Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People v Transport for NSW
[2020] NSWLEC 1008
•07 January 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People v Transport for NSW [2020] NSWLEC 1008 Hearing dates: Conciliation conference on 29 October 2019; 10 December 2019; 17 December 2019 Date of orders: 07 January 2020 Decision date: 07 January 2020 Jurisdiction: Class 3 Before: Dixon SC Decision: The Court orders:
(1) The amount of compensation to which the Applicant is entitled under the Land Acquisition (Just Terms Compensation) Act 1991 (Act) for the acquisition of Lot 6 in Deposited Plan 1204340, being part of the land comprised in Certificate of Title 7008/92609 is determined to be $42,000 plus interest on this amount in accordance with ss 49 and 50 of the Act (“Compensation”).
(2) The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment issued by the Respondent to the Applicant within 28 days of the final orders in these proceedings.
(3) Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction as to payment, the Respondent is to pay the Compensation to the Applicant in accordance with the direction.
(4) The Respondent has agreed to pay the Applicant's costs of the proceedings in the amount of $35,473.35 to be paid on the same date the Compensation is paid by the Respondent to the Applicant in accordance with (3) above. There is to be no interest payable on costs.Catchwords: COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979Category: Principal judgment Parties: Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People (Applicant)
Transport for NSW (Respondent)Representation: Counsel:
Solicitors:
R White (Applicant)
L Waterson (Respondent)
NTSCORP Limited (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2019/220664 Publication restriction: No
Judgment
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COMMISSIONER: On 2 December 2013, the Federal Court of Australia recognised the native title rights of the Bandjalang People to lands and waters within their traditional country, including in relation to the land located at Lot 6 Deposited Plan 1204340 (Acquired Land).
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Immediately prior to 22 January 2016 (Acquisition Date), the Applicant held native title rights on behalf of the Bandjalang People (Native Title Interest) in respect the Acquired Land.
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On 20 January 2016, the Applicant lodged a claim for compensation with the Respondent for the acquisition of its Native Title Interest in accordance with s 39 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act).
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With effect from the Acquisition Date, the Respondent acquired the Native Title Interest by compulsory process in accordance with the Just terms Act.
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On 12 April 2019, the Respondent offered the Applicant $9,080 as compensation for the acquisition of the Applicant’s Native Title Interest.
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On 16 July 2019, the Applicant lodged an objection with the Land and Environment Court under s 66(1) of the Just Terms Act to the amount of compensation offered by the Respondent.
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 October, 10 and 17 December 2019. I presided over the conciliation conference.
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The parties have now reached an agreement as to the amount of compensation to which the Applicant is entitled under the Just Terms Act, the terms of which are contained in the proposed s34 Agreement.
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Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the decision is one that the Court could have made in the proper exercise of its functions.
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In this instance, the parties’ decision involves the Court exercising the function pursuant to s 66(2) of the Just Terms Act, which provides that the Court is to hear and dispose of the Applicant’s claim for compensation. Pursuant to s 68(1) of the Just Terms Act, payment of compensation is to be made in accordance with the agreement reached between the parties during the proceedings. There are jurisdictional prerequisites that must be satisfied before this function can be exercised and these matters have been identified and addressed in the jurisdictional note filed by the parties with the s 34 agreement.
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After a consideration of the relevant statutory framework and the agreed matters referred to in the parties’ jurisdictional note, I am now 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. Accordingly, I now dispose of the proceedings in accordance with the parties’ decision in the following terms.
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The Court orders:
The amount of compensation to which the Applicant is entitled under the Land Acquisition (Just Terms Compensation) Act 1991 (Act) for the acquisition of Lot 6 in Deposited Plan 1204340, being part of the land comprised in Certificate of Title 7008/92609 is determined to be $42,000 plus interest on this amount in accordance with ss 49 and 50 of the Act (“Compensation”).
The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment issued by the Respondent to the Applicant within 28 days of the final orders in these proceedings.
Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction as to payment, the Respondent is to pay the Compensation to the Applicant in accordance with the direction.
The Respondent has agreed to pay the Applicant's costs of the proceedings in the amount of $35,473.35 to be paid on the same date the Compensation is paid by the Respondent to the Applicant in accordance with (3) above. There is to be no interest payable on costs.
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S Dixon
Senior Commissioner of the Court
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Decision last updated: 09 January 2020
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