Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & The Roads and Traffic Authority of New South Wales [2010] NSWLEC 88

Everest Project Developments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & The Roads and Traffic Authority of New South Wales [2010] NSWLEC 88

The court found that the development potential of the Sydney Gate site, including bonus floor space entitlement, remained the same before and after acquisition due to Council's established policy for FSR calculation. Loss of the acquired land did not prevent achievement of maximum yield. As a result, market value compensation by the before and after method yielded a nil result, which was not 'just' under s 54 of the JTC Act; accordingly, the court exercised its discretion to award a 'just' compensation figure of $500,000 for market value, plus the agreed $65,000 for disturbance.

Parties
Applicant: Everest Project Developments Pty Ltd; First Respondent: Minister Administering the Environmental Planning and Assessment Act 1979; Second Respondent: The Roads and Traffic Authority of New South Wales
Jurisdiction
Australia
Judgment Date
11 June 2010
Procedural Posture
Compulsory Acquisition Compensation / Final Judgment
Outcome
Market value compensation and disturbance awarded; costs reserved.
Legal Topics
Compulsory Acquisition of Land, Compensation, Market Value Assessment, Just Terms Compensation, Valuation Methodologies, Residential and Mixed Use Development, Public Domain Improvements, Site Contamination, Development Controls, Bonus Floor Space Regime
Property Law Administrative Law Compulsory Acquisition of Land Compensation Market Value Assessment Just Terms Compensation Valuation Methodologies Residential and Mixed Use Development +4 more

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Parties

Everest Project Developments Pty Ltd

Applicant

Minister Administering the Environmental Planning and Assessment Act 1979

First Respondent

The Roads and Traffic Authority of New South Wales

Second Respondent

Procedural Posture

Compulsory Acquisition Compensation / Final Judgment

Legal Issues

  1. 1 What is the appropriate market value compensation for land compulsorily acquired under the Land Acquisition (Just Terms Compensation) Act 1991?
  2. 2 Did the acquisition restrict development potential on the residue land and reduce its yield?
  3. 3 Does site contamination or remediation cost affect compensation?

Ratio Decidendi

The court found that the development potential of the Sydney Gate site, including bonus floor space entitlement, remained the same before and after acquisition due to Council's established policy for FSR calculation. Loss of the acquired land did not prevent achievement of maximum yield. As a result, market value compensation by the before and after method yielded a nil result, which was not 'just' under s 54 of the JTC Act; accordingly, the court exercised its discretion to award a 'just' compensation figure of $500,000 for market value, plus the agreed $65,000 for disturbance.

Court Disposition

Market value compensation and disturbance awarded; costs reserved.

Orders

  • The applicant's claim for market value compensation under s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of Lot 11 in DP 1112470, formerly part of Lot 1 in DP 611113, is determined in the amount of $500,000.
  • The applicant's claim for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 is determined, as agreed, in the amount of $65,000.