Brown v Transport for New South Wales

[2023] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Transport for New South Wales [2023] NSWLEC 1309

Hearing dates:

Conciliation Conference on 10 March 2023

Date of orders:

20 June 2023

Decision date:

20 June 2023

Jurisdiction:

Class 3

Before:

Kempthorne AC

Decision:

The Court orders:

(1) Compensation is determined in the sum of $595,000 pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act), for the acquisition of Lot 10 in Deposited Plan 1278784, being part of 81 Army Camp Road, Glenridding NSW 2330.

(2) The Respondent is to pay the Applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with sections 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991.

(3) Within 28 days of the later of:

(a) the date the Court issues its orders; or

(b) the date on which the Respondent receives a duly executed deed of release and indemnity, direction as to payment form and restriction on the use of the land instrument pursuant to section 88E(3) of the Conveyancing Act 1919 from the Applicants,

the Respondent is to pay the Applicants the amount of compensation referred to in Order 2.

Catchwords:

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

Legislation Cited:

Conveyancing Act 1919, s 88E

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

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

John Henry Brown (First Applicant)
Margaret Elaine Brown (Second Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
J McKelvey (Applicants)
A Hemmings (Respondent)

Solicitors:
Newhouse and Arnold Solicitors (Applicants)
Hunt and Hunt Lawyers (Respondent)

File Number(s):

2022 / 329964

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by John Henry Brown and Margaret Elaine Brown (the Applicants) to an offer of compensation arising from the compulsory acquisition by Transport for New South Wales (the Respondent) of Lot 10 in Deposited Plan 1278784 being part of 81 Army Camp Road, Glenridding, 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

   $390,000.00

s 55(d) Disturbance

   $31,893.61

Total

   $421,893.61

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

s 55(a) Market Value

   $137,200.00

s 55(c) Severance

   $294,850.00

s 55(d) Disturbance

   $85,543.90

s 55(f) Loss in Value

   $530,050.00

Total

   $1,047,643.90

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 10 March 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 $595,000 pursuant to s 55 of the Just Terms Act, for the acquisition of Lot 10 in Deposited Plan 1278784, being part of 81 Army Camp Road, Glenridding NSW 2330.

2. The Respondent is to pay the Applicants the amount of compensation of $595,000 less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Just Terms Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; or

2. the date on which the Respondent receives a duly executed deed of release and indemnity, direction as to payment form and restriction on the use of the land instrument pursuant to s 88E(3) of the Conveyancing Act 1919 from the Applicants,

the Respondent is to pay the Applicants the amount of compensation referred to in (b) above.

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 Applicants’ 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. The Respondent has agreed to pay the Applicants’ reasonable costs of the proceedings in the sum of $69,800 excluding GST. There is to be no interest payable on costs.

2. Save for the costs agreed in (1) above, the sum of $379,704.25 plus statutory interest has already been paid to the Applicants leaving $215,295.75 remainder (the Remainder) to be paid; and

3. Statutory interest pursuant sections 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 is payable on the Remainder.

Orders

12. The Court orders:

1. Compensation is determined in the sum of $595,000 pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act), for the acquisition of Lot 10 in Deposited Plan 1278784, being part of 81 Army Camp Road, Glenridding NSW 2330.

2. The Respondent is to pay the Applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with sections 49 and 50 of the Just Terms Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; or

2. the date on which the Respondent receives a duly executed deed of release and indemnity, direction as to payment form and restriction on the use of the land instrument pursuant to section 88E(3) of the Conveyancing Act 1919 from the Applicants,

the Respondent is to pay the Applicants the amount of compensation referred to in Order 2.

P Kempthorne

Acting Commissioner of the Court

**********

Decision last updated: 20 June 2023