Maloney v Cowra Shire Council [2000] NSWLEC 33

Maloney v Cowra Shire Council [2000] NSWLEC 33

The court determined that the improvements (roadworks) were carried out for the express public purpose for which the land was acquired and are therefore to be disregarded in assessing market value of the land in accordance with s 56(1)(b) of the Land Acquisition (Just Terms Compensation) Act 1991. However, the applicants are entitled to compensation for the cost of new fencing as a financial cost reasonably incurred as a direct consequence of the acquisition (disturbance), and an adjoining owner premium was justified.

Parties
Applicant: Gregory Ross Maloney; Applicant: Pamela Irene Maloney; Respondent: Cowra Shire Council
Jurisdiction
Australia
Judgment Date
29 February 2000
Procedural Posture
Class 3 Compensation Proceedings (land and Environment Court of Nsw) / Judgment After Hearing
Outcome
Compensation determined for applicants in the amount of $43,560. Question of costs reserved for seven days. If no application is made, respondent to pay applicants' costs.
Legal Topics
Compensation for Compulsory Acquisition, Added Value for Improvements Prior to Resumption, Adjoining Owner Influence, Fencing and Disturbance, Market Value Determination
Compulsory Acquisition Land Law Local Government Law Compensation for Compulsory Acquisition Added Value for Improvements Prior to Resumption Adjoining Owner Influence Fencing and Disturbance Market Value Determination

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Parties

Gregory Ross Maloney

Applicant

Pamela Irene Maloney

Applicant

Cowra Shire Council

Respondent

Procedural Posture

Class 3 Compensation Proceedings (land and Environment Court of Nsw) / Judgment After Hearing

Legal Issues

  1. 1 Whether improvements (roadworks) carried out by council prior to acquisition are to be included in calculating compensation
  2. 2 Whether applicants are entitled to the cost of new fencing as loss attributable to severance or disturbance
  3. 3 Whether an adjoining owner premium should be added to market value

Ratio Decidendi

The court determined that the improvements (roadworks) were carried out for the express public purpose for which the land was acquired and are therefore to be disregarded in assessing market value of the land in accordance with s 56(1)(b) of the Land Acquisition (Just Terms Compensation) Act 1991. However, the applicants are entitled to compensation for the cost of new fencing as a financial cost reasonably incurred as a direct consequence of the acquisition (disturbance), and an adjoining owner premium was justified.

Court Disposition

Compensation determined for applicants in the amount of $43,560. Question of costs reserved for seven days. If no application is made, respondent to pay applicants' costs.

Orders

  • Applicants awarded $43,560 as compensation (severance $12,500; market value $6,000; loss attributable to disturbance $25,060).
  • Statutory interest to apply from date of acquisition to date of payment.