The findings of the State Administrative Tribunal (SAT) in the case of Avila last year provide guidance on the limits on compensation for land that is compulsorily acquired by the State for public works under the Land Administration Act 1997 (WA).
A portion of Mr Avila’s land was taken by Main Roads WA (MRWA) in order to facilitate the construction of the Byford Rail Extension. While MRWA attempted to argue that the public work was limited to an isolated road upgrade project, the SAT rejected this assertion on the basis that the relevant Taking Order specified clearly that the purpose of the taking was to facilitate greater rail use and thus a larger project.
The case also affirmed that any claim made by an applicant for maintenance damage must be verified independently through expert evidence.
The case considered a number of interesting topics and articulated some key principles on the issues below.
‘Public Work’
With the SAT’s finding that the Public Work was not limited to merely the construction of the road-over-rail bridge, but also its usage, the SAT considered it could not be the case that any compensation payable should be limited to the impact of the bridge works. The question of what is considered to be a proposed Public Work is dependent on the facts of any given case, and is to be determined objectively.
Loss of Trees
The SAT found that the 45 trees located on Mr Avila’s land were not improvements (to which the loss of would be compensable), but rather fixtures that were part of the inherent value of the land. The potential loss of a further 13 trees on Mr Avila’s remaining land was not compensable for the reason that the loss had not yet been, and may never be, actually incurred.
Liberal Estimate
The SAT adopted the practice of determining the value of the property after the impact of the Public Work by applying a ‘liberal estimate’ in favour of Mr Avila. This principle, stated by the SAT to apply to land compensation ‘beyond question’, operates such that where there is doubt about the amount properly payable in compensation, that doubt should be resolved in favour of the higher estimate (subject to the SAT’s final discretion as to the amount payable).
Professional fees
Although the SAT was unable to order that Mr Avila be compensated for the professional legal, valuation and engineering services due to the current state of the law in WA, it did stress that the approach to this area should perhaps be reconsidered, particularly in light of the contrasting position in NSW, VIC, SA and QLD.
