NELLY BRYANT v COMMISSIONER OF HIGHWAYS [2025] SASC 85

First Applicant: NELLY BRYANT Counsel: MR M DOUGLAS - Solicitor: BASTIAAN SPARREBOOM Second Applicant: JOHN CLYDE BRYANT Counsel: MR M DOUGLAS - Solicitor: BASTIAAN SPARREBOOM Respondent: COMMISSIONER OF HIGHWAYS Counsel: MS J CLARE - Solicitor: STEPHANIE FAWCETT Hearing Date/s: 08/04/2025, 09/04/2025 File No/s: CIV-23-012046 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. BRYANT v COMMISSIONER OF HIGHWAYS [2025] SASC 85 Judgment of the Honourable Chief Justice Kourakis 30 May 2025 REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - ASSESSMENT REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - ASSESSMENT - ADJOINING LAND REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - INJURIOUS AFFECTION OF ADJOINING PROPERTY REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - ASSESSMENT - OTHER CONSIDERATIONS REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION - OTHER MATTERS REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - ASSESSMENT - PART OF LAND ACQUIRED REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - RIGHT TO COMPENSATION - OTHER MATTERS This matter is an application brought by the applicants seeking compensation pursuant to the Land Acquisition Act 1969 (SA) (‘LAA’), in respect of the compulsory acquisition of a portion of their land (the ‘acquired land’). The acquired land adjoins both the applicants’ premises (the ‘remaining land’) and Long Valley Road. Market value of the acquired has been agreed and is not in issue. -- 1 of 23 -- The sole issue for determination by the Court is whether the applicants are entitled to an award of additional compensation by reason of the loss occasioned from the adverse effects of the acquisition on the applicants’ enjoyment of the remaining land. The construction of the median wire rope safety barrier (‘median wire’) was designed as a part of a broader project to, inter alia, improve safety to the road and prevent head on collisions. However, as a consequence, it also altered the manner in which ingress and egress could be taken to the applicants’ premises. The G-turn facilities constructed on both the Northern and Southern end of the media wire was not constructed on the acquired land, neither was the additional lane as part of the broader project works. Held, dismissing the application: 1. The Court, sitting as a single judge, is bound by the decision of the Full Court of this Court in McInnes v Commissioner of Highways (1992) 78 LGERA 410 to accept the construction advanced for by the Commissioner. However, absent that binding authority, it would have decided otherwise and awarded $40,000.00 in injurious affection. 2. The words ‘by reason of’ in s 25 of the LAA establish a causal test. An owner of the land subject to acquisition should be adequately compensated for the actual value of the subject land and for severance, disturbance, or injurious affection caused by the acquisition of the land. There is no text in s 25(1) of the LAA, or in any other provision of the LAA, which expressly limits the finding of a causal connection to activities undertaken on the acquired land. Injurious affection attributed solely, or substantially, to the work done on the acquired land is undoubtedly sufficient for the causal connection to be established. 3. It is not necessary to limit injurious affection to those impacts originating on the acquired land to deny the veto principle. 4. The decision in Marshall v Director-General, Department of Transport (2001) 205 CLR 603 rejects the reasoning in Edwards v Minister of Transport [1964] 2 QB 134 on which founded the decision in McInnes. It supports the application of a common-sense causal test. It rejects the implication of a limitation which restricts injurious affection to that generated on the acquired land itself. The decision in Marshall denying any basis for the implied limitation is as applicable to the words ‘caused by … the exercise of any statutory power’ as it is the words ‘by reason of the acquisition’ 5. Section 25(1)(h)(c) provides that no allowance shall be made for enhancement or diminution in the value of the land by reason of the proposed or expected development of the land after its acquisition. The land referred to there must also be the remaining land. It provides that the value of the land acquired is to be assessed at its highest and best use immediately prior to its acquisition. A lost opportunity to develop a higher use is not compensable. 6. If compensation were to be awarded, the preferred valuation methodology would assess the diminution in the value of the remaining land, attributable to the acquisition, as being in the range of approximately 2.0 to 2.5 per cent of its value. Land Acquisition Act 1969 (SA) ss 22B, 22B(1), 25, 25(1)(a), 25(1)(b), 25(1)(c), 25(1)(g), 25(1)(h), 25(1)(j), 25(2); Acquisition of Land Act 1967 (Qld) s 20, 20(1), 20(2), 20(3); Land Clauses Consolidation Act 1845 UK, referred to. McInnes v Commissioner of Highways (1992) 78 LGERA 410, applied. Edwards v The Minister of Transport [1964] 2 QB 134; McInnes v Commissioner of Highways (1992) 78 LGERA 410, distinguished. Commonwealth v Morison (1972) 127 CLR 32; Edwards v The Minister of Transport [1964] 2 QB 134; Horton v Colwyn Bay and Colwyn Urban Council [1908] 1 KB 327; Marshall v Director- General, Department of Transport (2001) 205 CLR 603; In re the Stockport, Timperley and Altringham Railway Co (1864) 33 LJQB 251; Cowper Essex v Local Board for Action (1889) 14 App Cas 153; McInnes v Commissioner of Highways (1992) 78 LGERA 410; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, discussed. -- 2 of 23 -- BRYANT v COMMISSIONER OF HIGHWAYS [2025] SASC 85 Civil: Application 1 KOURAKIS CJ: This is an application for compensation by the applicants, Mr and Mrs Bryant, for the compulsory acquisition of a portion of their land (the ‘acquired land’) pursuant to the Land Acquisition Act 1969 (SA) (‘LAA’). The Bryant’s premises is situated on the western side of Long Valley Road at Strathalbyn, being the land comprised in Certificate of Title Volume 6277 Folio 693 (the ‘remaining land’). The acquired land abuts the remaining land and Long Valley Road, with a total area of 1.335 hectares. The value of the acquired land has been agreed. The only question before me is the amount of additional compensation, if any, that should be awarded for the loss occasioned by reason of the adverse effects of the acquisition on the Bryant’s enjoyment of the remaining land. 2 Long Valley Road is a busy road with approximately 7,000 vehicles using it daily, of which seven percent are commercial vehicles. 3 The shortest and quickest route from the Bryant’s premises to the city of Adelaide is to travel north along Long Valley Road, passing through Mount Barker. From the Bryant’s premises, Long Valley Road proceeds in a southerly direction to the town of Strathalbyn. 4 The acquisition of the acquired land was for the purpose of constructing an overtaking lane on the western side of Long Valley Road; that is, the area in front of the Bryant’s premises. The construction of the passing lane involved the following: 1. Road construction, adding an overtaking lane to the existing lanes for southbound and northbound traffic, with 2.5 metres wide sealed shoulders and a 2.2 metres wide centre line treatment separating the south and north bound traffic lanes; 2. G-turn facilities at both ends of the overtaking lane to provide access to properties adjacent to Long Valley Road; 3. Left turn (exit lanes) to the G-turn facilities; 4. A median wire rope safety barrier (‘median wire’) separating the north and south bound traffic lanes; 5. Audio-tactile line markings; 6. Kerbing and guttering; 7. Construction of a (relocated) drain on the western side of Long Valley Road; -- 3 of 23 -- [2025] SASC 85 Kourakis CJ 2 8. Guardrail safety barriers; 9. Relocation of services, such as phone and internet networks; and 10. Landscaping; (collectively referred to as the ‘project works’). 5 The installation of the median wire necessitated the establishment of the two G-turn facilities. The G-turn facility on the southern (Strathalbyn) end of the wire safety barrier was not constructed on the acquired land and was just 134 metres south of the Bryant’s driveway. The G-turn facility on the northern (Adelaide) end of the wire safety barrier was also not constructed on the acquired land and was about 1,740 metres north of the Bryant’s driveway. The additional lane and median wire were constructed on the pre-existing road reserve and not on the acquired land. 6 The following project works were constructed on the acquired land: 1. Relocation of the drain on the western side of Long Valley Road; 2. Relocation of services, such as phone and internet networks; 3. Landscaping along the western verge of Long Valley Road; 4. An approximately 356 metre strip of guardrail safety barrier; and 5. An approximately 231 metre strip of kerbing and guttering. 7 The construction of the median wire was designed to prevent head on collisions, but it also altered the manner in which ingress and egress could be taken to the Bryant’s premises in the following way: 1. Ingress to the residual land is left turn only. Southbound vehicles (travelling from Mt Barker towards Strathalbyn) must progress past the residual land for approximately 600 metres before turning right at the G-turn located to the south (at Mine Flat Road), and return, in a northerly direction, before turning left into the Bryant’s driveway; and 2. Egress from the residual land is left turn only. Southbound vehicles (travelling towards Strathalbyn) must therefore turn left onto Long Valley Road to travel in a northerly direction for approximately 1.8kms, before turning right at the G-turn located to the north of the residual and to head south toward Strathalbyn. 8 In summary the median wire prevents a righthand turn onto the Bryant’s premises when travelling in a southerly direction from Adelaide and prevents a right-hand turn from the Bryant’s premises to travel south to Strathalbyn. The loss of the facility to turn directly into the Bryant’s driveway when travelling south, or -- 4 of 23 -- [2025] SASC 85 Kourakis CJ 3 to turn from the driveway into the southbound carriage, increases the distance and time travelled between their premises and both Adelaide and Strathalbyn. The Bryant’s relied on the opinion of a valuer, Mr Darcy Bruce, who quantified their claim for injurious affection by capitalising the increase in their daily travelling costs. He calculated the capitalised costs to be $102,270.00. About 75 per cent of those costs were attributable to the journeys of Mrs Bryant to and from Strathalbyn. 9 The respondent, the Commissioner of Highways, denies that any compensation for injurious affection was payable because the median wire, which restricts the ingress and egress to the residual land, is not constructed on the acquired land Bryant’s. The Commissioner contends that, on a proper construction of the s 25 of the LAA, only injurious affection occasioned by activity undertaken on the acquired land is compensable. In the alternative, the Commissioner contends that the alteration to ingress and egress from the Bryant’s premises does not diminish the value of the residual land to the extent calculated by Mr Bruce, if at all. 10 For the reasons which follow, I am bound by the decision of the Full Court of this Court in McInnes v Commissioner of Highways (‘McInnes’)1 to accept the construction contended for by the Commissioner, even though, if I were free of binding authority, I would have decided otherwise. I must, therefore, dismiss the Bryant’s claim for injurious affection. 11 If I were to award compensation, I would reject the methodology of Mr Bruce and rely instead on the opinion of the valuer called by the Commissioner, Mr Rowe. I find that the diminution in the value of the remaining land is in the order of 2.0 to 2.5 per cent of its value. I would have awarded $40,000.00 for injurious affection. The proper construction of s 25 12 The question whether or not loss in the nature of injurious affection is compensable only if it is caused by the user of the land acquired must be answered on a proper construction of the LAA. Section 22B(1) of the LAA provides an entitlement to compensation for the compulsory acquisition of an alienable interest in land in two broad categories of case: (a) the person’s interest in the land is divested or diminished by the acquisition; or (b) the enjoyment of the person’s interest in the land is adversely affected by the acquisition. 13 It is s 22B of the LAA which confers the entitlement to compensation and, for that reason, is the primary provision governing compensation for the compulsory acquisition of land. Relevant to the controversy before me, the Bryant’s entitlement pursuant to s 22B(1)(b) of the LAA is to compensation for 1 (1992) 78 LGERA 410 (King CJ, Olsson and Mullighan JJ). -- 5 of 23 -- [2025] SASC 85 Kourakis CJ 4 the adverse effects on their ‘enjoyment of [their] interest in the [residual] land…[caused] by the acquisition. 14 Section 25 of the LAA prescribes the principles governing the assessment of compensation to which s 22B of the LAA has conferred on entitlement. Those principles must therefore be construed, and applied, in accordance with the terms of the entitlement conferred by s 22B of the LAA. Relevantly to this application, s 25 of the LAA provides: 25—Principles of compensation (1) The compensation payable under this Act in respect of the acquisition of land shall be determined according to the following principles: (a) the compensation payable to a claimant shall be such as adequately to compensate him for any loss that he has suffered by reason of the acquisition of the land; and (b) in assessing the amount referred to in paragraph (a) of this section consideration may be given to— (i) the actual value of the subject land; and (ii) the loss occasioned by reason of severance, disturbance or injurious affection; and (c) compensation shall be fixed as at the date of acquisition of the land; and … (g) no allowance shall be made on account of the fact that the acquisition is effected without the consent, or against the will, of any person; and (h) no allowance shall be made for any enhancement or diminution in the value of the land in consequence of— (a) the passing of the special Act; or (b) the acquisition under this Act of any other land; or (c) any proposed or expected development of the land after its acquisition; and … (j) allowance shall be made in favour of the Authority for any enhancement in value of land adjoining the subject land in which the claimant is interested by reason of development of the land after its acquisition, but in no case shall the claimant be liable to make any payment to the Authority in respect of such enhancement in value; and … -- 6 of 23 -- [2025] SASC 85 Kourakis CJ 5 (2) The reference to loss in subsection (1)(a) extends, in the case of acquisition of native title, to diminution, impairment or other adverse effect on native title that results or will result from the acquisition project. 15 Section 25(1)(a) of the LAA enacts the guiding principle of adequate compensation for any loss suffered by reason of the acquisition. Section 25(1)(b) of the LAA identifies, without being exhaustive, the primary heads of loss which are to be compensated. Compensation for severance is payable for the loss of the contribution, formerly made by the acquired land, to the optimisation of the user of the remainder of the land. Compensation for disturbance is payable where the acquisition of the land reasonably requires the performance of works on the remaining land to maintain its pre-acquisition use or the relocation of activities formerly performed on the residual land. Compensation for injurious affection is payable where the acquisition has adversely affected the continuing pre-acquisition user and enjoyment of the remaining land. 16 Altered ingress and egress to the remaining land may result in loss in the nature of injurious affection, severance or disturbance, depending on the particular degree and way in which the remaining land is affected, and whether remedial works on the remaining land can provide alternative ingress and egress. For example if the acquisition of land removes a driveway from the remaining land necessitating the construction of an alternative path that is similarly efficacious and practically available, the loss may be limited to disturbance and not injurious affection. In the generality of cases, the compensation for that loss would be assessed as the cost of constructing the alternative path but, in some cases, there may be an additional diminution in the value of the land. If there is no practical alternative available, the loss suffered is in the nature of severance. 17 I make the following observations about s 25 of the LAA. 18 First, consistently with s 22B(1)(b) of the LAA, the term ‘by reason of’ establishes a causal test. The loss contemplated by s 25(1)(a) of the LAA is any loss caused by the acquisition which must be adequately compensated. Reading s 25(1)(a) of the LAA together with s 22B, the phrase ‘by reason of’ in the former provision should bear the same meaning as ‘by the acquisition’ in the latter. The causal connection is stated broadly. 19 Secondly, subparagraph (b) is subsidiary to subparagraph (a). It prescribes the actual value of the acquired land as a relevant consideration but, importantly, on this application, it also prescribes the loss occasioned by reason of severance, disturbance, or injurious affection. Again, the term ‘by reason of’ is used. A causal link between the acquisition and those forms of loss is required. If one reads subparagraph (b) into subparagraph (a), the principle is that an owner of the land subject to acquisition should be adequately compensated for the actual value of the subject land and for severance, disturbance, or injurious affection caused by the acquisition of the land. -- 7 of 23 -- [2025] SASC 85 Kourakis CJ 6 20 Thirdly, no allowance is to be made for the compulsory nature of the acquisition (see subparagraph (g)). To put it another way, compensation is not payable for the denial of, what might otherwise have been, the owner’s right to veto a project for which the compulsory acquisition is made. 21 Subparagraph (h) emphasises and expands on subparagraph (g). The land referred to in the primary clause of that subparagraph must be the remaining land because no subsequent enhancement or diminution in value of the acquired land could bear on the compensation payable to applicants. Furthermore, the land acquired is referred to as the subject land in subparagraphs (b)(i) and (j). Subparagraph (h) precludes any allowance in favour of the Commissioner for any enhancement or diminution in the value of the remaining land by reason of the enactment of the Act which authorises the compulsory acquisition. It also provides that there shall be no allowance for any enhancement or diminution in the value of the remaining land by reason of the acquisition under the LAA of any other land. The two provisions together ensure that the purchasing authority neither pays a premium for compulsorily acquired land generated by the advantages of the project, nor pays compensation for any diminutions in the value of the remaining land caused only by the passing of the special Act or the project. 22 Finally, subparagraph (h)(c) provides that no allowance shall be made for enhancement or diminution in the value of the land by reason of the proposed or expected development of the land after its acquisition. The land referred to there must also be the remaining land. It provides that the value of the land acquired is to be assessed at its highest and best use immediately prior to its acquisition. A lost opportunity to develop a higher use is not compensable. 23 By subparagraph (j), the Court, in assessing compensation, must make allowance in favour of the acquiring authority for any enhancement in the value of the remaining land adjoining the subject [acquired] land in which the claimant is interested by reason of the development of the [acquired] land after its acquisition. Subparagraph (j), in contrast to subparagraph (h), is concerned with the value added to the remaining land by the development of the acquired land itself, and not the project generally. The text of subparagraph (j) may also be contrasted with the text of subparagraph (a). Whereas pursuant to s 25(1)(b) of the LAA, the acquiring authority must pay compensation for any loss suffered by reason of the acquisition of the land, the enhancement for which the Authority must be given a credit pursuant to subparagraph (j) is limited to enhancement by reason of [caused by] the development of the acquired land itself. 24 Nonetheless, a similar issue may arise, on the question of enhancement pursuant to subparagraph (j) to the issue which is controversial in this case. One can imagine the construction of public infrastructure, for which the acquisition of the claimant’s land was required, even though, in itself, the acquired land did not accommodate the infrastructure which enhanced the value of the claimant’s remaining land. The potential application of subparagraph (j) would be limited, -- 8 of 23 -- [2025] SASC 85 Kourakis CJ 7 with no valid policy purpose, if it were construed in the narrow way contended by the Commissioner in respect of subparagraph (a). 25 Finally, I observe that s 25(2) of the LAA introduces the notion of ‘the acquisition project’ in the assessment of the adverse effect of the acquisition on native title. Section 25(2) of the LAA is one of a number of provisions enacted concurrently into the LAA to address the question of native title. There is no reason to draw implications from the introduction of the concept of the wider project for the purposes of native title which substantially affect the existing provisions. Analysis 26 The matter of contention between the parties in this case arises from the proper construction of the words ‘by reason of’ in s 25(1)(a). It is accepted that the words ‘by reason of’ require a causal link between the acquisition of the land and the injurious affection, pursuant to s 25(1)(b)(ii). The Commissioner’s contention is that no works which an authority undertakes beyond the boundaries of the acquired land can have that causal connection. 27 The identification of the consequences of a cause is generally treated by the common law as involving a question of fact or an evaluative judgment. The concept of cause and effect may be influenced by the statutory context in which the test is enacted. However, there is no text in s 25(1), or in any other provision of the LAA, which expressly limits the finding of a causal connection to activities undertaken on the acquired land. 28 It may be accepted that injurious affection generated by the project as a whole but having no connection to the use of the acquired land by the Authority land is insufficient, even if the entire project may not have been possible without the acquired land. In such cases, but for the power of compulsory acquisition, the landowner may have ‘vetoed’ the entire project. However, s 25(1)(g) of the LAA expressly prohibits, including an owner compensating for the statutory abrogation of the power to veto the project. 29 Moreover, in such cases, the loss caused by the entire project could only be compensable if a ‘but for’ condition was sufficient to establish the causal link demanded by s 25 of the LAA. The common sense and practical approach to causation of the common law is generally not satisfied by ‘but for’ conditions. 30 At the other end of the spectrum, injurious affection attributed solely, or substantially, to the work done on the acquired land is undoubtedly sufficient for the causal connection to be established. 31 There is an undistributed middle between those two termini. They are those cases where a commonsense and pragmatic causation test is satisfied because the land acquired substantially or materially facilitates the development which generates the injurious affection. -- 9 of 23 -- [2025] SASC 85 Kourakis CJ 8 32 That is the case here. Even though the median wire was not erected on the land acquired from the Bryant’s, there is no doubt that the relocation of the drain services, the landscaping of the western verge and the curbing, guttering and guard rail safety barrier were integral to the construction of the passing lane. The median wire was an integral part of the construction of the overtaking lane. The safety imperative to separate traffic travelling in opposite directions when there is an overtaking lane is plain to see. There is a real risk that the overtaking lane may be used both by vehicles travelling north and vehicles travelling south at the same time. The median wire obviates that risk. Equally, a conclusion that the acquisition caused the injurious affection could properly be made if there were no median wire rope safety barrier but instead a road rule prohibiting turning across an overtaking lane. Moreover, that conclusion would pertain whether the lane was entirely, or even partly, on the acquired land and if the acquired land provided a drained verge for that lane. The Full Court decisions 33 There is strong authority in this Court for the proposition that only that injurious affection which is suffered by reason of activity undertaken on the acquired land is compensable. That authority draws on the English Court of Appeal decision in Edwards v The Minister of Transport (‘Edwards’).2 It is therefore best to first address that decision. 34 The factual circumstances in Edwards arose out of the construction by the Minister of Transport of a major road on an embankment passing by Mr Edwards’. Pursuant to statutory powers conferred by the Highways Act, the Minister compulsorily acquired two small parcels of land from Mr Edwards for the construction of the road. There was a steep incline in the road as it passed by Mr Edwards’ remaining land. Much dust, noise, and light pollution was generated by the vehicles using the road. Mr Edwards’ enjoyment of his home was badly affected. The parties agreed that the appropriate compensation for injurious affection, if it were to be awarded for that loss arising from the use of the entirety of the newly constructed road, was £4,000, but if the compensation were limited to the injurious affection arising from the passing of the vehicles over the road built on the two small parcels of land purchased from Mr Edwards, the proper compensation was £1,600. 35 The Tribunal awarded the higher sum relying on ‘the veto principle’ to which I have referred. As I observed the ‘veto principle’ is inherently problematic and may be equated to the ‘but for’ test of causation. 36 In the Court of Appeal, Harman LJ described the content of the term ‘injurious affection’ as obscure and expressed some bemusement at what he described as the ‘alchemy’ by which the sum of £1,600 was conjured up.3 As to the first observation, the literal meaning of the term ‘injurious affection’ is a state 2 [1964] 2 QB 134. 3 Ibid 145. -- 10 of 23 -- [2025] SASC 85 Kourakis CJ 9 or condition brought about by something harmful or wrong. In the context of compensation for compulsory land acquisition, it bears some similarity to the meaning of the word ‘affection’ in pathology. As to the second observation, the assessment of the contribution of a multiplicity of causes to a loss is not unknown to the common law. It is regularly undertaken even if wielding an axe, or perhaps a tomahawk, is sometimes necessary. 37 Lord Justice Harman’s observations attracted some criticism in the judgment of Gleeson CJ, Gummow, Kirby and Callinan JJ in Marshall v Director-General, Department of Transport (‘Marshall’):4 The reasoning in Edwards is in our respectful opinion, in any event unconvincing. Harman LJ described “injurious affection” as a piece of jargon. It is more than that. It is a neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner’s land. Reference to it in disparaging language does nothing in our view to assist in the elucidation of what it involves. The use of this common expression serves well to distinguish the statutory right from the common law claim in nuisance. It is unnecessary, and it would be unprofitable in these reasons, to examine his Lordship’s reasons and his analysis of the earlier cases to ascertain why the apparently unambiguous language of s 63 of the 1845 Act was given the meaning which his Lordship and others have attributed to it. Like the Court in Beaver Dredging, we do not read the decision in Morison as embracing the reasoning in Edwards. (Citations omitted) 38 Returning to the reasons of Lord Justice Harman, they commence with a reference to the ‘standard textbook’ on the subject which stated the law to be:5 That no compensation is payable in respect of what is done on lands other than those taken from the claimant … 39 Lord Justice Harman traced the development of that principle to a decision of Compton J in In re the Stockport, Timperley and Altringham Railway Co (‘Stockport’).6 Before turning to that decision, I observe that the 19th century was a period of great expansion in the construction of public infrastructure. The costs of building that infrastructure for the benefit the public would have generally been prohibitive if compensatory remedies for those individuals who were adversely affected were not closely controlled. In Stockport, a railway company compulsorily acquired land which was so close to a cotton mill that the danger of fire caused by sparks from the train made it much less suitable as a cotton mill. Its insurance premiums rose dramatically. 40 The applicable statutory provision s 63 of the Land Clauses Consolidation Act 1845 (UK) (‘LCC Act’), provided:7 4 (2001) 205 CLR 603, 621-623 [32]. 5 Edwards 146. 6 (1864) 33 LJQB 251. 7 Marshall (n 4) 627-8 [49]-[51]. -- 11 of 23 -- [2025] SASC 85 Kourakis CJ 10 In estimating the purchase money or compensation to be paid by the promoters of the undertaking, in any of the cases aforesaid, regard shall be had by the justices … not only to the value of the land to be purchased or taken by the promoters of the undertaking, but also to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith. (Emphasis added) 41 The reasoning of Crompton J appears in the following passage:8 Where the damage is occasioning by what is done by other land which the company have purchased, and such damage would not have been actionable against the original proprietor, … the company have a right to say; we have done what we had a right to do as proprietors, and do not require the protection of any Act of Parliament; we therefore have not injured you by virtue of the provisions of the Act; no cause of action has been take away from you by the Act. Where however the mischief is caused by what is done on the land taken, the parties seeking compensation has a right to say, it is by the Act of Parliament, and Act of Parliament only, that you have done the acts that have caused the damage; without the Act of Parliament, everything you have done, and are about to do, in the making and using the railway, would have been illegal and actionable and is, therefore, matter for compensation according to the rule in question. 42 The reasoning of Crompton J appears to be that by reason of the compulsory acquisition, the claimant had no action for what would otherwise have been a trespass on his land and that the intent of s 63 was to do no more than preserve his common law action. On that consideration, Crompton J read into s 63 of the LCC Act a limitation that only that injurious affection caused by the use of statutory powers to develop the acquired land was compensable. 43 Two features of that reasoning should be noted. First, the very words of s 63 of the LCC Act were not closely considered. In particular the broad reference to the exercise of the powers of the LCC Act or any other enabling of the Act nor the concept of causation are closely examined. 44 Secondly, the limitation placed on the entitlement to injurious affection is derived from the effects of the LCC Act on what would otherwise have been the entitlement to compensation under the common law if the activity had been undertaken on the claimant’s land without consent. 45 Both aspects of the reasoning manifest an approach which gives prominence to common law principles and treats statutes as ancillary to the common law. 46 In Commonwealth v Morison (‘Morison’),9 Gibbs J explained the decision in Stockport as follows:10 8 (1864) 33 LJQB 251, 253. 9 (1972) 127 CLR 32. 10 Ibid 56-7. -- 12 of 23 -- [2025] SASC 85 Kourakis CJ 11 The ‘exercise of the powers’ referred to in s 63 appears to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken. 47 With respect to Gibbs J, s 63 was not limited to the power to compulsorily acquire the land. I respectfully find the explanation proffered by McHugh J in Marshall to be preferable:11 … But with great respect to his Honour, I doubt that his explanation accurately states the reason that s 63 has been read in the way that it has. As the judgment of Crompton J in Stockport and the speech of Lord Halsbury LC in Cowper Essex make plain, the words of s 63 were not seen as words of limitation. The claimant, according to Lord Halsbury LC, had a right “different in kind from that which is suffered by the rest of Her Majesty’s subjects”. It was different because it was the taking of the claimant’s land and the use of it that had enabled the authority to damage the retained land of the claimant. Because that was so, the claimant was seen as being in a special position in respect of the land retained in so far as that land was injuriously affected by the use of or work on the acquired land. Why the claimant should be in a preferred position in respect of work done on the acquired land and have no rights in respect of work done off the acquired land that affected the retained land is not readily apparent. Upon acquisition of the land, the claimant stood in the same relationship to the acquirer as neighbouring occupiers. However, s 63, like s 20(1)(b), gave the claimant a special right to compensation for injurious affection arising from the exercise of the powers of the acquirer. It is not easy to see anything in s 63 which supports the view that, the special right having been given, a claim for injurious affection should be limited to consequences arising from the use of or works done on the resumed land. According to Lord Parmoor in Sisters of Charity of Rockingham v The King, the decision in Stockport “[f]or a time ... gave rise to considerable difference of judicial opinion” until its reasoning was subsequently approved by the House of Lords. 48 The second of those paragraphs illustrates, by way of contrast, the modern approach to statutory construction. 49 Lord Justice Harman also relied on the statement of Lord Alverstone CJ in Horton v Colwyn Bay and Colwyn Urban Council, in which his Lordship said:12 It appears to me to be the result of those authorities which are binding upon this house, that a proprietor is entitled to compensation for the depreciation of the value of his other lands, insofar as such depreciation is due to the anticipated legal use of works, to be constructed upon the land which has been taken from him under compulsory powers. 50 In Cowper Essex v Local Board for Action,13 Lord Halsbury LC stated the rule in this way:14 …I take it that two propositions have now been conclusively established…But a second proposition is, it appears to me, not less conclusively established, and that is, that where 11 Marshall (n 4) 632 [60]. 12 [1908] 1 KB 327, 337. 13 (1889) 14 App Cas 153 14 Ibid 161. -- 13 of 23 -- [2025] SASC 85 Kourakis CJ 12 part of a proprietor’s land is taken from him, and the future use of the part so taken may damage the remainder of the proprietor’s land, then such damage may be an injurious affecting of the proprietor’s other lands, though it would not be an injurious affecting of the land of neighbouring proprietors from whom nothing has been taken for the purpose of the intended works. 51 In McInnes, the Full Court of this Court dismissed an appeal against the dismissal of an application for compensation by the proprietor of the Dublin Hotel for injurious affection arising from the diversion of Port Wakefield Road. The hotel had enjoyed a frontage on Old Port Wakefield Road. The route of the new Port Wakefield Road bypassed Dublin and ran along land behind the hotel which the Commissioner had compulsorily acquired land from the proprietor. The injurious affection was the loss of custom and diminished locational goodwill of the hotel arising from the loss of the frontage. 52 Justice Olsson, with whom King CJ and Mullighan J concurred, framed the question as follows:15 …whether or not the concept of “injurious affection” referred to in the section was limited to loss suffered as a result of activities only on what was formerly the [claimant’s] land or whether it encompassed a broader concept of loss of profits likely to be suffered in the hotel business by virtue of the general, overall proposed new undertaking, as to which the land acquired from the appellant’s formed only portion of the total sight of the new construction works. 53 Justice Olsson held that it was only that injurious affection occasioned by reason of activities on the specific parcel of land acquired which attracted an award of compensation. The analysis of Olsson J commenced with a consideration of the text of s 25 of the LAA. His Honour correctly, in my respectful opinion, construed the words ‘by reason of the acquisition of the land’ to require a causal connection between the acquisition and the injurious affection. However, Olsson J then followed the decision in Edwards,16 to hold that compensation was only payable in respect of activities conducted on the very land acquired without reconciling that limitation with the causal test on which the entitlement to compensation was constituted. 54 Justice Olsson, again, correctly in my respectful opinion, rejected the claimant’s contention that the LAA awarded compensation for injurious affection caused by the entire project:17 In my opinion the conclusion arrived at by [the trial judge] was manifestly correct. Even granted the contention of the appellants at the verbiage employed in the Act should be accorded the broadest construction of which it is reasonably capable, having regard to the stated objects of the legislation and the requirement of s 22(1) of the Acts Interpretation Act 1915 (SA), the fact remains, that taking the provision of both s 18 and s 25(a) together the expression “by reason of the acquisition of the land” necessary connotes cause and affect situation. It logically limits consideration to the impact of the acquisition of the 15 McInnes (n 1) 411-2. 16 [1964] 2 QB 134. 17 McInnes (n 1) 414. -- 14 of 23 -- [2025] SASC 85 Kourakis CJ 13 specific parcel of land; and not consequences flowing from the broader undertaking of the Commissioner, of which the acquisition is but a portion. 55 However, his Honour, in my respectful view mistakenly, considered that it was necessary to limit injurious affection to those impacts originating on the acquired land to deny the veto principle. It is not necessary to accept the strict and limited connection to reject the contention propounded in Edwards that any injurious affection generated by any part of the project is compensable. 56 Justice Olsson’s ultimate finding was:18 … because any adverse effects flowing to the appellants’ business stem from the broader undertaking of the Commissioner in constructing the whole by-pass (taken as a totality) rather than what may be caused by the mere acquisition of the specific land owned by the appellants. Although counsel for the appellants has advanced everything possible in support of their contention, it simply cannot be said, at the end of the day, that any diminution in trade likely to be experienced by them, or any loss which could be consequential upon that diminution, is loss suffered by them “by reason of the acquisition of the land”. (As to this the reasoning of Buckley LJ in Horton v Colwyn Bay and Colwyn Urban District Council [1908] 1 KB 327 at 342-343 is apposite.) 57 The result in McInnes can be justified without adopting the restrictive rule adopted in Edwards. The loss of custom, and the diminished value of the Dublin Hotel’s locational goodwill, were caused by the closure of the old Port Wakefield Road, and not by the construction of the new Port Wakefield Road which was facilitated by the purchase of the Dublin Hotel land. True it is that the traffic would still have continued to travel along Old Port Wakefield Road but for the project which was to re-route Port Wakefield Road to the rear of the Dublin Hotel. However, Mr McInnes was not to be compensated for the abrogation of his ability to veto the project by withholding his land. The practical and commonsense cause of the loss was the removal of the road which ran in front of the Dublin Hotel from the highway network. 58 In Marshall, the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Queensland denying a claimant any compensation for injurious affection. The claimant, Mr Marshall, owned land, the eastern boundary of which fronted the Bruce Highway. The Director-General compulsorily acquired a strip of land along the eastern boundary to enable the construction of additional lanes on the duplication of that section of the Bruce Highway. On the acquisition of the land, that section of the Bruce Highway which ran along Mr Marshall’s land was declared to be ‘limited access’ by Government proclamation. Mr Marshall’s land was acquired to enable the construction of additional lanes on the duplication of that section of the Bruce Highway. 18 Ibid. -- 15 of 23 -- [2025] SASC 85 Kourakis CJ 14 59 After the construction of the works on the acquired land, only indirect access, through an exit which opened onto a service road, was available to Mr Marshall’s land from the Bruce Highway. 60 The earthworks undertaken for the duplication project created two lakes on Mr Marshall’s land. To rectify the flooding which created the lakes, either drainage works, or landfill were required. The compensation claimed for the injurious affection was calculated by reference to the cost of flood mitigation works which had been and were still to be carried out. 61 The flooding was not caused by run off from the compulsorily acquired land but by the duplication project generally. 62 The road surface of the additional lanes, new culverts and an extended bridge were all located on the original road reserve. On the acquired land there was a feature described as a ‘rock spill’. The Land Court found that the rock spill on the acquired land played no part of the roadworks which caused the flooding. There was a dispute as to whether any part of the embankment supporting the new lanes was located on the resumed land but it was found that some drainage works were carried out on the resumed land. 63 Section 20 of the Acquisition of Land Act 1967 (Qld) (‘the ALA(Qld)’) provides: Assessment of compensation (1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely – (a) the severing of the land taken from other land of the claimant; (b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. (2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value. 64 Section 20(1)(b) of the ALA(Qld) is in similar terms to s 63 of the LCC Act considered in Edwards. Accordingly, its construction raised the issue whether exercise of the powers referred to in s 20(1)(b) of the ALA(Qld) was a reference only to the exercise of those powers on the acquired land. -- 16 of 23 -- [2025] SASC 85 Kourakis CJ 15 65 The Land Court did not address the question whether, in an engineering sense, any part of the broader project was connected with, or dependent upon, the works undertaken on Mr Marshall’s land and therefore a contributing cause of the flooding. Rather, the question it addressed was whether it was possible, in a practical sense, to separate the works carried out on the resumed land from those which caused the flooding. Framing the question in that way, the Land Court held that the drainage work on Mr Marshall’s land was quite separate, in a practical sense, from that part of those features of the Highway project which caused the flooding. The Land Court found that the drainage work on the resumed land actually minimised flooding and was, therefore, quite unconnected with the cause of the flooding on Mr Marshall’s land. The Land Court purported to apply the common law causation test articulated in March v E & MH Stramare Pty Ltd (‘Stramare’),19 to exclude a causal connection because the flooding would have occurred even if there were no drainage works undertaken on the acquired land. The Land Court therefore dismissed the claim for injurious affection as a matter of law, relying on the decision in Edwards.20 However, applying the test of causation in Stramare, the relevant question was whether the acquisition of the land materially contributed to the flooding. 66 Mr Marshall appealed against the dismissal of his application to the Queensland Court of Appeal. The statutory right of appeal from the Land Court was restricted to error or mistake of law and to an absence or excess of jurisdiction. The Queensland Court of Appeal dismissed the appeal holding that a claim for injurious affection must fail unless, at the very least, some damage to the balance land was caused by (or by the use of) works performed on the resumed land. 67 On appeal to the High Court, the decision of the Land Court was set aside, and Mr Marshall’s claim was upheld. In allowing the appeal, Gleeson CJ, Gummow, Kirby and Callinan JJ considered that it could not be clearer that s 20 of the ALA(Qld) did not limit claims for injurious affect in that way:21 In our opinion, however, the language of s 20(1)(b) of the Act could hardly be plainer. In assessing compensation, regard is to be had not only to the value of the land taken but also to the damage caused by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other [the remaining, severed] land. The section does not say “the exercise of any statutory powers by the constructing authority on and only on the land taken …”. The section clearly distinguishes between the land taken and the severed land. It does not seek to distinguish between the various activities carried out by a constructing authority in the exercise of its statutory powers: for example, the conduct of a survey, the construction of a road, the building of a bridge, the installation of drainage or footpaths beside the road, and the subsequent use of everything that has been done or brought into existence as, and for the purposes of, a road. In truth, all of these can relevantly and properly be characterised as part and parcel of the construction, and subsequently the use of the road. Once the constructing authority acquires land for a statutory purpose and carries out the statutory purpose, it must, pursuant to s 20(1)(b) of the Act, compensate the 19 (1991) 171 CLR 506. 20 Edwards (n 1). 21 Marshall (n 4) 616 [20]. -- 17 of 23 -- [2025] SASC 85 Kourakis CJ 16 dispossessed owner for the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective. (underlining added) 68 The plurality judgment cast substantial doubt on the correctness of the decision in Edwards:22 The correctness of Edwards has, understandably in our opinion, been questioned. It followed and purported to apply the advice of the Privy Council in Sisters of Charity of Rockingham v The King. It was held in that case that the appellants were entitled to compensation “so long as their claim is not extended beyond mischief which arises from the apprehended legal user of the two promontories as part of a railway shunting yard”. Certainly, we do not read what was said in Morison as an endorsement, enthusiastic or otherwise, of Edwards. 69 Their Honours also rejected suggested difficulties which were said to stand in the way of giving s 20 of the ALA(Q) its ordinary meaning:23 Other matters were advanced as practical difficulties in giving s 20 of the Act its ordinary meaning. The difficulties suggested are illusory only. One was that the resuming authority might have a long-term purpose which is not to be carried into effect within an identifiable period. That will raise a merely factual question of the quantification of postponed damage or loss, an exercise regularly undertaken by courts today. A further difficulty, of measuring the effects of the implementation of the statutory purpose, the degree of vibration, the extent of the escape of noise, or dust or fumes, was suggested. Again, this raises a question of fact and one well capable of resolution on evidence of the kind regularly given in planning courts and tribunals, as well as those in which compensation falls to be determined. The respondent argued that the legislature enacted s 20 in the knowledge of, and against the background of, the decision in Edwards, and that, therefore, the Queensland legislature intended that the courts give s 20 a meaning attributed to s 63 of the 1845 Act by the English Court of Appeal. The respondent referred, in support of this argument, to the second reading speech for the Acquisition of Land Bill by the Minister for Lands: The principles for the assessment of compensation are unchanged from those which presently operate. The existing principles are well established and require no change. They are in fact largely conventional to the law of English-speaking nations. They are well tried and proven, and their interpretation is assisted by a great body of case law covering every aspect of their application. 70 In Marshall, Gaudron J emphasised that the basic rule of statutory construction is to give the text its natural and ordinary meaning and the importance of conferring an entitlement to compensation for the compulsory acquisition of property rights ‘with all the generality that their words permit’.24 22 Ibid 617-8 [23]. 23 Ibid 620 [29]. 24 Ibid 623 [37]-[38]. -- 18 of 23 -- [2025] SASC 85 Kourakis CJ 17 71 Justice McHugh also allowed the appeal. His Honour construed s 20 of the ALA(Qld) in accordance with the ordinary meaning of its text:25 It seems natural to read the reference in [s 20(1)(b)] to “the exercise of any statutory powers” by that authority as referring to the exercise of powers implementing the purpose for which the land was taken. The exercise of a power for any function or purpose incidental to the purpose for which the land was acquired is therefore an exercise of statutory power within the meaning of s 20(1)(b). No narrow view should be taken of what is incidental to the purpose for which the land was acquired. If part of a parcel of land is taken for road purposes, any damage caused to the residue in the course of constructing, paving, draining or making safe the road and its accessories will be injurious affection for the purpose of the paragraph. (underlining added) 72 Justice McHugh distinguished the approach to the construction of provisions conferring immunity from suit in the exercise of statutory powers from compensation provisions:26 No narrow view should be taken of what constitutes the exercise of a statutory power when the acts or omission of the constructing authority have resulted or will result in damage to the remaining land of the claimant. In particular, there is no scope for applying the principles that courts use in construing provisions that protect public authorities from actions arising out of the exercise of statutory powers. In that context, the courts accept that a grant of statutory power carries with it “by necessary implication a statutory authority to do all those incidental acts necessary to the exercise of that power which the [authority] ... could not lawfully perform without such an authority”. But, because the implication arises from necessity, it is “limited by the extent of the need”. Consequently, “[t]here can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful”. Applying these principles, this Court has held that damage caused by a fire engine on its way to a fire was not “damage caused in the bona fide exercise of [the] powers” conferred by the Fire Brigades Act 1909 (NSW). It has held that injury was not “done under [the] Act” when a Council truck caused injury on the highway in the course of performing duties imposed by the Local Government Act 1919 (NSW). And it has held that the failure of the Australian National Airlines Commission to provide a safe system of work was not something “done or purporting to have been done” under the Australian National Airlines Act 1945 (Cth). In each of these cases, the particular act or omission of the public authority was done or omitted to be done in the course of an activity which was lawful independently of the legislation governing the activities of the authority. Consequently, the immunity was construed as not covering acts or omissions causing damage but done in the course of otherwise lawful activities. In cases conferring immunities on public authorities, the legislation is read with the presumption that the legislature did not intend that the protection to the authority “granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow”. In the case of legislation dealing with the compensation to be awarded in respect of the compulsory acquisition of land, however, a different presumption operates. The legislation is intended to ensure that the person whose land has been taken is justly compensated. Such legislation should be construed with the presumption that the legislature intended the claimant to be liberally compensated. That being so, it would be wrong to construe a provision such as s 20(1)(b) as conferring compensation only for 25 Ibid 625 [45]. 26 Ibid 266-7 [47]-[48]. -- 19 of 23 -- [2025] SASC 85 Kourakis CJ 18 damage that results from an act that is “the very thing, or an integral part of or step in the very thing, which the provisions of the Act” gave the constructing authority power to carry out. Whenever the constructing authority takes steps to achieve any purpose or carry out any function that is incidental to the purpose for which part of the land was acquired, it should be regarded as the exercise of a statutory power within the meaning of s 20(1)(b). 73 Justice McHugh rejected the reliance on the English cases for the following reasons:27 I do not think that there are any grounds upon which the principles laid down in the English cases and frequently followed in this country can be persuasively distinguished because of differences in the texts of s 63 of the Land Clauses Consolidation Act and s 20(1)(b) of the Act. The language of s 63 is not readily distinguishable from that of s 20(1)(b). But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court’s jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation. (Citations omitted) 74 The decision in Marshall rejects the reasoning in Edwards on which founded the decision in McInnes. It supports the application of a common-sense causal test. It rejects the implication of a limitation which restricted injurious affection to that generated on the acquired land itself. The words of s 20(1)(b) of the ALA(Qld) can have no bearing on whether that limitation should be implied. The decision in Marshall denying any basis for the implied limitation is as applicable to the words ‘caused by … the exercise of any statutory power’ as it is the words ‘by reason of the acquisition’ 75 However, as a single judge I remain bound by the decision of the Full Court in McInnes. I therefore dismiss the Bryant’s application. 27 Ibid 632-3 [62]. -- 20 of 23 -- [2025] SASC 85 Kourakis CJ 19 Quantification of the Claim 76 The Bryant’s claim for injurious affection is based on the assessment of the certified practicing valuer Mr Darcy Bruce. Mr Bruce provided a report and gave evidence. In his report, Mr Bruce described the head of loss he assessed as severance. As I observed earlier, there is some overlap between the concepts of injurious affection and severance. I accept that Mr Bruce did value the loss of enjoyment of the remaining land by reason of injurious affection arising from the additional travelling time/distance and general inconvenience of using the G-turn. Mr Bruce assessed that compensation by calculating the additional kilometres that would be travelled to Adelaide and Strathalbyn by Mr and Mrs Bryant respectively. Mr Bruce did so by calculating the costs of running a large car for Mr Bryant to commute to Adelaide and a small car for Mrs Bryant’s commute to Strathalbyn. He also added an allowance for the additional travelling time taken by the Bryant’s commute. 77 Applying that methodology and capitalising the additional costs at 5% per annum, Mr Bruce assessed the compensation for injurious affection to be $102,270. 78 Mr Tom Rowe, the certified practicing valuer engaged by the Commissioner, assessed the compensation for injurious affection at nil in accordance with the legal premise which he was instructed to accept, that only injurious affection generated from the acquired land was compensable. 79 There is an immediately obvious difficulty with the methodology adopted by Mr Bruce. It values the loss of enjoyment of the remaining land by reference to the actual costs of the present owners, the Bryants, at this particular stage of their life but capitalises that as the value of the loss of enjoyment of the land well into the future. On that approach, the assessment would have to be further refined for the contingencies that, later in life, the Bryant’s commute might change and that future owners may not commute at all. Moreover, there are many other possible variations in the commuting habits of the future owners of the land. In short, Mr Bruce’s method is inherently and radically uncertain. 80 Mr Bruce and Mr Rowe gave evidence concurrently. 81 Mr Rowe’s opinion was that there was insufficient evidence to suggest that there would be a difference in the value of otherwise similar land to the remaining land if that land were within a two-kilometre radius of the remaining land. That opinion is inconsistent with Mr Bruce’s assessment of compensation for injurious affection based on additional travelling time. 82 Mr Bruce accepted that it was too difficult to find comparable sale to assess the loss of value arising out of the changed ingress and egress. Mr Bruce too thought that there was insufficient evidence to establish that the fine tuning of the location would result in a markedly different value of the land. However, Mr Bruce expressed the opinion that a hypothetical purchase of two otherwise -- 21 of 23 -- [2025] SASC 85 Kourakis CJ 20 similar properties, one with unfettered ingress and egress, and the other with restricted ingress and egress to the remaining land, a hypothetical purchaser would pay substantially more for the property with the unfettered ingress and egress. 83 Mr Bruce’s opinion was that an appropriate percentage discount of the value of land for injurious affection was in the order of five to eight percent. However, Mr Bruce’s opinion was based largely on the range of percentage diminution attributed to injurious affection in the reports of valuers who have opined on the question in other cases. However, that is not market evidence. I doubt that it is admissible. Nonetheless, I have determined to receive the evidence as an indication of the potential effect of injurious affection on the value of remaining land. 84 Mr Rowe, on the other hand, took the position that if the injurious affection was compensable, any discounting of the value of the land in the circumstances of this case was counter-balanced by the improved safety of the road resulting from the median wire. Hypothetical purchasers will have different views on the relative advantages and disadvantages of the roadworks and it cannot be known which class of purchasers will be present and in what numbers. Mr Rowe’s opined a discount “closer to 2.5% in terms of the diminution value” would be appropriate. 85 Mr Rowe testified that potential hypothetical purchasers would have a wide range of reasons for purchasing a ‘lifestyle’ property. He testified that “every hypothetical purchaser has a bunch of reasons they, like or don’t, like a particular block to purchase”. In his opinion, those factors for a lifestyle orientated property would be weighted towards potential dwelling sites, outlook, proximity to townships and service and access. As to access, he accepted that it would cross a purchaser’s mind but doubted whether it would be at the forefront of their thinking. 86 Mr Bruce agreed that properties like the Bryant’s premises were a lifestyle purchase. However, Mr Bruce continued:28 Having to get in and out of the property, you know, five, six days a week, is – would be a – would be a factor in someone’s determination on how much they might pay for something particularly when comparing it to someone that – another property that did not have such an ingress and egress problem. 87 I again observe that much depends on the commuting or travelling pattern of the hypothetical purchaser, and on their concern for safety on the one hand, or the premium they put on their time and cost of living on the other. 88 To assess the compensation for injurious affection, I would apply a discount of 2.5 five percent to the value of the remaining land. I acknowledge Mr Bruce’s criticism of applying that low percentage reduction, that it is inadequate because it amounts to no more than several potential bids. However, from another 28 Transcript of Proceedings, Bryant v The Commissioner of Highways (Supreme Court of South Australia, CIV-23-012046, Kourakis CJ, 08 April 2025) 29. -- 22 of 23 -- [2025] SASC 85 Kourakis CJ 21 perspective, towards the end of the bidding, when the restricted ingress and egress is more likely to become significant, if at all, it may well encompass many bids. That is all the more so when, for some purchasers, the median wire may be seen as an advantage. Mr Rowe valued the unimproved value of the remaining land at $1.111 million. Putting to one side any reduction for the changed ingress and egress, Mr Bruce valued the remaining land at $1.25 million but added $425,000 for the value of the improvements arriving at a value close to $1.7 million. I accept Mr Bruce’s valuation of the improvements and split the difference between Mr Bruce and Mr Rowe on the value of the land, adopting a total value of $1.6 million. 89 I would have awarded $40,000.00 for injurious affection. Conclusion 90 I dismiss the application. I will hear the parties as to costs. -- 23 of 23 --