Fraser v Transport for NSW

[2019] NSWLEC 1257

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fraser v Transport for NSW [2019] NSWLEC 1257
Hearing dates:	Conciliation conference on 27 May 2019
Date of orders:	12 June 2019
Decision date:	12 June 2019
Jurisdiction:	Class 3
Before:	Parker AC
Decision:	The Court orders: (1)   The objection is upheld (2) Compensation to be determined in the sum of $2,590,093.43, pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Act), for the acquisition of Lot 3 in DP221501, being the whole of the property known as 5 Barney Street, North Parramatta. (3)   The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity to be issued by the Respondent (being generally in accordance with the deed enclosed with the statutory offer of compensation made on 21 November 2018) within 28 days of sealed orders being issued in these proceedings. (4)   Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction as to payment, the Respondent is to pay the compensation less any advanced compensation paid (Final Payment). (5)   The Respondent is to pay statutory interest in respect of the Final Payment calculated in accordance with the Act. (6) The Respondent has agreed to pay the Applicant’s reasonable costs of the proceedings on an ordinary basis, as agreed or assessed.
Catchwords:	COMPULSORY ACQUISITION – market value –disturbance – conciliation conference – agreement between the parties – orders
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979
Cases Cited:	Adams v Valuer General [2014] NSWLEC 1005
Category:	Principal judgment
Parties:	Ann Fraser (Applicant) Transport for NSW (Respondent)
Representation:	Counsel: B Tronson (Respondent)   Solicitors: A Perkins, Project Lawyers (Applicant)
File Number(s):	2018/374213
Publication restriction:	No

Judgment

1. COMMISSIONER: The proceedings comprise an objection to an offer of compensation in the amount of $2,454,913.00 arising from compulsory acquisition by the Respondent of 5 Barney Street, North Parramatta, being Lot 3 in Deposited Plan 221501, from the Applicant under s 66 of the Land Acquisition (Just Terms Compensation) Act1991 (the Act), with the Court required to determine the amount of compensation payable by the Respondent to the Applicant being within Class 3 of the Court’s jurisdiction.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Respondent agreeing to pay the Applicant the following amounts of compensation under the Act arising from the compulsory acquisition:

Compensation for market value (s 55(a)):	$2, 547,428.00
Compensation for loss attributable to disturbance:
• legal costs (s 59(1)(a))	$22,913.00
• valuation fees (s 59(1)(b))	$19,752.43

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 66(2) of the Act to hear and dispose of the Applicant’s claim for compensation.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The parties adopted a capitalisation of income approach to determine the value of an industrial investment property, with the assessment of rental value and capitalisation rate based on the accumulation, analysis, adjustment and application of comparable leasing and sales evidence in accordance with Adams v Valuer General [2014] NSWLEC 1005 and in a manner that could be adopted by the Court.

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

7. The Court orders:

1. The objection is upheld

2. Compensation to be determined in the sum of $2,590,093.43, pursuant to section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Act), for the acquisition of Lot 3 in DP221501, being the whole of the property known as 5 Barney Street, North Parramatta.

3. The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity to be issued by the Respondent (being generally in accordance with the deed enclosed with the statutory offer of compensation made on 21 November 2018) within 28 days of sealed orders being issued in these proceedings.

4. Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction as to payment, the Respondent is to pay the compensation less any advanced compensation paid (Final Payment).

5. The Respondent is to pay statutory interest in respect of the Final Payment calculated in accordance with the Act.

6. The Respondent has agreed to pay the Applicant’s reasonable costs of the proceedings on an ordinary basis, as agreed or assessed.

………………………..

D Parker

Acting Commissioner of the Court

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