "after " values yields an "after" value of $1,118,350 comprising the following: (i) Value of house and associated improvements (other than the macadamia plantation) $350,000 (ii) value of macadamia plantation $75,000 (iii) Value of curtilage 1.5 ha @ $32,500 per hectare $48,750 (iv) Value of Land (other than curtilage) 14.65 hectares @ $44,000 _$644,600 Total $1,118,350

135 This "after" value represents a decrease of 17 percent in the value of the residue land (after allowance is made for the value of the acquired land, as rural land, say $40,000) compared with the 30 percent decrease in Mr Allsopp's "after" value and the 10.5 percent decrease in Mr Hamilton's "after" value. 136 In leaving this topic, there are a few matters that I should briefly address. Firstly, I should note that in his original Report (Exhibit B), Mr Hamilton had expressed the opinion (at p 24) that the residue had been benefited by the compulsory acquisition in the order of 5 to 10 percent, but he had not incorporated that benefit into his "after" value. His opinion of benefit was based upon his (and Mr Palmer's) opinion that access arrangements would be improved by the provision of a service road and that in consequence that residue land would enjoy better future prospects of residential/urban potential. Since I have earlier entirely rejected this thesis as being contrary to sound planning policy and practice, it follows that I do not accept Mr Hamilton's opinion of any benefit accruing to the residue. 137 Secondly, I have not found any assistance in determining the "after" value from the two sales at Bangalow that Mr Allsopp included in his Report in reply (Exhibit 19). Both sales were transacted in April 2005 and involved very attractive restored original homesteads. One property comprising 8 acres adjoined the Pacific Highway (although it had a separate road access) sold for $875,000 while the other property comprising 2 acres situate close to the heritage Village of Bangalow sold for $1,225,000. Mr Allsopp used these sales to show that the property adjoining the Highway yielded a far lesser price than the no highway affected property. However, without far more comprehensive and comparative analysis (which was not provided), I do not think these sales provide any assistance to determining the "after" value of the Applicants' property. 138 Finally, I should note that Mr Allsopp deducted an amount of $15,000 from his "after" value, being Mr Connelly's estimate of the costs incurred in obtaining professional assistance for an application to be made to the Ballina Council to restore the entitlement for a house to be erected on the Applicants' property which entitlement had been destroyed by virtue of the Respondent subdividing the property when it had prepared and registered Deposited Plan 1059457 delineating the portions of affected properties that were required to be acquired for the Highway Deviation. The question of a planning entitlement for the erection of a dwelling-house on lands zoned Rural etc arises because of the provisions of cl 12 of the Ballina LEP. 139 However, because this same expense in preparing the appropriate planning application would be common to both the "before" and "after" values of the residue land it is not recoverable. In other words, since both the "before" and "after" values of the relevant portion of the residue have proceeded on the common assumption that that portion of the residue would be available for a homesite in addition to the existing macadamia plantation and for that assumption to be realised requires the making of the same planning application to the Council, it cannot be allowed for only in the after value, as Mr Allsopp has done in his "after" value. 140 This, of course, is not to downgrade the importance of the "dwelling-house" entitlement under the Ballina LEP and of its application to the subject property. Rather, it is simply to recognise that the need for the expenditure is common to both "before" and "after" values (and since it is common to both, it need not be included in the exercise designed to demonstrate the differences between those two values). 141 It is now possible to determine the amount of compensation that is payable in this case by adopting the following "before" and "after" valuation, consistent with my earlier findings:-

Difference = Compensation $1,021,650 F. ANY SCOPE FOR THE APPLICATION OF THE DECISION IN WALKER 142 As I have earlier noted, the Respondent's case relies heavily upon the recent decision of the Court of Appeal in Walker and in doing so, submits that the more recent decision of McClellan CJ in Smith was wrongly decided insofar as it was contrary to Walker and should not be followed by me. 143 The Respondent's reliance upon Walker meant that the expert town planning and valuation evidence in the case that had been prepared before the decision in Walker was in deference to Walker, re-considered by the expert witnesses who additionally were asked to provide their expert opinions from the perspective of Walker (as understood and mediated by the parties' legal representatives in the present case). The additional opinions sought included assessing the chance or prospect of a residential rezoning when public knowledge of the Highway Deviation Proposal first became available (no later than 1975 when the route of the Deviation was revealed in the Shire of Tintenbar Land Use Strategy) and thereafter to review that chance or prospect at various times chosen throughout the planning history of the Village of Alstonville. 144 Although all experts conscientiously sought to grapple with these additional questions, it was apparent that they struggled with their new tasks which seemed to be foreign to their experiences in giving relevant opinions, accordingly to the "traditional" approach as referred to by McClellan CJ in Smith. 145 Ultimately, I did not find the expert's additional evidence to be particularly helpful or indeed relevant to the statutory task of determining compensation in the present case. 146 In so concluding, I found myself to be in substantial agreement with the exposition of the relevant principles provided by the judgment of McClellan CJ in Smith. Moreover, I do not think, with respect, that Walker, intended to establish any new principles in an area of the law so well settled by more than a century of caselaw exposition both in England and in Australia. 147 I also consider that the unusual facts in Walker very largely explain the decision in that case, in combination with the absence in the trial judgment of what the Court of Appeal held to be crucial findings of fact. For example, in par 60 of his judgment, Baston JA noted the following omission from relevant factual findings - What follows from this discussion is that, as a matter of principle, the Court below could not disregard the maintenance of the industrial/waterfront zoning in the present case, until the proposal for the relevant public purpose for which the land was resumed became known, if that planning decision was made for proper planning purposes, regardless of whether the land would ever be resumed. There is no factual finding that that was not the case: it was a relevant matter to be considered and was not considered. 148 A further omission of relevant factual finding in the trial judgment is revealed in par 81 of the judgment of Basten JA where he says: Instead of seeking to assess, from the perspective of the hypothetical purchaser, the chance of a rezoning, and noting any decline which could be attributed to the statutory considerations in s 56(1)(a), the trial judge valued the land on the assumption that the rezoning had in fact taken place. That assumption could only be justified if the refusal of the Council to rezone was itself part of the proposal to acquire the land for the public purpose for which it was acquired or a step in the carrying out of that public purpose. As a matter of principle, the approach adopted did not ask that question and is wrong, for the reasons set out above. 149 It was the absence from the trial judgment that led Basten JA to identify at par 89 of his judgment a number of factual findings that "were open to the trial judge" which if made, would radically undermine the assumed underlying residential zoning upon which trial judgment had assessed compensation. 150 No similar question is left open in the present case in the light of my findings concerning the relationship between the Highway Deviation proposal and the zoning decisions affecting the subject land (and other similarly affected land lying south of the route of the Highway Deviation) that were taken throughout the relevant planning history that saw the progressive expansion of the Village of Alstonville from its small-scale existence in 1970 when planning controls were first introduced to Tintenbar Shire until 1989 when the last of the additional areas was released to complete the progressive expansion of the Village of Alstonville. 151 I have earlier expressed by substantial agreement with the exposition of relevant principles in Smith. In particular, I would respectfully identify my concurrence with the following passages at pars 121 to 123 (inclusive) of McClellan CJ's judgment in Smith in response to the Respondent's principal submission in reliance upon Walker in that case (which has been effectively repeated in the present case): If, as was submitted by the respondent, Basten JA's observations in the identified paragraphs require an approach confined to a determination of the development potential of the land at the date when the public purpose is first known followed by an assessment of the impact of the public purpose on that potential at the date of acquisition, there may be some difficulties. Taking the facts of the present case where the public purpose became public knowledge in the early 1970s the prospect of urban development of the land at that time may have existed but realisation of that potential, if at all, was dependent on later decisions being made which allowed for Alstonville to further develop. The prospects of that happening in the early 1970s were at their highest uncertain and to assess the chance of it occurring extremely difficult. However, by the time the acquisition occurred, I have concluded that the urban potential of the land would have been recognised and, but for the public purpose of the roadway, the land would have been zoned to facilitate urban development. Because s 55 requires the value of the land to be determined at the date of acquisition it seems to me that it is accordingly necessary to identify the development potential including the zoning which would have applied to the land at that date, irrespective of the position which may have existed in 1973. It is true that in [88] his Honour analyses the position by reference to a fact, assumed to be the position identified at the time the proposal was adopted, being that there was only a 25% chance, at that date, of a rezoning for residential purposes. If this chance reflects the fact that the council would have opposed the rezoning because it desired the land for a public purpose it would have to be ignored. If however, the market rated the chance at only 25% because of other inherent characteristics of the land, including its surroundings, the question would have to be asked whether, absent any proposal to acquire it for a public purpose, the prospect of obtaining a rezoning would have remained the same many years later when the land was actually acquired. Traditionally, this task does not require the assessment of a chance but, rather, the identification of the impact of the public purpose and the disregarding of those impacts so as to identify the state of affairs which would otherwise have existed. It may be that once that exercise has been conducted the identification of the potential of the land, without any impact from the public purpose, requires an analysis of the assessment which the market place would have made of the possibility of maximising the development potential of the land including the prospect of rezoning. This may require an assessment of the percentage chance of obtaining a rezoning which gave the land a greater development potential than the zoning which it is concluded the land would have had but for the public purpose. However, this is a secondary step which is required after the state of affairs which, but for the public purpose, would have existed at the date of the acquisition has been identified. In my opinion, the approach which I have indicated to be traditional is consistent with that required by San Sebastian and the principles approved by the Court of Appeal in Perry . Furthermore, it seems to me it is the only means whereby just compensation can be provided. If, in Walker Corporation, Basten JA has suggested a different approach to the problem in the circumstances of that case care would be necessary in accepting that his Honour has defined a principle of general application. I recognise that if Walker Corporation contains a ratio of general application, even if contrary to San Sebastian, I would be obliged to follow it ( Attorney General (UK) v Heinanman Publishers Australia Pty Ltd & Anor (1987) 10 NSWLR 86 at 189). However, it seems to me that if there is such a ratio it would conflict with Perry and because Perry is consistent with San Sebastian I would adopt an approach consistent with Perry 152 Finally, I should note another aspect of the very recent decision of the Court of Appeal in Muir Properties Pty Ltd which is of relevance to the present discussion. It concerns the question whether compensation for injurious affection claimed in that case should include injurious affection in respect of a discrete parcel of the overall residue lands that was zoned open space at the date of compulsory acquisition. After quoting a passage from the judgment of Hardie J in Commercial Banking Co of Sydney Ltd v Penrith City Council (1970) 19 LGRA 366, Tobias JA continued at par 117: Because the claim for injurious affection due to the rezoning of the land had not actually been made as at the date of its compulsory acquisition, it is referred to as an inchoate claim for compensation for injurious affection. In the present case, the relevant inchoate claim would be for compensation for the market value of Parcel D on its ultimate compulsory acquisition by the Council for the purpose for which it was rezoned to Open Space. The basis of that claim was the entitlement of the respondent to have that market value determined upon the assumption that that rezoning was to be disregarded in accordance with the Pointe Gourde principle as now reflected in s56(1)(a) of the Just Terms Act with the consequence that it would be valued in accordance with its underlying zoning of Special Business 3(b). However, that value would have been decreased by reason of the proposed transitway due to the denial of access to Parcel D through Parcel C from Windsor Road. (my emphasis) 153 That brief passage (and related passages) demonstrate that his Honour's approach to assessing compensation for market value under the Just Terms Act, s 56(1)(a) and for injurious affection under s 55(f) of that Act is entirely consistent with what McClellan CJ in Smith identified as the traditional approach of applying the Pointe Gourde principle to both those valuation tasks. 154 For all the foregoing reasons, I hold that the decision in Walker does not govern the determination of compensation payable in the present case, or require the application of any different principle from what I have applied. G. CONCLUSIONS AND ORDERS 155 For all of the foregoing reasons, I determine compensation in the sum of $1,021,650 together with the agreed sum of disturbance of $7,442.50, being a total amount of $1,029,092.50 (say $1,029,100). 156 Since the Applicants have been substantially successful in their claim, the Respondent should pay the Applicants' costs. 157 Accordingly, I make the following orders -

1. Compensation under the Land Acquisition (Just Terms Compensation) Act 1991 be determined in the sum of $1,029,100.

2. The Respondent pay the Applicants' costs in the sum agreed, or failing agreement, as assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.