D'Angola v Transport for NSW

[2023] NSWLEC 1598

Land and Environment Court

New South Wales

Medium Neutral Citation:

D'Angola v Transport for NSW [2023] NSWLEC 1598

Hearing dates:

Conciliation Conference on 14 September 2023

Date of orders:

11 October 2023

Decision date:

11 October 2023

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Compensation is determined in the sum of $1,591,767.50 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991(Just Terms Act) for the acquisition of Lot 7 in DP 1280432, being part of the property known as 1-19 Mandalong Close, Orchard Hills.

(3) The Respondent is to pay the Applicants the amount of compensation referred to in Order (2), 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.

(4) Within 28 days of the later of:

(a) the date the court issues its orders; and

(b) the date on which the Respondent receives an original duly executed deed of release and indemnity and direction as to payment form from the applicants;

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

(5) The Respondent is to pay the Applicants’ costs of proceedings on an ordinary basis as agreed or assessed.

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 42, 49, 50, 55, 66

Land and Environment Court Act 1979, ss 19, 24,25,34

Category:

Principal judgment

Parties:

Michael D'Angola (First Applicant)
Antonina D'Angola (Second Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
M Astill (Applicants)
E Dunlop (Respondent)

Solicitors:
Russoniello Lawyers (Applicants)
Corrs Chambers Westgarth (Respondent)

File Number(s):

2023/156418

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant has lodged an appeal objecting to the amount of compensation payable under the Valuer General’s Determination of Compensation dated 28 March 2023 in respect of the compulsory acquisition by the Respondent of land known as Lot 7 in Deposited Plan 1280432, exclusive of any existing easements, being part of the land in Certificate of Title, 215/1013539 (the Land):

1. The proceedings are brought pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act);

2. The proceedings fall within Class 3 of the Court’s jurisdiction pursuant s 19(e) of the Land and Environment Court Act 1979 (LEC Act); and

3. The statutory power or function to be exercised in determining the proceedings is ss 24(1)-(2),25(1) and s 34(3)(a)-(b) of the LEC Act, and s 55(a)-(f) of the Just Terms Act.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 14 September 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and awarding compensation in full and final settlement of the Applicant’s claim pursuant to s 55 of the Just Terms Act for the acquisition of the Land.

4. The parties agreed to compensation being determined in the sum of $1,591,767.50 pursuant to s 55 of the Just Terms Act.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the following jurisdictional prerequisites of relevance in these proceedings:

1. Prior to 3 February 2023 (Acquisition Date), the Applicants were the registered proprietors of Lot 7 in DP1280432 being part of the property 1-19 Mandalong Close, Orchard Hills (Acquired Land).

2. On 21 October 2022, a proposed acquisition notice was issued by the respondent notifying the Applicants of the intention to acquire the Land.

3. The Respondent compulsorily acquired the land by notice published in the Government Gazette on 3 February 2023 for the purpose of the upgrade of Mamre Road.

4. On 28 March 2023, the Valuer General issued a Determination of Compensation for the acquisition of the Acquired Land.

5. On 31 March 2023, the Respondent issued a compensation notice to the Applicants pursuant to s 42(1) Just Terms Act (Compensation Notice).

6. On 16 May 2023, the Applicants commenced these Class 3 proceedings to object to the offer of compensation made by the Respondent on 31 March 2023 in respect of the compulsory acquisition of the Acquired Land.

7. The Applicants lodged the present objection within 90 days after receiving the Compensation Notice from the Respondent, and the Court therefore has jurisdiction to determine the matter and the amount of compensation to be paid under Pt 3 Div 4 of the Just Terms Act (s 66(1)-(2)).

8. The parties participated in a section 34 conciliation conference on 14 September 2023 and were able to reach agreement on the appropriate compensation for the Acquired Land, which is reflected in the section 34 agreement filed on 19 September 2023.

6. 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. As set out above, I am satisfied as to how the jurisdictional prerequisites have been satisfied.

7. 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.

8. The Court notes:

1. Save the costs agreed in Order (5) of these orders, the sum of $1,291,468.50 plus statutory interest has already been paid to the Applicants leaving $300,299 remainder (the Remainder) to be paid; and

2. Statutory interest pursuant to ss 49 and 50 on the Land Acquisition (Just Terms Compensation) Act 1991 is payable on the Remainder.

9. The Court orders:

1. The appeal is upheld.

2. Compensation is determined in the sum of $1,591,767.50 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the acquisition of Lot 7 in DP 1280432, being part of the property known as 1-19 Mandalong Road Orchard Hills.

3. The Respondent is to pay the Applicants the amount of compensation referred to in Order (2), 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.

4. Within 28 days of the later of:

1. The date the court issues its orders; and

2. the date on which the Respondent receives an original duly executed deed of release and indemnity and direction as to payment form from the Applicants

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

5. The Respondent is to pay the Applicants’ costs of proceedings on an ordinary basis as agreed or assessed.

……………………….

M Davidson

Acting Commissioner of the Court

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Decision last updated: 11 October 2023