Campbelltown City Council v Rail Corporation of New South Wales

[2010] NSWLEC 152

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Campbelltown City Council v Rail Corporation of New South Wales [2010] NSWLEC 152

PARTIES:
APPLICANT:
Campbelltown City Council

RESPONDENT:
Rail Corporation of New South Wales

FILE NUMBER(S):
30444 of 2009

CATCHWORDS:
PRACTICE AND PROCEDURE :- vacation of hearing dates in proceedings for compulsory acquisition of land due to proposed partial rescission of acquisition and settlement negotiations

LEGISLATION CITED:
Land Acquisition (Just Terms Compensation) Act 1991, s 31

CORAM:
Biscoe J

DATES OF HEARING:
10 August 2010

EX TEMPORE DATE:
10 August 2010

LEGAL REPRESENTATIVES

APPLICANT:
Mr David Baird
SOLICITORS
Marsdens Law Group

RESPONDENT:
Ms Sandra Duggan, barrister
SOLICITORS
Henry Davis York

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

10 August 2010

30444 of 2009

CAMPBELLTOWN CITY COUNCIL v RAIL CORPORATION OF NEW SOUTH WALES

EX TEMPORE JUDGMENT

1. HIS HONOUR:  In these proceedings the applicant claims compensation for the respondent’s compulsory acquisition of land under the Land Acquisition (Just Terms Compensation) Act 1991. I am hearing a motion by the respondent, to which the applicant consents, for an order vacating the hearing dates on 24-31 August 2010 inclusive.

2. The reason advanced is that the respondent proposes to partially rescind its compulsory acquisition notice relating to the applicant’s land and to compulsorily acquire part only of the land the subject of the rescission.  This proposal will remove from contention a large disturbance loss claim in relation to access.  There is no controversy between the parties as to the partial rescission but the parties are in negotiation to see whether agreement can be reached concerning what part of the land should be re-acquired. 

1. The respondent initially proposed that in addition to vacating the hearing dates I should stand over the proceedings to 15 December 2010 – a period of over five months - to facilitate the rescission and re-acquisition and to give the parties the opportunity to reach agreement concerning the re-acquisition. The respondent points out that under s 31 of the Act the prescribed machinery includes a certificate by the Minister that it is necessary to rescind an acquisition notice for good cause and publication in the Gazette of the rescission by the Governor. It is said that these things take time and that the respondent depends upon action by other organs of government. While that is true I cannot see why, and I am not prepared to accept on the current state of the evidence that, other organs of government would take anything like that long to do what they have to do.

1. The parties are negotiating and it seems that, due to the proposed removal of the basis for the controversial disturbance claim, there is a real prospect that they will be able to settle the whole proceedings reasonably expeditiously, leaving only the s 31 machinery to be attended to.

1. Following discussion between bench and bar, the parties agree that if the hearing dates were to be vacated then the proceedings should be adjourned for case management to 24 August 2010 before me when they are to inform the Court of the matters which I have proposed in the consent orders set out below. As part of the price for vacation of the hearing dates, I expect the parties in the meantime to continue their negotiations and to make every reasonable endeavour to settle the proceedings. I also expect the respondent to do what it can to put in place as tight a timetable as is reasonable for the s 31 machinery to be implemented.

1. On that basis, I propose to vacate the hearing dates for two main reasons.  First, if the proceedings as presently constituted were to be litigated later this month it would be on the basis of a false issue in that it is anticipated that there will be a partial rescission of the acquisition and that the controversial disturbance loss claim will thereby disappear.  Secondly, if the parties are unable to settle the whole matter arising out of the proposed rescission and re-acquisition, then it would be more efficient and logical, and would minimise costs, if the entire controversy in relation to compensation under the residue of the existing acquisition notice and the anticipated future acquisition notice were to be heard at the same time.  If any hearing is necessary, the Court will need persuading that it cannot take place this year. 

2. By consent the orders of the Court are as follows:

   1.The hearing dates on 24-31 August 2010 are vacated.

   2.The proceedings are adjourned for case management to 24 August 2010 before Justice Biscoe.  On that date the parties are to inform the Court:

   (a)whether they have settled the proceedings;

   (b)if not, what steps they have taken to settle the proceedings;

   (c)the timetable proposed for final disposition of the proceedings.

   3.The respondent is to pay the applicant’s reasonable costs on the ordinary basis actually incurred and thrown away by the vacation of hearing dates on production of invoices as agreed or assessed.