Judge urged to uphold land payout

A compensation payout of more than $300,000 to a family whose land was seized during the construction of the East-West Arterial highway should be upheld, a judge was told Wednesday. 

Michael Barnes QC, representing the Bodden family in its dispute with the National Roads Authority, acknowledged the written judgment of the tribunal which ordered the payout was “sparse and truncated.” 

But he said that did not amount to an “error in law” and the conclusions of the Roads Assessment Committee were sound. 

The dispute stems from vastly different valuations of a piece of land taken by government from brothers Harold and Abshire Bodden during the construction of the road in 2006.  

Government’s Lands and Survey department offered nothing for the land, arguing that proximity to the new road opened it up to development, increasing the value of the remaining land to such an extent that no compensation was due. 

But the Roads Assessment Committee decided that the Boddens were owed $335,000. They ruled that the 3.3 acre plot was not landlocked, as government had suggested, but already enjoyed access to nearby Hirst Road via an informal route across an adjoining piece of land, owned by Harold Bodden. 

The appeal, brought by the National Roads Authority, hinges on perceived “errors in law” made by the committee in coming to that decision. 

Central to the case is the question of whether the committee’s nine-page judgment adequately explained the reasons for its decisions, particularly on the point central to the case – whether or not the “informal route” amounted to a “prescriptive easement” – a term given to rights of way that acquire quasi-legal status through repeated use over time. 

Mr. Barnes, for the Boddens, argued that the judgment was sufficient. 

He said the evidence of Heather Bodden, which went largely uncontested at the hearing, was sufficient to give the tribunal justification to correctly decide that there was access to the property in question via a prescriptive easement. 

He said if the committee was required to give detailed reasons for every decision then their judgments would not be “sparse and truncated, they would be a book.” 

Justice Alexander Henderson, who is hearing the case, suggested the tribunal, funded by public money, had an obligation to provide a more detailed explanation of its reasoning – particularly on this central issue. 

“I could hear a five-day murder trial and at the end of it just say guilty, but the modern standard is to provide detailed reasons,” he said. 

Mr. Barnes agreed that it would have made sense for the committee to summarize Ms. Bodden’s evidence and point out that it had agreed with it. However, he said, the failure to do so did not amount to a legal error, particularly given that the evidence had not been challenged. 

“If there is anything wrong, it is simply that they didn’t say we have looked at the evidence of Heather Bodden and we agree with it,” he said. 

If the judge decides in favor of the NRA, it would likely trigger a rehearing of the evidence in front of the Roads Assessment Committee. 

The second committee assessment could still, potentially, reach the same conclusion as the first. The payout to the Bodden family has been withheld pending the appeal.