Johal v Transport for New South Wales

[2023] NSWLEC 1308

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johal v Transport for New South Wales [2023] NSWLEC 1308

Hearing dates:

Conciliation conference on 19 May 2023

Date of orders:

20 June 2023

Decision date:

20 June 2023

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

(1) Compensation is determined in the sum of $185,000 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the acquisition of the Applicant’s leasehold interest in Lot 2 Deposited Plan 509010, also known as 171 West Korora Road, Coffs Harbour.

(2) Within 28 days of the final orders in these proceedings, the Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment form issued by the Respondent.

(3) Within 28 days of the Respondent receiving a duly completed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in order (1), less any advance payment already made, plus interest calculated in accordance with sections 49 and 50 of the Just Terms Act.

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, 19, 47, 49, 50, 55, 66

Land and Environment Court Act 1979, ss 19, 34

Roads Act 1993

Category:

Principal judgment

Parties:

Brian Kieran Singh Johal (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
P Tomasetti SC (Applicant)
J McKelvey (Respondent)

Solicitors:
Ristevski & Associates (Applicant)
Clayton Utz (Respondent)

File Number(s):

2022/376973

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: These Class 3 proceedings comprise an objection under s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) by Mr Brian Kieran Singh Johal (the Applicant) to an offer of compensation by Transport for NSW (Respondent) following the compulsory acquisition of the Applicant’s leasehold interest in Lot 2 in DP 509010 (also known as 171 West Korora Road, Coffs Harbour NSW (Land)) by the Respondent.

Background

2. The Respondent commenced negotiations with the Applicant in accordance with the requirements of s 10A(4) of the Just Terms Act on 5 February 2021.

3. The Land was compulsorily acquired by the Respondent on 4 March 2022 under the provisions of the Just Terms Act for the purposes of the Roads Act 1993 to facilitate the construction, operation and maintenance of the Coffs Harbour Bypass.

4. It was agreed between the parties that, as at the date of acquisition, the Applicant was tenant of the “residential area” of the Land pursuant to a written Residential Tenancy Agreement signed on 21 July 2021 (but which commenced on 1 April 2021).

5. On 15 September 2022, the Valuer General made the following determination of compensation in respect of the Respondent’s acquisition of the Applicant’s leasehold interest (amount excludes cents):

Heads of Compensation	Total
s 55(a) – Market value	$62,500
s 55(d) – Disturbance	$36,366
S 55(e) – Disadvantage resulting from relocation	$40,881
$139,747

6. On 19 September 2022, the Respondent made a statutory offer of compensation to the Applicant in respect of the acquisition of the Applicant’s leasehold interest in accordance with the Valuer General’s determination of compensation.

7. On 14 December 2022, the Applicant commenced proceedings in the Court objecting to the Respondent’s statutory offer pursuant to s 66 of the Just Terms Act.

8. The Applicant’s 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).

9. The Court arranged a s 34 conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 19 May 2023. I presided over the conciliation conference.

Section 34 Agreement

10. 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 s 34 agreement. The decision involved upholding an appeal by the Applicant and granting compensation as set out in the Orders.

11. 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.

Preconditions and jurisdictional considerations

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

1. The Respondent issued a Proposed Acquisition Notice (PAN) to the Applicant pursuant to ss 11 and 12 of the Just Terms Act on 12 November 2021.

2. The PAN was served on the Applicant as the owner of a leasehold interest in the Land.

3. The Land was acquired by the respondent by publication in the NSW Government Gazette on 4 March 2022, 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 Applicant’s leasehold interest in accordance with s 47 of the Just Terms Act on 15 September 2022 and a subsequent offer of compensation was made by the Respondent on 19 September 2022.

5. These proceedings were commenced on 14 December 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.

13. The preconditions and jurisdictional prerequisites have been satisfied as set out above.

14. 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.

15. 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.

16. The Court notes that:

1. the Respondent shall pay the Applicant’s reasonable costs of the proceedings as agreed or assessed up to and including 19 May 2023, subject to the production of invoices and receipts substantiating the amount of the costs claimed. The Court further notes that there is to be no interest payable on costs.

Orders

17. The Court orders that:

1. Compensation is determined in the sum of $185,000 pursuant to s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the acquisition of the Applicant’s leasehold interest in Lot 2 Deposited Plan 509010, also known as 171 West Korora Road, Coffs Harbour.

2. Within 28 days of the final orders in these proceedings, the Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment form issued by the Respondent.

3. Within 28 days of the Respondent receiving a duly completed deed of release and indemnity and direction as to payment form, the Respondent must pay to the Applicant the amount of compensation referred to in order (1), less any advance payment already made, plus interest calculated in accordance with sections 49 and 50 of the Just Terms Act.

N Targett

Acting Commissioner of the Court

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Decision last updated: 20 June 2023