Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768

Chino Pty Limited v Transport Infrastructure Development Corporation and Anor [2006] NSWLEC 768

The proper approach to compensation for extinguishment of an easement for support following compulsory acquisition under the Just Terms Act is the before and after method, determining the diminution in value to the whole property benefiting from the easement, at the date of acquisition, and taking into account risks and factors a prudent hypothetical purchaser would consider (including the availability of a possible s 88K application and planning requirements). TIDC's proposed cost-of-suit method based on s 88K is not legally justified. Post-acquisition events and subjective intentions of the acquiring authority are not relevant to the assessment. The Applicant is entitled to an amount...

Jurisdiction
Australia
Judgment Date
22 December 2006
Procedural Posture
Compulsory Acquisition Compensation Appeals / Judgment After Full Hearing
Outcome
Judgment for Applicant and Council—Assessment of compensation on before and after basis; further evidence required on final quantum before final orders.
Legal Topics
['extinguishment of Easement for Support' 'assessment of Compensation Under Just Terms Act' 'application of Conveyancing Act S 88 K' 'valuation Methods Before and After Acquisition' 'consideration of Post Acquisition Events' 'public Purpose in Land Acquisition']
['compulsory Acquisition' 'valuation'] ['extinguishment of Easement for Support' 'assessment of Compensation Under Just Terms Act' 'application of Conveyancing Act S 88 K' 'valuation Methods Before and After Acquisition' 'consideration of Post Acquisition Events' 'public Purpose in Land Acquisition']

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Procedural Posture

Compulsory Acquisition Compensation Appeals / Judgment After Full Hearing

Legal Issues

  1. 1 ['What is the proper compensation for the extinguishment of an appurtenant easement for support following compulsory acquisition?' 'Does the public purpose of acquisition include reinstatement of the easement for support?' 'Should the cost of an application under s 88K of the Conveyancing Act be used as a basis for compensation?' 'Is the before and after method the appropriate valuation approach?' 'Can events post-acquisition be considered in assessing compensation?']

Ratio Decidendi

The proper approach to compensation for extinguishment of an easement for support following compulsory acquisition under the Just Terms Act is the before and after method, determining the diminution in value to the whole property benefiting from the easement, at the date of acquisition, and taking into account risks and factors a prudent hypothetical purchaser would consider (including the availability of a possible s 88K application and planning requirements). TIDC's proposed cost-of-suit method based on s 88K is not legally justified. Post-acquisition events and subjective intentions of the acquiring authority are not relevant to the assessment. The Applicant is entitled to an amount...

Court Disposition

Judgment for Applicant and Council—Assessment of compensation on before and after basis; further evidence required on final quantum before final orders.

Orders

  • ['Applicant entitled to compensation value of loss; final quantum to await clarification of sensitivity analysis and further submissions.' 'Council entitled to its loss assessed by the before and after method, subject to further clarification as above.' "Applicant's disturbance claim allowed for agreed legal and...