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.