Graeme Arthur Somers v Transport for NSW

[2023] NSWLEC 1050

Land and Environment Court

New South Wales

Medium Neutral Citation:

Graeme Arthur Somers v Transport for NSW [2023] NSWLEC 1050

Hearing dates:

Conciliation conference on 18 March 2022, 12 August 2022, 2 September 2022, 19 September 2022, 4 October 2022, 8 November 2022, 22 November 2022 and 6 December 2022

Date of orders:

08 February 2023

Decision date:

08 February 2023

Jurisdiction:

Class 3

Before:

Davidson AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Compensation is determined in the sum of $1,363,378.73 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of land known as Lots 20, 21, 22, 23, and 27 in Deposited Plan 1257827 and Lot 63 Deposited Plan 1267682, exclusive of any existing easements, being parts of the land in Certificates of Title 387/750179, Auto Consol 7715-14, 2/1129859, 1/1129859, 3/606056 and 2/606056.

(3) Within 28 days of the later of either the date the Court issues sealed Consent Judgement Orders or the date the Respondent receives a duly executed deed of release and indemnity, direction as to payment form, claim for compensation form and an 88E(3) restriction on the use of land instrument, the Respondent must pay to the Applicants the amount of compensation referred to in order (2), less any advance payment already made, plus interest calculated in accordance with sections 49 and 50 of the Just Terms Act.

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

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 10A,11, 12, 13, 41, 54, 55, 56, 58, 59, 66, 68

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

Category:

Principal judgment

Parties:

Graeme Arthur Somers (Applicant 1)
Margaret Leigh Somers (Applicant 2)
Ross James Armstrong (Applicant 3)
Marcelle Dawn Armstrong (Applicant 4)
Transport for NSW (Respondent)

Representation:

Counsel:
M Astill (Applicant)
A Pearman (Respondent)

Solicitors:
Burke and Baker Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/9878

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant has lodged an appeal objecting to the amount of compensation payable under the Valuer General’s Determination of Compensation dated 19 November 2021, and subsequent offer of compensation made by the respondent on the 23 November 2021, in respect of the compulsory acquisition by the Respondent of land known as Lots 20, 21, 22, 23, and 27 in Deposited Plan 1257827 and Lot 63 Deposited Plan 1267682, exclusive of any existing easements, being parts of the land in Certificates of Title 387/750179, Auto Consol 7715-14, 2/1129859, 1/1129859, 3/606056 and 2/606056 (the Land):

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

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

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

2. The Court arranged a conciliation conference under s 34(1) of LEC Act between the parties, which was held on 18 March 2022, 12 August 2022, 2 September 2022, 19 September 2022, 4 October 2022, 8 November 2022, 22 November 2022, and 6 December 2022. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal and awarding compensation in full and final settlement of the Applicant’s claim pursuant to ss 54, 55, 56, 58, 59 and 68 of the Just Terms Act for the acquisition of the Land.

4. The parties have reached the following agreement: the sum of $1,363,378.73 to be paid by the Respondent to the Applicant in full and final settlement of the Applicant’s claim under the Just Terms Act. The sum of $1,363,288.73 is the total of the following amounts pursuant to the relevant sections of the Just Terms Act set out below in the terms of agreement:

“(a) Market value determined in the sum of $275,000, pursuant to section 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act), for the acquisition of Lots 20, 21, 22, 23, and 27 in Deposited Plan 1257827 and Lot 63 Deposited Plan 1267682 being parts of the land in Certificates of Title 387/750179, Auto Consol 7715-14, 2/1129859, 1/1129859, 3/606056 and 2/606056.

(b) Severance determined in the sum of $100,000 pursuant to section 55(c) of the Just Terms Act;

(c) Disturbance costs in the sum of $126,378.73 (exclusive of GST), pursuant to section 55(d) of the Just Terms Act, broken down as follows:

(i) Legal costs determined in the sum of $112,831.09 (exclusive of GST);

(ii) Valuation costs determined in the sum of $9,000.00 (exclusive of GST);

(iii) Noise consultant costs determined in the amount of $1,593.75 (exclusive of GST); and

(iv) Conveyancing costs determined in the amount of $2,953.89 (exclusive of GST)

(d) Other financial costs determined in the amount of $567,000.00, pursuant to section 59(1)(f) of the Just Terms Act.

(e) Injurious affectation determined in the amount of $295,000.00 pursuant to s 55(f) of the Just Terms Act.

(f) The Respondent will complete and finalise the list of Property Adjustment Works detailed at Annexure A of this agreement

(g) Within 28 days of the later of either the date the Court issues sealed Consent Judgement Orders or the date the Respondent receives a duly executed deed of release and indemnity, direction as to payment form, claim for compensation form and an 88E(3) restriction on the use of land instrument, the Respondent must pay to the Applicants the amount of compensation referred to in paragraphs (2)(a)-(d), less any advance payment already made, plus interest calculated in accordance with sections 49 and 50 of the Just Terms Act.

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

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

1. The Respondent commenced negotiations with the Applicant in accordance with the requirements of s 10A (4) of the Just Terms Act on or about 4 September 2019.

2. The Respondent issued a Proposed Acquisition Notice (PAN) pursuant to ss 11 and 12 of the Just Terms Act on 4 December 2020.

3. The PAN was served on the Applicants, as owners of the fee simple.

4. The Land was acquired by the Respondent by publication in the NSW Government Gazette on 19 March 2021, being 104 days after the issue of the PAN notice, satisfying the requirements under s 13 of the Just Terms Act, and in accordance with s 19 of the Just Terms Act.

5. The Valuer General carried out an independent valuation of the Land pursuant to s 41(2) and (3) of the Just Terms Act dated 19 November 2021, and a subsequent offer of compensation was made by the respondent dated 23 November 2021.

6. These proceedings were commenced on 12 January 2022, within 90 days after the Applicant received the Determination of Compensation, in accordance with the time provision in s 66 of the Just Terms Act.

6. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As set out above, I am satisfied as to how the jurisdictional prerequisites have been satisfied.

7. The court notes:

1. The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

2. The Respondent will complete and finalise the list of Property Adjustment Works detailed at Annexure A of this agreement.

8. The Court orders:

1. The appeal is upheld.

2. Compensation is determined in the sum of $1,363,378.73 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition of land known as Lots 20, 21, 22, 23, and 27 in Deposited Plan 1257827 and Lot 63 Deposited Plan 1267682, exclusive of any existing easements, being parts of the land in Certificates of Title 387/750179, Auto Consol 7715-14, 2/1129859, 1/1129859, 3/606056 and 2/606056.

3. Within 28 days of the later of either the date the Court issues sealed Consent Judgement Orders or the date the Respondent receives a duly executed deed of release and indemnity, direction as to payment form, claim for compensation form and an 88E(3) restriction on the use of land instrument, the Respondent must pay to the Applicants the amount of compensation referred to in order (2), less any advance payment already made, plus interest calculated in accordance with sections 49 and 50 of the Just Terms Act.

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

M Davidson

Acting Commissioner of the Court

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Decision last updated: 08 February 2023