[1997] FCA 299

CATCHWORDS

Land acquisition - compensation for compulsory acquisition - resumption of improved land - whether relocation and reconstruction costs of a business are a direct, natural and reasonable consequence of acquisition - compensation for disturbance, severance and reinstatement - compensation of a dispossessed owner for the decline in net profitability of a business before and after resumption - meaning of "just terms".

Estoppel - whether parties bound by estoppel by deed.

Procedure - whether proceedings before a Judge and the Full Court of the Federal Court were interlocutory or final - value as evidence against a party in later proceedings of informal admissions against interest.

Lands Acquisition Act (1989) ss.55(1), (2) and 93.

Commissioner for Highways v Shipp Bros Pty Limited (1978) 19 SASR 215

Keogh v Housing Commission of Victoria (No.1) [1969] VR 809

Keogh v Housing Commission of Victoria (No.2) (1969) 18 LGRA 295 Director of Buildings & Lands v Shun Fung Ironworks Limited [1995] 2 AC 111 Banno v Commonwealth of Australia (1993) 45 FCR 32 McBaron v Roads & Traffic Authority of New South Wales (1995) 87 LGERA 238 King v Minister for Planning & Housing (1991) 76 LGRA 288. Re Martin; Ex parte Amtron Australia Pty Ltd (1996) 62 FCR 438

Discount & Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 598

Pastoral Finance Association Ltd v The Minister [1914] AC 1083

Hubertus Schuetzenverein Liverpool Rifle Club v Commonwealth of Australia (1995) 130 ALR 447

LEPPINGTON PASTORAL COMPANY PTY LIMITED v COMMONWEALTH OF AUSTRALIA

No. NG722 of 1995

CORAM: JENKINSON, BEAUMONT AND LEHANE JJ. PLACE: SYDNEY DATE: 29 APRIL 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG722 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:LEPPINGTON PASTORAL COMPANY PTY LIMITED

Appellant

AND: COMMONWEALTH OF AUSTRALIA Respondent

CORAM: JENKINSON, BEAUMONT AND LEHANE JJ.

WHERE MADE:      SYDNEY

DATE:  29 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The orders indicated by Wilcox J. by way of answers to the Preliminary Issues in his Honour's reasons for judgment dated 27 July 1995 be varied by ordering that the following questions be answered as follows, in lieu of the answers indicated by Wilcox J.:

"Q1. Do the provisions of the [D]eed... require the application of any special principle or approach to the determination of Leppington's claim for compensation and, if so, what?"

A1. Yes, to the extent that the Deed provides that one element in assessing compensation for the compulsory acquisition will include an assessment of Leppington's reasonable costs of re-location in the manner contemplated by the Deed.

"Q2. In particular, does that [D]eed, on its proper construction, mean no more than the Commonwealth is precluded from asserting that Leppington is not entitled to `special value compensation' for the resumed land in excess of the market value of that land on the acquisition date?"

A2. No.

"Q3. Is the determinative factor of the expression `operations as are (were) manifest at the acquisition date'

A3(a) No.

A3(b) Yes, to the extent that an assessment of the cost of Leppington's relocation is envisaged to be made on the footing that the relocation is effected at a reasonable cost and in the manner contemplated by the Deed.

"Q4. Having regard to the [D]eed... and the... Act is the Commonwealth obliged to pay compensation in an amount equal to the cost of relocating and reconstructing the farm buildings, redesigning the remaining land and adopting new or varied farming practices in the manner set out in the plan marked `LP4A' regardless of:

"Q5. If the answer to 4 is `no', according to what essential criteria are the expenses (to be) incurred by Leppington in relocating and reconstructing the farm buildings, redesigning the remaining land and adopting new or varied farming practices as a direct natural and reasonable consequence of the Commonwealth's acquisition of the resumed land (and the Commonwealth's resultant liability to pay compensation) to be assessed?"

"Q6. By what amount, if any, should the cost of relocation and reconstruction as at the resumption day, (being an element of the special value to form part of the compensation payable to the dispossessed owner) be discounted to reflect the period after resumption day during which Leppington may remain on the resumed land pursuant to a lease granted by the Commonwealth until the time at which Leppington will or may incur the costs of relocation?"

A4. )

A5. ) These questions should not be answered. A6. )

The costs of the preliminary issues before Wilcox J., and before the Full Court, be the costs of the parties in the proceedings, such costs to abide the order of the trial Judge at the final hearing.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 722 of 1995 )

GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:  LEPPINGTON PASTORAL COMPANY PTY LIMITED

(Appellant)

AND: COMMONWEALTH OF AUSTRALIA (Respondent)

CORAM: Jenkinson, Beaumont and Lehane JJ PLACE: Sydney

DATE: 29 April 1997

REASONS FOR JUDGMENT

JENKINSON J: I have had the advantage of reading in draft the reasons for judgment of Beaumont J. I agree in the orders which his Honour proposes and, with one qualification, in those reasons.

Beaumont J. understands the words in clause 5(b)(i) of the Deed, "the Company's buildings, plant, equipment and other material presently located on the acquisition land (`the Farm Buildings') necessary for the Company's operation as are manifest at the acquisition date", as indicating things which are both necessary for the Company's operations and manifest at the acquisition date. The alternative construction - that the words indicate things necessary for those of the Company's operations as are manifest at that date - does not in my opinion require an answer to any of the questions different from that which his Honour proposes. Without making a concluded choice between the two constructions, I concur in the answers proposed by his Honour.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment of his Honour Justice Jenkinson. Associate:

Date: 29 April 1997

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG722 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:LEPPINGTON PASTORAL COMPANY PTY LIMITED

Appellant

AND: COMMONWEALTH OF AUSTRALIA Respondent

CORAM: JENKINSON, BEAUMONT AND LEHANE JJ.

DATE:           29 APRIL 1997

Beaumont J.

INDEX TO REASONS FOR JUDGMENT

INTRODUCTION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 1

LEPPINGTON'S CHALLENGE TO THE MINISTERIAL DECLARATIONS........ ........ ... 3

THE DEED........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 3 THE ACQUISITION........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ... 8 THE LEGISLATIVE SCHEME........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .... 8 THE PROCEEDINGS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ 13

THE CASE SOUGHT TO BE MADE BY LEPPINGTON IN THE PRINCIPAL PROCEEDINGS   16

THE PRELIMINARY ISSUES RAISED FOR DETERMINATION........ ........ ........ ........ .. 23 THE COURSE OF THE PROCEEDINGS AT FIRST INSTANCE........ ........ ........ ........ ... 24

THE REASONING AT FIRST INSTANCE........ ........ ........ ........ ........ ........ ........ ........ ...... 25

(i) The general position........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ..... 49

(ii) The meaning of specific provisions of the Deed........ ........ ........ ........ ........ ..... 60 (c) The preliminary issues........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ...... 67 COSTS........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 74 ORDERS PROPOSED........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ....... 75

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG722 of 1995 ) GENERAL DIVISION )

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:LEPPINGTON PASTORAL COMPANY PTY LIMITED

Appellant

AND: COMMONWEALTH OF AUSTRALIA Respondent

CORAM: JENKINSON, BEAUMONT AND LEHANE JJ.

DATE:           29 APRIL 1997

REASONS FOR JUDGMENT

Beaumont J:

INTRODUCTION

The respondent, the Commonwealth of Australia ("the Commonwealth"), acquired land at Bringelly owned by the appellant, Leppington Pastoral Company Pty Limited ("Leppington"). The acquisition, for the purposes of the construction of the Sydney West (Badgery's Creek) Airport, was effected on 11 December 1991 pursuant to the provisions of the Lands Acquisition Act 1989 ("the Act"). The Commonwealth acquired an area of 38.14 ha, being part of an area of 579.8 ha ("the Bringelly property") on which Leppington, a company controlled by the Perich family, carried on several pastoral activities, principally a large scale dairy farming operation. Leppington was a major supplier of milk to the Sydney market.

Leppington used the Bringelly property as a "base farm" on which it milked about 1,150 cows throughout the year. About 2,700 calves were reared each year on the property or on an associated farm nearby. At four months of age, the calves were sent to one of Leppington's properties in the Central West of New South Wales. Some later returned to Bringelly as pregnant heifers and potential milkers. Others were sold as steers. The Central West properties were also used for the production of grain as dry feed for consumption at Bringelly. Leppington supplemented this dry feed with brewery grain acquired under an arrangement with Tooth's Brewery and with vegetable waste from a cannery at Bathurst. In a normal season, approximately 65% of the milking cows' food needs were satisfied by imported dry feed; the remaining 35% was provided by "fully" (i.e. throughout the year) irrigated prime pasture; but, at times, it was necessary to rely almost entirely on imported dry feed. Generally speaking, the dry stock grazed the "dry" pasture areas (that is, inferior country), supplemented from time to time by grazing "winter" irrigated pasture (that is, pasture which was not prime pasture and which was irrigated in winter only).

At the time of acquisition, the Bringelly property comprised 159.1 ha of "fully" irrigated prime pasture, 41 ha of "winter" irrigated pasture and 276.4 ha of "dry" pasture. Water storage dams occupied 65.7 ha. Utility areas, including building sites, yards etc. occupied 37.5 ha.

The acquired land comprised 32.4 ha of "fully" irrigated pasture; and 5.8 ha of utility areas, on which were erected the main dairy building and yards, calf rearing pens and sheds, feed store sheds, the main machine areas, the main office and two principal residential buildings.

LEPPINGTON'S CHALLENGE TO THE MINISTERIAL DECLARATIONS

In July 1989, the Minister made declarations under s.22 of the Act that he was considering the acquisition of part of the Bringelly property, having an area greater than 38.14 ha. Leppington sought, pursuant to s.26 of the Act, a reconsideration of the declarations, but the Minister, pursuant to s.27(1)(a), confirmed his decision. Leppington then sought, pursuant to s.28, that the decision be reviewed by the Administrative Appeals Tribunal. The Tribunal stated a case for the opinion of this Court. The questions stated were determined by a Full Court in June 1990 (see Leppington Pastoral Company Pty Limited v Department of Administrative Services (1990) 23 FCR 148). Before the Tribunal resumed its hearing of the matter, the parties entered into negotiations with respect to possible variations of the declarations. They ultimately reached agreement on this issue and reduced their agreement to a form of a deed ("the Deed") dated 21 August 1991. The true construction of the Deed is important for present purposes.

THE DEED

A copy of the Deed is annexed to these reasons. (Its schedules are not annexed). Some of its provisions should be noticed now as follows:

The Deed recited (F) that, following negotiation between them, the parties "have agreed to a variation of the Pre-acquisition Declarations (the varied PAD) on the terms and conditions as set out in this Deed".

By cl.1 of the Deed, the parties agreed that the varied PAD "shall be on the following terms and conditions", that is, those provided in paras. (a) to (e).

By cl.1(a) it was provided that the Commonwealth shall acquire the land being Lot 101 ("the acquisition land") in the subdivision plan, which is also annexed to these reasons. It will be seen that it is there stated that Lot 101 has an area of 38.14 ha.

By cl.1(b) it was provided that the Commonwealth shall acquire an easement over Leppington's land not being acquired, relating to an approach lighting system and a navigational aid system, appurtenant to the acquisition land.

By cl.1(c) it was provided that the Commonwealth shall acquire a restriction as to user relating to the systems mentioned in cl.1(b).

By cl.1(d) it was provided that the Commonwealth shall acquire a restriction as to user relating to the terminal area radar to be constructed on adjoining land owned by the Commonwealth.

By cl.1(e) it was provided that the Commonwealth shall bear the survey and registration costs of acquiring the acquisition land, the easements and the restrictions as to user. Nothing turns on this provision for our purposes.

Clause 2 of the Deed provided:

"The parties shall do all reasonable things in their power to enable the varied PAD... to become absolute as provided by the Act and to effect the gazettal of the acquisition... and the easements and covenants...['the acquisition']."

Clause 3 of the Deed provided for the grant of a lease to Leppington in the following terms:

"On the date of the gazettal of the acquisition (`the acquisition date') the Commonwealth shall grant a lease to [Leppington] of the acquisition land on the terms and conditions detailed in the Fifth Schedule and the commencement date of the lease shall be the acquisition date."

The terms and conditions of the lease specified in the Fifth Schedule included provision for the payment of rent, subject to adjustment by reference to the Consumer Price Index. The amount of the rent, which appears to be accepted by both parties as having been fixed by reference to commercial principles, is not material for our purposes. By cl.9.3 and Item 6 of the Schedule to the lease it was provided that the date of termination of the lease was to be 30 November 1992. Clause 10 then provided for termination by the parties as follows:

"TERMINATION BY LESSOR AND LESSEE 10.1 Notwithstanding any other condition of this lease, the [Commonwealth] may at any time during the term of the lease terminate the lease by giving [Leppington] twelve

Clause 14 of the lease provided that Leppington may continue to use the land after the termination date, with the consent of the Commonwealth, by way of a holding over tenancy, terminable on one month's notice.

Provision was made by cl.15 of the lease for the grant to Leppington of an option to take a further lease. By cl.15.1 it was provided that the Commonwealth shall, not less than 9 months prior to the termination date, notify Leppington either that it intends to grant Leppington an option for a further lease for a term of 10 years, to commence on 1 December 1992 (and this has in fact happened); or that it required the land to be vacated by 30 November 1992. By cl.15.2 it was provided that in the event that the Commonwealth granted Leppington the option for the further lease, Leppington, if (as in fact happened) it wished to take it, shall notify the Commonwealth of such wish not less than three months prior to the termination date. By cl.15.5 it was provided that in the event that the Commonwealth failed to give notice under cl.15.1, Leppington shall only be required to vacate on receiving nine month's notice.

To revert to the Deed itself, cl.5, which is important for our purposes, was as follows:

"5.

Clause 6 of the Deed provided for continued access by Leppington to all parts of the property, subject to the lease, in the event that it was necessary to re-route the Northern Road along the acquired land. Such access, if necessary, was to be provided by the Commonwealth by means of a tunnel under or across the re-routed road.

THE ACQUISITION

As has been noted, the Commonwealth resumed the interest in the property by notice of acquisition published in the Government Gazette dated 11 December 1991.

THE LEGISLATIVE SCHEME

The relevant provisions of Part VII of the Act, dealing with "Compensation for Compulsory Acquisition of Interests in Land", should be noticed.

Division 1 of Part VII (ss.52-3) deals with "Entitlement to Compensation". By s.52 it is provided that a person from whom an interest in land is acquired by compulsory process is entitled to be paid compensation by the Commonwealth in accordance with Part VII in respect of the acquisition.

Division 2 of Part VII (ss.54-63) deals with "Amount of Compensation - Interests other than Mortgage Interests".

By s.55(1) it is provided that the amount of compensation to which a person is entitled under this Part in respect of the acquisition of an interest in land is such amount as, having regard to all relevant matters, will justly compensate the person for the acquisition.

By s.55(2) it is provided that in assessing the amount of compensation, regard shall be had, inter alia, to the following:

(a) The market value of the interest on the day of the acquisition;

(The meaning of "market value" for the purposes of Division 2 is defined by s.56 as the amount that would have been paid for the interest if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer).

(b) Any reduction in the market value of any other interest in land held by the person that is caused by the severance by the acquisition of the acquired interest from the other interest;

(c) Where the acquisition has the effect of severing the acquired interest from another interest, any increase or decrease in the market value of the interest still held by the person resulting from the nature of, or the carrying out of, the purpose for which the acquired interest was acquired.

(d) Any loss, injury or damage suffered, or expense reasonably incurred, by the person that was, having regard to all relevant considerations, including any circumstances peculiar to the person, suffered or incurred by the person as a direct, natural and reasonable consequence of the acquisition.

Division 4 of Part VII (ss.67-77) deals with "Claims for, and Offers of, Compromise".

Claims for compensations are dealt with by s.67 in the manner previously mentioned.

By s.70 it is provided that the Minister is either

By s.75 it is provided that the claimant may

By s.76 it is provided that on receipt of a notice under s.75(b), the Minister shall reconsider the question and make a final offer; and by s.77 the claimant may accept or reject the Minister's final offer of compensation.

Division 5 of Part VII (ss.78-84) deals with "Determination of Compensation Payable".

Compensation may be determined by agreement between the Minister and the owner made pre-acquisition (s.78) or post-acquisition (s.79).

The Minister and the owner may agree that the amount of compensation be settled by arbitration or be determined by an expert (s.80). The Administrative Appeals Tribunal (s.81) and this Court (s.82) may determine the amount of compensation.

Division 6 of Part VII (ss.85-92) deals with "Payment of Compensation".

By s.85(2), it is provided that where the Minister has accepted a claim and has made an offer, the Minister shall, on behalf of the Commonwealth, make an advance on account of compensation. An advance shall not be less than 90% of the offer (s.85(3)). The mere receipt of an advance does not constitute an acceptance of any offer made by the Minister (s.85(4)).

Where -

Where -

For completeness, although as will be seen, in my view of peripheral significance here, reference should be made to a claimant's statutory entitlement to interest. Where the Commonwealth is liable to pay compensation to a claimant under Part VII, the claimant is entitled to interest from the day of acquisition until the day on which the compensation is paid, or where payment is delayed through a default or delay of the claimant, until the day on which the compensation would have been paid but for the default or delay (s.91(2)). For the purposes of s.91

If, on the day following the end of the period of three months that commenced on the day of the acquisition or/any succeeding period of three months, the interest payable to the claimant under s.91(2) in respect of the period has not been paid, Part VII has effect as if, on that day, the amount of compensation payable were increased by the amount of the unpaid interest (s.91(4)).

Interest is not payable otherwise than in accordance with s.91 (s.91(5)).

Section 93, in Division 7 of Part VII, provides that in any case where the High Court, or this Court, is of the opinion that the application of any of the provisions of this Act would result in an acquisition having been made otherwise than on just terms, the High Court, or this Court, may determine such compensation or make such order as, in its opinion, is necessary to ensure that the acquisition is on just terms.

THE PROCEEDINGS

Leppington claimed compensation; the parties negotiated but were unable to agree an amount. Both parties then commenced proceedings in this Court. By s.82(1) of the Act, previously mentioned, where a person has made a claim for compensation, the person or the Commonwealth may institute proceedings in this Court for a determination of the amount of compensation to which the person is entitled. This amount is the amount that the Court determines (s.82(3)).

By its further amended statement of claim, dated 8 July 1994, the Commonwealth claimed that Leppington was entitled to just compensation in respect of the acquisition in the sum of $6,581,575 comprising

"

The Commonwealth further claimed that it had paid Leppington $9,499,100 by way of advance under s.85 of the Act, and that such amount should be deducted, it claimed, from the compensation found to be due to Leppington. (By s.85, as has been said, it is provided that where the Minister has accepted a claim for compensation and made an offer of compensation to the claimant, the Minister shall, on behalf of the Commonwealth, make an advance on account of compensation).

The Commonwealth added, in para. 6 of its statement of claim:

"6. If the amount already paid to [Leppington] exceeds the amount found by this Honourable Court to be the amount of just compensation the [Commonwealth] claims the balance as a debt due to the [Commonwealth] pursuant to section 88 of the... Act 1989, together with interest from the date of payment by the [Commonwealth] until the date of judgment at pre-judgment interest rates equivalent to the statutory rates of interest prescribed pursuant to the... Act, or such other rate as the Court may determine."

(It will be recalled that by s.88(1), it is provided that where

By its statement of defence, dated 5 July 1994, Leppington disputed the amount of compensation claimed by the Commonwealth to be due; Leppington claimed an entitlement to compensation in the sum of $52,240,816 together with interest. Leppington claimed the market value of the resumed land to be $1,270,000. In addition, Leppington claimed "special value" in the sum of $46,971,200.

Leppington gave the following particulars of its claim:

"

It appears that the claims in items (c) and (d) above are not now pressed.

THE CASE SOUGHT TO BE MADE BY LEPPINGTON IN THE PRINCIPAL PROCEEDINGS

In his affidavit sworn 5 August 1994, Anthony Mark Perich, Leppington's managing director said that, as a result of the acquisition:

"53. It will be essential to re-establish all buildings, irrigation lines, fences, facilities and roads, in parallel with those presently existing, in a comparable location and with comparable topography. This has to be completed by the change over date in order to avoid shut down of the dairying operations and possible risk to [Leppington's] dairy quota. 54. As a result of the acquisition of 38.14 hectares of land it will be necessary to redesign almost the entire area as a new farm layout. 55. Because of the loss of the land, it will be essential to replace the land lost with other land which will require substantial recontouring, soil improvement, and additional irrigation areas. 56. There will be a substantial transitional change to the dairy operation and its productivity during the first 5 years. This change will essentially come from the construction and change over in the sense of disturbance to the dairy herd in readjusting to the new layout; the loss of the use of paddocks during this period; the creation of temporary areas of pasture and the relocation of plant and equipment."

Mr Perich went on to state:

"57. I have given careful consideration to the appropriate site for the relocated dairy farm area and I consider that the location selected and shown on the plan exhibited to me at the time of swearing this, my Affidavit, and marked "LP4"[later, as amended, described as "LP4A"] is the appropriate one. My view, however, has always been that the location of the dairy farm, as existed pre-acquisition, was the ideal and best location for the dairy area. I consider that the new location, although appropriate, is inferior to the original pre-acquisition location of the dairy area, in particular:

The plan LP4A (being a version of LP4 amended in circumstances to be described later) is annexed to these reasons.

In his affidavit sworn 5 August 1994, Ronald Perich, another director of Leppington, said:

"

In his affidavit, Mr Ronald Perich also commented on expert evidence given on behalf of the Commonwealth by Robert John Doyle in his affidavit sworn 1 July 1994.

In his affidavit, Mr Doyle said that he had been asked to give an opinion on the following questions:

"

Mr Doyle went on to say:

"19. The basis on which I have been asked to advise on the optimum relocation plan is the preservation of the productive capacity of the farm. There are two main ways in which this can be achieved. First one could increase the percentage of hard feed relative to the quantity of pasture feed consumed by the cows, or one could preserve approximately the same ratio as presently obtains by converting non-irrigated pasture on the remaining land to fully irrigated pasture... If one adopts the latter course the same irrigated area which presently exists on the farm land, namely 156 hectares of fully irrigated pasture and 42 hectares of winter irrigated pasture... should be preserved. The choice is a matter of farm management. As the farm is currently operated on the basis of 156 hectares of fully irrigated pasture and 42 hectares of winter irrigated pasture I have made the same provision in the optimum plan. The optimum location for the new infrastructure ('the optimum plan') 20. In my opinion the optimum location for the new infrastructure is as set out in a diagram a true copy of which is exhibited to me at the time of swearing this my affidavit and marked 'CW7/1'. In assessing the location for the new infrastructure I have taken into account matters of good farm management and good animal husbandry as well as cost."

In his affidavit, Mr Ronald Perich said:

"31. I have considered the plans exhibited to the Affidavit of Robert John Doyle sworn 1st July, 1994, and filed on behalf of the applicant herein and I make the following comments:

Leppington relied on expert evidence from David William Tayler who also commented on Mr Doyle's proposal. Mr Tayler said:

"46. The process suggested to convert existing utility areas to pasture is questionable and certainly does not reflect the importance [Leppington] attributes to the roles of their soils and pasture production, nor the investment made by [Leppington] into their high quality fully irrigated pastures. Broken up hard surfaced shale is not the same as the pastures being resumed. The shale in the soil will present major difficulties in the future management of these areas. The shale will affect the soil structure which in turn will lead to changes in moisture infiltration and will not bear up to the compaction caused by animal trampling in the future. The shale has been placed on the soil to form a hard stand. Consequently, this soil has not had the opportunity to build up the organic matter levels found in the fully irrigated pastures that have been resumed. It is suggested that the shale will have to be physically removed from the area, and it is expected that a number of years of organic fertilizer application will be required to bring the soil up to the same soil physical and chemical qualities as that shown on the fully irrigated pastures elsewhere on the base farm. It is, in my opinion, simplistic to suggest a change in soil qualities as easily as presented by Mr Doyle."

Leppington also called expert evidence from Ian McDonald Gibb.

In his affidavit sworn 3 August 1994, Mr Gibb said:

"10. As a result of the acquisition by the Commonwealth the following matters become apparent:

In his affidavit sworn 21 October 1994, Mr Gibb amended Plan LP4 to become Plan LP4A, and consequentially amended corresponding portions of his earlier affidavit to read as follows:

"15. From a dairy operational point of view the direct effect of the acquisition is that 31.85 hectares of prime pasture land is directly lost to the Commonwealth. In addition, because it is necessary to relocate the dairy complex and utility areas onto existing prime pasture land, a further area of prime pasture, namely 14.87 hectares is lost. Furthermore, an area of 3.6 hectares (being part of the site of the easement) and ancillary areas totalling 1.6 hectares are rendered unsuitable for prime pasture. This makes a total loss of prime pasture area of 51.92 hectares. 16. In order to restore post acquisition, the pre-acquisition amount of prime pasture, it is necessary to provide for 51.92 hectares of prime pasture on the residue of the original farm area. 17. The 51.92 hectares of prime pasture must be found on either existing winter irrigated or dry land. There is then, in turn, a loss of either winter irrigated pasture or dry land. More prime pasture is then required to compensate for this loss and therefore maintain productive capacity. This continues by a process of iteration with the end result that in addition to the 51.92 hectares referred to above there is a need for approximately 31 hectares of further prime irrigated pasture in addition to the pre-acquisition prime pasture of 159.1 hectares to make a total area of available prime pasture of 189.4 hectares. This post acquisition prime pasture area of 189.4 hectares will be necessary on the residual land to provide the same productive capacity as existed pre-acquisition. This means that the farming operation is substantially more intensive than it was prior to acquisition."

Mr Doyle, in his affidavit sworn 24 November 1994, joined issue with Messrs Tayler and Gibb's evidence and that of Messrs Perich in a number of respects. With respect to LP4A Mr Doyle said:

"48. To achieve the proposed layout depicted in exhibit LP4A requires vast earthworks. In my opinion no prudent farmer would contemplate embarking on such earthworks when the existing slopes are presently workable."

In response, in his affidavit sworn 7 April 1995, Mr Gibb said of para. 48 of Mr Doyle's affidavit:

"Whether the present slopes are 'workable' as stated by Mr Doyle is not the relevant question. The slopes are not equivalent to those enjoyed by [Leppington] in the area that has been acquired. The earthworks are a function of restoring equivalent slopes. This is not a choice that has been made voluntarily by [Leppington], it is a situation forced upon it by the acquisition."

THE PRELIMINARY ISSUES RAISED FOR DETERMINATION

In giving directions for the final hearing of the proceedings, and in recognising the apparent complexity, at least in technical terms, of the issues for trial at the final hearing, Wilcox J. ordered that several preliminary issues be determined, as follows:

"1. Do the provisions of the [D]eed... require the application of any special principle or approach to the determination of Leppington's claim for compensation and, if so, what? 2. In particular, does that [D]eed, on its proper construction, mean no more than the Commonwealth is precluded from asserting that Leppington is not entitled to `special value compensation' for the resumed land in excess of the market value of that land on the acquisition date? 3. Is the determinative factor of the expression `operations as are (were) manifest at the acquisition date':

It appears that his Honour, and the representatives of the parties, had formed the view, understandably, that if these preliminary issues or at least some of them, could possibly be resolved, the final hearing time might be reduced and legal costs saved.

THE COURSE OF THE PROCEEDINGS AT FIRST INSTANCE

The proceedings at first instance on the preliminary issues extended over six days. In addition to the extensive affidavit evidence already mentioned, further affidavits were read and substantial oral evidence was adduced in chief and in cross-examination. It is neither practicable nor necessary to attempt to summarise this material. Much of it will no doubt be relied upon at the final hearing when it will be necessary to examine it in its detail.

THE REASONING AT FIRST INSTANCE

Wilcox J. classified the six preliminary questions into three groups:

(a) Issues 1-3 (concerning the interpretation of the Deed):

Wilcox J. noted that there was some common ground between the parties regarding the effect of the Deed. It was accepted by the Commonwealth that Leppington wished to continue its farming operations, including operations upon the acquisition land, as long as possible. It was common ground that one effect of the Deed was to preclude the Commonwealth from arguing that Leppington's delay in relocation meant that compensation be assessed only on a market value basis.

The parties also accepted that the Deed eliminated the possibility of an argument, put successfully by the Commonwealth in Banno v Commonwealth (1993) 45 FCR 32, that compensation ought not be assessed on a reinstatement basis, because the cost of the reinstatement would exceed the value of the claimant's business.

Wilcox J. further noted that the parties agreed "in a general way" that the Deed "manifested a mutual intention that the compensation payable to Leppington would take into account the effect of the resumption upon the remaining land; in particular, upon Leppington's dairy operations".

His Honour observed:

"... from Leppington's point of view, the acquisition area was significant, not so much in proportional terms (it constituted only 6.7% of Leppington's land), but because it contained most of the farm buildings and substantial hard-standing areas. If dairying operations were to continue, those buildings and areas would have to be relocated on the remaining land. Given the likely cost of relocation, it is understandable that Leppington wished to be assured that its compensation claim would be assessed on a relocation basis. I think cl.5(b) was designed to achieve this end. But the sub-clause is of limited scope."

The learned primary Judge noted that para. (iii) of cl.5(b):

"...is concerned with the cost of new or varied farming practices only insofar as they arise out of the alteration to the irrigation system necessitated by the re-routing of the Northern Road. However, this limitation seems unimportant. No doubt, para.(i) would include the cost of a variation in farming practices that was incidental to the relocation and reconstruction of one or more of the physical items referred to in that paragraph: 'buildings, plant, equipment and other material... located on the acquisition land'. Primarily, however, sub-clause 5(b) is concerned with the cost of relocating those items."

His Honour went on to say:

"I accept most of Leppington's submissions in relation to the construction of the [D]eed. I agree that cl.5(b) contains a concession by the Commonwealth that the items listed in paras.(i), (ii) and (iii) are compensable. The clause precludes any argument that the cost of these items is not a direct, natural and reasonable consequence of the resumption. But the monetarily significant items are those included in para.(i), and these items are limited by the words `necessary for the Company's operations as are manifest at the acquisition date'; so the critical question is the meaning in this context of the word `operations'. I agree with Leppington's submission that at acquisition date, the relevant operations included the milking of some 1,150 cows, the rearing of some 2,700 calves per annum and the collection, preparation, storage and sale of organic fertiliser. But I do not agree that the `operations' referred to in the [D]eed comprised each management element in the production program. The milking and rearing of cattle necessarily involved their feeding. But the feeding of the cattle was incidental to the commercial operations being conducted on the property; it was not an end in itself. To tie the word `operations' to the particular practices in place at acquisition date would be to disregard the farm's dynamic nature..."

Wilcox J. later added:

"There is no reason why the parties would have intended that the assessment of compensation be fixed to each management element. Leppington was concerned at the loss of a significant part of its land. It obviously wished the Commonwealth to meet the cost of reorganising its activities in such a manner as to ensure that there was no loss of productivity or profit. The company had no interest in perpetuating whatever precise method of operation might happen to exist at acquisition date. The [D]eed itself recognised that relocation would necessarily involve management changes."

Accordingly, in answer to issues 1 to 3, Wilcox J. held that the Deed required a "special principle or approach" to the determination of Leppington's claim for compensation, and that such an approach required:

"... the assessment of compensation [must] take account of the cost of relocating and reconstructing the buildings, plant, equipment and other material located on the resumed land at acquisition date as may be necessary to maintain the commercial operations then being undertaken (the production of milk and calves and the organic fertiliser business) and to maintain those operations at a level of productivity and profitability similar to that achieved at that time." (Emphasis added). However, his Honour rejected the view advanced by Leppington that the assessment of compensation related to "any particular management practice or method of feeding the cattle." Wilcox J. found that any relocation and reconstruction steps required to maintain commercial operations "at a similar level of productivity and profitability" were to be determined by reference to the "criterion of reasonableness". By reference to that criterion, the primary Judge determined that it was not reasonable for compensation to be paid representing the cost of converting dry land to prime pasture for the purpose of maintaining the pasture/dry feed ratio which existed on the day of acquisition, since the cost of purchasing additional dry feed was considerably less than the cost of conversion to prime pasture. His Honour said: "Contrary to the submission of counsel for Leppington, the substitution of additional dry feed for the 305 tonnes of pasture feed lost by the reduction of dry grazing land would not dramatically change the balance between pasture feed and imported dry feed. Using Mr Gibb's figures, the property presently produces about 5,567 tonnes of pasture feed each year (159.1 ha at 18 tonnes per hectare, 41.0 ha at 12 tonnes per hectare and 276.4 ha at 8 tonnes per ha). A loss of 305 tonnes represents a loss of about 5% of that figure. Adopting a ratio of two units of imported dry feed to one of pasture, as reflected in the estimate of 65% imported feed in normal seasons, this equates to about 2-3% of the amount of dry feed bought by the company, less in poor seasons. Such a change does not fundamentally alter the nature of the company's operations."

(b) Issues 4 and 5 (Plan LP4A)

It will be recalled that issue 4 was whether the Commonwealth was obliged to compensate Leppington for the cost of relocation and reconstruction in accordance with Plan LP4A:

With respect to issue 4(a), Wilcox J. noted that there was no direct evidence as to Leppington's intentions in this regard; but his Honour held that such intention was irrelevant, Leppington being relieved by the terms of cl.5(b) of the Deed of the ordinary burden of proving an intention to reinstate or relocate.

With respect to issue 4(b), Wilcox J. held that the question whether the cost of carrying the Plan into effect was, or was not, a "direct, natural and reasonable" consequence of the acquisition, was a relevant consideration. Four features of the Plan called for consideration.

First, on the question of the area of prime irrigated land to be provided, his Honour rejected Leppington's argument that it should be compensated for the expense of converting the additional 30.5 ha to prime irrigated pasture. His Honour found that the compensation should be assessed on the footing that 159.1 ha prime irrigated country remain, but that Leppington receive a capital sum sufficient to provide an annuity to buy additional dry feed equivalent to the pasture produced by 32.4 ha of dry land.

Secondly, his Honour considered the "acceptable paddock slope standards" which affect the efficiency of travelling irrigators used on the land. Wilcox J. noted that the experts had agreed that the irrigators required a slope of no steeper than 1:25 for the first 30 metres of the irrigator run, but thereafter a slope up to 1:10. His Honour accepted this evidence.

Thirdly, the learned primary Judge preferred the evidence of Mr Gibb, the expert called by Leppington, on the kind of action required to convert hardstanding areas to pasture land, and the reverse, rather than the "minimalist" approach of Mr Doyle (for the Commonwealth).

Fourthly, Wilcox J. accepted Leppington's submissions on the need to relocate a "Harvestore" food storage bin. His Honour agreed that the bin was an item which fell within cl.5(b)(i) of the Deed.

In dealing with these four reconstruction issues, Wilcox J. said that he did not regard the assessment of compensation as being "simply an exercise in adding up reconstruction cost items". The relocation expenses were "relevant only as a guide as to what a prudent person in the position of the resumee would have paid for the land than have failed to obtain it"; the overriding statutory imperative of s.55(1) of the Act is that "at the end of the day a judgment must be made" to achieve "just" compensation, having regard to all relevant matters. His Honour concluded:

"It follows that it would be erroneous to assess compensation by adding the market value of the acquired land to the cost of doing everything necessary to bring the remaining land to a level of productivity and profitability equal to that of the whole property before the resumption. The relevance of the latter cost is that it indicates the value to Leppington of the acquired land. To add the general market value, would be to overcompensate Leppington. It would have both 'the money and the box'; both a payment for the lost land and an asset as valuable as before."

(c) Issue 6 (discount)

Wilcox J. accepted, in principle, the Commonwealth's argument that, as Leppington had leased the land back under the Deed, so that the costs of relocation would be delayed, some discount on the compensation payable to Leppington was appropriate. However, his Honour rejected the Commonwealth's submission that that discount should be calculated by reference to a delay of five years, being the minimum period suggested between resumption day and the time when Leppington will have to expend "the relocation moneys". Wilcox J. said that while it is rarely possible to assess compensation on resumption day, compensation must be assessed as at that day. His Honour concluded:

"At acquisition day it was known that Leppington could not be forced to vacate the acquired land for at least 12 months. So it was known that relocation could be postponed for at least that time. But there is no evidence, whether concerning objective facts or the intentions of Commonwealth officers, that enables me to say it was predictable there would be a longer delay. An assessment made as at acquisition day should allow a discount for 12 months, but not more."

However, Wilcox J. added that it would be "absurd" to construe cl.5(c) of the Deed according to Leppington's contention, namely that compensation should be assessed as if the relocation and reconstruction had occurred as at the date of resumption. His Honour held that nothing in the Deed would exclude a twelve month discount factor.

LEPPINGTON'S GROUNDS OF APPEAL

Pursuant to leave to appeal granted by Wilcox J., Leppington now appeals on the following grounds:

That his Honour erred in holding, in answer to issue 3, that "operations" meant commercial operations being the production of milk and calves and the organic fertilizer business; and in holding that, upon the true construction of the Deed, there was a requirement in the assessment of compensation to maintain the commercial operations at a level of productivity and profitability similar to that achieved at the time of acquisition.

That his Honour should have held that, upon the true construction of the Deed, compensation was to be assessed taking into account all of the operations carried out at the date of acquisition for the purpose of the businesses of the production of milk and calves and the organic fertilizer business; and that his Honour should have held that, upon the true construction of the Deed, "operations" meant each and every physical component of the operations as was manifest at the date of acquisition.

That his Honour should have held that, upon the true construction of cl.5(b), Leppington was entitled to maintain the same pasture/dry feed ratio as applied at the acquisition date.

That his Honour erred in holding that the purchase of dry feed in lieu of the provision of additional irrigated pasture land would not fundamentally alter the nature of Leppington's operations at the acquisition date.

That his Honour erred in holding that, on the true construction of the Deed, nothing obliges the Commonwealth to meet the cost of incurring an expense that is not the "direct, natural and reasonable" consequence of its acquisition of the resumed land and of the relocation and reconstruction of the buildings etc., necessary for maintenance of Leppington's commercial operations to a similar level of productivity and profitability.

That his Honour should have held that, upon the true construction of the Deed, the Commonwealth was obliged to meet the cost of the components in cl.5(b)(i), (ii) and (iii) to maintain the same level of on-farm feed production as at the acquisition date.

That his Honour erred in holding that the market value of the acquired land should not be added to the cost of doing everything necessary to bring the remaining land to a level of productivity and profitability equal to that of the whole property before resumption; and that his Honour should have held that, where improved land is resumed, the dispossessed owner is entitled to the market value of the land, plus the value of the improvements, or the cost of relocating those improvements.

That his Honour erred in holding that compensation for the compulsory acquisition of land can be discounted to take into account the opportunity of profitably investing that money before it is expended; and in holding that nothing in the Deed excluded the adoption of a twelve month discount factor.

THE COMMONWEALTH'S CROSS-APPEAL

The Commonwealth cross-appeals from the answer given by Wilcox J. to Q6.

The grounds of the cross-appeal are as follows:

"1. His Honour erred in holding that there was no evidence which would enable a finding to be made that it was predictable at acquisition day that there would be a delay longer than twelve months. 2. His Honour should have found that the costs of relocation would not be incurred by the cross-respondent within a period of five years from the acquisition day and may have been incurred within a significantly longer period having regard to the cross-respondent's desire to remain on the resumed land and the cross-appellant's plans for the construction of the airport which, as at acquisition day, envisaged that the resumed land would only be required for the last stage of the airport development, namely the construction of the 4,000 metre runway."

The Commonwealth contends that Q6 should be answered "by reference to a period longer than five years".

CONCLUSIONS ON THE APPEAL AND THE CROSS-APPEAL

It will be convenient to approach the matter in stages: first, by considering what the position would have been apart from the operation of the Deed; and then to consider what impact, if any, the Deed has upon the position.

(a) The position apart from the operation of the Deed

Compensation for compulsory acquisition does not form part of the common law (see, e.g., Commissioner for Highways v Shipp Bros Pty Limited (1978) 19 SASR 215 per Wells J. at 218). It follows that, ultimately, the present question is to be determined exclusively by reference to the material provisions of the Act, viewed against the background of the constitutional requirement of "just terms" embodied in the provisions of ss.55(1) and 93 of the Act. In this country, the land acquisition statutes have not only retained the English concept of the market value of land, but have gone further: our legislation provides for other factors to be taken into account which an ordinary seller of land would not be able to obtain from an ordinary buyer; so that it is well understood here that the dispossessed owner may be entitled to a claim for "disturbance" or a "solatium", over and above the ordinary sale price of land (see Douglas Brown, Land Acquisition, 4th ed. at 8).

As has been noted, the general rule for present purposes, as declared in s.55

In Harvey v Crawley Development Corporation [1957] 1 QB 485, a householder whose home had been compulsorily purchased claimed as "compensation for disturbance" surveyors' fees, legal costs and travelling expenses incurred first, in an abortive proposed purchase of a new home and, secondly, in the purchase of a new home. By s.2 of the Acquisition of Land (Assessment of Compensation) Act, (1919) (U.K.) it was provided, inter alia, that in assessing compensation no allowance shall be made on account of the acquisition being compulsory (s.2 (rule 1)); that the value of land shall, subject as thereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might be expected to realise (s.2 (rule 2)); and that the provisions of rule (2) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land (s.2 (rule 6)). It was held that the householder was entitled to the costs claimed as compensation for "disturbance". Denning LJ. (with the agreement of Romer LJ. and Sellers LJ.) said (at 493):

"Rule (1)... leaves untouched the rule that everything which is a direct consequence of the compulsory acquisition can be recovered under the head of 'compensation for disturbance'. Instances were given in this very case. Mrs Harvey gets compensation for having to move out her furniture and put it into the new house: she gets compensation for having to alter the curtains and carpets and remake them to fit the new windows and floors. Take business premises where fixtures and fittings have to be moved; or where there is loss of business through being turned out; or loss of goodwill. All that loss and expense is the proper subject of 'compensation for disturbance' in addition to the open market value of the land." (Emphasis added). Denning LJ. went on to say (at 493-4): "I would therefore say that this money which has been expended, this £200 odd, which is the direct consequence of Mrs Harvey being turned out of her house, is properly to be regarded as compensation for disturbance. But I would not like this to be taken too far. Cases were put in the course of the argument. Supposing a man did not occupy a house himself but simply owned it as an investment. His compensation would be the value of the house. If he chose to put the money into stocks and shares, he could not claim the brokerage as compensation. That would be much too remote. It would not be the consequence of the compulsory acquisition but the result of his own choice in putting the money into stocks and shares instead of putting it on deposit at the bank. If he chose to buy another house as an investment, he would not get the solicitors' costs on the purchase. Those costs would be the result of his own choice of investment and not the result of the compulsory acquisition. Another case was put in the course of the argument. If an elderly man and wife owned and occupied a house which was compulsorily acquired and they thought to themselves: 'We do 'not think we need to get another house; we will go into a guest-'house,' they would not get the costs of moving into a new house when they had not incurred them. Nor would they be able to claim the cost of living in a boarding-house for the rest of their days. They would only get the market value of their former home. These illustrations show that the owner only recovers costs of the present kind in a case where a house is occupied by an owner living there who is forced out and reasonably finds a house elsewhere in which to live. If he pays a higher price for the new house, he would not get compensation on that account, because he would be presumed to have got value for his money: but he does get the costs which he has to pay a surveyor and lawyer to get it. It seems to me that the costs are then the subject of compensation under the heading of 'disturbance' as specified in rule (6) of section 2."

By s.2 (rule 5) it was provided that where land is, and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the official arbitrator is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement.

In Harvey, Denning LJ. said (at 492-3):

"It seems to me that, as these costs of £241 10s 1d. were reasonably incurred by Mrs Harvey in getting another house, they can fairly be regarded as a direct consequence of the compulsory acquisition. Prima facie, therefore, they fall within the heading of compensation for disturbance. But it is said that they are not properly compensation for disturbance, but only compensation for reinstatement: and that the cost of reinstatement of a person in other premises can never be the subject of compensation; and rule

Sellers LJ. said (at 495):

"[It was argued that the cost in question] was not recoverable because it was in its nature a payment in respect of reinstatement or replacement of herself and her furniture in other premises. In support of the contention that that was not recoverable reliance was placed on section 2, rule (5), of the Acquisition of Land (Assessment of Compensation) Act, 1919; but, for the reasons given by my Lords in dealing with the interpretation of that rule, I agree that that does not preclude a claim for disturbance which may include an element of reinstatement. Rule (5) is only a provision directed to the assessment of the appropriate compensation where there is no general demand or market for the land which has to be assessed." (Emphasis added). His Lordship went on to say (at 496): "[I]t becomes in any given case a question of fact for the tribunal whether any particular item of expenditure does come within their terms. The evidence in this case would seem to show that the tribunal were entirely justified in saying that this particular expenditure in relation to the acquirement of new premises - it may be that the abortive expenditure was a misfortune, but no distinction is made between the two - is expenditure which was directly arising from the circumstance that this lady had to find another house in which to live by reason of being compulsorily dispossessed of her home." (Emphasis added). In Keogh v Housing Commission of Victoria (No.1) [1969] VR 809, Barber J. said (at 812): "It has always been the practice of tribunals charged with the duty of assessing compensation for compulsory acquisition to assess not only the market value of the land, but to take into account such other factors as severance, disturbance and injurious affection in favour of the claimant, and enhancement against the claimant in favour of the acquiring authority. In particular, disturbance has been treated as part of the total compensation payable..."

His Honour went on to say (at 812):

"Perhaps the best illustration of the proper view of disturbance as an element in compensation for acquisition is to be found in a passage from Horn v Sunderland Corporation, [1941] 2 KB 26, at p.33; [1941] All ER 480, a passage which is cited with approval in Milledge's case and Crisp and Gunn's case. That passage reads: 'The broad principle was that the price should be fixed on the basis of the value to the owner and this involved taking into consideration a number of matters which I need not mention as they are well known. But one element which the jury was entitled to take into consideration was the damage suffered by the owner from disturbance, for example, of his business. It is important in considering the present case to remember that this was not a separate head of compensation such as compensation for injurious affection, but merely one of the elements going to build up the purchase price to which the owner was fairly entitled in all the circumstances of the case.'"

In Keogh v Housing Commission of Victoria (No.2) (1969) 18 LGRA 295, Barber J. (at 299) approved observations of Davidson J. in Grace Bros Pty Ltd v Minister of State for the Army (1944) 45 SR (NSW) 206 (at 211) as follows:

"If it became essential to purchase instead of leasing other premises [there may be taken into account, inter alia] the expense of placing the new premises in a condition of equal value to those which were taken: A & B Taxis Ltd v Secretary of State for Air. But that authority makes it clear that each case depends upon its own circumstances and whilst the cost of purchasing new premises would have to be considered as an element of damage it should not necessarily be allowed in full. It would have to be determined whether the premises were larger or more commodious than those that were requisitioned." (Emphasis added). In Shipp Bros., above, Wells J. said (at 218-9): "[The owner] has not participated in a voluntary sale. Deprivation and consequential loss is forced on him by executive act. Whatever Spencer's case may say about fixing compensation for the land simpliciter, all reasonable and natural consequences of the taking would seem logically to warrant consideration if they or some of them represent financial loss to the owner - in particular, where he is faced with the practical necessity of expending moneys that he would not have been constrained to expend if the acquisition had not taken place. Judgments delivered in many cases decided, both in Australia and in England, under various forms of legislation conferring and controlling the power to take land compulsorily, accord generally with the approach foreshadowed above, and unite in recognizing that such consequences may embrace the owner's decision to incur the costs of re-locating a business previously conducted on the land taken. For to make such a decision and to seek to act on it, may, in certain circumstances, be reasonable, and be the direct consequence of the expropriation. The costs of re-location may then fairly be regarded as having a direct bearing on the measure of the owner's loss. Put another way, those costs may be said to represent what the owner would be prepared to pay rather than be forced to transplant his business in order to save it... But, of course, not every case rationally requires an assessment of loss on such a basis. Where the natural consequence of the expropriation is not, or could not have been, a firm and bona fide intention to relocate, leading to the formulation of reasonable and feasible proposals for that purpose, it would seem that the acquisition cannot have naturally caused a decision to relocate or have led to the practical necessity of laying out money for that purpose; loss assessed according to costs of re-location can not, then, be characterized as loss suffered 'by reason of the acquisition'." (Emphasis added). Wells J. went on to say (at 221): "8. Some of, but by no means all, acceptable kinds of relocations are exemplified or referred to in reported cases. For example, if the costs of available relocation plainly and substantially would exceed the value of the business as a going concern (after making due allowance for retained moveable assets) it would not be the reasonable and natural consequence of expropriation to incur such costs, and hence compensation could not justifiably be assessed by reference to them... Again, the law could not allow the claimant to be compensated for the cost of land, buildings, and immoveable plant, that would be plainly superior in value and construction, when something more modest, and reasonably comparable to what was taken, could be found or built... Even if the claimant has no alternative to obtaining new fixed assets that are more expensive and commodious than those he has lost, the Court may well make some allowance against the claimant in recognition of that enhancement..." (Emphasis added). Wells J. added (at 221-2): "9. The profitability - the net maintainable profits of the business affected by the acquisition must always be weighed but need not be decisive. Causation remains the test. For the purposes of cases such as the one before me, the court is not assessing the standing of the subject business in the market as a possible investment; it is determining whether the claimant is acting reasonably in seeking to transplant his business." (Emphasis added). In Director of Buildings & Lands v Shun Fung Ironworks Limited [1995] 2 AC 111, a Hong Kong appeal, Lord Nicholls, speaking for the Privy Council, said (at 124-5): "The legislative code in England relating to compensation for compulsory acquisition contains no express provision corresponding to section 19(2)(d). Despite this difference in all respects relevant in the present case the principles applicable under the two codes are the same. The Lands Clauses Consolidation Act 1845 (8 & 9 Vict. c. 18) provided that regard should be had to the value of the land taken and to the damage sustained by severance: section 63. The Act contained no express provision for disturbance losses, either regarding businesses or generally. However, by judicial interpretation the value of the land was taken to mean the value of the land to the claimant and, hence, to embrace such personal losses: see the classic exposition of Scott L.J. in Horn v Sunderland Corporation [1941] 2 K.B. 26, 43-49). The Acquisition of Land (Assessment of Compensation) Act 1919 set out rules for the assessment of compensation. In section 2, rule

His Lordship, after noting that the purpose of these provisions is to provide "fair" compensation, which is "sometimes described as the principle of equivalence", said (at 125):

"Land may, of course, have a special value to a claimant over and above the price it would fetch if sold in the open market. Fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority. As already noted, this is well established. If he is using the land to carry on a business, the value of the land to him will include the value of his being able to conduct his business there without disturbance. Compensation should cover this disturbance loss as well as the market value of the land itself. The authority which takes the land on resumption or compulsory acquisition does not acquire the business, but the resumption or acquisition prevents the claimant from continuing his business on the land. So the claimant loses the land and, with it, the special value it had for him as the site of his business. The expenses and any losses he incurs in moving his business to a new site will ordinarily be the measure of the special loss he sustains by being deprived of the land and disturbed in his enjoyment of it. If, exceptionally, the business cannot be moved elsewhere, so it simply has to close down, prima facie his loss will be measured by the value of the business as a going concern. In practice it is customary and convenient to assess the value of the land and the disturbance loss separately, but strictly in law these are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owners..." (Emphasis added). Lord Nicholls then, in essence, explained (at 126) that, to be compensable, a loss must be

It should be noticed that the concepts of "disturbance", "severance" and "reinstatement" sometimes overlap. In Kozaris v Roads Corporation [1991] 1 VR 237, Gobbo J. said (at 240-1):

"The principle of reinstatement has not been definitively analysed in judicial decisions for there have been differences in view as to what precisely it covers. It has been described as applicable where the property was of such a character that there was no market or general demand for the property. The usual instances were churches, schools, hospitals, houses of exceptional character and business that can only be carried on under special conditions... But there are cases where the cost of partial or complete reinstatement of premises, by way of replacing old premises with new, have sometimes been considered as disturbance loss and sometimes as severance damage. Thus in the Adelaide Fruit & Produce Exchange Co Ltd v City of Adelaide..., where the front portion of the building was taken, the Court held that the costs of constructing a new wall and a new toilet block should be allowed as severance damage and not as disturbance or injurious affection. No reference was made to reinstatement even though what occurred was, on one view, a form of partial reinstatement. There have also been cases where relocation and disturbance loss is awarded and the claim is described in terms of reinstatement. This was the case in Commissioner of Highways v George Eblen Pty Ltd. The court spoke of reasonable reinstatement founded on the general principle in the legislation rather than the specific provision in the Act relating to reinstatement. The concept of value to the owner and its role in accommodating cases of disturbance loss or cases analogous to reinstatement - in the wider and not strict use of that term - are discussed in a number of cases. For a comprehensive review of some of these cases, see Housing Commission of New South Wales v Falconer... see too, Keogh v Housing Commission of Victoria) (No 1)..."

In Shun Fung, above, Lord Nicholls observed (at 126) that "the application of the general principle of fair and adequate compensation bristles with problems". If further illustration of this be needed, reference may be made to two recent decisions.

In Banno v Commonwealth of Australia (1993) 45 FCR 32 Wilcox J. dealt with a claim for compensation of land of an area of about 5 ha acquired for the Badgery's Creek Airport on which the owners had carried on a poultry farm business. The Commonwealth had conceded the owner's entitlement to compensation of $872,299 comprising $812,000 as the value of the land and improvements, $36,401 for stamp duty and legal costs on the purchase of a replacement property for $812,000, $2,038 for accountancy and valuation fees, $500 for legal fees for initial advice and $21,360 for "solatium". The parties were in dispute about several other items, including a claim by the owners for further compensation for reinstatement of their business on the other land.

In Banno, Wilcox J. said (at 40):

"[I]t is not necessary to determine whether s 55(2)

(c)is available to the present applicants. Section 55

(1)does not limit recoverable compensation to that arising out of direct effects. It is an open-textured provision requiring the Court to consider what amount of money will, under all the circumstances, "justly compensate" the dispossessed landowner. If the circumstances are such that a claimant can be justly compensated only by reference to the cost of reinstating a business in another location, this course must be taken. The justice of compensating a disturbed business proprietor on the basis of reinstatement cost has been recognised in many cases."

After considering the English and Australian authorities, including Keogh, Shipp Bros. and Kozaris, Wilcox J. said (at 44):

"Finally, I refer to Brown Bros (Marine) Holdings Pty Ltd v New South Wales Land and Housing Corporation (1991) 72 LGRA 50, a decision of Hemmings J of the New South Wales Land and Environment Court. That case concerned the acquisition of waterfront industrial land at Balmain, Sydney. The resumee relocated its business at Tomago near Newcastle and sought compensation on a reinstatement basis. The respondent objected that the claimed reinstatement cost exceeded the value of the business but Hemmings J held that this was not determinative of the issue. It was only one of the matters that should be considered; where, because of costs, it is not reasonable that the business be relocated and reinstated, compensation should be paid on the basis of the extinguishment or destruction of the business."

In considering whether reinstatement applied in that case. Wilcox J. said (at 45):

"As it seems to me, the only basis upon which it can be argued that it is reasonable for the applicants to reinstate their business at the Commonwealth's expense is that referred to by Wells J in par 9 of his judgment in Shipp, quoted above: the expropriation has cost them their jobs and lifestyles. It seems to me erroneous to address reasonableness only in financial terms. Many, if not most, Australian farms yield a profit (if any) that could be bettered in other forms of investment. Yet people buy farms; presumably, because they are attracted to the rural lifestyle and because the farm furnishes them employment. The Court should take account of this fact in determining, under s 55(1) of the Lands Acquisition Act, what amount of compensation is necessary to compensate farmers for the loss of their land. As a result of the subject expropriation, the present applicants have each lost a source of remuneration worth about $25,000 per year, whether that sum be treated as wages or share of profit. especially at a time of high unemployment, this is a significant loss. The applicants may find it extremely difficult to obtain alternative employment. They have also lost the home in which they resided with their families. Contrary to the submission of counsel for the Commonwealth, I am not prepared to say that the minimal, or non-existent, profitability of the business necessarily rules out the reinstatement approach."

However, his Honour went on to hold that the reinstatement approach was inappropriate because there was no evidence that it was the only way the applicants could reinstate their pre-acquisition income.

Wilcox J. said (at 45-6):

"The applicants have lost a six-bedroom house capable of accommodating two families. There is no evidence about house values but the Court is entitled to take judicial notice of their general level. It seems to me reasonable to assume that it would cost $250,000-$300,000 to purchase a six-bedroom home within reasonable distance of the educational and social facilities the applicants' families require. That would leave a balance of $550,000-$600,000 compensation money. Whatever the position in earlier times, it is difficult to see that the applicants today could securely invest this sum in a passive investment that would yield a reliable income of $50,000 per year. On the other hand, it must be said that they could go close to achieving that result. It ought to be possible for the applicants securely to invest $550,000-$600,000 so as to obtain a reliable return of 6-7 per cent; that is, $33,000-$42,000 per annum. Consideration of that fact calls into question the reasonableness of the applicants spending about $1.24 million to obtain a level of income only commensurate with what they earned at Badgery's Creek. If the applicants had $1.24 million available and wished to enjoy a rural lifestyle, they could surely buy a small rural allotment with a large house - or buy a vacant lot and build a large house - for, say, $500,000. This would leave them $900,000. If they invested that sum at only 6 per cent per annum they would receive $54,000 per annum, without having to work at all."

Banno was distinguished in McBaron v Roads & Traffic Authority of New South Wales (1995) 87 LGERA 238, where a resumption was effected under State legislation without the benefit of the Commonwealth Constitution's "just terms" requirement. The claimants for compensation owned a large, high producing dairy farm, comprising (with adjacent dry country) 398.7 ha. The Authority resumed about 7.7 ha for road by-pass purposes. The effect of the acquisition was to sever about 100 ha of highly improved pasture land, leaving 40.5 ha between the deviation and the existing Highway, and 52 ha in the western section. The milking bails with stock holding yards were located on the eastern section, adjacent to the Highway. It was not disputed that the acquisition would have a serious adverse impact on the residue lands and management of the business: improvements would be lost, including a cottage, cattle yards, a shed and fencing; moreover access by cattle across the deviation by underpasses would be limited, so that it was claimed by the claimants, but disputed by the Authority, that it would be necessary to relocate the dairy building to the western section. It was further contended by the claimants, but disputed by the Authority, that, for the same reason, the severed land on the east would no longer be suitable for intensive grazing by the dairy herd, and that this area must be given over to the dry cows. The case thus had, in principle at least, some features in common with the present matter.

Talbot J. said (at 244-5):

"Mr Webster argued on behalf of the applicants that the only concern under the Act is to provide just compensation not necessarily restricted to placing a person in the same position before as after the acquisition even if that assumes that the owner will received 'new' for 'old'. Referring to what Wilcox J had to say in Banno... regarding s55