Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95 Hearing dates: 15 - 16 March 2017 Decision date: 11 May 2017 Before: McColl JA at [1]
Basten JA at [2]
Sackville AJA at [19]Decision: 1. Appeal dismissed.
2. The appellant (Bligh Consulting) pay the costs of the respondent (Ausgrid) of the appeal.Catchwords: COMPULSORY ACQUISITION – acquisition of crane swing, rock anchor and scaffolding easements – whether primary Judge erred in rejecting injurious affection claim under s 55(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) – whether primary Judge failed to apply “before” and “after” test in assessing compensation – whether primary Judge applied the wrong test in determining whether a tenant would vacate the servient tenement in consequence of the proposal to carry out a public purpose rock anchor easement – whether s 62 of the Just Terms Act applies to a rock anchor easement Legislation Cited: Access to Neighbouring Land Act 2000 (NSW)
New South Wales Government Gazette, No 66, 8 August 2014
Conveyancing Act 1919 (NSW), s 88K
Electricity Supply Act 1995 (NSW)
Energy Services Corporations Act 1995 (NSW), s 6A, Sch 1 Pt 1A
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3(1), 4, 37, 39, 55, 57, 62(1), 66(1), Pt 3 Div 4
Land and Environment Court Act 1979 (NSW), ss 19, 24, 57Cases Cited: Besmaw Pty Ltd v Sydney Water Corporation [2001] NSWLEC 15; 113 LGERA 246
Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75; 217 LGERA 258
Bristol-Myers Squibb Company v FH Faulding & Co Ltd (2000) 97 FCR 524; [2000] FCA 316
Commonwealth v State of New South Wales (1923) 33 CLR 1
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547; 50 LGRA 334
ISPT Pty Ltd v Valuer General [2009] NSWCA 31; 165 LGERA 25
Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413; [1999] HCA 25
Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8
Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314
Northern Territory of Australia v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24; [2008] HCA 29
Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW) [1999] NSWCA 110; 9 BPR 17,011
Risk v Northern Territory of Australia (2002) 210 CLR 392; [2002] HCA 23
Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7; 212 LGERA 307
Roads and Traffic Authority of New South Wales v Peak [2007] NSWCA 66
Roden v Bandora Holdings Pty Ltd [2016] NSWCA 220
Spencer v The Commonwealth (1907) 5 CLR 418
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Details
- AGLC
- Bligh Consulting Pty Ltd v Ausgrid [2017] NSWCA 95
- Case
- [2017] NSWCA 95
- Decision Date
CaseChat Overview and Summary
Bligh Consulting Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning compensation following the compulsory acquisition of easements by Ausgrid. The dispute centred on the assessment of compensation for crane swing, rock anchor, and scaffolding easements acquired by Ausgrid for a public purpose.
The Court of Appeal was required to determine whether the primary judge erred in rejecting Bligh Consulting's claim for injurious affection under section 55(f) of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). Further issues included whether the primary judge failed to apply the "before and after" test in assessing compensation, whether the wrong test was applied in determining whether a tenant would vacate the servient tenement due to the proposed rock anchor easement, and whether section 62 of the Act applied to a rock anchor easement.
The Court of Appeal found no error in the primary judge's decision. It reasoned that the primary judge had correctly applied the principles of injurious affection, which requires a loss in the value of the remaining land caused by the acquisition and the use of the acquired land. The Court affirmed that the "before and after" test was appropriately applied and that the primary judge's assessment of the likelihood of a tenant vacating was sound. Furthermore, the Court concluded that section 62 of the Act was not applicable to the rock anchor easement in question.
Consequently, the appeal was dismissed, and Bligh Consulting Pty Ltd was ordered to pay the costs of the appeal to Ausgrid.
The Court of Appeal was required to determine whether the primary judge erred in rejecting Bligh Consulting's claim for injurious affection under section 55(f) of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). Further issues included whether the primary judge failed to apply the "before and after" test in assessing compensation, whether the wrong test was applied in determining whether a tenant would vacate the servient tenement due to the proposed rock anchor easement, and whether section 62 of the Act applied to a rock anchor easement.
The Court of Appeal found no error in the primary judge's decision. It reasoned that the primary judge had correctly applied the principles of injurious affection, which requires a loss in the value of the remaining land caused by the acquisition and the use of the acquired land. The Court affirmed that the "before and after" test was appropriately applied and that the primary judge's assessment of the likelihood of a tenant vacating was sound. Furthermore, the Court concluded that section 62 of the Act was not applicable to the rock anchor easement in question.
Consequently, the appeal was dismissed, and Bligh Consulting Pty Ltd was ordered to pay the costs of the appeal to Ausgrid.
Orders
Orders of the court
1. Appeal dismissed.
2. The appellant (Bligh Consulting) pay the costs of the respondent (Ausgrid) of the appeal.
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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