Spencer v Commonwealth of Australia - Assignment Example

Real Property Law Name: Institution: Real Property Law Spencer v Commonwealth of Australia (1907) 5 CLR 418 and its relevance in Valuation law and practice in NSW, One perpetual natural rule that was pronounced in the Spencer vs Commonwealth of Australia was that market expected value amount for a property, which should be traded on the assessment day. This process happens between a willing customer and a willing seller in an arm’s length contract. The exercise should happen where the parties are acting knowledgably, without compulsion, and discreetly. In the spencer vs commonwealth of Australia case the plaintiff argued that the common wealth did not remunerate him as required since he valued the land at a higher value as opposed to what he received. In agreement to the fact that value indicates an existence of a willing buyer and seller some modification of the rule was instigated in order to make it applicable to the case of the land that has a unique value. The court preceding over the case articulated that the land was fit for various purposes and in probability would be required for some of the value. The judge preceding over the case articulated that the valuation of the land is not about what the owner is willing to sell but by determination of the unique properties, it holds. Therefore, the case spencer vs commonwealth of Australia instigated the principle of market value. Moreover, the acquisition of land by the common wealth was based on anxiousness (New South Wales, 1922). The case brought the principle of hypothetical willing. The case saw the inception of valuing under market value, which was later replaced by value to the owner (VTO). Judge Griffith Chief Justice stated “the test of value of land is to be determined, not by inquiring what price a man desiring to sell could have obtained for it on a given day, i.e. whether there was, in fact, on that day a willing buyer, but by inquiring: “What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?” The principle can only be applied where there is a willing buyer and a willing seller. It cannot be applied on anxious vendor and purchaser. The law can be applied to market value but not on special value basis. Key practical and legal roles and responsibilities of a vendor, and where appointed, a solicitor/conveyancer and a real estate agent The NSW laws of land acquisition and purchase define the legal roles of the vendor and the solicitor / conveyancer and real estate agent accurately. They have different obligations to confer to when a legal transaction is taking place. The vendor/ customer are the party that receives or makes use of the product or services of an individual or organisation. In the real estate terms, they are the consumers who do not have a formal contract with an agent or agency. They form the third party where the agent has the legal right to negotiate and enter clients into contract. The agent is the mediator between the vendor and client and finds suitable vendor for the property owner. The real estate agent is a person authorised to act on behalf of the other principle. They are responsible in creating a legal agreement with a third party. The principle has to give the agent the consult to act and by doing so they efficiently transfer part of their rights for the agent to hold. The primary duty of the agent is to act loyally on the principles directives. This involves several responsibilities that entail not accepting new obligations that are inconsistent with duties owed to the property owner. Secondly, not to make unjust decisions that enriches themselves from the relationship. They can represent conflicting or potentially conflicting interest only based on full discloser. Therefore, their role in a transaction is known as ‘fiduciary’ bond. This means the principal has to trust the agent in the negotiations on a sale, lease, or auction on their behalf. Under the common law and statutory law, the agent is bound to the fiduciary relationship, which obligates responsibilities on the agent. The client is supposed to give full disclosure on the information the property holds in order for the agent to negotiate efficiently. Consequently, they are obligated to make sure the agent is adequately remunerated either on commission fee as agreed or on a reasonable fee if none was agreed. If there were expenses incurred, the agent should be reimbursed efficiently if reasonable. The solicitor is supposed to make sure the transactions are done legally and no party’s rights are infringed. They bridge the administration with the two parties. Operational effect of the Instruments, documents and methods of planning created or available under the Environmental Planning and Assessment Act 1979 (NSW) The instruments and documents of these act enable the development of land in NSW obtain a regular and ample use. The objects in the act encourage proper management development and conservation of the cities’ water, forests, and minerals, natural areas for promoting the welfare of the community economically and socially. The documents of the act are used to certify that the development of the land is certified and fit to for execution when the projects commence. Primarily the environmental planning and assessment act of 1979 is a guideline on how the land and all its resources are utilized in NSW. The instruments of this act provide the administration with the objectives, policies, and strategies that the environmental plans are going to achieve. Consequently, the instruments are only made in accordance to achieving intents of the objects in the act. They are subject to making, planning, and inspection where a project is ongoing. In accordance to the documents, the planning act articulates the use of documents as a mechanism for appropriate gazetting of the projects the administration approves. Without the documentation that a project has passed through the various committees and bodies that approve and check the viability of a plan the task can be repealed until the required procedures are taken. Therefore, the Environmental planning and assessment act is a collection of various standards that need to be met before any project in the NSW commences. These instruments and documents provide the NSW a structured tenet that defines the way the cities, forests, natural habitats, resources, and minerals are utilised in any location under NSW. Moreover, proper utility is emphasised by the act in order to make the city plans more elaborate and create room for further development in the near future. The instrument of the act protects the communities and their resources giving the people power to decide what they deem fit or not for their regions. Therefore, the planning and assessment act provides NSW and its communes a clear structure of development that provides the societies a protected structure of development. In the act, the law stipulated in the act influences every aspect of development and its nitty gritty. From the moment a project is approved, polices and assessment procedures commence until the project is approved by the administration fit for the residents and the environment at large. The effect of ss.79C, 94 and 97 of the Environmental Planning and Assessment Act 1979 (NSW) The effect of ss. 79C is enacted where the environmental planning instrument or a regulation has non-optional development standards and development, the consent authority, the subject of development application complies with the standards approved and not being complying development. In this clause the development is not entitled to take the standards to further deliberation in assessing the development application. However it does not have the right to refute the application on the grounds that the development is non-compliant. Furthermore, it cannot impose a condition of consent that has similar or considerably similar effects as those standards but rather more arduous than the standards. However, the application discretion of consent to the authority under this section and section 80 is limited accordingly. Consequently, the effect of section 94 defines the payment towards the provisions and improvement of amenities/services (Peel, 2005). It elaborates the conditions requiring contribution concerning public facilities and services. In this section the applicant is give the desired provisions for developing amenities in any proposed land or area. The section requires dedication of land free of cost and payment of a monetary contribution or both. However, the consent authority has to be satisfied that a development has complied with the certificates and the amenities are required or demand is high in the area pf development. Consequently, section 97 is dedicated to the appealing applicants due to dissatisfaction with the resolve of the consent authority (Zahar, Peel, & Godden, 2012). It stipulates that the applicant can appeal to the court within 12 months after the date they received the notice provided in accordance with regulations, of the resolve application. After the notification of the decision of the consent authority, an applicant is given the chance to appeal in order to put forward their complaints for the purpose of fairness. Every objector in the application will be noted by the consent authority and submitted to the court in 28 days after the date of the notice. Thereafter, the applicant is given the chance to air the views in a court hearing. Meaning of Sustainability in the environmental planning and assessment act of 1979 in NSW In the environmental planning and assessment act, sustainability is defined, as development that meets the required need presently and does not compromise utilities for the future generations.it is described economically, environmentally and socially. However, other sections dwell on the institutions and governance. Sustainability is a broad aspect that involves the endangered species and habitats, social and economic sustainability, environmental aspect that includes the communities, social groupings in an area of development and the development itself. In the act, the sustainability includes management of areas that have threatened animals as articulated in section 5C and part of 7A of the fisheries act of 1994. A sustainable project will have to comply with the acts stipulation of sustainability in different environments. According to the development standards, consent has to adhere to the regulations standards the instrument in the act has highlighted in order to make sure the sustainable environments are protected (Bates, 2013). The purpose of sustainability in the act is to make sure the environment is maintained and given its rightful respect with everything that resides within and without the given area of development. Consequently, other compliances need consent from the authorities if there is a mineral that is harmful to the environment and the communities that are close to the project. Sustainability as stipulated in the act also confers to the way land is used for a project. For sustainability recovery, plans have to be included in the project if there would be loss of initial value when a project commences. Environmental friendly procedures are required when conducting a project in order to meet the sustainability standards in the act. The purpose of user-friendly modes of development is to make sure the environment and all its surroundings connect in harmony for many generations to come. Moreover, sustainability in the act revolves around conservation of the entire ecosystem, which is broadly described in terms of communities, environment, species, and the air surrounding any project, and applicant has been approved to conduct. If a project does not meet the economic, social, environmental, and ecological requirements the project cannot be approved since it does not meet the compliance needed to perform the plan. Assessments made in the act are provided in order to protect ecological system from human development (Zahar, Peel, & Godden, 2012). Bibliography Bates, G. M. (2013). Environmental law in Australia. Chatswood, N.S.W., LexisNexis Butterworths.Top of Form Evans, M. (2000). Principles of environmental and heritage law. St. Leonards, N.S.W., Prospect Media. Farrier, D., & Stein, P. L. (2011). The environmental law handbook: planning and land use in NSW. Rozelle, N.S.W., Thomson Reuters (Professional) Australia Limited. New South Wales. (1922). Land and Valuation Court reports of New South Wales. Sydney, Govt. Printer. http://www.llmcdigital.org/default.aspx?redir=08638. Peel, J. (2005). The precautionary principle in practice: environmental decision-making and scientific uncertainty. Annandale, N.S.W., Federation Press. Radan, P., & Stewart, C. (2015). Principles of Australian equity and trusts. Spence, M., Annez, P. C., & Buckley, R. M. (2009). Urbanization and growth. Washington, DC, Commission on Growth and Development. Young, J., Browning, R. J., & Cohen, A. M. (1913). The N.S.W. local government reports: comprising selected decisions on local government law and practice of the various courts of New South Wales and the High Court of Australia. Sydney, Law Book Co. of Australia. Zahar, A., Peel, J., & Godden, L. (2012). Australian climate law in global context. Cambridge, England, Port Melbourne, Vic. Pg 336 Bottom of Form Read More