LANDOWNERS QUESTIONS THE VALUATION THEIR LAND WHICH WAS ACQUIRED FOR THE CONSTRUCTION OF THE DRYSDALE BYPASS ALLEGING THAT THE LAND WOULD HAVE INCREASED IN VALUE WERE IT NOT FOR THE BYPASS PROPOSAL
Crowe v Head, Transport for Victoria [2021] VSC 180 (15 April 2021)
This is a claim for compensation for the farmland compulsorily acquired for the Drysdale Bypass where there is a dispute as to whether the subject land would have been zoned for residential use were it not for the Bypass proposal.
Facts:
In 2018, the Roads Corporation (the Authority) compulsorily acquired farm land owned by Patrick and Wendy Crowe on the eastern side of Drysdale, on the Bellarine Peninsula, for the construction of the Drysdale Bypass. Mr and Mrs Crowe have claimed compensation for the land that was acquired, in accordance with the Land Acquisition and Compensation Act 1986 (LAC Act). The amount of compensation to which they are entitled is in dispute
The dispute arises from the fact that the Drysdale Bypass was first proposed as early as 1975, and has been a feature of strategic planning for the area since then. Section 43(1)(a) of the LAC Act requires any decrease in the market value of the land arising from the proposal to carry out the purpose for which the land was acquired to be disregarded in assessing compensation. Mr and Mrs Crowe contend that, but for the Bypass proposal, their land would have been zoned for residential use by 2018, and its market value should be assessed on the basis that its highest and best use was residential. The Authority maintains that the Crowes’ land would have remained farm land, and should be valued on that basis.
Mr and Mrs Crowe submitted that in the absence of the Bypass, there was no material impediment to urban growth occurring to the east of Drysdale up to Martins Road. In those circumstances, their land would have been identified for urban uses and, before 2018, would have been rezoned to accommodate those uses. They relied on the expert opinion of Mr Rogers and his central conclusion that, absent the Bypass proposal, Drysdale would have developed in a more balanced way around the town centre, and would have extended east to Martins Road. His opinion was that the transition to the urban development of that area would have occurred from the time of the 1992 Structure Plan, when the Council would have looked east instead of west for growth.
The Authority submitted that the evidence of their expert witness, Ms Jordan and Mr Clarke should be preferred, because their opinions engaged with the relevant strategic planning history of Drysdale, had regard to well-accepted town planning principles, and were underpinned by sound and detailed reasoning. It said that these features were absent from the evidence of Mr Rogers, which was said to be deficient in a number of respects.
Issue: Should the court accept the opinion of the planning expert presented by Mr. and Mrs. Crowe?
Law:
Analysis:
The court accepts the opinions of Ms Jordan and Mr Clarke in favor of The Authority that, in the absence of the proposed Bypass, the eastern boundary of Drysdale would have been aligned with Clarendon Road, and the Drakes land and the Murradoc land would have been in the Farming Zone at the time of acquisition in 2018.
First, both Ms Jordan and Mr Clarke undertook more comprehensive surveys of the planning history of Drysdale and the surrounding area than Mr Rogers. Second, Mr Rogers did not engage at all with the selection of the Bypass alignment in the early 1980s, and the planning considerations that informed it. Third, the court does not accept Mr Rogers’ view that the difficulty of water provision to the east of Drysdale was not a relevant growth constraint. Fourth, the opinion of all three planners was that Drysdale would have grown in only one direction in the absence of the Bypass. Fifth, the court does not accept Mr Rogers’ thesis that Drysdale was more likely to grow eastwards because of the agricultural land to the west was more valuable than to the east.
The court finds that on the balance of probabilities, that the Drakes land and the Murradoc land would have been in the Farming Zone at the acquisition dates.
The Crowes’ case was that, but for the Bypass, their land would have been rezoned for residential use long before the dates of acquisition. They did not put a case that there was any prospect of the land being rezoned at some future time, and there was no evidence to support that conclusion.
Conclusion: The subject land had no prospect of it being rezoned for residential use as contended by the applicants.
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