JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	CERINI -v- THE MINISTER FOR TRANSPORT [2001] WASC 309 

CORAM	:	PARKER J 

HEARD	:	14 MAY - 6 JUNE, 11-27 JUNE, 2 & 3 JULY 2001 

DELIVERED	:	14 NOVEMBER 2001 

FILE NO/S	:	CIV 2472 of 2000 

BETWEEN	:	GRAHAM VICTOR CERINI
Plaintiff
 
AND
 
THE MINISTER FOR TRANSPORT
Defendant 

Catchwords:
Real property - Resumption or compulsory taking of land - Compensation - Assessment 
Legislation:
Land Administration Act 1997 (WA), s 241 
Result:
Compensation awarded 
Category:    A 

Representation:
Counsel:
Plaintiff	:	Mr D W McLeod & Ms L E Rowley
Defendant	:	Ms C F Jenkins & Mr F Sunderland 
Solicitors:
Plaintiff	:	McLeod & Co
Defendant	:	State Crown Solicitor 

Case(s) referred to in judgment(s):

Brewarrana Pty Ltd v Commissioner of Highways (No 1) [1973] LGRA 170
Cook and Edwards v City of Stirling (1991) 4 WAR 469
Crompton v Commissioner of Highways (1973) 32 LGRA 8
D'Amico v Shire of Swan-Guildford [1969] WAR 183
Director of Building Lands v Shun Fung Ironworks Ltd [1995] 2 WLR 404
Edwards v Minister for Transport [1964] 2 QB 134
Konowalow and Felber v Minister for Works [1961] WAR 40
Marshall v Blackpool Corporation [1935] AC 16
Marshall v Director-General, Department of Transport [2001] HCA 37
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565
R v Compensation Court of Western Australia; ex parte State Planning Commission & Anor; Re Della-Vedova (1990) 2 WAR 242
Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302
Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373
Spencer v The Commonwealth (1907) 5 CLR 418
Turner v Minister of Public Instruction (1956) 95 CLR 245

Case(s) also cited:

Britton v Minister for Education (1985) 29 The Caluer 224
Bronzel v State Planning Authority (1979) 44 LGRA 34
Brown Brothers (Marine) Holdings Pty Ltd & Anor v New South Wales Land and Housing Corporation (1991) 72 LGRA 50
Clark v Ryan (1960) 103 CLR 486
Commissioner for Government Transport v Adamcik ((1961) 106 CLR 292
Commissioner of Succession Duties (SA) v Executor Trustee and Agency Company of SA Ltd (1947) 74 CLR 358
Commonwealth v Arklay (1952) 87 CLR 159
Commonwealth v Milledge (1953) 90 CLR 157
Commonwealth v Morison (1972) 127 CLR 32
Cook & Edwards v City of Stirling (1991) 4 WAR 469
Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538
De Ieso v Commissioner of Highways (1981) 27 SASR 248
Dixon v City of Glenorchy (1968) 15 LGRA 407
Eagle v Charing Cross Railway Company (1867) 30 LJCP 297
Eggar v Commissioner of Main Roads [1979] Qd R 501
Fenton Nominees Ltd v Valuer-General (SA) (1981) 27 SASR 258
Gregory & Anor v Commissioner of Taxation of the Commonwealth of Australia (1971) 123 CLR 547
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143
Horn v Sunderland Corporation (1941) 1 All ER 480
Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196
Housing Commission of NSW v Falconer (1981) 50 LGRA 355
Kenthurst Investments Pty Ltd v Wyong Shire Council (1964) 10 LGRA 307
King v Minister for Planning and Housing (1991) 76 LGRA 288
Lake Erie and Northern Railway Company v Brantford Golf and Country Club (1917) 32 DLR 219
Latimer v Northcoast National Agricultural & Industrial Society (1938) 14 LGR (NSW) 30
Lucas v Chesterfield Gas and Water Board [1908] 1 KB 571
Lyon v Fishmongers' Company & Conservators of the River Thames (1876) 1 App Cas 662
March v City of Frankston (No 1) [1969] VR 350
March v City of Frankston (No 2) (1968) 19 LGRA 285
Mario Piraino Pty Ltd v Roads Corporation (1990) 76 LGRA 263
Maritime Services Board of New South Wales v Leichhardt Municipal Council (1972) 26 LGRA 42
Melwoods Units Pty Ltd v Commissioner of Main Roads [1979] 1 AC 426
Minister of Environment v Petroccia (1982) 30 SASR 333
Minister of State for Home Affairs v Rostron & Ors (1914) 18 CLR 634
Minister of Transport v Edwards (1964) 1 All ER 483
Moad v Orange City Council (1957) 2 LGRA 171
National Justice Compania Naviera SA v Prudential Assurance Co Ltd ("The Ikarian Reefer") [1993] 2 Lloyd's Rep 68
Pastoral Finance Associated Ltd v The Minister [1914] AC 1083
Prasad v Wolverhampton Borough Council [1983] Ch 333
R v Dowding [2000] VSC 222
R v Murphy (1990) 64 ALJR 593
Re Schooley v Lake Erie and Northern Railway Company (1915) 25 DLR 537
Robinson & Co Ltd v Collector of Land Revenue Singapore (1981) 1 WLR 1614
Sampi v State of Western Australia [2000] FCA 1862
Schiller v Kyeanba Shire Council (1933) 3 The Valuer 28
Sharp & Anor v Western Australian Planning Commission [1999] WASC 223
Sheahan v Hertz Australia Pty Ltd (1994) 14 ACSR 209
Sheffield Development Corporation v Glossop Sectional Buildings Ltd [1994] 1 WLR 1676
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 16 NSWLR 104
Sisters of Charity of Rockingham v The King [1922] 2 AC 315
Universal Land and Investment Ltd v Commonwealth (1988) 80 ACTR 15
Vernon v Bosley (No 1) [1997] 1 All ER 577
Wollams v The Minister (1957) 75 WN (NSW) 103
Wong v Minister of Water Resources (1985) 55 LGRA 431
X (minor) v Bedfordshire County Council (1995) 2 AC 633
Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1990) 70 LGRA 187 

1	PARKER J:  The plaintiff is a property developer and builder.  At all relevant times he was the registered proprietor of an estate in fee simple in land in Newcastle Street, West Perth being portion of Perth Suburban Lot 175 and being part of Lot 116 on Plan 2360 and being the whole of the land comprised in Certificate of Title Volume 1193 Folio 707 ("Lot 116").  Until 1 May 1998 the land had an area of 658 square metres.  It was substantially rectangular with a frontage to Newcastle Street of 17.96 metres.  It was on the north side of Newcastle Street and before relevant events one other lot of land on the western boundary of Lot 116 separated Lot 116 from the corner of Loftus Street.  In this locality Newcastle Street is aligned approximately east west and Loftus Street approximately north south.  As will appear, since 1 May 1998 Lot 116 has had an area of 640 square metres as 18 square metres was resumed on that date.
2		In about 1936 the plaintiff's parents had built a modest brick and tile duplex dwelling on Lot 116.  It seems it was never used by them for their own dwelling but was let as an investment property.  The property was inherited by the plaintiff in 1979 and he has held it since then.  The land stands well above the level of the footpath of Newcastle Street and there were retaining walls to the frontage and part of the western boundary.  There were steps up from Newcastle Street to a pathway leading to the entrances of the duplex residences but there was no vehicular access to Lot 116.  The condition of the duplex dwelling during the period relevant to this action is the subject of much dispute but it is fair to say that over many years it has been allowed to run down.  On 1 May 1998, which is the critical date for the purposes of this action, it was vacant and derelict and the subject of a notice under s 135, s 137 and s 139 of the Health Act 1911 declaring it unfit for human habitation and requiring significant works before it could be occupied.  More of that later.
3		The defendant is the relevant Minister for the purposes of this action, and was also a delegate of the Minister for Lands for the purpose of the Land Administration Act 1997 (the "LA Act").  By notice published in the Government Gazette on 12 December 1997 the defendant gave notice of intention to take or resume 18 square metres of Lot 116 (the "resumed land") pursuant to s 17(2) of the Land Acquisition and Public Works Act 1902 for the purpose of "road construction duplicating of Loftus Street (Drawing No D9723-204 and D9723-205)".
4		By notice published in the Government Gazette of 25 April 1998 the defendant gave notice of the taking of the 18 square metres of Lot 116 for the public purpose of "Loftus Street duplication - important regional road" ("the public work").  A Taking Order was lodged at the Department of Land Administration on 1 May 1998 which is thereby the date of the taking for the purposes of compensation for the compulsory taking.
5		The resumed land forms a truncation at the southwest corner of Lot 116.  It is not a regular diagonal truncation.  As part of the same public work the lot to the west of Lot 116, which had formerly been on the corner of Newcastle and Loftus Streets, was also resumed.  Hence, Lot 116 has become a corner lot and the truncation for which the resumed land was taken now facilitates the layout of the intersection and associated footpaths.  The truncation does not affect the existing duplex dwelling.
The plaintiff's claim
6		On 1 or 2 October 1998 the plaintiff submitted a claim for compensation for the compulsory taking of the resumed land.  This was particularised as:
•	Unaffected market value of land taken, injurious affection and severance, $362,000
•	Stamp duty of conveyancing costs for acquisition of replacement property, $13,000
•	Solatium, $37,500
A total of $412,500 plus interest, costs, etc.
7		In March 2000 the plaintiff's claim for compensation was amended to be:
•	Value of resumed land and injurious affection to the retained land, $492,750
•	Residual value of improvements, $11,000
•	Consequential losses to 1 February 2000, $71,500
•	Solatium, $57,525
A total of $632,775 plus interest and costs, etc.
8		By this action the plaintiff's claim against the defendant, as now amended, for compensation in accordance with s 241 of the LA Act is as follows:
•	Value of resumed land, $13,500
•	Severance and injurious affection, $455,000
•	Injurious affection and disturbance to duplex building, $5,650
•	Injurious affection and disturbance to southern retaining wall, $9,350
•	Residual value of improvements on retained land, $11,000
•	Stamp duty, conveyancing and LTO fees on a replacement property, $17,270
•	Loss of net rent from 3 October 1996 to 30 April 1998, $12,150
•	Professional fees and expenses incurred prior to issue of proceedings (claimed as an item of disturbance under s 241(6) of the LA Act), $68,475.25
•	Rates, land tax, insurance and maintenance from 1 May 1998, $8,730.66
•	Cost of refinancing, $2,314
•	Interest paid on loan secured on the land, $16,598
•	Bank charges, $3,096
•	Solatium at 10 per cent, $62,313
An ascertained total claim of $685,446.91 plus any sums the Court considers just under s 241(6) or s 241(9) of the LA Act, interest on the aggregate of the foregoing, costs and disbursements of this litigation, and any goods and services tax payable by the defendant on the foregoing.
9		By the defence there is no dispute that the plaintiff is entitled to compensation in respect of the compulsory taking of the 18 square metres of land resumed but the quantum of the claim in that respect is not admitted.  It is not admitted that the plaintiff has suffered damage by way of injurious affection or severance in respect of the retained balance of Lot 116, it is denied that the plaintiff has suffered loss or damage in consequence of the public work, and the entitlement of the plaintiff in law or fact to most of the other particularised items of the claim is not admitted.  The defendant pleads that on 28 July 1999 an advance payment, the subject of an earlier offer, of compensation of $45,200 plus interest at 6 per cent to that date was made to the plaintiff and that this offer and payment adequately compensates the plaintiff in respect of all compensation recoverable under the LA Act.  It is denied that the plaintiff is entitled to any additional compensation or relief.  
10		A critical factual issue, and one which occupied much time during the extended hearing, is the plaintiff's claim that by virtue of the taking of the 18 square metres of resumed land, the 640 square metres of Lot 116 remaining after the resumption has been rendered virtually valueless as, by virtue of its new location on the corner of Newcastle and Loftus Streets, its reduced frontage to Newcastle Street and the design and topography of the public work on the Loftus Street frontage, it is no longer possible to secure approval for vehicular access to Lot 116.  This issue is at the heart of the main head of claim of the plaintiff which is for damages for injurious affection and severance.
11		In the course of closing submissions the plaintiff sought leave to amend its statement of claim, as had been foreshadowed earlier.  For the most part the amendments were not controversial and were made by consent.  There was objection, though, to the proposed amendments to par 26.5 of the statement of claim by which the plaintiff sought to extend its claim for damage to the existing retaining wall on the Newcastle Street frontage as a consequence of the public work to include also damage to the duplex building.  I reserved on the question whether this extension of the scope of the pleading should be allowed.  The existing par 26.2(c) had claimed for damage to the duplex building but only by virtue of the construction by the Main Roads Department of Western Australia ("MRWA") of a replacement retaining wall in the area of the truncation.  The proposed amendment extended this to damage to the duplex dwelling caused by the whole of the public work.  The defendant objected when this amendment was foreshadowed early in the trial, submitting that it had not prepared to defend such a sweeping claim and that there were inadequate particulars to enable it to deal adequately with the claim on the expanded basis proposed.  There was some force in this but despite it I have decided to allow the amendment.  I do so, in particular, having regard to the way in which the plaintiff sought to support its case on this expanded basis and the manner in which the defendant was able to reorder its cross-examination and defence evidence to deal with it.  In the result it appears to me that the defendant has not been seriously disadvantaged and that the desirability of finally resolving all matters in dispute between the parties justifies the defendant bearing the burden of that limited disadvantage.
Statutory provisions and compensation principles
12		Section 241 of the LA Act makes provision as to the manner in which the amount of compensation is to be ascertained.  Relevantly it provides as follows:
"241(1)	In determining the amount of compensation (if any) to be offered, paid, or awarded for an interest in land, other than native title rights and interests, taken under part 9, regard is to be had solely to the matters referred to in this section.
(a)	…
(2)	Regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on -
(a)	…
(b)	…
(c)	in the case of an interest to which paragraphs (a) and (b) do not apply - the date of the taking,
	and discounting any increase or decrease in value attributable to the proposed public work.
(3)	…
(4)	…
(5)	…
(6)	Regard is to be had to the loss or damage, if any, sustained by the claimant by reason of -
(a)	removal expenses;
(b)	disruption and reinstatement of a business;
(c)	the halting of building works in progress at the date when the interest is taken and the consequential termination of building contract;
(d)	architect's fees or quantity surveyor's fees actually incurred by the claimant in respect of proposed buildings or improvements which cannot be commenced or continued in consequence of the taking of the interests; or
(e)	any other facts which the acquiring authority or the court considers it just to take into account in the circumstances of the case.
(7)	If the fee simple in land is taken from a person who is also the holder in fee simple of adjoining land, regard is to be had to the amount of any damage suffered by the claimant -
(a)	due to the severing of the land taken from that adjoining land; or
(b)	due to a reduction of the value of that adjoining land,
	however, if the value of any land held in fee simple by the person is increased by the carrying out of, or the proposal to carry out, the public work for which the land was taken, the increase is to be set off against the amount of compensation that would otherwise be payable under paragraph (b).
(8)	If the interest in land is taken without agreement, an amount considered by the court or, for the purposes of making an offer, by the acquiring authority, appropriate to compensate for the taking without agreement may be added to the award or offer.
(9)	The additional amount under subsection (8) must not be more than 10 per cent of the amount otherwise awarded or offered, unless the court, or, for the purposes of making an offer, the acquiring authority, is satisfied that exceptional circumstances justify a higher amount."
There follow further specific provisions dealing with rents and profits, the payment of interest, advance payments of compensation, the apportionment of rates and taxes and other matters.  There is no need to set these at this point of the reasons.  Reference will be made to some of them later.
13		To a substantial degree the provisions of s 241 LA Act recognise and incorporate long established principles with respect to compensation for the compulsory taking of land.  The assessment of "the value" of the land resumed for the purposes of s 241(2) involves the application of principles enunciated in Spencer v The Commonwealth (1907) 5 CLR 418 where at 432 Griffiths CJ said:
"In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural.  The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.
At 436-7 Barton J said:
"...a claimant is entitled to have for his land what it is worth to a man of ordinary prudence and foresight, not holding his land for  merely speculative purposes, nor, on the other hand, anxious to sell for any compelling or private reason, but willing to sell as a businessman would be to another such person, both of them alike uninfluenced by any consideration of sentiment or need."
At 440-441 Isaacs J drew attention to the date fixed by the statute as the date for valuation and said:
"Its value is fixed by Statute as on that day.  Prosperity unexpected, or depression which no man would ever have anticipated, if happening after the date named, must be alike disregarded.  The facts existing on 1 January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted.  The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he has sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him.  To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration.  We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall or for what reason soever in the amount which one would otherwise be willing to fix as the value of the property."
Isaacs J added at 441-442:
"Having mentally placed itself in the position of the bargaining parties as on the critical date, 1 January 1905, the question for the tribunal is, what is the point at which the parties would meet; what is the sum that one would be willing to give and the other to take? That is practically the same as asking what is the highest sum such  a purchaser would give, because we must assume the owner would be willing to take the best he can get.  The best he can get in those circumstances is the test of what he loses, and it is his loss which must be replaced.  It is not, as it seems to me, proper for this purpose to assume that the owner retains his land unsold indefinitely because such an assumption could only be for the purpose of getting an improved value, arising from more favourable circumstances than those existing in January 1905, which is the very thing forbidden by the statute."
In Turner v Minister of Public Instruction (1956) 95 CLR 245 at 267, Dixon CJ said:
"No doubt at the foundation of the present case lies the criterion of value for which Spencer v The Commonwealth has been so frequently cited.  But it by no means follows that the modes of reasoning employed in applying the criterion are matter of law.  Indeed Spencer's case itself does not provide the ultimate test of compensation.  An observation made in Minister for Public Works v Thistlethwayte [1954] AC 475 shows that it does not.  'It must not be forgotten', said Lord Tucker for the Privy Council, 'that it is the value of the land to the owner that has to be ascertained, and that the willing seller and purchaser is merely a useful and conventional method of arriving at a basic figure to which must be added in appropriate cases further sums for disturbance, severance, special value to the owner and the like'.  Further, when the test is applied the reasoning about it must for the most part relate to what the buyer would think and do whose existence and readiness to buy the land at a proper price are imagined: '... the all important fact ... is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted'...."
Dixon CJ continued at 268-269:
"It is, of course, to be valued in cases of compensation with the view to ensuring that the actual value contained in the land is replaced in the hands of the owner by an equivalent amount of money.  The value must therefore be the value to the owner which the land possessed to him in its condition at the date of resumption.  That value was necessarily affected by all the advantages which the land possessed and these might be a matter  of future or even contingent enjoyment.  Future advantages or potentialities must not be excluded.  At the same time the value of these things must be assessed according to the condition of the land as it stood at the time of resumption: 'it is the present value alone of such advantages that falls to be determined': Cedars Rapids Manufacturing & Power Co v Lacoste [1914] AC 569 at 576.  You must not notionally bring what is only potential into actual being and value it as if it existed.
In the case of the land in question no steps had been taken for sub-division.  It was necessary to survey it, to prepare plans for sub-division, to obtain the consent of the local authority, to make streets or roads and then to place it upon the market.  As the land stood it was incapable of sale in sub-division and it was necessary to make improvements or alterations in its physical condition before the sub-divisional prices could be obtained.  In those circumstances it could not be sold in sub-division at the time of resumption.  It was not therefore possible to ascribe to the owner possession of the present value of its sub-divisional potentialities on the footing that all you should do is to estimate what he would gain if he sub-divided the land at a future date and reduced the result to its then present value.  This means too that the conclusion is clearly right which the learned Judges of the Supreme Court expressed in the passage already quoted from their judgment, viz: '... the only sale that could be considered is a sale of the land as it was at the date of resumption, that is un-subdivided, but having the clear potentiality that it was fit for sub-division'."
14		Both by the terms of s 241(2) LA Act, and in accordance with principle, any appreciation in the value of the land resumed entirely due to the scheme underlying the acquisition should not be brought into account; Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 at 572.  This proposition must be understood in light of the judgment of the Privy Council delivered by Lord Romer in Raja Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 although that is not material in this case.
15		The principles enunciated in the passages cited in the preceding pages guide the Court in the task of assessing the compensation.  In essence, the task is to assess the value of the land resumed to its owner in its condition at the date for valuation.  That value is affected by all the advantages and disadvantages the land then possessed, including future or even contingent advantages, but only the present value of future or contingent advantages is to be included.  The accepted method of arriving at a basic figure reflecting that value is the Spencer hypothetical voluntary bargain test as examined in the passages cited.  To this basic figure, which is usually referred to as the market value, are to be added, in appropriate cases, further sums for disturbance, severance, what is often referred to as injurious affection, special value to the owner and the like, as well as solatium under the statutory scheme to arrive at the amount of compensation which should be awarded to the claimant owner.
16		Later in these reasons I will deal more particularly with questions as to the interpretation and application of particular provisions of s 241 LA Act insofar as they relate to particular aspects of the claim advanced for the plaintiff.
17		As to the process of valuation to be undertaken in this case by the Court it is helpful to be reminded of the words of the Privy Council in Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 at 391 which were quoted by Issacs J at 442 - 443 of Spencer's case:
"It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others.  Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity.  In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guess work; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at."
Access to Lot 116
18		Because of its significance in this case I will deal immediately with the question of fact concerning the effect of the compulsory taking on vehicular access to Lot 116 following the resumption.  As this is posed with respect to the plaintiff's claim for compensation, the issue comes to focus on what view of the access question would be taken by the hypothetical purchaser of the Spencer test as at 1 May 1998, and whether this view would effect the price (and if so what effect) at which the hypothetical buyer and seller would reach agreement at that date for the sale of Lot 116 following the resumption.  In essence, it is the plaintiff's case that a hypothetical purchaser would not have made any offer to purchase the unresumed balance of Lot 116 because he or she would have anticipated as at 1 May 1998 that approval would be denied for a crossover/driveway to enable vehicular access to it with the consequence that the land could not be developed.
19		The parties and all relevant witnesses are agreed that at all relevant times, and in particular as at 1 May 1998, the highest and best use to which Lot 116 could be put was as a site for a commercial office development.  All are agreed that two floors of offices with a basement or undercroft floor for vehicular parking was the optimum appropriate development.  This was allowed by the zoning of Lot 116 at the time.  As will be detailed later the allowed plot ratio would permit a part third office floor to be constructed but a third level of office space involves practical and financial disadvantages.  In light of the evidence, and for reasons noted later, I record my finding that two floors of office space with a basement or undercroft floor for vehicular parking was the optimum or highest and best use to which Lot 116 could be put after the resumption on 1 May 1998, as it was the optimum and best use to which Lot 116 could be put before the resumption, and that remains today its highest and best use.
20		Before Lot 116 could be utilised for such an office development, however, vehicular access to the site would be essential.  Whether any vehicular access would be approved by the local government authority, which was the Town of Vincent ("Vincent"), and if access was approved whether that would be from Newcastle or Loftus Streets, are hotly contended factual issues.  More specifically the question is what the hypothetical purchaser would have made of these issues as at 1 May 1998.  If access were to be approved, its location and nature could also affect the number of car parking bays that could be provided on the land, and the actual cost of an appropriate development, and in each of these ways could also affect the value of Lot 116 following the resumption.
21		Since 1963 Loftus Street has been designated an Important Regional Road under the Metropolitan Region Scheme ("MRS").  At relevant times it was a category 3 road for this purpose.  The public work for which the 18 square metres was resumed involved the duplication of Loftus Street to greatly increase its carrying capacity.  As an Important Regional Road Loftus Street was under the authority of MRWA.  Newcastle Street was, and is, not designated in any of the categories under the MRS as a road of regional significance.  It was under the authority of Vincent.  Nevertheless, it is a busy road which carries a significant volume of through traffic, as well as local traffic, although that volume has been diminished since the completion of the Loftus Street duplication and more particularly since the bringing into operation of the Graham Farmer Freeway and tunnel.  At relevant times, Newcastle Street comprised four marked traffic lanes, two each way, although in the relevant locality it was not designated a Clearway at any time of the day and street parking was permitted in each of the kerbside lanes away from intersections.  As a consequence vehicular traffic was essentially reduced to one lane each way.  While it was not designated in any category under the MRS there was, in practice, a tendency by relevant planning and engineering officers of Vincent and others to apply to it, as a matter of convenient practice, the policies and standards which applied to the least significant designated important regional roads under the MRS.  As will be seen this practice was neither a requirement of law nor was it universally followed.
22		In 1976, by Amendment No 135/33 to the MRS, it became clear that the block of land to the west of Lot 116 would be required for the planned duplication of Loftus Street with the consequence that Lot 116 would become a corner lot at the intersection of Loftus and Newcastle Streets.  For this purpose that amendment also reserved a truncation, 6 metres by 6 metres, at the southwest corner of Lot 116 for the intersection.  The precise dimensions of that truncation were later varied but it is to be noted that for planning purposes, from 1976, Lot 116 was identified as a corner lot with a truncation reservation.  That was its position when the plaintiff became the registered owner following the death of his mother in 1979.
23		In 1995, by Amendment No 959/33 to the MRS, a 2 metre reservation was imposed along the full Newcastle Street frontage of Lot 116, but no further, as part of the Loftus Street duplication works and the truncation reserve at the southwest corner of Lot 116 was varied to provide for a 4.5 metre by 4.5 metre truncation measured from the notional corner point at which the 2 metre reservation setback line and the western boundary of Lot 116 intersected.
24		Until 1 July 1994 the City of Perth had been the local government authority in respect of Lot 116.  On that date Vincent was formed.  As an interim measure Vincent applied the City of Perth Planning Scheme No 1 as its planning scheme and this remained in force until November 1998 when Vincent's own planning scheme ("Vincent TPS") came into force.  Vincent's own scheme was in published draft form on 1 May 1998 but was not in force.
25		There is no need to set out in these reasons any detailed analysis of the legislation pursuant to which the MRS was originally promulgated and has since been maintained, amended and managed, or of the various statutory authorities which from time to time, have had various roles in these activities.  For simplicity, but with inaccuracy, I will refer only to the Western Australian Planning Commission ("the WAPC") as administering the MRS.
26		At all relevant times from 1 July 1994 Vincent exercised delegated authority from the WAPC to approve development applications under the MRS for certain purposes.  It also had its own powers to grant approvals under its planning schemes.  The terms of the delegated authority from the WAPC for MRS purposes required Vincent, in the case of land on or abutting a category 3 road under the MRS, to refer a development application in respect of that land to the referral agency for comment and recommendation before determining the application.  Referral was not required if Vincent refused the application.  Relevantly, the referral agencies were MRWA or the Ministry for Planning ("MfP") which acted on behalf of WAPC.  The views of MRWA and MfP were not binding on Vincent under the delegated authority but in practice were obviously matters to be taken into account by Vincent.  Where any recommendations made by MRWA or MfP were acceptable to Vincent it was authorised to act accordingly as the deciding authority both for MRS purposes and under its own planning schemes.  Where, however, a recommendation of MRWA or MfP was "not acceptable to" Vincent for MRS purposes, under the instrument of delegation from WAPC the application was to be forwarded by Vincent to the WAPC "for determination".  It is to be noted that MfP provided expert advice to the WAPC and provided its administrative support.  Officers of the Transport Planning Branch of MfP routinely dealt with development applications involving vehicle crossovers/driveways which were referred by local government authorities including Vincent and provided the comments and recommendations to the local government authority.  Where an application came to be referred to the WAPC the same officers reported with recommendations to the WAPC when it came to consider and determine the application.  It is to be noted that there are statutory avenues of appeal both for the purposes of the MRS and Vincent's planning schemes if a development application involving a crossover/driveway is refused.  A formal application, independently of a development application, could also be made to Vincent for the approval of a crossway/driveway.  This too was subject to appeal rights.  It is unnecessary for present purposes to consider this in detail.
27		For present purposes it is sufficient, though strictly incomplete and inaccurate, to say that the WAPC performed the function of reserving lands under the MRS which might be required in the future for Important Regional Roads, whether new roads or modifications to existing roads, so that further development would not occur on those lands.  When the time came for the detailed planning of such new roads or modifications to existing roads, including detailed design and construction, MRWA assumed responsibility from the WAPC.  Quite often at the detailed design and construction stage it was found that less land was required than had been reserved by WAPC.  Only land actually required was acquired or taken compulsorily and in due course the reservation on any land not required was lifted.  Before the detailed design and construction stage the MfP, acting for the WAPC, was the relevant authority to which development applications and other applications concerning crossovers/driveways were referred under the WAPC delegated authority, and thereafter it was MRWA.  The detailed design and construction stage is not precisely defined and in the present case it extended at least from early 1997 until construction was completed early in 2000.  In practice, at all relevant times from early 1997, both MRWA and MfP were involved in the consideration of development applications and other enquiries involving a crossover/driveway for Lot 116.
28		In 1983 the plaintiff had applied to the City of Perth for development approval under its Town Planning Scheme and the MRS for a two storey office building with basement or undercroft parking on Lot 116.  Plans accompanied the application.  These provided for a two way vehicular crossover/driveway from Newcastle Street approximately in the centre of Lot 116 running directly into the undercroft parking area with 18 car bays ranged on each side of the central access way.  In January 1984 this was approved, subject to conditions that all development including the driveway crossover be set back from the truncation road-widening requirements and that the crossover/driveway be a minimum of five metres wide to allow for two-way traffic movement on to and off Newcastle Street.  Although the application and plans omitted any reference to the truncation reservation, the approval, as clarified by the letter of the City of Perth dated 3 February 1984, confirmed that Lot 116 was affected at that time by the 6 metre truncation reservation on the proposed corner of Loftus and Newcastle Streets and it is clear that both the City of Perth and the then Metropolitan Region Planning Authority, which dealt with the application (at that stage it also involved rezoning from residential to commercial usage under the MRS) were well conscious of the truncation for the proposed corner.  The plaintiff did not proceed with this development at that time and the approval lapsed after two years.
29		The plaintiff was advised by letter, with an enclosed plan, from the MfP on 18 November 1994 of proposed changes which came to be made in 1995 by Amendment No 959/33 to the MRS (as noted earlier).  He took no action at that time.  His next relevant action was in September and October 1996.  He then spoke to and wrote to the MfP raising issues concerning Lot 116 including the question of vehicular access.  For this purpose he resubmitted the plans for the office development which had been the subject of the 1984 approval.  On 14 October 1996 the Manager, Transport Planning Branch of the MfP replied.  Mr White, who gave evidence before me, was the author of that and other letters which followed.  I am satisfied from the evidence that Mr White routinely dealt with requests of this nature.  Mr White noted that on the submitted plans, which still provided for a central vehicular access from Newcastle Street, the crossover/driveway would be only 3 metres from the corner truncation.  The letter continued:
"Main Roads' Interim Policy Manual for Driveways in Urban Areas requires a minimum separation of 25 metres from the driveway to the corner truncation at a signalised intersection.  The proposed crossover is therefore substandard and would not be acceptable.
Land fronting Loftus Street between Kingston Avenue and the rear of your property is owned by the Western Australian Planning Commission.  It would be preferable, in terms of access arrangements, for the strip of land between Newcastle Street and Kingston Avenue (including your property) to be redeveloped with access to Kingston Avenue.  This could be either as an overall development or separate development of your property with shared access over the Commission's land.  This option should be investigated before direct access to Newcastle Street is considered."
30		The letter dealt with plans for a crossover/driveway centrally located on Lot 116.  While reference was made to an Interim Policy Manual of MRWA which stipulated a 25 metre separation from a driveway to the corner truncation and gave that as a reason for regarding the proposed central access as unacceptable, it did not rule out any access from Newcastle Street to Lot 116.  As the letter indicated, an option of gaining access across other WAPC land from Kingston Avenue at the rear of Lot 116 "would be preferable" and "should be investigated before direct access to Newcastle Street is considered" (emphasis added).
31		I am satisfied from Mr White's evidence that while the plaintiff's telephone conversations and letters in September and October 1996 were not a formal development application, Mr White understood them to be a pre-cursor to a formal application and he treated them as such.
32		Following a query from the plaintiff Mr White wrote again on 29 October 1996 advising the plaintiff:
"As stated in our letter of 14 October 1996 the proposed access onto Newcastle Street as shown on the plan in your letter of 2 October 1996 would be too close to the intersection with Loftus Street and would not be acceptable.
We suggest that you contact the Properties Section of the Ministry for Planning to discuss the possibility of gaining access across land owned by the Western Australian Planning Commission between your property and Kingston Avenue.  Unless this option is investigated and found to be unworkable we would not be prepared to consider compromising road safety standards by approving access from your property onto Newcastle Street."
33		It is contended for the plaintiff that these two letters reveal that it was the view of the MfP in October 1996 that vehicular crossover access from Newcastle Street to Lot 116 was substandard and would not be approved because it failed to comply with the MRWA Interim Policy and because it compromised road safety standards.
34		I am satisfied this is not the effect of the letters and it was not the view then held by Mr White and the MfP.  Nor is it their present view.  As each letter made clear on a fair reading, access from Newcastle Street to Lot 116 was not ruled out.  Each letter urged investigation of what the MfP saw to be a preferable means of access, ie across WAPC land at the rear of Lot 116 from Kingston Avenue which runs parallel to Newcastle Street.  The clear effect of the concluding passage of the second letter was that if the alternative of access from Kingston Avenue was unworkable the MfP would be prepared to consider compromising road safety standards by approving access from Newcastle Street to Lot 116.  The evidence satisfies me that this was the intended meaning and that it reflected the view then (and now) held by the MfP.  This view was held, in my finding, notwithstanding the MRWA interim policy to which Mr White had referred.  I am satisfied that then and now this was regarded as merely a policy and, particularly in developed areas where existing conditions precluded adherence to its requirements, it was adapted or ignored and the safest and most practical solution which could be achieved was usually adopted.
35		Kingston Avenue ran parallel to Newcastle Street.  Several lots to the north of Lot 116, which had previously fronted Loftus Street, had been partly resumed for the public work.  The WAPC had purchased the balance of these lots and contemplated amalgamating them for a residential unit development having access from Kingston Avenue.  Access to Loftus Street was to be avoided because it had become a very busy Important Regional Road.  For this same reason intersections with Loftus Street were kept to a minimum and to this end Kingston Avenue was closed off so that access from it to Loftus Street was no longer possible.  Where there were intersections, as with Newcastle Street, these were to be controlled by traffic signals.
36		I accept from the evidence that following his letter to the plaintiff Mr White referred the file to the Property Section of the MfP for consideration of the question of access from Kingston Avenue to the rear of Lot 116.  This proved to be not acceptable to the Property Section as a right of way to Lot 116 would not have left a sufficient width of land to allow for the proposed unit residential development.  I also note that the plaintiff was not informed of this.
37		I also accept from his evidence that Mr White did not give consideration in October 1996 to the possibility of access to Lot 116 from Loftus Street as, then and now, he regarded access from Newcastle Street to be preferable from the point of view of road safety to access from Loftus Street.  Loftus Street was an Important Regional Road and Newcastle Street was a side road.  I accept that for sound reasons of road safety Mr White, then and now, held the view that he would not consider access to Lot 116 from Loftus Street unless access from Newcastle Street was not possible.
38		I would mention at this point some further matters concerning access to Lot 116 from Loftus Street to avoid the need to return to them later in these reasons.  Some attention was given in the evidence to the possibility of vehicular access to Lot 116 from Loftus Street with egress to Newcastle Street and also to both access to and egress from Lot 116 from and to Loftus Street.  In my finding each of these is less desirable from a road safety viewpoint than access to and from Newcastle Street in the vicinity of the eastern boundary of Lot 116, because of the hazard presented to the heavy traffic flow in Loftus Street of a vehicle slowing and turning to gain entry to Lot 116 and of exiting vehicles entering the traffic flow of Loftus Street from Lot 116.
39		Further, the design of the Loftus Street duplication in this vicinity includes a combined cycleway and footpath on the verge between the roadway and Lot 116.  This provides an added hazard if there was to be vehicular access from Loftus Street to Lot 116 or egress to Loftus Street.  Further, the topography of the verge between Loftus Street and Lot 116 would make vehicular access difficult to construct, especially because of height differences and the need to traverse the cycleway and footpath.  Because of these reasons, I have not further explored in any detail the question of vehicular access from Loftus Street to Lot 116, whether two way access or entry from Loftus Street with egress to Newcastle Street.  It would, however, remain a possibility if access from Newcastle Street were not possible.
40		In August 1997 the plaintiff sought from Vincent approval for a two way vehicular crossover from Newcastle Street to Lot 116, or alternatively from Loftus Street.  He did this by letter.  It was not a formal developmental application.  With this request the plaintiff enclosed three alternative plans for an office development  on Lot 116.  These provided for two way access at the eastern end of the Newcastle Street frontage, or alternatively at the rear of Lot 116 on the Loftus Street frontage with the third alternative being entry from Loftus Street and exit to Newcastle Street.  Once again the plans failed to depict the truncation reservation.  Nor did they show the two metre frontage reservation to Newcastle Street.  In my finding, however, Vincent had full knowledge of these reservations and took them into account.  On 22 September 1997 the appropriate manager of Vincent replied.  His reply dealt with the primary application which was for two way access from Newcastle Street.  It was in the following terms:
"Thank you for your letter dated 2 September 1997 regarding the approval of a crossover at the above location.
Subject to approval from Main Roads Western Australia (MRWA) and the Ministry of Planning, Council will approve the construction of a crossover under the following conditions.
•	The crossover is to be located no less than 12 metres from the intersection of the western boundary.
•	The movement of traffic leaving the property is to be left turn only.
•	The existing median island is to be extended to prevent any right turn movement from the property at the applicant's expense."
41		This constituted, in my finding, an unequivocal indication of the attitude of Vincent at that time and of the decision it would make, subject to MRWA and MfP also approving, were there to be a formal development application made.  It is properly described in the evidence in my view as an approval in principle.  Vincent informed the plaintiff that it would approve the construction of a crossover subject to three conditions.  The first required the crossover to be no less than 12 metres from the intersection of the western boundary of Lot 116.  There was an attempt in evidence and submissions for the plaintiff to say this was uncertain and unclear as it appeared to ignore the existence of the truncation.  I find the letter to be entirely clear in its meaning in this respect, a view which is further confirmed by later events.  It refers to 12 metres from the western boundary, not to the truncation.  At that point of time there had not been any resumption; the truncation was merely the subject of a reservation.  The stipulated 12 metres from the western boundary left 5.96 metres to the eastern boundary in which to construct a crossover.  The precise location in that 5.96 metres and the width of the crossover would, in the ordinary course, be the subject of detailed proposals in a formal development application and would be the subject of precise decision and approval at that stage.  It is to be noted that the relevant plan informally submitted at that time by the plaintiff as the basis for his enquiry was for a two storey office development with 18 car bays in a basement parking area.  It is clear from the terms and the evident purpose of each of the three conditions, as it is from the general body of evidence, and it is my finding, that Vincent was then well aware of the planned corner location of Lot 116 and of traffic safety issues relating to a two way crossover access from Newcastle Street to Lot 116 in the position stipulated by Vincent.  The other two conditions stipulated by Vincent, left turn only on exit and the extension of the existing median island to ensure this, are, on the evidence, essential to ensuring the safest possible use of a crossover in this position and the 12 metre stipulation assured that an adequate width crossover which allowed for two vehicles to pass each other would be located at a position as far from the Loftus Street corner as practicable, ie adjacent to the eastern boundary of Lot 116.
42		While the conditions stipulated that the owner of Lot 116 should meet the cost of extending the median strip this was in fact overtaken by the detailed design by MRWA of the intersection, which design was produced shortly after the Vincent letter.  The MRWA design provided for a median strip to be constructed by MRWA which more than satisfied this requirement.  That was the MRWA design as at 1 May 1998.  The median strip has since been constructed by MRWA in association with the duplication of Loftus Street.  With the completion of these works there could only be left turn movement by vehicles exiting from Lot 116 to Newcastle Street were there to be a crossover at the eastern end of the frontage of Lot 116 to Newcastle Street.
43		Having received this letter from Vincent, because of its terms which conditioned the approval of Vincent on the approval of MRWA and MfP, the plaintiff immediately sought the approval of both MRWA and MfP.  The plans and a copy of Vincent's letter of 22 September 1997 were enclosed with letters sent to both MRWA and MfP by the plaintiff.
44		The project manager land management MRWA, Mr Elphick, received this request. He sent the relevant papers which included a copy of Vincent's letter of 22 September 1997 and the plaintiff's plans by facsimile to Mr Symcox of the Traffic Sector Management Branch MRWA, who was the officer responsible inter alia for all crossover safety issues in MRWA.  With his reply to Mr Elphick, Mr Symcox attached a copy of the general requirement of MRWA for driveway access near traffic signals and commented:
"However as this requirement clearly cannot be achieved, it is recommended that the driveway be located the furthest point possible away from the intersection, due to the higher increased possibility of rear end crashes, as vehicles slow to enter the driveway.
Therefore the preferred driveway position is adjacent to the eastern boundary."
The plaintiff was accordingly advised by letter from MRWA dated 21 October 1997:
"Main Roads would have no objection to the crossover proposed, provided it is located adjacent to the eastern boundary of the property (Lot Pt 116) in Newcastle Street, and meets with the requirements of the Town of Vincent and the Ministry for Planning."
45		Within a few days the plaintiff had sent two further letters to MRWA seeking confirmation about detailed design issues concerning the crossover.  He raised, first, a need for the crossover to be put one metre from the eastern boundary to clear a structural pier of the proposed office building and a retaining wall down the eastern boundary, and then, secondly, a SECWA light pole which was located 900 mm from the eastern boundary.  MRWA replied to both letters, in essence advising that the exact details with regard to the location of the driveway could be finalised when the plaintiff made a formal development application.
46		The MfP also replied to the plaintiff's request for approval in October 1997 saying:
"The Ministry is prepared to support the proposed crossover subject to:
(i)	location of the crossover at maximum distance from the 4.5m x 4.5m corner truncation requirement for Loftus Street Important Regional Road reservation (in the Metropolitan Region Scheme), which affects Lot Pt 116 at the western property boundary,
(ii)	the satisfaction of the Town of Vincent and in accordance with their engineering standards and requirements."
Copies of the MfP and MRWA responses were provided to Vincent.
47		The plaintiff replied to MfP on 27 October 1997 saying:
"Thank you for your letter dated 22 October 1997 granting approval for a 5 metre wide crossover to the 18 car bay parking area in the proposed two story office development on the above site.
(i)	The truncation to the western boundary is 7.2m x 7.2m (see attached diagram) not 4.5m x 4.5m as in your letter.
A State Energy Commission light pole is 900mm in on the eastern boundary allowing 1.25m clearance for safety purposes.  This would place the crossover 3.71m from the corner of the truncation.  Trusting this meets with your Department's approval.
(ii)	Your letter dated 18 November 1994 advised me that a 2 m wide resumption was required to Newcastle Street.
Would you please advise me if this is still current."
In the MfP's reply of 31 October 1997 prepared by Mr White it was pointed out that the reference to the 4.5m x 4.5m truncation was correct, the plaintiff had been referring to a MRWA works drawing.  It was also confirmed that the 2 metre reservation remained, it being an area that "may be required for road widening in the future and will be protected from development …".  The letter went on to say:
"The location of the proposed crossover has been specified (in the Town of Vincent's letter of 22 September 1997) as not less than 12 metres from the western boundary of Pt Lot 116.  Due to proximity of the Loftus Street intersection it is not considered acceptable to further reduce the separation just because a power pole is in the way.  Any proposed development should make allowance to have the power pole relocated so that the location of the proposed crossover is not further compromised.  It should be noted that the dimension of 12 metres is already a substantial compromise on Main Roads recommended distance of 25 metres at a signalised intersection (refer Main Road's Interim Policy Manual for Driveways in Urban Areas, March 1987)."
The letter went on to note that it would be preferable for the proposed crossover to be combined with the existing crossover serving the adjoining Lot 117, subject to agreement with the owners of Lot 117, which would "help to minimise the number of crossovers on Newcastle Street".  Mr White in his evidence explained that in accordance with an existing policy a shared crossover with a driveway straddling the boundary of both properties would be preferable in this location.  Lot 117 has a crossover/driveway on the common boundary with Lot 116.  In such cases an agreement between the owners is usually protected by easements registered on the titles.  That preferred solution appears never to have been pursued further by the plaintiff even though it would allow a wider crossover/driveway, further from the intersection.  It would also have advantages for the adjoining property and this was the position on 1 May 1998.  It remains an attractive alternative possibility.  The adjoining property is owned by the Health Department and is used as a small day clinic or out-patients hospital.
48		Following this correspondence the plaintiff had taken no further action by 1 May 1998 to formally secure development approval for an office development on Lot 116 or for a crossover/driveway as had been approved in principle by the three relevant authorities the correspondence set out above.  Neither has he done so since that date.  Nothing was said or done by Vincent, MRWA or MfP between that correspondence in September and October 1997 and 1 May 1998 to suggest there had been, or that there was, a possibility of any change of view by any one of those authorities concerning the proposed crossover/driveway.  Notwithstanding a body of evidence concerning matters subsequent to 1 May 1998, the evidence in this case, in my finding, discloses nothing to indicate that any one of those three authorities had changed its position, was contemplating changing its position, or had reason to change its position at any stage between the correspondence in September and October 1997 and 1 May 1998, or indeed thereafter until events in 1999.
49		In my finding, the September and October 1997 correspondence revealed that Vincent, MRWA and MfP, the three relevant authorities, would each approve a two-way crossover located no less than 12 metres from the western boundary of Lot 116, ie within the remaining 5.96 metres of the Newcastle Street frontage of Lot 116 to serve a two storey office development on Lot 116 which development provided for up to 18 car bays in a basement parking area.  In my finding, this remained the position as at 1 May 1998 notwithstanding the resumption and for a considerable period thereafter.  I am also satisfied on the evidence that in September and October 1997 all three of the authorities were well aware that Lot 116 would be the corner lot by virtue of the duplication of Loftus Street, that the intersection would be controlled by traffic signals, and that the new road layout on the corner would require a truncation of the southwest corner of Lot 116, although in September and October 1997 the precise dimensions of that truncation were still subject to final detailed design.  The finalisation of the detailed design did not in my finding introduce any reason for any of these authorities to revoke the decision in principle to approve a crossover/driveway for Lot 116.  The three authorities were also well aware of the two metre reservation on the Newcastle Street frontage that might be required for future road widening.  It is also my finding that each of these three authorities was also aware of the standard policy requirements for crossover/driveway access near traffic signals and that they would be compromised, with or without the resumption, by a crossover located within 5.96 metres of the eastern boundary of the Newcastle Street frontage of Lot 116, but that each of them was prepared to approve a crossover/driveway notwithstanding this.  Despite the vigorous contrary submissions of the plaintiff, in my finding, that is not surprising or unusual.  The policy requirements, like the requirements of various national standards which will be mentioned later, were statements of what was desirable in the interests of road safety and of uniformity, but they were not binding legal requirements and, in particular, in established areas such as the present case, where the requirements could not be met, it was usual practice in my finding to adopt a solution which was the most satisfactory that could be achieved.  In my finding, the September and October 1997 correspondence of the three authorities discloses that that this was the course then being followed by each of the three authorities and this had not changed as at 1 May 1998.
50		It is also my finding that had there been an enquiry by an intending purchaser of Lot 116 on or about 1 May 1998 of these three authorities, the intending purchaser would in each case have been shown the relevant September and October 1997 correspondence quoted above and advised that the authority's position remained as indicated in that correspondence, or the intending purchaser would have been given the same essential information in fresh letters, subject in each case to the development since September/October 1997 that the requirement to provide a median strip in Newcastle Street at the expense of the owner of Lot 116 had been superseded by the detailed design of the Loftus and Newcastle Streets intersection by MRWA.
51		It is also my finding that, had the plaintiff made a formal development application for an office development on Lot 116, or had a purchaser or an intending purchaser made such an application, on or before 1 May 1998, or later in 1998, a crossover/driveway in that 5.96 metres at the eastern end of the Newcastle Street frontage of Lot 116 would have been formally approved by each of the three authorities, notwithstanding that such a crossover may not have complied with existing policies and national standards in some respect or other.  In my finding, the precise width and position of the crossover/driveway, within that 5.96 metres, would have been determined as part of the development application and in light of the design details of the proposed office development and the views expressed by MRWA and MfP in the correspondence quoted.  I accept from the evidence that a two way crossover/driveway would have been required, ie one wide enough for two vehicles to pass.  I also find that a crossover/driveway within the 5.96 metres would have been approved notwithstanding any turnout requirement which will be mentioned later.  I further find that such formal approvals would have been conditioned to require exiting traffic from Lot 116 to turn left into Newcastle Street.  In this respect the development of the design of the MRWA works before 1 May 1998 for the intersection, including the provision of a median strip in Newcastle Street, would as a matter of probability have obviated a formal condition being imposed requiring the provision of a median strip at the expense of the owner of Lot 116 in respect of an application made at about that time, or indeed at any time thereafter.  The construction of such a crossover/driveway would no doubt have required the repositioning of the SECWA pole mentioned in the correspondence, at the owner's expense.  That would have been so until late 1999 by which time the progress of the Loftus Street duplication works would have obviated this as the public work involved conversion to underground power lines and the removal of that pole.  The evidence does not enable me to make a finding as to the cost of repositioning the pole.
52		While the September and October 1997 correspondence of the three authorities considered above was in the context of a two storey office development with basement parking for up to 18 cars, and while that is the type of development which all parties and the relevant witnesses agree is the highest and best use for Lot 116, in case it is not clear, I would add that approval for a crossover/driveway to provide vehicular access to Lot 116 would not in my finding have been limited to such a development whether before or after the resumption.  The position taken by each of the three authorities in September and October 1997 in giving approval in principle to a crossover/driveway was not, on the evidence, indicative of a view by any one of the authorities that approval would be limited to a development of that nature.  Leaving aside use and planning issues, formal approval could have been equally anticipated for a variety of other forms of development although the nature of the development may well have affected the precise requirements stipulated, ie a crossover width of only three metres may have been adequate for a residential development.  There is no reason, however, to explore those possibilities further in this case.
53		In making these findings I have considered, but rejected, much that was submitted for the plaintiff.  In particular, while I accept that the correspondence of the three authorities of September and October 1997 was not binding on the authorities, as they were merely in response to informal enquiries by the plaintiff, I accept from the evidence that this is a convenient and not unusual way in which owners and intending developers explore the attitude of authorities to a contemplated development, and that the approach by the plaintiff was viewed in this light and treated accordingly by the authorities.  I also accept that in these circumstances the authorities will usually adhere to such approvals in principle even though given informally.  In this particular case, I am satisfied that the evidence reveals there was no reason for any one of the three authorities to change its position by 1 May 1998 (save for the median strip requirement) and it is my finding that this would not have occurred.  As indicated I am also very conscious, as will be mentioned in greater detail later, that a crossover/driveway in this position would not meet some applicable policy and national standard requirements, but for reasons indicated above and as further discussed later in these reasons, I am satisfied that this is not a reason why a crossover/driveway in this location would not have been approved had formal application been made.
54		The plaintiff also sought to make much of some of the views expressed in the 1996 MfP letters quoted earlier.  I have already sufficiently indicated my reasons for not accepting that those letters conveyed, or were intended to convey, much that the plaintiff submits about them.  I do accept that Mr White for the MfP was trying to achieve an alternative to access by crossover from Newcastle Street to Lot 116, but in my finding his letters did not, and were not intended to, rule out eventual approval of such access if the alternatives could not be achieved.  Further, and importantly, whatever may have been made of the 1996 letters, they had been overtaken and displaced in my finding by the 1997 letters which approved in principle two-way access to Lot 116 by crossover/driveway from Newcastle Street.  Should it matter, I do not see the two as inconsistent as the 1997 letters convey a development from the 1996 position of MfP.  I am satisfied, despite some expressions of view in evidence and submissions to the contrary, that an intending hypothetical purchaser of the type relevant to the Spencer test, would see no reason to be concerned with what was said by MfP in the 1996 letters in view of the contents of the October 1997 letters of MfP.
55		I would only add, in view of some evidence and submissions, that I see no reason in the evidence to conclude that the 1997 decisions of Vincent, MRWA or MfP were other than genuine and honest decisions for routine and sound reasons.  There is nothing, in my finding, to support the view advanced by the plaintiff and Mr McMahon, that they were contrived decisions to get MRWA out of a difficult compensation position over the plaintiff's land.
56		I am also aware that these approvals in principle were determined by officers.  In each case this was within the normal authority of the officers and the evidence does not provide reason in my finding to conclude there was any reasonable probability of a different position being taken by the Council of Vincent or WAPC or by any more senior MRWA officer.  In this respect, at least in the case of Vincent, a formal application may have gone to Council because of the non-compliance with existing policies or standards but, for reasons discussed later, in September and October 1997 and until well after 1 May 1998 there is no reason to conclude that the Council would have made any different decision.
57		In February 1999, ie over nine months after the valuation date of 1 May 1998, an architect, Mr Oakley, who had been retained that month by MRWA to advise on the development potential of Lot 116, as that was seen to be an issue relevant to compensation issues, contacted the Manager, Engineering Design Services, of Vincent, a Mr Wilson, by fax and telephone.  As Mr Oakley's fax reveals, he had gathered that the MRWA approval in principle for the crossover as notified by its letter of 21 October 1997 had been based on a false assumption that Lot 116 was zoned residential and not commercial.  Mr Oakley was attempting, therefore, to determine whether the MRWA decision would have been different if use of the site was to be for commercial purposes.  The only evidence which I have found as to the basis for this understanding would attribute it to a comment of Mr Symcox made to Mr Oakley.  I am satisfied, however, that the view of Mr Symcox and the decision of MRWA based on it in October 1997, like the decisions of both Vincent and MfP at the time, were made on the basis of the plans provided by the plaintiff to each of those authorities, which were for a two storey commercial office development with basement parking for some 18 cars.  The plaintiff's plans were provided to Mr Symcox when he considered the matter in 1997.  Lot 116 was then zoned commercial under both the Vincent and MRS planning schemes.  Further, there is nothing to indicate that zoning was an issue in the MRWA decision.  The decision of MRWA, in my finding, had been made on the basis of the proposed commercial office development.
58		The nature of Mr Oakley's February 1999 enquiry, coupled with the unrelated circumstance that since 1 May 1998 there had been a change of the relevant appointee at Vincent, seems to have led to some reconsideration by Vincent of its position.  However, on 17 March 1999 Vincent replied to Mr Oakley stating (no doubt out of caution) that it was Vincent's view that if safety of access is in question that was of MRWA's making.  The letter went on to say:
"However, we wouldn't deny/refuse an access if a development application were lodged for the property.  We would, however, condition an approval accordingly."
In the course of discussions between the Vincent officer and Mr Oakley that preceded this letter, the officer had foreshadowed that Vincent might reconsider its 1997 decision that the crossover should be no less than 12 metres from the western boundary.  In the letter of 17 March 1999 Vincent went on to indicate that a likely detailed design condition would be to provide for a 7.5 metre crossover.  This would involve, of course, a reduction of the 12 metres which it had stipulated in 1997.  The letter further indicated that likely detailed design conditions were for the access to be located adjacent to the eastern boundary and that vehicles be able to turn around within the property so as to exit in forward gear, a condition that had been inherent in the plaintiff's plans submitted in 1997 but which was now made express as a likely condition.  Vincent also indicated that a likely condition was that the existing retaining wall, ie the owner's brick frontage retaining wall, be removed or modified to provide maximum sight distances.
59		From this letter, in my finding, it is clear that despite reconsideration by a new official at Vincent, the position was maintained that a crossover/driveway to Lot 116 would be approved if a formal development application were lodged, and that this would be approved despite safety issues.  The crossover would continue to be at the eastern end of the Newcastle Street frontage of Lot 116 and would allow for both entry and exit.  As before, access would be limited to both left in and left out by a median strip in Newcastle Street, although by this time Vincent accepted that the MRWA intersection design would provide for this.  The modification of its position to provide for a likely condition of a crossover/driveway width of 7.5 metres involved a balancing of competing issues.  As indicated in the letter a wider width would allow greater ease of entry, and therefore speedier entry, from Newcastle Street.  Necessarily, this involved a lessening of the distance between the crossover and the intersection.  There is no question that this did not comply with the requirements of existing policies and national standards in some respects.  Despite some evidence and submissions for the plaintiff, obviously that was not seen as precluding the approval of a crossover/driveway on the conditions foreshadowed in the letter.  Likewise the likely condition that the access be located adjacent to the eastern boundary would necessarily preclude any turnout for the crossover being accommodated within the prolongation of the boundary to the roadway (a matter to be discussed later).  Once again, that was not seen to be an issue which precluded the approval of a driveway/crossover adjacent to the eastern boundary.  Precise conditions could not be finalised, of course, until an actual development was put forward for formal approval.
60		Of the matters foreshadowed as likely conditions in this letter the one of potential significance for development purposes was the likely requirement to modify or remove the frontage retaining wall.  Obviously, this would be influenced by the design of a proposed development but removal could involve additional site excavation and so could affect development costs.  As will be discussed later the plaintiff's design in 1983 and the 1997 plans submitted to the three authorities, although the subject of some differences in evidence, appears to have involved the removal of the retaining wall and at least some site excavation.  That is also the position with the two designs prepared in 1999 and 2000 by Mr Oakley and Mr Adam for the respective parties which are before me in evidence.  Some excavation of the Newcastle Street frontage and of the rest of the site appears to be a logical feature of any two storey office development with basement parking on Lot 116.  But more of that later in these reasons.
61		Even had the 17 March 1999 letter of Vincent been available on or before 1 May 1998 I am satisfied that a hypothetical purchaser of the Spencer type would have accepted from it that satisfactory two way vehicular access would be approved by Vincent at the eastern end of the Newcastle frontage of Lot 116.  Obviously, a hypothetical purchaser would be conscious that, as before, this was not a formal decision legally binding on Vincent and would be aware that the precise conditions attached to any formal development approval would, in part, depend on the precise detailed design of the proposed development.  Nevertheless, in my finding, a hypothetical purchaser on or before 1 May 1998, who had such an indication of Vincent's position, would be satisfied that formal approval would be obtained and that the conditions attaching to that approval would not differ from those which the letter indicated were likely to be imposed in ways which would significantly adversely affect a two storey commercial office development with undercroft parking.  In my finding, had this advice of Vincent of 17 March 1999 been available to a hypothetical purchaser on or before 1 May 1998, the purchaser would not have anticipated that the indicated likely detailed conditions would be productive of any difficulty or change of mind by MRWA or MfP.  Indeed, from the evidence I am satisfied that had these more detailed conditions been put forward in October 1997, or at any time between then and 17 March 1999, their general sense could have been acceptable to and approved in principle by both MRWA and MfP.  The precise width of the crossover may have led to an exchange of views between MRWA, MfP and Vincent, not so as to lead to a refusal to approve a crossover but because it was clearly a question of finding an appropriate compromise between two competing considerations, and different appreciations of the most appropriate point of compromise might well have been offered.  It is entirely hypothetical what might have happened, but what can be gleaned of the approach of the three authorities on or before 1 May 1998, and indeed into 1999, even when viewed in light of the competing views of the traffic engineering experts who have given evidence before me, leaves me quite satisfied that the probabilities clearly were that all three authorities would have quickly settled on an agreed width for a crossover/driveway adjacent to the eastern boundary of Lot 116.  That agreed width would have been a figure between 5.0 metres and 7.5 metres and would have satisfied the needs of a hypothetical purchaser contemplating a commercial two storey office development with basement parking on Lot 116.  I am satisfied that had this March 1999 letter of Vincent or its effect been available on or before 1 May 1998 and a cautious hypothetical purchaser had put that view to MRWA and MfP, each would have responded to the hypothetical purchaser in accordance with the views just outlined.  The effect of this, in my finding, would have been to satisfy the hypothetical purchaser that a suitable crossover/driveway for a development of the type identified would be approved on formal application.
62		The advice of Vincent of 17 March 1999 was not available, of course, before that date.  It was the product of the detailed enquiries and specific issues raised by Mr Oakley in February 1999.  In my finding, there is no reason, in the evidence, to conclude that the more detailed views expressed by Vincent in March 1999 would have been formed or expressed by Vincent on or before 1 May 1998 had the hypothetical intending purchaser made normal enquiries about crossover access to Lot 116, in particular access for a proposed commercial two storey office development with basement parking.  In my finding, the response to such an enquiry at that time would have been as indicated earlier in these reasons.  The differences, however, are not fundamental.  Excavation by virtue of removal of the retaining wall with a view to maximising sight distance being the only change of any significance to a hypothetical purchaser contemplating an office development of the type identified.
63		The question of vehicular access to Lot 116 did not stop even at March 1999.  By then the plaintiff was pursuing the view in his negotiations as to resumption and compensation that vehicular access to the unresumed balance of Lot 116 could not and should not be approved for safety reasons.  The plaintiff was strongly agitating the view that by virtue of this the retained balance of Lot 116 after the resumption had lost all its value as it could not be developed and that, as a consequence, it should be resumed or purchased by MRWA.  The pursuit of this position led the plaintiff in June 1999 to instruct a firm of traffic engineering consultants ("BSD"), and in particular Mr Bordbar of that firm, to prepare a report on the road, traffic and safety aspects.  This report, dated 10 September 1999 concluded inter alia:
"The proposed development and the associated crossover on the eastern boundary of Lot 116 Newcastle Street can not be supported on traffic safety grounds.  As such, an alternative use for this property should be considered."
The proposed development considered in the report was a commercial two storey office block with basement parking.  It was a design that had been prepared by Mr Oakley after his discussions with Vincent earlier that year.
64		Mr McMahon, who was advising the plaintiff on compensation and negotiating on his behalf, had written to Vincent in June 1999 expressing concern at the safety of any crossover to Lot 116 and asking the Council to consider the matter.  A copy of the BSD report was provided to Vincent when it became available.
65		It then appears that in April 2000 MRWA officers met with Vincent officers and discussed the access issue.  While alternatives were considered access off Newcastle Street was the primary focus.  This was followed by the plaintiff and Mr McMahon meeting with Vincent officers to stress to them the viewpoint that safety standards precluded the approval of access to Lot 116.  The issue of access to Lot 116 was placed on the agenda for a meeting of the Council of Vincent on 23 May 2000.  There was no development application from the plaintiff although Vincent had been provided by MRWA with the theoretical development concept prepared by Mr Oakley which was, of course, for a two storey office block with undercroft parking for some 18 cars.  The report to the Council by officers of Vincent raised as a moot point whether Council might decide whether or not to approve access.  This was posed for the reason that this "issue is a pivotal point in the negotiations", they being the negotiations between the plaintiff and MRWA which the report noted as being with regard to the purchase of the whole of Lot 116 by MRWA.  The report went on that if "As Mr Cerini contends, Council cannot approve a vehicle access for safety reasons, then MRWA would be obliged to purchase the whole property".
66		Because of the controversy that had been generated by this activity, legal advice was obtained by Vincent in May 2000 and this was provided to the meeting of the Council of Vincent held on 23 May 2000.  The advice was provided in two letters.  In the first the Council's solicitors advised that "A land owner's right of access may only be denied by express statutory authority and that any denial of access would probably give rise to a claim for compensation".  In the second letter, particular attention was given to the Local Government (Uniform Local Provisions) Regulations 1996 which conferred power on local government authorities such as Vincent to control crossings from public thoroughfares to private land.  In this second letter Vincent's solicitors advised with respect to these regulations that "The Town may impose conditions on the construction, design and condition of a crossing.  However, the regulations do not allow the Town to entirely prevent access from a public thoroughfare to private land".
67		A recommendation was prepared by officers of Vincent for consideration by the Council when it met on 23 May 2000.  In essence, the recommendation was that the Council should:
"(i)	Receive the report prepared by the officers,
(ii)	Note the legal advice, and
(iii)	Write to the defendant and the Commissioner of Main Roads seeking an assurance that the issue will be resolved without prejudicing Vincent."
68		Before the meeting on 23 May 2000, however, the plaintiff arranged for the then Mayor, who was known to him, to discuss the issue with the plaintiff and Mr McMahon at the site.  During this meeting the evidence satisfies me that the plaintiff and Mr McMahon each stressed to the Mayor aspects of the BSD report and each of them urged the view that Vincent should not approve vehicular access to Lot 116 as it would be unsafe.  In fact, the essence of what was put was that access was not possible to Lot 116 because of safety considerations.  Among the matters stressed by the plaintiff and Mr McMahon were the restrictions on sight lines for a crossover/driveway at the eastern end of the Newcastle Street frontage, particularly for pedestrians and cyclists approaching the intersection from the dual use cycleway/footpath in Loftus Street, as well as for vehicles, which restrictions were caused, as the plaintiff and Mr McMahon urged, particularly by the retaining wall which MRWA had by then built at the plaintiff's insistence to retain the existing ground level on Lot 116 in the vicinity of the resumed truncation on the corner.  This had been built in mid-1999, subsequent to the resumption.  I note that this retaining wall was no higher than the retaining wall of the plaintiff which it replaced and that this retaining wall followed the line of the truncation rather than the original boundary.
69		The Mayor left the site meeting with a view to discussing the matter with his officers.  I accept from the evidence of the Mayor that he was impressed by the BSD report and the matters put to him by the plaintiff and Mr McMahon, and because of these and from his own assessment of the situation he formed the view that there were dangerous aspects of the corner, particularly relating to cyclists and pedestrians, and that a crossover adjacent to the eastern corner of Lot 116 allowing access from Newcastle Street represented a danger.  He held a similar view of the existing crossover to the adjoining Lot 117 which was located immediately adjacent to the boundary dividing Lots 117 and 116.  At the site meeting the possibility of access to Lot 116 from Loftus Street was also discussed and I accept from the evidence that the physical difficulties of such access were stressed and that the Mayor was impressed, again particularly by the BSD report, that access from Loftus Street, like the proposed access from Newcastle Street, would not comply with the MRWA interim policy or with national standards.
70		The content of the report and recommendation which the officers of Vincent had prepared for the meeting of Council was known to the plaintiff and Mr McMahon when the site meeting with the then Mayor was arranged.  After the site meeting, the Mayor himself, arranged for an amendment to the recommendation which the Mayor moved at the Council meeting.
71		On 23 May 2000 the plaintiff attended the meeting of the Council of Vincent with Mr McMahon and addressed the councillors.  He had been provided with a copy of the amended recommendation before the meeting.  In the course of his comments the plaintiff stressed to the Council that he had been having, what he described as a very arduous time with MRWA over the matter of resumption and compensation for over five years and had now taken the matter to the Ombudsman.  He expressly supported the amended recommendation which he told the Council was one which he felt would "bring the matter to a head".  The Council then passed the proposed recommendation.  This incorporated the amendment moved by the Mayor and which the plaintiff had supported, the effect of which was to add to the original recommendation prepared by officers the following:
"(iv)	the Council further advise the Commissioner of Main Roads that:
(a)	the provision of a vehicle crossover to nos 596 and 598 (Lot 116) Newcastle Street from Loftus Street is not possible due to the significant difference in level between the property and existing road pavement;
(b)	the provision of a vehicle crossover to nos 596 and 598 from Newcastle Street would not be supported on safety grounds as its proposed location would not comply with Australian Standard. 2890. 1-1993."
72		The terms of this resolution are strongly relied on in support of the plaintiff's case.  A number of things must be noted about it, however.  It does not constitute a denial of a development application which incorporates a crossover or vehicular access from either Loftus or Newcastle Streets to Lot 116.  Indeed, it is a resolution dealing with a hypothetical question posed because the plaintiff and MRWA were in dispute over the questions of acquisition and compensation.  With respect to a crossover from Newcastle Street it proceeds on the basis that such a crossover would not comply with AS.2890.1-1993 and therefore it "would not be supported".  That accorded with the view expressed in the BSD report commissioned by the plaintiff and with the views urged on officers, and then the Mayor, and then the Council, by the plaintiff.  It is the position, however, that this Australian Standard is not binding on Vincent and as earlier events reveal it is not universally applied by Vincent.  Further, neither the Mayor nor the Council had the benefit of another traffic engineering report on the safety aspects of vehicular access to Lot 116 which was commissioned by MRWA in February 2001 some eight months after the Council resolution.  This report was prepared by Mr Klyne of Klyne Consultants who specialises in road safety and traffic engineering.  This report concluded inter alia that the "design of vehicle crossover(s) to service Pt Lot 116 Newcastle Street, meeting the requirements of AS.2890.1-1993 can be achieved".  I will return to this later in these reasons.
73		Further, the Council was faced with the most unusual situation, indeed on the evidence the quite remarkable situation, of the owner of affected land having urged officers of Vincent, the Mayor and the Council itself not to grant access to his land, and had gone so far as to engage Mr McMahon to lobby against the approval of access and to have engineering consultants prepare a detailed report which highlighted safety issues.
74		By 23 May 2000 it is clear, in my finding, that by the lobbying of the plaintiff and Mr McMahon against access, and the circulation of the BSD report, there had been encouraged and developed an awareness of safety concerns regarding access to Lot 116, which awareness did not exist and would not have been influential two years earlier on 1 May 1998 and thereabouts.  In particular, the BSD report had presented the issues of access from Newcastle Street in quite a different light, in my finding, from that in which it had been considered by the officers of Vincent before the existence of the report which became available for the first time in about September 1999.  Further, had the plaintiff not personally involved the Mayor, the probabilities, in my finding, clearly favour the conclusion that the Council would have acted in accordance with recommendations placed before it by its officers.  In reaching that view I am well conscious of the concerns of the Mayor which were aroused by his visit to the site and what was put to him by the plaintiff and Mr McMahon, and it can be accepted that the resolution he then had prepared and urged on the Council reflected his appreciation of the position as he had seen it in May 2000.  There is no reason to think, however, that those views would have been formed or that the Mayor would have had a similar appreciation of the position, had he not responded to the personal intervention of the plaintiff and visited the site and had the opinions expressed in the BSD report so strongly urged upon him.  It was the opinion of the Mayor in evidence that, had the issue then arisen, a similar decision would have been reached in May 1998 as that reached on 23 May 2000 but, in my finding, that would only have been so had, on and before 1 May 1998, the plaintiff been as active in lobbying against access and had provided and advocated the views expressed in the BSD report, and had actively involved the Mayor, as he had done before the 23 May 2000 meeting of Council.
75		In my view of the probabilities, they very strongly favour the view that had there been a formal development application by the plaintiff, or a hypothetical purchaser, on or about 1 May 1998, in circumstances where there was no attempt by the plaintiff or the hypothetical purchaser to lobby against the granting of access, the application would have been granted and access to and from Newcastle Street from Lot 116 at the eastern end of the Newcastle Street frontage would have been approved.  I have canvassed my reasons for that view and have considered more precisely the nature of the conditions of such an approval had a formal application been made at around 1 May 1998.  The events following the further decision and letter of Vincent on 17 March 1999 and in particular the resolution of Council on 23 May 2000, in my finding, do not provide a sufficient basis for any other view of the probabilities, if the matter is considered in the light of circumstances prevailing at 1 May 1998 and thereabouts.
76		There is a further telling consideration which further strengthens the findings I have just expressed and those made earlier to similar effect.  On a formal development application, rather than the strange and informal basis upon which this issue was raised before Council on 23 May 2000, the probabilities favour the view, in my finding, that Council can be expected to have paid greater regard to its legal powers had there been reason for Council to contemplate the rejection of the application.  I have noted the advice received by Vincent in May 2000.  There is nothing radical or novel about that advice.  It reflects the well known decision in this context of the House of Lords in Marshall v Blackpool Corporation [1935] AC 16 where, at 22, Lord Atkin, Lords Worrington of Clyffe and Lord Thankerton concurring, observed that subject to express statutory provision:
"The owner of land adjoining a highway has a right of access to the highway from any part of his premises …  The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway."
In respect of the particular question in that case his Lordship continued at 23:
"Plainly the Corporation may consider the nature of the proposed user in order to judge how the way should be constructed, both as to surface and kerbing and in relation to the gradient.  If the actual works, either by the steepness of the gradient or the depth of the side kerbing, would be likely to affect the safety of pedestrians on the footway or of vehicles on the roadway, there seems to me no reason why they should not take those factors into account.  But in my opinion they are not entitled to take into account questions of safety and convenience of the public except in so far as affected by the nature of the works.  They may not therefore take into account the nature and extent of the proposed user of a communication in itself safe and sufficient for that user."
77		Before me the plaintiff contends the relevant regulation noted in the legal advice to Vincent should be construed as not merely authorising the regulation of access to and from private land to public thoroughfares but also so as to authorise the abrogation of the ancient common law right reaffirmed in the decision of Marshall v Blackpool Corporation.  Given the terms of the regulation and of the Act, that is not an obvious conclusion.  There is no reason, however, for me to express a concluded view on a matter of such wide significance when it arises as a mere side-wind in this case.  It is sufficient to note that it is not suggested that Vincent, whether by its officers or Council, had any contrary understanding of its legal powers and, further, I accept from the evidence of Mr Klyne that this advice accords with the prevailing understanding in local government circles.  On the hypothesis being considered, and despite an opinion in evidence to the contrary, it would be surprising to think that Vincent, in a formal decision on an actual development application, would ignore the prevailing understanding of its legal powers and the express legal advice of its solicitors, and refuse to approve a crossover to allow access to Lot 116.  In my finding, that occurred on 23 May 2000 because of the theoretical basis on which the issue was posed for Council, and because of the plaintiff's express urging that Council should decide against access being allowed to his land.  In the absence of such remarkable circumstances, and in particular in the case of an application by a hypothetical purchaser on or before 1 May 1998 or about that date, in my finding the probabilities are strong indeed that Council would not ignore a prevailing legal understanding or come to a decision contrary to specific legal advice as to its powers to deal with a formal application.
78		A great deal of time and evidence was devoted to whether a crossover at the eastern end of the Newcastle Street frontage of Lot 116 complied with applicable policies and national standards.  From what has been said already it will be apparent that even though the frontage of Lot 116 was 17.96 metres in overall width before the resumption, with or without the resumed truncation, no crossover on that frontage would comply with the interim policy of MRWA applicable to a signalised intersection, as this stipulated a minimum distance of 25 metres from the intersection to a crossover.
The evidence of Mr Bordbar and Mr Klyne
79		Also relied on, among other standards and references, by the two traffic engineering experts who gave evidence, Mr Bordbar of BSD and Mr Klyne of Klyne Consultants, as well as witnesses such as Mr White of MfP, were two national standards -
•	Austroads, "Guide to Traffic Engineering Practice".  Part 5 - Intersections at Grade, and
•	Australian Standard 2890.1-1993 - Parking facilities.  Part 1: Off‑street car parking.
80		There is no doubt on the evidence as to the qualifications and experience of both Mr Bordbar and Mr Klyne.  Generally, their evidence did not distinguish between the position at 1 May 1998 and today, although each had regard to the intersection as now constructed.  In respect of a great deal they were in general agreement.  Both saw a crossover/driveway at the eastern end of the Newcastle Street frontage of Lot 116 as the possibility to be most seriously considered, although in particular Mr Klyne would, like Mr White of MfP, have preferred a crossover in that general location but one shared with the adjoining Lot 117.  Each gave attention to a crossover/driveway at that eastern end of the frontage of Lot 116.  Both saw the proximity to the Loftus Street intersection to be a concern.  Both accepted the wisdom of there being only a left turn entry and a left turn exit from such a crossover for Lot 116 as this minimised the traffic risks for a crossover in this location.  Both saw the value of a median strip in Newcastle Street in the vicinity of this crossover to enforce this left turn in, left turn out configuration, so that in effect, for Lot 116, Newcastle Street could be regarded as a one way street with traffic flowing only from west to east.  Both Mr Klyne and Mr Bordbar saw the retaining wall at the truncation as interfering with vision of and for cyclists and pedestrians as well as vehicles.  The lowering or removal of the retaining wall with some excavation and battering of the retained soil on Lot 116 in the vicinity of the truncation and across the Newcastle Street frontage would in the view of each of them have improved this issue.  Subject to that, both accepted that there was no problem of visibility of and for vehicles approaching Lot 116 in Newcastle Street from west of the intersection with Loftus Street, or travelling north in Loftus Street to turn right into Newcastle Street at the intersection (there is a right turn arrow to facilitate this at the traffic signals).
81		There was some difference of opinion between Mr Bordbar and Mr Klyne as to the width of a crossover which would be required to comply with AS.2890.1-1993 in that location to service a two storey office development with undercroft parking for up to 18 vehicles.  There was some difference of approach between them as to the class of use, and therefore the category of driveway, into which such a development would come for the purposes of the national standard.  A class 1 use, and therefore a category 1 driveway, would require a driveway and crossover width of 3.0 to 6.0 metres for a combined entry and exit driveway, whereas for a class/category 2 a combined entry and exit width of 6.0 to 9.0 metres is stipulated.  Nevertheless, in the end, I understand both Mr Bordbar and Mr Klyne to accept that a development of this nature would most probably be regarded as a class/category 1, requiring therefore a category 1 driveway width of 3.0 to 6.0 metres.  Table 1.1 provides examples of the classes, although the footnote emphasises that the examples are not rigid classifications.  While Mr McLeod for the plaintiff sought to argue that in view of some of the uses of Lot 116 that were permitted under the Vincent Town Planning Scheme zoning tables, the contemplated development might come within a class/category 2 (or even 3), I am satisfied on the evidence and find that for an office development with parking for less than 25 cars, class/category 1 would be considered appropriate by Vincent and the other approving authorities MRWA and MfP, that is a driveway/crossover width of 3.0 to 6.0 metres would comply with the standard.
82		There was then a difference of opinion between Mr Bordbar and Mr Klyne as to the width that would be appropriate within the range of 3.0 to 6.0 metres.  Clause 3.2.2 of the Standard suggested "as a guide" that where there were more than 30 vehicle movements in a peak hour a minimum width of 5.5 metres would be appropriate.  But the evidence does not satisfy me that such a movement frequency is to be expected for a development of the type contemplated especially as, at the most, 18 car bays can be provided on this site.  The expert evidence as to an appropriate width within the range of 3.0 to 6.0 metres ranged from 4.5 metres to 5.5 metres as adequate for vehicles entering and leaving to pass safely.  It will be apparent from this the standard is by no means absolute in its prescription and in this respect expert opinion differed as to its effect and application.  It is fair to conclude that the witnesses generally accepted that the wider the crossover, within the range of 3.0 to 6.0 metres, the easier, quicker and safer it would be for vehicles using it to enter or leave Lot 116.
83		Where opinions seriously differed, however, between Mr Bordbar and Mr Klyne, was over the intended meaning and application of par 3.2.3 and figure 3.1 which illustrated the prohibited location of driveways, and figure 3.2 which illustrated the sight distance requirements at car park exits.  Footnotes to figure 3.2 provided a cross-reference to the Safe Intersection Sight Distance and the Approach Site Distance as set out in the Austroads Standard mentioned earlier, which was the source of the Desirable and Minimum Sight Distances along the frontage road set out in figure 3.2, and the difference of opinion between the expert witnesses carried over to that document.
84		The point of all of this difference is in essence two-fold.  The first issue was whether a crossover which complied in width with the requirements of the standard would intrude into the prohibited area for which figure 3.1 provided, which is a distance of 6 metres from the truncation point of the intersection.  The second was the sight distance required in respect of south bound traffic in Loftus Street which was turning left into Newcastle Street to travel to the east.
85		As to the first issue, Mr Klyne had measured that there was 10.7 metres from the truncation point to the eastern boundary of Lot 116 which left 4.7 metres for a crossover clear of the 6 metre prohibited area.  In his view, a driveway width of 4.5 metres was adequate in this situation and complied with the width requirements of the standard.  Hence, he was satisfied that there need not be an infringement of the standard were a driveway and crossover to be located at the eastern end of the Newcastle Street frontage of Lot 116, that driveway and crossover having a width of 4.5 - 4.7 metres.
86		It is accepted by the parties that surveyors for each party had measured 10.81 metres and 10.46 metres, respectively, from the tangent point of the intersection to the eastern boundary of Lot 116.  It is to be noted in this respect that the tangent point is where the edge or kerb of the paved road changes from a straight line and commences to curve around the intersection corner.  It is easy to accept, therefore, the observation of one of the surveyors that the tangent point is hard indeed to determine and could be any one of a number of points in the present concrete kerb between 10.81 metres and 10.46 metres from the eastern boundary of Lot 116.  Further, I accept from the evidence that, as designed the tangent point should be a distance of some 0.5 metres or more further from the eastern boundary of Lot 116, but as the kerb was in fact formed during construction the kerb differed from the design drawings to a small degree sufficient to move the tangent point that distance.  Given the evidence, I see no reason not to accept Mr Klyne's measurement of 10.7 metres.
87		That leaves the difference of expert opinion as to whether a 4.5 ‑ 4.7 metre width of crossover/driveway is adequate and would comply with the requirements of the standard.  As the actual applicable stipulation of the table in the standard is 3.0 - 6.0 metres for a combined entry exit driveway there is obviously technical compliance with the standard.  The nature and object of the standard, however, is to provide a guide for design purposes and it is a matter of professional and approving authority judgment what width is appropriate within the range stipulated by the standard.  In this respect that judgment will be affected by a number of variables, the effects of which are imprecise.  There is no doubt on the evidence that, within the stipulated range, a wider rather than narrower crossover/driveway would be preferable.  Elsewhere in these reasons I have noted that a 5.0 metres driveway would normally be considered adequate.  On the other hand I accept that two vehicles can enter, exit and pass on a 4.5 metre wide crossover/driveway although a greater width would better facilitate turning in and out.  In my finding it has not been established by the plaintiff that a crossover/driveway width between 4.5 - 4.7 metres would fail to satisfy the standard AS.2890.1-1993 in this situation.
88		I should add that the further requirement of par 3.2.3 that the minimum distance at signalised intersections should be increased to locate a driveway beyond the influence of normal queue lengths of traffic at the intersection is satisfied in this case because, as the standard suggested, where that is not practicable "it may be necessary to provide an arrangement which confines traffic to turning left when either entering or leaving the carpark".  That has been invoked in this case by the requirement for a median strip in Newcastle Street to ensure this.
89		It should also be emphasised that while much attention was paid to the present concrete kerbing layout in this respect, that kerbing was not laid until 1999, well after the relevant date.  At the relevant date only the intended design could have been known and it is not altogether clear whether the actual kerbing design would have been finalised by 1 May 1998.  According to the design, in my finding, a crossover/driveway width of greater than 5 metres could be provided without encroaching into the 6 metre prohibited area of figure 3.1 because, as noted earlier, the actual design allowed for a distance from the truncation point to the eastern boundary of Lot 116 which was greater than the 'as constructed' distance.
90		All of this detailed evidence and submissions detracts from the fact that it was open to Vincent and the other approving authorities, of course, to require a wider crossover/driveway which encroached within the 6 metre prohibited area identified in figure 3.1 despite the standard.  This would allow entry and egress to Lot 116 to be easier and therefore quicker and safer.  In this regard a wider crossover/driveway which encroached within the 6 metres had become the preferred view of Vincent when it confirmed its approval in principle of a crossover on 17 March 1999.  And this may have been Vincent's position in September 1997 when it stipulated that a driveway should be 12 metres from the western boundary of Lot 116, ie allowing for a crossover/driveway of up to 5.96 metres.
91		It is also contended for the plaintiff that turnouts should be provided where a crossover meets the roadway to facilitate vehicles entering and leaving.  Turnouts are depicted on the 1999 Concrete Crossover Standard Drawing of Vincent.  There is no evidence of such a standard drawing as at 1 May 1998.  It is further contended that turnouts are required to be confined within the prolongation of the boundary of Lot 116, a requirement that would necessitate the crossover/driveway being moved away from the actual boundary so as to accommodate the eastern side turnout within the prolongation of the boundary.  If that were so, it would necessarily reduce the width of crossover/driveway that could be accommodated clear of the 6 metre prohibited area identified in figure 3.1 of AS.2890.1-1993.  The problem with this contention is that any requirement for turnouts on a crossover in Newcastle Street is a self-imposed requirement of Vincent.  The only evidence of a requirement in May 1998 for turnouts to be within the prolongation of the boundary of the land being served by the crossover is an MRWA internal policy which has no application to Newcastle Street.  It is not established, in my view of the evidence, that there was then an external requirement, or even a self-imposed policy of Vincent, to that effect.  Even if there were, it is a requirement that Vincent could waive or vary.  This was clearly contemplated in my finding by the informal approvals of Vincent in September 1997 and 17 March 1999 and none of the evidence as to the Vincent's further consideration of the issue in May 2000 indicates that turnouts were seen as relevant or material.  It is to be noted that turnouts are located at the roadway edge on the road reserve, not on private property, so there is no legal reason why turnouts could not be provided for a crossover/driveway located immediately adjacent to the boundary of the land to be served by the crossover.  Further where two crossovers/driveways abut each other there is no practical need for a turnout on the mutual boundary.  In my finding any standard turnout policy or requirement, if there were one, would not preclude a crossover/driveway immediately adjacent to the eastern boundary of Lot 116.
92		As to the second issue, sight distances for south bound traffic in Loftus Street turning left into Newcastle Street to travel east, is the subject of the strongest difference of professional opinion between Mr Bordbar and Mr Klyne.  On Mr Bordbar's reading of AS.2890.1-1993 and the Austroads Standard there must be a minimum sight distance of 55 metres of and for traffic approaching from the west along Newcastle Street, the "frontage road" for the purposes of applying figure 3.2 of AS.2890.1-1993, to the centre line of a crossover/driveway at the eastern end of the Newcastle Street frontage of Lot 116.  As the Loftus Street intersection commences well within 55 metres from a crossover in that position it is Mr Bordbar's view that no crossover in the contemplated position can comply with this standard.  Mr Klyne, on the other hand, reads and applies AS.2890.1-1993, together with the source Austroads Standard, as applying to distance travelled by a vehicle approaching a carpark exit (crossover) and the stopping distance of such a vehicle.  Hence, he measures the minimum sight distance along the actual track of a vehicle turning left from Loftus into Newcastle Street, rather than in a straight line along Newcastle Street.  Further, because of footnotes 4, 5 and 6 to figure 3.2, Mr Klyne applies the more detailed provisions of par 5.2.2 - 5.2.4 of the source Austroads Standard, rather than the abbreviated extracted table in figure 3.2, to determine the required minimum sight distance.  On this basis Mr Klyne's calculation uses the 85th percentile speed of vehicles turning left around the rather tight left hand corner from Loftus to Newcastle Streets, rather than the posted speed limit of 60 kmh.  It is on this basis that Mr Klyne concludes, in effect, that, subject to the frontage design and setback of an office development on Lot 116, the sight distance of and to a vehicle turning left from Loftus Street to the contemplated crossover/driveway would meet the requirements of AS2890.1-1993 and the Austroads Standard.
93		The most critical point of difference between Mr Bordbar and Mr Klyne is whether a minimum sight distance along Newcastle Street, or one which follows the actual track of an approaching vehicle, is required.  There are logical arguments in favour of each viewpoint.  Different professional viewpoints are held by these two competent and honest experts.  The fundamental problem is that neither standard deals with this particular case.  Figure 3.2 does not deal with a carpark exit in proximity to an intersection, and the Austroads Standard is dealing with intersections, not carpark exits or crossovers.  It is not a matter of construing the standards.  The difference of expert opinion concerns how best to adapt and apply standards that deal with other situations, to the present case.  I cannot resolve this difference.  It is one over which competent experts differ.  Should it be material, I am unable to conclude that Mr Bordbar's opinion is correct that no crossover in the contemplated position can comply with AS.2890.1-1993 or that Mr Klyne's opinion is wrong.
94		Relevant to Mr Klyne's opinion is the setback and frontage design of an office development on Lot 116 as the precise treatment of the south west corner of the development and its setback from Newcastle Street and the land and retaining wall configuration in that corner could affect the available sight distance.  It was his opinion that the design for a development proposed by Mr Oakley, which had a step-back configuration at the south west corner, even if the office block was setback only 7.5 metres from the existing front boundary, would allow a minimum sight distance which met the requirements of AS.2890.1-1993.  Were such a design required to be set back 9.0 metres by the building requirements, or 11.0 metres by virtue of the 2 metre MRS reservation along the Newcastle Street frontage of Lot 116, the sight distance available would be much greater.  I note, however, that Mr Klyne may not have had adequate regard to the external steps to the south west corner entrance contemplated by Mr Oakley's proposal, but this is a matter of precise design detail and there are a number of obvious ways to overcome that detail.  That reservation may affect a development set back only 7.5 metres from the Newcastle Street frontage, but probably not a 9.0 metre setback development and certainly not an 11.0 metre setback development.
95		As indicated earlier, Mr Klyne's opinion, in my understanding, was also premised on the reduction in height of, or the removal of, the retaining wall associated with the truncation, with some consequent excavation or battering of the natural elevated ground of Lot 116 across its frontage and its SW corner to ensure uninterrupted views to and from pedestrians, cyclists and vehicles approaching from the north along Loftus Street to turn left into Newcastle and travel towards the east.  That would also improve the view of and to vehicles etc approaching from the west in Newcastle Street.  For reasons discussed later that would not be of concern to a hypothetical purchaser as any office development of Lot 116 considered by a hypothetical purchaser would readily accommodate excavation and battering of the frontage and truncation and the removal or lowering of the retaining walls.  Further, in my finding, any such lowering or removal would receive the ready approval of Vincent, MfP and MRWA.
96		In this last respect I note but reject the submission in closing of the plaintiff that any consideration of sight lines should be dealt with on the basis that the MRWA retaining wall in the vicinity of the truncation was in place and is the property of MRWA and there is no evidence from MRWA, or from Vincent or MfP, that consent would be given to its removal and lowering.  At once it must be noted that the retaining wall did not exist as at 1 May 1998.  Only the plaintiff's retaining walls were in place at the time of the taking.  That negates the submission.  Further, the MRWA retaining wall was not constructed until about a year after the taking and then only at the plaintiff's insistence as to its positioning outside Lot 116 and following the refusal of the plaintiff to allow any battering of Lot 116 to improve sight lines.  And in any event, as a matter of fact, while the question of consent to removal or lowering was not expressly raised, the whole tenor of the history of the MRWA retaining wall and of the evidence relating to the attitude of MRWA, Vincent and MfP gives rise to the clear inference, as a matter of probability, that all three authorities would strongly favour the removal of the retaining wall, or its lowering, because by such means the safety and visual amenity of the intersection would be improved.
The position as at 1 May 1998
97		More fundamentally, however, much of this has little relevance to the issues in this case.  The events of 1999 and 2000 significantly post date the relevant date for the purposes of compensation, ie 1 May 1998.  For the reasons indicated, the events from June 1999 when the plaintiff retained BSD and commenced lobbying against approval of crossover access to his own property are of no real assistance to a determination of what would have been approved in 1998 or, more pertinently, what would have been the understanding of a hypothetical purchaser of Lot 116 as at 1 May 1998 about the prospects of approval of crossover/driveway access to Lot 116, after the resumption, suitable for a two storey office development with undercroft parking for up to 18 vehicles.  The events between 1 May 1998 and 23 May 2000 are only of limited relevance, a relevance which diminishes with time and significantly so from June 1999 for the reasons indicated.  In my finding, nevertheless, as indicated these events served to confirm that the informal approval in principle of a crossover by Vincent in September 1997 was not a mere aberration and remained in substance the position of Vincent long after 1 May 1998 and indeed into 1999.
98		In my finding, there is no reason to think that on or before 1 May 1998 a hypothetical buyer would have retained expert traffic engineers to consider the theoretical application of relevant policies and standards with a view to assessing the safety aspects of vehicular access to Lot 116.  In my finding, a hypothetical buyer, on or before 1 May 1998, being aware that Lot 116 had no existing vehicular access, would have dealt with the issue practically and as the purchaser would have seen it, authoritatively, by approaching the relevant approving authorities.  In this case that is Vincent, MfP and MRWA.  As a consequence, in my finding, as indicated earlier, a matter of very clear probability, a hypothetical buyer would have been informed that the September and October 1997 approval in principle by each of those authorities remained their respective current positions (subject only to the median strip issue as indicated earlier) and that, the resumption notwithstanding, there had been no further development which would cause any of these three authorities to change its position were a formal application for approval to be made.  In my finding, the probabilities are clear, indeed quite compelling, that these enquiries would satisfy a hypothetical purchaser that vehicular access suitable for a two storey office development with basement parking for up to 18 vehicles would be approved at the eastern end of the Newcastle Street frontage of Lot 116.  At the most, in my finding, it is possible that as at 1 May 1998 a hypothetical purchaser, who was extremely cautious, might make it a condition of an offer to purchase Lot 116 that approval for such access be obtained within a reasonable time, in which event, in my finding, the probabilities are very clear that the condition would have been satisfied.
99		Implicit in these findings is my acceptance from the evidence that as a matter of law and ordinary practice of Vincent, MfP and MRWA, at all material times approval of a crossover/driveway for vehicular access was not governed by the strict application of existing MRWA policies or national standards, at least in established areas such as the present case is concerned with.  Each of these authorities was well aware of the existing policies and national standards but it is apparent from the evidence that where compliance with them was impractical or impossible their requirements could be and were moderated or waived.  In my finding, the approvals in principle by Vincent, MfP and MRWA to the plaintiff's request for approval of a crossover in September/October 1997 and Vincent's position in March 1999 demonstrate this approach as a matter of routine by each of those authorities.  The most practical solution was found despite obvious non-compliance with MRWA policy, and other measures contemplated by way of condition were obviously designed to deal in a practical way with road safety concerns.  For this reason alone, questions as to the strict interpretation and application of existing policies and standards, matters which featured so much in the evidence and submissions, are in truth not determinative of the issues in this case.
100		I would also stress that it is not for this Court to decide whether an intersection or a crossover/driveway is safe or not, although this was a trend of some of the submissions.  In this case, the primary issue is whether a hypothetical purchaser of Lot 116, on or before 1 May 1998, would have regard to the question of vehicular access to Lot 116 following the resumption and, if so, what influence might that issue have had on the price at which agreement for the sale of the land would have been reached on 1 May 1998 between a hypothetical purchaser and a hypothetical seller of the type identified in the authorities cited earlier.
101		For the reasons given, in my finding, a hypothetical purchaser 1 May 1998 would have been satisfied that following the resumption:
•	Approval for satisfactory two-way vehicular access to Lot 116 by means of a crossover/driveway at the eastern end of the Newcastle Street frontage would be obtained on formal application for development approval of a two storey office development with undercroft parking for up to 18 vehicles; and in particular that
•	Such approval would be conditioned inter alia to require left turn entry from and exit to Newcastle Street.
102		For these reasons the plaintiff has not established that as at 1 May 1998 vehicular access to Lot 116 was not possible or that it could not or would not be approved for safety reasons or that a hypothetical purchaser would hold such views.  As indicated, my findings are to the contrary.  I would add that despite what has occurred in 1999 and 2000 at the instigation of the plaintiff, the evidence suggests that if the matter is properly pursued approval for a two-way crossover at the eastern end of the Newcastle Street frontage of Lot 116, suitable for a two storey office development with basement carparking, may well prove to be achievable even now, although that is strictly beside the point for the purposes of this case.
Value of land resumed
103		I turn now to the value of the land resumed.  The land taken was just 18 square metres.  The plaintiff's interest was that of registered proprietor of an estate in fee simple.  There is also a question as to the value, if any, which should be attached to the duplex dwelling on the site.  For reasons which are detailed later, and because the highest and best use of the land involves the demolition of any improvements on Lot 116 with a view to the construction of a modern office development, I will proceed on the basis that a hypothetical vendor, as well as a purchaser, would attach no value to the duplex dwelling as at 1 May 1998.  Further, for reasons which are given later the duplex dwelling had no special value in the relevant sense to the plaintiff at that date.  This issue only arises incidentally for the purposes of valuing the land resumed, as the resumption did not affect that part of the land on which the duplex dwelling was constructed.  It is not contended that any value should be attached to the plaintiff's retaining walls which in May 1998 were constructed to retain Lot 116 on its southern and western boundaries.  There were and are also retaining walls on the eastern and northern boundaries but these retain neighbouring land which is higher in places than Lot 116; the evidence does not make clear whether these walls are on Lot 116 or the neighbouring land or partly on both and no particular issue attaches to that.
104		At this point I would record my finding on the evidence that neither Lot 116 nor the 18 square metres taken had at any relevant time any special value to the plaintiff.  Hence, the value to the plaintiff of the land taken was as part of the remainder of Lot 116.  The highest and best use of Lot 116 being, as at 1 May 1998 and now, as a development site for an office development.
105		The parties and all relevant witnesses agree that the most reliable guide to value of the resumed land is provided by the market value of comparable vacant land.  By that means, the market value of Lot 116 as a vacant lot as at 1 May 1998 may be determined, that being reduced to a value per square metre and applied directly to the 18 square metres taken.
106		That is where the difficulty commences.  It has proved extremely difficult to find comparable land that exchanged hands within a reasonable time of 1 May 1998, whether vacant or improved land.  It has been necessary, therefore, for the expert valuers to identify sales of land of varying degrees of comparability, which sales occurred over quite a period of time before and after 1 May 1998, but which nevertheless, in the opinion of the valuers, are sufficiently similar to warrant placing reliance on the sales as a guide to the market value of Lot 116 as at 1 May 1998 in accordance with the Spencer hypothetical sale test; Brewarrana Pty Ltd v Commissioner of Highways (No 1) [1973] LGRA 170.  Where sales of improved land have been relied on that has led to the further difficulty, of course, of assessing and making a deduction for the value of the improvements to arrive at a comparable land value, and of course there is the need to make appropriate adjustments to compensate for the differences between the land the subject of another sale and Lot 116 and of determining and making appropriate corrections for time so as to produce a value as at 1 May 1998.  As was observed in Crompton v Commissioner of Highways (1973) 32 LGRA 8 the comparability of sales of land involves the consideration of contemporaneity, topography, zoning, size, proximity, utility, position, potential, site coverage and development controls.  While that is not necessarily an exhaustive listing it provides a useful reminder of the range of issues that can effect comparability in this context.
107		Three expert valuers gave evidence, Mr McMahon and Mr Logan for the plaintiff and Mr Richmond for the defendant.  Each one of these differed considerably in the selection of appropriate sales, in the value ascribed to particular improvements, and in the other adjustments necessary to achieve comparability, including comparability of time.
108		As has been indicated earlier, all valuers did agree that the highest and best use of Lot 116, as at 1 May 1998, as it had been before then for many years, and as it is still today, was as a development site for commercial offices.  At times this use was expanded by one or more witnesses to specifically include consulting rooms which was a use open under the applicable town planning scheme, and that remains the position today, but there is nothing to suggest that such a use would involve any greater value than for offices.  The general effect of the evidence is that a building designed for offices may well equally be let and utilised as consulting rooms.  In these reasons I will refer to an office development which is intended to include any particular use to which such a development might properly be put, including consulting rooms.
General Locality
109		As at 1 May 1998 Lot 116 was in an area of very mixed development.  Much of the land on the north side of Newcastle Street to the east of Loftus Street, and further to the north of that area, was utilised for long established residences, few of them of any particular distinction, with other uses occasionally interspersed.  For example, the adjoining lot was used as a small day hospital or out-patient clinic by the Health Department, although the design and scale of the buildings is in keeping with the residential area.  There is a block of flats some doors to the east.  On the south side of Newcastle Street in that vicinity, to the east of Loftus Street and immediately further to the south, the use pattern is much more varied with a number of workshops and other industrial properties as well as some show rooms and assorted commercial developments including offices.  A few of these are relatively recent developments but most are of long standing.  There are also some old homes.  Quite a distance to the east Newcastle Street intersects with Charles Street which provides access to the freeway to the south, and even further east in Newcastle Street there are the intersections of William and Beaufort Streets which, in turn, provide access to and from the central city area of Perth which is some distance to the south of Newcastle Street.  Lot 116 may therefore be said to have relatively direct road access to the city, but it cannot be said to be obviously close to the city.  On the west side of Loftus Street north of Newcastle Street the immediate area is generally residential, but along Newcastle Street itself and also to the south of Newcastle Street the use is more predominantly that of a mixed commercial usage, including offices, shops and workshops in each case both modern and old.  A little further to the west of Loftus Street, Newcastle Street runs into the Carr Place and the Oxford Street commercial and shopping precinct quite close to the intersections of Carr Place and Vincent Streets with Oxford Street, which I will refer to as the Oxford/Vincent precinct.  This is a very active, well patronised, precinct which offers a wide variety of services and facilities.  By comparison with the vicinity of the intersection of Loftus and Newcastle Street, the Oxford/Vincent precinct is much more developed and is a centre of greater commercial activity and prosperity even though it is further from the central city area.  A number of the sales relied in the evidence are in the Oxford/Vincent precinct.
110		To the south of Newcastle Street an overpass carries Loftus Street over the Mitchell Freeway and over the northern suburban railway line.  These, in combination, provide a clear physical barrier and impediment to the north-south movement of traffic and pedestrians except at special locations such as Loftus Street.  A little further south of the overpass Loftus Street also crosses over the Fremantle suburban railway line which passes beneath Loftus Street in a cutting at the Thomas Street railway bridge.  At this point Loftus Street becomes Thomas Street which then continues to the south.  The Fremantle suburban railway line provides a further clear physical barrier and impediment to the north-south movement of traffic and pedestrians except at special locations such as Thomas Street railway bridge.  Between the two railway lines and to the west of Loftus Street is an area of the suburb of Leederville mainly comprising mixed older housing and older commercial developments but which in May 1998 and since then has been in the process of giving way to more extensive mixed commercial use, some of it in converted older houses but increasingly in modern buildings.  A number of the sales relied on were in this area which I will generally refer to as the Southport/Harrogate area.
111		South of the Thomas Street railway bridge and the east of Thomas Street there are two further areas from which a number of sales were used by the valuers who gave evidence.  Running toward the east and generally at right angles to Thomas Street are further significant thoroughfares which connect directly into the central city.  These are Wellington, Murray and Hay Streets, and well to the south, Kings Park Road.  Like Newcastle Street in the vicinity of Loftus Street, these areas south of the railway lines and to the east of Thomas Street are all in the suburb and postal area of West Perth.  A great deal was made of this in the plaintiff's case, in particular by Mr McMahon, as a significant feature which he suggested added much to the desirability of Lot 116 over land in the Oxford/Vincent precinct or in the Southport/Harrogate area, and thereby enhanced its value in the opinion of Mr McMahon and Mr Logan above the land in those areas, particularly for an office development.  Having regard to the whole of the evidence I am unable to accept this.  It is my finding that there is little direct comparison for relevant purposes between Lot 116 and its surroundings, and that part of West Perth which is between Murray Street and Kings Park Road which is an extensive, highly regarded, very well developed and maintained area, well served with wide attractively maintained and treed streets, containing a range of successful commercial developments including modern offices and well maintained large older residences used for a variety of commercial purposes such as offices, consulting rooms and restaurants, but also with a considerable continuing use as a higher class residential locality.  It is an area very well served by direct road and public transport systems to the central city which is relatively close to the east, and offers a wide range of facilities.  To the north of Murray Street and in particular between Wellington Street and the Fremantle railway I accept from the evidence that the general appearance of the locality and the prevailing nature of the development is less attractive than that to the south of Murray Street, even though it is also part of West Perth.  It is in the process of gaining in popularity and in particular in the last year or two it is increasingly attracting some modern development or the adaptation of older residences to other uses such as offices.  Even so, in my finding on the evidence, while the well established commercially attractive area of West Perth to the south of Murray Street may be seen to be spreading, so that there is now a growing demand to the north of Murray Street into the area between Murray Street and the Fremantle suburban railway, there remains in my finding a marked distinction between each of those areas.  There is a further marked distinction between the area north of Murray Street and south of the railway and the area in the vicinity of Lot 116 which is further to the north and separated from the rest of West Perth by two railway lines and a freeway.
112		In general terms, I find from the evidence that the area in the vicinity of Lot 116 is, for relevant purposes, inferior to the area of West Perth between Murray Street and the Fremantle suburban railway, and not comparable in any relevant sense to the area of West Perth to the south of Murray Street.  Further, given the location of Lot 116, the postal address of West Perth has not been shown, in my finding, to offer anything but a nominal attraction for the purposes of the attractiveness of Lot 116 for a commercial office development.  I accept from the evidence that the most compelling attraction of Lot 116 is that it now occupies a somewhat commanding position at the intersection of two quite busy thoroughfares, Newcastle and Loftus Streets.  The site tends to stand out, particularly for north and south bound traffic in Loftus Street, and some views of the surrounding locality and even views of the central city skyline could be anticipated in particular from the upper level of a two storey office development with an undercroft parking level.  I note, because of its relevance to later issues, that these views and the commanding nature of the position of Lot 116 would be little affected for the purposes of an office development if there were some excavation to lower Lot 116 to close to the level of Newcastle Street.  At present it stands, at its highest point along the Newcastle Street frontage, some one and a half metres above the Newcastle Street level.
113		These features, together with its reasonable proximity to the city centre, the freeway, and the Oxford/Vincent precinct, indicates, in my finding, that Lot 116 would have been of some interest in the market as at 1 May 1998 as a location for commercial offices and in particular could suit an owner/occupier.  It must be noted, however, that by virtue of the small size of the land, 658 square metres before the resumption and 640 square metres afterwards, clear limitations existed for the size of an office development.
114		While there are differences between the locality in which Lot 116 stands and both the Vincent/Oxford precinct and the Southport/Harrogate area I am not persuaded on the evidence to accept that there is any significant or clear advantage for relevant purposes for Lot 116 and its locality.  In my finding, while it enjoys quite a commanding position in its locality, that locality is not obviously superior to either of the other localities which I have mentioned and from which many sales are drawn.  Greater attention is necessary, of course, to the attributes of particular sales when a comparison is made for present purposes but I am not able to accept the opinion in particular of Mr McMahon, and also to some extent Mr Logan, which would place the other two localities as inferior.
Expert Opinions
115		Mr McMahon for the plaintiff offered the opinion that as at 1 May 1998 the unimproved land value of Lot 116 was some $492,750 which is equivalent to $750 per square metre.  Hence, in his opinion, the value of the 18 square metres taken was 18 x $750, which he rounded to $13,500.
116		Mr Logan for the plaintiff was of the opinion that the market value of Lot 116 was at 1 May 1998 some $460,600 which is equivalent to $700 per square metre, so that in his view the value of the land taken was $12,600.
117		Mr Richmond for the defendant was of the opinion that the market value of Lot 116 was $362,000 as at 1 May 1998 which is equivalent to $550 per square metre.  If that figure is applied to the 18 square metres taken the value of the land taken is $9,900.  In his report and evidence, however, Mr Richmond took a different approach to the value of the land resumed and he included in his assessment an allowance for injurious affection which he calculated by a comparison of value before and after the resumption.  Hence, he offered the opinion that the "compensation value" of the land taken, which on his approach included an allowance for injurious affection, was $45,000.
118		The other two valuers treated injurious affection as an entirely separate item of calculation.  In my view, this is more appropriate and I will take the same approach.  I will deal with the question of injurious affection later in these reasons.  For present purposes, therefore, the three valuers offered the opinions that the actual land value at the time of resumption was $750, $700 and $550 respectively per square metre.  Each reached these respective views on the basis of comparative sales.
119		There is no basis on which I would distinguish between the three expert valuers with regard to qualifications or experience.
120		It proved to be a characteristic of the hearing of this case that the very many factual issues in dispute were the subject of extensive detailed evidence and of detailed, often painstaking, cross‑examination and re-examination.  This was certainly the position in respect of the valuation evidence.  Rather than attempt to review in detail the very many days of evidence devoted to this issue, and all the detailed nuances that were explored, I propose for the most part to confine myself to a statement of the main impressions I had of each witness and his evidence, and the conclusions to which I have come.
The evidence of Mr McMahon
121		Mr McMahon was retained by the plaintiff in 1997.  He was retained not only to value Lot 116 and the resumed land, but also to negotiate for the plaintiff.  His role as a negotiator clearly expanded to include that of constantly advising the plaintiff and becoming involved in the tactical planning of what came to be something of a campaign involving much political and other lobbying.  The extent of Mr McMahon's involvement is somewhat surprising and his influence in certain events is clear, particularly in respect of many of the plaintiff's decisions between 1997 and the trial.
122		From as early as 8 July 1997, in a letter he wrote to the plaintiff, and thereafter, as is evident in letters sent to MRWA, to members of Parliament, to the Minister for Transport and to the Premier, and from his evidence, it is clear that from the outset of his being retained by the plaintiff Mr McMahon held very strong and at times somewhat strongly expressed personal views against MRWA and the valuers and negotiators which it had retained for the purposes of dealing with the plaintiff.  Mr McMahon seems to have regarded himself as pursuing something of a crusade.  At one stage in his evidence he revealed that he had not been prepared to advise the plaintiff to accept anything less than what Mr McMahon regarded as a "fair and reasonable offer", by which he meant the "best possible figure I thought open", with any doubtful issues always being resolved in favour of his client.  Unfortunately, in my finding, in a number of respects Mr McMahon's views have not been shown to be sound, let alone fair and reasonable, when viewed objectively.  The manner in which he gave evidence and its content were often of concern.  All too frequently his apparent concern was to contrive to extend his answers to questions so as to advance every possible viewpoint which might favour the plaintiff's interests, or damage the defendants.  At times, my clear impression was that he was evasive over issues that didn't suit the cause he was advancing, or simply "too smart" and unconvincing in his dismissal of such issues.  Over more than one significant issue I was left with the concern that his evidence lacked honesty.
123		By virtue of the extent and nature of his involvement, the tenor and substance of his personal views, the content of some of his evidence, and the manner in which he gave it, I have come to the clear but regrettable view that, consciously or unconsciously, Mr McMahon had become too closely involved as an advocate for the plaintiff's cause with the result that, in many matters, his attitude and evidence lacked that quality and degree of impartiality which is appropriate in an expert and which is necessary if the Court is to be able to have confidence in his opinion and rely on it.
124		While Mr McMahon advanced the opinion that Lot 116 had a market value of $750 per square metre as at 1 May 1998, he based this view on sales of 15 lots, of which seven sales occurred between March 1999 and February 2000.  While subsequent sales may be of some value for this purpose, especially where they reveal or confirm a value or trend which was emerging and perhaps not entirely clear at the valuation date, their value becomes increasingly suspect the further they are after the valuation date.  In the present case the predominance of sales chosen by Mr McMahon so long after the valuation date, especially in what I find to have been a variable but rising market, and the degree of reliance he placed on them, appears to me to have had the effect of inflating the land value for Lot 116 at which Mr McMahon arrived, and to do so to an extent for which adequate provision was not made by the adjustments attempted by Mr McMahon.  Almost all the sales on which he relied were of improved land and in many cases his opinions as to the value of the improvements were quite at variance with the opinions of other valuers and his justification for his figures impressed as unsatisfactory and less convincing than the other valuers.  In these cases the improvements appear to me to have been undervalued resulting overall in a higher value than was justified for the land component.  Further, Mr McMahon placed particular emphasis on the significance of the West Perth address of Lot 116 when adjusting sales from the other localities of West Perth, and the Southport/Harrogate area and the Oxford/Vincent precinct to achieve what he regarded as comparability with Lot 116.  In my view, this factor was over valued by Mr McMahon; see the discussion of this issue earlier in these reasons.  This factor also led to an overvaluation of the land value of Lot 116 which Mr McMahon advanced as his opinion.
125		While all valuers acknowledged the difficulty of finding other sales that were sufficiently comparable to provide a reliable indication of the land value of Lot 116, even with adjustments, overall it is my impression that Mr McMahon's sales were not as well chosen for present purposes as other sales relied on in the evidence by others.
126		While Mr McMahon made detailed adjustments for each of the 15 sales on which he relied for factors which he identified as - locality, exposure, injurious affection, planning zone, actual plot ratio, date of dealing, circumstances, land area, land shape, building improvements, chattels, etc - to arrive at an unimproved land value for Lot 116 (after allowing in each case $11,000 for the value of the duplex dwelling on Lot 116) he, nevertheless, even after that process, arrived at unimproved values for Lot 116 indicated by each of these sales which ranged between $413,000 and $613,000, a range of some $200,000.  The process of adjustment so fully detailed by Mr McMahon ought to have produced reasonably comparable values for Lot 116.  The range of $200,000 indicates, in my view, that the sales were not all sufficiently comparable and the process of adjustment undertaken was unreliable.
127		It was also of concern to find earlier opinions of Mr McMahon which were at marked variance from the value of $750 per square metre or $492,750 for Lot 116,which he advanced in evidence.  On 1 or 2 October 1998 Mr McMahon forwarded to MRWA the plaintiff's initial claim for compensation in which the primary item claimed was -
"Unaffected Market Value of whole of land taken, Injurious affection and severance is whole of land value $362,000.00."
I accept from his evidence that this claim was prepared by Mr McMahon and that for this purpose, at various times between July and September 1998, he had undertaken many hours work on sales enquiries, inspections and analysis and had made calculations for a hypothetical development on Lot 116.  In this regard he had prepared calculations in which he adopted an unimproved value of $550 per square metre for Lot 116.  This produced a rounded market value of $362,000 for Lot 116.  The figure of $550 per square metre he noted as being supported by comparable sales of between $500 and $550 per square metre.  Although prepared a little before 2 October 1998 this hypothetical development calculation was also included in a lengthy and detailed submission dated 22 January 1999 by Mr McMahon on behalf of the plaintiff to Mr Richmond of Sullivans Real Estate, one of the valuers retained by MRWA.  This letter proposed that Mr McMahon and Mr Richmond should meet and attempt to resolve the plaintiff's claim and in the covering letter he referred to the unaffected land value of Lot 116 as then being (in January 1999) approximately $370,000 "based on extensive sales evidence and hypothetical development".  
128		Despite this, in cross-examination, Mr McMahon persisted in an evasive and unconvincing manner in denying that at the time of this hypothetical calculation and when the compensation claim was submitted, which was some months after the date of the taking of the land, he held the opinion that the unimproved market value of Lot 116 was $362,000 or $550 per square metre.  He sought to suggest this was a figure he had used which was based on work he had done in 1997 and which in turn was based on earlier work of another valuer Mr Bracewell.  He had no note, however, of having made calculations for a hypothetical development or having worked on compensation value before the period July-October 1998 and his evidence failed to provide any satisfactory explanation for the many hours of work undertaken between July and October 1998, and in particular for the work over several days in September 1998 on sales enquiries and analysis.  This work, and the significance of the submission of the compensation claim for the plaintiff on 1 or 2 October 1998 - notwithstanding that it could be amended at a later date - persuades me that the figures of $550 per square metre and $362,000 were, as at 1 or 2 October 1998, Mr McMahon's opinions, based on or at least confirmed by recent assessments by him of what he then regarded as comparable sales, of the unimproved market value of Lot 116.
129		I also note that it was the evidence of Mr McMahon, when pressed, that he had no record of any work done before October 1998 showing a calculation of a higher value than $370,000 for Lot 116, this being the figure he advanced in January 1999 to Mr Richmond as being based on extensive sales evidence and a hypothetical development.
130		On 4 February 2000 Mr McMahon, in a letter to Mr Alexander of Chesterton International, the negotiator acting for MRWA, referred to a figure of $600 per square metre which MRWA valuers were advancing as the current market value in February 2000.  Of this figure Mr McMahon said it was "More aligned to the value of the land at the date of taking in April (sic) 1998."  Despite this expression of view, Mr McMahon maintained in his evidence the opinion that at the time of taking, 1 May 1998, the unimproved land value of Lot 116 was $750 per square metre.  He sought to justify his reference in his letter of 4 February 2000 to $600 per square metre as aligned to a range of sales for comparable land zone C2 in areas of West Perth and Leederville of between $500 to $1,000 per square metre.  I found his explanation for the figure of $600 per square metre quite unsatisfactory and unconvincing.  It was my impression that he was caught out by his earlier figures and tried inadequately to cover up.
131		I do accept that since February 2000 Mr McMahon has applied himself even more extensively to locating and analysing other sales of potential relevance, so that, in a sense, he is now better prepared.  As indicated earlier, however, much of this sales evidence is in 1999 and into 2000, and even though he has made some alterations to the earlier sales on which he bases the opinion he now advances, it is not demonstrated, in my finding, that he has, by further work, identified sufficiently relevant and comparable sales evidence which supports the figure of $750 per square metre or discloses that his earlier work was quite mistaken.
The evidence of Mr Logan
132		The second valuer called by the plaintiff was Mr Logan.  His evidence was based on his written report which is dated 26 February 2001.  He, too, has approached the issue of the value of the resumed 18 square metres of Lot 116 by "directly comparing sales evidence of similar type redevelopment land in West Perth and neighbouring localities, based on evidence applicable to the resumption date …  The value of the total property on an unaffected basis has been allocated on a pro-rata basis to the resumed area of 18 m2."
133		Some 13 sales, all but three being of improved land, were relied on by Mr Logan.  These were located in West Perth, the Southport/Harrogate area and the Oxford/Vincent precinct.  Eight of these sales were between March 1999 and May 2000 a factor which appears to have affected the result despite Mr Logan's attempts to correct individual sales for time.  The first of these was a sale seven months before the relevant date of a showroom development on a property in Loftus Street which was approximately double the size of Lot 116.  Mr Logan analysed the land value to be in the vicinity of $306 per square metre.  This he adjusted because of the superior location of Lot 116 to support a figure of some $684 per square metre for Lot 116.  This adjustment is, of course, very large.  It is heavily dependent on his unsupported assessment of the comparative higher value of the location of Lot 116.  There is reason for some hesitation that a sale which requires such a significant adjustment provides a sufficiently reliable guide for present purposes.
134		Mr Logan included two sales in the Oxford/Vincent precinct in August 1999 and April 1998, being Lot 1 Corner Newcastle and Carr Streets and Lot 20 Carr Place, which revealed a land value of $1,358 per square metre and $980 per square metre respectively.  These appear to me on the evidence to be of land which carries a very significantly enhanced value because they are particularly well positioned in the Oxford/Vincent precinct.  Lot 1 was zoned as "Local Centre" and enjoys a quite unique position in the Oxford/Vincent precinct.  This makes it suited to an outstanding development to take full advantage of that particular site.  While Mr Logan used this to demonstrate that a market premium could be obtained for a land mark position his attempted analogy to Lot 116 as another land mark position obscured the reality, as I find it to be, that Lot 1 and Lot 116 are somewhat chalk and cheese in locality and potential.  The factors that make Lot 1 such an outstanding position have little relevance to Lot 116.
135		Many of the remaining sales were in the West Perth area to the south of the Fremantle suburban railway and north of Murray Street.  In my view, Mr Logan's adjustments of these sales for location tended to place too little emphasis on the readier proximity and convenience of access of these properties to both the city and to the main West Perth commercial area south of Murray Street, particularly in the case of the 1999 and 2000 sales which I accept are influenced by a spreading of demand for more premium land to the area north of Murray and Wellington Streets but south of the Fremantle suburban railway.  This area, unlike Lot 116 and its surrounds, is an area well positioned for the future expansion of the premium professional and office area of West Perth which it immediately adjoins and from which there is no physical barrier such as the railways and the freeway.
136		While that expansion of demand north of Wellington Street may not have been clearly evident until 1999, the factors of proximity and convenience of access were apparent earlier.  Further, while the area between Wellington Street and the railway in 1998 was one of quite mixed development, that was less so than the area in which Lot 116 is located.  While Mr Logan came in the end to accept it was something of a moot point which location was superior, in this process of comparison he failed, in my view, to give adequate weight to these factors.  That is not to ignore the prominence of Lot 116 in its surrounding.  That clearly has its value.  The point is that it and its surroundings are, in my finding, in a locality that was less attractive in the market at the relevant date than the area of West Perth immediately south of the Fremantle suburban railway and north of Murray Street.  Mr Logan's appreciation of this issue influenced his opinion of the market value of Lot 116 and the value of the resumed 18 square metres in the plaintiff's favour.
137		I also note that Mr Logan first prepared a valuation of Lot 116 in November 1996, some 18 months before the relevant date for compensation.  He was then retained by solicitors acting for the plaintiff's former wife.  His valuation was for the purposes of matrimonial proceedings in the Family Court to which the plaintiff was the other party.  In his valuation, which was dated 15 November 1996, Mr Logan expressed the opinion that the fair market value of Lot 116 was $280,000 which is the equivalent of $425 per square metre.  It is of some significance that he then relied entirely on properties to the north of both railway lines and the freeway and on properties in the Oxford/Vincent precinct.  Sales which he then regarded as comparable, some of them then slightly superior to Lot 116, Mr Logan now regards as significantly inferior, particular by reference to location and exposure.  He acknowledges, nevertheless, that in these and all other relevant respects it is not the case that there was any change in fact between November 1996 and May 1998.  What has changed he says is his appreciation of these matters.
138		It is not Mr Logan's view that changes in market value explain the marked difference between his opinion of $425 per square metre in November 1996 and $700 per square metre 18 months later in May 1998.  When cross-examined, he did suggest that in that time the market value had increased approximately 30 per cent although this did not account for his change of opinion as to value.  Even so, his opinion that there had been an increase of some 30 per cent in market value in that 18 months was in dramatic contrast to the evidence of Mr McMahon who had suggested there was a 5 per cent per annum movement in this period, ie some 7.5 - 8 per cent between November 1996 and May 1998.  Mr Logan tended to rely on his general impression and was not able to demonstrate support for his view of this percentage increase by any body of sales evidence and Mr Logan disagreed with Mr McMahon's interpretation of the one sale to which Mr McMahon particularly pointed to support his opinion of 5 per cent per annum.  I note from the evidence of Mr Richmond, however, some sales which suggest the market for properties of this nature, at least to the north of the railways and the freeway, increased by some 4 - 6 per cent a year in the year or two before May 1998.  While that rate appears to have increased a little more by 1999, and a different rate may have applied to relevant localities south of the railway lines and the freeway, it would appear that Mr McMahon's figure does provide an approximate indication of the movement in market value in the period November 1996 to May 1998.
139		That being as it may, a 30 per cent increase in market value would only have taken Mr Logan's November 1996 value for Lot 116 from $425 per square metre to $550 per square metre as at 1 May 1998.  Yet his February 2001 valuation, and his evidence before me, seeks to sustain a value of $700 per square metre for Lot 116 as at 1 May 1998; this is an increase of 65 per cent in about 18 months.
140		Mr Logan explains this difference on the basis that he was better "instructed" in February 2001 than he was in 1996, and he had more reliable and extensive market information.  His better instructions seem to have been a full briefing by the plaintiff's solicitors on traffic engineering, zoning and planning issues.  He also had a general discussion with Mr McMahon before undertaking his valuation in 2001.  While traffic, engineering, zoning and planning issues may have had a relevance to other aspects of Mr Logan's valuation - as he also dealt extensively with other issues such as injurious affection - it does not appear from his evidence that these issues were of any particular relevance to his appreciation of comparable sales.  What is apparent, in my finding, is that Mr Logan came to a markedly enhanced appreciation of the location of Lot 116 and of the value of its exposure particularly to Loftus Street traffic.  The issue of location caused him, like Mr McMahon, to see much significance in the West Perth address and to place new weight on that, which in turn led to reliance on sales in West Perth to the south of the Fremantle suburban railway and also the Southport/Harrogate area.  Mr Logan also suggested that in 1996 he had placed what he now regarded as too much reliance on sales identified to him by valuers in the Valuer General's office, or other valuers retained by government agencies, sales which he now considered not truly reflective of the location and exposure of Lot 116 and he had not then had adequate regard to other sales such as those now relied on.  This evidence does not satisfactorily explain, in my view, the fact that some 18 months before the relevant date Mr Logan was satisfied at the comparability of the sales he then used, with what he then saw to be appropriate adjustments for factors including location and exposure, but approaching three years after the relevant date he had formed quite a different appreciation of the sales which are comparable and this has produced a somewhat dramatically different market value for Lot 116 as at 1 May 1998.  In this change, it is probable in my finding that the influence, conscious or unconscious, of Mr McMahon has played a part.  The other change, of course, is that in February 2001 Mr Logan had access to and has relied on sales information from 1999 and 2000 and also, inevitably, now has the benefit of much hindsight, in my finding, too much hindsight, into trends, developments and market movements from May 1998 to February 2001.  In my findings these factors have had a perhaps unconscious but nevertheless inappropriate and improper influence on Mr Logan's present opinion, an influence which unduly favours the plaintiff.
141		In this respect I was not impressed by the genuineness or the validity of the attempt in re-examination, on the last day of Mr Logan's evidence, to justify the validity and preferability of the February 2001 valuation on the basis that directly contemporary and subsequent sales enabled him to focus on sales which more truly reflected the market, or on his opinion only then expressed in his evidence that in November 1996 the true market value of Lot 116 was $530 - $550 per square metre rather than the $425 per square metre of his valuation, so that with a market escalation which he then put at some 17 per cent per annum (rather than the 30 per cent over 18 months which he had earlier sought to advance) he came to a figure which he suggested was $700 - $720 per square metre in May 1998.  Even this appears to involve a mathematical error, as an adjustment of 17 per cent per annum only produces a result of between $665 and $690 per square metre as at May 1998.  There was nothing identified, however, to support the new starting point of $530 - $550 per square metre as at November 1996, or the new market rise of 17 per cent per annum over the intervening period.  This attempt in re-examination was unconvincing and appeared too contrived to be persuasive.
The evidence of Mr Richmond
142		The third valuer, Mr Richmond of Kevin Sullivan and Associates, was called for the defendant.  He had prepared a market valuation for the defendant in May 1999.  In his report dated 19 May 1999 he adopted a market value of $550 per square metre for Lot 116 as at 1 May 1998, ie a value of some $362,000 for the whole of the land.  Mr Richmond relied on some 15 sales from Leederville and West Perth suburbs which range from February 1996 to December 1998.  These were of quite variable comparability.  For the purpose of his evidence before me Mr Richmond also reviewed sales that occurred in 1999 and up to February 2000 which were not available to him, of course, at the time of his May 1999 valuation.  He included a number of these in preference to some of those that he used for his May 1999 valuation.  Mr Richmond considered that the revised sales list served to confirm the view he formed in May 1999 that a figure as high as $550 per square metre could be justified as the market value for Lot 116 as at 1 May 1998.
143		Common to both his original and revised lists were four sales which Mr Richmond regarded as particularly relevant.  Two of these were in fact the closest in physical proximity to Lot 116 of all the comparable sales relied by all three valuers.  Number 634 Newcastle Street is quite close to Lot 116 but to the west of Loftus Street and near the outskirts of the Oxford/Vincent precinct.  The sale comprised two adjoining lots totalling 1607 square metres which were sold in March 1997 for $515,000.  These had been a car yard and the sale was effectively of unimproved land.  Clearly adjustment had to be made for market movement in the intervening 14 months, for the size of these lots and for the prominence of Lot 116 although it may not be quite as well located.  The second sale was of Lots 14 and 16 Cleaver Street which are within a few hundred metres of Lot 116 just to the south of Newcastle Street. The two lots each have an area of 676 square metres.  There is also rear access from Tandy Street, which is quite narrow.  In January 1998 these sold for $550,000 which Mr Richmond analysed as indicating a land value of $407 per square metre.  The lots were purchased for redevelopment so that the figure may be regarded as land value only.  The land has been redeveloped as showrooms/offices.  The zoning is a material factor, however, as this land was zoned "Industrial II" with the consequence that there was an element of uncertainty that the desired development would be achievable.  Further the site does not enjoy the prominence and better corner location of Lot 116.
144		The other two sales included 215 Oxford Street which sold for $215,000 in February 1996.  It was a vacant site suitable for commercial development with a rear right of way.  The land area was 412 square metres indicating a land value of $522 per square metre.  Allowing for market rise this would indicate $560-$580 as at 1 May 1998.  This lot is in the Oxford/Vincent precinct but towards its north end so that it enjoyed the influence of that commercial centre and the purchaser was an adjoining land owner so that it could reflect special value.  Despite these factors Mr Richmond considered that, on balance, Lot 116 is a more valuable site.  The fourth sale on which Mr Richmond placed particular reliance was Nos 193-195 Carr Place, on the outskirts of the Oxford/Vincent precinct but close to Lot 116, which sold in April 1997 for $405,000.  It comprised two adjoining 400 square metre level lots with a commercial C2 zoning.  A two storey office development has since been constructed on the site.  This sale indicates a land value of $506 per square metre which, if adjusted for market rise to May 1998, would equate to some $530 per square metre.  Mr Richmond saw it as a good quiet office location but lacking the prominence of Lot 116.
145		By May 1999 when Mr Richmond prepared his valuation and report the real estate market for commercial land had become relatively strong with a reasonable demand for good quality office space.  However, new developments were experiencing difficulty in leasing and in his evidence he described the rental market for office space at that time as "soft".
146		Mr Richmond had first assessed the market value of Lot 116 for the Ministry for Planning in November 1996.  It was then his opinion that the market evidence indicated a value in the range of $385-$400 per square metre.  He then saw the highest and best use as redevelopment for offices, with a major advantage being its prominent location with excellent exposure to traffic passing along Newcastle and Loftus Streets.  The disadvantages, however, he noted as being the high level of traffic noise and difficulty of access to the site.  At that time he regarded the market for this land as not particularly strong as there was a limited demand for secondary located office accommodation and therefore only low rentals were achievable.
147		On 11 July 1997 he reported to the defendant on the market value of Lot 116 at which time he assessed its land value as $414 per square metre.  While the market for commercial land had, by then, improved, in his view, there remained only limited demand for secondary located office accommodation.  He provided further advice to the defendant on 10 November 1997 which was again on the basis of $414 per square metre.  I accept that for this advice he simply applied his July 1997 opinion to new facts, which were that the requirement of the defendant had just been finalised as the 18 square metre truncation on Lot 116 rather than an earlier and slightly larger truncation.
148		It is the case, therefore, that between July 1997 and May 1998 Mr Richmond's opinion of the market value of Lot 116 had increased by some $33,000, and between November 1996 and May 1998 it had increased by some 43 per cent.  Mr Richmond, like Mr Logan, does not suggest this is attributable to a dramatic change in market value.  Instead, he pointed to a number of factors - time, newer sales, sales evidence he had not recognised earlier, and what in hindsight he accepted had been a conservative earlier approach.  He added a further factor which he described as "human nature".  In explanation of this he indicated that when he prepared his 19 May 1999 report he had Mr McMahon's extensive and detailed submission dated 22 January 1999 which included sales which Mr McMahon saw as comparable and a hypothetical development.  All of which supported a value as at 1 May 1998 of $550 per square metre.  Mr Richmond had also discussed the matter with Mr McMahon.  It was the effect of Mr Richmond's evidence that he had formed the view that Mr McMahon's then approach was reasonable and could be supported on the available evidence.  This led him to the view that, to that time, he Mr Richmond had been too conservative.  As some further indication of his earlier conservatism, the comparison can be drawn between Mr Richmond's opinion of $385-$400 per square metre in November 1996 and Mr Logan's opinion of $425 per square metre in November 1996.
149		The position is, therefore, that considering the available evidence a full year after the resumption date of 1 May 1998, and having considered Mr McMahon's position as set out in detail in January 1999, and being persuaded by it and by what had become apparent in the year since 1 May 1998 that his earlier approach had been too conservative, Mr Richmond came to the view that $550 per square metre was the appropriate market value of Lot 116 at the taking date.  His later review of sales in 1999 and into 2000 have not persuaded him that any higher figure is appropriate.
150		In this respect I note that on 25 January 2000 he provided further market valuation advice to the defendant on the retained land as at January 2000 - not 1 May 1998 - in which Mr Richmond expressed the opinion that the maximum value was $600 per square metre, which was a figure based on a review of the comparable sales in 1999 as well as the sales identified in his May 1999 advice.
Value of Resumed Land
151		Having reviewed all the valuation evidence on the question of the market value of Lot 116 as at 1 May 1998, and thereby the compensation value which should be awarded for the value of the 18 square metres of Lot 116 resumed on that date, as the resumed area had no separate or special value to the owner, I have come to the following views.  For the reasons indicated I am not satisfied as to the impartiality and independence of the opinion of Mr McMahon and I am left with the impression that the opinions of Mr McMahon and Mr Logan have been too influenced in hindsight by the sales they considered which occurred well after 1 May 1998.  In essence it appears that rather than using 1999 and 2000 sales merely to help in a clarification of the market position and trends that were emerging but which may still have been obscured as at 1 May 1998, they have in effect applied back to 1 May 1998 market movements that occurred well after that date.  Further, and importantly, it is my finding that in adjusting sales from the other localities identified, they have given too much weight to the prominence of Lot 116 but failed to have adequate regard to the location of Lot 116 which, particularly as at 1 May 1998, was somewhat isolated from any centre of significant commercial activity and was properly described by Mr Richmond as a secondary office site.  As a consequence, the adjustments they made to other sales from the other localities to which they looked failed, in my finding, adequately to achieve comparability and led to an unduly high value being placed on Lot 116.
152		That leaves me much more persuaded by the balance and fairness of the approach of Mr Richmond and the reliability of the opinion he reached.  Nevertheless, some criticisms were validly made about his approach to some particular issues.  I am satisfied that as a consequence, initially, he was too conservative, although only moderately so as a comparison of Mr Richmond's and Mr Logan's opinions in November 1996 reveal.  By May 1999, however, Mr McMahon's persuasiveness had been quite effective, in my finding, in overcoming this when Mr Richmond formed the opinion to which he held in his evidence.  This was an opinion formed a year after the relevant date and took account of the sales known to him at that time, ie those up to about March 1999, so that there can be some confidence that he has had regard to any clarification of the May 1998 market position and trends which had emerged in that intervening period.  A year appears to be a useful, if not a generous, time for that purpose in this case, beyond which there is an obvious and increasing reason for concern that what is being revealed may be a new development rather than clarification of the position or a trend that existed at the relevant date but was then obscured.
153		There is also a level of reassurance to be had from the circumstance that Mr McMahon then held the same opinion of the value of Lot 116 as Mr Richmond.  As indicated earlier, the opinion which, in my finding, Mr McMahon had formed by October 1998, and which he maintained in early 1999 and urged on Mr Richmond, also placed the land value of Lot 116 at $550 per square metre as at 1 May 1998.  This view too, was formed some months after the date of the taking of the resumed land.  As has been indicated earlier I am not able to accept that this was not a considered opinion or that it should now be disregarded or discounted as unreliable, despite Mr McMahon's rather dramatic revision of it for the purposes of his evidence in this case.
154		In preferring, as I do, the opinion of Mr Richmond I should note some matters of reservation.  Although in late 1998 Mr McMahon relied on different sales from those relied on by Mr Richmond, Mr Richmond's opinion, in May 1999 and now, pays much attention to four sales.  All pre-dated 1 May 1998.  Two of these were somewhat earlier than the taking date and the two which were closer in time required marked adjustment in an attempt to achieve comparability.  The support for the figure of $550 per square metre is therefore less than ideal, although more satisfactory in my finding than the sales which Mr McMahon used to support his October 1998 figure of $550 per square metre and generally far more satisfactory than the sales used by Mr Logan and Mr McMahon for their 2001 opinions of $700 per square metre and $750 per square metre respectively.
Market "blight"
155		Before leaving the issue of the value of the resumed land I should comment on one further aspect of the evidence.  There were rather unconvincing suggestions made in evidence that the public work in this case and the Graham Farmer Freeway, in particular the Northbridge Tunnel, should be regarded as in truth the one public work.  The best that can be said in support of this is that the public work, which was the duplication of Loftus Street, not only facilitated the primary role of Loftus Street as an important north-south regional access route, but also facilitated the provision of means by which vehicles might also connect from Loftus Street to the Graham Farmer Freeway.  This does not, however, make these two separate public works the one for any relevant factual or legal purpose.
156		It was also advanced in evidence that uncertainty associated with the major replanning of the Northbridge area, which the Graham Farmer Freeway and in particular the Northbridge tunnel had produced, caused over a number of years a clearly identifiable dampening of market interest and therefore market values in the Northbridge area.  This was described as a market "blight".  It was then suggested in a most unconvincing and quite unsupported manner, in particular by Mr McMahon, that this "blight" extended over the whole area affected by public works associated with the Graham Farmer Freeway and hence as for west and north as the area in which Lot 116 is located, Loftus Street marking on this view the western extent of public works associated with the Graham Farmer Freeway.  Neither the documentary exhibits as to the replanning of the Northbridge area nor any other evidence satisfies me that any dampening of market values which may have existed in the Northbridge area for these reasons ever extended so far to the west and north as the corner of Loftus and Newcastle Streets or that any "blight" induced by the, or any other, public work affected Lot 116 or the immediate area in which it is located.
157		This line of evidence seemed to be directed to the proposition that the ordinary process of ongoing property development and the level of market values in the vicinity of Lot 116 had been artificially restrained by these factors and it was only after the completion of all "relevant" public works, viz the Loftus Street duplication, the Graham Farmer Freeway including the Northbridge tunnel and the connecting roads, ie by early 2000, that this artificial restraint was lifted and values rebounded to their true level.
158		I should record my finding that insofar as propositions of this nature have some foundation in the evidence I am not persuaded there is any substance in any suggestion that Lot 116 or its surroundings were adversely affected as at 1 May 1998, or at any material time, by any general market restraint or "blight" of the type suggested.  The attempt to link the vicinity of Lot 116 with the Northbridge area is in my finding quite artificial and is not borne out by any evidence which I find persuasive.
159		I would also observe that even were there some substance in the suggested market restraint, with very few exceptions the comparative sales, on which the market value evidence in this case turned, are from localities which would not have been affected by any such market restraint.  It follows, therefore, that in any event the comparative sales evidence would not reflect the restraint of any such market "blight".
160		Despite these suggestions of a "blight" in the evidence, for these reasons, I am satisfied that the value of $550 per square metre at which I have arrived fairly reflects the true market value for Lot 116 as at 1 May 1998.
Hypothetical Development
161		Because of the reservations I noted about the value of $550 per square metre, I also turn to consider the hypothetical development exercise undertaken by Mr McMahon in support of his 2001 opinion that the market value of Lot 116 at 1 May 1998 was $750 per square metre.  All valuers agreed that a hypothetical development calculation is less reliable as an indication of the market value of Lot 116 and that, at best, a hypothetical development is merely an approximate check.  Mr Logan did not undertake a hypothetical development at all, confining his opinion to comparative sales.  Mr Richmond confined his opinion to comparative sales for the market value of Lot 116.  He did, however, undertake a hypothetical development calculation, both before and after 1 May 1998 the date of the resumption, for the quite separate purpose of assessing the injurious affection to the land by virtue of the taking of the 18 square metres.  Mr McMahon similarly made calculations both before and after the taking for this purpose.  Later in these reasons I will deal with their calculations in the after taking situation when considering injurious affection.  For the present I will consider in particular Mr McMahon's hypothetical development calculation in the Before Taking situation as he placed some reliance on this as supporting his opinion of $750 per square metre.  For this purpose, where appropriate, I will make comparisons with the hypothetical development calculation in the Before Taking situation undertaken by Mr Richmond.
162		Perhaps inevitably, the evidence of Mr McMahon and Mr Richmond differed as to the appropriate elements of a hypothetical development calculation.  By way of commentary Mr Logan also offered some limited observations in his evidence on some of these aspects.
163		In his February 2001 report Mr McMahon utilised a rough development plan prepared by Mr Adam, an architect and town planner retained by the plaintiff, who also gave evidence before me.  It was a limited refinement of the plans submitted by the plaintiff in 1983 and 1996 to the City of Perth and Vincent respectively for development approval.  Mr Adam's plan was for two levels of office accommodation with a basement carparking area.  The plan proposed two way vehicular access at a central position on the Newcastle Street frontage and provided parking for 16 vehicles.  This plan allowed for a gross floor area for each level of office space of some 325 square metres, ie a total of 650 square metres gross area, with a total net lettable office area of some 520 square metres.  This design did not utilise the full plot ratio.  To do this a third part floor of office space would be necessary but I accept from the evidence, especially in Mr McMahon's report, that a third floor is rightly discarded as uneconomic.
164		In Mr Adam's design the building was set back 9.0 metres from the Newcastle Street frontage.  I generally accept his approach in this regard.  Before the resumption of the 18 square metres, because the land on either side of Lot 116 was zoned residential R80, the effect of cl 85(1) of the City of Perth Town Planning Scheme which Vincent was applying at the time was to require a setback from the Newcastle Street boundary of 9.0 metres.  Had it not been for the zoning of the two adjoining lots, the provisions of cl 84(1) would have provided for a 4.5 metre setback.  The setback from each side and the rear boundaries was governed by the application of the residential planning codes, by reason of cl 85(1), and I accept the view of Mr Adam that the probable effect of this was a setback requirement of 3.0 metres from each side boundary and 1.5 metres from the rear boundary.
165		There is a further qualification in that, as illustrated in Attachment 12 Option 1 to the March 2001 report of Mr Adam, and in his original Option A, the R codes allow construction to extend to the side boundary for a maximum length along the boundary of some 9.0 metres in the Before Taking situation, with a 3 metre set back being required for the remainder of the length of the building.  As indicated in Mr Adam's drawing that was possible along the eastern side of the building, but the area set aside for services on the western side of the building seems to have precluded utilisation of this possibility on the western side.  The effect of this is to allow for an extra 27.0 square metres of gross office area on each of the two floors and for this reason this design feature was utilised by Mr McMahon in his hypothetical development calculation.  This is to the plaintiff's advantage and I accept the desirability of taking advantage of this design possibility.  A consequence of this, of course, is that this significantly limits any views to the city skyline and surrounding area which might otherwise have been obtained from the eastern side of both office floors.
166		I also accept that a hypothetical purchaser as at 1 May 1998 would have formed similar views as to the applicable setback requirements and as to the desirability of utilising the extension of the eastern boundary for 9.0 metres of the eastern side of the office floors to secure additional lettable office space.
167		Mr Adam did prepare a revision of his plan which allowed for 18 car bays in the undercroft and allowed for a slightly larger building with a more efficient use of space so that the lettable office area became approximately 575 square metres in a two storey office development.  Again, by use of a part third level of office accommodation the full plot ratio of 658 square metres could have been achieved, but as indicated I accept that this is uneconomical so that any practical development would have been confined to two levels of office space.  I find also that this would have been the view taken by a hypothetical purchaser as at 1 May 1998.  Mr McMahon based his initial calculations on the earlier plan prepared by Mr Adam, but he also noted and confirmed in his evidence that the modification achieved in the revision by Mr Adam did not produce any significant change in the result of the hypothetical development calculation undertaken by Mr McMahon.
168		It is convenient to note at this point my finding that the designs of Mr Adam for an office development, both in the Before and After taking situations were intended by Mr Adam, for very sound reasons, to involve the excavation of Lot 116.  There was some difference of understanding about this in the evidence, and the plaintiff and Mr McMahon sought to advance the view that no excavation was intended in the Before Taking situation.  I accept from the evidence of Mr Adam, particularly at the commencement of his cross-examination and par 39 of his report, that his proposals were based on excavation so that the floor of the basement would be near to the Newcastle Street level, ie 1.0 - 1.5 metres of excavation with that level being probably maintained to the rear of the block.  The effect of this, as his report indicates, is that the ground floor level of the office floors would be set at approximately the floor level of the present duplex dwelling.  I also find from par 39 that the opinion of Mr Adam that a set back of only 3 metres from the side boundaries would be required may depend on such excavation, because this lowered the overall height of the development in relation to neighbouring properties.  This Mr Adam saw also to be the intention of the design prepared for the defendant by another architect Mr Oakley.  That was confirmed by the evidence of Mr Oakley, who also stressed that without excavation there would be an unduly steep vehicular ramp to the basement carpark and a need for extra stairs for pedestrian access.  I would add that although there was no detailed explanation of the 1983 and 1996 plans submitted for approval by the plaintiff to the relevant local authorities, and despite the plaintiff's evidence, what is shown in those plans with respect to pedestrian access and vehicle access suggests that excavation to near the Newcastle Street level was contemplated.  I also accept from the evidence, including that of Mr Adam, Mr Oakley and Mr Van Der Meer, that the construction of an office development of the type in contemplation without excavation would not be the most desirable or cost efficient design.  Notwithstanding Mr McMahon's expressed opinion, it has not been shown that an extra 1.0 - 1.5 metres of floor level height for each of the two office floors would make any difference to the rental which the offices would command, whereas a lowered carparking area would add to the convenience of both vehicular and pedestrian access.
169		It is my finding on the evidence, therefore, that a hypothetical purchaser as at 1 May 1998, who was costing a hypothetical development as an aid to determining the price which should be paid for Lot 116, would consider that any office development should have an undercroft or basement parking near to the Newcastle Street level, with two storeys of offices above.  Hence, excavation would be required.  As a consequence, rather than retaining walls to the front and western boundaries because of the raised elevation of Lot 116, it would be necessary to further retain the northern and eastern boundaries as, with excavation, at those boundaries Lot 116 would be further lowered in relation to the neighbouring properties.  Although there is no precise evidence I accept from the general effect of the evidence of Mr Van Der Meer and the architects that there would be no significant cost differential between the cost of the necessary retaining walls with such excavation, and the cost of the different retaining walls which would be necessary if there was no excavation.
170		Mr McMahon considered that for such a development a rental of $175 per square metre was achievable as at 1 May 1998 and that in addition rental for car bays of $60 per calendar month could be achieved.  Based on these rates he suggested that an annual income of $102,520 would be anticipated by a hypothetical purchaser or vendor.  This he capitalised at a 7.75 per cent return on investment to produce a notional capitalised value of land and improvements of $1,322,500.  From this he deducted a profit and risk factor of 17.5 per cent, development costs as estimated by Mr Van Der Meer, interest on land at 8 per cent for 9 months pending development, and an allowance of $25,000 for holding rates and taxes, leasing costs and contingency items.  In the result he estimated that the resultant land value would be some $469,730 which is equivalent to $713.87 per square metre.  He regarded this as sufficiently supportive of his analysed value from comparable sales of $750 per square metre.  I accept his evidence that while this calculation was based on the original plan of Mr Adam the revised plan produced a result which was not significantly different.  
171		There are reasons for some reservations about aspects of his calculations, however, in particular the income he has anticipated and the 7.75 per cent he has allowed as an appropriate return on investments, ie the capitalisation rate.  I also note that he has made no allowance for the costs of excavation or of retaining walls.
172		In the letter sent by Mr McMahon to Mr Richmond in January 1999 to support the plaintiff's case for a value of $550 per square metre, Mr McMahon included a broad hypothetical development calculation.  This was eight months after the taking of the land.  In dealing with income in this calculation Mr McMahon noted that rentals for similar new strata offices in West Perth and West Leederville then reflected rentals of $135 - $165 per square metre and on this basis he calculated rental income at a $160 per square metre - not $175 per square metre as allowed for in his February 2001 report.  Further, he allowed for car bay rental at only $20 per month, rather than the $60 estimated in his February 2001 report.  In cross-examination he described the figure of $20 per month as being merely a "guess".  At that time he used a capitalisation rate of 8 per cent, rather than the 7.75 per cent rate which he adopted in his February 2001 report.  He also adopted a profit and risk factor of 22.5 per cent in his earlier hypothetical development calculation rather than the 17.5 per cent which he used in his February 2001 report.  In the hypothetical development calculation which he urged on Mr Richmond in January 1999, after allowances for construction and other costs Mr McMahon obtained a resultant land value of $290,000 for Lot 116 which is equivalent to only $440 per square metre.  However, by then allowing for the offices to be strata titled and to be sold on this basis Mr McMahon was able to suggest to Mr Richmond in January 1999, although in my finding not convincingly, that the calculations supported a land value of between $510 per square metre and $570 per square metre, figures which he suggested were also supported by comparable sales evidence of between $500 and $550 per square metre.  It will be apparent that this is very different from the $714 per square metre which is the product of the hypothetical development calculation undertaken by Mr McMahon in his February 2001 report, even though the earlier calculation and the latter both purport to relate to 1 May 1998.  He offered no satisfactory explanation, in my finding, for the difference between his two opinions.
173		I also note that in Mr Richmond's hypothetical development calculation in his May 1999 report, Mr Richmond based his calculations on a net lettable office area of 575 square metres.  He calculated office rentals at $170 per square metre but this rate was inclusive of the 18 car bays at no extra rental.  He allowed for a capitalisation rate of 8.5 per cent and a profit and risk factor of 10 per cent with 11 months allowed for the development.  He used published standard figures to estimate construction costs which, in the result, were a little cheaper than Mr Van Der Meer's actual estimates.
174		I accept from his evidence that Mr Richmond prepared his hypothetical development calculation, and the earlier calculations he made in 1996 and 1997, on the basis of a development by an owner/developer who would then lease the offices out.  I accept he did this to achieve a more generous land value, ie to favour the plaintiff, because development by an owner/developer enabled a reduced profit and risk allowance and dispensed with leasing costs.
175		With respect to car bays there was a marked difference of opinion, in particular between Mr McMahon and Mr Richmond, as to the probability of a rental of $60 per calendar month being achieved for a covered car bay in the locality of Lot 116 as at 1 May 1998.  Mr McMahon was able to point to rentals being achieved for car bays, but these were in other localities and/or at later times than 1 May 1998.  I note that Mr Richmond had allowed for car bay rentals at $40 per square metre in his 1996 and 1997 hypothetical development calculations, but it is also apparent that in so doing he adopted a much more conservative figure for the office space rental.  I accept from his evidence that for office accommodation in the locality of Lot 116 as at 1 May 1998 the probabilities were that a prospective tenant would be concerned with the total package cost, ie of the cost of both the office space and parking, and would not be prepared to pay both premium office rental rates and additional rental for car bays.  I accept from the evidence that as at May 1998 there was no evidence of rentals being paid for car bays as well as premium office rentals in the localities considered in the expert evidence which are north of the freeway.  Car bay rentals were then being paid in the West Perth area south of Murray Street and in that locality covered car bays were also commanding higher rentals than uncovered bays.  There was no evidence concerning covered bays north of the freeway.  There is some evidence that by 2001 rental rates have increased over the 1998 rates and that for some properties north of the freeway separate rentals are now being sought for car bays.
176		In view of the competing opinions and what evidence there is available on these issues as at May 1998, it is my finding that the office rental rate proposed by Mr Richmond of $170 per square metre inclusive of car bay rental better reflects the market evidence and is preferable, and would be the view which would be taken by a hypothetical purchaser as at 1 May 1998 of what could be achieved in the market for an office development on Lot 116.  Should it be relevant, if a separate car bay rental were being determined, on the available evidence it would not exceed $40 per month and if such a rental were charged separately the rental achievable for the office space in such a development would in my finding be in the order of $155 per square metre.
177		I am conscious that for the purposes of a hypothetical development calculation there is some interdependence between some factors, ie if a low capitalisation rate is used a higher profit and loss allowance may be warranted.  The appropriate capitalisation rate, however, will vary with market strength so that where the market is stronger a lower capitalisation rate will usually be appropriate with the consequence that the land value demonstrated by a hypothetical development calculation is higher. 
178		Mr Richmond's May 1999 hypothetical development calculation suggested a notional value of $588 per square metre for Lot 116 to an owner/occupier.  It would have been much less, of course, were a profit and loss rate appropriate to an ordinary developer utilised, and were leasing costs included.
179		In November 1996 Mr Richmond had used the plaintiff's development plans submitted that year as the basis of a hypothetical development calculation.  On this basis there was 583 square metres of lettable office space for which he allowed a rental rate of $140 per square metre plus $40 per month for car bay rental which, I accept, was hazarded by him in the absence of any particular car bay rental evidence at that time.  Mr Richmond then felt that the market strength warranted a 10 per cent capitalisation rate and the product of his hypothetical development calculation at that time was the equivalent of $382 per square metre.  In July 1997 he used the same design and the same office and car bay rental rates.  He felt the market had improved a little and used a 9.75 per cent capitalisation rate with the resulting land value equivalent to $414 per square metre.
180		All of this may rather starkly illustrate the susceptibility of the hypothetical development calculation method to the effects of varying components which must be estimated and included.  Hence, the greater reliability, where it is possible, of using comparable sales to determine market value.  It is necessary, nevertheless, that I record my findings concerning this aspect of the case, not only to see the relationship between the result of this method and the comparative sales method, but also to assess whether this method offers significant support for Mr McMahon's opinion of a land value of $750 per square metre for Lot 116 as at 1 May 1998.
181		With regards to the net lettable office area I should note that there was some difference in the evidence which affected the designs of Mr Adam and Mr Oakley and in turn the calculations based on them made by Mr McMahon and Mr Richmond.  Mr Oakley had been retained in early 1999 to advise on the development potential of Lot 116.  He proceeded on the basis that a frontage setback the same as that of the existing adjoining buildings in Newcastle Street, ie 4.5 metres, would be approved by Vincent, whereas I accept that the City of Perth Town Planning Scheme which Vincent was applying required 9.0 metres.  Further, Mr Oakley assumed that the draft Vincent Town Planning Scheme would be in force before any application for development application was considered by Vincent.  In fact the Vincent Scheme came into force in November 1998.  Under the Vincent Scheme the area devoted to service and public areas in the building are included in the gross area of the building for the purposes of plot ratio calculations.  In fact, however, under the City of Perth Planning Scheme the service and public areas were excluded from plot ratio calculations.  I prefer the view taken by Mr Adam that the appropriate scheme to be applied as at 1 May 1998 was the City of Perth Scheme.  In my view, a hypothetical purchaser would also have taken that same view as at 1 May 1998 and would not have been prepared to base calculations on the prospect that the Vincent Scheme could be expected to come into force at some time in the near future.  Under the City of Perth Scheme, as the land area of Lot 116 was 658 square metres in the Before Taking situation, it was possible to secure approval for 658 square metres of lettable office space, the service and public areas being excluded from the plot ratio calculation.  I accept from the evidence that an efficiently designed building could therefore have been of 720 - 730 square metres of gross area with a net lettable office area of 658 square metres.  This represents an allowance of approximately 12 per cent for the service and public areas which I accept from the evidence is an appropriate allowance.  A gross area of 720 - 730 square metres of office building would have required the provision of a minimum of 15 car bays, the required rate being 1 car bay for each 50 square metres of gross area.  While such a building with a net lettable office area of 658 square metres was possible to achieve on Lot 116, it would have been necessary to go to a part third level of office space to do so.  As indicated earlier I accept from the evidence that that would have been uneconomic.  For these reasons any design would be confined to two levels of office space so that the full plot ratio capacity of Lot 116 could not be achieved in practical terms.  Hence both Mr Adams and Mr Oakley in their respective development designs contemplate a net lettable office area less than 600 square metres from two floors of office space.
182		From the evidence as to the market as at May 1998, and in particular what evidence there is of the capitalisation rates demonstrated by other developments, I prefer the capitalisation rate of 8.5 per cent used by Mr Richmond rather than Mr McMahon's 7.75 per cent for which there was no satisfactory justification offered.  I am not able to accept, however, the appropriateness of Mr Richmond's approach of structuring his profit and risk and ignoring leasing costs on the basis that the purchaser would be an owner/developer.  It appears to me that this approach narrows the potential market unrealistically and that ordinary developers would be a significant source of potential purchasers.  In my view, a hypothetical purchaser would utilise a more realistic profit and risk figure and I adopt the 17.5 per cent proposed by Mr McMahon.  The evidence does not suggest that profit and risk provision of 17.5 per cent would be out of keeping with a capitalisation rate of 8.5 per cent in May 1998.
183		If the figures used by Mr McMahon in his hypothetical development calculation, before the taking of the 18 square metres, are modified to take account of these findings, so that the office rental income is calculated on the basis of $170 per square metre inclusive of car bays and a capitalisation rate of 8.5 per cent and a profit and risk factor of 17.5 per cent is applied, the resultant land value, whether for 520 square metres of lettable office space as in Mr Adam's original design or 575 square metres as in his revised design, is in each case less than $550 per square metre.  That is enough to satisfy me that an appropriate hypothetical development calculation such as would be undertaken by a hypothetical purchaser as at 1 May 1998, would not support a land value for Lot 116 significantly greater than $550 per square metre, which is the value which Mr Richmond placed on Lot 116 as at 1 May 1998 as demonstrated in his opinion by comparable sales.
184		In expressing that finding I have also had regard to the calculations made later in these reasons, when I consider the question of injurious affection.  There I record that in my finding a hypothetical purchaser may well have been persuaded to consider that a total lettable office area of some 595 square metres of office space was achievable as at 1 May 1998 before any account is taken of the resumption of the 18 square metres for the corner truncation.  That finding, of course, favours the plaintiff's case.  Even on that finding, applying the office rental rate of $170 per square metre inclusive of car bays, a capitalisation rate of 8.5 per cent, and a profit and risk factor of 17.5 per cent to Mr McMahon's hypothetical development calculation, produces an equivalent land value of about $555 per square metre which remains quite in keeping with the $550 per square metre figure to which I have been persuaded.  Thus hypothetical development calculation of about $555 per square metre is over generous as it omits any adequate provision for site costs such as excavation and retaining walls, as Mr McMahon made no allowance for these in the Before Taking situation.  Even a modest provision for these items would reduce the $555 per square metre figure to well below $550 per square metre.
185		Mr Richmond's hypothetical development calculations proceed on a basis which is more comprehensive than that of Mr McMahon but his method, if corrected to reflect the factual findings I have noted in these reasons, results in a lower land value than Mr McMahon's method.  I have therefore concentrated in these reasons on Mr McMahon's method, as it is more favourable to the plaintiff, although I have adapted his calculations in light of the factual findings which I have detailed as to some of the relevant factors.
186		For these reasons I am persuaded that the tentative reservations I noted earlier, when I adopted the figure of $550 per square metre based on comparable sales, may safely be put aside.  It is my finding that as at 1 May 1998 the appropriate market value for Lot 116, before the taking of the 18 square metres for the truncation, was $550 per square metre.  On this basis the value of the 18 square metres which was taken is $9,900.  I propose to adopt a compensation figure for the land taken of $10,000.
Severance and injurious affection
187		The plaintiff claims $455,000 for severance and injurious affection.  The primary case for the plaintiff is that by virtue of the taking of the 18 square metres for the truncation, when coupled with the fact that by virtue of the resumptions for this public work Lot 116 had become a corner lot at the intersection of Newcastle and Loftus Streets, vehicular access to Lot 116 was no longer possible, whether from either Newcastle Street or Loftus Street or otherwise.  This, it is contended, was because such access would be unsafe and would not be approved by the relevant authorities.  In the absence of vehicular access it was the case for the plaintiff that the retained land had entirely lost its highest and best use, which was that of a site for an office development.  There was a subsidiary issue whether, that being so, the retained land might still have a value for continued utilisation as a residential lot, even though it had no vehicular access, but for reasons which will appear there is no need in these reasons to deal with that issue.
188		For the reasons given earlier in this decision, it is my finding of fact that after the resumption of the 18 square metres vehicular access suitable for a commercial office development, both for entry to and exit from Lot 116, could be achieved as at 1 May 1998 and would have been approved by the relevant authorities at the eastern end of the frontage of Lot 116 to Newcastle Street.  It is also my finding that, as at 1 May 1998, a hypothetical purchaser would have taken the view that approval for such vehicular access suited to an office development on Lot 116 would be approved on application.
189		The consequence of this is that the primary case of the plaintiff that he had in substance lost the value of Lot 116 following the resumption necessarily fails.
190		Not only does this primary basis of claim fail but a great deal of the evidence before me from a variety of witnesses called for the plaintiff loses much of its relevance, because, in material respects, that evidence relied on the proposition that vehicular access, or alternatively vehicular access to and from Newcastle Street, to Lot 116 could not be achieved.
191		It remains necessary, however, to consider whether by virtue of the public work and the severance of the 18 square metres the plaintiff has suffered a loss of value in respect of the remaining 640 square metres of Lot 116.  I have already mentioned in these reasons that the 18 square metres has no special value to the plaintiff except as part of Lot 116.  The 640 square metres remaining after the resumption now has a truncated southwest corner, and has become a corner lot.  After the taking the retained land remains elevated by some 1.0 - 1.5 metres along the Newcastle Street frontage above the level of Newcastle Street.  It is also well elevated above the Loftus Street level which it now also abuts although the verge there is shaped so as to rise from the Loftus Street level towards the western boundary of Lot 116.  Nevertheless, there remains a height differential, so that Lot 116 is presently retained for much of its western boundary, and at the truncation, as well as along the Newcastle Street frontage.  Because it is now a corner lot the question of vehicular access to Lot 116 has particular nuances as discussed at length earlier in these reasons.
192		The evidence of Mr Richmond sought in a very general way to measure the injurious affection to Lot 116 from these factors by simply making a limited percentage reduction from what would otherwise be the market value of the retained land.  I am not satisfied from the evidence that this is an appropriate measure for present purposes.  Rather, I am satisfied in light of the evidence that as the highest and best use of this property was as a site for an office development, the measure of injurious affection suffered by the plaintiff in the circumstances is best and most reliably measured by comparing the development potential of Lot 116 as it was before the taking with the development potential of the retained land after the taking.  From the evidence I accept that this is best achieved by undertaking hypothetical development calculations both in the Before and After Taking situations.  Any reduction in development potential demonstrated by this exercise will provide, I accept, the most reliable guide to the difference in market value between Lot 116 before the public work and the taking of the 18 square metres, and after the taking.  In reaching these views I have accepted that a hypothetical purchaser would have regard to such hypothetical development calculations in determining the market value of Lot 116 before the taking and the market value after the taking.
193		Mr Logan in his evidence did not attempt a hypothetical development calculation in the Before Taking situation, and, because of what he understood to be the lack of vehicular access, he made no attempt at a hypothetical development calculation in respect of the retained land in the After Taking situation.  I am, therefore, left with the evidence of Mr McMahon and Mr Richmond each of whom undertook hypothetical development calculations in the Before and After Taking situations.  Their two methods differed, that of Mr McMahon being more favourable to the plaintiff.  That is so whether regard is had to the original calculation of Mr McMahon or the revision of it which I make in these reasons in light of my own factual findings as to factors relevant to the calculation.  Further, Mr McMahon's calculation failed in the Before Taking situation to have any regard to site costs such as excavation and retaining walls.  He did include these in his After Taking calculation, but he did this in respect of access designs from Loftus Street which were very much more expensive because of the considerable costs involved in achieving vehicular access in that situation.  In particular, the construction of a slip road off Loftus Street and a crossover with ancillary works was required at an estimated cost of $285,000 or thereabouts, and a further $80,000 for site works to accommodate the entry level from Loftus Street, were necessary in that design configuration.  As a consequence his hypothetical development calculation in the After Taking situation produced a negative land value.  In his opinion this demonstrated the land was incapable of being economically developed with access from Loftus Street.  He did not attempt a hypothetical development calculation in the After Taking for access to and from Newcastle Street.  For these reasons it is necessary to substantially revise the calculations made by Mr McMahon in light of the facts as I now find them to be.
194		Earlier in these reasons I have indicated my findings, based substantially on the evidence of Mr Adam the plaintiff's architect and planner, that before the resumption of the 18 square metres the effect of the planning requirements applicable as at 1 May 1998 was that an office development would require to be set back 9.0 metres from the front boundary of Lot 116 and from each side by 3.0 metres, with a 1.5 metre setback from the rear boundary; save that on the eastern side for a length of 9.0 metres the two office floors might be taken to the boundary line rather than set back 3.0 metres.  It is also my finding as recorded earlier that for economic and practical reasons any development would be limited to two levels of office accommodation.
195		After the resumption of the 18 square metres, the land to the west of Lot 116 has become Loftus Street so that by cl 84(2)(b) of the City of Perth Town Planning Scheme the normal setback requirement from the western side of Lot 116 would become 2.25 metres, Loftus Street being the secondary street for this purpose.  The clause does allow the possibility of Vincent applying a 4.5 metre setback requirement but the evidence does not provide any basis on which I could find that it was probable that Vincent would exercise that power in this case and, like Mr Adam in both designs in his Attachment 12, I proceed on the basis that the standard 2.25 metre requirement would be applied by Vincent.  It is also my finding that the probabilities are that a hypothetical purchaser as at 1 May 1998 would take a similar view for the purpose of any hypothetical development calculation undertaken for the purpose of assisting in the determination of the market price the hypothetical purchaser would pay for Lot 116 after the resumption.  The setback from the eastern side boundary and the rear boundary would remain 3.0 metres and 1.5 metres respectively, subject to the extension to the eastern boundary for part of the eastern side of the development which in the After Taking situation would be 8.5 metres in length rather than the 9.0 metres in the Before Taking situation.  Apart from that extension, as a consequence of the reduced 2.25 metres setback from the western boundary the office floors would be 0.75 metres wider in the After Taking situation.
196		There is, however, a further factor influencing the setback from the Newcastle Street frontage.  This is the 2.0 metre MRS reservation along the Newcastle Street frontage of Lot 116.  As indicated much earlier in these reasons, although it need not have been, in fact this reservation was for the same public work as the resumption of the 18 square metres.  It is justifiably so as the reservation on Lot 116 can be seen as a means of allowing for the orderly flow of traffic off the Important Regional Road (Loftus Street) onto Newcastle Street.  Hence the effect of s 241(2) of the LA Act, which reflects the Pointe Gourde principle, appears, in this case, to be that the 2 metre reservation should be ignored for present purposes when determining the value of the land taken, ie the 18 square metres, but not for other purposes such as the assessment of injurious affection to the retained land under s 241(7) of the LA Act.  Even if that were not so as a matter of law, in my finding, a hypothetical purchaser of Lot 116 after the resumption, as at 1 May 1998, would, more probably than not, have regard to the 2 metre MRS reservation in any hypothetical development calculation made to assist the hypothetical purchaser in determining the price he would pay for the retained land.  In my view, for practical purposes, the likelihood is that the hypothetical purchaser would treat the area of the reservation as no longer available.  On this basis, in my finding, the hypothetical purchaser would, for practical purposes, regard the setback of 9.0 metres required by the Town Planning Scheme as being measured from the reservation boundary rather than the street boundary, so that the hypothetical purchaser would see the effective setback line to be 11.0 metres from the Newcastle Street frontage.
197		I appreciate there was much evidence that this 2.0 metre reservation is no longer required and the process is now underway for the lifting of the reservation and the submission was advanced that as a matter of strict law the setback requirement as at 1 May 1998 was, and it remains at present, 9.0 metres from the Newcastle Street boundary.  Nevertheless, the practical reality in my view is that, at 1 May 1998, a hypothetical purchaser would have taken the safe practical view that the 2.0 metre reservation should be treated as land no longer available to a purchaser for development purposes when assessing the value of Lot 116.  In so doing, the hypothetical purchaser would realise that if development approval could be obtained to build to a 9.0 metre set back line from the actual street boundary the purchaser would have gained an advantage but, if the purchaser was required to build 11.0 metres from the actual street boundary, ie 9.0 metres plus 2.0 metres, the purchaser would not have suffered a loss.
198		The defendant, however, submits that this approach should not be followed and that no account should be taken of the 2.0 metre MRS reservation even when considering injurious affection to the retained land.  The defendant submits that as the 2.0 metre reservation was imposed pursuant to the MRS, cl 20 of the MRS and s 36(3) of the Metropolitan Region Town Planning Scheme Act 1959 should be seen as governing any compensation issues due to the 2.0 metre reservation.  The effect of these is that compensation is payable for injurious affection to land occasioned by the imposition of a reservation when
•	the land is first sold after the imposition of the reservation, or
•	an application for development is made and refused, or is approved subject to unacceptable conditions.
No claim has been made by the plaintiff under these provisions.  It is premature to do so as he has not sold the land and he has carefully avoided making an application for development.
199		It is clear that the plaintiff is not presently pursuing a claim under the Metropolitan Region Town Planning Scheme Act 1959 and that he may well seek to do so if he sells Lot 116 in the future, or is refused development approval on it, or is given an unacceptably conditioned approval for development.  What is not clear, however, is the interrelationship of the compensation provisions under that Act and under the LA Act.  The parties have not referred me to any provision which attempts to reconcile them.  The LA Act is a later enactment.  While it would be somewhat surprising that the legislature should provide a scheme whereby a person in the position of the plaintiff might both have compensation under s 241(7) of the LA Act and the Metropolitan Regional Town Planning Scheme Act, in respect of the effect on Lot 116 of the 2.0 metre reservation under the MRS, this may be a factual case to which the legislature had not specifically turned its mind.  In the absence of some clearer expression of the legislative intention, I am loathe to deny to the plaintiff what I presently see to be the benefit of the ordinary operation of s 241(7) in the particular circumstances of this case, even though the consequence may prove to be that there is scope for a double claim of compensation.
200		If there is fault in the plaintiff's position it may be that in respect of injurious affection he seeks to have the advantage of the Pointe Gourde principle, not directly to the assessment of compensation for the land actually taken which is the subject of LA Act s 241(2), but to the issue of injurious affection insofar as that notion is reflected in the present LA Act s 241(7), and in the particular facts of this case to a hypothetical development calculation to indicate the value of the retained land in the After Taking situation.
201		While recognising these issues, and despite much hesitancy, given the unusual circumstances of this case I am not persuaded that I should deny the plaintiff compensation in respect of the indirect factual consequences of the 2.0 metre MRS reservation as I have found those consequences to be in respect of his present claim for compensation under s 241(7).
Hypothetical Development Calculations
202		It is implicit in the findings I have made with respect to the setback requirements that I accept that the defendant's architect, Mr Oakley, was in error when, in his February 1999 designs, he applied the new Vincent Town Planning Scheme rather than the City of Perth Town Planning Scheme which Vincent was applying as at 1 May 1998.  Hence, his designs must be adjusted for present purposes.  Further, the designs of Mr Adam in the After Taking situation proceed on the basis of access from Loftus Street or of entry from Loftus Street and exit to Newcastle Street.  For these reasons his designs must also be adapted for present purposes.  As the hypothetical development calculations of Mr McMahon and Mr Richmond utilise the designs of Mr Adam and Mr Oakley respectively, their calculations are in some respects no longer directly applicable.  It is possible, however, to overcome this difficulty given the factual findings that are able to be made.
Before Taking
203		Before the resumption of the 18 square metres, Mr Adam's Attachment 13 to his report, which was designated revised Option A for some purposes, provides in my finding a good indication of what could have been constructed as a development by the plaintiff as owner, or of what would have been regarded by a hypothetical purchaser as an appropriate development.  I will use it as the basis for the Before Taking situation.
204		Although Lot 116 is not precisely rectangular, its dimensions are such that a rectangle measuring some 17.95 metres x 36.6 metres, as used by Mr Adam, will lie within the limits of its boundaries.  The undercroft carpark area could utilise virtually all of this area after allowing for the 9.0 metre setback from Newcastle Street.  The office floors above, however, were required to be set back 1.5 metres from the rear boundary and 3.0 metres from each of the side boundaries in a standard configuration so that the gross floor area of each office floor which could be accommodated on the site in the Before Taking situation was:
Depth:	36.6 metres - (9.0 metres + 1.5 metres)  =  26.1 metres
Width:	17.95 metres - (3.0 metres + 3.0 metres)  =  11.95 metres
Gross office floor area per floor  =  312 m2.
As indicated earlier, additional office floor area can be achieved under the R codes by extending each of the two office floors a further 3 metres to the eastern boundary for 9.0 metres of the depth of the building on the east side.  This allows an additional gross office floor area on each of the two levels as follows:
Additional gross office area:  9.0 metres x 3 metres  =  27.0 m2
205			Hence, the gross area for each of the two office floors could be:
Gross area per office floor:  312 m2 + 27.0 m2  =  339.0 m2
Gross office floor area - two floors  =  678.0 m2
Net lettable office area: 678 m2 less 12 per cent for public areas = 595 m2
For a gross area of 678 m2 the requirement is for the provision of 14 car bays.  The design would allow for 18 car bays.
After Taking
206		In the After Taking situation, given the assumptions indicated earlier that a further 2.0 metre setback should be allowed from the Newcastle Street frontage but the west wall of the office floors may be 0.75 metres further toward the western boundary except in the service area, Mr Adam's Attachment 12 Option 1 provides a useful indication of the two office floors.  However, that plan of Mr Adam is no longer applicable in respect of the undercroft parking floor as it provided for vehicular entry from Loftus Street and a central exit to Newcastle Street along an angled drive.  The undercroft parking floor requires modification to accommodate a vehicular entry and exit from the southeast corner of the building much as depicted in Mr Oakley's design attached to his March 1999 report.  The precise position of the southeast corner structural pillar in the undercroft parking floor in Mr Oakley's design may, as he indicated in his evidence, need to be adjusted a little so that it is located centrally in the crossover/driveway to allow entering traffic to proceed on one side of the pillar and exiting traffic on the other.  In this way the precise width of the crossover/driveway required by Vincent can be readily accommodated.  The pedestrian entry in Mr Oakley's design would no doubt also warrant some revision in view of the notional 11.0 metre setback from Newcastle Street and in view of the excavation and reforming of the ground levels along the Newcastle Street frontage as indicated earlier in these reasons.  It is to be noted that the 2.0 metre additional setback for which I have allowed will further facilitate vision of traffic approaching the intersection of Loftus and Newcastle Streets from the north in Loftus Street and turning left into Newcastle Street, and of pedestrians and cyclists using the dual purpose cycleway and footpath, by vehicles using the crossover /driveway to Lot 116 and vice versa.
207		On these bases the After Taking hypothetical development calculations are as follows:
Depth: 36.6 metres - (9.0 metres + 2.0 metres + 1.5 metres) = 24.1 metres
Width: 17.95 metres - (3.0 metres + 2.25 metres*) = 12.7 metres
(*except in service area)
Gross office floor area per floor (24.1 metres x 12.7 metres) - 
(0.75 metres for length of service area, say 5.0 m2 ) = 301  m2
Additional gross area on east side boundary: 8.5 metres x 3.0 metres = 25.5 m2
Gross area per office floor = say 326.5 m2
Gross office floor area - two floors = 653 m2
Net lettable office area: 653 m2 less 12 per cent for public areas = 575 m2
A building with a gross area of 653 m2 would require the provision of 13 or 14 car bays.  The design will allow for 14 car bays.
Other Factors
208		In the After Taking situation, however, I accept that the property could be expected to be to a limited degree less attractive for letting purposes than in the Before Taking situation.  The primary reason for this, in my finding, is not because the vehicular access would be thought unsafe as Mr McMahon sought to advance, but because of the inconvenience of the effectively one way vehicular traffic movement in Newcastle Street, both for entry and exit, which, as indicated in my findings earlier in these reasons would be imposed by Vincent and would be anticipated by a hypothetical purchaser.  In addition there is the additional traffic noise factor because of the location on a busy intersection.
209		Mr Richmond allowed a reduction of $5 per square metre in the rentals that might be achieved for these factors.  Mr McMahon, however, allowed a reduction of 20 per cent from rental values because of access difficulties, but this was assessed on the basis that there would be entry from Loftus Street for south bound traffic only, and exit from Newcastle Street to the east only.  On his assessment entry to the property would not be possible for north bound traffic in Loftus Street nor was entry from Newcastle Street possible.  That would be a significant impediment but for reasons given earlier that is not the situation as I find it.
210		In addition, Mr McMahon further reduced rentals by an additional 20 per cent because, in his understanding, the After Taking situation involved excavation of the site but not the Before Taking situation.  Mr McMahon's evidence was that this would involve a resultant loss of views and what he described as the exceptional advertising advantages which the land had previously enjoyed.  He also reduced the income for car bays, for which he had allowed $60 per month in the Before Taking situation, to $40 per month in the After Taking situation "to attract suitable tenancy".  In these respects, also, I am unable to accept Mr McMahon's opinions and reasoning.  Contrary to his understanding, as indicated in my findings earlier, a hypothetical purchaser would plan to excavate the site to near the Newcastle Street level in both the Before Taking and After Taking situations.  Thus there is no loss of height advantage in the After Taking situation.  In any event, I cannot accept from the evidence that the excavation of between 1.0 and 1.5 metres which is contemplated would have any significant effect on the city and suburban views obtainable, or that this would have a material effect on rentals.  Mr McMahon also seems to have overlooked that, with the 9.0 metre Before Taking (and 8.5 metre After Taking) x 3.0 metre extension to the eastern boundary for each of the two office floors, for which he also allowed to secure the additional lettable office floor space, much of the main views toward the city skyline from the office floors would be lost or impeded.  Even with excavation, Lot 116 would remain the most elevated of the four corner lots at the intersection of Loftus and Newcastle Streets, and a two storey office development built over a basement parking area, would still be a commanding development on that intersection.
211		I accept the view of Mr Richmond, therefore, that no additional reduction of rental is justified on these further bases.  In my view, Mr McMahon's reduction of the car bay rental brought his allowance to a figure which is more realistic for this item, as found earlier, at least when taken with a moderated office rental.  I'm not persuaded that any difference in this respect may be attributed to the effects of excavation.  For these reasons I would adopt Mr Richmond's rental figure of $165 per square metre inclusive of car bays in the After Taking situation.
212		There would also be some difference of construction and other costs between the Before and After Taking situations.  As the building would be smaller in the After Taking situation costs would be lower but, in the absence of specific evidence, I will favour the plaintiff by not differentiating between them.  Further, while the cost estimates deal with designs that are no longer directly applicable, they provide an approximate guide which I accept is adequate for present purposes.
213		There was evidence for the plaintiff that construction costs for an office development would also be higher after the resumption because the reduced area of Lot 116 would make it more difficult to store materials, plant and equipment during construction and off-site storage might well be required.  It was also suggested that the corner location would make it difficult for truck access and to unload trucks etc because of a perceived danger to traffic.  I did not find this evidence at all convincing.  In the first place only 18 square metres has been taken.  It is difficult to see that such a small area would make a significant difference.  Further, on the basis on which I have proceeded, in the After Taking situation any development would be set back an additional 2.0 metres from Newcastle Street which would actually leave a greater area than before the taking for the storage on Lot 116 of materials, plant and equipment.  With regard to truck access and unloading my primary findings about vehicular access remove much of the basis for this evidence.  Access at the eastern end of the Newcastle Street frontage could be utilised during the construction stage of a development and, notwithstanding the corner location, with normal traffic warning devices there could be temporary parking in the kerbside lane of Newcastle Street for deliveries without any particular aggravation of the road safety issues discussed elsewhere in these reasons.
214		For the reasons already given there would need to be some excavation of most of the site in both the Before and After Taking situations, although I accept that because of sight line considerations the After Taking situation would require a more detailed excavation including battering or shaping to the southwest corner and the Newcastle Street frontage than in the Before Taking situation.  It would also be necessary in May 1998, of course, to allow for the removal of the plaintiff's retaining walls to the Newcastle Street frontage and part of the western boundary, for which some provision is made by Mr Van Der Meer, and to install adequate retaining walls to the rear and eastern boundaries.  I accept from the evidence of Mr McMahon and Mr Richmond that costings for these matters, of the detail and precision that were provided by Mr Van Der Meer to the plaintiff, would not be available for any hypothetical development calculation made by a hypothetical purchaser and that only some rough estimation would be made.
215		Nevertheless, the nearest indication in the evidence of the After Taking situation earthworks and retaining wall costs is an estimate of Mr Van Der Meer of $69,000 plus GST.  This estimate, however, is in respect of a design of Mr Oakley so that, at best, it is an approximate indication for present purposes.  Even so Mr Van Der Meer's $69,000 plus GST requires some significant adjustments.  For example, the provision for GST had no relevance as at 1 May 1998.  He included $4,000 for planning and design costs which would be absorbed in the overall planning and design costs of a development, and Mr Van Der Meer's estimate of construction costs of $600,800 which Mr McMahon used (and which I have therefore used) included $5,000 for retaining walls which would no longer be required; hence that amount should be set off against the $69,000.  That adjustment aside, as indicated earlier the evidence does not suggest the total cost of retaining walls would significantly differ between the Before and After Taking situations although the walls would be different.
216		Not costed by Mr Van Der Meer or in any other evidence is the difference between the Before and After Taking situations due to the more detailed excavation including battering and shaping required to the south west corner and frontage in the After Taking situation.  While this should not be extensive it is a reasonable conclusion that some less cost would be involved in the Before Taking situation.  Otherwise, for reasons canvassed earlier the earthworks excavation would not differ between the Before and After Taking situations.
217		In the absence of a satisfactory estimate of the cost for these items in the Before and After Taking situations and the adjustments that should be made, it is preferable for me simply to make some reasonable allowance for the difference between the Before and After Taking costs.  This difference is all that is directly relevant for the purposes of assessing severance and injurious affection.  In this respect I propose to make what is no doubt a generous allowance by reducing Mr Van Der Meer's After Taking estimate for excavation costs (as part of his $69,000 estimate) from $28,000 to $20,000 and to use that in the Before Taking situation.  The effect of this is that I will allow $8,000 for the additional excavation and battering and shaping to the south west corner and frontage which can be anticipated in the After Taking situation.
218		Having regard to these various matters Mr McMahon's hypothetical development calculation should be adapted as follows:
Before Taking Situation:
Net anticipated income:	
595 m2 x $170 per m2 including car bays		$   101,150	
Capitalised at 8.5%		$1,190,000	
Less profit and risk at 17.5% 		$1,012,765	
Deduct:	
1.  Development costs		$  600,800		
2.  Interest factor on land
(8% for 9 months on $365,000)	
	$     22,000		
3.  Contingency factor		$    25,000		$  647,800	
Resultant Before Taking Land Value		$  364,965	
Equivalent to $555 per square metre	
After Taking Situation:	
Net anticipated income:	
575 m2 x $165 per m2 including car bays		$    94,875	
Capitalised at 8.5% 		$1,116,176	
Less profit and risk at 17.5%		$   949,940	
Deduct	
1.  Development costs		$  600,800		
2.  Interest factor on land		22,000		
3.  Contingency factor		25,000		
4.  Adjustment for additional site costs		8,000		$   655,800	
Resultant After Taking Land Value		$   294,140	

219		From these calculations the difference in hypothetical land value is:
Land Value Before Taking		$ 364,965	
Land Value After Taking		$ 294,140	
Hypothetical reduction of land value		$   70,825	

220		While in a number of respects aspects of these hypothetical calculations may favour the plaintiff, nevertheless, in my view they provide the most reliable guide in the circumstances of this case to the reduction of land value of Lot 116 due to the public work and the taking.  I am persuaded by them to make the finding that a hypothetical purchaser would offer for the retained land as at 1 May 1998, after the resumption, some $70,000 - $72,500 less than would have been offered before the resumption of the 18 square metres.
221		I assess compensation pursuant to s 241(7) of the LA Act (severance and injurious affection) in the sum of $72,500.
222		In case it should prove to be relevant I also record my findings as to severance and injurious affection in the event that I may be in error in allowing to the plaintiff compensation under s 241(7) which reflected the practical effect as I saw it of the existence of the 2.0 metre MRS reservation on the Newcastle Street frontage of the retained land as at 1 May 1998.  The hypothetical development calculation in the Before Taking situation remains unchanged.  The calculation in the After Taking situation is affected in that if the frontage setback is only 9.0 metres office floors a little larger than in the Before Taking situation can be constructed because the setback from the western boundary would be reduced from 3.0 metres to 2.25 metres.  The resultant After Taking land value would be some $210 greater than in the before taking situation.  Hence, in my finding, on this hypothesis there would be no reduction in land value for Lot 116 after the resumption and no amount of compensation would be payable under s 241(7) of the LA Act.
Injurious affection and disturbance to duplex building and southern retaining wall; Residual Value of Improvements
223		The plaintiff's claim for compensation in these and other respects requires a consideration of the terms and effect of s 241(7) on which the plaintiff primarily relies for this purpose.  As an alternative he also relies on s 241(6)(e) but for reasons noted later this provision will not support these aspects of his claim.
224		Section 241(7) is set out earlier in these reasons.  It should be noted that it differs from the terms of the previous equivalent provision in the Land Acquisition and Public Works Act 1902, s 63.  In particular, s 241(7) does not contain any reference to injurious affection, although it is common for the provision still to be referred to as the injurious affection provision.  This is a habit born, no doubt, out of past experience, but which may be misleading for the purposes of LA Act.  Section 241(7) now refers to damage suffered by the claimant -
"(a)	due to the severing of the land taken from adjoining land; or
(b)	due to a reduction of the value of adjoining land."
225		Absent from s 241(7)(b) is any express statutory identification of the cause or causes of a reduction of value of adjoining land for which compensation is payable.  As a matter of strict construction the notion of a reduction of the value of adjoining land would appear to relate back to the reference at the commencement of the subsection to the taking of land from a person who is also the holder of adjoining land.  If compensation for a reduction of value by virtue of the compulsory taking only was intended by the legislature, it is difficult to see how that is to be distinguished from the alternative provided in par (a) of damage suffered due to the severing of the land taken from the adjoining land.  The search for some wider meaning for par (b), intended by the legislature, encourages the view that it must be in some way a reduction in value of the adjoining land attributable to the use of the land taken for the purpose for which it was resumed.  This was the general effect of reasoning which commended itself in a number of cases decided in this Court under the previous s 63(b) of the Land Acquisition and Public Works Act; see for example, Konowalow and Felber v Minister for Works [1961] WAR 40, and the cases there considered.  Those decisions relied much on a similarity of language between s 63 of that Act and the equivalent provisions of the Land Clauses Consolidation Act 1845 (UK), each of which referred to injurious affection.  Nevertheless, the legislative history of s 241(7) and the reasoning in that line of authorities provides some indication that what was intended by the legislature in s 241(7)(b) was a reduction in value attributable to the use of the land taken for the purpose for which it was resumed.
226		That similarity of language between the UK and the Land Acquisition and Public Works Act provisions had, in the past, generally been taken as also commending the application to s 63(b) of the Land Acquisition and Public Works Act of the reasoning of the Court of Appeal in Edwards v Minister for Transport [1964] 2 QB 134.  In that case, Harman LJ, with Donovan and Russell LJJ concurring, having considered a number of earlier decisions were persuaded at 155 to the view, which is well summarised in the headnote at 135:
" … where damage was claimed for injurious affection, if the damage to the claimant's retained land arose partly from the use of the land taken from him and partly from the use of land which was never his, he could not claim the whole damage but only that part of it which he could attribute to the activities on what was formerly his own land."
Were that view to be applied in the present case, the resumed land is used almost entirely for a footpath, a retaining wall and a traffic signal, with just a very small portion for road kerbing and a little bitumen road surface.  This would be inhibiting indeed for some of the claims advanced by the plaintiff under s 241(7).
227		The plaintiff has submitted, however, that the recent decision of the High Court in Marshall v Director-General, Department of Transport [2001] HCA 37 has swept aside for Australian purposes the force of the decision in Edwards v Minister for Transport.  That submission has to be viewed with some caution.  In Marshall v Director-General, the High Court was considering s 20(1)(b) of the Acquisition of Land Act 1967 (Qd) which provided that in assessing compensation for the taking of land regard should be had inter alia to damage caused by:
"(b)	The exercise of any statutory powers by the constructing authority otherwise injuriously affecting" (other land of the claimant).
It will be immediately apparent that this statutory provision is materially different both from s 241(7) LA Act and from the UK Provision considered in Edwards v Minister for Transport.  Under s 20(1)(b) of the Queensland Act damage caused by the exercise of any statutory power by the authority which injuriously affected the retained land of the claimant is properly the subject of compensation.  This is an express and distinct statutory entitlement.  The High Court regarded the language of the Queensland provision to be clear and not able to be restrained by any of the reasoning in Edwards v Minister for Transport and gave to it the full natural meaning of the words.  As was said by McHugh J at [44]:
"All that the claimant is required to prove is that the exercise of a statutory power by the constructing authority injuriously affected the 'other land' of the claimant."
228		The plaintiff in this action now submits that s 241(7)(b) of the LA Act should be construed as having the same force and effect as the Queensland provision considered in Marshall v Director General.  The problem with this submission is that the two statutory provisions bear little or no similarity.  While, as was reasoned in Konowalow, there was a similarity between the former s 63(b) of the Land Acquisition and Public Works Act and the UK provision considered in Edwards v Minister for Transport, when the LA Act was enacted in 1997 the legislature chose to depart from the former language of s63(b).  It dispensed with the notion of damage due to injurious affection by taking and replaced it with the novel concept of damage suffered "(b) due to a reduction of value of that adjoining land".  In this form the words do not expressly relate the reduction in value to the public work for which the resumption was affected, let alone specifying whether the public work is relevantly limited to that carried out on the resumed land of the claimant (as in Edwards v Minister for Transport), or the public work at large.  Nor do they relate the reduction in value to the exercise of any statutory powers by the resuming authority as in Marshall v Director-General.
229		It is submitted that the words of s 241(7) which follow par (b) might be read to indicate a legislative intention the same as that considered in Marshall v Director-General.  These words are somewhat familiar in statutes of this type, but in s 241 they are incorporated in s 241(7), rather than standing at large, and qualify par (b) only.  The passage focuses on any increase in value of any land of the claimant, not just the retained land, "by the carrying out of … the public work for which the land was taken".  Any such increase in value is to be set off against any compensation under par (b).  This provision appears distinct in object and subject from par (b), and it is not apparent that it can assist in the interpretation of s 241(7)(b).
230		While s 241(7) is regrettably unclear, in particular because of the incompleteness of par (b), I am inclined to the view that par (b) is intended to allow compensation where retained adjoining land of a claimant is reduced in value by reason of the public work for which land of the claimant was resumed.  I prefer to see the justification for that interpretation, however, in the context and the opening words of the subsection and by adopting reasoning akin to that adopted in Konowalow in respect of the former s 63(b).
231		If that view be correct, the question arises whether the restriction to the carrying out of the public work on the adjoining resumed land which arises from Edwards v Minister for Transport is to be applied to s 241(7)(b).  My present view is against any continued application of Edwards v Minister for Transport.  It seems to me the material change of language by the legislature when it enacted the LA Act in 1997 is most likely to be explained by a legislative intention to get away from the restraints which had been understood to apply to the former s 63(b) by virtue of Edwards v Minister for Transport.  There is some further encouragement for the consequences of this view to be found in the reasons of Gleeson CJ, Gummow, Kirby and Callinan JJ in Marshall v Director-General at [23]-[32] where the analysis by their Honours provides reason for caution against accepting the correctness of aspects of the reasoning in Edwards v Minister for Transport.
232		I am not able to read into s 241(7)(b), however, the width of operation which was so manifestly intended by the Queensland provision considered in Marshall v Director-General.
233		In this case the plaintiff claims that after the taking, in the course of carrying out of the public work, ie in the construction of the duplication of Loftus Street, physical damage was done both to the structure of the duplex dwelling on the retained land and to part of the plaintiff's retaining wall toward the eastern end of the Newcastle Street frontage of the retained land.  He seeks compensation in respect of this physical damage.
234		Rather than attempting any more exhaustive analysis of s 241(7) in this case, I will proceed on the basis that, freed of any sense of restraint from the decision in Edwards v Minister for Transport, s 241(7)(b) would enable compensation for damage on land of the claimant directly caused by the carrying out of the public work for which adjoining land of the claimant was resumed.  That tentative view favours the plaintiff and is sufficient to enable the present case to be decided.
235		The works for the duplication of Loftus Street in the vicinity of Lot 116 were carried out in 1999.  It is the plaintiff's case that, in part by virtue of the use of heavy machinery and trucks in the course of the duplication of Loftus Street, vibration led to cracking in the walls of the brick duplex dwelling and perhaps some movement in its limestone foundations.  I accept from the evidence, in particular of Mr Van Der Meer, that vibrations from the use of earthmoving and compaction machinery and of heavy trucks within a reasonably close proximity to a building of the age and construction of the duplex dwelling can lead to a movement in the foundations and a cracking of mortar in the brick walls.  Subject to what follows the evidence, however, does not identify any particular incident or series of incidents or any particular activity which led to identifiable damage to the structure of the brick dwelling.  Rather the plaintiff's case proceeded on the basis that before the carrying out of the public work the structure was sound, but when the work had concluded there were cracks or increased cracks in the brick walls and subsidence.
236		There is a further and more particular allegation advanced by the plaintiff for this same damage to the duplex dwelling.  It is alleged that work in 1999 in association with the erection of a retaining wall associated with the truncation at the southwest corner of Lot 116 by the defendant and its contractors caused vibrations and disturbance likely to lead to damage of the type claimed.  To construct the retaining wall immediately on the defendant's side of the boundary of Lot 116, after the taking of the 18 square metres, it was necessary for the defendant's contractors to construct a temporary retaining wall just inside the new boundary and then to build the retaining wall itself.  Once that had been completed the temporary retaining wall was removed.  I am satisfied from the evidence that a normal and appropriate method of construction was employed both for the temporary retaining wall and for the permanent retaining wall, and that the proximity of a corner of the duplex dwelling to these works and the possibility of damage to the foundations and the walls of the duplex dwelling from the carrying out of these works was not such as to require the use of a much more complex and expensive method detailed in the plaintiff's evidence.  It is also my finding that there is nothing in the evidence to substantiate the assertion that the foundations of the duplex dwelling might actually have moved or been displaced in any way as a consequence of these works and I am satisfied on the evidence that only light and appropriate compaction equipment was used in the carrying out of the works, equipment which was unlikely to cause damage to the duplex dwelling of the type complained of.
237		There is yet a further particular cause for the damage to the duplex dwelling advanced by the plaintiff.  When the retaining wall was constructed in 1999 the duplex dwelling had long been vacated and was in a disused and dilapidated state.  The contractor of the defendant constructing the retaining wall disconnected the sewer connection to the duplex dwelling.  This had its path through the area where the retaining wall was being constructed.  At the plaintiff's insistence the sewer was later reconnected.  To do this contractors for the defendant excavated with machinery a trench from the Newcastle Street frontage of Lot 116 in the vicinity of the truncation retaining wall and down the western side of Lot 116 between the boundary and the western wall of the duplex dwelling.  This trench was dug close to the boundary.  New sewer pipes were laid in this trench and new connections were made to the relevant plumbing points along the western wall of the building.  Initially, the plaintiff's case was that, in addition, trenches were dug along the frontage and down the eastern side of the building and new sewer pipes were laid and new connections made to the duplex residence on the eastern side.  It became clear in the course of evidence, however, that this was not the case and that the only trench was from the connection point near the truncation retaining wall and down the western side of Lot 116.  There are some photographs in evidence of this work being undertaken showing the machinery used for part of the trench excavation and the nature and dimensions of the excavation.  
238		It is the plaintiff's case that by one or more of these three means the damage to the duplex dwelling was caused.  In its most detailed form the evidence of the damage came from Mr McMahon.  It was based on his visual inspections of the property at the taking date, before and after the road works in 1999, and more recently.  As the plaintiff's case was opened, and in the report of Mr McMahon in evidence, it appeared that inspections identified significant cracking in the walls and subsidence which had not existed before the public work in the vicinity was undertaken. The plaintiff's case was that the foundations had moved, causing walls to lean out of vertical as well as crack, and in Mr McMahon's opinion at least, this also caused structural damage to the timber framing of the roof with consequent disturbance to the roof tiling.
239		In his respect it was said by Mr McMahon that at 1 May 1998 the external walls were essentially free of structural wall cracks and the roof frame appeared aligned and without deviation, suggesting the footings were stable.  He went on to say that entry to the adjoining lands for the public work resulting in excavation on the western boundary and construction of a substantial brick retaining wall resulted in severe cracking to the western face wall of the duplex dwelling.  He said that the sewerage line work appeared to have further undermined footings causing the whole structure to crack and break the roof framing, evidenced now by the serious nature of internal wall cracks through cornice and brickwork.  He added that inspections during 1998, 1999, 2000 and to January 2001 showed the building now to be in a dangerous condition and close to collapse.  His report included three photographs purportedly of the external western wall taken it seems in 2000.  One of these photographs proved not to be of the western wall at all and remains unidentified.  The other two, however, depicted cracks in the wall to which Mr McMahon had referred.  One of the photographs had been given the descriptive caption by Mr McMahon "Wall and lintel cracking resulting from subsidence of footing to west wall."  Also featuring in his report of damage resulting from the public work was a photograph of a partially collapsed external nib wall at the rear of the premises.
240		Mr McMahon added that at the valuation date the buildings had some potential for cosmetic renovation and rental income capacity, pending redevelopment, before the public work had the detrimental effects set out above.  It was on this basis that Mr McMahon, in his report, went on to express the opinion that the duplex dwelling had a residual value to the plaintiff at the taking date of $11,000.  This is the basis for the plaintiff's claim for $11,000 for the loss of the residual value of improvements on the retained land.  In support of this figure it is the assertion of Mr McMahon that at the taking date, 1 May 1998, in view of the then condition of the duplex dwelling, a prudent purchaser would have retained the building and let it for up to three years during which time the design of the development could be finalised, approvals obtained and the market analysed etc.  He suggested the prudent purchaser would have estimated a rental of $75 per unit per week, ie $150 per week for these three years to which he ascribed a present value at 6 per cent of $19,632.  After deducting the eventual demolition costs, for which he allowed some $8,000, he rounded the result to demonstrate a residual value of $11,000 for the duplex dwelling.
241		As to all of this it may be said immediately that Mr McMahon's evidence as to the causes of the condition of the duplex residence which he described extended beyond the realms of his expertise as a valuer, and his evidence as to the potential of the premises for rental at the taking date seemed to overlook the Health Order which Vincent had placed on the duplex dwelling in February 1997 and the cost (nearly $50,000) to satisfy the requirements of that order before the premises could be let.  I mention this in more detail elsewhere.  This alone would appear to negate the opinion of Mr McMahon and reveals that the duplex residence would have had no residual value as at 1 May 1998.
242		There are, however, more fundamental issues.
243		At an early stage in the trial it became apparent that the defendant had secured access to a series of photographs depicting in some detail the external condition of the duplex dwelling.  These had been taken by a sub-contractor of the defendant in September 1998 and before the commencement of any works in the vicinity of Lot 116.  These photographs were admitted into evidence.  They had not been discovered.  Clearly visible in these photographs are cracks in the same places in the external western wall of the duplex dwelling as those relied on by Mr McMahon and depicted in his photographs taken in 2000.  The external single brick nib wall at the rear of the duplex building is also shown.  It was partially collapsed even before the commencement of work in the vicinity by the defendant.  In Mr McMahon's photographs taken in 2000 some further collapsing of this nib wall is apparent, but the evidence suggests that this further deterioration was due to vandalism.
244		In his evidence, Mr McMahon sought to explain his report in these respects, and the photographs, as intended merely to identify a worsening in the condition of pre‑existing cracks.  By this means he attempted to sustain his report and the plaintiff's case that the performance of the public work had seriously structurally damaged the duplex dwelling.  Having paid close attention to the content of his report, and his evidence about it, and in particular to his apparently uncomfortable and evasive manner as he dealt with this issue, I find I am unable to accept this explanation.  His report, in my finding, was clearly intended to identify subsidence and cracking which occurred as a consequence of the public work.  I am afraid the view I formed was that Mr McMahon was fundamentally caught out by the existence of the photographs obtained by the defendant of the pre‑works condition of the duplex dwelling and his attempt to get around these photographs and explain away his report was lacking in credibility.  Inter alia I am left with no confidence in his evidence as to the condition of the building.
245		Nevertheless, I record that the eventual effect of his oral evidence was to suggest that by virtue of the carrying out of the public work much of the pre-existing cracking, particularly diagonal cracking around external window frames had significantly opened.  This, he asserted, is a normal classic result of footing subsidence.  Cracks he said had opened so much that a finger could now be inserted in them.  Internally he noted that substantial cracking had opened up over door frames and that this had cracked through the ceiling cornice.
246		The plaintiff had earlier given less detailed evidence to the same general effect, although, as I have noted, the principal witness as to this damage was Mr McMahon.  The plaintiff's evidence extended to include the proposition that he felt the whole building had moved, although there was nothing offered by way of confirmation of this.
247		Mr Van der Meer also gave some evidence for the plaintiff touching on this issue.  He is an engineer and also has particular training and experience in soil mechanics.  Before this trial there had been extensive and detailed procedural directions which included requirements for notice to the other party of evidence and opinions of expert witnesses.  No notice had been given that Mr Van Der Meer would be relied on as an expert in relation to the causes of damage to the duplex dwelling.  He was called as an expert regarding other issues.  He had, however, inspected the building in December 2000 with Mr McMahon.  In the course of his evidence-in-chief and cross-examination he was asked for observations on some of the photographic evidence, including the photographs taken for the subcontractor before the commencement of works in the vicinity of Lot 116, as to the condition of the duplex dwelling.  Mr Van Der Meer expressed the opinion that the pre-works September 1998 photographs revealed fretting and mortar erosion, rather than cracks, and no subsidence.
248		In re-examination an attempt was made to have Mr Van Der Meer detail his inspection in December 2000 to describe what he then saw, and to compare it with what he could make of the September 1998 photographs, and to give his opinion of the cause of the cracks he saw in December 2000.  Because of the pre-trial directions and the implications for the trial in a number of respects if this opinion evidence were to be allowed, this was not permitted.  He was allowed, however, to attempt a comparison between what he saw in December 2000 and what he could make of the September 1998 photographs.  In the course of this, for the first time in re‑examination, Mr Van Der Meer described extensive structural cracking to the western wall above and below the windows which he had seen in December 2000.  He went on to add, despite the rulings, that in his opinion this indicated significant settlement.  This re-examination had been permitted on the basis that there should be further cross‑examination.  In the course of this Mr Van Der Meer indicated that even though he had taken photographs in December 2000 of the condition of the house, none was taken of the western wall.  Thus he had made no photographic record of what he described to be extensive structural cracking and significant settlement of the western wall.  This was surprising indeed, given the significance he now sought to attach to these observations.  Mr Van Der Meer was shown, however, Mr McMahon's three photographs taken in 2000 (mentioned above) which were in Mr McMahon's report.  Two of these were of the western wall.  They were compared by Mr Van Der Meer with the September 1998 photographs.  Mr Van Der Meer could not identify any new cracks or mortar erosion in the 2000 photographs, nor could he identify any apparent change in the cracks shown in the two sets of photographs.  When it was put to him that there was nothing in the brickwork to indicate that subsidence had occurred between the two sets of photographs, his reply was there was "… not much to indicate subsidence".  When that answer was challenged with the question "There's nothing, is there?", his only response was "I haven't measured the cracks".  He then agreed there did not appear to be any change in the cracks.
249		This exchange did exclude some earlier questioning about cracks in and above the lintel but the effect of this did not qualify these answers.  Mr Van Der Meer had also been cautious to point out that because of shadows he could not see the entire length of some cracks in some photographs.  There was also an obviously mistaken reference in one question to 1996 and 1998, rather than 1998 and 2000, but it is clear from his immediate answer that Mr Van Der Meer understood the question as it had been intended.
250		It was the effect of this evidence, in my finding, that Mr Van Der Meer accepted that so far as the photographs revealed he could not identify any apparent relevant difference between the September 1998 pre-works condition of the western wall and its condition in 2000 after the completion of the public works.
251		Mr Van Der Meer had not inspected the building before December 2000.  The affect of this further cross-examination, in my view, was to substantially if not entirely negate the force of much of Mr Van Der Meer's earlier evidence.  I am not persuaded from his evidence that there was any substantial difference, whether of a structural nature or otherwise, between the condition of the western wall in September 1998 before any works were undertaken by the defendant in the vicinity of Lot 116, and its condition after the works in the vicinity had been completed, whatever that condition might have been.
252		A contractor of the defendant had also arranged for an inspection to be undertaken of the duplex dwelling before the commencement of the works in the vicinity of Lot 116.  The contractor was responsible for the main earthworks and road construction and this was in the nature of a standard precaution should there be damage claims.  This inspection was undertaken by an architect, Mr Jones, who has specialised in his practice for over 18 years in building defects and their diagnosis.  As it is an issue between the parties I note my view that, in respect of the nature of the damage to the building and its causes, there is no basis established on which I would accept the plaintiff's submission that I should regard Mr Van Der Meer as having superior relevant qualifications and therefore disregard any conflicting evidence of Mr Jones.  There are clearly areas where Mr Van Der Meer has expertise that Mr Jones does not profess, eg engineering and soil mechanics, and likewise Mr Jones (but not Mr Van Der Meer) has his expertise in architecture and in particular with regard to defects in buildings.  As the evidence has taken shape in this case the expertise of Mr Jones is more relevant for most issues than that of Mr Van Der Meer.
253		Mr Jones first inspected the duplex residence in February 1999 which was before the commencement of works in the vicinity of Lot 116.  He inspected the premises again in December 1999 after the works had been completed in the vicinity, and also in January 2001.
254		The windows of the building had been covered as a precaution against vandals and squatters, and Mr Jones noted that this had the effect of requiring the use of a torch for internal inspections.  On his first inspection Mr Jones noted and recorded a good deal of cracking in the walls, both internal and external, although particularly on the external western wall which, as the "weather wall", in Mr Jones' view which I accept, is typically worse in condition than any other.  Most of these cracks, in his view, were minor and not structural.  That was also his view on the subsequent inspections.  The only cracks of structural significance which he identified were those associated with the progressive expansion due to corrosion of the steel lintels above wall openings, a condition in Mr Jones' experience typical of a building of this age and design.  These structural cracks were present he said on his first inspection and thereafter.  It was his opinion that even on his most recent inspection early this year these cracks were much the same as on his first inspection, although there had been continuing erosion of mortar around some of the cracks which, in some places on external walls, left gaps in the mortar between courses of bricks.
255		Mr Jones attributed much of the interior cracking to progressive deterioration with age of the plaster finish, which in a number of places he noted had lost its adhesion to the wall and was "drumming" and crazed.  While there was a lack of meticulous attention to detail in some matters, apart from one internal stress crack in a front bedroom, there seemed to be no new crack of any significance now identified in the evidence which Mr Jones had not identified on his first inspection, although some cracks had continued to develop in the intervening period.
256		It was his opinion that there is no evidence whatever of any settlement of the external walls.  Further, it was his evidence that no cracking had in any way affected the structure of the roof or led to any disturbance of the tiles or ridge capping, although he had noted disturbed or missing tiles or ridge capping by virtue of other causes.  In this respect I accept his evidence that the timber roof structure is quite separate from the brick walls, and that the internal brick walls do not extend up into the ceiling space, so that a crack in a cornice inside a room does not indicate that a brick wall has cracked into the ceiling space.  It is to be noted that even though damage to the roofing structure was claimed by the plaintiff, no evidence was adduced of any inspection of the roof structure or to identify any defect in the structure.
257		While it was also claimed that walls had rotated or were not vertical, no evidence was led for the plaintiff which sought to demonstrate or confirm this by measurement or testing.  It was Mr Jones' evidence which I accept that all walls were vertical.
258		In this respect some effort was made in cross-examination to have Mr Jones accept that gaps between cornices and walls, as was the case in some rooms, indicated that the walls were out of vertical.  I accept Mr Jones' evidence that these gaps between some cornices and walls were not due to wall movement but to the sagging of the ceiling with age and moisture which had caused the cornice to pull away from the wall.
259		Mr Jones did advance the view that over the years there had been some secondary compaction of the sand under the limestone foundations which had led to some settling of the walls but this he ascribed primarily to uncontrolled water flow from downpipes onto the soil surface near to the foundations.  It appeared that his opinion in this respect was affected by factual error in that he seems to have been unaware of the relaying of the sewerage pipe which at the time involved some significant disturbance of the soil relatively close to the western wall and southwest corner of the building, and he had not noticed that before this there had been paving which should have moderated the force of water from downpipes and dispersed much of it away from the building.  It seemed to be the affect of his evidence that some cracking at least, albeit minor, was due to this apparently limited settling or movement of the walls but it is not clear from his evidence whether this was the situation as he observed it on his first inspection or on his December 1999 inspection.
260		I do accept, however, from his evidence that all of the cracking that presently exists is repairable, a view which accords with the only evidence before me as to the subject of repairs and their cost.  The only evidence led for the plaintiff, and the only evidence before me, in these respects was from Mr Logan, and that was second-hand.  It was his evidence, having noted Mr Van Der Meer's reports of damage, that he understood repairs to the retaining wall, rear house wall damage, wall cracks and disturbance damage is likely to amount to $15,000.  This included the repairs to the front retaining wall which Mr Van Der Meer separately estimated at $9,350, and the repair to a rear house wall which I take to be the nib wall mentioned elsewhere and which I accept had partially collapsed before any work had been undertaken by the defendant in the vicinity.  That would suggest that all the internal and external wall cracks and disturbance damage is repairable at a cost not exceeding $6,000.  The plaintiff quantifies his claim in this respect at $5,650, ie $15,000 - $9,350.  This tends to confirm, in my view, Mr Jones' appreciation that the cracking throughout, including the structural cracking to the western wall, is minor and repairable.
261		The evidence as to there being any damage to the structure of the duplex dwelling due to any phase of the public work, and if so what damage, is less than satisfactory and varies considerably in quality and effect.  In my assessment of the relevant witnesses and what they have said, the proof of the plaintiff's case that there was any damage hangs finely in the balance.  In the end I have been persuaded on the barest of the balance of probabilities that there has been some exacerbation of existing defects in the duplex dwelling, due as a matter of probability to the relaying of the sewerage service.  I am not persuaded that this exacerbation damage is significant or rendered the house more structurally unsound than before the defendant carried out the public work in the vicinity of Lot 116.  Indeed, it is my finding that all cracks and disturbance damage to the duplex dwelling is repairable at a cost not exceeding $6,000.
Loss of net rent
262		There is, however, a further significant issue.  Throughout the 1980's and until mid 1995 the plaintiff let the duplex residences.  From the evidence it is apparent, despite the plaintiff's insistence that he had maintained them adequately, that little had been done to them by way of maintenance.  In effect only essential work had been performed.  His expenditure on maintenance from 1986 to mid 1995 seems to have been only some $2,360, and since then to trial a further $2,140 although his records may not be exhaustive.  By 1995 the duplex residences were, in my finding, in clear need of significant refurbishment including and especially to the kitchen, bathroom, toilet and laundry areas.  The age, design and condition of the duplex residences did not make them attractive for letting and they had no vehicular access.  It is clear that from as early as 1983, when the plaintiff secured the rezoning of Lot 116 from residential to commercial and sought development approval for a two storey office development on Lot 116,that the plaintiff had determined that Lot 116 should be redeveloped as offices and the duplex dwelling demolished.  This remained his view even in 1996, although over the intervening years his position seems to have wavered between undertaking the redevelopment himself and selling the property for its redevelopment potential.  I accept from this evidence that from the point of view of the plaintiff it had been a matter of finding the right time, having regard to other demands on his attention and energy and finances and the fluctuations of the property market for him to redevelop or sell, although for much of the time from the late 1980s, especially in 1995 and some of 1996, the resolution of the proceedings in the Family Court which involved questions as to the division of his many property assets with his former wife, distracted him from any active pursuit of these possibilities.
263		The duplex residences had so deteriorated as a rental proposition, however, that for some years before 1994 the class of tenant attracted to it were those in impoverished circumstances in need of low cost housing, who were referred by the public housing authority and had the benefit of some governmental assistance.  For some years until mid 1995 each of the duplex dwellings was tenanted by such a person, in each case a man living alone.  Each paid a weekly rental of some $75 even though prevailing rents for such properties in good order were double that figure.  These tenants were clearly less than satisfactory and on separate occasions in May and June 1995 the tenants of each of the duplex dwellings left without notice, owing several weeks rent.  The plaintiff's net rental income for 1995 had been only $1,655.  When these tenants left in those circumstances the plaintiff did not seek to re-let either of the duplex residences and the duplex dwelling has remained unlet since then.  An indication of its condition is provided by the formal health notice which Vincent issued in respect of the property in February 1997, although in some respects by then the condition of the property had further deteriorated due to disuse and some vandalism.  The Vincent notice prohibited the use of the property for human habitation until substantial works were undertaken.  In essence, the notice requires a complete refurbishment of the premises including the kitchens, bathrooms, laundries and toilets.  I accept the evidence of Mr Van Der Meer that the cost of compliance with this notice would be just on $50,000.  If that expense was incurred it appears that gross rentals in the order of $200 per week might be obtained today.  This figure would have been about $150 per week for each duplex in 1995 - 1996.  It is clear, and it is my finding, that it would be quite uneconomic to expend some $50,000 for rental returns of that nature.  Several years of letting would be necessary to recover the bare capital expenditure from net returns and in the meantime the owner, whether the plaintiff or a purchaser, would not have the far better returns anticipated from an office development and would be incurring ongoing ownership and maintenance costs.
264		The duplex residence had thus been vacant for something in the order of six months when, on 15 December 1995 MRS Amendment No 959/33 was gazetted which inter alia imposed the two metre reservation to the frontage of Lot 116 and reserved the 4.5 metre x 4.5 metre truncation to its southwest corner.  It is the essence of the plaintiff's case that, by virtue of an early notification in 1994 of the prospect of Amendment No 959/33, and its promulgation in December 1995, he had formed the view that by virtue of what was in contemplation for the duplication of Loftus Street and associated works, Lot 116 would be less attractive as a residential property because of its proximity to the contemplated works and the busy thoroughfare that would result and he ventured the possibility that the duplex dwelling might need to be demolished because of the proximity of the public work, a view for which there seems to be no adequate basis in fact.  He also suggested that even then he had concerns that vehicular access to Lot 116 would not be possible which would inhibit its commercial development.  He concluded, therefore, he says, that the resumption or purchase of the whole of Lot 116 by the authorities was likely.  It is the effect of his evidence that by virtue of these matters he decided against any further letting of the duplex residences or any refurbishment to improve them for letting.
265		This claim, however, is maintained only from 3 October 1996 to the date of taking.  It was on 3 October 1996 that the MfP advised the plaintiff it would consider acquiring Lot 116.  It is his evidence that he regarded this as an indication on which he placed reliance that MfP would purchase the property.  In this respect the WAPC in December 1996 did offer to purchase Lot 116 for some $250,000, a figure determined on expert advice, but this was not acceptable to the plaintiff and negotiations continued into 1997 when the plaintiff retained a valuer, Mr Bracewell, to negotiate and then Mr McMahon in July 1997.  By August 1997 MRWA had assumed responsibility from MfP and Chestertons were appointed by MRWA to negotiate on its behalf.  In November 1997 Chestertons informed Mr McMahon for the plaintiff that MRWA was not prepared to purchase the whole of Lot 116.  The formal notice of intention to take the 18 square metres followed in December 1997.  Nevertheless, it is the plaintiff's case that by virtue of this indication on 3 October 1996 it was appropriate and reasonable for him to leave the property vacant, and that it was due to the failure of MfP for the defendant to make an offer to purchase which reasonably reflected the true value of Lot 116 that the position continued in which the duplex dwelling was vacant and he was deprived of rental income.  It is in this context that the plaintiff submits that the loss of rental income from 3 October 1996 to 1 May 1998 was causally connected to the resumption for the public work and should be compensible being not too remote and not being a loss which a reasonable person would have avoided.
266		It is also the fact that before 3 October 1996 the plaintiff had sought to place Lot 116 in the hands of real estate agents for sale and on 2 October 1996 he had sought approval from Vincent for a planned office development with vehicular access from Newcastle Street.  Shortly after 3 October 1996 the plaintiff conducted the correspondence with Vincent, MfP and MRWA concerning approval for access to Lot 116 which has been the subject of detailed consideration earlier in these reasons.  Further, on 24 February 1997 Vincent served the health notice on the plaintiff which precluded the letting of the duplex residences from that point of time.  By 29 August 1997 the plaintiff had again applied to Vincent for approval for an office development with vehicular access to Newcastle Street as discussed elsewhere in these reasons.
267		From all of this it is my finding, despite some evidence to the contrary, that the decision of the plaintiff in mid 1995 not to re-let each half of the duplex dwelling as it became vacant was not by virtue of the then contemplated public work or the then anticipated amendment to the MRS or their anticipated consequences.  The probabilities clearly favour the view, in my finding, that the plaintiff determined he would no longer be bothered with tenants given the low financial return, and he was not prepared at that time to consider any significant renovation or improvement to the duplex dwelling, no doubt because there was no prospect of a worthwhile financial return and because of the prospect of a division of his assets in the matrimonial proceedings which left him unclear as to his future position.  It is apparent that in 1996 and 1997, in my finding, the plaintiff was exploring more than one possibility in respect of Lot 116, including his own development of an office block or the sale of Lot 116 with such a redevelopment having been approved.  No doubt he was seeking to determine which possibility offered to him the best return, and the prospect of the sale of Lot 116, at a figure which suited the plaintiff, to the defendant or MfP was only one such possibility.
268		The continued lack of letting of the duplex residences from 3 October 1996 has not been shown to be by virtue of, or in reliance on, the stated position of MfP that it would consider acquiring Lot 116 or on the prospect that MfP might purchase the property.  No price had then been agreed and no firm commitment had been made on either side.  While the MfP genuinely considered purchase and made a genuine offer based on expert advice, that offer was not acceptable to the plaintiff.  The prospect of purchase was no more than a possibility, one among others then and thereafter being considered by the plaintiff.  His reasons for not letting the duplex residences on and after 3 October 1996 remained, in my view, much as they had been in mid 1995 although by then the division of his assets in the matrimonial proceedings had actually been ordered.  By February 1997 the health notice of Vincent put out of practical consideration any prospect of letting either of the duplex dwellings because the costs of satisfying the demands of the notice were economically prohibitive given the return that might be anticipated from rental.
269		For these reasons the plaintiff has not established that the lack of rental income from the duplex dwelling on Lot 116 from mid 1995, and in particular from 3 October 1996, to 1 May 1998 was relevantly attributable to or causally related to the public work or to any action or inducement by the defendant, WAPC or MfP (whether preparatory to or for the purposes of that public work or the resumption or otherwise).
270		In support of the plaintiff's claim for loss of rental between 3 October 1996 and the date of the taking 1 May 1998, it was submitted that the decision of Anderson J in Cook and Edwards v City of Stirling (1991) 4 WAR 469, in the context of s 63(1) of the Land Acquisition and Public Works Act 1902, should be disregarded.  In support of this it was argued in particular that the subsequent decision of the Privy Council on appeal from Hong Kong in Director of Building Lands v Shun Fung Ironworks Ltd [1995] 2 WLR 404, should be seen as displacing the force of the decision in Cook and Edwards.  This submission and other decisions called in aid in its development gives rise to some interesting and far reaching issues.  It is critical to remember, however, that in the context of compensation for compulsory taking of land the terms of the relevant statutory provisions providing for compensation remain determinative and there are some significant differences which would require close examination between the Hong Kong statute which applied in the Shun Fung Ironworks Ltd decision and s 241 of the LA Act.  More importantly for present purposes, however, the factual content of this case as set out in the findings I have just made does not, in my view, provide a foundation for the application of the Shun Fung Ironworks Ltd decision even if it were open to do so on the true construction of s 241.  For this reason I do not propose to give any further detailed consideration to this submission in this present case.
271		For the reasons given no compensation is justified in respect of the plaintiff's claim for loss of rental income before the taking.
272		Further, for the reasons given, the duplex residences on the retained land after the taking had no economic value to the plaintiff as they could not be let without the plaintiff first incurring expenditure of some $50,000 for which no reasonable economic return was, or could have been, anticipated.  Hence, there is no factual reality for the basis upon which the plaintiff pursues his claim for the loss of a residual value of the duplex dwelling in the sum of $11,000.  In truth, in my finding, at the time of the taking, and thereafter, the duplex dwelling was of no value to the plaintiff.  It would have to be demolished before an office development of the type contemplated could proceed, whether it was the plaintiff or a purchaser of Lot 116 who pursued such a development.  Further, as the highest and best use of Lot 116 was and is as a development site for such an office development it follows that in truth there is no financial loss or damage to the plaintiff by virtue of the wall cracks and disturbance damage to the duplex dwelling considered a little earlier in these reasons, as the building must be demolished in any event.  For these reasons there should be no award of compensation to the plaintiff in respect of claim for $5,650 in respect of the cost of effecting repairs to the wall cracks and the other disturbance damage to the duplex dwelling.
Retaining Wall
273		On 13 October 1999 part of the old brick retaining wall at the eastern end of the Newcastle Street frontage of Lot 116 collapsed.  At the time work was being undertaken in the footpath area immediately adjacent to the collapsed section of the wall.  The work was the laying of underground electricity cables as part of the conversion of electricity services to underground cabling.  This work was being carried out by a subcontractor of Western Power, which was in turn a contractor to the defendant.  It was being undertaken as part of the duplication of Loftus Street.  The subcontractor was Cable Layers WA Pty Ltd.  For the purposes of this action it is not disputed that negligence by the sub-contractor caused the collapse of the retaining wall.
274		While what followed occupied some time in the evidence and submissions it is not of particular relevance.  The plaintiff wanted his wall repaired.  He would, however, only deal with the defendant.  The defendant took the view it was the responsibility of Western Power.  In turn Western Power pointed to its sub-contractor.  The sub-contractor turned to its insurer.  The insurer would not do anything unless a claim form was submitted by the claimant.  The plaintiff refused to claim against the sub-contractor.  This impasse has remained unresolved ever since, so that it is raised as an issue in this action.  The retaining wall remains unrepaired and is interfering with pedestrian traffic.
275		There was a further element.  The retaining wall was of brick construction and was located on Lot 116.  It was the property of the plaintiff.  The plaintiff has insisted that instead of merely restoring the brick wall, the defendant should replace it by a reinforced concrete wall with brick facing and that this should be erected on the footpath side of the boundary, ie not on Lot 116.  This is the type of retaining wall that has been constructed by the defendant, at the plaintiff's insistence, for the truncation following the taking of the 18 square metres.
276		Whatever be the merits of the position and design of the retaining wall at the truncation, the present issue is the rebuilding of the plaintiff's brick retaining wall which had stood on his property since 1936 until the sub-contractor caused it to collapse.  The rebuilding of that wall is a much less expensive and less complex task than the erection of a reinforced concrete wall with brick facing outside Lot 116 which the plaintiff seeks.
277		In the circumstances, and on the view of s 241(7)(b) identified earlier, it is appropriate that the plaintiff be awarded compensation for the cost of rebuilding his damaged wall.  There is no precise evidence of the cost of doing this.  Mr Van Der Meer has provided an estimate of the cost of erecting a new reinforced concrete wall with brick facing wall outside the retained land, which is $9,350.  The defendant objects validly this is not the damage the plaintiff has suffered.  The defendant submits that on the basis of the cost of building a new retaining wall on Loftus Street frontage of the retained land it could be reasonably estimated that $3,000 would be sufficient to rebuild the collapsed wall.  That appears to me to assume too much about the comparative costs of the two walls.  Rather than make no award because of the want of adequate evidence of the plaintiff's true damage, and rejecting the plaintiff's submission that I should accept the estimate of $9,350 as it is clearly for a different and more expensive wall, I propose to award the sum of $5,000 as no doubt a generous approximate sum for the rebuilding of the plaintiff's retaining wall.
Stamp duty, conveyancing and Land Titles Office fees on a replacement property
278		The plaintiff claims that he should be paid compensation in a sum sufficient to cover costs such as stamp duty, conveyancing fees and Land Titles Office fees on the purchase of a replacement property as a consequence of the taking of the 18 square metres.  The claim is made pursuant to s 241(6)(e) LA Act on the basis that it would be appropriate to take such costs into account in the circumstances of this case.  The position could have been quite different had there been substance to the primary claim of the plaintiff that by virtue of an inability to obtain vehicular access to Lot 116 following the taking, the property had been rendered effectively worthless to the plaintiff and incapable of development.  For the reasons given earlier that is not the case.  In these circumstances there is no basis on which it would be appropriate, in my view, to make provision for the costs of the plaintiff acquiring another property.  No compensation will be awarded in respect of this item.
Professional fees and expenses incurred prior to issue of proceedings
279		The plaintiff quantifies his claim in respect of these items at $68,475.25.
280		Of this sum, $1,650 and $750 are for valuers' fees, $2,500 for BSD Consultants - Mr Bordbar - for traffic engineering fees and $505 for survey fees.  The remaining balance of $63,070.25 is for Mr McMahon's fees.  The plaintiff's claims in this respect are made pursuant to s 241(6)(e) on the basis that it should be considered just to take these matters into account in the circumstances of this case.
281		The plaintiff's case is that it was reasonable for him to seek appropriate professional assistance before the issue of proceedings so that he had a proper appreciation of his entitlement to compensation and so that he could properly assess the offers of compensation made by the defendant and also the offers to purchase which were made by the defendant.  The defendant objects that there is no statutory provision which entitles the plaintiff to an award of compensation for these fees and it is stressed that it is the scheme of s 241 that compensation be limited to the matters for which provision is made in that section.
282		There is a difficulty with the plaintiff's reliance on s 241(6)(e) in support of this aspect of his claim.  Section 241(6) is virtually identical to the provision which preceded it in the Land Acquisition and Public Works Act 1902, namely s 63(aa), and in particular par (v) of subsection (aa) which was in identical terms to s 241(6)(e).  In Konowalow and Felber v Minister for Works (supra) it was held that the ejusdem generis rule should be applied to s 63(aa)(v) so that should be read as confined to a genus which was described as "compensation for loss or damage resulting from interference with the activities being carried on by the plaintiff on the land"; see p 42 per Virtue J.  Section 241(6) is clearly the direct legislative successor to s 63(aa) and it must be assumed that when the LA Act was enacted in 1997, in terms relevantly which effectively repeated the language of s 63(aa), the legislature did so with full knowledge of the long-standing interpretation that had been placed on the earlier provision by the decision in Konowalow and Felber v Minister for Works.  In these circumstances I do not feel free to apply to s 241(6)(e) a meaning inconsistent with that applied to s 63(aa)(v) of the preceding Act in the Konowalow decision.  The plaintiff's claim in respect of professional fees and expenses incurred prior to the issue of proceedings has not been pleaded or shown to be within the interpretation of s 241(6)(e) which I have indicated.  On this basis the claim in this respect must fail.
283		Should the view be taken that s 241(6)(e) of the LA Act is properly to be understood as a provision which stands independently of the preceding paragraphs of that subsection so that it is not restrained by the ejusdem generis rule, then I should briefly record my views that the unusual and particular circumstances of this case, including the question whether vehicular access to Lot 116 was possible, and uncertainty as to whether there would be a resumption for a truncation from Lot 116, or whether the whole of the land would be purchased, provide a sufficient factual basis on which it would be just that the plaintiff be allowed the reasonable costs of expert advice as to the value of Lot 116 before and after the taking and as to the nature of an appropriate claim for compensation for the land resumed.  In my view, this would extend to the amounts claimed in respect of BSD Consultants, Patterson Tudor Owen & Parker, and Egan National Valuers.  The defendant objects in respect of the fees of Stanton Hillier Parker on the basis that that firm was retained well after the resumption to assist in the negotiation of the sale of Lot 116 to MRWA.  While this is somewhat borderline it is my view that when the whole circumstances are taken into account, including the continued interrelationship in negotiations between the defendant and the plaintiff over the plaintiff's claim for compensation and the possibility of purchase of Lot 116 by the defendant, I would be persuaded in the unusual circumstances that it was just to make allowance for this claim.
284		That leaves the claim of $63,070.25 in respect of Mr McMahon.  While it was reasonable in my view for Mr McMahon to be retained to assist the plaintiff in respect of the issues mentioned, it is clear that Mr McMahon's role extended far beyond what would be reasonable to enable the plaintiff to form appropriate views on these issues.  As has been mentioned elsewhere in these reasons, Mr McMahon became an advocate in many circles for the plaintiff's position in respect of a number of matters and in particular was heavily involved in what may be described as a public and politicised campaign being conducted by the plaintiff.  This came to be directed in the end towards ensuring that the defendant resumed or purchased the unresumed balance of Lot 116 as well as the 18 square metres, and did so at a figure in the order of that which is claimed in these proceedings, including all incidental claims.  In my view, Mr McMahon's role far exceeded that which was reasonable or necessary.  I have not been persuaded it would be just to take into account and make financial allowance for the full range of his activities in this matter.  There are further difficulties with the satisfactory proof in this case of the extent of the time actually spent by Mr McMahon and in identifying the nature of the activity in which he was engaged at any particular time.  No satisfactory contemporaneous records of either time or function appear to have been maintained and his evidence in support of this item of claim is essentially based on a retrospective reconstruction which is in the most generalised and incomplete form.  There is other evidence before me as to what it might be appropriate for a valuer to charge to advise a client as to the value of property in this case but I think that might take too limited a view of the type and extent of advice which it was reasonable for the plaintiff to obtain in the circumstances of this case.
285		For the reasons given I can do no more than attempt a generalised assessment and in doing this I am persuaded to err in favour of the plaintiff in making an assessment of what professional assistance of this nature it would be reasonable and appropriate for him to have utilised.  I would limit any allowance that it would be just to take into account in respect of Mr McMahon's services to some $20,000.  Thus, were it open under the LA Act to make an award in respect of professional fees and expenses incurred prior to the issue of proceedings, I would make an award in respect of these fees and expenses rounded to $25,500.  For the reasons noted, however, it is my view that it is not open under s 241 to make any award.
Rates, land tax, insurance and maintenance from 1 May 1998
286		This claim is made in respect of the rates, land tax, insurance and maintenance which the plaintiff has incurred in respect of Lot 116 and its improvements since the taking of the 18 square metres on 1 May 1998.  The claim made is particularised at $8,730.66.  The claim might have had a different factual basis had the plaintiff made good his basic claim that the retained land had been rendered valueless to him by the taking of the 18 square metres, but that is not the case.  The plaintiff continues in the ownership of the retained land and he has had its possession and enjoyment since the taking of the 18 square metres.  During that time he has chosen not to pursue its redevelopment or sale, or to put it to any other use, and has focused his attention on his claim for compensation for the taking of the 18 square metres and on attempts to persuade the defendant to purchase or resume the retained balance of the land at a figure which suited the plaintiff.  It has not been shown, therefore, that there is a statutory basis under s 242, on which the plaintiff can claim for the payment of charges and outgoings of this nature in respect of the retained land following the taking on 1 May 1998.
287		Alternatively, the plaintiff claims these amounts pursuant to s 241(9) on the basis that exceptional circumstances would justify the granting of a higher amount by way of solatium than 10 per cent of the compensation otherwise payable.  In support of the plaintiff's claim to bring these items within the scope of s 241(9) an attempt is made to rely on earlier decisions dealing with s 63(c) of the Land Acquisition and Public Works Act 1902 as they were considered in decisions such as R v Compensation Court of Western Australia; ex parte State Planning Commission & Anor; Re Della-Vedova (1990) 2 WAR 242 and D'Amico v Shire of Swan-Guildford [1969] WAR 183.  The difficulty with this approach is that it ignores the very different context in which words similar to those considered in those cases now appear in the LA Act.  Section 241(8) now provides that where land is taken without agreement an amount may be added to the award of compensation "appropriate to compensate for the taking without agreement".  Subsection (9) then further provides that this additional amount must not be more than 10 per cent of the amount otherwise awarded unless exceptional circumstances justify a higher amount.  In the context of the LA Act it is clear that s 241(9) is confined to the additional amount or solatium which is appropriate to compensate for the taking without agreement for which provision is made in s 241(8).  The words in s 241(9) do not represent a separate and distinct entitlement to compensation, which are of general operation as they were in the provision in the previous Act as considered in the authorities noted.  It has not been shown that the amounts presently being considered can be brought within the operation of s 241(8) and (9) of the LA Act.  Further, and distinctly, as a matter of fact, the plaintiff has not make good his claim that there were "exceptional circumstances".
288		For these reasons no award can be made in respect of these items.
Refinancing costs, interest, bank charges
289		As amended the plaintiff claims $2,314 in respect of the cost of refinancing which he says is a consequence of the taking, $16,598 being interest charges on loans which were secured on Lot 116 which represents the difference between the interest rates charged by his bank and the provision for interest in s 241(11) of the LA Act in respect of the period from 1 May 1998 to 31 March 2001, and the sum of $3,096 by way of overdraft facility fees for the same period.  It is the plaintiff's case that as a consequence of the taking he was obliged to rearrange his borrowing on Lot 116 and so has suffered the interest and other charges for which the claim is made.  The refinancing is not any way related to the severance of the resumed land from the land previously secured by mortgage.  The claim is presented on an entirely different footing in respect of these matters.
290		In essence, it seems to be the plaintiff's case that because in his view the defendant has consistently failed to properly assess and therefore to recognise the validity of the plaintiff's claims, in particular in respect of injurious affection and severance, the plaintiff has failed to make reasonable and appropriate offers of compensation and has failed to make proper advance payments of compensation under s 248 of the LA Act.  The effect of this, it seems to be alleged, is that the plaintiff has been denied the money which he ought to have received by way of compensation or at least by way of advance payments of compensation.  As he has not had the use of this money he has, instead, borrowed on the security of Lot 116 to provide himself with the equivalent of the funds that he contends ought to have been received from the defendant as compensation or advance payments of compensation, and he now seeks to recover the costs and charges in respect of the borrowing.
291		There are many difficulties with these claims.  An obvious difficulty is the failure of the plaintiff to make good his primary claim to have been entitled to some $455,000 for severance and injurious affection to the retained land in addition to the value of the resumed land.  The defendant made an advance payment to the plaintiff on account of compensation of some $45,200 plus interest on 28 July 1999.  The plaintiff seeks to contrast this with his claimed entitlement to a sum exceeding $470,000.  By virtue of this disparity the plaintiff seeks to justify his use of borrowed funds over the intervening period.  It will be immediately apparent that the compensation assessed as indicated in these reasons does not provide the same or any adequate factual foundation.  
292		Further, the plaintiff seems to misunderstand the operation and effect of relevant provisions of the LA Act in respect of this aspect of his compensation claim.  Section 248 of the LA Act deals with advance payments.  By s 248(1) the acquiring authority may offer an advance payment pending settlement of a compensation claim.  If the acquiring authority makes an offer of compensation which is not accepted, the claimant may require the authority to pay an amount of not more than 90 per cent of the offer as an advance payment pending settlement of the claim.  There is no prescription in s 248 as to the amount or basis of calculation of an advance payment offered by the authority.  If an offer is made and accepted the effect is that interest is not payable to the claimant in respect of the amount of the advance payment.
293		By s 217(1) where a claim for compensation is made and the claimant's title is not in dispute the acquiring authority must, within 90 days after service of the claim, cause the claim to be examined and a report made as to the value of the claimant's interest in the land and the damage sustained by reason of the taking.  By s 217(3) "As soon as possible" after the report under subsection (1) is received by the acquiring authority, it must serve an offer of compensation on the claimant.  By s 219(1) the claimant must reject an offer within 60 days or else the offer will be deemed to have been accepted by virtue of s 219(2).  Where an offer of compensation is rejected, by s 220 the compensation payable is determined by agreement or by an action for compensation or by reference of the claim to the Compensation Court.  The effect of these provisions is that the acquiring authority is required within 90 days to cause a compensation claim to be examined and a report made and as soon as possible after that report to make an offer of compensation.  The clear implication, in my view, is that the acquiring authority would apply itself conscientiously to the question of appropriate compensation for the value of the interest taken and the damage sustained by the claimant by reason of the taking, and determine the value of its offer accordingly.  It is not the case that the acquiring authority is required to make an offer which reflects any value which is set out in the report, and it takes but little experience of the range of issues and views which may legitimately arise in cases of this nature to understand why the legislature would not make such a provision.  Nevertheless, as indicated, the clear implication is that the authority would apply itself conscientiously to the question of compensation in light of the report.
294		Some submissions for the plaintiff also seem to carry the implication that the authority should be required by s 217(1) to refer a claim to a valuer who was expert in compensation claims, and further to ensure that the report of the valuer deals with all compensation issues and reports on the amount of compensation which is payable.  Such a view appears to me to misunderstand the role of a valuer in the resolution of questions of compensation.  There are a number of issues which, in some cases, may be determinative of, or relevant to, the assessment of claims for compensation, and as to which a valuer may form an opinion and give expert advice.  Typically in many cases, however, the present being an obvious example, issues relevant to the assessment of the amount of compensation extend well beyond the expertise of any valuer and may require for their appropriate assessment the advice of experts of other disciplines including legal advice and which, if not the subject of agreement between the parties, may require a trial in which the various factual and legal issues are determined.  A valuer, even one claiming some special experience in compensation claims, could not be expected to resolve many of the issues that arise in cases of this nature.  It is not to be expected, therefore, that the legislature comprehended and intended that a report of a valuer for the purposes of s 217(1) would be a report which necessarily recommended a particular amount of compensation.  Experience in cases of this nature also suggests that the assessment of claims, at least in those cases that involve factual or legal issues of complexity, may well take much longer than 90 days.  It is not surprising, therefore, that in s 217(3) it is provided that an offer of compensation is to be made "as soon as possible" after a report is received.  There is also a question whether the 90 days in s 217(1) relates to the time within which the authority must cause a compensation claim to be examined, or whether it also stipulates that the report must be made within 90 days.  In this respect the language is somewhat ambiguous and the subject matter suggests, for the reasons indicated, that the legislative intention may well be that the 90 days relates to the time within which the authority is required to cause the claim to be examined.
295		While the plaintiff would seek to read to s 217(1) and (3) as revealing a statutory scheme by which within a very short time of 90 days after lodging his claim an offer of compensation would be received, it seems from s 221(1), as well as for the reasons which I have briefly canvassed, that this expectation was not shared by the legislature.  Section 221(1) provides that if an acquiring authority fails to serve an offer of compensation within 120 days the claimant may institute an action for compensation.  That provision suggests that if the requirement of s 217(3) to make an offer of compensation is not satisfied within 120 days of a claim being made then the statutory remedy available to the claimant is to bring proceedings, either in a court of appropriate jurisdiction or in the Compensation Court, so that the amount of the compensation payable can be assessed and an order for payment made.  The plaintiff did not take that course in this case even though the defendant failed to make an offer for compensation within 120 days of receiving the plaintiff's claim.  The plaintiff delayed very much longer indeed before commencing an action for compensation in this Court.
296		I would note, that the defendant did not ignore the claim.  In this case the defendant did refer the claim to professional valuers and acted on advice it received, as a consequence, to commission a feasibility study from Mr Oakley with respect to the development potential of Lot 116 after the resumption.  It also appointed and acted on the advice of real estate consultants who also acted as negotiators in dealing with the claim.  The fact that, as to many matters in issue, the views of the experts retained by the defendant did not agree with the views of the plaintiff and his experts is not, in the circumstances of this case, in any way indicative of a failure to conscientiously and adequately examine and assess the plaintiff's claim, or to conscientiously make an offer of compensation which reflected the defendants opinion, having taken expert advice, of the compensation to which the plaintiff was entitled.
297		A more fundamental difficulty is that the reasoning of the plaintiff in support of these aspects of his claim seems to assume that the legislature intended by the statutory scheme to create one or more statutory duties which were owed by the defendant to the plaintiff and which were themselves actionable should the defendant fail to perform them or to perform them timeously.  I can find no indication in the terms of the relevant statutory provisions of any such legislative intention.  Indeed, the whole statutory scheme indicates that this could not have been intended.  In particular, s 221(1) would appear to provide a clear indication that the legislative intention was to provide a scheme under which, in the event that an offer of compensation was not made within 120 days of a claim, the claimant could commence proceedings in an appropriate court and thereby secure the amount of compensation for which s 241 made express and exclusive provision.  Any delay or other failure adequately to examine and assess a claim for compensation, with the consequence either that an offer for compensation was too long delayed or was inadequate, was dealt with exclusively by the remedy that after 120 days the claimant was entitled to have the compensation determined in proceedings.  I am unable, therefore, to see that there is any legal basis for these claims and for the reasons given they appear to be without factual foundation.
Solatium
298		The plaintiff claims solatium at 10 per cent which he calculates on all ascertained sums claimed.  As indicated earlier solatium is the subject of s 241(8) and (9) of the LA Act.  By s 241(8) it is confined to an amount "appropriate to compensate for the taking without agreement", which amount may be added to the award or to an offer made by the acquiring authority.  While under subsection (9), in exceptional circumstances, an amount may be awarded which exceeds 10 per cent, in the absence of such exceptional circumstances the amount awarded under subsection (8) must not be more than 10 per cent.
299		There is an obvious difficulty about bringing some aspects of the plaintiff's claim within the scope of compensation "for the taking without agreement" stipulated by s 241(8).  For example there is, in my view, no legal or factual basis upon which it would be appropriate to make an award for solatium in respect of the compensation for repairs to the retaining wall.  While, on the basis indicated in these reasons, I have proceeded on the view that damage is compensable under s 241(7)(b), it is compensation in respect of damage caused by negligence in the carrying out of the public work some one and a half years after the taking of the 18 square metres.  This damage does not relate to the compulsory taking, but to the quite independent notion of the negligent carrying out of the public work.  I would make no award of solatium in respect of the cost of repairing the retaining wall.  Some of the other unsuccessful heads of claim pursued by the plaintiff would, similarly, not have warranted or qualified for an additional award of solatium.
300		Otherwise, I will proceed on the basis that has been generally accepted and applied in this State under both the Land Acquisition and Public Works Act and the LA Act that in normal circumstances an award of solatium of 10 per cent of the compensation for the taking without agreement is appropriate.
Other claims
301		The plaintiff also leaves open the possibility that it may be thought appropriate to award some other sum under s 241(6) or 241(9).  No basis has been formulated or supported, and I am not persuaded that any has been demonstrated, on which the operation of either of these provisions would be justified.  In particular, the claim under s 241(9) as made on the erroneous legal basis just identified that it is a power at large rather than a power confined to the solatium which may be awarded under s 241(8).  No award is justified under either of these provisions.
302		Interest is claimed on the aggregate of the compensation awarded under the items considered so far.  Under s 241(11) of the LA Act it is provided that interest is to be paid at the rate payable in respect of judgment debts under s 142 of the Supreme Court Act 1935 as at the date relevantly of the registration of the taking order and is payable relevantly from the date of the service of the claim for compensation on the acquiring authority.  The rate under s 142 of the Supreme Court Act as at 1 May 1998 was 6 per cent and the date of service of the claim seems to have been 1 or 2 October 1998.  By s 241(12)(a) the amount of the advance payment of compensation is to be taken into account in accordance with the provisions of that subsection in the calculation of the interest payable.
303		The plaintiff's claim also seeks to extend the entitlement to interest to the aggregate of the costs and disbursements paid by the plaintiff as a consequence of this litigation.  In my view, this is outside of the scope of s 241(11) and in any event, in the circumstances of this case, I would not be prepared to make an order for interest in respect of such costs and disbursements as a matter of general discretion.
304		The plaintiff also seeks an order for the defendant to indemnify him against any liability to pay goods and services tax in respect of any aspect of the compensation awarded in this action.  It was not apparent that there was any real prospect that a liability for goods and services tax could arise but the matter was the subject of some uncertainty and the claim was advanced, therefore, as a matter of caution.  Since the hearing, I have been provided, with the knowledge of the parties, with Australian Tax Office ruling GSTR2001/4 which was issued on 20 June 2001 which deals particularly with the GST consequences of court orders and out of court settlements.  By A New Tax System (Goods and Services Tax Transition) Act 1999 it is provided that GST is only payable on a supply to the extent that it is made on or after 1 July 2000.  In the case of a dispute which arose before 1 July 2000 and which is subsequently resolved by a court after 1 July 2000 the ruling given in par 139 is that where a sufficient nexus exists between the payment made under the court order and a supply made before 1 July 2000, subject to the provisions of the Transition Act just noted, there will be no GST payable.  In the present case, any possible supply for these purposes occurred before 1 July 2000 and any payment of compensation pursuant to this decision is clearly founded in any such earlier supply.  It is inappropriate and unnecessary, therefore, to make an indemnity order.
Other issues
305		There are two other issues which should be mentioned but which have not had a convenient place elsewhere in these reasons even though they were raised in connection with specific heads of claim
Compulsory Taking or Negotiated Purchase
306		There was some exploration in the evidence of notions that MRWA had been inconsistent, if not perverse so as to reveal bad faith, in its approach to the question whether or not it would buy or resume the whole of Lot 116.  It is enough for the purposes of this decision that I note the following matters about this aspect of the plaintiff's evidence.
307		By virtue of the statute the defendant had no obligation to resume land which it did not require for the purposes of the public work.  If, by a resumption of part of a landowner's land, the landowner was left with an awkward or useless unresumed balance of the former land holding, or with a piece of land which was of no use to the landowner or of very restricted utility, the legislative scheme would allow for compensation in respect of these matters.  That was the statutory remedy.
308		Sensibly, however, the defendant is also free to negotiate to purchase land, and this can be done not only in cases of the type just noted but also, of course, where land is actually required for a public work.  While the defendant may negotiate to purchase land the statute does not place any obligation on the defendant to do so in any situation.  Essentially the process of sale by negotiation is one which the defendant and a landowner are free to explore, and it may or may not lead to agreement on terms which are mutually acceptable.  If negotiation with a view to purchase is undertaken, but agreement is not reached, the defendant is left with the powers of resumption to achieve the public work and the landowner is left with the statutory entitlement to compensation.
309		At different times both MfP and MRWA examined the possibility of purchasing the whole of Lot 116 by agreement with the plaintiff.  On each occasion expert advice was obtained as to the market value of Lot 116 and offers to purchase were made in light of that expert advice.  The plaintiff did not accept these offers.  There is nothing surprising about this.  It seems to be suggested that in some way by failing to make an offer which was acceptable to the plaintiff the defendant was in breach of a statutory obligation or showed bad faith in the performance of statutory powers or functions.  Not only are there legal difficulties for the plaintiff in these matters but suggestions of this type are not born out in fact.  Nothing in the evidence suggests to me that at any stage the defendant acted other than reasonably and appropriately in making offers to purchase Lot 116.  The fact that the plaintiff wanted a higher price does not demonstrate any failing or want of good faith on the part of the defendant, and there is nothing else that does.  Much of my reasoning in this decision would suggest that, if anything, it was the plaintiff's expectations that were too high.
310		In evidence, a few cases where the defendant had purchased or resumed the whole of a parcel of land even though only part of it was actually used for the public work concerned, were examined.  In each of these the effect of the evidence, in my finding, was to reveal some sound reason why the defendant purchased or resumed the whole of the land in question.  The reasons varied considerably and their precise detail is immaterial.  Examples include the remaining very small (and therefore useless) area that was not actually required for the public work, the financial advantages of acquiring or resuming the whole of the land given its particular use, and the existence of other uses to which the land not required for the public work could be put by the defendant, eg to combine with other land not required for the public work to enable a sound commercial return or to overcome the problems of another landowner which in turn had been created by the resumption of part of its land.
311		As indicated, in this case the defendant had no need for the whole of Lot 116.  The public work as finally designed required only the corner truncation of 18 square metres.  The plaintiff, however, seems to have maintained the view that the defendant should resume the whole of the land.  This was grounded in his mistaken contention that following resumption the balance of the land could not be developed because vehicular access would not be possible.
312		The plaintiff also maintained that the defendant should purchase the whole of Lot 116, at a price of course which was acceptable to the plaintiff.  Once again difficulty of vehicular access was advanced by the plaintiff as the main reason why this should be so.  Consideration had been given by MfP to the purchase of the whole of Lot 116.  It had in mind the possibility that the land not required for the public work might be combined with other land owned by MfP to enable a high density residential development with vehicular access from Kingston Avenue and so produce a commercial return for MfP.  On closer examination this proved impractical in the view of MfP and it did not pursue this.  Once it settled on the final design for the intersection MRWA had no use for any other part of Lot 116 other than the 18 square metres.  It did consider purchasing the whole of Lot 116 at later stages and negotiated and made offers.  In my view, to the extent that the defendant did change its position from time to time about purchasing the whole of Lot 116, or the remaining 640 square metres following the resumption, its actions in this respect were not unreasonable and generally were due to changed circumstances or were in pursuit of genuine efforts to find a way of resolving the ongoing difficulties it was experiencing with the plaintiff.
313		There is no factual foundation demonstrated for any finding that the defendant acted in bad faith, or with a want of care, or in neglect or breach of its statutory functions, responsibilities and powers.
Design of intersection
314		It was also raised in evidence that MRWA in truth should have designed the intersection of Loftus and Newcastle Streets differently and, had it approached the design differently, it would have required much more of Lot 116 than 18 square metres.  The suggestion seemed to go so far as the proposition that this may have been done deliberately to minimise the area of Lot 116 required for the public work to avoid having to resume or purchase the whole of the land.  In support of this there was some expert evidence that it would have been preferable to construct a slip road for south bound traffic in Loftus Street which wished to turn left to travel east in Newcastle Street. The slip road would, it seems, be constructed across much of Lot 116 and possibly part of the adjoining lot to the east, Lot 117.  It would not be controlled by traffic signals.  Advantages suggested for this design seemed to be less impediment to the flow of vehicles in Loftus Street which were travelling to the south of Newcastle Street, and the facility for vehicles turning from Loftus Street to travel east in Newcastle Street to enter the flow of traffic in Newcastle Street whenever the Newcastle Street traffic flow permitted and to do so unimpeded by traffic lights.  In particular, it was suggested this could improve the safety of the intersection because of the reduced impediment to the flow of vehicles in Loftus Street travelling to the south.  The evidence does not, in my finding, demonstrate that the intersection as designed was unsafe.  The view advanced is rather that with such a slip road it would be safer for some purposes.
315		This issue was not the subject of specific pleading and arose principally as incidental to the evidence relating to the safety of vehicular access to Lot 116 following the resumption .  It cannot be said to have been exhaustively pursued in evidence.  In so far as it was dealt with it is obvious at the outset that the suggested slip road would increase the cost of the public work both because of the need to construct the actual slip road and the need to acquire additional private land to do so.  
316		It would be surprising indeed had it been the suggestion that, as designed, the intersection was unsafe.  It involves a conventional left hand turn, from only the left hand lane of the multiple lanes of traffic travelling southward in Loftus Street, into the two east bound lanes for traffic in Newcastle Street.  The flow of traffic is controlled by traffic signals so that left turns into Newcastle Street can only be made when there is a full green signal displayed to all the southbound traffic in Loftus Street.  There is no other crossing or conflicting traffic to be negotiated by any of the southbound traffic, including that turning left into Newcastle Street, when a green signal is displayed.  In other words in these respects this is a very standard intersection design to be found on innumerable busy intersections including those in the city itself.
317		It can be accepted that a slip lane may have allowed some greater volume of southbound traffic to turn left from Loftus Street to travel east in Newcastle Street whilst maintaining a steadier flow of traffic to the south in the left hand lane of Loftus Street.  But the evidence does not indicate that the volume of traffic which would be affected is such that there is a need to facilitate these possibilities.  The question of the safety advantages of a slip road was the subject of differing opinions and it was apparent that a number of competing considerations have to be weighed.
318		One issue which is very relevant to this case is the safety of vehicular access to Lot 116, and the other lots which adjoin it, from Newcastle Street.  As the intersection is designed and constructed, the only time that traffic approaching from the north in Loftus Street, which may wish to turn left into Newcastle Street, can turn is when the full green signal is displayed at the intersection for all southbound traffic in Loftus Street.  At all other times southbound traffic in Loftus Street would not present any hazard to any vehicle seeking to enter Newcastle Street from Lot 116 or Lot 117 or the adjoining lots further to the east in Newcastle Street.  With respect to vehicular traffic, it is the southbound traffic in Loftus Street which presents the real question as to safety for vehicles seeking to enter Newcastle Street from Lots 116 or 117 or the adjoining lots, although of course pedestrians and cyclists must not be overlooked.  By contrast, were there a slip road as suggested, traffic from the north in Loftus Street could turn left, at higher speed because of the more gradual curve of the slip road, at any stage of the traffic signal cycle at the intersection.  The present design, therefore, appears to offer some significant advantages over a slip road for these purposes.  Of course, if there were a slip road, the use of a crossover/driveway for Lot 116, as well as Lot 117 and quite possibly other lots to the east of them, would involve a higher element of difficulty and risk, an issue which need not be explored further in this case as it is hypothetical.
319		What I have just canvassed is sufficient to reveal the nature of the views to which I have come on this issue should they prove relevant.  Many factors have their proper place in road design.  There are practical as well as theoretical considerations and constraints.  The evidence does not establish that the design of the Loftus and Newcastle Street intersection as implemented by the defendant as part of the public work is other than an appropriate design for its purpose.  The evidence does not demonstrate that the nature and volume of traffic using the intersection is such that a slip road as discussed is necessary or even of any significant advantage.  From the point of view of the safety of vehicular access to Lot 116 and the adjoining lots in Newcastle Street, the design has advantages over a slip road.
Conclusion
320		For the reasons given compensation will be awarded pursuant to s 241 of the LA Act as follows:
Value of land taken		$   10,000.00		
Severance and injurious affection		72,500.00		
Damage to retaining wall		5,000.00		
Solatium at 10% of $82,500.00		8,250.00		$  95,750.00	

Plus interest at 6% from 1 or 2 October 1998 on $95,750.00 less adjustment for the advance payment pursuant to s 241(12).
321		I will hear counsel on the precise calculations and other orders that may be appropriate.

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA 
IN CIVIL 

CITATION	:	CERINI -v- THE MINISTER FOR TRANSPORT [2001] WASC 309 (S) 

CORAM	:	PARKER J 

HEARD	:	14 MAY - 6 JUNE, 11-27 JUNE, 2 & 3 JULY, 30 NOVEMBER 2001 

DELIVERED	:	14 NOVEMBER 2001 

SUPPLEMENTARY
DECISION	:	6 DECEMBER 2001 

FILE NO/S	:	CIV 2472 of 2000 

BETWEEN	:	GRAHAM VICTOR CERINI
Plaintiff
 
AND
 
THE MINISTER FOR TRANSPORT
Defendant 

Catchwords:
Costs - Pre-trial offer of compromise - Judgment for sum less than offer - Discretion to vary operation of O 24A r 10(5) 
Legislation:
Rules of the Supreme Court (WA), O 24A r 10(5) 
Result:
Each party to bear own costs 
Category:    B 

Representation:
Counsel:
Plaintiff	:	Ms L E Rowley
Defendant	:	Mr F Sunderland 
Solicitors:
Plaintiff	:	McLeods
Defendant	:	State Crown Solicitor 

Case(s) referred to in judgment(s):

Edwards v Minister of Transport [1969] 2 QB 134
Houatchanthara v Bednarczyk, unreported; NSW Ct of Appeal; 14 October 1996
Monier Ltd v Metal Work Tiling Company of Australia Ltd & Anor (No 2) (1987) 43 SASR 588
Morgan v Johnson (1998) 44 NSWLR 578
New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100
Oshlack v Richmond River Council (1998) 193 CLR 72
Oxlade v Gosbridge Pty Ltd (No 2) [1999] NSWCA 165

Case(s) also cited:

Banno & Anor v Commonwealth of Australia & Anor (1993) 81 LGERA 34
Commissioner of Succession Duties (South Australia) v Executor Trustee and Agency Company of South Australia Ltd & Ors (1947) 74 CLR 358
Mok Gek Bouy v The Minister for Immigration, Local Government and Ethnic Affairs (1993) 47 FCR 81
Sisters of Charity of Rockingham v The King [1922] 2 AC 315
Smiths Ltd & Anor v Middleton [1986] 1 WLR 598
Unioil International Pty Ltd v Deloitte Touche Tohmatsu & Anor (No 2) (1997) 18 WAR 190 

1	PARKER J:  This supplementary decision concerns the costs of the action in respect of which the reserved decision was delivered on 14 November 2001.
2		The plaintiff in this action sought an award of compensation pursuant to s 241 of the Land Administration Act 1997 (WA) ("LA Act").  His claim as particularised was for $685,446.91 plus discretionary sums and interest.  The plaintiff was awarded $95,750 plus interest.  It is now agreed that the interest figure is $8,920, ie the total award for present purposes is $104,670.
3		It has now been shown before me that on 15 April 2001 an offer of compromise, complying with Rules of the Supreme Court O 24A, was made by the defendant in the sum of $110,000.  This offer was made four weeks before the commencement of the trial.  The offer was not accepted by the plaintiff.
4		By O 24A r 10(5) it is therefore the position that:
"… unless the Court otherwise orders, the plaintiff shall be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis."
5		The plaintiff seeks an exercise of the discretion for which r 10(5) provides.  Primarily, the plaintiff seeks an order, notwithstanding r 10(5), that the defendant pay the whole of its taxed costs of the action.  Alternatively, the plaintiff seeks an order that he should have his taxed costs to and including 15 April 2001 and that each party should bear its own costs from 16 April 2001.  As a further alternative, the plaintiff submits that if the defendant is to have an award of costs from 16 April 2001 it should only be awarded one‑third of its taxed costs.
6		The defendant submits that there is no reason to depart from the ordinary operation of O 24A r 10(5) in so far as it provides for the defendant to have its taxed costs from 16 April 2001, but it submits that the taxed costs of the plaintiff to and including 15 April 2001 should be reduced to reflect the extent to which the plaintiff was unsuccessful in the issues it raised.  It submits that such a reduction is appropriate having regard to the time and effort expended on those issues and because of findings made in the decision as to aspects of the conduct of the plaintiff.  It is submitted that the reduction should be in the order of 50 per cent.
7		To the extent that each party seeks an exercise of discretion to vary the ordinary operation of the Rule it is for that party to demonstrate that there are adequate reasons to justify the exercise of discretion.
8		In Morgan v Johnson (1998) 44 NSWLR 578 Mason P, with whom Sheller JA concurred, considered and extracted from a number of earlier decisions a number of principles in relation to Pt 19A r 25(6) of the District Court Rules (NSW) which, at the time relevant to that case, was in substantially identical terms to O 24A r 10(5).  He also considered decisions on corresponding provisions in the Supreme Court Rules 1970 (NSW), see Pt 52 r 17(5) and Pt 52A r 22(6).  The principles enunciated by Mason J at 581‑582 include:
(1)	The purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest of the prompt and economical disposal of litigation.
(2)	The aim is to oblige the offeree to give serious thought to the risk involved in non‑acceptance.
(3)	The prima facie consequence of non‑acceptance will be that the rule will be enforced against the non‑accepting party.  This is because, from the time of non‑acceptance "notionally the real cause and occasion of the litigation is the attitude adopted by [the party] which has rejected the compromise".  As was observed in this respect by Gleeson CJ, Cripps and Clarke JJA agreeing, in New South Wales Insurance Ministerial Corporation v Reeve (1993) 42 NSWLR 100 at 102 "discussion of the availability of the discretion, is done in the context of a recognition that in any ordinary case … the rule should be applied in its terms."
(4)	Lying behind the Rule is the common knowledge that "litigation is inescapably chancy".  For this reason, the ordinary provision is expected to apply in the ordinary case.  The mere fact that it was reasonable for the litigant to take the view that he or she did in rejecting the offer is not enough to displace the rule.  In this respect Mason P cited observations of Clarke JA in Houatchanthara v Bednarczyk, unreported; NSW Ct of Appeal; 14 October 1996 where at 2‑3 his Honour said:
"The rule lays down the general principle that should be applied, and the Order provided for in that rule should only be departed from for proper reasons which, in general, only arise in an exceptional case.
It is clear that if the rule operates, the plaintiff will be significantly disadvantaged, but that disadvantage flows naturally from the risks of litigation. … Where an offer is made by a defendant to a plaintiff, the latter is put on notice that unless he or she accepts that offer, there is a significant risk that the order provided for by the rule may follow.  In declining to accept the offer, the plaintiff undertakes the risk and the consequences that flow naturally from that risk."
(5)	The discretion to displace the rule is a judicial one, requiring the private and public purposes of the rule to be borne in mind.  Reasons must be given for "otherwise ordering".
9		To this summary may be added a reference to the decision in Oxlade v Gosbridge Pty Ltd (No 2) [1999] NSWCA 165 at [8] per Mason P, with whom Fitzgerald JA and Shepperd AJA concurred, to the effect that the ordinary operation of the rule is not to be displaced just because the case is a difficult one.
10		In my respectful view this represents a convenient summary of the approach to the rule which is appropriate, and which has generally been followed in this Court, in the context of O 24A.
Plaintiff's Submissions
11		The primary submission of the plaintiff is that this should be regarded as an exceptional case, justifying departure from the provision of the Rule.  In effect it is contended that the defendant conducted its defence on the basis that the principles enunciated in Edwards v Minister of Transport [1969] 2 QB 134 should be applied in awarding compensation under s 241.  This was not the view to which I came.  The plaintiff contends that the present action should be seen to be in the nature of a test case on this issue.  The plaintiff sought to strengthen the force of its submission in this respect on the basis that there was a public interest to be served by the plaintiff pursuing his claim so as to achieve a resolution of the uncertainty concerning the application of Edwards v Minister of Transport a question which could effect other claimants for compensation, and Oshlack v Richmond River Council (1998) 193 CLR 72, particularly the discussion by Kirby J at 120‑127, was relied on.
12		While it is of some relevance to the discretion that the true construction of s 241 of the LA Act was in issue and that this issue has a relevance beyond the present case, this was but one of many legal and factual issues in dispute, the majority of which were resolved against the plaintiff.  While it was an issue of significance it quite distorts the action to suggest that the decision in Edwards v Minister of Transport was the primary, or even a predominant issue, in the action.  On any reasonable view of the action, one factual issue dominated the case.  It did so in the terms of the amount of time and costs devoted to it and to its ramifications, in preparation, evidence and submissions.  This was the issue whether, by virtue of the public work and the resumption of 18 square metres of the plaintiff's land, the unresumed balance of 640 square metres was rendered valueless, or virtually so, because vehicular access became impossible.  The plaintiff failed on this critical and dominant factual issue.  This was an issue unique to this plaintiff's entitlement to compensation and of no relevance to any other claimant for compensation.  Had Edwards v Minister of Transport applied this could have effected the measure of the plaintiff's entitlement in this respect.  The claim failed, however, on the fundamental factual issue.
13		The decision in Oshlack v Richmond River Council really concerned the application of the ordinary principle that in the absence of disentitling conduct a successful party should be compensated for its costs by the unsuccessful party, and its application to the circumstances of that case in the light of particular legislative provisions of the Environmental Planning and Assessment Act 1979 (NSW).  By reason of this the question also arose as to the weight which ought to be accorded to the public interest in the protection of endangered fauna in the application to and exercise of the ordinary discretion as to costs of proceedings being conducted in the Land and Environment Court.  Apart from the unquestioned proposition that relevant public interest considerations, where applicable, ought to weigh in the exercise of judicial discretion, the decision in Oshlack v Richmond River Council is of little direct relevance to the present case.
14		For present purposes the focus of attention is the particular discretion contemplated by O 24A r 10(5).  This is quite different from that being considered in Oshlack v Richmond River Council.  The whole point of O 24A r 10(5) is to displace the ordinary principle at issue in Oshlack v Richmond River Council.
15		I should refer in particular to a contention of the plaintiff that he declined the O 24A offer of the defendant because it was plainly built upon the Edwards v Minister of Transport decision.  It is contended that by making an offer on this basis the defendant "encouraged" the plaintiff into proceeding with the litigation.  This submission appears to be based on wrong factual premises and confuses the nature and purpose of an O 24A offer.  The offer made was to settle the action on the basis that the defendant pay the plaintiff $110,000 in settlement of the whole of its claim for compensation.  It was a lump sum offer.  The letter communicating the offer contains no statement of any legal basis on which the offer was made and contains no conditions or any other limitations.  It cannot be said, therefore, that the offer was built upon any particular basis, let alone Edwards v Minister of Transport.
16		It is true that the plaintiff's pleaded case relied inter alia on the Edwards v Minister of Transport principle.  And it seems to be the case that in the course of earlier negotiations with a view to settlement the parties had inter alia taken opposing positions on most matters, including the application of Edwards v Minister of Transport.  The offer made was not on the basis of any earlier negotiations, however, and as far as is now demonstrated before me during the negotiations the defendant was negotiating from a position that the plaintiff's entitlement was in the order of $50,000.  The O 24A offer, when made, was for over twice that sum, although very much less than the figure for which the plaintiff was contending.  The offer, therefore, could not be related on any basis to the position of the defendant during earlier negotiations.
17		The proposition that the offer encouraged the plaintiff into proceeding with litigation, on examination, really involves no more than that the plaintiff did not consider the offer of $110,000 was enough.  As the authorities have made clear, the rule seeks to oblige the plaintiff to give serious thought to the risk involved in non‑acceptance, and notionally, at least, from the time of its non‑acceptance in this case, the real cause and occasion of the litigation was the plaintiff's attitude in rejecting the compromise which proved to be more favourable to the plaintiff than his entitlement to compensation.  This is so notwithstanding that there may have been a reasonable basis for the plaintiff's view that the offer was inadequate.
18		In the context of this action, I am not persuaded, therefore, that the application of Edwards v Minister of Transport should be accorded any significant place in the exercise of the discretion.
19		It is also contended that this should be regarded as an exceptional case because the plaintiff's claim was for compensation for compulsory resumption under statutory powers.  He submits he properly invoked the jurisdiction of this Court to have a due determination of his statutory entitlement to compensation.
20		In this respect I note that it is provided by s 223(3) LA Act that where a claimant chooses to pursue his or her claim in this Court the claim "is to be heard and determined in the same manner as ordinary actions…".  This provision offers little encouragement to the establishment of any special position with respect to the operation of the Rules of the Court for such claims.
21		Nevertheless, as to the primary point of this submission I do accept that there is a public interest in enabling those who have been the subject of compulsory acquisition to secure their due entitlement to compensation.  In a proper case it would be appropriate, no doubt, to reflect this as the circumstances justified in awarding costs in the action.  I accept it to be a relevant consideration in the present circumstances.
22		It is necessary, however, to consider the degree of force that should be allowed to this consideration in all the circumstances of the present case and whether, properly evaluated and weighed, this justifies departure from the normal operation of the Rule.
23		On closer consideration and reflection the plaintiff's position in this action is not in truth so very different in relevant respects from the position of a plaintiff who has suffered property loss or personal injury by, for example, an abuse of statutory power or negligence in the exercise of statutory power by a governmental agency in circumstances where the plaintiff is without fault.  In such an action the quantum of damages to which the plaintiff is entitled may well be affected by a wide range of factual and legal uncertainties.  Such a plaintiff and his or her legal advisers may take the view that there are sound reasons to press all items of the claim made.  The claim may be well supported by expert opinion.  In such a case the only way to resolve all the disputed issues, and to ensure that the plaintiff recovers his or her full entitlement to damages, would be to proceed to trial.  Yet if this course is taken, and the amount of damages awarded is less than a formal O 24A offer of compromise made pre‑trial, such a plaintiff would be faced with the operation of O 24A.
24		In a similar position would be a plaintiff who, without contributing fault, has suffered property loss or personal injury by the wrong of another citizen or a corporation.  Such a plaintiff may be faced with wide ranging legal and factual difficulties in an action to recover what, on sound expert advice, is the full measure of damages.  Again it would be the case that the only way to ensure that this plaintiff received the full measure of damages to which his or her loss gave an entitlement would be to proceed to trial.  In the absence of exceptional circumstances it would not avail such a plaintiff that his conduct was without fault, that his claim was complex, or that it was well supported.  Where the damages awarded were less than a formal offer of compromise under O 24A, such a plaintiff would be faced with the operation of r 10(5).
25		Hence, in my view, the fact that the "wrong" done to the present plaintiff may be seen to be the compulsory taking of some of his land, is not obviously a distinction of material significance from the plaintiffs in the examples given.
26		In the particular circumstances of this case, the plaintiff pursued a claim totalling over $685,000.  The compensation awarded was only $95,750.  At a global and general level the plaintiff's ambitions in the action far exceeded his entitlement to compensation.  At a more particular level, as is to be found in the reasons for decision, in many respects his claims proved to be without legal or factual justification or to be grossly excessive.
27		Having weighed the legal and factual issues raised, in particular having regard to the public and private interests which the rule seeks to reflect, I am not persuaded that there is justification in this case for displacing the normal operation of the rule in favour of granting the plaintiff his costs of the action.
Plaintiff's First Alternative Submission
28		In support of the first alternative submission that I should exercise the discretion by modifying the ordinary operation of the rule to make no order as to costs from 16 April 2001, the plaintiff sought to identify aspects of the defendant's conduct of its case as to which it failed or, in the plaintiff's contention, caused unnecessary or wasted work for the plaintiff.
29		For reasons which I will mention more fully later, it should be said at the outset that this is not a case where there is any obvious reason to approach costs on an individual issues basis.  In any event it is a rather forceful answer to any attempt at analysis on this basis that it was the plaintiff that failed in respect of more issues than the defendant, and in particular he failed in respect of the factual issue identified earlier which dominated the case in terms of the time and effort devoted to it.
30		In addition to many of the matters already discussed, the plaintiff points in particular to the failure of the defendant to call a number of witnesses, including one of its valuers, which it is submitted involved wasted effort by the plaintiff in preparation and unnecessary evidence in the plaintiff's case in anticipation of some of these witnesses.  The plaintiff also points to the defendant's unsuccessful defence of one claim in respect of a retaining wall, which it is submitted was an unjustified defence such that it might properly attract indemnity costs in favour of the plaintiff.  It is also submitted that the defendant did not succeed on a factual issue concerning vehicular access to service stations or in respect of the legal basis for a reservation affecting the frontage of the plaintiff's land.  An issue of discovery is also raised.
31		In the overall scale of the action all of these matters are, at most, of only very limited significance.  I accept from the evidence before me that there were sound reasons for the defendant to anticipate before trial the need to call the witnesses in question but that, in respect of all witnesses but the valuer, the need to do so fell away due to developments in the course of the trial.  I accept that the defendant prepared and intended to call the valuer, but because the plaintiff's case was prolonged so as to occupy virtually the whole of the time originally anticipated for the trial, other commitments of this witness precluded his being called without real inconvenience.  In these circumstances it was the decision of the defendant to do without this material witness despite the potential disadvantage to its case.  This was necessitated substantially by the length of time eventually devoted to the conduct of the plaintiff's case.  The defendant is not properly to be criticised in this matter.  While it is true that the defendant did not succeed on the two matters identified, a review of the conduct of the action will quickly reveal that it was the plaintiff who failed on a number of points which significantly lengthened the hearing and involved much preparation by the defendant.  With respect to the retaining wall, the claim was small; while a number of witnesses gave some evidence relating to it most of them would have been called for other reasons, and the factual issues concerning the wall were inter‑related with other issues in the case.  Further, the plaintiff was only partially successful in this respect as the claim he pursued well exceeded in quantum and substance his entitlement.  The matter of discovery did not involve a failure pre‑trial of the defendant to give discovery then sought by the plaintiff.  In any event it is of virtually no significance in the scale of matters relevant to the conduct of the action by each party.
32		It has not been shown that there are valid grounds of any significance for criticism of the conduct of the defendant's case or that by virtue of the manner in which the case was conducted there is any sufficient justification to vary the operation of r 10(5) as a matter of discretion so as to make no order for costs for either party from 16 April 2001.
Plaintiff's Further Alternative Submission
33		As to the further alternative submission of the plaintiff that the defendant should only be allowed one‑third of its costs from 16 April 2001 the plaintiff sought to rely on Monier Ltd v Metal Work Tiling Company of Australia Ltd & Anor (No 2) (1987) 43 SASR 588.  In that case the plaintiff alleged infringement of a registered design.  It succeeded on the issue of infringement but failed to establish validity so that its claim failed and the defendant succeeded on a counterclaim.  The defendant, however, had not raised the issue of validity until the actual date of the trial, which necessitated an initial adjournment, and did so in contradiction of earlier assurances given in the course of interlocutory proceedings.  The defendant had also failed in its duty of full disclosure with respect to the issue of validity.  Jacobs J ordered that the plaintiff only pay one‑third of the defendant's costs incurred after the adjournment.
34		Once again this case turned on the general discretion rather than the very different discretion with which O 24A r 10(5) is concerned.  Further, I am not persuaded that the conduct of its case by the defendant involved anything equivalent to the elements identified by Jacobs J, and which led to his exercise of the general discretion in the manner indicated.  What has been said earlier is sufficient to indicate why I am not persuaded that the conduct of the action by the defendant was such as to warrant, in the exercise of discretion, any variation to the ordinary operation of O 24A r 10(5).
Defendant's Submission
35		The defendant seeks a further variation of the operation of the rule, as a matter of discretion, by the reduction of the plaintiff's costs before 15 April 2001 by some 50 per cent.  The basis advanced, essentially, is the other side of the coin on which the plaintiff relied, namely, that given the issues on which the plaintiff was unsuccessful, and the time and effort they entailed in preparation, and it seems also in hearing time, a reduction in the order of 50 per cent would be justified.  The defendant can point to a list that is both longer and of greater significance in terms of time and effort than the plaintiff in this respect.
36		As was indicated with respect to the plaintiff's similar contention, this is not a case where a division of costs on the basis of particular issues is really appropriate.  The plaintiff had a statutory entitlement to be paid compensation the amount of which was to be determined according to the provisions of s 241 of the LA Act.  The disputed matters of law and fact were all related to the application, in the circumstances of this case, of various provisions within s 241 affecting the determination of the plaintiff's entitlement to compensation.  Issues outside of s 241 were not claimed or pursued.  In my assessment of the action, neither the plaintiff nor the defendant pursued legal or factual issues arising under s 241 which were frivolous or vexatious, even though, in the end, the preponderance of the merits of the disputed matters fell in favour of the defendant.
37		The reasons for decision reveal that in respect of some matters the plaintiff conducted himself, before the hearing, in a manner which was somewhat surprising and at times unreasonable.  Where appropriate, that has had a relevance to my determination of some factual matters.  Beyond that, however, I am not persuaded, in the circumstances of this case, that this consideration should affect the exercise of discretion concerning costs.
38		For these reasons I am not persuaded there is any adequate basis demonstrated for the exercise of discretion to vary the normal operation of r 10(5) in the manner for which the defendant contends.
Each Party To Bear Own Costs
39		In the course of oral submissions, in light of the various positions taken by the respective parties on the matter of costs, I expressly raised whether this might be an appropriate case in which, in the end, the interests of both parties might be best served by an order that each party bear its own costs of the action.
40		Neither I, nor no doubt the parties, were in a position to assess the precise implications of such an order, and the precise extent to which the result might differ from the result if O 24A r 10(5) were to be given its ordinary operation.  Nevertheless, it did appear to me as a matter of general evaluation from my knowledge of the action and what was before me, having regard to the very extensive preparation which the case had obviously involved before the offer of compromise, the length of the hearing, and the ordinary operation of O 24A r 10(5), that an order that each party bear its own costs might well have a substantially similar outcome.  A further and significant advantage of such an order is that both parties would be spared the further considerable cost and effort that would be involved in what would obviously be a most prolonged and complex taxation of two sets of costs.
41		In the course of the argument neither party saw, or sought to raise, any specific objection to an order that each party bear its own costs.  Having regard to the potential significance of such an order for the interests of the parties, however, I allowed until 5.00 pm on 3 December 2001 for further written submissions on this matter.
42		Both parties have now made further submissions.  It is still the case that neither party objects to such an order.  In the case of the plaintiff, however, it is submitted that as any order might be the subject of appeal it would be appropriate for me to deal with the submissions made by each party in any event.  For the defendant it is submitted that, without derogating from its submissions as to the reasons why O 24A r 10(5) ought to be applied according to its ordinary force, the defendant would not oppose the Court making no order for costs, although it would attach a caveat to that that I should first be satisfied that there is a fair equivalence or balance between the competing claims to costs before doing so.
43		I have in fact set out in these reasons the position to which I have come in respect of the various submissions of the parties.  I have also indicated the basis upon which it appears to me, so far as the materials presently placed before me by the parties and my general appreciation of the action can reveal, why the entitlement of each party pursuant to the ordinary operation of O 24A r 10(5) might well prove to be in approximate balance.  In this regard the fact that neither party objects to such an order appears to offer some further confirmation for this view.  In any event, it is a matter of some considerable significance that were I to make an order which reflected the ordinary operation of O 24A r 10(5), it would be necessary for both parties to prepare and tax bills in respect of their costs that would be of very considerable complexity and length, and also to prepare to meet the corresponding bill of costs prepared by the other party.  This would involve each party in considerable additional effort and expense, and would occupy much time and effort by a taxing officer of this Court.
44		For the reasons indicated, and having regard in particular to the position taken by each party, I am persuaded that the preferable course in this case, in the interests of justice as between the parties and the public interest, is to order that each party should bear its own costs of the action.  I should merely indicate, should it become relevant, that for the reasons given earlier I would otherwise have made orders which reflected the ordinary operation of O 24A r 10(5).

Other Issues
45		Given the order which I have made with respect to costs there is no reason why there should be any further delay in the finalisation of the orders in the action.  In this respect, had there been an order in respect of costs reflecting the ordinary operation of O 24A r 10(5), it was the submission of the defendant that final orders should be delayed to enable effect to be given to s 247 LA Act.  This provides for the deduction of costs from the compensation payable.  There were submissions as to the interpretation of that provision with which I need not now concern myself.
46		There was also a submission advanced, apparently under the slip rule, that I might reconsider one aspect of my principle reasons for decision with a view to awarding a further sum a little in excess of $5,000 in respect of the cost of repairs to the duplex dwelling.  It was suggested there was inconsistency in one respect between my decision in regard to this item of compensation and the claim in respect of the retaining wall.  In my view this is not a matter for the operation of the slip rule, or for which, on any other basis, I ought to reconsider my decision at this juncture.  If there is any substance in the proposition that there is an error in the approach taken to the question of compensation in respect of the duplex dwelling, that appears to be properly a matter for appeal.  I do not propose to take any action in this regard.