Hatch v Transport for New South Wales

[2023] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hatch v Transport for New South Wales [2023] NSWLEC 1402

Hearing dates:

Conciliation conference on 20 February, 23 June and 5 July 2023

Date of orders:

27 July 2023

Decision date:

27 July 2023

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Compensation is determined in the sum of $1,080,000.00 pursuant to s 55 of the Land Acquisition (Just Terms Act) 1991 for the acquisition of Lot 1 in Deposited Plan 999044, known as 33 Waterworks Lane, Glenridding NSW 2330.

(3) The Respondent is to pay the Applicant the amount of compensation referred to in Order (2), less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Act) 1991, within 28 days of the later of:

(a) The date the Court issues its orders; or

(b) The date on which the Respondent receives a duly executed deed of release and indemnity, and a direction as to payment from the Applicant.

Catchwords:

COMPULSORY ACQUISITION – objection to amount of compensation offered – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991 ss 4, 10A 19, 20, 24, 25, 41, 49, 50, 55, 59, 66

Land and Environment Court Act 1979 ss 17, 24, 25,34

Singleton Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Rebecca Michelle Hatch (Applicant)
Transport for New South Wales (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
A Hemmings (Respondent)

Solicitors:
Newhouse & Arnold Solicitors (Applicant)
Hunt & Hunt Lawyers (Respondent)

File Number(s):

2022/329969

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 3 appeal against the Determination of Compensation by the Valuer General in relation to the compulsory acquisition by the Respondent of Lot 1 in Deposited Plan 999044 known as 33 Waterworks Lane, Glenridding (Land).

2. The Respondent commenced negotiations with the Applicant on or about 7 May 2021 in accordance with s 10A of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

3. The Respondent acquired the Land by publication in the NSW Government Gazette on 15 July 2022 (Acquisition Date) in accordance with ss 19 and 20 of the Just Terms Act.

4. At the Acquisition Date the Applicant was the registered proprietor of the Land, and she had an interest in the Land pursuant to s 4 of the Just Terms Act.

5. The Applicant is not registered for the Federal Government’s Goods and Services Tax.

6. The Land was acquired by the Respondent for the public purpose of constructing, operating and maintaining the New England Highway – Singleton Bypass project.

7. The Land is an irregular trapezoidal shaped level rural holding that is bound by the Hunter River to its west and Waterworks Lane along its north eastern boundary. The Land has an area of approximately 5.09 hectares.

8. The Land is located in the Local Government Area of Singleton in the Parish of Whittingham.

9. As at the Acquisition Date the Land was zoned RU1 Primary Production under the Singleton Environmental Plan 2013 (SLEP 2013).

10. Pursuant to s 41 (2) and (3) of the Just Terms Act the Valuer General prepared a valuation of the interest of the Applicant in the Land. The Valuer General’s Determination of Compensation dated 27 September 2022 was served on the Applicant, and he determined compensation pursuant to the provisions of the Just Terms Act as follows:

1. Market value (s 55 (a))         $ 755,000.00

2. Disturbance (s 55 (d))         $ 45,248.71

Total compensation:            $ 800,248.71

11. The Applicant filed her appeal in Court on 3 November 2022, in compliance with the time provision in s 66 (1) of the Just Terms Act.

12. In her Points of Claim filed on 28 December 2022 the Applicant claimed compensation pursuant to the Just Terms Act as follows:

1. Market value (ss 55 and 56)      $ 1,100,000.00

2. Special value (ss 55(b) and 57)      $ 172,000.00

3. Disturbance (ss 55 (d) and 59)      $ 201,969.04

Total compensation claimed:         $ 1,473,969.04

13. The appeal falls within Class 3 of the Court’s jurisdiction pursuant to s 17(e) of the Land and Environment Court Act 1979 (LEC Act).

14. The statutory power or function to be exercised in determining the proceedings is under ss 24, 25, and 34 of the LEC Act and s 66 (2) of the Just Terms Act.

15. The Court arranged a conciliation conference under s 34(1) of the LEC Act) between the parties, which was held on 20 February 2023, 23 June 2023 and 5 July 2023. I presided over the conciliation conference.

16. 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 determination of compensation under the Just Terms Act as follows:

1. Compensation is determined in the sum of $1,080,000.00 pursuant to s 55 of the Just Terms Act.

2. The Respondent is to pay the Applicant the amount of compensation referred to above at [16(1)], less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Just Terms Act, within 28 days of the later of:

1. The date the Court issues its Orders; or

2. The date on which the Respondent receives a duly executed deed of release and indemnity, and a direction as to payment from the Applicant.

3. On the terms, and in accordance with the notations set out below.

17. 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 ss 24, 25 of the LEC Act and s 66 (2) under the Just Terms Act to hear and dispose of the Applicant’s claim for compensation.

18. 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 Applicant has complied with the jurisdictional pre-requisites in both the Just Terms Act and the LEC Act, as set out above.

19. 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.

20. The Court notes:

1. Save for the costs agreed in Notation (4) below, the sum of $720,233.84 plus statutory interest has already been paid to the Applicant leaving $359,776.16 remainder (Remainder) of compensation to be paid.

2. Statutory interest pursuant to ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 is payable on the Remainder.

3. Rent at the rate of $100 per week for the period 3 December 2022 to 25 September (being the date vacant possession is to be given to the Respondent) is to be set off from the compensation payable in Orders (2) and (3).

4. The Respondent has agreed to pay the Applicant’s reasonable costs of these proceedings in the sum of $66,720.59. There is to be no interest payable on these costs.

21. The Court orders:

1. The appeal is upheld.

2. Compensation is determined in the sum of $1,080,000.00 pursuant to s 55 of the Land Acquisition (Just Terms Act) 1991 for the acquisition of Lot 1 in Deposited Plan 999044, known as 33 Waterworks Lane, Glenridding NSW 2330.

3. The Respondent is to pay the Applicant the amount of compensation referred to in Order (2), less the advance already paid, plus statutory interest on the balance of compensation calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Act) 1991, within 28 days of the later of:

1. The date the Court issues its orders; or

2. The date on which the Respondent receives a duly executed deed of release and indemnity, and a direction as to payment from the Applicant.

M Peatman

Acting Commissioner of the Court

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Decision last updated: 27 July 2023