Jones v Department of Transport Roads and Maritime Services

[2016] NSWLEC 91

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jones v Department of Transport Roads and Maritime Services [2016] NSWLEC 91
Hearing dates:	22 July 2016
Date of orders:	22 July 2016
Decision date:	22 July 2016
Jurisdiction:	Class 3
Before:	Pain J
Decision:	The application objecting to the offer of compensation may be heard and determined notwithstanding that the application was lodged more than 90 days after receipt of a compensation notice.
Catchwords:	PROCEDURE – good cause shown by the applicant to extend time for filing of appeal in relation to a claim for compensation beyond 90 days
Legislation Cited:	Land Acquisition (Just Terms Compensation) Act 1991, s 66(3)
Cases Cited:	Camilleri v Transport for NSW [2013] NSWLEC 104
Category:	Procedural and other rulings
Parties:	Rhonda Jones (Applicant) Department of Transport Roads and Maritime Services (Respondent)
Representation:	COUNSEL: P Lane (Applicant) H Kalarostaghi, solicitor (Respondent)   SOLICITORS: C A Williams Legal (Applicant) Hunt & Hunt Lawyers (Respondent)
File Number(s):	16/148009

EX TEMPORE Judgment

1. The Department of Transport Roads and Maritime Services (as the Respondent is described in the summons, hereafter the RMS) has partially acquired a property which fronts Bringelly Road Rossmore to enable the widening of Bringelly Road. The Applicant Ms Jones is a partial owner of the property together with numerous brothers following the death of her mother in 1996 and also has a life tenancy interest in the property. The Applicant’s Class 3 appeal was filed on 4 May 2016. The offer of compensation sent to the Applicant was dated 14 September 2015 and the 90 day appeal period expired on 14 December 2015.

2. The Notice of Motion dated 12 July 2016 seeks an order that time for filing of this Class 3 appeal outside the 90 day period be extended as provided in s 66(3) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (JT Act):

66 Objection against amount of compensation offered

…

(3)   A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person’s claim for compensation unless satisfied that there is good cause for the person’s failure to lodge the objection within that period.

3. The evidence relied on to establish good cause is an affidavit of the Applicant’s solicitor Ms Williams sworn 11 July 2016 which was read. This details the complexities in the estate of the Applicant’s mother which has resulted in potential irregularity in the multiple ownership of the partially acquired property as between the Applicant and her numerous siblings. Extensive correspondence has taken place between the Applicant’s solicitor and the different solicitors representing three brothers during 2013 to 2015 and continuing into 2016. The Applicant’s solicitor has not been able to contact the survivor of the deceased brother who is also on the property title possibly erroneously given the terms of the Applicant’s mother’s will according to the Applicant. That correspondence attempted to address the compensation claim by the Applicant on a mutually agreed basis and also the possibility of selling the entire property and the entry into a family deed of arrangement to distribute the proceeds of sale. It was not possible to finalise the sale and family agreement during the second half of 2015. Nor was the Applicant’s solicitor able to agree on a joint approach to the compensation claim for the partial acquisition by the RMS in the second half of 2015.

4. The affidavit also identified particular work pressures on Ms Williams when she was a sole practitioner in the first half of 2016.

5. The affidavit also identified the substantial disturbance experienced by the Applicant as a result of the road works which have followed the partial acquisition of the property at par 35 which include:

•   The boundary of the acquisition has a 2 metre gap from the boundary to Ms Jones’s front door.

•    Ms Jones is observing severe vibration in her home to the traffic which is now closer to her house.

•    The road is now passing at a level some 9 metres above the property.

•    An electricity pole has now been placed out the front of Ms Jones’s house on the left of her driveway and one to the right of her boundary and electrical lines are now going to be placed across the front of her house.

•    The water metre has been moved directly in front of Ms Jones’s house which now is an obstacle and is dangerous where it is positioned especially in the dark.

•    Trees which acted as a noise barrier have been removed and now Ms Jones experiences greatly increased noise levels.

•    Air pollution from traffic and dust now enters Ms Jones’s home and even when windows are closed, settling on furniture, walls and floors.

•    Ms Jones is experiencing sleep disturbance from 4.00am onwards due to the level of traffic noise and vibration.

•    The drainage on the road is causing spill over onto her front boundary coming down onto her land.

•    Ms Jones’s health and wellbeing is being affected, as she is 65 years old, retired and stays home most of the time.

6. I have been referred to a decision of Camilleri v Transport for NSW [2013] NSWLEC 104 where Craig J usefully considered s 66(3) at pars [27]-[28]. His Honour identifies that good cause is not defined in the JT Act. Justice Craig considered it focusses on a legally acceptable or sufficient explanation for the failure to file an appeal in time. Considerations include the conduct of the applicant, the length of time by which the 90 day period is exceeded, whether there is prejudice to the respondent (none is identified here and this application is not opposed by the RMS) and demonstration by an applicant that there is justification to continue the proceedings given the statutory entitlement to compensation. At [28] his Honour refers to the importance of acting in the interests of justice given the statutory scheme and entitlement to compensation, which consideration arises here also.

7. Ms Williams’ affidavit identifies circumstances which are sufficient explanation for the delay in the commencement of these proceedings given the unusually complex interests in the property partly owned by the Applicant and the difficulty in reconciling all these in a timely manner. Ms Williams’ own workload during an important period early in 2016 also partly explains the delay in filing the appeal. The substantial nature of a potential disturbance claim by the Applicant is also identified in the affidavit. I am satisfied that good cause as required by s 66(3) has been demonstrated. It is in the interests of justice that the orders sought in the notice of motion be made.

Orders

8. The Court orders:

1. The application objecting to the offer of compensation may be heard and determined notwithstanding that the application was lodged more than 90 days after receipt of a compensation notice.

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Decision last updated: 27 July 2016