Cemetery owner awarded $400k for seized land

A private cemetery owner who had land taken to make way for a new highway has been awarded around $400,000 in compensation and costs, following an eight-year legal battle over a fair price for the plot.

The land – owned by Garden of Reflections Ltd. – was claimed when the National Roads Authority made a series of compulsory purchases along the planned route of the East West Arterial Highway in 2006.

Around a dozen land owners who felt they were not offered a fair price have been waiting since then for an independent arbitration panel – the Roads Assessment Committee – to adjudicate their cases.

The committee issued its judgment earlier this month on a claim brought by the Crighton family over a 0.83-acre piece of land, which they had planned to develop as an expansion of a private cemetery.

The committee ruled government had failed to properly take into account the planning permission and zoning that existed for the development of the land in its valuation.

They put the price of the land at just over $250,000 – double what had been offered.

The committee also ruled that the Crightons were owed an additional $114,000 in compensation because of the loss of commercial value of cemetery plots that bordered the new highway.

Government’s valuation expert had argued that no compensation was owed for loss of value, referred to as “injurious affection.”

The total award is still some way short of what the cemetery owners had claimed – just shy of $1.7 million. That calculation was based largely on the likely purchase price of the 749 cemetery plots slated for the acquired plot.

In a 48-page decision, Magistrate Nova Hall, the chairperson of the Roads Assessment Committee, acknowledged that the characteristics of the property were “extremely unusual.”

She wrote that the state of the land and the likely rate of sale for private cemetery plots meant that the land could not be considered as if all 749 plots were acquired on the day of sale – as the expert for the Crighton’s had suggested.

But she said the fact that the land was zoned for institutional use and had planning permission to be developed as an expansion to a cemetery should not be dismissed entirely.

“It is concluded that the commercial benefits of the property as a private cemetery must be taken into consideration,” she wrote.

The magistrate also concluded that the development of a four-lane highway would impact the value of the remaining cemetery plots.

“The essential point here stems from the unique aspect of the retained land. It is a private cemetery with plots sold at prices which on the evidence, far exceed the prices of plots sold by the government in public cemeteries.

“The evidence has established that persons are drawn to this private cemetery for aesthetic reasons. The exclusivity and ambience offered are a part of the attraction. The loss of tranquility in the “Garden of Reflections” could lend some irony to the name but in any event; will doubtless affect decisions to purchase plots.”

In total the RAC awarded $253,085 for the land, $114,000 for injurious affection, $15,825 in surveyor’s fees and US $ 28,270 in attorney’s fees to the claimant.

Dale Crighton, owner of the Garden of Reflections cemetery, said Monday that the final award was “considerably higher” than the original offer but still substantially below what the actual sale price of the 750 cemetery plots would be.

He said he had no plans to appeal the ruling and accepted the committee’s decision at this stage. He said he was concerned about what he described as a Government “strategy” to drag out appeals for as long as possible in the hope that the legal costs would deter claimants from proceeding.

He added, “The fact is these land compensation claims are only paid based on what they feel the value was when the property was taken. There is no interest paid or additional benefits available to the claimants as these cases drag on.”

No-one from Government’s Lands and Survey Department was available to respond to questions or to indicate whether an appeal was likely in this case by press time on Monday.