The Facts

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

Vote case A – the case for the RTA
Vote case B – the case for the property owners

Digby Dunn
Compulsory acquisition
Stacks Law Firm

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