Andrews v Transport for NSW

[2023] NSWLEC 1568

Land and Environment Court

New South Wales

Medium Neutral Citation:

Andrews v Transport for NSW [2023] NSWLEC 1568

Hearing dates:

Conciliation Conference on 7 and 29 June, 21 July, 16 and 30 August 2023

Date of orders:

27 September 2023

Decision date:

27 September 2023

Jurisdiction:

Class 3

Before:

Kempthorne AC

Decision:

The Court orders:

(1) Compensation is determined in the sum of $818,352.50 pursuant to s 55(a) and s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act), for the acquisition of Lot 13 in Deposited Plan 1278784.

(2) The Respondent will complete and finalise the list of Property Adjustment Works detailed in Annexure A.

(3) Within 28 days of the later of either the date the Court issues sealed Consent Judgment Orders or the date the Respondent receives a hard copy of a duly executed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in Order (1), less the advance payment already made, plus statutory interest calculated on the balance of compensation in accordance with ss 49 and 50 of the Just Terms Act.

(4) The Respondent is to pay the Applicant’s reasonable costs of the proceeding on an ordinary basis, as agreed or assessed.

Catchwords:

COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 66

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Gillian Andrews (Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
T To (Applicant)
A Hemmings (Respondent)

Solicitors:
CDG Law (Applicant)
Bartier Perry (Respondent)

File Number(s):

2022/374760

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by Gillian Andrews (the Applicant) to an offer of compensation arising from the compulsory acquisition by Transport for New South Wales (the Respondent) of Lot 13 in Deposited Plan 1278784 being part of the property known as 79 Waddells Lane, Singleton NSW 2330 pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

Jurisdiction Pre-requisites

2. The Valuer General of NSW (VG) on behalf of the Respondent assessed the amounts of compensation as follows:

s 55(a) Market Value

               $500,000.00

s 55(d) Disturbance

               $0.00

Total

  $500,000.00

3. The Applicant’s claim set out the amounts of compensation as below:

s 55(a) Market Value

               $213,960.00

s 55(c) Severance

                  $550,340.00

s 55(d) Disturbance

               $18,382.50

s 55(f) Increase / decrease in other land

         $282,620.00

Total

  $1,065,302.50

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 7 and 29 June, 21 July, 16 and 20 August 2023.

5. I presided over the conciliation conference.

Section 34 Agreement

6. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

7. The terms of the agreement reached by the parties are that:

1. Compensation is determined in the sum of $818,382.50 pursuant to s 55(a) and s 55(d) of the Just Terms Act, for the acquisition of Lot 13 in Deposited Plan 1278784.

2. The Respondent will complete and finalise the list of Property Adjustment Works detailed in Annexure A.

3. Within 28 days of the later of either the date the Court issues sealed Consent Judgment Orders or the date the Respondent receives a hard copy of a duly executed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in paragraph (a) above, less the advance payment already made, plus statutory interest calculated on the balance of compensation in accordance with ss 49 and 50 the Just Terms Act.

4. The Respondent is pay to the Applicants’ reasonable costs of proceedings on an ordinary basis, as agreed or assessed.

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the functions pursuant to ss 66(1) and 66(2) of the Just Terms Act to hear and dispose of the Applicant’s claim for compensation.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

11. The Court notes:

1. Save for the costs agreed in [7(d)] above, the sum of $450,000 plus statutory interest has already been paid to the Applicant leaving $368,352.50 remainder (the Remainder) to be paid; and

2. Statutory interest pursuant to ss 49 and 50 of the Just Terms Act is payable on the Remainder.

Orders

12. The Court orders:

1. Compensation is determined in the sum of $818,352.50 pursuant to s 55(a) and s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act), for the acquisition of Lot 13 in Deposited Plan 1278784.

2. The Respondent will complete and finalise the list of Property Adjustment Works detailed in Annexure A.

3. Within 28 days of the later of either the date the Court issues sealed Consent Judgment Orders or the date the Respondent receives a hard copy of a duly executed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in Order (1), less the advance payment already made, plus statutory interest calculated on the balance of compensation in accordance with ss 49 and 50 of the Just Terms Act.

4. The Respondent is to pay the Applicant's reasonable costs of the proceeding on an ordinary basis, as agreed or assessed.

P Kempthorne

Acting Commissioner of the Court

Annexure A

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