Land seizure case goes to court

A dispute over compensation for land seized by government for the construction of a new highway came before a Grand Court judge on Tuesday – more than seven years after the road was built. 

The National Roads Authority is challenging a decision to award more than $300,000 in compensation to a family who were forced to give up their land for the construction of the first phase of the East-West Arterial highway in 2006. 

The case could have implications for up to a dozen property owners who have still not had compensation claims settled for land taken under compulsory purchase orders for the construction of the highway. 

The payout to the Bodden family for their parcel of land has been withheld pending the appeal, which began on Tuesday in front of Justice Alexander Henderson. 

Government initially offered nothing for the land, owned by brothers Harold and Abshire Bodden, arguing that proximity to the new road increased the value of their remaining land to such an extent that no compensation was due.  

The Boddens appealed to the Roads Assessment Committee, which ruled that they were entitled to $335,000 compensation. 

Harold Bodden has died in the years since the road was built, while his brother Abshire is ill. But the case is being fought by their daughters who have hired a QC to fight their corner in the legal battle with the National Roads Authority. 

The dramatic difference in valuation hinges on differing opinions as to whether the piece of land in question already had the benefit of access to a road. 

Lands and Survey’s expert valuation officer had deemed that the property was “landlocked” and that while construction of the highway did involve the seizure of a 3.3-acre parcel, the valuation of the land on either side would increase because of access to the new road, opening up development potential. 

But the Roads Assessment Committee found that the land already had access to nearby Hirst Road through an informal route across an adjoining property, also owned by Harold Bodden.  

The committee decided that the access amounted to a “prescriptive easement” and that the value of the land should therefore be assessed as though it enjoyed access to a road and could be sold to a developer for housing. 

Opening the NRA’s case on Tuesday, QC Guy Roots suggested that the route did not meet the necessary criteria to be considered a “prescriptive easement” – a term given to unregistered rights of way that acquire quasi-legal status through repeated use over time. 

He said the Roads Assessment Committee had “got itself in a muddle” and was not even clear about which of three suggested routes to the property from Hirst Road it deemed to fit the criteria. 

He suggested that the route was, at best, appropriate for agricultural use and that the valuation should at least have considered that upgrades would have been required if the land was to be developed for residential use. 

“No reference is made to the absence of a physical road suitable for low density residential development. Even if we accept there was a right of way, they do seem to have ignored the fact that there was no actual road and somebody would have had to pay for one to be constructed,” he said of the Road Assessment Committee’s judgment. 

For the appeal to be successful, the roads authority’s legal team has to establish that the committee made errors of law in its decision making process. The case was scheduled to last four days with the judge expected to make his final decision in writing several weeks later. 

The issue of road access and its impact on land valuations could be central to a number of compensation claims, both for unsettled disputes on the existing stretch of the East-West Arterial Highway and a new 10-mile extension of the highway. 

The government announced a partnership with golf resort developer Ironwood last month for the road extension. Kurt Tibbetts, the minister responsible for infrastructure, said he expected that in many cases the highway would increase the value of people’s land and compensation would not be due.