Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People v Transport for NSW

Case [2020] NSWLEC 1008

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 1979
Category:Principal judgment
Parties: Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People (Applicant)
Transport for NSW (Respondent)
Representation:

Counsel:
R White (Applicant)
L Waterson (Respondent)

  Solicitors:
NTSCORP Limited (Applicant)
Crown Solicitor’s Office (Respondent)
File Number(s): 2019/220664
Publication restriction: No

Judgment

  1. 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).

  2. 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.

  3. 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).

  4. With effect from the Acquisition Date, the Respondent acquired the Native Title Interest by compulsory process in accordance with the Just terms Act.

  5. On 12 April 2019, the Respondent offered the Applicant $9,080 as compensation for the acquisition of the Applicant’s Native Title Interest.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

……………………….

S Dixon

Senior Commissioner of the Court

**********

Details
AGLC
Bandjalang Aboriginal Corporation Prescribed Body Corporate RNTBC on behalf of the Bandjalang People v Transport for NSW [2020] NSWLEC 1008
Case
[2020] NSWLEC 1008
Decision Date

CaseChat Overview and Summary

The Bandjalang Aboriginal Corporation, as the Prescribed Body Corporate for the RNTBC on behalf of the Bandjalang People, filed a lawsuit against Transport for New South Wales seeking compensation for the acquisition of a piece of land. The land in question was Lot 6 in Deposited Plan 1204340, part of Certificate of Title 7008/92609. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was to determine the appropriate amount of compensation payable to the applicant under the Land Acquisition (Just Terms Compensation) Act 1991 for the acquired land.

The court was tasked with assessing the value of the land in question, taking into account various factors such as the land's market value, its potential for development, and any additional benefits it might have for the community. The Bandjalang Aboriginal Corporation argued that the land held significant cultural, historical, and spiritual value for their people, which should be factored into the compensation amount. The Transport for New South Wales, on the other hand, contended that the land's market value was the only relevant consideration for determining the compensation.

The court ultimately determined that the appropriate compensation for the acquired land was $42,000, plus interest as per the relevant sections of the Act. In arriving at this decision, the court considered the cultural, historical, and spiritual significance of the land for the Bandjalang People, as well as its market value and potential for development. The court also took into account the fact that the land was part of a larger area of land held by the Bandjalang Aboriginal Corporation, which had the potential for future development and use by the community. The court ordered that the applicant complete and deliver the necessary deed of release and indemnity within 28 days of the final orders, and that the respondent pay the compensation amount within 28 days of receiving the completed deed. The respondent also agreed to pay the applicant's costs of the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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