Drury v The Hills Shire Council

[2018] NSWLEC 1556

Land and Environment Court

New South Wales

Medium Neutral Citation:	Drury v The Hills Shire Council [2018] NSWLEC 1556
Hearing dates:	Conciliation conference on 19 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	See [4] below
Catchwords:	COMPULSORY ACQUISITION OF LAND: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mark Murrell Drury (Applicant) This Hills Shire Council (Respondent)
Representation:	Counsel: S Nash (Respondent) Solicitors: H Kalarostaghi, Hunt & Hunt (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/111201
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Compensation is determined in the sum of $282,198.75 pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of Lot 11 in Deposited Plan 1227068, being part of the land in Certificate of Title 402/1205305, known as 27 – 35 Samantha Riley Drive, Kellyville.

2. The Applicants are to duly complete and deliver to the Respondent a deed of release and indemnity and direction as to payment in the form enclosed with the statutory offer of compensation made by the Respondent on 15 January 2018 within 28 days of the final orders in these proceedings

3. Payment of the amount in Order (1) (less any advance payment already made pursuant to Part 3 of the Act) will be made within 28 days of the later of the date the Court issues sealed Consent Orders or the date the Respondent receives the duly executed deed of release and indemnity and direction as to payment form referred to in Order 3 above.

4. The Respondent has agreed to pay the Applicants' reasonable costs of these proceedings in the sum of $17,600.00 (incl. GST).

5. The Court notes that:

1. save for the costs payable in Order (4) of these orders the sum of $245,349.68 plus statutory interest has already been paid to the Applicants leaving $36,849.07 remainder (the Remainder) to be paid; and

2. statutory interest pursuant to ss. 49 and 50 of the Act is payable on the Remainder.

……………………….

John Maston

Acting Commissioner of the Court