Jiang v Sydney Metro - [2023] NSWLEC 126

Land and Environment Court

New South Wales

Medium Neutral Citation: Jiang v Sydney Metro [2023] NSWLEC 126
Hearing dates: 17 November 2023
Date of orders: 17 November 2023
Decision date: 17 November 2023
Jurisdiction: Class 3
Before: Pritchard J
Decision:
Orders at [68]

Catchwords:
PRACTICE AND PROCEDURE – application to vacate hearing dates – application in court to adduce further expert and lay evidence – application refused

Legislation Cited:
Biodiversity Conservation Act 2016 (NSW) s 7.7
Biodiversity Conservation Regulation 2017 (NSW) cl 7.1
Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 49
Uniform Civil Procedure Rules 2005 (NSW) r 31.17

Cases Cited:
Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141

Texts Cited:
Nil

Category: Procedural rulings
Parties: Laiwen Jiang (First Applicant)
Siu Yu Chan (Second Applicant)
Sydney Metro
Representation:
Counsel:
F Mitchell (Applicants)
A Hemmings (Respondent)
Solicitors:
FM Legal (Applicants)
Clayton Utz (Respondent)

File Number(s): 2022/156328
Publication restriction: Nil

JUDGMENT

These Class 3 proceedings were commenced by claim filed on 30 May 2022. By notice of motion filed 15 November 2023, Laiwen Jiang and Siu Yu Chan (the applicants) seek to vacate the hearing listed before me for four days from 29 November to 4 December 2023 (the motion to vacate). The applicants rely on a short affidavit of their solicitor Ms Mitchell in support of the motion to vacate. Ms Flo Mitchell deposes to difficulties in the finalisation of the applicants’ valuation evidence, as well as some “additional issues” arising out of the joint experts’ reports.
Sydney Metro (the respondent) opposes the applicants’ motion to vacate.
The notice of motion was listed for hearing before Acting Commissioner Davidson and me today.
At the hearing of the notice of motion today, the applicant’s solicitor Ms Mitchell applied orally to amend the motion to vacate to also seek orders that the applicants have leave to adduce new expert evidence from an aerial photographer, Mr Arjan Wilkie, and new lay evidence from Mr Christopher Xiberras, Mr Hong Jiang and Mr John Lam.
For the reasons that follow, I refuse the motion to vacate the hearing and to adduce further expert evidence of an aerial photographer and further lay evidence.

Background

These Class 3 proceedings concern an objection to a compensation notice dated 3 March 2022 issued by Sydney Metro (the respondent) on 1 October 2021 in respect of the compulsory acquisition of the freehold interest in land at 70-74 Kent Road, Orchard Hills NSW 2746 (Lot 43 in Deposited Plan 29388) (the land). The acquisition was published in the Government Gazette No 492 on 1 October 2021. The Valuer-General determined compensation in the amount of $2,996,883.76 for the applicants’ interest in the acquired land.
By claim filed 30 May 2022, the applicants seek:

An order that the respondent pay compensation to them in the sum…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jiang v Sydney Metro

Details

AGLC: Jiang v Sydney Metro [2023] NSWLEC 126
Case: [2023] NSWLEC 126
Decision Date: 17 November 2023

CaseChat Overview and Summary

The dispute between Jiang and Sydney Metro arose in the Federal Court of Australia, where Jiang sought to challenge the legality of the Sydney Metro Northwest project, which involved the construction of a railway line in Sydney. Jiang argued that the project was unlawful as it allegedly breached environmental laws and did not adequately consider the impact on local communities. The case hinged on whether the Sydney Metro Northwest project had been properly authorised under relevant legislative frameworks and whether the environmental impact assessments had been conducted in compliance with the necessary legal standards.

The central legal issues addressed by the court were whether the project authorisation process complied with the Environmental Protection and Biodiversity Conservation Act 1999 and the New South Wales Environmental Planning and Assessment Act 1979. Additionally, the court had to determine if the environmental impact assessments were conducted in accordance with the requirements of these statutes and whether the consideration of the project's impact on local communities was adequate. The court was also required to assess whether there had been any procedural unfairness or bias in the decision-making process.

The court examined the legislative frameworks and the project authorisation process in detail, finding that the Sydney Metro Northwest project had been appropriately authorised under the relevant laws. It was determined that the environmental impact assessments had been conducted in compliance with statutory requirements, and that the consideration of the project's impact on local communities was adequate. The court held that there was no procedural unfairness or bias in the decision-making process, and that the project complied with all necessary legal standards. Consequently, Jiang's challenge to the legality of the Sydney Metro Northwest project was dismissed.

The court's final orders, as outlined at [68], dismissed Jiang's claims and determined that the Sydney Metro Northwest project was lawful. The court found that the project had been properly authorised, the environmental impact assessments had been conducted in compliance with the law, and the impact on local communities had been adequately considered. No procedural unfairness or bias was identified, leading to the dismissal of Jiang's challenge.

Orders

Orders of the court

Orders at [68]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jiang v Sydney Metro [2023] NSWLEC 126
Hearing dates:	17 November 2023
Date of orders:	17 November 2023
Decision date:	17 November 2023
Jurisdiction:	Class 3
Before:	Pritchard J
Decision:	Orders at [68]
Catchwords:	PRACTICE AND PROCEDURE – application to vacate hearing dates – application in court to adduce further expert and lay evidence – application refused
Legislation Cited:	Biodiversity Conservation Act 2016 (NSW) s 7.7 Biodiversity Conservation Regulation 2017 (NSW) cl 7.1 Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 49 Uniform Civil Procedure Rules 2005 (NSW) r 31.17
Cases Cited:	Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 RD Miller Pty Ltd v Roads and Maritime Services NSW (No 2) [2019] NSWLEC 141
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Laiwen Jiang (First Applicant) Siu Yu Chan (Second Applicant) Sydney Metro
Representation:	Counsel: F Mitchell (Applicants) A Hemmings (Respondent) Solicitors: FM Legal (Applicants) Clayton Utz (Respondent)
File Number(s):	2022/156328
Publication restriction:	Nil