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Compulsory acquisition of part of private property for highway
extension
The Roads and Traffic Authority of NSW had compulsorily acquired
part of a rural property to provide for a new section of the
Pacific Highway, therefore entitling the property owners to
compensation under
section 37 of the Land Acquisition (Just Terms Compensation) Act 1991
(NSW) ("the Just Terms Act").
On the acquired land, the owners operated a cattle stud farm,
including facilities for insemination/embryo transfer and a dairy
bails/show complex, while their residence was located on the
remaining land.
The new highway extension meant that there would be a higher
speed limit for traffic passing by the residence and that the new
road would be wider, more elevated and 35 metres closer to the
residence than it had previously been.
Property owners take legal action to argue for higher
compensation
The parties were unable to reach agreement on the compensation
to be paid under the Just Terms Act. While there was
disagreement on many aspects, the primary dispute between them was
whether the increased traffic noise meant that the residence was
now uninhabitable and would need to be relocated further away from
the new highway.
The property owners ultimately applied to the Land and
Environment Court by way of objection to the amount of compensation
the government had offered. It was up to the court to determine
based on the evidence of both parties (including expert acoustic
evidence) what compensation was appropriate in the
circumstances.
case a - The case for the RTA
case b - The case for the property owners
We concede that the noise from the new highway does
significantly impact upon the residence and that some compensation
is therefore payable for this disturbance.
However, the evidence shows that this impact can be greatly
reduced by implementing a few reasonable measures, such as
retrofitting the residence with double glazed windows and exterior
walls, sealing the openings around doors and implementing
ventilation measures so that windows can be kept closed.
These measures would mean the residence does not need to be
relocated further away from the new highway.
Irrespective though, the amount of compensation payable should
be calculated based on the "before" and "after"
value of the residence and not on the cost of relocation.
We can no longer live in our current residence as the noise of
the new highway extension has made it uninhabitable.
The evidence does not demonstrate that the measures suggested
by the RTA to reduce the impact of this disturbance are either
practical or effective. If we try to sell the house, a prospective
buyer would be very cautious even with those measures in
place.
The house therefore needs to be relocated to another location
on the property and we should be entitled to claim all the costs of
the relocation, including the costs of constructing a new road to
the new house site, the development application for the new
residence, disconnection of electricity and reconnection of
electricity at the new site and a new septic tank and
plumbing.
So, which case won?
Cast your judgment below to find out
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guide to the subject matter. Specialist advice should be sought
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