Canterbury-Bankstown Council v Transport for New South Wales

[2020] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:

Canterbury-Bankstown Council v Transport for New South Wales [2020] NSWLEC 1424

Hearing dates:

Conciliation conference on 5 August 2020

Date of orders:

11 September 2020

Decision date:

11 September 2020

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders that:

(1) Compensation, having regard to the matters listed to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act), is determined in the sum of $467,403 as full settlement of the Applicant’s claim for compensation for the compulsory acquisition of all that piece or parcel of land situated in the Canterbury-Bankstown Council area, Parish of St George and County of Cumberland, shown as Lot 101 Deposited Plan 1251456, being part of the land in Certificate of Title 1/1126546 on 13 September 2019.

(2)   Within 28 days of the later of the date that the Respondent receives a duly executed Deed of Release and Indemnity and Direction as to Payment form and a copy of the KGR Property Works Plan (DS2016/000442 Final Issue Date 15.02.19) (1 sheet) (PWP) signed by the Applicant, the Respondent must pay to the Applicant the amount of compensation referred to in Order (1), less any advance payment made pursuant to sections 48 and 68(2) of the Act, plus statutory interest and investment earnings calculated in accordance with sections 45 and 50 of the Act.

The Court notes that the Respondent shall pay the Applicant’s reasonable costs of the proceedings as agreed or as assessed, and there is to be no interest payable on costs.

The Court further notes that the Applicant agrees that it will sign the PWP, thereby agreeing to the PWP, before the Respondent pays any compensation to the Applicant in accordance with Order (2). The Deed of Release and Indemnity will also address the PWP.

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979

Land Acquisition (Just Terms Compensation) Act 1991

Category:

Principal judgment

Parties:

Canterbury-Bankstown Council (Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
M Bonanno (Solicitor) (Applicant)
A Hemmings (Respondent)

Solicitors:
Canterbury-Bankstown Council (Applicant)
MinterEllison (Respondent)

File Number(s):

2020/104119

Publication restriction:

No

Judgment

1. COMMISSIONER: The proceedings comprise an objection to an offer of compensation in the amount of $348,000 (Compensation) arising from the compulsory acquisition on 13 September 2019 by the Respondent of the Applicant’s land being Lot 101 Deposited Plan 1251456 (the Land), being part of the land in Certificate of Title 1/1126546 and known as part of 1071 Canterbury Road, Wiley Park, New South Wales.

1. The Applicant filed an objection to the offer of Compensation on 6 April 2020 pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

2. The Applicant’s objection forms an appeal in Class 3 of the Court’s jurisdiction pursuant to s 19 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court arranged a s 34(1) conciliation conference between the parties which occurred on 5 August 2020.

4. Prior to the s34 conciliation conference being terminated the parties filed a s34 Agreement Between Parties on 1 September 2020.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 5 August 2020. I presided over the conciliation conference.

3. After the initial conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, and an Agreement Between Parties was filed on 1 September 2020. This decision involved upholding the appeal by the Applicant and granting the Applicant compensation as set out in the Orders. Also, in issue between the parties was the works to be carried out by the Respondent on the Applicant’s land. Those works have been agreed as set out in the Orders.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under subss 66(1) and (2) of the Just Terms Act to hear and dispose of the Applicant’s claim for compensation. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. In accordance with s 10(2) of the Just Terms Act the Respondent made a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice. The Respondent gave an invitation to the Applicant to begin negotiations for the acquisition of the Land on 7 June 2018 and correspondence continued between the parties up to the date the Proposed Acquisition Notice was issued.

2. On 3 June 2019 the Respondent issued a Proposed Acquisition Notice to the Applicant for the acquisition of the Land in accordance with s 11 of the Just Terms Act.

3. Immediately before the date of compulsory acquisition of the Land on 13 September 2020 the Applicant was the registered proprietor of the Land to be acquired by the Respondent.

4. On 13 September 2020 the Respondent compulsorily acquired the Land by publishing the acquisition in the NSW Government Gazette in accordance with s 19(1) of the Just Terms Act.

5. On 7 January 2020 the Valuer General carried out a statutory valuation in accordance with s 47 of the Just Terms Act and determined the Compensation for the Land at $348,000 including the sum of $337,000 for land value (s 55(a) of the Just Terms Act) and $11,000 for disturbance (s 55(d) of the Just Terms Act).

6. On 8 January 2020 the Respondent made an offer to the Applicant in accordance with the Valuer General’s determination dated 7 January 2020 in accordance s 42 of the Just Terms Act.

7. The Applicant filed a Class 3 Application on 6 April 2020 objecting to the Respondent’s offer of compensation as made on 8 January 2020, complying with the time provision to appeal pursuant to s 66(1) of the Just Terms Act.

The jurisdictional prerequisites have been satisfied as set out above.

5. 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.

6. 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.

7. The Court orders that:

1. Compensation, having regard to the matters listed to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act), is determined in the sum of $467,403 as full settlement of the Applicant’s claim for compensation for the compulsory acquisition of all that piece or parcel of land situated in the Canterbury-Bankstown Council area, Parish of St George and County of Cumberland, shown as Lot 101 Deposited Plan 1251456, being part of the land in Certificate of Title 1/1126546 on 13 September 2019.

2. Within 28 days of the later of the date that the Respondent receives a duly executed Deed of Release and Indemnity and Direction as to Payment form and a copy of the KGR Property Works Plan (DS2016/000442 Final Issue Date 15.02.19) (1 sheet) (PWP) signed by the Applicant, the Respondent must pay to the Applicant the amount of compensation referred to in Order (1), less any advance payment made pursuant to sections 48 and 68(2) of the Act, plus statutory interest and investment earnings calculated in accordance with sections 45 and 50 of the Act.

The Court notes that the Respondent shall pay the Applicant’s reasonable costs of the proceedings as agreed or as assessed, and there is to be no interest payable on costs.

The Court further notes that the Applicant agrees that it will sign the PWP, thereby agreeing to the PWP, before the Respondent pays any compensation to the Applicant in accordance with Order (2). The Deed of Release and Indemnity will also address the PWP.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 11 September 2020