Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWLEC 219

The market value of the land at the acquisition date includes SEPP 5 development potential but, due to real risks, not at the value claimed by the applicant; value is fixed at $33,500,000 based on 83 units at $600,000 per unit less one-third for SEPP 5 application, consent and yield risk. Section 56(1)(a) does not permit disregarding the industrial zoning as a result of the proposal to carry out the public purpose because the precondition—action by the resuming authority depressing value—was not established. Existing use rights prospects also less valuable than SEPP 5 potential due to higher risk and lack of certainty. Industrial value higher than Authority’s assessment, but less than...

Parties
Applicant: Walker Corporation Pty Ltd; Respondent: Sydney Harbour Foreshore Authority
Jurisdiction
Australia
Judgment Date
22 December 2009
Procedural Posture
Compulsory Acquisition and Compensation Claim / Judgment After Remitter Following Appeals to NSW Court of Appeal and High Court
Outcome
Compensation for market value assessed at $17,000,000 plus disturbance loss of $55,138.50, total $17,055,138.50 in favour of Walker Corporation Pty Ltd; final orders to be brought in by parties.
Legal Topics
Compensation Under Land Acquisition (just Terms Compensation) Act 1991, Market Value Assessment, Existing Use Rights, Application of State Environmental Planning Policy No.5, Section 56(1)(a) Disregard, Valuation Methodologies (top Down, Bottom Up)
Land Law Compulsory Acquisition Planning Law Compensation Under Land Acquisition (just Terms Compensation) Act 1991 Market Value Assessment Existing Use Rights Application of State Environmental Planning Policy No.5 Section 56(1)(a) Disregard +1 more

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Parties

Walker Corporation Pty Ltd

Applicant

Sydney Harbour Foreshore Authority

Respondent

Procedural Posture

Compulsory Acquisition and Compensation Claim / Judgment After Remitter Following Appeals to NSW Court of Appeal and High Court

Legal Issues

  1. 1 Proper construction and application of s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act 1991
  2. 2 Whether SEPP 5 applied to subject land at acquisition date
  3. 3 Whether market value reflects SEPP 5 residential development potential

Ratio Decidendi

The market value of the land at the acquisition date includes SEPP 5 development potential but, due to real risks, not at the value claimed by the applicant; value is fixed at $33,500,000 based on 83 units at $600,000 per unit less one-third for SEPP 5 application, consent and yield risk. Section 56(1)(a) does not permit disregarding the industrial zoning as a result of the proposal to carry out the public purpose because the precondition—action by the resuming authority depressing value—was not established. Existing use rights prospects also less valuable than SEPP 5 potential due to higher risk and lack of certainty. Industrial value higher than Authority’s assessment, but less than...

Court Disposition

Compensation for market value assessed at $17,000,000 plus disturbance loss of $55,138.50, total $17,055,138.50 in favour of Walker Corporation Pty Ltd; final orders to be brought in by parties.

Orders

  • Compensation referable to market value fixed at $17,000,000 (being $33,500,000 less $16,500,000 purchase price) with disturbance loss added ($55,138.50), total $17,055,138.50.
  • Applicants entitled to their costs of proceedings in the second remitter—the court to make final costs orders after hearing from parties if not agreed.