Blacktown City Council v Concato (No 4)

1. [1]

   HIS HONOUR: These are judicial review proceedings under s 69 of the Supreme Court Act 1970 (NSW) brought by the Blacktown City Council (“the Council”). The Council seeks a declaration that a determination made by the third defendant, the Valuer-General, dated 7 June 2018 of compensation payable to the first and second defendants (“the former owners”) in respect of land formerly owned by them but compulsorily acquired by the Council pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“the Just Terms Act”) is void and of no effect. The Council also seeks an order compelling the Valuer-General to redetermine the amount of compensation payable.

2. [2]

   As I endeavoured to explain in Blacktown City Council v Concato [2018] NSWSC 1039 (at [9]), there is asymmetry in the scheme of the Just Terms Act in that although dispossessed former owners are provided with a statutory right under ss 66 and 67 of objection against the amount of compensation offered to them by the acquiring authority (which invokes, in substance, a hearing de novo in the Land and Environment Court). The acquiring authority (in this case the Council) [1] has no such right (see also Council of City of Ryde v Azizi [2019] NSWSC 1605 at [159] (“Azizi”)).

3. [3]

   Hence the Council seeks judicial review of the Valuer-General’s determination. The parties proceeded on the basis that the Council, in order to succeed, must establish that when making the determination the Valuer-General fell into jurisdictional error.

4. [4]

   Somewhat unusually, the Valuer-General as the administrative decision-maker took an active role in these proceedings notwithstanding the presence of an active contradictor, being the former owners. In judicial review proceedings it is necessary to name as a party the decision-maker who then will be bound by the judgment of the court (Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 (at [13] per Basten JA). The general practice however is for the decision-maker to file a submitting appearance and take a passive role in the proceedings, save as to costs (R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35; [1980] HCA 13). That said, there was in my view quite properly no objection taken by either party to the Valuer-General taking an active role in the proceedings, insofar as they raised issues as to his or her powers under the Just Terms Act. This approach, consistent with that the High Court allowed as permissible in exceptional cases in R v Australian Broadcasting Tribunal; Ex parte Hardiman (at 36), provides this Court with the benefit of Mr Waterson’s helpful submissions, for which I am most grateful.

5. [5]

   It was common ground between the parties that if it were found that any part of the determination was infected by jurisdictional error, the only path open to this Court would be to grant the relief sought and to order that the compensation to which the former owners are entitled to be redetermined according to law. No argument as to the application of the de minimis principle (to such potential errors as might trigger it), or the severability from the determination of only those parts of it found to be vitiated by jurisdictional error, was put. As to the latter issue, see by analogy: YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110; Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Limited [2019] NSWSC 755 at [25]; and Hanson Construction Materials Pty Ltd v Brolton Group Pty Limited [2019] NSWSC 1641 at [44]. These decisions were made in the context of challenges to adjudications under Building and Construction Industry Security of Payment Act 1999 (NSW). However there may be no reason in principle why they would not extend to judicial review of determinations under the Just Terms Act.

Summary of Issues and Conclusion

1. [6]

   The Council propounds a number of errors, said to be jurisdictional, affecting the Valuer-General’s determination of compensation. A number of these impugned the process by which the market value of the resumed land at the date of acquisition was determined. In general terms, it was said that the Valuer-General (through the contract valuer, who in fact conducted the valuation, as I will explain below) acted irrationally, unreasonably and contrary to correct valuation principles. A number of particulars of error were propounded which may be summarised as follows:

   1. (1)

      Wrongly assessing a relevant comparable sale of a particular property in Schofields.

   2. (2)

      Misusing, or mistaking the significance of, a draft amendment to the governing planning instrument published and circulated in May 2017;

   3. (3)

      Making errors in the analysis of a comparable sale at Terry Road, Rouse Hill in a number of respects.

2. [7]

   The second group of matters relied on as jurisdictional error relate to three heads of loss attributable to disturbance allowed under s 55(d) Just Terms Act in contravention of s 61 of that Act. These were losses represented by the cost of relocation from the resumed land; stamp duty costs in connection with the purchase of land for relocation; and the inclusion in the allowance for legal costs of costs referable to the former owners’ hardship application. A challenge to the allowance for non-financial disadvantage to the former owners in relocating from their home made under s 60 Just Terms Act was abandoned at the hearing.

3. [8]

   In relation to the second group of matters, subject to a matter I will mention in the next paragraph, I am satisfied that council’s challenges have been made good and that these matters constitute jurisdictional error.

4. [9]

   The proceedings were heard over 4 days, 30 and 31 January 2019, and 28 February and 1 March 2019. During the first two days it became apparent that the allowance of legal costs referable to the hardship application as a loss attributable to disturbance in the assessment of the amount of compensation to which the former owners were entitled was contrary to s 55(d) of the Just Terms Act having regard to the meaning of that expression as defined by s 59 of that Act: Hoy v Coffs Harbour City Council [2016] NSWCA 257; 218 LGERA 411 at [59] per Bathurst CJ (Simpson and Payne JJA agreeing) (“Hoy”). Moreover, as this error involved a misconstruction of the statute conferring the jurisdiction to award compensation, namely the Just Terms Act, it was likely to be jurisdictional. Such an error was more than arguably material as it affected the amount of compensation determined.

5. [10]

   There was discussion about whether such an error was necessarily fatal to the whole of the Valuer-General’s determination and whether the Valuer-General had power to redetermine or amend the determination under review. During the adjournment, the former owners made an application to the Valuer-General to amend the determination of compensation by reducing the amount allowed for losses attributable to disturbance by the amount of the legal costs incurred by the former owners in respect of the hardship application. The Council and the former owners accept that the amount involved is $41,598. Under cover of email dated 27 February 2019, the Valuer-General issued an amended determination of the same date, reducing the determination by that amount. For clarity this reduced the determination for compensation from $16,634,318.00 to $16,592,783.00.

6. [11]

   Notwithstanding the interesting consideration that the Council made its own application for amendment or redetermination during the adjournment, the Council disputes the availability of a power to amend. The former owners and the Valuer-General support it.

7. [12]

   This is obviously an important question if only for the practical reason that it is necessary to decide whether the making of the amendment determination (Exhibit B) is a valid exercise of power for the purpose of identifying the determination under review in these proceedings.

8. [13]

   I have decided for reasons given below that the Valuer-General had power to make the amendment when it was made.

Background

1. [14]

   The acquired land is a parcel of 2.023 ha (or 5 acres) in Rouse Hill within the City of Blacktown. The Council is the relevant local government authority. The land was held by the former owners as joint tenants prior to the resumption. The land was also subject to a mortgage in favour of Bank of Queensland Limited, which was discharged upon the making by the Council of an advanced payment of compensation of $12,650,000.00 less amounts necessary to discharge the mortgage (see Blacktown City Council v Concato [2018] NSWSC 1039).

2. [15]

   Developments surrounding the acquired land consist mainly of small acreage home sites and larger rural and production properties, a number of which were, at the time of the determination, in the process of being developed into low and medium-density residential properties (International Valuation & Property Services report, Annexure C to affidavit of MMG Mallos sworn 2 July 2018 (“IVPS Report”) at 22). The acquired land is situated within the Riverstone East Precinct of the North West Growth Centre under State Environmental Planning Policy (Sydney Growth Centres) 2006 (SEPP 2006).

3. [16]

   There were a number of improvements on the land, consisting of a single detached dwelling house with an attached garage, a large machinery shed, perimeter fencing and a front gate, a driveway, and landscaping including a dam. The former owners principally used the land for single-family residential purposes (T7.35-50).

4. [17]

   Much of the factual background surrounding the dispute is not in issue. I summarise briefly for context the background leading up to the valuation of the acquired land, that being the subject of the real controversy between the parties.

5. [18]

   At some point after the former owners acquired the land, it was rezoned into predominantly RE1 public recreation, with a narrow strip of land across the south-western boundary zoned SP2 infrastructure (drainage).

6. [19]

   On or before 22 August 2016, the land was designated for compulsory acquisition (State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Blacktown Growth Centres Precinct Plan) 2016; North West Growth Centre Land Reservation Acquisition Map LRA 009).

7. [20]

   In May 2017, draft amendments to SEPP 2006 were placed on public exhibition. One effect of the draft amendments was to consolidate six precinct planning controls, including the Blacktown Growth Centres Precinct Plan (which is Appendix 12 to SEPP 2006 and applies to the acquired land) into one single precinct plan known as the Blacktown Priority Growth Area Precinct Plan based on the Blacktown Growth Centres Precinct Plan (see North West Priority Growth Area Land Use and Infrastructure Implementation Plan, May 2017 at [7.1.4]; Explanation of Intended Effect, Amendments to the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – For North West Priority Growth Area under heading “Blacktown Local Government Area”).

8. [21]

   For present purposes, the significance of the draft amendment for valuation purposes is that it proposes limits on development by adding a maximum density control to the minimum contained in SEPP 2006. For the R3 Medium Density Residential zoning that both parties agree is relevant to this case, the current minimum is 25 dwellings per hectare (“DPH”) with no maximum restriction. The proposal is to impose a maximum of 35 DPH. The proposed amendment was not formalised as at the acquisition by gazettal on 9 March 2018 (see [24] below). It was still “under consideration” on the date of the Valuer-General’s original determination of compensation of 7 June 2018 (IVPS Report 28 [12.1]).

Owner initiated hardship acquisition

1. [22]

   Sections 23 and 24 of the Just Terms Act provide for a process of owner-initiated compulsory acquisition of land designated for a public purpose. Those sections are in the following terms:

2. [23]

   On 18 August 2017, the former owners sent to the Council a hardship application pursuant to s 23 of the Just Terms Act, and on 22 November 2017 the Council resolved to accept the application at one of its ordinary meetings. It was common ground between the parties that s 23 applied to the land and that the Council formed the necessary opinion under s 24(1), leading to the result that it was legally obliged to acquire the land.

3. [24]

   By notice dated 5 March 2019 and published in the Gazette on 9 March 2019, the Council declared that it had compulsorily acquired the land (New South Wales Government Gazette, No. 26 of 9 March 2018) (ss 19-20 of the Just Terms Act). There is no dispute that the land was not acquired otherwise than in accordance with the Just Terms Act.

4. [25]

   Upon the acquisition, s 37 of the Just Terms Act gave the former owners a right to be compensated by the Council. The former owners and the Council each obtained their own valuations of the acquired land; the former obtaining a valuation of approximately $20,000,000.00 and the latter obtaining a valuation of $12,650,000.00.

5. [26]

   For context, s 37 provides:

6. [27]

   Because the parties could not agree as to the amount of compensation to be offered to the former owners, it became necessary for the Valuer-General to determine that amount.

7. [28]

   The Valuer-General’s power to make such a determination is provided for by s 47 of the Just Terms Act, which is in the following terms:

8. [29]

   The exercise of that power is informed by s 41, which provides:

9. [30]

   Section 42 imposes an obligation on the Council to issue a ‘compensation notice’ within a given time after the publication of the acquisition notice. The compensation notice must state the amount of compensation offered to the former landowner as determined by the Valuer-General:

10. [31]

    The general practice of the Valuer-General, consistent with Part 1A of the Valuation of Land Act 1916 (NSW) (“the Valuation Act”), is to engage independent contract valuers to perform certain valuations required to be undertaken by the Valuer-General.

11. [32]

    Specifically, under s 13H(1) of the Valuation Act, the Valuer-General is permitted to perform a valuation under the Valuation Act on the recommendation of a contract valuer. Sub-sections (2) and (3) then go on to provide:

12. [33]

    On 7 June 2018, the Valuer-General issued a determination of compensation relying on the IVPS report. The determination annexed and adopted the figures recommended in the IVPS Report. The former owners’ compensation was determined by the Valuer-General to be $16,634,381.00, as follows:

13. [34]

    The amount allowed for disturbance was based upon the following components:

14. [35]

    I will now deal with the background facts, statutory context and arguments of the parties before turning to explain my decision.

15. [36]

    I repeat, there is no dispute that the Valuer-General (by the contract valuer) correctly identified the underlying zoning, that is, the zoning that would have applied to the land but for its identification for compulsory acquisition for public purposes, as R3 Medium Density Residential. Nor is there any dispute that it was appropriate for the contract valuer to adopt the comparative sales method of land valuation to form his opinion about the market value of the land on the date of acquisition for the purpose of s 55(a) of the Just Terms Act.

16. [37]

    The IVPS Report identified six sales of properties which were regarded as the "most comparable to” the acquired land (IVPS Report at 40-45; CB 93-98). The details of these properties are summarised in the below table:

17. [38]

    The IVPS Report concluded (IVPS Report at 46; CB 99):

Summary of the parties’ arguments

1. [39]

   The Council impugns the decision of the Valuer-General by advancing the following arguments.

2. [40]

   First, the Council submits that the Valuer-General fell into jurisdictional error by failing to consider or correctly include in its determination a relevant comparable sale of a property on Schofields Road, Schofields (“the Schofields Property”). The Council submits that the comparable sale relied on by the Valuer-General (as it pertains to the Schofields Property) never actually occurred and that the Schofields Property was in fact sold for considerably less than the amount the Valuer-General used in its calculations (“the Schofields Road Ground”).

3. [41]

   Secondly, the Council submits that the Valuer-General fell into jurisdictional error by failing to have regard on the market value-depressing effect of the announcement of certain amendments to SEPP 2006. Specifically, the Council submits that the foreshadowing of the imposition of maximum density controls on the acquired land would restrict its development potential and that the Valuer-General was required to consider the effect of the announcement of the restrictions in their determination (“the Density Restriction Ground”).

4. [42]

   Thirdly, the Council submits that the Valuer-General fell into jurisdictional error in ascribing a nominal value of $100/m2 to a 7700m2 part of the property at Terry Road, Schofields (“the Terry Road Property”). This was done because that part of the land was zoned RE1 Public Recreation and SP2 Infrastructure and was designated for acquisition for public purposes. Part of that portion of the land was also flood affected. The Council submits that the Valuer-General ought not to have ascribed a nominal value to the whole of the land zoned for a public purpose because on acquisition by an authority of the state the former owner would be compensated at market value disregarding any negative effect of the public purpose zoning. The Valuer-General ought only to have applied a discount for flooding to the flood prone portion of the Terry Road Property that was zoned for public purposes (“the Terry Road Sale Ground”).

5. [43]

   Fourthly and fifthly, the Council submits the amount of $150,490.00 in respect of stamp duty was impermissibly allowed in the determination in respect of disturbance loss, as was the amount of $142,000.00 in respect of the cost of relocating items from the house and shed on the property. The Council submits that s 61 of the Just Terms Act operates to prevent the inclusion of both of these amounts (“the Development Potential Ground”).

6. [44]

   Finally, it points to the inclusion in the compensation determination of an amount of $54,421.00 in respect of loss attributed to disturbance. The Council observes that this sum is comprised of legal costs incurred by the defendants in establishing hardship prior to the crystallisation of an entitlement to compensation under the Just Terms Act. The Council relies on the decision of the Court of Appeal (Bathurst CJ, Simpson and Payne JJA) in Hoy insofar as it stands for the proposition that (at [59] per Bathurst CJ):

7. [45]

   In its summons, the Council also sought to challenge the Valuer-General’s award of compensation for non-financial disadvantage due to relocation. As I have said, Mr Tomasetti SC (who appeared with Ms A Hemmings and Ms Napuri for the Council) abandoned reliance on this ground during the hearing.

8. [46]

   Mr Hemmings SC (who appeared with Ms K Lindeman for the former owners) strongly joined issue with the major premise underpinning the Council’s argument on the first three matters being errors said to have arisen in the analysis or application or of the comparative sales method that the major premise underpinning the Council’s argument that all such errors as were identifiable were jurisdictional. He emphasised the right of an administrative decision maker to err within jurisdiction: Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21. This is sometimes referred to as “the right to go wrong”, at least within jurisdiction. Senior Counsel also argued that no error is jurisdictional unless it is material in the sense that had it not been made, the outcome may have been different, and an error is not material if “one or some only of a number of alternative findings upon which the decision was given involved errors of law”: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGERA 409 at 419.

9. [47]

   In relation to the Schofields Road Ground, it was pointed out, first, that there was material before the contract valuer indicating a sale price of $6.9M and it cannot be irrational or unreasonable for a decision-maker to reach a conclusion that has “an evident and intelligible justification”: The Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]. Secondly, to the extent that erroneous information had been provided to the contract valuer by a sales agent, any reliance by the valuer on it could amount to no more than an error of fact of a non-jurisdictional kind. Thirdly, not all errors in the accumulation, analysis, adjustment and application of comparable sales give rise to an error of law, let alone a jurisdictional error: ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGER 825 at [23]. And, fourthly, in any event, the error was not material as the contract valuer expressly states that other comparable sales material considered supported his conclusion (IVPS Report at 62).

10. [48]

    As to the Density Restriction Ground, the former owners argue that the contract valuer did take the draft amendment into account (IVPS Report at 28, 62). He also gave reasons for rejecting it as a governing factor for determining market value. The contract valuer fully set out his reasoning and it cannot be said his approach to that matter “lacks an evident and intelligible justification”.

11. [49]

    Moreover, the former owners argue that it was not erroneous for the contract valuer to consider how a consent authority might determine a development application according to the operation of applicable planning instruments: Boland v Yates Property Corporation Pty Ltd [1999] HCA 64; 74 ALJR 209 at [271]-[272].

12. [50]

    Dealing with the Terry Road Sale Ground, the former owners submit that the error, if there is one, is one of fact not jurisdiction and in any event the Terry Road Property was one only of a number of properties relied on to inform the contract valuer’s opinion as to value.

13. [51]

    As I have already pointed out the former owners, at least tacitly, conceded from the outset the alleged error in respect of the legal costs of the hardship claim in accordance with the clear statement of principle made in Hoy. In respect of the cost of relocation and stamp duty, it is submitted however, that no error was made by reference to the decision in El Boustani v The Minister Administering the EPA Act 1979 [2014] NSWCA 33; LGERA 198 at [96]-[100] (“El Boustani”). It was argued that the land was not “ripe for development”. With this in mind, the contract valuer had assessed it was unlikely that residential development could commence on the acquired land within 2 years of the date of acquisition (IVPS Report page 39 and 61). Accordingly, it was argued there is no error of principle in the allowance made for disturbance in respect of relocation costs and stamp duty.

14. [52]

    I re-iterate that the Amended Determination (Exhibit B) is identical to the original determination save for a reduction in an amount of $41.000.00 to the amount awarded in respect of disturbance loss. It was accepted by the Council that the reduction for this amount expunged from the original determination all legal costs said to have been erroneously included contrary to what was said by the Court of Appeal in Hoy (T116.38-41; T 124.14).

15. [53]

    I also granted leave for the Council to rely on a second amended summons, seeking to impugn the amendment on the basis that the Valuer-General lacks authority under the Just Terms Act to amend a determination once issued (“the Amendment Ground”). It will thus be necessary to deal first with the question of whether the Valuer-General has the power under the Just Terms Act or otherwise to amend his or her determination. If the answer to that question is yes, then, as the former owners correctly submitted, the Disturbance Loss Ground falls away.

Determination of application

1. [54]

   The issue appears to have been raised – albeit indirectly – before Payne J in Azizi, when his Honour, recording the submissions made to him, said (at [100]):

2. [55]

   The Council submits that once the Valuer-General performs the function required by s 47, it is effectively functus officio.

3. [56]

   In the alternative, however, the Council accepts that “not every power to make an administrative decision that is purportedly exercised is necessarily spent once it has been made” (Submissions 15 March 2009 [23]): Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at [443] (“Sloane”). The question is one of statutory construction. Reference was also made to Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (“Bhardwaj”). Further in the alternative, it was argued that any power to amend the Valuer-General’s determination is limited by a purpose of assisting or furthering the power of rescission of an acquisition notice conferred by s 31 of the Just Terms Act.

4. [57]

   The former owners and the Valuer-General both submit that the clear reference in s 43A Just Terms Act to the Valuer-General changing his or her determination of the amount of compensation by necessary intendment confers a power of amendment on the Valuer-General. Reference is also made to s 48 Interpretation Act 1987 (NSW) and Parkes Rural Distributions v Glasson (1986) 7 NSWLR 332 at 335G-336A. It is also submitted that given the express provision of s 43A(7) an implied power limited to aiding the operation of s 31 is entirely unnecessary. Reference was also made to the principle of statutory interpretation discussed in Taylor v Owners of Strata Plan 11564 [2014] 253 CLR 531 at [38]-[40].

5. [58]

   The basal principles of statutory construction are not here in issue. The task of the Court begins with consideration of the text itself, but the meaning of the text is informed by considerations of context, purpose, and policy (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 41; [2009] HCA 41).

6. [59]

   Section 43A of the Just Terms Act is in the following terms:

7. [60]

   The section is primarily concerned with the amendment of a compensation notice, rather than a power of the Valuer-General to amend a compensation determination. Section 43A(1) confers a discretionary power to amend the notice to correct clerical or obvious mistakes. But what is striking in the present context are the terms of sub-s (2), obliging the authority of the State to amend a compensation notice to correct the amount of compensation offered “if the Valuer-General changes his or her determination of the amount of compensation to be offered”.

8. [61]

   Section 43A was inserted by cl 1.21[1] of Sch 1 to the Statute Law (Miscellaneous Provisions) Act 2009 (NSW). The explanatory note to that clause provides (Statute Law (Miscellaneous Provisions) Bill 2009 sch 1 cl 1.21):

9. [62]

   If it were intended that the Valuer-General’s power to redetermine was to be exercisable only on a partial rescission (see s 31(1)) of an acquisition notice, one would have expected some mention to have been made of the particularly narrow context in which an acquiring authority would be mandated to amend a compensation notice in response to a Valuer-General redetermining the amount of compensation to be offered to a dispossessed landowner. Instead, both s 43A(2) and the explanatory statement proceed on the basis that a general power to redetermine is available to the Valuer-General.

10. [63]

    I am satisfied that s 43A(2) confers an implied power on the Valuer-General to “change”, amend, or redetermine the amount of compensation to be offered. Clearly such a power may only be exercised consistently with the text, context and purpose of the Act as a whole. But it is unnecessary in the case at hand to attempt to state exhaustively the breadth of the power. Clearly, having regard to the terms of s 43A(4) no such change, amendment or redetermination can be made after the offer of compensation made in a compensation notice issued under s 42 Just Terms Act has been accepted. Given the orders I made on 6 July 2018, no compensation notice has yet been issued in this matter and it follows no offer has been accepted. Doubtless there may be other restrictions upon exercising the implied power, but it is unnecessary to explore that question fully in the present context. Obviously, such a power is not at large and may only be exercised in good faith to achieve the objects of the Act as set out in s 3 of the Just Terms Act including guaranteeing that the amount of compensation will be not less than the market value of the land and ensuring compensation for former owners on just terms.

11. [64]

    Accepting that the provisions of the Interpretation Act 1987 (NSW) may be ousted expressly or impliedly by the terms of the legislation being interpreted or construed, s 48(1) is of significance. It is in the following terms:

12. [65]

    This conclusion is also consistent with Sloane which the Council referred to. The passage that Mr Tomasetti drew to the Court’s attention (at [443]) is in the following terms:

13. [66]

    My conclusion about this is also reinforced by the decision of the High Court of Australia in Bhardwaj, another decision drawn to my attention by Mr Tomasetti. The legislative context is different, involving the power of the Immigration Review Tribunal to set aside its own earlier determination and reconsider a matter when it came to the Tribunal’s attention that it had not given proper notice of the hearing to the applicant. Gleeson CJ explained the position as follows (at 603 [5]-[7]:

14. [67]

    Gaudron and Gummow JJ were of the same view, which their Honours expressed in the following terms (at 616 [53]):

15. [68]

    It can be seen that the decision in Bhardwaj proceeded on the basis that the Tribunal’s first purported decision was vitiated by jurisdictional error. It was not sufficient that it simply changed its mind or identified some error within jurisdiction. Given what I have said about the implied power to change its determination, whatever its true width, I consider that the Valuer-General’s power to change, amend or redetermine is not limited to cases where the determination being changed, amended or redetermined is vitiated by jurisdictional error. If I am wrong in that conclusion, it can be seen, for the reasons explained by Payne J in Azizi (at [158]-[164]), that the Valuer-General’s error in misconstruing s 59 for the purpose of s 55(d) Just Terms Act, and allowing the costs of propounding the hardship case, was jurisdictional. It will be necessary to return to this when dealing with other grounds.

16. [69]

    I am satisfied that Exhibit B is the determination of the Valuer-General which is the subject (now) of this application for judicial review. Just as, as a general rule at least, the amendment of a compensation notice under s 43A operates “from the date of the further notice if there has been” a change in the amount of compensation offered, it seems correct to treat Exhibit B as operating from the day when the change was made, that is 27 February 2019. No party indicated any legal difficulty with this approach in written submissions directed to this issue.

17. [70]

    It is important to bear in mind that these are judicial review proceedings, and that the Council’s burden is to establish jurisdictional error on the part of the Valuer-General.

18. [71]

    As mentioned at paragraph [28]-[29], the Valuer-General’s task under s 47 is to determine the amount of compensation to be offered to a dispossessed landowner under part 3 of the Just Terms Act. That function may be discharged by action taken on the recommendation of a contract valuer appointed under the Valuation Act. In these reasons I have from time to time used “Valuer-General” and “contract Valuer” interchangeably. I have not lost sight of the important legal consideration that the determination under review has been made by the Valuer-General.

19. [72]

    Division 4 of part 3 is headed “Determination of amount of compensation”. That division prescribes the way in which the Valuer-General is to determine the amount of compensation in discharge of the task mandated by s 47. The core section in division 4 is s 54, which provides:

20. [73]

    The amount of compensation to be offered to a disposed landowner is determined having regard to the matters in Div 4. This includes the matters prescribed by s 55:

21. [74]

    Where, as here, the acquisition of land is owner-initiated, s 26 of the Just Terms Act operates to convert (c), (d), and (e) above from mandatory factors into discretionary ones. The Council does not take issue with the Valuer-General’s exercise of discretion to include disturbance loss and compensation for relocation disadvantage.

22. [75]

    The market value of land is relevantly defined in s 56 as follows:

23. [76]

    Loss attributable to disturbance is relevantly defined in s 59 as follows:

24. [77]

    The task of the Valuer-General is governed exhaustively by the provisions of the Just Terms Act: El Boustani at [74], [85].

25. [78]

    A core element of the Council’s submissions so far as they concern the Schofields Road Ground, the Density Restriction Ground, and the Terry Road Sale Ground is that the Just Terms Act requires the Valuer-General to adhere to the requirements of the principles of valuation including those informing the comparable sales approach to land valuation. Indeed, it is a major premise of the Council’s argument in respect of these grounds that any demonstrable error of the contract valuer in formulating his or her recommendations utilising the comparable sales method, adopted by the Valuer-General, is of necessity jurisdictional error vitiating the Valuer-General’s determination. To demonstrate the breadth and boldness of this submission, it is necessary to explain the jurisprudence which has developed in the Land and Environment Court in dealing with objections to the amount of compensation offered by an authority of the State under Part 3 Division 5, ss 66 to 68 Just Terms Act. It must be borne in mind that the Land and Environment Court is required to conduct a hearing de novo into the valuation questions arising under the Just Terms Act and decide for itself the amount of compensation to which the former owners are entitled. A task very different from this Court’s.

26. [79]

    The comparable sales method has been summarised by Robson J in New South Wales Cremation Company Pty Limited v Valuer General [2016] NSWLEC 135 (see also the detailed summary given by Sheahan J in Marroun v Roads and Maritime Services [2012] NSWLEC 199 (at [196]-[208]):

27. [80]

    The judges of the Land and Environment Court sit in these matters as judicial valuers dealing with and determining the merits of a former owner’s claim for compensation (s 66(2)). These are hearings in the original jurisdiction of the Land and Environment Court. Quite clearly the judges of that Court through experience develop a great familiarity with the methods of valuation and the principles which inform it. In the end a determination of market value is quintessentially a question of fact. Like all questions of contested fact in civil proceedings of any type their resolution will of course involve the identification of the correct principles of law and their application to the ultimate facts as determined by the judge in the exercise of judicial power. It is perhaps salutary to observe that not every contested matter litigated in that Court when exercising its powers conferred by the Just Terms Act gives rise to a question of law for the purpose of an appeal to the Court of Appeal under s 57(1) Land and Environment Court Act 1979 (NSW). Acknowledging the difference between the exercise of appellate powers and the Court’s original supervisory jurisdiction, it is difficult to see why all such questions will give rise to jurisdictional error if any mistake can be identified at any stage of the process of valuation. The point perhaps can be made by reference to the short concurring judgment of Basten JA in Marroun v Roads and Maritime Services [2013] NSWCA 358; 211 LGERA 391, which I set out in full below:

28. [81]

    The Council’s major premise is founded upon the decision of the High Court in Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8, a land tax case. The passage relied upon is in the following terms (at 116 [8]):

29. [82]

    The actual decision in Maurici (see [18]) was that the use of evidence of the value of scarce vacant land to assess the unimproved value of land used for residential purposes in a well-established and closely settled suburb of Sydney was necessarily outside the meaning of “land value” in s 6A Valuation Act.

30. [83]

    This authority does not support the proposition that every error in valuation, even in the context of a point of law appeal, raises a question of law. Nor does it mean that every error made by the Valuer-General (through adoption of the recommendations of a contract valuer) involves jurisdictional error as opposed to error within jurisdiction. So much in my view is made clear by Callinan J in Boland v Yates Property Corporation Limited [1999] HCA 64; 74 ALJR 209 at [276]-[277] (“Boland”). Boland was a professional negligence case brought against solicitors and barristers engaged in land valuation work. The resolution of the case necessarily involved a consideration of land valuation principles. His Honour said:

31. [84]

    Payne J dealt with this question in detail in Azizi (at [124]-[133]). I gratefully adopt and agree with his Honour’s analysis which I will not set out in full. It is telling, however, that Payne J started with a reference to the judgment of Dixon CJ in Turner v Minister of Public Instruction (1956) 95 CLR 245 at 268; [1956] HCA 7, where the Chief Justice observed:

32. [85]

    Particular reliance was placed upon the judgment of the Court of Appeal in ISPT Pty Ltd v Valuer General. Allsop P at [5] (speaking of “the judicial valuer”) said:

33. [86]

    In the same case Giles JA (Campbell JA agreeing) said at [23]-[24]:

34. [87]

    Following this review of authorities, Payne J expressed his conclusions at [129]-[135] in the following terms:

35. [88]

    There is no complaint in the present case that the contract valuer failed to apply the comparable sales approach. Rather, the Council’s complaint is that the contract valuer made errors in his or her application of that approach to the acquired land. But it is important to keep in mind that the Council must show that any material failing in the application of the approach involved jurisdictional error. The question whether it did or not starts with the provisions of the Just Terms Act.

36. [89]

    As it appears to me, the limits of the Valuer-General’s valuation discretion under the Just Terms Act, bearing in mind the asymmetry in the appeal rights afforded by the Just Terms Act, are bounded only by the classic forms of jurisdictional error. That is not to say that an acquiring authority will be forced to accept a legally incorrect determination. If, for example, a determination is illogical or irrational, or is unsupported by material properly before the valuer, then the acquiring authority will properly be able to impugn such a determination on the basis of the irrationality, legal unreasonableness, or no evidence grounds of judicial review. That is to say, that the authority will have available avenues of judicial review if the determination can be shown not to conform to the applicable law. But it seems the clear intention of Parliament is, where a determination is not affected by jurisdictional error, if it is accepted by the dispossessed landowner, then the acquiring authority is bound by it.

37. [90]

    In the extract from Azizi quoted above at paragraph [87], Payne J observed (at [130]) that a failure to apply the comparable sales approach in a specific manner or indeed a failure to apply the comparable sales approach at all does not amount to jurisdictional error because the Just Terms Act does not prescribe the specific use of any valuation method or the way in which any method ought to be conducted.

38. [91]

    The Council submits that the Valuer-General fell into jurisdictional error by acting irrationally, unreasonably, and contrary to correct valuation principles in failing to consider the sale of the Schofields Property that actually occurred, and as a result taking into consideration in his or her analysis a sale of the Schofields Property a transaction which did not occur.

39. [92]

    As the Council observes, the Valuer-General considered a sale of the Schofields Property which did not, in fact, occur. The Valuer-General described the sale of the Schofields Property as having occurred on 24 July 2017 and as being a sale of a portion of land measuring 7,793m2 at a price of $6,904,563.00, producing a rate of $886/m2 (IVPS Report at 45). There was no dispute that the actual sale was of a larger portion of that land at a lower price, yielding a much lower rate per m2.

40. [93]

    The IVPS Report stated (at 62):

41. [94]

    As I have already said that there is no issue before me that the information provided by Mr Bulpett was wrong. The contract valuer knew that there was a dispute about the sale price and he referred to the competing information. The information provided by Mr Bulpett seemed to him to have been confirmed by “the transfer document”. However, he acknowledged a “discrepancy”. It is important to observe that the contract valuer did not purport to resolve that discrepancy or act on the basis that the Schofields Road property in fact sold for $6.9 million. The argument of the Council is, with respect, to the extent on which it proceeds on the basis that the contract valuer acted on a wrong premise, itself erroneous. Although he included the information provided by Mr Bulpett in his table (reproduced at [37] above), his assessment (and adjustment) of other properties included on his table justified his conclusion that the discrepancy about Schofields Road was “of no major concern” as on his assessment there were other R3 sales supporting the opinion he formed.

42. [95]

    The contract valuer’s analysis of the Schofields Road sale, on which the Valuer-General acted, involved no error of valuation principle. It involved no error of law. Indeed, on my assessment of it, it involved no error at all, as at best he treated it with caution and as I read his report put it to one side. This error is not made good.

43. [96]

    Had it been made good, I would have regarded it as an error within jurisdiction. It involved no error of valuation principle. It involved no error of principle or law. It would have been characterised a judgment made in an area where uncertainty reigns and minds are likely to differ on reasonable grounds. There was certainly no illogicality, irrationality or legal unreasonableness in the contract valuer’s approach. Moreover, manifestly any such error was not material: the contract valuer and therefore the Valuer-General put the matter to one side.

44. [97]

    The Terry Road Property was zoned predominantly R3 Medium Density Residential, with a portion being zoned RE1 Public Recreation and SP2 Infrastructure. The sale price utilised for comparison was an amount of $10,500,000.00 for the entirety of the property. In order to value only the R3 Medium Density Residential portion of the property, the Valuer-General applied a nominal rate of $100/m2 to the 7,700m2 portion of the property that was zoned RE1 and SP2. This yielded the sum of $770,000.00 which was then subtracted from the total sale price and divided by 13,460m2, that being the area of the property that was zoned R3. This resulted in a rate of $723/m2 (IVPS Report at 40, CB 93).

45. [98]

    I reiterate that part of the Council’s argument in regard to this ground is that the Just Terms Act requires that the compensation to be paid to the owner of the Terry Road Property is to be assessed disregarding any increase or decrease in the market value of the property caused by reason of the carrying out of the public purpose – i.e. that the RE1 and SP2 Infrastructure zoning would be disregarded in performing a valuation of the market value of the land. On this argument the only portion of the Terry Road property which should be ascribed a nominal value is the flood prone portion. This principle is sourced from s 56(1)(a) of the Just Terms Act, which is extracted above at [75]. This is the former Pointe Gourde principle. However, that section is concerned with the valuation of acquired land for the determination of statutory compensation. The principle does not in terms apply to the analysis of a previous sale to decide its comparability with the acquired land for the purpose of determining the market value of the acquired land applying the comparative sales method.

46. [99]

    The Council cites no authority to support the proposition for which it argued. As a matter of statutory interpretation and of principle, I have great difficulty in accepting it. The Valuer-General when employing the comparable sales approach is attempting to compare like with like. Clearly, that calls for a comparison of property zoned R3 with property zoned R3. I can discern no necessary error in terms of the comparative sales method in approaching the matter as the contract valuer did. Leaving aside s 56 which applies specifically for the purpose of determining compensation, it is not obvious to me that a willing but not anxious purchaser acquiring the property as a development site would work on the basis that no discount was due because she or he may have a right to compensation for that portion when acquired by the Council. Like the flood prone section, it is open to find the portion zoned for public purposes would be of no value to a developer as part of a green site for development.

47. [100]

    Although the ground is presented as involving a matter of valuation principle, I am of the view that that characterisation is infected by fallacious logic. I reiterate that the Pointe Gourde principle as expressed in s 56(1) Just Terms Act is a matter of compensation principle applicable when determining the just compensation payable in respect of the acquired land, the subject of the proceedings. As I have explained it does not inflexibly or invariably apply to the analysis of comparable sales. In my judgment, the adjustment made by the contract valuer is not affected by illogicality, irrationality or unreasonableness in the relevant sense, indeed as I have said, it was one that was open to him.

48. [101]

    I re-iterate that the Council submits that the Valuer-General fell into jurisdictional error by acting irrationally, unreasonably, and contrary to correct valuation principles in failing to account for the price-dampening effect of the proposed introduction of a limit to maximum residential density for the land as foreshadowed in the draft amendments to SEPP 2006. The thrust of the argument is that the Valuer-General (or the contract valuer) was compelled to adjust each of the comparable sales downward in a significant way by reference to that consideration.

49. [102]

    It would not be accurate to say that the Valuer-General completely disregarded the proposed introduction of density restrictions. Indeed, the IVPS report stated (IVPS report at 28):

50. [103]

    It is evident that the contract valuer placed little weight on the publication of the draft amendments. Matters of weight, are of course, matters for the judgment of the decision maker. Here, the contract valuer placed weight on the fact that the amendments were not formalised as at the date of the acquisition. The contract valuer was entitled, with respect, to disagree with the Council’s valuer’s assertion that the draft amendment created a fundamental change in the market (IVPS Report at 62, CB 115). There are two matters of principle underpinning this conclusion.

51. [104]

    The first is that in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40, Mason J (as the Chief Justice then was) said (at 41-42):

52. [105]

    The second principle relates to the nature of the decision-making process. The Just Terms Act, as informed to the extent applicable by The Valuation Act, provides for a system of determination of compensation to the former owners of acquired land by neutral expert evaluation. In an admittedly somewhat different legislative context, the High Court, in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, said of such a decision-maker at [47]:

53. [106]

    The contract valuer explained the path of reasoning he followed to reach his opinion. He was not bound to agree with the contrary opinion of the Council’s valuer, whose report he obviously had regard to. The weight given to competing opinions was a matter for him. He was not deciding a dispute or exercising an arbitral or adjudicative function. It was not his role to settle differences between competing valuation opinion. His function was to form and give his own opinion on the valuation questions necessary for the determination of the compensation payable to the former owners.

54. [107]

    The Council also submits that the Valuer-General took into account an irrelevancy when dealing with the proposed density restrictions by reasoning that the draft amendment was a matter to which a consent authority would give little weight when determining a development application.

55. [108]

    What the IVPS Report actually said was:

56. [109]

    The date on which the market value of the property is assessed is determined as at the date of acquisition, namely 9 March 2018 (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) NSWLR 156 at 175; s 55(a) Just Terms Act).

57. [110]

    It is relevant to observe that s 4.15 Environmental Planning and Assessment Act 1979 (NSW), inter alia makes the following provision:

58. [111]

    That an assessment of how the draft amendment might be employed by planning authorities in considering a development application is properly within the province of the professional valuer, in my judgment, is made clear by Callinan J in Boland. When dealing with the “highest and best use” principle at [271] his Honour said:

59. [112]

    It is not in issue that as the land was to be valued according to an R3 underlying zoning, the potential for development was a relevant consideration in the assessment of its market value. Given that the draft amendment had not been “formalised” and was still under consideration, if not public consultation, the developmental potential in practical terms was a matter likely to affect “the amount that would have been paid for the land” if it had been sold “at the date of acquisition” “by a willing but not anxious seller to a willing but not anxious buyer”. Having regard to the considerations identified by Callinan J as relevant to the highest and best use including the need to obtain “the prior approval of vigilant planning authorities”, it was legitimate, and indeed to be expected, that the decision maker would make some evaluation of what the Council in its capacity as a consent authority would make of the relevance of the draft amendment. There was no error involved in the contract valuer dealing with the matter in this way. Had it been otherwise, I am of the view that the error made would have been an error within jurisdiction.

60. [113]

    Given my conclusion that the Valuer-General has power under the Just Terms Act to redetermine the amount of compensation payable, I am able to state my reasons briefly.

61. [114]

    The IVPS report provided (IVPS Report at p 9):

62. [115]

    In short, the amendment of 27 February 2019 expunged from the determination all amounts included in it that contravened the principle in Hoy. For this reason the Council has failed to establish jurisdictional error on the part of the Valuer-General insofar as it relates to this ground. For reasons I explained below the contravention of the principle discussed in Hoy was a jurisdictional error. It involved a misconstruction of the statute governing the determination of compensation due to dispossessed former owners by the acquisition of their land by an authority of the State. Although only a very small proportion of the total amount assessed and determined as compensation clearly as the redetermination establishes, the determination of compensation would have been different, had the error not been made when the original purported determination was made on 7 June 2018.

63. [116]

    In Azizi, Payne J considered an identical issue as raised by the Disturbance Loss Ground. His Honour held (at [146]-[152], [160]-[164]) that not only is the inclusion of costs which offend Hoy erroneous as a matter of law, but that such an error amounts to jurisdictional error because it goes beyond what that Valuer-General is empowered to do under the Just Terms Act. His Honour concluded:

64. [117]

    Mr Hemmings ultimately accepted in his written submissions of 20 December 209 that, absent a conclusion that the Valuer-General has power to issue a redetermination, this Court would likely conclude that the original determination was infected by jurisdictional error based on Payne J’s reasoning in Azizi. But of course that is of no moment given my conclusion as to the availability of a power to redetermine.

65. [118]

    In its calculation of disturbance loss, the contract valuer included sums for the former owners’ relocation costs and for stamp duty. The IVPS report stated (IVPS Report at 9-10, CB 63-64):

66. [119]

    Section 61 of the Just Terms Act provides:

67. [120]

    Paying due regard to the caution given by Preston CJ of LEC in El Boustani at [85]-[86], the historical rationale for s 61 might still best be explained by the decision of the English Court of Appeal in Horn v Sunderland Corporation [1941] 2 KB 26. In that decision, Sir Wilfrid Greene MR said (at 35):

68. [121]

    As Biscoe J said in Attard v Transport for NSW [2014] NSWLEC 44 (at [159]) (“Attard”):

69. [122]

    It is not uncommon when performing a valuation of land to include an uplift for its development potential. What that uplift might be depends on the characteristics of the land. If the land is practically ready to be developed, such that a hypothetical willing but not anxious property developer would acquire it at a premium knowing that they might be able to develop the land in a relatively short time span, the valuation of the land will include such a premium. Where the prospects of development are more remote – say for example it is contingent on the development of infrastructure or services in the area – then it is generally more appropriate that the land be valued disregarding the development premium but instead with an uplift in value to account for the prospect of development.

70. [123]

    Section 61 of the Just Terms Act is the statutory embodiment of the principle established in Horn v Sunderland Corporation. The principle was dealt with in quite some detail in El Boustani by Preston CJ of LEC (with whom Beazley P and Gleeson JA agreed). In an influential passage his Honour explained the interplay of s 59 dealing with disturbance and s 61 at [96] to [100]:

71. [124]

    The decision in El Boustani is of course binding on me just as it has been binding on judges of the Land and Environment Court sitting as “judicial valuers”. In particular, emphasis has been placed in subsequent cases upon the expression in [99]: “temporally very proximate – the land is ripe and would be virtually certain to be developed for the other purpose within the very near future”. For instance, in Attard, Biscoe J made allowances for disturbance when he had determined market value of the former owner’s rural residential acquired land on the basis that it was virtually certain it would be rezoned for residential sub-division about 2.5 years after the resumption. His Honour did not regard that period as “temporally proximate” or “ripe for development”: Attard at [152].

72. [125]

    In De Battista v Transport for New South Wales [2014] NSWLC 39 (“De Battista”), Pain J held that s 61 had been engaged because the acquired land at the date of acquisition had been used as rural residential acreage and its value had been assessed on its potential to be used for low to medium residential development. Her Honour also accepted evidence that the potential to develop the land for low to medium density residential housing was “temporally proximate”. However, her Honour, nonetheless, made an allowance for disturbance as she was not satisfied that s 61(b) applied because she accepted evidence that the former owner would have preferred to remain on her previous residence and that the development could have been undertaken around her. She was therefore not satisfied that the matters allowed for disturbance represented, in the circumstances of the case, “financial loss that would necessarily have been incurred in realising that potential”. Given the evidence she preferred, her Honour was not satisfied that relocation costs and stamp duty would inevitably have been incurred: De Battista at [117]-[121].

73. [126]

    In my judgment one should not read the passage I have quoted from Preston CJ of LEC’s judgment in El Boustani too literally. His Honour was explaining the meaning and operation of the statute and it is to the language of the statute that one must always return lest his Honour’s exposition operates as a gloss on the statutory language. “Temporally very proximate” or “ripe” and “very near future” are all relative terms. The timeless quality of an interest in land and the nature of land itself must be borne in mind. The expressions of temporal proximity need to be considered in juxtaposition with the expression “for a very long time” (in [100]). So much is made clear by his Honour’s reference to Pike v Minister of Housing (1979) 20 LCR 166 (at [101]).

74. [127]

    The important consideration arising out of what was said by Preston CJ of LEC at [99] and [100] is that for present purposes the real questions are: (a) has the market value of the land been assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used; and if so, (b) do the items claimed for disturbance represent financial loss that would necessarily have been incurred in realising that potential? If both of these questions are answered affirmatively, the question then becomes, did the Valuer-General fall into error by accepting the contract valuer’s recommendation that the loss for relocation and stamp duty be allowed as disturbance, and if so, was that error jurisdictional?

75. [128]

    The Valuer-General considered a town planning report prepared on behalf of the former owners which inter alia included draft concept designs for potential development on the site if it were zoned R3 (IVPS Report at 29, CB 82). These designs were explained as follows:

76. [129]

    The IVPS Report concluded, under the heading “Highest and best use” (IVPS Report at 35, CB 88):

77. [130]

    The second paragraph in the extract quoted above shows that the Valuer-General proceeded on the basis that the land was to be valued on its highest and best use, which was as a site with development potential for a medium density residential development.

78. [131]

    The IVPS Report continued, under the heading “Improvements” (IVPS Report at 38, CB 91):

79. [132]

    To ascribe nominal value to the existing improvements because they would have to be demolished to enable development and to acknowledge that the value would be offset by demolition and removal costs shows without any doubt that the basis on which the IVPS Report determined the market value of the land was one that engaged s 61 of the Just Terms Act.

80. [133]

    The IVPS Report made pellucidly clear that as the subject property is considered to be a potential redevelopment site under its underlying zoning, in order to realise the maximum market value, the former owners would need to sell the property and relocate (see quote extracted above at paragraph [118] under the heading “Stamp Duty”)

81. [134]

    More fundamentally, the approach adopted by the contract valuer involved the distillation of a rate per square based on comparable sales of properties that were themselves selected for their development potential.

82. [135]

    That said, under the heading “Services”, the IVPS Report stated (IVPS Report at 39):

83. [136]

    Further, in response to a submission from the Council that the inclusion of relocation costs offended s 61, the IVPS Report stated (IVPS Report at 61, CB 114):

84. [137]

    Notwithstanding what seem to me to be the rather contradictory statements quoted above at paragraph [135]-[136], the fact remains that the Valuer-General assessed the land on the basis that in order to realise the maximum market value for the property, the former owners would need to sell the property and relocate. The land was assessed on the basis that it would be sold to a property developer for redevelopment, which, to apply the terms of s 61, is a use for a purpose other than that for which it was used at the time of acquisition.

85. [138]

    It is of no moment that s 26 confers on the Valuer-General a discretion in relation to disturbance. That discretion relates to whether or not to take into account disturbance loss. It does not permit the Valuer-General to include an amount in his or her determination of compensation for disturbance loss that is otherwise precluded from being taken into account by the Just Terms Act.

86. [139]

    As I have said, the question is not whether the first sod on the development site could have been turned the day following the date of acquisition. It seems to me that undue focus on expressions like “temporally proximate”, “ripe” and “within the very near future” are capable of diverting attention from the language of the statute. Questions of that nature are really logically anterior to the question whether the land should be valued according to its development potential. Taken out of context they are likely to divert attention, as I have said, from the questions the statute poses.

87. [140]

    There can be no doubt that the market value of the acquired land as at the date of acquisition on which the Valuer-General proceeded gave what might be regarded as “full freight” for its potential to be used for the purpose of medium density housing development in accordance with the underlying zoning of R3. It also follows, that the question I have posed whether relocation costs and stamp duty are financial losses that would necessarily have been incurred in realising that potential must also be answered in the affirmative. If this is correct, s 61 was fully engaged and the relocation costs and stamp duty on the former owner’s new home were not losses attributable to disturbance.

88. [141]

    The Court of Appeal (Tobias JA, Allsop P and Sackville AJA agreeing) said in Sydney Water Corporation v Caruso [2009] NSWCA 391 (at [185]):

89. [142]

    In expressing myself as I have, I have not lost sight of the Court’s limited role in exercising its supervisory jurisdiction. I have not lost sight of the fundamental consideration that it is simply impermissible for the Court to engage in a form of merits review. Rather, I have expressed myself as I have because it seems to me that when one considers the findings of fact actually made by the contract valuer, founding his recommendations upon which the Valuer-General acted, this ground has been made good on the basis that it falls into that category of case where the facts as found necessarily fall outside the statutory description. That is to say, on the facts as found only one conclusion was necessarily open on the law properly understood. For the reasons explained by Payne J in Azizi at [160]-[164] there is jurisdictional error vitiating the determination of compensation carried out by the Valuer-General. The nature of the error may also be expressed as a misconstruction of the governing statute.

90. [143]

    It may also be said that the Valuer-General fell into jurisdictional error by reliance on the recommendation of the contract valuer by asking himself the wrong question. Once market value was determined by reference to the acquired land’s development potential for medium density housing and it had been determined that for that potential to be realised, it would be necessary for the former owners to relocate, it was simply irrelevant to ask whether realisation of the potential was temporally proximate and to answer that question in the negative with regard to the consideration that it was unlikely that residential development could commence on the acquired property within the next two years. In view of the findings already made, as I have said, that question simply did not arise for consideration.

Conclusion

1. [144]

   It is obvious that Council has enjoyed success in respect of two discrete allowances only; relocation costs and stamp duty. Together these items total $292,490.00. This is not an insignificant sum in absolute terms, but it represents only 1.8% of the total determination; a very small proportion of the total compensation indeed. As I observed at [5] above, the parties eschewed any reliance on the de minimis principle (on discretionary grounds) or any doctrine of severability. However, in the circumstances I think it fair to observe that in remitting the matter for redetermination according to law, I should not be taken as indicating that it is necessary for the Valuer-General or the contract valuer to whom the work is assigned to start again with an entirely blank slate. The work previously done by the parties and by the contract valuer need not be replicated. The work has to be reviewed so that the errors identified can be corrected. As Payne J accepted (Azizi [165]), given that a fresh decision is required, if new material is provided it would have to be considered. But expressing my own view, it seems to me that the remitter is not really the occasion for a second run over the whole of the target. In the end, these are matters for the Valuer-General in the discharge of his statutory obligations.

2. [145]

   The Council has succeeded in establishing jurisdictional error on the part of the Valuer-General. I will make orders giving effect to the agreement by the parties that, should this Court find that the determination was infected by jurisdictional error, then the entire determination ought to be sent back to the Valuer-General for redetermination.

3. [146]

   It is implicit in the findings I have made that the original determination of 7 June 2018 is void and of no effect for the reasons given by the High Court in Bhardwaj. However, for completeness and clarity I think it appropriate to make a declaration to that effect. I also make a declaration to the effect that the redetermination of the 27 February 2019 is void and of no effect.

4. [147]

   I am conscious that in Azizi Payne J made a special order as to costs. I am also conscious that in their written submissions of 20 December 2019, the former owners make a qualified application for the same order. The errors I have found do not conform with the condition contemplated by counsel for the former owners. I propose to make the usual order as to costs, but I will reserve liberty to all parties to apply for any variation for which they wish to contend.

5. [148]

   Accordingly, the Court makes the following orders:

   1. (1)

      Declare that the Determination of Compensation made by the third defendant, the Valuer-General, (Valuer-General’s Reference VV GC.JT02515) dated 7 June 2018 is void and of no effect;

   2. (2)

      Declare that the redetermination of compensation made by the third defendant, the Valuer-General, (Valuer-General’s reference VVGC.JT02515) dated 27 February 2019 is void and of no effect.

   3. (3)

      Order that the third defendant determine the amount of compensation to be offered to first and second defendants in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

   4. (4)

      Unless any party makes application for a different or special order as to costs in writing within 14 days order the first and second defendants to pay the plaintiff’s costs of the proceedings.

   5. (5)

      Any application for a special or different order for costs is to be made by lodging any relevant affidavit evidence and written submissions with my chambers within the said period of 14 days. Responding parties who wish to oppose the order sought are to lodge any evidence in reply and written submissions within a further period of 14 days after service on them of the moving party’s material.

   6. (6)

      Any application for a special or different order as to costs is to be determined on the papers in chambers in the absence of the parties.