Evans v Transport for New South Wales

[2025] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation:

Evans v Transport for New South Wales [2025] NSWLEC 1174

Hearing dates:

Conciliation conference on 26, 28 February and 3 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Jurisdiction:

Class 3

Before:

Targett C

Decision:

The Court orders that:

(1) Compensation is determined in the sum of $3,300,000 pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of:

(a) Lots 30 and 41 in Deposited Plan 1286426, being parts of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro; and

(b) Lot 32 in Deposited Plan 1286426, being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro; and

(c) A lease for a specified period of four years, as described in Memorandum AQ120616 recorded at NSW Land Registry Services of Lots A and B in TfNSW Property Lease Sketch 2081 – CA being part of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro; and

(d) A lease for a specified period of four years, as described in Memorandum AQ120616 recorded at NSW Land Registry Services of Lot C in TfNSW Property Lease Sketch 2081 – CA being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro.

(2) The respondent is to pay the applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with sections 49 and 50 of the Act.

(3) Within 28 days of the later of:

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

(b) the date on which the respondent receives a duly executed deed of release and indemnity, direction as to payment form and an executed Property Adjustment Plan, Rev 00, dated 24 October 2023 (PAP) from the applicants,

the respondent is to pay the applicants the amount of compensation referred to in Order 2.

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 11, 12, 13, 19, 47, 49, 50, 55, 66

Land and Environment Court Act 1979, ss 19, 34

Roads Act 1993

Category:

Principal judgment

Parties:

Peter James Evans (First Applicant)
Suzanne Eileen Evans (Second Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
J Steele SC (Respondent)

Solicitors:
Newhouse and Arnold Solicitors (Applicant)
Hunt and Hunt (Respondent)

File Number(s):

2023/341232

Publication restriction:

No

JUDGMENT

1. These Class 3 proceedings comprise an objection under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) by the applicants to an offer of compensation by the respondent following the compulsory acquisition by the respondent of:

1. Lots 30 and 41 in Deposited Plan 1286426, being parts of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro;

2. Lot 32 in Deposited Plan 1286426, being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro;

3. A lease for a specified period of four years, as described in Memorandum AQ120616 recorded at NSW Land Registry Services of:

1. Lots A and B in TfNSW Property Lease Sketch 2081 – CA, being parts of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro; and

2. Lot C in TfNSW Property Lease Sketch 2081 – CA being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro,

(collectively, the Land).

2. The Land was compulsorily acquired by the respondent on 26 May 2023 under the provisions of the Just Terms Act for the purposes of the Roads Act 1993 to facilitate the extension of the M1 Pacific Motorway to Raymond Terrace.

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

4. The Court arranged a s 34(1) conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 26 and 28 February and 3 March 2025. I presided over the conciliation conference.

s 34 Agreement

5. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and provided a signed s34 agreement. The decision involved upholding the appeal by the applicants and granting compensation as set out in the Orders.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

Jurisdictional considerations

7. Relevant to the jurisdictional prerequisites and considerations that must be satisfied in this matter are the following:

1. The respondent issued a Proposed Acquisition Notice to the applicants pursuant to ss 11 and 12 of the Just Terms Act on 20 October 2022.

2. The applicants are the registered proprietors of the Land.

3. The Land was acquired by the respondent by publication in the NSW Government Gazette on 26 May 2023, satisfying the requirements under s 13 of the Just Terms Act and in accordance with s 19 of the Just Terms Act.

4. The Valuer General issued a determination of compensation in respect of the respondent’s acquisition of the applicants’ freehold interest in accordance with s 47 of the Just Terms Act on 5 September 2023 (Determination of Compensation) and a subsequent offer of compensation was made by the respondent on the same date.

5. These proceedings were commenced on 27 October 2023, being within 90 days after the applicants received the Determination of Compensation, in accordance with the time provision in s 66 of the Just Terms Act.

8. The jurisdictional prerequisites have been satisfied as set out above.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Conclusion and Orders

11. The Court notes that:

1. The respondent has agreed to pay the applicants’ reasonable costs of the Proceedings as agreed or assessed. There is to be no interest payable on costs.

2. The applicants have accepted the property adjustment works as depicted in the Property Adjustment Plan, Rev 00, dated 24 October 2023.

3. The parties have entered into a Deed of Access regarding vehicular access from the residue land, being Lots 14 and 15 in Deposited Plan 1286426 and Lot 24 in Deposited Plan 735235, to the New England Highway.

12. The Court orders that:

1. Compensation is determined in the sum of $3,300,000 pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of:

1. Lots 30 and 41 in Deposited Plan 1286426, being parts of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro; and

2. Lot 32 in Deposited Plan 1286426, being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro; and

3. A lease for a specified period of four years, as described in Memorandum AQ120616 recorded at NSW Land Registry Services of Lots A and B in TfNSW Property Lease Sketch 2081 – CA being part of the land in Certificate of Title 2/873320 and known as 51 New England Highway Black Hill and Tarro; and

4. A lease for a specified period of four years, as described in Memorandum AQ120616 recorded at NSW Land Registry Services of Lot C in TfNSW Property Lease Sketch 2081 – CA being part of the land in Certificate of Title 4/735235 and known as 51 New England Highway Black Hill and Tarro.

2. The respondent is to pay the applicants the amount of compensation referred to in Order 1, less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with sections 49 and 50 of the Act.

3. Within 28 days of the later of:

1. the date the Court issues its orders; and

2. the date on which the respondent receives a duly executed deed of release and indemnity, direction as to payment form and an executed Property Adjustment Plan, Rev 00, dated 24 October 2023 (PAP) from the applicants,

the respondent is to pay the applicants the amount of compensation referred to in Order 2.

N Targett

Commissioner of the Court

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