Capocchiano v Shellharbour City Council [2015] NSWLEC 28

Capocchiano v Shellharbour City Council [2015] NSWLEC 28

The RE 1 Public Recreation zoning under SLEP was imposed as part of the proposal to carry out the public purpose for which the land was acquired and had to be disregarded under s 56(1)(a). But for that public purpose, the land would in all probability have been zoned R 2 Low Density Residential at August 2013, with development confined to a single dwelling rather than residential subdivision, because the land was privately owned, had flood-free land capable of accommodating a dwelling with access to Grevillea Street, and noise and flood constraints could be addressed. On the accepted direct comparison valuation evidence, land with that single dwelling entitlement had a market value of...

Jurisdiction
Australia
Judgment Date
27 February 2015
Procedural Posture
Class 3 Proceedings Under S 66(1) of the Land Acquisition (just Terms Compensation) Act 1991 Objecting to Compensation for Compulsory Acquisition of Land / Principal Judgment Following Hearing Determining Compensation and Costs
Outcome
Compensation determined for the Applicants in the sum of $310,000, with the Respondent ordered to pay the Applicants' costs of the proceedings in the gross sum of $62,592.
Legal Topics
['compulsory Acquisition of Land' 'market Value' 'highest and Best Use' 'underlying Zoning' 'dwelling Entitlement' 'disturbance' 'gross Sum Costs']
['land Acquisition' 'planning and Environment' 'compensation' 'costs'] ['compulsory Acquisition of Land' 'market Value' 'highest and Best Use' 'underlying Zoning' 'dwelling Entitlement' 'disturbance' 'gross Sum Costs']

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Procedural Posture

Class 3 Proceedings Under S 66(1) of the Land Acquisition (just Terms Compensation) Act 1991 Objecting to Compensation for Compulsory Acquisition of Land / Principal Judgment Following Hearing Determining Compensation and Costs

Legal Issues

  1. 1 ['Whether the RE 1 Public Recreation zoning under Shellharbour Local Environmental Plan 2013 should be disregarded under s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991 because it was part of the proposal to carry out the public purpose for which the land was acquired.' 'What zoning and development potential the land would probably have had at the date of acquisition but for the public purpose, including whether a dwelling entitlement should be assumed.' 'What the market value of Lot 2 in DP 1055678 was at 16 August 2013.' 'What compensation was payable for disturbance.' "Whether the Respondent should pay the Applicants' costs as a specified gross sum instead of assessed costs."]

Ratio Decidendi

The RE 1 Public Recreation zoning under SLEP was imposed as part of the proposal to carry out the public purpose for which the land was acquired and had to be disregarded under s 56(1)(a). But for that public purpose, the land would in all probability have been zoned R 2 Low Density Residential at August 2013, with development confined to a single dwelling rather than residential subdivision, because the land was privately owned, had flood-free land capable of accommodating a dwelling with access to Grevillea Street, and noise and flood constraints could be addressed. On the accepted direct comparison valuation evidence, land with that single dwelling entitlement had a market value of...

Court Disposition

Compensation determined for the Applicants in the sum of $310,000, with the Respondent ordered to pay the Applicants' costs of the proceedings in the gross sum of $62,592.

Orders

  • ['Pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991, determine compensation for acquisition by the Respondent of Lot 2 in DP 1055678 on 16 August 2013 in the sum of $310,000.' 'Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 order that the Respondent pay the Applicants...