Sales and Ors v Transport for NSW (No 2) [2021] NSWLEC 96

Sales and Ors v Transport for NSW (No 2) [2021] NSWLEC 96

The WSEA SEPP prevails over the LLEP, but 'adjoining zoned land' in cl 12(2) of WSEA SEPP refers only to land zoned under the WSEA SEPP. Residential subdivision or Ancillary Facilities development consent would not be granted for the Northern Land. The highest and best use for the Southern Land is residential subdivision and for the Northern Land is land banking. The parties must use the HDM (with specified hurdle rates and no allowance for injurious affection beyond construction of a 5m boundary wall) for valuation of the Southern Land and DCA for the Northern Land. Loss attributable to disturbance, including early town planning fees as legal costs, is recoverable.

Jurisdiction
Australia
Judgment Date
01 September 2021
Procedural Posture
Class 3 Compensation for Compulsory Acquisition / Principal Judgment With Orders for Further Determination of Compensation Following Provision of Agreed Valuation by Parties
Outcome
Court orders parties to conference and provide agreed quantum for market value (including injurious affection) using appropriate modelling. Leave granted to contact court for determination of total compensation. Costs reserved.
Legal Topics
['market Value' 'highest and Best Use' 'statutory Construction' 'development Consent' 'residential Subdivision' 'valuation Methodology' 'disturbance' 'legal Costs' 'environmental Planning Instruments']
['valuation' 'compulsory Acquisition' 'land Law' 'planning Law'] ['market Value' 'highest and Best Use' 'statutory Construction' 'development Consent' 'residential Subdivision' 'valuation Methodology' 'disturbance' 'legal Costs' 'environmental Planning Instruments']

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Procedural Posture

Class 3 Compensation for Compulsory Acquisition / Principal Judgment With Orders for Further Determination of Compensation Following Provision of Agreed Valuation by Parties

Legal Issues

  1. 1 ["What is the correct interpretation and application of the WSEA SEPP and LLEP to the land's highest and best use for valuation purposes?" 'What is the appropriate amount and methodology for compensation for compulsory acquisition of land under the Just Terms Act?' 'Are loss attributable to disturbance and legal disbursements (including planning report costs) compensable as legal costs under the Just Terms Act?']

Ratio Decidendi

The WSEA SEPP prevails over the LLEP, but 'adjoining zoned land' in cl 12(2) of WSEA SEPP refers only to land zoned under the WSEA SEPP. Residential subdivision or Ancillary Facilities development consent would not be granted for the Northern Land. The highest and best use for the Southern Land is residential subdivision and for the Northern Land is land banking. The parties must use the HDM (with specified hurdle rates and no allowance for injurious affection beyond construction of a 5m boundary wall) for valuation of the Southern Land and DCA for the Northern Land. Loss attributable to disturbance, including early town planning fees as legal costs, is recoverable.

Court Disposition

Court orders parties to conference and provide agreed quantum for market value (including injurious affection) using appropriate modelling. Leave granted to contact court for determination of total compensation. Costs reserved.

Orders

  • ['The parties are directed to confer and provide the Court with an agreed sum representing market value (including injurious affection) for Lot 5 in DP 1234822 at Luddenham in accordance with findings, including via modelling using the Estate Master program.' "The parties are granted leave to contact the Judge's...