"[8] Mr Martin Van Oppen a Valuation expert following an inspection in August 1997 described Lookout One thus: '… the site comprised an area of rough undulating grazing land with steeper scrub-covered slopes. Cat and Brimms ghauts form natural boundaries to the south-east and northern sides of the site. The soil appeared thin and was part-covered with scrub trees bare rock and strewn with boulders. There were signs of the presence of goats but (apart from some cattle referred to below) no other agricultural or forestry activity appeared to have been carried out on the site for many years. A small herd of cattle which I was given to understand had recently been evacuated from the volcanic danger zone in the south were grazing the site and at the time of inspection a post and barbed wire fence was being erected to contain them. There were no services within the site. Water and electricity was available at the road running alongside the extreme southern boundary and a connection had been made to the newly acquired school site. Apart from a rough tract to the school site, there were no internal roads or tracks suitable for vehicular use.' [9] And his description of Lookout Two after an inspection in November 1998 reads: 'Lookout Two is located to the north-east of and contiguous to the Lookout One site. This parcel of land comprises an area of 102.47 acres or thereabouts. When inspected in November 1998 it was noted that this site comprised a somewhat similar terrain to that of the Lookout One site excepting that the land falls away gently to the ocean with a cliff forming its natural coastal boundary. Cat and Brimms ghauts form natural boundaries to the south-east and northern side of the site. This site contains a larger percentage of steep land than Lookout One. Access was via a recently constructed road put in by the acquiring body to service the Lookout One development. But for the acquiring body's adjacent development, this site must be considered somewhat remote from the main centres of population.'"
"19. Subject to the provisions of this Act, the following rules shall apply to the assessment and award of compensation by a Board for the compulsory acquisition of land – (a) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might have been expected to have realized at a date twelve months prior to the date of the second publication in the Gazette of the declaration under section 3: Provided that this rule shall not affect the assessment of compensation for any damage sustained by the person interested by reason of severance, or by reason of the acquisition injuriously affecting his other property or his earnings, or for disturbance, or any other matter not directly based on the value of the land; (b) the special suitability or adaptability of the land for any purpose shall not be taken into account if that purpose is a purpose to which the land could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government department; (c) where the value of the land is increased by reason of the use thereof or of any premises thereon in a manner which could be restrained by any court, or is contrary to law, or is detrimental to the health of the inmates of the premises or to public health, the amount of that increase shall not be taken into account; (d) where land is, and but for the compulsory acquisition would continue to be, devoted to a purpose of such a nature that there is no general demand or market for land for that purpose, the compensation may, if the Board is satisfied that reinstatement in some other place is bona fide intended, be assessed on the basis of the reasonable cost of equivalent reinstatement; (e) no allowance shall be made on account of – (i) the acquisition being compulsory or the degree of urgency or necessity which has led to the acquisition; (ii) any disinclination of the person interested to part with the land acquired; (iii) any damage sustained by the person interested which, if caused by a private person, would not render such person liable to an action; (iv) any damage, not being in the nature of deprivation of or interference with an easement, servitude or legal right, which, after the time of awarding compensation, is likely to be caused by or in consequence of the use to which the land acquired will be put: Provided that nothing herein shall prejudice any claim under this Act for damage subsequently sustained in consequence of the use to which the land acquired is put; (v) any increase to the value of the land acquired likely to accrue from the use to which the land acquired will be put; (vi) any outlay or improvement of such land which has been made, commenced or effected within twelve months before the publication of the declaration under section 3, with the intention of enhancing the compensation to be awarded therefor in the event of such land being acquired for public purposes."
"The method of valuation accepted by the Board was the one used by Mr Van Oppen, a witness for the Respondent. In their Closing Arguments, Counsel for the Claimant intimated that they had no quarrel with Mr Van Oppen's method. This method requires one to ascertain the net value of the lands by first engaging in a hypothetical sub-division of the land and then to calculate the gross sum capable of realisation from the sale of the sections therein. From the resulting sum is deducted such expenses as the infrastructure costs, professional fees, finance charges and other such allowances as well as the expenses related to the acquisition. See Carlton Heights Ltd v Min. of Works[1963] NZLR 366 and Marshall v Minister of Works[1950] NZLR 339 ."
"Having seen and heard the witnesses, the Board preferred the evidence of the Respondent's witnesses. In particular, the testimony of Mr Burke commended itself to us. We considered it to be objective and fair."
"The witness who testified for the Respondent on the values that ought to be placed on the land was Mr Martin van Oppen. This witness is a Fellow of the Royal Institution of Chartered Surveyors. His evidence was given in a clear and succinct manner and, as stated before, his valuation was largely premised upon the residual method of valuation."
"The Board accepted Mr Van Oppen's methodology. To a great extent, his figures were also supported by a fair examination of comparable land transactions that have taken place in Montserrat for residential and commercial lots. However where there was a difference between Mr Van Oppen and Mr Burke, in the figures presented for land values, a majority on the Board felt it safer to rely on Mr Burke's figures. We naturally expect that Mr Burke would have a more intimate knowledge of what obtains on the ground in practice. Save that Mr Campbell has reservations about the value of commercial land at Lookout 1, the Board has therefore used Mr Burke's figures in computing the value of the lands zoned by him in his hypothetical sub-division for residential and commercial activity."
"As regards Ground 1 it would undoubtedly be true to say that there appears to be no basis on which the value of$10.00 per square foot in respect of commercial land was arrived at by the Board. I note that Mr Fred Campbell in his dissenting award placed a value of$7.50 per square foot on the same quality of land. It is also noted there is appreciably more available commercial land in Lookout One than in Lookout Two. As a statutory tribunal it is felt that the Board is obliged to give adequate and cogent reasons for its decisions otherwise they may be viewed as being arbitrary and unfair and not in keeping with the provisions of section 19 of the Ordinance."
"(ii) That the Court of Appeal erred in its finding that the Board of Assessment did make a valuation based on the residual method of valuation after taking into account comparison of land transactions in Montserrat during the relevant period. (iii) That the Court of Appeal erred in concluding that the Board of Assessment correctly applied the residual method of valuation notwithstanding the assessed value of the land was grossly below the rates at which land was currently sold on the open market. (iv) That the Court of Appeal erred in upholding the Board of Assessment computation of the infrastructure costs as regards any proposed development of the acquired land by the Respondent. (v) That the Court of Appeal erred in concluding that there was no evidential basis upon which the Board of Assessment made a finding that the value of the commercial land was$10 per square foot and accordingly remitted the matter to the Board for review. (vi) That the Court of Appeal erred in wrongly deciding that the Board of Assessment award being woefully short of the amounts claimed by the Appellant, had the Appellant been more reasonable in its approach the litigation which ensued may have been unnecessary, and consequently disentitling the Appellant to the costs awarded or any costs."
"The proposed development is intended to produce a housing lot subdivision plan consistent with what the private investor would put forward in order to obtain maximum profit."
"The authorized officer shall pay to the claimant the reasonable costs incurred by him in or about the preparation and submission of his claim, unless the Chairman considers that the claimant has failed to put forward a proper claim within a reasonable time after the service of the notice under section 7 or that the claim put forward is grossly excessive or that he has been a party to some deceit or fraud in respect of his claim."
"The Claimant has succeeded in obtaining an Award that is higher than the offer that was made by the Respondent. The Award however falls woefully short of the amounts being claimed. It may well be that if the Claimant had been more reasonable in its approach to this matter, the litigation that ensued may never have been necessary. Awarding the Claimant his full costs will only serve to encourage extravagant claims in cases of this sort. In all the circumstances by a majority decision the Board will award the Claimant 65% of its costs. Interest will run on the Award from the respective dates of acquisition at the rate of 5% per annum."
"With regard to Ground 2 of the Respondent's ground of appeal I find it difficult to accept that the Board awarded the Claimant [Appellant] 65% of its costs having held that its own award fell woefully short of the amounts claimed and that had the Claimant been more reasonable in its approach the litigation which ensued may have been unnecessary. For my part having regard to all the circumstances I would order that each party should bear its own costs."
"The expenses of determining the amount of disputed compensation may be seen to be part of the reasonable and necessary expense which is attributable to the taking of the lands compulsorily by the acquiring authority … The principle which applies to litigation … is that the cost of litigation should fall on him who caused it. The cost of determining the amount of the disputed compensation would seem, according to this principle, to fall on the acquiring authority without whose resort to the use of compulsory powers there would have been no need for the owner or occupier to be compensated."
"… the proper approach of the Tribunal for the costs of a successful claimant (i.e. a claimant who is awarded more than the amount of an unconditional offer by the respondent) should be that he is entitled to his costs incurred in the proceedings in the absence of some 'special reason' to the contrary. Whether such special reason exists in any given case is a matter for the judgment of the Lands Tribunal. Plainly it may exist where wasted or unnecessary costs have been incurred for procedural reasons as a result of the conduct of the claimant (e.g. abandoned issues, unnecessary adjournments, or failure to comply with directions of the Tribunal). However, so far as the nature and substance of the case advanced by the claimant is concerned, special reasons should only be regarded as established where the Tribunal considers that an item of costs incurred or an issue raised was such that it could not on any sensible basis be regarded as part of the reasonable and necessary expenses of determining the amount of the disputed compensation. This would apply not only to a claim advanced without any statutory basis but to other examples of manifestly unreasonable conduct which may give rise to unnecessary expense in the course of the proceedings. It means, in my view, that, following the hearing of a compensation reference in the Lands Tribunal in which the claimant has been successful, a special reason for departing from the usual order for costs should only be found to exist in circumstances where the Tribunal can readily identify a situation in which the claimant's conduct of, or in relation to, the proceedings has led to an obvious and substantial escalation in the costs over and above those costs which it was reasonable for the claimant to incur in vindication of his right to compensation."
"36. … exaggeration alone is not enough in the event of a large disparity between the sum claimed and the sum awarded. The matters to which the Tribunal should have regard are (a) the reasons for that disparity, and (b) their effect upon the conduct of the claim. As to (a), if the reasons are defensible, in the sense that there was a legitimate, albeit unsuccessful, argument put forward in support of the figure concerned, there can be no good reason to regard the claim as exaggerated in the pejorative sense necessary to justify a sanction in costs. As to (b), if, in any event, the effect on the proceedings in terms of the time spent and the costs incurred in disposing of the issue or argument concerned is relatively insignificant, then again an adverse order is unlikely to be appropriate. "37. Turning to the question of expert evidence, if the amount of the 'exaggerated' claim is based on the valuation, opinion and evidence of the claimant's expert witness, it will rarely be appropriate in my view to make an adverse costs order against the successful claimant. Valuation is an inexact science. In any case where, by reason of the nature or features of the subject site and/or the state of the market in respect of sites for similar development, there is no close or obvious comparable available, there is bound to be legitimate room for argument and difference of opinion as to the validity or usefulness of a proffered comparable, whether by reason of its location, nature or proposed use. If the Tribunal concludes that, on examination, or as a result of argument, the comparison between the comparable relied on and the subject site is inapt or unhelpful, that should not ordinarily invite a penalty in costs on the grounds that its assertion or resultant discussion has taken up the time of the Tribunal unnecessarily."
"… disallowance of a proportion of the claimant's costs will usually only be justified where the Tribunal is satisfied that (a) no competent valuer could reasonably have regarded the comparable as of real relevance or assistance in the valuation exercise; (b) as a result of its introduction and discussion, a significant amount of the Tribunal's time has been wasted and the proceedings unduly prolonged; (c) no equivalent or near equivalent proportion of the proceedings has been spent dealing with issues unreasonably and unsuccessfully raised by the respondent; (d) the amount or proportion of the costs disallowed is proportionate to the time wasted."
"It follows that the fact that the claimant has not been awarded as much as he was seeking by way of compensation – or that the award is nearer (even much nearer) to the amount that the acquiring authority had offered than to the amount sought – cannot, of itself, be a reason for depriving the claimant of his costs of the reference. But that does not lead to the conclusion that the claimant's conduct in exaggerating his claim can be of no relevance. The Tribunal may be satisfied, in the particular case before it, that the fact that the claimant has exaggerated his claim has led to costs which were not reasonable for the claimant to incur in pursuit of the compensation to which he was entitled; or that it has been the pursuit of issues which it was not reasonable for the claimant to pursue that has led to the exaggeration of the claim. Where the Tribunal makes an award of compensation which is well below the amount claimed, it is appropriate for it consider, in the context of an award of costs, both whether the fact that the claim was exaggerated has led the claimant to incur costs which (given a more realistic evaluation of his claim) he would not have incurred and whether the explanation for the difference between the award and the amount claimed is that issues were pursued on which the claimant had no real chance of success."