Elmasri v Transport for NSW

[2021] NSWSC 929

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Elmasri v Transport for NSW [2021] NSWSC 929

Hearing dates:

13, 16 and 23 July 2021

Date of orders:

26 July 2021

Decision date:

29 July 2021

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   Direct the parties to confer within 7 days in relation to the appropriate order as to costs;

(2)   In the event that agreement is reached on the appropriate order, the parties to file the proposed order on or before 7 August 2021;

(3)   In the event that no agreement is reached on the appropriate order as to costs, each party to file and serve:

(a)   their proposed order as to costs and any submissions in support of the proposed order that are not to exceed 4 pages on or before 12 August 2021;

(b)   any submissions in reply that are not exceed 4 pages on or before 19 August 2021;

(4) Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the basis set out in s 8(1)(e) thereof, the Court orders that the following information contained within the evidence in these proceedings is not to be published or disclosed until 30 November 2022:

(a)   the rate per square metre referrable to any offer made or analysis concerning:

(A)   316 Clifton Avenue, Kemps Creek, New South Wales; and

(B)   373-381 Clifton Avenue, Kemps Creek, New South Wales;

(b)   the amounts of any offers, and any amounts agreed between Transport for NSW and any landowner, for the proposed acquisition or acquisition of the following properties pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW):

(A)   316 Clifton Avenue, Kemps Creek, New South Wales; and

(B)   373-381 Clifton Avenue, Kemps Creek, New South Wales;

(c)   the acquisition submission of Transport for NSW in respect of the property at 316 Clifton Avenue, Kemps Creek, New South Wales dated 13 July 2021; and

(d)   the acquisition submission of Transport for NSW in respect of the property at 373-381 Clifton Avenue, Kemps Creek, New South Wales dated 1 July 2021.

(5)   Order 4 is to operate throughout the Commonwealth.

Catchwords:

ACQUISITION OF PROPERTY – judicial review – compulsory acquisition – validity of proposed acquisition notice – requirement for relevant authority to make a “genuine attempt” to acquire land by agreement for at least six months prior to issue of notice– jurisdictional precondition to issue of acquisition notice – time period over which genuine attempt to be assessed – meaning of genuine attempt – good faith – scope of negotiations – whether negotiations concern compensation payable for compulsory acquisition or are to be conducted on some other basis – urgent hearing – not shown that defendant did not make genuine attempt – proceedings dismissed

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010

Land Acquisition (Just Terms Compensation) Act 1991

Cases Cited:

Cannon v Griffiths (No 2) [2015] NSWSC 1329

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Macquarie v SSWAHS [2010] NSWCA 268

Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196

Spencer v The Commonwealth of Australia (1907) 5 CLR 418

Strickland v Minister of Lands for Western Australia (1998) 85 FCR 303

Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; 46 NSWLR 55

United Group Rail Services United v Rail Corporation New South Wales (2009) 74 NSWLR 618

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5

Category:

Principal judgment

Parties:

Omar Elmasri (First Plaintiff)
Laila Elmasri (Second Plaintiff)
Transport for NSW (Defendant)

Representation:

Counsel:
S Prince SC; T Wong (Plaintiffs)
B Tronson; M Harker (Defendant)

Solicitors:
Stacks Collins Thompson (Plaintiffs)
Corrs Chambers Westgarth (Defendant)

File Number(s):

2021/169113

Judgment

1. These proceedings involve a challenge to the validity of a proposed acquisition notice issued under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (the “PAN” and the “Act” respectively). The plaintiffs contend that the relevant “authority of the State”, being Transport for NSW (“Transport”), has not made a “genuine attempt” to acquire the plaintiffs’ land by agreement for at least six months before giving the notice, as required by s 10A(2).

The Proceedings

2. The plaintiffs, Omar Elmasri and Laila Elmasri, are the owners of land located in Clifton Avenue, Kemps Creek. The land is undoubtedly valuable, although it is not the location of their home and is not used for residential purposes. Transport seeks to acquire at least part of the land for the purposes of constructing the proposed M12 motorway. The M12 motorway is intended to provide a direct connection between the proposed Western Sydney Airport and Sydney’s motorway network. It has been designated as critical infrastructure for State planning purposes. It is anticipated that the economic benefits from its construction will contribute to the recovery of the State’s economy from the effects of the pandemic.

3. The PAN was issued on 19 March 2021. These proceedings were commenced on 11 June 2021. On or about 23 June 2021, Transport applied for expedition. The urgency arose because it is proposed to commence construction of the M12 motorway in March 2022 for completion in time for the Western Sydney Airport’s proposed opening in 2026. To enable that to occur, Transport requires vacant possession of the land by January 2022 to enable any remediation work to be undertaken by March 2022. The Court was advised that the timetable for the various steps in the Act that enable Transport to acquire and then obtain vacant possession of the land under s 34(1) of the Act by the end of December 2021 is such that the proceedings had to be determined by 26 July 2021 so as to allow a notice of the compulsory acquisition to be published in the Government Gazette by 30 July 2021. [1]

   1. Tr 16/07/2021 p 30.30

4. Accordingly, the proceedings were fixed for an urgent hearing on 13 July 2021. The hearing commenced but was adjourned to 16 July 2021 before the cross‑examination of Transport’s only witness, Ms Tania Enwiya, commenced. This occurred after I ordered Transport to produce certain documents to the plaintiffs in response to a notice to produce. The hearing was further adjourned on 16 July 2021 because of difficulties experienced by the plaintiffs in accessing and considering the documents that were produced. A resumed hearing date of 23 July 2021 was selected as the most suitable to Transport’s counsel bearing in mind the prejudice that would result from having it change Counsel at the last minute. The hearing including the cross‑examination of Ms Enwiya and final submissions occupied the entirety of 23 July 2021. The conduct of an expedited hearing under pandemic conditions imposed considerable burdens on the Court, the parties and their legal representatives. Although there were significant disputes between the parties about access and production to documents, the legal representatives conducted the hearing in a professional manner under difficult conditions.

5. It was in these circumstances that the Court was required to determine the matter by 27 July 2021. To that end, at 4pm on 26 July 2021, I ordered that the proceedings be dismissed and costs be reserved. I indicated that I would provide reasons at a later time. This judgment constitutes those reasons.

6. Before addressing the various bases upon which the plaintiffs contend that there was not a genuine attempt to acquire their land by agreement, it is necessary to set out the relevant provisions of the Act and the history of the negotiations between the plaintiffs and Transport. As noted below, there was an issue between the parties concerning the ascertainment of the period of “at least 6 months” referred to in s 10A(2) of the Act. Further, Transport objected to the admission of any evidence about the negotiations between the parties after the issue of the PAN. Over that objection, I admitted all the evidence about the negotiations including those that occurred after the PAN was issued. Even if Transport’s construction of s 10A(2) was upheld, evidence about the negotiations outside the six-month period, and even after the issue of the PAN, is capable of bearing upon an assessment of Transport’s bona fides in the period prior to its issue.

7. At the outset it should be noted that these are judicial review proceedings that challenge the legal validity of the PAN on the basis noted above. It is not part of this Court’s function to adjudicate between the various amounts that were offered for the plaintiffs’ land, much less to determine the market value of the plaintiff’s land. Nothing in this judgment should be taken as a finding on that topic.

The Act

8. It was common ground that the power to acquire the plaintiffs’ land for the M12 derives from s 177 of the Roads Act 1993 with the exercise of that power governed by the Act which regulates compulsory acquisitions by “authorit[ies] of the State” which in this case is Transport.

9. The objects of the Act include the encouragement of the acquisition of land by agreement instead of “compulsory process” (s 3(1)(e)). Section 10A of the Act is found within Part 1 of the Act. It provides:

10A   Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process

(1)   This section applies to land that is affected by a proposal for acquisition by an authority of the State, other than a proposal to acquire—

(a)   Crown land, or

(b)   an easement, or right to use land, under the surface for the construction or maintenance of works, or

(c)   a stratum under the surface for the construction of a tunnel.

(2)   The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice.

(3)   The owner of the land and the authority of the State may agree to a shorter or longer period of negotiation for the acquisition of the land by agreement.

(4) The Minister responsible for the authority of the State may approve a shorter period of negotiation, but only if the Minister is satisfied that the urgency of the matter or other circumstances of the case make it impracticable to have any longer period of negotiation. Any such approval requires the concurrence of the Minister administering this Act (being concurrence given for the particular approval or given generally for an approval of that kind).

(5)   This section does not prevent a continuation of negotiation after the giving of a proposed acquisition notice.

(6)   The authority of the State is not required to comply with this section if—

(a)   the owner of the land notifies the authority that the owner is not prepared to negotiate with the authority for the acquisition of the land by agreement, or

(b)   the owner of the land cannot be located after the making of reasonable inquiries.

(7)   Nothing in this section gives rise to, or can be taken into account in, any civil cause of action. (emphasis added)

10. Part 2 of the Act deals with the procedures for the compulsory acquisition of land. Subsection 11(1) obliges the relevant authority of the State to give written notice of its intention to acquire land by compulsory process to the owners of the land. Subsection 13(1) provides that the notice must be given at least 90 days before the land is compulsory acquired (unless lesser notice is given pursuant to s 13(2)). Section 15 specifies the particulars that must be included in the written notice. Section 19(1) provides that the relevant authority of the State may, with the approval of the Governor, declare by notice published in the Gazette that the land described in the notice is acquired by compulsory process. Sub-section 20(1) operates to vest the land in the authority of the State free of interests and encumbrances. In Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196 (“Desane”) it was held that a failure to provide a notice that conformed with s 15 does not render a PAN invalid although it may justify an injunction prior to an acquisition taking place (at [215] to [216] per Bathurst CJ, Ward CJ in Eq and Payne JA).

11. Part 3 of the Act deals with owners’ entitlements to compensation for the compulsory acquisition of their land. Section 37 confers a right to compensation. Section 38 provides:

38   Compensation entitlement if land (not available for public sale) acquired by agreement

An authority of the State is to take into account, in connection with any proposed acquisition by agreement of land not available for public sale, the same matters as are required to be taken into account under this Part in determining the compensation payable for an acquisition by compulsory process.

12. Division 2 of Part 3 deals with the method of making claims for compensation and makes provision for a determination of the claim by the Valuer General (s 41). Division 3 addresses the post-acquisition procedures relating to compensation. Division 5 confers a right on disaffected land owners to approach the Land and Environment Court for a determination of their entitlement to compensation.

13. Division 4 addresses the heads of compensation to which an affected owner is entitled. To that end, s 55 provides:

55   Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division)—

(a)   the market value of the land on the date of its acquisition,

(b)   any special value of the land to the person on the date of its acquisition,

(c)   any loss attributable to severance,

(d)   any loss attributable to disturbance,

(e)   the disadvantage resulting from relocation,

(f)   any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

14. The content of these concepts is addressed in ss 56 to 62. In relation to the market value of the land referred to in s 55(a), s 56 provides:

56 Market value

(1) In this Act—

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)—

(a)   any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and

(b)   any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and

(c)   any increase in the value of the land caused by its use in a manner or for a purpose contrary to law.

(2)   When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.

(3)   ……..

15. Section 56(1) appears to reflect the common law test for market value articulated in Spencer v The Commonwealth of Australia (1907) 5 CLR 418. Otherwise, as its name implies, “loss attributable to severance” in s 55(c) refers to the amount of reduction in the market value of any other land that the person entitled to compensation suffers which is “caused by that other land being severed from other land of that person” (s 58).

16. Having regard to these provisions, four issues arise in these proceedings concerning s 10A(2). The first is that, in light of various statements in Desane concerning the significance of s10A(2) (Desane at [205], [258] and [269]), Transport conceded that “satisfaction of s 10A(2) is a jurisdictional precondition to the valid issue of a PAN” under s 11. [2] Further, the parties’ submissions proceeded on the assumption that whether or not there had been a “genuine attempt” to acquire the land was a matter for the Court to determine objectively and is thus the species of jurisdictional precondition identified by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; 46 NSWLR 55 at [40], namely, one where the “Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact”. In light of the conclusion I have reached, it is not necessary to determine whether Transport’s concession was well founded. On the fact of it, however, Transport’s concession appears to be correct.

    2. Transport Written Submissions, “TWS”, dated 8 July 2020 at [13].

17. The second issue concerns the period in respect of which a genuine attempt to acquire land by agreement must be made to satisfy s 10A(2). Counsel for Transport, Ms Tronson, submitted that to satisfy s 10A(2), it was necessary to “identify a starting date” for the negotiations and then consider whether “at a point six months after the starting date …. has there been, looking at that period holistically, a genuine attempt by Transport to acquire the plaintiffs’ land by agreement”. [3] A variation on this submission was to that it was only necessary to identify any six-month period prior to the service of the PAN and then show that during that period there was a “genuine attempt” to acquire the land by agreement. Hence Transport’s written submissions identified the period March to September 2020 as involving a genuine attempt on its part and then, as an alternative, relied on the period after September 2020. [4] In their written submissions in reply, the plaintiffs contended that the relevant period is the six months that occurs immediately before the giving of the PAN. [5] However in oral submissions Senior Counsel for the plaintiffs, Mr Prince SC with whom Ms Wong of Counsel appeared, embraced the construction noted below.

    3. Tr 23/07/2021 p 124.33.

    4. TWS at [25] to [42] and [43ff].

    5. Plaintiffs’ written submissions in reply, “PWSR”, at [20].

18. I do not accept either parties’ submission. As for Transport’s proposed construction, s 10A does not refer to any notional “starting date” for negotiations. Transport’s proposed construction also overlooks that the period of negotiation may be longer than six months (“at least”). Thus Transport’s proposed construction involves reading s 10A(2) as though it refers to “any period of 6 months before giving a proposed acquisition notice” (and the plaintiff’s construction reads the provision as though it refers to “the period of 6 months immediately before giving a proposed acquisition notice”). A construction of s 10A(2) that enabled Transport to isolate and rely on any six month period no matter how long it occurred before the PAN was issued would not be consistent with the objective of “encourag[ing] the acquisition of land by agreement instead of compulsory acquisition” (s 3(1)(e)). On Transport’s construction it could have made a genuine attempt to acquire the land from say August 2019 to February 2020 and then unreasonably refused to negotiate for 13 months thereafter but still have been able to issue a valid PAN in March 2021.

19. A construction of section 10A that promotes the objective of encouraging acquisitions by agreement and deals with the circumstance that the period is “at least” six months is one that addresses the entirety of the actual period of negotiation “before” the giving of the PAN in question. A focus on the entire period between the commencement of negotiation and the issue of the PAN would, or at least should, keep the relevant authority of the State on notice that they must be conducive to reaching an agreement to acquire the property by agreement up until the PAN is issued (and beyond: s 10A(5)). On this approach, which I adopt, the first inquiry where s 10A(2) is in issue is whether a consideration of the conduct of the relevant “authority of the State” over the (entire) period “before” the giving of the PAN answers the description of a “genuine attempt” to acquire the land by agreement. The second inquiry is whether that period was “at least 6 months” duration (unless a shorter period was agreed to under s10A(3)).

15. Ms Tronson submitted that, if the analysis concerned the entire negotiation period that in fact occurred prior to the giving of the PAN, then that might deprive the relevant authority of the power to issue a PAN where there was some gap in the time period between the last attempts to reach agreement and the issue of the PAN. However, that seems unlikely given the inquiry is directed to the entirety of the negotiation period and it otherwise depends on how long the delay was and why it occurred. If there were good faith negotiations that reached an apparently insolvable impasse and the PAN was not issued for some months for a legitimate reason, then the answer to both questions identified in [19] will be “yes”.

16. The third issue concerns what is meant by a “genuine attempt” to acquire the land by agreement. In Desane, Bathurst CJ, Ward CJ in Eq and Payne JA noted that it was common ground that s 10A requires “the acquiring authority … to conduct that negotiation in good faith” (at [205]) and the “content of good faith negotiations required by the Just Terms Act plainly includes the requirement upon an acquiring authority, if asked, to provide such information about an acquisition so as to permit a landowner to negotiate about sale price” (at [258] and at [269]).

17. Both parties referred the Court to various authorities concerning the concept of “good faith” in negotiations. The plaintiff referred to the judgment of Nicholson J in Strickland v Minister of Lands for Western Australia (1998) 85 FCR 303 (“Strickland”) which addressed the requirement under former s 31(1) of the Native Title Act 1993 (Cth) that a government party seeking to undertake a “permissible future act” negotiate in good faith with the native title owners. Nicholson J accepted that a good faith negotiation does not involve capitulation (at [7]). His Honour also accepted that it involves both subjective honesty of purpose or intention and reasonableness of effort to negotiate and reach agreement” (at [3]). This is of particular significance to a statutory requirement to make a “genuine attempt”. It is not sufficient to subjectively possess a good faith intention to acquire a property by agreement; the party’s conduct viewed objectively must involve a genuine attempt. In Strickland, Nicholson J also specified a non-exhaustive list of possible indicia of an absence of good faith in negotiations including unreasonable delay in initiating communication; failing to respond to reasonable requests for information; “shifting position just as agreement seems in sight”; and “adopting a rigid non-negotiable position” (at [9]).

18. Subject to the necessity for the negotiations to be undertaken with the framework of compensation provided for in the Act, a matter addressed next, Transport accepted the relevance of these discussions of good faith but added that did not require the interests of one party to be subordinated to those of the other (citing Macquarie v SSWAHS [2010] NSWCA 268 at [13] per Allsop P).

19. The fourth issue concerns what is the subject matter of the negotiations contemplated by a genuine attempt to acquire land by agreement. In their written submissions in reply, the plaintiffs submitted that it is not the function of the relevant authority under s 10A “to provide a unilaterally determined objective statutory assessment of compensation”. [6] It was further submitted that:[7]

“It is important to recall that s.10A does not appear in Part 2 of the Act which is the Part concerned with acquisition by a compulsory process. Section 10A does not provide for the provision of compensation for compulsory acquisition. Rather it is a preliminary and preconditional step that falls outside of the considerations that arise from the use of coercive State power to take property commencing with the issue of a proposed acquisition notice pursuant to s 11 of the Act.”

6. PWSR at [3].

7. PWSR at [4].

25. In oral submissions, Mr Prince SC sought to illustrate the difference between the approach contemplated by this submission and Transport’s approach by contrasting the valuations relied on Transport from its external valuer, Mr Maher, in its negotiations with the plaintiffs outlined below and a valuation obtained by Transport in 2018 for the acquisition of the Plaintiff’s property on the basis of a “voluntary purchase”. [8] Using comparable sales, the latter produced a much higher value than Mr Maher [9] although it did not address the heads of compensation set out in s 55 other than s 55(a). [10] However, Mr Maher also used comparable sales so this did not illustrate the plaintiffs’ contention. Instead, it demonstrated another point namely the large differences in opinion that can arise between valuers about market value.

    8. Exhibit A, Tender Bundle (“TB”) at p. 1.

    9. TB 17.

    10. TB 12.

26. Ms Tronson’s submission on this topic has already been adverted to, namely that the negotiations that led to an acquisition by agreement take place in the context of the rights of compensation conferred by the Act. I accept that submission. In discussing s 10A in Desane, Bathurst CJ, Ward CJ at Eq and Payne JA observed (at [258]):

“A critical feature of the Just Terms Act is the requirement for a six month period of negotiation between a landowner and an acquiring authority prior to the issue of a PAN: s 10A. It was accepted by the parties that a period of negotiation in good faith for that period was afforded to Desane in this case. The content of good faith negotiations required by the Just Terms Act plainly includes the requirement upon an acquiring authority, if asked, to provide such information about an acquisition so as to permit a landowner to negotiate about sale price. This is in a context where those negotiations are against a backdrop of the heads of compensation payable to an owner of land as identified in s 55 of the Just Terms Act and the method of calculating market value is identified in s 56 of the Act.” (emphasis added)

27. Negotiations over an acquisition or indeed any transaction do not take place in a vacuum. In considering a requirement to undertake good faith negotiations in a contract, Allsop P, as his Honour then was, described them as not being “open-ended about a myriad of commercial interests to be bargained for from a self-interested perspective” but as involving “a discussion of rights, entitlements and obligations” (United Group Rail Services United v Rail Corporation New South Wales (2009) 74 NSWLR 618, 637 [70], [2009] NSWCA 177 at [70]).

28. In this context, and consistent with Desane, s 10A(2) contemplates a discussion of “rights, entitlements and obligations”, specifically a discussion about the land owners’ entitlements to compensation under the Act in respect of the acquisition. Any doubt about this is resolved by s 38 (see [11]). Section 10A(2) concerns a proposed acquisition and s 38 obliges the State in connection with that acquisition to take into account the “same matters as are required to be taken into account under [Part 3] in determining the compensation payable” for the acquisition. In its application to s 10A, section 38 is both facultative and restrictive. It is facultative in the sense that it enables the relevant authority to agree to pay a sum for an acquisition that reflects all the heads of compensation provided for in s 55 and not just the market value of the property that is being acquired. It is restrictive in the sense that it precludes the relevant authority from conducting a negotiation on some other basis such as from the perspective of an over willing buyer prepared to pay well beyond the market price in order to secure a commercial (or other) advantage. The public policy reasons for so limiting a public entity are obvious.

29. It follows that the context of the negotiations that are contemplated under s 10A(2) are negotiations over the amount of compensation that maybe payable under the Act. To the extent that the plaintiffs submitted to the contrary then I reject their submissions. However, this does not mean that the relevant authority can, to use the plaintiffs’ words, “unilaterally determine” the amount of compensation. The quantification of the heads of compensation set out in s 55 are matters over which reasonable minds can, and almost certainly will, differ. The negotiations contemplated by s 10A(2) can be expected to involve give and take over the quantification of those amounts. The process of making a “genuine attempt” will involve a recognition of the scope for uncertainty in quantifying the heads of compensation. Nevertheless, from the perspective of the relevant authority it is still a discussion of the quantification of the “rights [and] entitlements” to compensation under the Act that is the subject matter of negotiations contemplated by s 10A(2).

The Negotiations

30. On 23 August 2019, Transport wrote to the plaintiffs advising them, inter alia, that the proposed route for the M12 would require the acquisition of part of their land. The letter gave notice of the commencement of the minimum six month negotiation period required under s 10A of the Act. It stated that “during the next six months we will make a genuine attempt to acquire the land by means of an agreement reached with you”. [11]

    11. Exhibit TE-1 to the affidavit of Tania Enwiya sworn 8 July 2021, TE-1, page 64 (TE1/64).

31. On the same day, the then Acquisition Manager responsible for acquiring the plaintiffs’ land, Ms Abbey Lau, instructed Mr Maher to carry out an assessment for compensation in relation to the partial acquisition of the Kemps Creek property. [12] The letter of instruction to Mr Maher adverted to the potential for him to be retained as an expert in proceedings in the Land and Environment Court should that be necessary.

    12. Affidavit of Tania Enwiya sworn 8 July 2021 (“TE8July”) at [16].

32. A file note records that on 29 August 2019, the first plaintiff’s younger brother, Mohammed Elmasri, called Ms Lau and requested Transport consider the acquisition of the whole of the property, given that the land was prone to flooding and affected by easements. [13]

    13. TE-1/75.

33. On 3 September 2019, Ms Lau requested Mr Maher carry out an assessment of compensation in respect of the acquisition of the entirety of the property. [14]

    14. TE8July at [16].

34. On 6 September 2019, Ms Enwiya, another acquisition manager employed by Transport, assumed responsibility for negotiations with the plaintiffs.

35. On 9 September 2019, the Minister for Planning made an order amending the State Environmental Planning Policy State and Regional Development 2011 to include, as an item of critical state significance, the M12 Motorway. [15] The amendment described the M12 as being “a multi-lane road link from the M7 Motorway to Cecil Hills extending for approximately 16 kilometres to the Northern Road at Luddenham” and including intersections with the M7 Motorway and an interchange with the proposed Western Sydney International Airport with electronic tolling facilities, the construction of new bridges and various ancillary development.

    15. TE-1/3.

36. On 16 October 2019, Mohamed Elmasri attended a community meeting called to discuss the acquisition proposal, along with the first plaintiff. [16] He inspected plans of the proposed acquisition and became concerned in that it only involved the transfer of a small, but prime part, of the plaintiffs’ land. [17]

    16. Affidavit of Mohammed Elmasri sworn 2 July 2021, “ME2July” at [13].

    17. ME2July at [15].

37. In her affidavit sworn 8 July 2021 (her “first affidavit”), Ms Enwiya states that between 19 October and 20 December 2019, she sought internal approval to negotiate a full acquisition of the plaintiffs’ land “per the plaintiffs requests”. She also states that she engaged an environmental consultant to carry out a “phase one preliminary site investigation of the plaintiffs’ land”. [18] Ms Enwiya understood that the plaintiffs’ land had been identified as a former solid waste land fill.

    18. TE8July at [20].

38. In her first affidavit, Ms Enwiya stated that on 22 November 2019 she received a valuation report from Mr Maher. [19] In her oral evidence she said she received a draft of that valuation in November 2019 and the final version was produced on 18 December 2019 but that it was dated November 2019 as that was the relevant valuation date. [20] The report stated that its purpose was to “assess fair and reasonable compensation for the proposed acquisition of the whole or part” of the plaintiffs’ land for the purposes of a road. [21] It stated that in undertaking the valuation regard had been had to, inter alia, the instructions received and that “compensation has been assessed in accordance with Division 4 – determination of amount of compensation of the Land Acquisition (Just Terms) Compensation Act 1991”. [22]

    19. TE8July at [23]; TE-1/187.

    20. Tr 23/07/2021 p 65.38.

    21. TE-1/192.4.

    22. TE-1/192.6.

39. Mr Maher assessed the amount of compensation referrable to s 55(a) of the Act for a total acquisition of the plaintiff’s land as $5,510,000 and a partial acquisition as $2,730,000. He did not attribute any special value to the property or allow any amount for disturbance or disadvantage resulting from relocation. Mr Maher stated that any allowance for severance was included in the assessment of market value. [23] He stated that the assessed amounts assumed that the “land is free of any surface or subsurface contamination, pest infestation, structural defect or environmental matter that would affect its value”.

    23. TE-1/191.

40. On 29 November 2019 an offer to purchase a neighbouring property was made based on a valuation report from Maher. [24]

    24. TB 83.

41. According to a file note of Ms Enwiya, on 10 December 2019 she spoke with Mohamed Elmasri who enquired about when he would receive an offer. She advised him that they were “awaiting valuation advice”. He enquired if there would be an “offer or a dual offer” and her note records that she advised “yes project has provided approval that a dual offer can be provided – total and partial”. [25]

    25. TE-1/229.

42. In her oral evidence, Ms Enwiya said that around this time she received a “direction from management to put offers on hold until we receive[d] high level planning advice in relation to the M12”. [26] She said she was advised of the decision by her “direct line manager”, Marcus McClintock. [27]

    26. Tr 23/07/2021 p 70.1.

    27. Tr 23/07/2021 p 70.

43. In late January 2020, a representative of Transport for NSW emailed the plaintiffs seeking access to their property for their environmental consultant to undertake the phase one preliminary site investigations. [28] According to a file note prepared by Ms Enwiya on 29 January 2019, Mohamed Elmasri rang her on that day and indicated he was not “happy to provide access at this point given he has not received an offer”. [29] It seems that a request was made for access in early February 2020, but that was refused. [30]

    28. TE-1/230.

    29. TE-1/233.

    30. TE-1/234.

44. On about 7 February 2020, an instruction was issued to obtain a new survey of the plaintiffs’ land. [31] It seems a survey was undertaken on or around 10 March 2020. On that day, Mohamed Elmasri spoke with the surveyors and then contacted Transport to express his concern “regarding what [part of the] property is being acquired”. [32]

    31. TE8July at [32].

    32. TE-1/240.

45. On 20 March 2020, Ms Enwiya wrote to the plaintiffs advising them that since the letter of 29 August 2019 was sent the area of acquisition had been amended so that the area now required for the road was 16,860m² where previously it was 16,840m². She enclosed a revised sketch plan. [33]

    33. TE-1/241.

46. On about 26 March 2020, Mohamed Elmasri and his father attended a meeting with representatives of Transport including Ms Enwiya. Mohamed Elmasri recalled that, during the meeting, Ms Enwiya said that Transport would acquire the whole of the property and advised them to obtain lawyers and have a valuation undertaken of the entirety of the property. [34] Ms Enwiya recalled stating that “a dual offer” would be made “shortly on the basis of a partial acquisition and a total acquisition”. She said that a “total acquisition will only occur provided we reach an agreement” and that a “property adjustment plan won’t apply until we reach agreement on total acquisition”. [35] Ms Enwiya attached to her affidavit a file note of the meeting [36] the terms of which do not assist in resolving the (relatively minor) difference between her and Mohamed Elmasri’s account. Otherwise, the file note confirms she encouraged them to engage a valuer and a solicitor. Given the offer that was subsequently sent, I am satisfied that Ms Enwiya raised the option of acquiring the whole of the plaintiffs’ land during the meeting but also maintained the option of only pursuing a partial acquisition.

    34. TE8July at [37].

    35. TE8July at [38].

    36. TE-1/243.

47. In her oral evidence, Ms Enwiya said that around March 2020 she received instructions allowing offers to be made to the land owners. [37] This occurred even though it appears that no high level planning advice had been received to that time.

    37. Tr 23/07/2021 p 73.28.

48. On about 27 March 2020, Ms Enwiya circulated an acquisition submission within Transport which sought approval to make an offer for the acquisition of the plaintiffs’ land. [38] The submission sought approval for alternative offers involving a partial acquisition or a full acquisition for the precise sums stated in Mr Maher’s valuation report, together with an amount of $4,500 for the plaintiffs’ legal and conveyancing fees. Both options for acquisition were subject to the receipt of an environmental consultant’s report specifying the land did not require remediation works or, if it did, the estimated cost of the required remediation works were to be deducted from the purchase price. [39] The acquisition submission was approved by the relevant managers on the same day. [40]

    38. TE-1/244.

    39. TE-1/245 to 246.

    40. TE-1/247.

49. On 30 March 2020, Ms Enwiya wrote to the plaintiffs proposing two options for acquisition that accorded with the acquisition submission just noted, including the conditions concerning remediation (the “First Offer”). [41] Her letter referred to Mr Maher’s valuation. Ms Enwiya stated that she did not follow up on the letter of offer because she expected them to first engage a solicitor or a valuer. [42]

    41. TE-1/248.

    42. TE8July at [43]

50. On or around 7 May 2020, Ms Enwiya received a valuation addendum from Mr Maher. [43] Ms Enwiya said it had been requested because there had been (a slight) amendment to the sketch plan of the land to be acquired. [44] Mr Prince SC noted that the comparable sales referred to in the valuation addendum referred to two properties sold in Aldington Road, Kemps Creek which reflected a valuation rate of $180/m². [45] In his addendum, Mr Maher described both properties as superior to the plaintiffs’ land. He adopted a rate of $150/m² for that part of the plaintiffs’ land which was flood free and not affected by easements. [46]

    43. TB 133; Tr 23/07/2021 p 80.15.

    44. Tr 23/07/2021 p 81.1.

    45. TB 149.

    46. TB 154.

51. The foreshadowed “high level” planning advice was received within Transport in the form of a memorandum [47] and a report [48] both dated 21 May 2020 from McKenzie Land Planning Services. The advice addressed the effect of the draft Western Sydney Aerotropolis Plan (“WSAP”) (and an associated State Environment Planning Policy, “WSAP SEPP”). The proposed WSAP “define[d] how the broader region’s environment, waterways, strategic transport network, infrastructure and economy will combine to transform the Aerotropolis [ie, region around the airport] into a contemporary metropolitan city”. [49] It noted that the plan proposed a number of “initial precincts” which will be the focus of “initial rezoning”. [50] The advice also referred to a draft Cumberland conservation plan.

    47. TB 679.

    48. TB 684.

    49. TB 686.5.

    50. TB 686.6.

30. On or about 27 May 2020, Transport received the final preliminary site investigation report. [51] The executive summary of the report noted, inter alia, that “based on an assessment of the history, environmental setting and a site inspection from the site boundary, potentially contaminating activities have been identified as occurring on the property, including agricultural uses, use as a car wrecking yard [and] the use of fill and stockpiling of soils of unknown origin”. [52] The report recommended, inter alia, that a detailed site investigation be undertaken to “assess the extent of potential contamination at the site and confirm remediation or management requirements”. [53]

    51. TE-1/254.

    52. TE-1/260.1.

    53. TE-1/.260.2.

31. As adverted to above, on 11 June 2011, Ms Enwiya requested an updated valuation addendum report based on the planning advice noted above. [54]

    54. TB33.

32. In her first affidavit, Ms Enwiya states that on 23 June 2020, she had a telephone conversation with Mohamed Elmasri. She records Mr Elmasri advising her that he had retained a solicitor and valuer and that they would provide a report soon. He also stated that he considered the First Offer to be too low. Ms Enwiya says that she advised him that their consultants required access to the plaintiffs’ land to undertake a phase two site investigation. She said Mr Elmasri responded that his valuer and solicitor had advised him that agreement could be first reached on value and then further agreement could be reached on the “cost of remediation for any contamination”. He said he did not want to undertake investigations because he wanted to clear the property. Ms Enwiya also states that she advised him that the Transport offer was “based on independent valuation advice we received”. [55]

    55. TE8July at [46].

33. On 30 June 2020, Ms Enwiya received a valuation addendum from Mr Maher. [56] The addendum reflected a valuation as at 22 November 2019 but stated that the addendum review was as at 30 June 2020. It revised downward the amount offered for a full acquisition from the First Offer to $5,085,000 and for a partial acquisition to $2,406,500 subject to the same remediation assumption noted above. [57] The report revised the rate attributed to non-flood affected land that was not affected by easements from $150/m² to $135m/². [58] The report addressed the effect of the WSAP and the WSAP SEPP in detail. [59] It clearly affected Mr Maher’s valuation. [60] In cross‑examination of Ms Enwiya it was pointed out that Mr Maher’s analysis of comparable sales in this addendum omitted the two properties noted above. [61] Ms Enwiya said that on receipt of those reports she did not question Mr Maher about their omission [62] although she speculated that they may have had less relevance in light of the WSAP SEPP. [63]

    56. TE-1/471.

    57. TE-1/498.

    58. TE-1/496.

    59. TE-1/479 to 481.

    60. TE-1/485.

    61. Tr 23/07/2021 p 88.

    62. Tr 23/07/2021 p 89.31.

    63. Tr 23/07/2021 p 88.

34. On 1 July 2020, Ms Enwiya wrote to the plaintiffs advising that to progress the matter a response to the First Offer was required, either by way of acceptance or by way of a full claim and supporting valuation. [64]

    64. TE-1/500.

35. On 3 July 2020, Ms Enwiya received a draft cost estimate in relation to the remediation works on the plaintiffs’ land. [65] The report and accompanying schedules provided a cost estimate for remediation if full acquisition was undertaken of $5,757,409 exclusive of GST and if partial acquisition was undertaken of $3,929,377 exclusive of GST. [66]

    65. TE-1/502.

    66. TE-1/506.10.

36. On 29 July 2020, Ms Enwiya received an email from the plaintiffs’ solicitor, Mr Shumsky, advising that his clients had received a valuation report and they were currently considering it. [67] On the following day, Ms Enwiya responded advising Mr Shumsky, inter alia, that the environmental consultants who completed the phase one investigation required access to the property for a detailed site investigation to assess the extent of potential contamination and the remediation management requirements. [68]

    67. TE-1/515 to 516.

    68. TE-1/515.2.

37. On 7 August 2020, Ms Enwiya received an email from a senior environmental specialist in the land management section of Transport who provided feedback on the remediation cost estimates obtained for the plaintiffs’ land and other properties. [69] He noted that the environmental advisors had provided a cost estimate to remediate the relevant sites, including the plaintiffs’ site, “in the absence of appropriate investigation information” because access had been denied by the owners. Although he considered the reports fit for purpose and as not requiring any further revision, he qualified the estimates, stating as follows: [70]

“…due to the assumptions that have had to be made by [the environmental consultants] I consider the total estimates for remediation of both properties are unrealistic in regards to what the market will be obliged to spend to provide a remediation outcome (if required) for either property.

I recommend compensation remediation as included in the offer for each property and that a conservative proportion of the worst case estimates would be suitable to protect [Transport] liabilities in acquisition of each site.” [71]

69. TE-1/526.

70. TE-1526.

71. TE-1/526.

60. On the following day Ms Enwiya sent a further acquisition submission to her immediate supervisor. [72] In that submission she referred to the advice just noted and stated that Transport “considers 30% of the total remediation cost estimate to be a conservative proportion which is to be deducted from the purchase price”. [73] In the balance of the submission she recommended making an offer for both the partial acquisition or the entire acquisition of the property using the figures derived from the valuation addendum provided by Mr Maher on 30 June 2020, namely, $5,085,000 for full acquisition and $2,406,500 for partial acquisition with a deduction for remediation costs being 30% of the estimate provided by the environment consultants. Accordingly, she proposed an acquisition of the entirety of the property for $3,362,277 and for a partial acquisition of $1,232,187. [74] Ms Enwiya’s supervisor provided that submission, and the valuations and reports, to his superior on 8 August 2020. [75] On 13 August 2020, final approval for the revised offer was given. [76]

    72. TE-1/527; TE-1/535.

    73. TE-1/536.1.

    74. TE-1/536.

    75. TE8July at [59].

    76. TE8July at [60].

61. On 17 August 2020, Ms Enwiya received costs estimate from the environmental consultants in relation to the remediation works on the plaintiffs’ land. [77] The finalised costs estimate was not materially different to that noted above.

    77. TE-1/599.

62. On 19 August 2020, Transport wrote to the plaintiffs providing them with notice under s 166 of the Roads Act 1993 of the Transport’s intention to exercise statutory authority to enter the land and conduct various investigations. [78]

    78. TE-1/612.

63. On 20 August 2020, Ms Enwiya wrote to the plaintiffs via Mr Shumsky making a revised offer to purchase either the entirety of their land or part of their land in terms consistent with the acquisition submission noted above (the “second offer”). [79] It was a substantial revision downwards from the first offer.

    79. TE-1/618.

64. On 21 August 2020, Mr Shumsky provided Ms Enwiya with a completed claim form under s 39 of the Act. They sought total compensation of $11,427,452 which included a claim for market value of the land of $10,645,000 a claim for loss attributable to disturbance of $702,452, a claim for $80,000 for disadvantage resulting from the relocation as well as various costs of $17,600. [80] Included with the claim was a valuation report from the plaintiffs’ valuer, Mr Romeo, which attributed the claim for compensation for a partial acquisition as being $4,395,000 excluding costs and for a whole acquisition being $11,340,000 excluding costs. [81]

    80. TE-1/632 to 633.

    81. TE-1/678 to 679.

65. Two particular criticisms made by the plaintiffs of Transport’s approach to remediation costs should be noted at this stage. The first concerns the inclusion of deduction for remediation costs calculated as 30% of the estimate produced by the environmental consultants. Ms Enwiya said that assessment was determined by a “collective” of management who were not experts in remediation. [82] The second was the failure of Transport to this time to exercise compulsive powers to enter the plaintiffs’ land to obtain a proper assessment of the costs, as subsequently occurred. Ms Enwiya was asked as follows: [83]

“Q. I’m sorry. The notice under the Roads Act could’ve been issued at an earlier time that 14 August 2020, couldn’t it?

A.   No, well, we were trying to speak with the land owners, and trying to explain to them that we need - you know, part of our due diligence process, but we need access to their property to conduct these sorts contamination investigations.  And, we had a couple of conversations with them to explain that that was the case and we needed access to help inform our offer to them.  And, they just refused access to the property.”

82. Tr 23/07/2021 p 96.27.

83. Tr 23/07/2021 p 97.24.

66. On 14 August 2020 Transport issued notices to the plaintiffs under s 166 of the Roads Act 1993 which gave it access to their land.

67. On 31 August 2020, Ms Enwiya sent Mr Shumsky an email stating, inter alia, that in view of the difference between their respective valuations, she proposed exchanging valuation reports. She enclosed a copy of Mr Maher’s valuation addendum dated 30 June 2020. [84] On the same day, Ms Enwiya emailed a copy of Mr Romeo’s valuation report to Mr Maher. [85]

    84. TE-1/768; Exhibit MS1 to the affidavit of Mark Shumsky sworn 2 July 2021, “MS1” at p 329 (MS1/329).

    85. TE-1/769.

68. On 2 September 2020, Mr Maher sent a letter to Ms Enwiya commenting on the Mr Romeo’s report. He described it as “fundamentally flawed” and set out various reasons said to justify that conclusion. [86] Ms Enwiya provided that letter to Mr Shumsky on 16 September 2020. [87]

    86. TE-1/907.

    87. TE-1/909.

69. On 13 November 2020, there was a meeting between Ms Enwiya, Mohamed Elmasri, Mr Shumsky, Mr Romeo, Mr Maher and Marcus McClintock. [88] At one point during the meeting reference was made to the sale of a nearby property at 4 Turnbull Avenue.

    88. TE8July at [74].

70. In his affidavit Mohamed Elmasri records that Mr McClintock said words to the effect:

“We are going to make you another offer but we are waiting to see the result of the auction of another property before Turnbull Avenue, Kemps Creek which is nearby and which will provide the best indication of the per acre value of the property.”[89]

89. ME2July at [36].

71. In his affidavit, Mr Shumsky stated that during the meeting “[i]t was agreed by all present, the single crucial indicator of the subject property’s current (post SEPP) value would the sale result of 4 Turnbull Ave Kemps Creek”. [90] The reference to “post SEPP” reflects that the fact that the WSAP SEPP had come into force. Mr Shumsky prepared a file note of the meeting which supports his recollection. [91]

    90. Affidavit of Mark Shumsky sworn 2 July 2021 (“MS2July”) at [49(b)].

    91. MS1 at 389.

72. Ms Enwiya recalls that Mr Romeo referred to the property at 4 Turnbull Avenue proceeding to auction and stating that it would be a “good indication of market evidence for Kemps Creek”. She recalls him stating that he represented the potential bidders and knew what they were prepared to pay. Ms Enwiya recalls that she undertook an internet search for Mr McClintock’s benefit and that Mr McClintock said[92] :

“It [ie, 4 Turnbull Avenue] will be good evidence if sold. The sale will need to be analysed by the valuers. [Transport] are happy to wait for the auction of 4 Turnbull Avenue Kemps Creek and to arrange for another negotiation meeting once both valuers have had a chance to analyse the new sale (if sold).”

92. TE8July at [76].

73. Annexed to Ms Enwiya’s first affidavit is a typed file note of that meeting which is consistent with her affidavit. [93]

    93. TE-1/919.

74. Ms Enwiya was cross‑examined about the reference to 4 Turnbull Avenue Kemps Creek. She did not agree that Mr McClintock stated that it “would be strongly indicative” but instead recalled that he said that “given that the Western Sydney Aerotropolis SEPP” had been recently finalised then 4 Turnbull Avenue “would be a good sale to consider, but the valuers would need to analyse that sale, and we’d have another meeting post that”. [94] The next meeting was not until after the PAN was issued.

    94. Tr 23/07/2021 p 100.10.

75. I am not able to conclude that a statement was made by Mr McClintock that was as emphatic as what was attributed to him by Mr Elmasri and Mr Shumsky, although I am satisfied that it was more emphatic that merely saying that it “would be a good sale to consider”. On the one hand, Mr McClintock had just become aware of the sale and had not received Mr Maher’s analysis of it. On the other, it was the first sale of the WSAP SEPP and like the plaintiffs’ land, 4 Turnbull Avenue was not in the initial area.

76. On 14 November 2020, the plaintiffs’ valuer sent an email to Ms Enwiya, Mr Maher and Mr McClintock advising that the property at 4 Turnbull Avenue, Kemps Creek sold for $4,800,000 under auction conditions. He noted that was the equivalent to a rate of $240/m². [95]

    95. TE-1/922.

77. On 16 November 2020, Mr McClintock emailed Mr Maher requesting that he analyse the sale and provide his commentary and advice. [96] A few minutes later, Mr Maher responded that he would need information about the purchaser’s intentions for the property. He also compared it to a sale of a property at 8 Turnbull Avenue in August which reflected a rate of $135/m² just prior to the WSAP SEPP coming into force. He queried whether the market was ignoring the fact that the land is a non-initial precinct. [97]

    96. TE-1/923.

    97. TB 518.

78. Later in the morning of 16 November 2020, a senior property acquisition manager at Transport emailed other officers within Transport making them aware of the sale and advising them that the author of the high-level planning advice had been asked to advise “on any further or propose amendments to the town planning controls to inform us on new transactional activity”. [98]

    98. TB 520.

79. Later that day, Mr Maher sent an email after speaking to the real estate agent who acted on the sale of 4 Turnbull Avenue. [99] He relayed the agent’s opinion that the market was aware of the difference between initial and non-initial precincts but was welcoming the certainty created by the WSAP SEPP. He attached an analysis of recent sales including 4 Turnbull Avenue and opined that there “is no identifiable rational ‘informed’ reason for the apparent sudden rise in prices” and that the “prices are inconsistent and may reflect a transitioning to higher land prices”.

    99. TB 519.

80. On 18 November 2020, Mr Maher sent a further email attaching a spreadsheet containing an analysis of recent market evidence of sales of flood prone land. [100] The price range was $18 to $50 per square metre. Mr Maher queried whether “as the flood free rate goes up what people are willing to pay for flood prone land will go down.”

    100. TB 524.

81. In her oral evidence, Ms Enwiya explained that the members of the acquisition team were all “shocked” by the sale of 4 Turnbull Avenue and understood that “Mr Maher needed to understand the circumstances around the sale and also needed to understand what the market was actually doing”. [101] That said, Mr Maher was not asked to produce an updated valuation addendum before the issue of the PAN.

    101. Tr 23/07/2021 p 101.35.

82. On 8 December 2020, Mr Enwiya received a report of a detailed site investigation undertaken by the environmental consultants which concluded that the subject property contained mixed fill material as well as some chemical contaminants and waste. [102]

    102. TE-1/929.

83. On 8 December 2020, Mr Shumsky emailed Ms Enwiya seeking an update on whether there would be a follow-up meeting to that which occurred on 13 November 2020. On 23 December 2020, she replied, stating that they were awaiting expert advice in relation to sales evidence and town planning. [103]

    103. TE-1/1212.

84. On 23 December 2020, a revised letter of offer was sent to the plaintiffs (the “third offer”). [104] The offer was in the same terms as the second offer although the proposed terms were varied by the imposition of restriction on the use of the residual land retained by the owners which restricted their access to and from the proposed freeway. [105]

    104. TE-1/1214 to 1219.

    105. TE-1/1214.

85. On 25 February 2021, Transport wrote to the plaintiffs advising that, given the timetable for the construction of the proposed motorway, if a binding agreement on the terms and conditions of the purchase could not be reached within 21 days, it would be recommended to the Minister for Transport and Roads that their client be given a proposed acquisition notice under the Act. [106] The plaintiffs were advised that if a PAN was provided and the land was not acquired by agreement, or contacts had not been exchanged within 90 days of the plan, then the land would be compulsorily acquired under the provisions of the Act.

    106. TE-1/1221.

86. On 3 March 2021, Mr Shumsky wrote to follow up the meeting on 13 November 2020. They noted that Transport’s valuer was in the process of analysing recent market sales with a view to recommencing negotiations. [107] The next day Ms Enwiya responded indicating that Mr Maher was available to meet on 25 March 2021.

    107. TE-1/1226.

87. A handwritten file note prepared by Ms Enwiya on 12 March 2021 indicates that she and Mr Shumsky agreed that the meeting would take place on 25 March 2021. However, in the meantime, on 19 March 2021, Transport sent the PAN to the plaintiffs. [108]

    108. TE-1/1231 to 1233.

88. On 25 March 2021, Mr Shumsky provided Ms Enwiya with an addendum to Mr Romeo’s valuation report. [109] The addendum assessed the compensation for a partial acquisition as $4,580,000 exclusive of legal costs and for a full acquisition as $11,605,000 exclusive of legal costs and stamp duty. [110]

    109. MS1/419.

    110. MS1/427.

89. On the same day, there was a second meeting of Mr Romeo and Mr Maher which was also attended by Mohamed Elmasri, two other members of his family, Ms Enwiya and other persons from Transport. [111] Mr Maher produced a summary of recent sales that he had prepared which included the property at 4 Turnbull Avenue. [112] Both Mr Shumsky [113] and Ms Enwiya [114] produced file notes of the meeting. They do not appear to be materially different. The bulk of the meeting was taken up with a debate between the valuers as to the appropriate approach to valuing the plaintiffs’ land. Mr Shumksy’ file note records that both of them spoke about the property at 4 Turnbull Avenue as a comparable sale and noted that Transport had pointed out, unlike the plaintiffs’ land, that property was zoned residential. [115] At some point they discussed valuing the plaintiffs’ land by assessing an amount per square metre for land that was not affected by flooding or any easement, a rate for land that was either partially flood prone or which was affected by transmission easement and then a further rate for land that was fully flood prone. [116]

    111. MS2July at [61]; Affidavit of Tania Enwiya sworn 15 July 2021, TE15July, at [6].

    112. TE15July at [8].

    113. MS-1/492.

    114. Exhibit TE-2/2 to 4.

    115. MS-1/493.7.

    116. MS-1/493.2; Exhibit TE-2 to TE15July at pp 3 to 4.

90. On 12 April 2021, the environmental consultants wrote to Ms Enwiya with a further cost estimate based on the detailed site investigation. [117] The revised cost estimate for a remediation of the entire property was $355,611.05. [118]

    117. TB857.

    118. TB885.

73. On 27 April 2021, there was a telephone conference between Mr McClintock, Mr Romeo, Ms Enwiya and a senior project officer with Transport. [119] Ms Enwiya’s file note records that there were again discussions about the competing views concerning the appropriate rates per square metre for the three types of land just noted.

    119. TE15July at [11].

74. On 3 May 2021, Ms Enwiya emailed Mr Shumsky and Mr Romeo attaching a flood map sketch for the relevant property and advising that in light of the meeting an updated offer would be submitted to their client “in the near future”. [120]

    120. TE-2/14.

75. On 17 May 2021, Ms Enwiya emailed Mr Romeo advising them that Mr Maher had just become aware of the Draft Cumberland Plain Conservation Plan which appeared to affect their land. She inquired whether in light of that they wished to review the plaintiffs’ claim. [121] In cross examination Ms Enwiya accepted that plan had been advertised since August 2020 but said that an interactive map had recently become available which enabled it to be determined which properties were affected by the draft plan. [122]

    121. TE-2/17.

    122. Tr 23/07/2021 p 105.25.

76. Mr Romeo responded the next day advising that they would not revise their position based on a draft plan. At the same time, Mr Shumsky wrote to Transport advising that in their view there had been no genuine attempt to negotiate a settlement and foreshadowed the commencement of these proceedings.

77. On 28 May 2021, Mr Shumsky provided a revised claim under s 39 of the Act. The total amount sought was $12,250,000 for full acquisition reflecting a market value of the plaintiffs’ land of $11,605,000. [123]

    123. MS-2/511.

78. At the initiation of Transport, a further meeting was held between the valuers which was also attended by Mr McClintock and Ms Enwiya on the afternoon of 11 June 2021. [124] Ms Enwiya prepared a file note of the meeting. [125] It reveals that no agreement was reached at the meeting as the valuers were still very far apart about the rates per square metre that could be allowed for the different types of land noted above. [126] Ms Enwiya’s file note also includes a revised estimate of the remediation costs of $355,610. [127] Later that afternoon the plaintiffs commenced these proceedings.

    124. MS2July at [73]; TE15July at [18].

    125. TE-2/26.

    126. TE-2/26.

    127. TE-2/26.

79. On 15 June 2021, Mr Maher sent Ms Enwiya a revised valuation recommendation which followed the discussion at the meeting on 11 June 2021. [128] This included an estimate for the total acquisition on a market value of $5,645,000 and for partial acquisition of $2,922,265. [129]

    128. TE-2/28.

    129. TE-2/29-30.

80. On 17 June 2021, Ms Enwiya sent an email to the plaintiffs’ solicitor attaching a further offer for the acquisition of the property. The two options offered reflected Mr Maher’s revised valuation along with a lesser amount for remediation costs being $118,900 for partial acquisition and $355,610 for total acquisition. Her email invited the plaintiffs to submit claims that reflected those amounts. [130]

    130. TE-2/32 to 38.

81. On 11 July 2021, there was a further meeting of the valuers which was also attended by Mohamed Elmasri, Ms Enwiya and other personnel from Transport. [131] Ms Enwiya’s file note of that meeting records that the meeting involved a debate between the two valuers concerning the appropriate approach to valuation. No agreement was reached. [132]

    131. TE-2/43.

    132. TE-2/43 to 46.

82. At this point three matters should be noted about these negotiations.

83. First, in the end result, the PAN was issued in March 2021 to meet the same construction timeframe that has dictated this matter being conducted on an urgent basis. In the 19 months between the time of the Transport’s letter of 23 August 2019 and the issue of the PAN, Transport made the first offer in March 2020, the second offer on 20 August 2020 and a third offer on 23 December 2020 which was in substantially the same terms as the second offer. The market value attributed to the plaintiffs’ land in each offer reflected the advice of its external valuer. The second (and third) offers were less than the first which partly reflected a reduction in value by reason of the external valuer taking into account proposed planning instruments affecting the land and partly reflected revised estimates of the remediation cost of the land.

84. Second, in the period after the PAN was issued there was an intense engagement between Mr Romeo and Mr Maher about their differences of opinion concerning the valuation of the plaintiffs’ property.

85. Third, both parties placed heavy reliance on their valuers and their opinions about the value of the property were dramatically different. Leaving aside remediation costs, in the two-year period from August 2019 to July 2021 the highest value that Mr Maher attributed to the plaintiffs’ land was $5,645,000 and the lowest value that Mr Romeo attributed to that land was $11,340,000.00.

Was there a genuine attempt made by Transport to acquire the land by agreement?

104. One matter that needs to be addressed is how Transport’s bona fides is to be assessed. As noted, Transport’s only witness was Ms Enwiya. From September 2019, Ms Enwiya had day to day responsibility for the acquisition of the plaintiffs’ land. However, she did not have authority to make an offer in her own right and, as the above demonstrates, she was subject to the dictates of management as to the progress of the acquisition. There was no challenge to Ms Enwiya’s honesty as a witness or her bona fides in pursuing an acquisition by agreement. However, given her position and duties, her conduct and state of mind is not synonymous with that of “Transport”. As noted above, a failure to proffer a genuine attempt can be evident from a lack of “reasonable effort to negotiate and reach agreement” (Strickland supra). In this case that can be ascertained from objectively assessing Transport’s conduct in its entirety.

105. The plaintiff’s principal submission is embodied in the extract from its written submissions in reply set out above (at [24]). In oral submissions, Mr Prince SC contended that it was an “error of perspective to presume that [s 10A] is part of the compulsory acquisition process” [133] and that Transport fell into that error in that, from the outset, it was preparing to engage Mr Maher as an expert witness in the Land and Environment Court (see [31]). The related contention was that Transport adopted an overly rigid approach of effectively dictating to the plaintiffs the market value of their land (“it was a unilateralist approach whereby an expert was briefed to provide a price … to determin[e] an amount of compensation once a PAN is granted” [134] ).

     133. Tr 23/07/2021 p 111.9.

     134. Tr 23/07/2021 p 111.36 – 48.

106. This submission was partly premised on the proposition that s 10A(2) of the Act embodies the form of negotiation noted in [24] to [25], a proposition I reject. As noted, the “genuine attempt” required of the relevant authority by s 10A(2) is a genuine attempt to agree upon the amount of compensation payable under the Act for the acquisition of the owner’s property. Further, an authority of the State will not fail to make a genuine attempt to acquire land by agreement simply because it intends that, if negotiations fail, it will issue a PAN, or as here, it issues a PAN cognisant of its timetable for acquisition and in circumstances where the parties are so far apart that the prospect of agreement is very remote.

107. To the extent that the plaintiff’s principal submission asserts that Transport adopted a “unilateralist” approach to the acquisition, ie it simply sought to dictate the amount of compensation payable, then I reject it is a matter of fact. The submission is inconsistent with Ms Enwiya’s engagement with the plaintiffs from time to time including encouraging them to engage solicitors and a valuer (see [46]), inviting them to make a claim ([56]) and preparedness to arrange meetings between the valuers. Transport as well as Mr Maher appear to have understood that the process of negotiation would require compromise over the amount of compensation payable. However, they appear to have been surprised by the degree of difference between the valuers and shocked when the sale of 4 Turnbull Avenue appeared to provide support for Mr Romeo’s approach. However, even if Transport and Mr Maher’s assessment of the value of the plaintiffs’ land was or proves to be completely wrong that does not mean they were not making a genuine attempt.

108. The plaintiffs’ submission also involved a characterisation of Transport as being effectively bound by the figures nominated by its external valuer, Mr Maher, in making offers. Given the statutory context governing Transport’s negotiations it was entitled to heavily rely on external valuation advice. Moreover, this reliance occurred in circumstances where, according to Ms Enwiya, Mr Maher’s reports and advice were reviewed internally and Transport understood, correctly, that it was negotiating to reach an agreed amount of the compensation payable under the Act for the acquisition of part or whole of the plaintiffs’ land. This approach was also adopted in circumstances where the differences between the respective valuations was so great that, for Transport to have significantly moved in the direction of the plaintiffs offers, it would have in effect been completely rejecting Mr Maher’s advice.

109. However, the plaintiffs’ contention that Transport did not comply with s 10A(2) was not confined to a complaint about it dictating the outcome to the plaintiffs or confining itself by strictly relying on Mr Maher’s advice. Instead, Mr Prince SC pointed to various aspects of its conduct over the entirety of the period that led up to the issue of the PAN which when considered individually or in combination are said to warrant a conclusion that it did not make a “genuine attempt” to acquire the plaintiffs’ land by agreement.

110. One of those matters was Transport’s delay in making an offer until March 2020. I have set out the course of events from August 2019 to March 2020. As noted, Ms Enwiya explained that in December 2019 she received a direction to hold off making offers until high level planning advice had been received. The mere fact that Transport waited on making an offer pending a receipt of advice on a matter that could potentially affect property values is not indicative of an absence of bona fides. However, what is objectionable is the fact that there was a hold on offers and the reason for it was were not communicated to the plaintiffs. Nevertheless, given the balance of the matters I have considered in relation to Transport’s conduct, I am not satisfied that it did not make a genuine attempt.

111. Another aspect of the plaintiffs’ case was that there was not a genuine attempt to acquire the land by agreement concerned the conduct of Transport in offering a reduced amount in the second offer and its approach to remediation costs. Mr Prince SC pointed to the reduced valuation of the plaintiffs’ land reflected in the second offer. With considerable justification he also pointed to the somewhat arbitrary quantification of the amount of remediation costs as 30% of the estimated amount of the costs set out in the draft cost estimate received on 3 July 2020 ([65]). This estimate of the cost of the remediation works was maintained in the third offer and was only reduced to $355,610.00 on the receipt of a revised costing in April 2021 ([90]). The revised costing was based on the report of the detailed site investigation that was received in December 2020 which followed the exercise of compulsive powers to enter the plaintiffs’ land in August 2020 ([66] and [82]).

112. A consideration of the approach taken in the second and third offers in part depends on an assessment of Transport’s bona fides in seeking high level planning advice and then an update of valuations based on that advice. One of the criticisms of Transport in seeking advice about planning instruments which assumed that the M12 would be constructed was that it was inconsistent with the Act, a matter addressed below. In addition, there was something of a hint in the cross‑examination of Ms Enwiya that this was a cynical exercise undertaken with a view to lowering valuations across the board. If that was the suggestion, then I do not accept it. Transport undertakes its process of obtaining valuations in the knowledge that affected owners will obtain their own valuations and legal advice, steps that Ms Enwiya encouraged the plaintiffs to undertake. It also prepared valuations in the knowledge that, failing agreement, owners will have the opportunity for review by the Valuer General and then the Land and Environment Court all of whom can and will scrutinise the valuations that Transport relies on. As at the time of the second offer, the WSAP SEPP was in the process of coming into force something that must have been expected for some time. In those circumstances it would be surprising if Transport did not consider its effect on the value of affected properties. In this case, by 30 June 2020 Mr Maher formed the view that the implementation of the WSAP SEPP was likely to decrease the value of the plaintiff’s land as it was not an “initial site”. Given the statutory limitations on Transport in conducting negotiations, it was well open to Transport to conclude that it should advise the plaintiffs of its revised position on the value of their land as soon as possible.

113. The same observations apply to remediation costs. The first offer was conditional on certification of there being no remediation costs or, if there were, the amount of those costs would be deducted from the purchase price (see [48] to [49]). This created significant uncertainty so far as the actual purchase price being offered. By the time the second offer was made in August 2020, Ms Enwiya had been requesting access to the plaintiffs’ land since late January 2020 for a site investigation but had been refused (see [43] to [44]). In the face of that, she had commissioned and then received a preliminary site investigation report prepared without access to the land and then a draft cost estimate prepared on the same basis ([57]). In those circumstances, apprising the plaintiffs of the revised value and their estimate of remediation costs was a course that was indicative of making a genuine attempt bearing in mind that Transport was in the process of negotiating over the compensation payable under the Act.

114. As noted above, one of the plaintiffs’ criticisms was that Transport did not exercise its statutory power to enter the plaintiffs’ land earlier in order to obtain a better estimate of the likely remediation costs. Ms Enwiya’s response to that suggestion is set out above ([65]). I accept that answer and I accept that is consistent with Transport making a genuine attempt to acquire the plaintiffs’ land agreement.

115. One of the most significant complaints concerned the failure of Transport to engage with the plaintiffs’ valuer in respect of the sale of 4 Turnbull Street and proceed to issue the PAN. [135] I have partly addressed that above. I am satisfied that at the meeting on 13 November 2020 Mr McClintock accepted that the sale was significant and, in the days, following the meeting on 13 November 2020 Mr Maher considered it closely. Beyond that, Mr Prince SC’s submissions on this topic appeared to assume that Mr Maher and Transport accepted that the sale demonstrated a significant move in the market. [136] I do not agree. The outcome of Mr Maher’s inquiries was that the sale of 4 Turnbull Avenue was potentially anomalous. He adhered to his assessment of the market and maintained his strong belief that Mr Romeo’s valuation was wrong. The fact that Mr Maher might be either wrong or rigid or both does not mean that Transport was not making a genuine attempt to acquire the plaintiffs’ land by agreement. As noted, after the initial intense scrutiny of the sale of 4 Turnbull Avenue in November 2020 Transport did not engage with the plaintiffs about its ramifications until after the PAN was issued. That was far from optimal, but it does not demonstrate it did not make a genuine attempt.

     135. Tr 23/07/2021 p 119.34

     136. Tr 23/07/2021 p 118.31

116. A further aspect of the plaintiff’s submissions concerned Transport’s alleged failure to disclose various materials to the plaintiffs. This included the material said to support the estimate of the remediation costs. [137] This was not disclosed, but it was also not requested (Desane at [205]; see [21]). Ms Enwiya made it clear that Transport needed access to the plaintiffs’ land to make a proper assessment. Otherwise, Ms Enwiya did not provide Mr Maher’s valuation until it became apparent that there was a substantial dispute between the valuers (see [67]). Thereafter she provided the plaintiffs with Mr Maher’s robust criticism of Mr Romeo’s report and facilitated meetings on 13 November 2021 and 25 March 2021. Generally, from mid-2020 the plaintiffs were legally represented and had access to a valuer. There is no instance of them seeking information from Transport about the reasoning or rationale for Transport’s offers that was refused.

     137. Tr 23/07/2021 p 123.15.

117. In cross‑examination it was suggested to Ms Enwiya that she should have provided the plaintiffs with Mr Maher’s valuation addendum dated 7 May 2020 which was in substance the same as his original assessment as at 22 November 2019. This complaint was repeated in submissions. [138] The effect of her evidence, which I accept, was that by 11 June 2020 Mr Maher was asked to review his opinion in light of the high-level planning advice that had been received by that time. [139]

     138. Tr 23/07/2021 p 123.32.

     139. Tr 23/07/2021 p 83.

118. A related contention was that Transport should have disclosed to the plaintiffs the “budget estimate” for the acquisition of the plaintiffs’ land and an associated contingency. [140] Ms Enwiya explained that there was originally a budget estimate for acquisitions for the land in the M12 corridor that was “based on previous cost estimates that were completed for [other] projects”. [141] She explained that “those estimates are always done prior to commencement of acquisitions” and that after that “we get an understanding of rates or potential land values”. [142] Ms Enwiya did not know the figure for the budget estimate for the acquisition of the plaintiffs’ land. However, Ms Tronson advised the Court that “that the budget forecast in 2019 was $4,149,500 for the partial acquisition including all heads of compensation pursuant to s 55 of the Act”. [143] Ms Enwiya said that the budget estimates allow for a contingency in the case of an increase in market value of the order of 25%. [144]

     140. Tr 23/07/2021 p 123.40; 138.35.

     141. Tr 23/07/2021 p 55.27.

     142. Tr 23/07/2021 p 55.20.

     143. Tr 23/07/2021 p 124.13.

     144. Tr 23/07/2021 p 68.32.

119. The budget estimated amount of $4,149,500.00 for a partial acquisition exceeds the amount offered to the plaintiffs for a partial acquisition by Transport. Nevertheless, I do not accept that a failure to advise the plaintiffs of the budget estimate or the “contingency” was indicative of an absence of good faith. As Ms Enwiya said, it was a preliminary estimate prepared for the budget process which was prepared prior to the commencement of Transport’s analysis. Whatever its flaws, Transport’s analysis was directed to an assessment of the heads of compensation set out in s 55 of the Act. There is nothing to suggest that the budget estimate was the result of, or subject to anything like, the same analysis.

120. As noted, it was contended that, to the extent that Transport sought and obtained high level planning advice in relation to planning instruments that assumed the M12 was built, that was inconsistent with so much of s 56 that precludes consideration of any increase in the value of the plaintiffs’ land “caused by the carrying out of, or the proposal to carry out, the public purpose” for which the land is to be acquired” (ie s 56(1)(a)). [145] It was submitted that in providing valuations based on those instruments that was inconsistent with Transport making a genuine attempt to acquire land by agreement. I do not accept that submission. Bearing in mind that Transport proposes to pursue a partial acquisition, the construction of the M12 is undoubtedly relevant to an assessment of the effect of severance (s 55(c)) and any increase or decrease in the value of the plaintiffs’ land which is severed from the acquired land by reason of the carrying out of the construction of the M12 (s 55(f)). So far as s 56 is concerned, Ms Tronson contended that the concept of the “proposal” is to be construed narrowly such that one separates the construction of the M12 from the planning changes made by the WSAP SEPP (citing Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 at [54] to [55]). It is unnecessary to decide whether that submission should be accepted other than to note that it has considerable force. It suffices to state that Transport’s consideration of planning instruments that assumed the M12 was constructed was not indicative of a lack of good faith on its part.

     145. Tr 23/07/2021 p 114.27.

104. Finally, I note that, in oral submissions, Mr Prince SC pointed to what appeared to be different treatment afforded by Mr Maher in his assessment of the value of flood prone areas on the plaintiffs’ land compared to a neighbour’s land. With the former, he proposed the adoption of a rate of $50/m² whereas it seems that with the latter he did not differentiate between flood prone land and areas unaffected by flood. [146] Merely because Mr Maher may have adopted a different approach to aspects of his valuation of the two properties does not indicate a lack of bona fides on the part of Transport. This difference was not taken up with Ms Enwiya in cross‑examination and it was not otherwise demonstrated that Transport was cognisant of this difference. The plaintiff’s written submissions also referred to a difference in approach taken by Transport with the plaintiffs’ compared to the neighbouring properties. [147] Other than the apparent difference in the rate proposed for a flood prone land, this was not developed in cross‑examination or oral submissions which occurred after documents concerning the neighbouring properties were made available to the plaintiffs.

     146. Tr 23/07/2021 p 122.47.

     147. Plaintiff’s Written Submissions at [33] to [37]

Conclusion on s 10A(2)

122. At least viewed with the benefit of hindsight, there is scope for criticism of Transport. The delay in making an offer to the plaintiff until March 2020 would have undoubtedly caused distress. It is one matter to delay taking steps to make an offer because advice was being sought on planning matters that could affect valuations. However, it is another matter to not advise affected property owners of the delay and its reason. The substantial revision of the first offer downwards as reflected in the second offer because of the effect of rezoning and the quantification of remediation costs could have been addressed better, however it was justifiable for Transport to advise the plaintiffs that its attitude to the true value of the land had changed. The remediation costs were quantified at 30% of a desktop assessment without any real justification. That said, to that time the difficulty in their quantification was substantially a consequence of the plaintiffs’ refusal to allow access to their land.

123. The PAN was ultimately issued without any real engagement by Transport and Mr Maher with the plaintiffs about the value of 4 Turnbull Street, a matter that they had said they would address. The reason for the timing of the PAN is addressed above. However, in the end result some tardiness, some missteps and a lack of explanation for some aspects of its conduct does not necessarily mean a genuine attempt was not made. Transport had at times worked hard to engage with the plaintiffs and encouraged them to engage with it. By the latter part of 2020 it was clear that the valuers who both sides relied on, and were entitled to rely on, were dramatically far apart. In those circumstances, for Transport to issue the PAN to meet its infrastructure timeline in the knowledge that they could and would further engage with the plaintiffs over the differences was not indicative of the absence of a genuine attempt.

124. Over a period of approximately 18-months, Transport took detailed external expert advice and made offers of compensation to the plaintiff in an endeavour to secure agreement to acquire all or part of the plaintiffs’ land. Their processes, timeliness and communications were not perfect but considered individually or collectively they did not demonstrate a lack of bona fides either. In the end result, the PAN was issued in circumstances where the parties were so far apart that the prospect of agreement was extremely remote.

125. For these reasons I did not accept the plaintiffs’ case that s 10A(2) was not satisfied prior to the issue of the PAN.

Costs

126. At the time that I ordered that the proceedings be dismissed, I reserved on costs. I will direct the parties confer on costs but failing agreement I will make orders for the exchange of competing orders and submissions. I will deal with costs on the papers without a further oral hearing.

Non-Publication Order

127. At the commencement of the resumed hearing on 23 July 2021, Transport made an oral application for an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication of evidence concerning the rates per square metre identified by Transport in respect of any land, the amounts offered to the plaintiffs to acquire their land, the amounts offered in respect of the adjoining land, the amounts the owners of the adjoining land agreed to accept and the “acquisition submissions” made in respect of the acquisition of the adjoining land. The basis for the application was described as the “public interest in preserving the confidentiality of these negotiations until all negotiations [for the acquisition of property for the M12] are complete”. [148]

     148. Tr 23/07/2021 p 45.17

128. Given that the basis for the order sought was at least arguable and the urgency associated with the proceedings, I made an interim non‑publication order over evidence concerning those topics. The interim order has been extended to 4pm on 29 July 2021.

129. In the meantime, the parties filed submissions on whether a final order should be made. Transport accepts the strictness of the test for making such an order specifically that it must be “necessary” to make such an order (Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]) and the public interest must significantly outweigh the public interest in disclosure (Cannon v Griffiths (No 2) [2015] NSWSC 1329 at [11]).

130. The basis for the application was said to be that other negotiations might be compromised by the disclosure of the offers made and the rates per square metre attributed to the property of the plaintiffs and others (relying on Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 134). In support of the application, Transport relied on affidavit sworn by Bernard Joseph Mills dated 25 July 2021. In that affidavit he asserted as follows:

“lt is Transport's general practice to keep all pre-acquisition negotiations with the owners of an interest in land under the LAJTC Act confidential.

lt is essential that Transport can maintain appropriate confidentiality of highly specific and detailed information relating to its negotiations with individual land owners.

The disclosure of rates per m² and acquisition submissions would reveal the basis for Transport's offers. The disclosure of that basis and the amount of compensation offered and/or agreed, would compromise Transport's negotiating position and risks other land owners, whose properties are also proposed for acquisition, using that information to seek to obtain similar or higher rates which may not be appropriate to the specific features and characteristics of their property. Every property has its own unique characteristics which affect its value and the compensation payable.

ln my experience, where other land owners have obtained that information, it has been used to seek similar or higher compensation from Transport in circumstances where this is not warranted on the basis of their particular property's characteristics.

When this occurs, it can compromise negotiations making it more difficult for the parties to reach agreement on the compensation payable.”

131. The plaintiffs filed submissions opposing the orders sought. They made the powerful point that there is no evidence that any obligation of confidence in relation to pre-acquisition offers was imposed on the counter parties; ie if the pre-acquisition negotiations are meant to be confidential then no one told them. It was also submitted that it was in the public interest for a public authority to be “open and transparent in its dealings with landholders under the Act”.

132. In so far as the application concerns the offers made to the plaintiffs and the rates nominated in relation to the plaintiffs’ land then it must be refused for two reasons. The first reason is that identified by the plaintiff, namely the absence of any evidence that any obligation of confidence was imposed on the plaintiffs. At all times the plaintiffs were completely free to disseminate to others the offers they received and what Transport disclosed to them about how they were formulated. To impose an obligation of non-disclosure on the plaintiffs now would not only prejudice open justice it would effect a serious alteration of the plaintiffs’ rights and secure to Transport a bargaining position vis‑a‑vis other landowners to which it is not entitled. Otherwise, I note that if there had been an attempt to unilaterally impose such an obligation on the plaintiffs (or a landowner in similar position) then that would raise a serious question as to whether that was consistent with s 10A(2) of the Act especially given the constraints on the scope of the negotiations that I have identified above.

133. The second reason is that the material concerning the offers made to the plaintiffs and the rates applied to its land was set out in the affidavits that were read in open Court on the first day of the hearing on 13 July 2021. At that time they were effectively tendered in open Court. To make a non-publication order in respect of material that was tendered on that basis almost two weeks previous would be inconsistent with the principles of open justice.

134. In relation to the material concerning the neighbouring land, different considerations apply. While there is no evidence that any obligation of confidence was imposed on the counter parties, there is nothing to suggest that they are content for that material to be in the public domain. The material concerning those properties was obtained under compulsion from Transport and it barely featured in the ultimate complaints that were made by the plaintiffs. None of the price sensitive material concerning those properties is disclosed in this judgment.

135. If the orders sought are made that will not restrict the owners of the neighbouring land from disseminating information they received in the course of their dealing with Transport. However, it will preclude the dissemination to third parties of price sensitive information obtained under compulsion in these proceedings. There is a public interest in these proceedings not being a vehicle for the obtaining of price sensitive material in that way. Given that knowledge of that material will add nothing to an understanding of the issues in the proceedings I am satisfied that it is necessary in the public interest for an order to be made concerning the neighbouring land and that public interest significantly outweighs the public interest in open justice.

136. The first of the proposed non‑publication orders seeks to prevent the disclosure of any evidence concerning the “rate per square of any property”. As I understand it, this order seeks to prevent the publication of the evidence concerning the rates per square metre that were the basis for any offers made for the plaintiffs’ land and the neighbouring land. It follows from the above that that order will not apply to the plaintiffs’ land but will apply to the neighbouring land. By its terms, that order would also apply to evidence concerning the analysis undertaken by Mr Maher of comparable sales of other properties. As noted, on 16 November 2021 Mr Maher sent Transport an email containing an analysis of 4 sales including 4 Turnbull Avenue (see [79]). However at the meeting on 25 March 2021 he provided Mr Shumsky and Mr Romeo with an updated analysis of 17 sales that included the 4 sales referred to in his email dated 16 November 2021 (see [88]). There is no evidence that it was requested they keep it confidential. Leaving aside the fact that rates per square metre figures for comparable sales are derived from publicly available information, no proper basis has been shown for making a non‑publication order in respect of any property other than the neighbouring land.

137. One further matter that was debated between the parties concerned the duration of the order. Mr Mills’ affidavit reiterates that gazettal of the acquisition of the plaintiffs’ land is due to occur shortly but also describes the potential for that to be delayed including by reason of the unavailability of the Executive Council and other matters. He anticipates the last of the acquisitions for the M12 project being gazetted by 30 June 2022. Allowing for contingencies and ongoing negotiations until the time of the Valuer General’s determination, the order is sought until 30 November 2022. The plaintiffs’ submission criticised the contents of his affidavit as inconsistent with the basis on which Transport sought expedition. That may be so and it is a matter that the plaintiffs can reagitate in relation to costs if they wish to. However, at this point and bearing in mind that the order will only concern material obtained under compulsion in relation to the neighbouring land, it will operate until 30 November 2022.

Orders

138. The proceedings have already been dismissed. I make the following further orders:

1. Direct the parties to confer within 7 days in relation to the appropriate order as to costs;

2. In the event that agreement is reached on the appropriate order, the parties to file the proposed order on or before 7 August 2021;

3. In the event that no agreement is reached on the appropriate order as to costs, each party to file and serve:

1. their proposed order as to costs and any submissions in support of the proposed order that are not to exceed 4 pages on or before 12 August 2021;

2. any submissions in reply that are not exceed 4 pages on or before 19 August 2021;

4. Pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and on the basis set out in s 8(1)(e) thereof, the Court orders that the following information contained within the evidence in these proceedings is not to be published or disclosed until 30 November 2022:

1. the rate per square metre referrable to any offer made or analysis concerning:

(A) 316 Clifton Avenue, Kemps Creek, New South Wales; and

(B) 373-381 Clifton Avenue, Kemps Creek, New South Wales;

2. the amounts of any offers, and any amounts agreed between Transport for NSW and any landowner, for the proposed acquisition or acquisition of the following properties pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW):

(A) 316 Clifton Avenue, Kemps Creek, New South Wales; and

(B) 373-381 Clifton Avenue, Kemps Creek, New South Wales;

3. the acquisition submission of Transport for NSW in respect of the property at 316 Clifton Avenue, Kemps Creek, New South Wales dated 13 July 2021; and

4. the acquisition submission of Transport for NSW in respect of the property at 373-381 Clifton Avenue, Kemps Creek, New South Wales dated 1 July 2021.

5. Order 4 is to operate throughout the Commonwealth.

**********

Endnotes

Amendments

17 September 2021 - [127], first sentence - the date 23 March 2021, was corrected to read 23 July 2021.

Decision last updated: 17 September 2021