Minister for Education and Early Learning v Shoalhaven City Council

[2023] NSWLEC 1164

Land and Environment Court

New South Wales

Medium Neutral Citation:

Minister for Education and Early Learning v Shoalhaven City Council [2023] NSWLEC 1164

Hearing dates:

Conciliation Conference on 23 February 2023

Date of orders:

11 April 2023

Decision date:

11 April 2023

Jurisdiction:

Class 3

Before:

Kempthorne AC

Decision:

The Court orders compensation for the compulsory acquisition of the Acquired Easements set out in Annexure A, the Respondent is to pay the Applicant the following amounts:

(1) $120,000 in market value determined pursuant to section 55(a) of the Land Acquisition Act (Just Terms Compensation) Act 1991 (Just Terms Act);

(2) $18,776.74 for legal costs, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act;

(3) $4,000 for valuation fees, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act;

(4) the Applicant’s costs of the proceedings in the amount of $65,000;

(5) within 28 days of this judgment, the Respondent must pay the Applicant the amount of compensation referred to in Orders (1), (2) and (3), plus statutory interest calculated in accordance with sections 49 and 50 of the Just Terms Act; and

(6) within 28 days of a sealed judgment, the Respondent must pay the Applicant the amount of the Applicant’s costs referred to in Order (4).

Catchwords:

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

Legislation Cited:

Land Acquisition (Just Terms Compensation) Act 1991, ss 49, 50, 55, 59, 66

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Minister for Education and Early Learning (Applicant)
Shoalhaven City Council (Respondent)

Representation:

Counsel:
J McKelvey (Applicant)
B Tronson (Respondent)

Solicitors:
Norton Rose Fulbright Australia (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022 / 303900

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 3 proceedings comprise an objection by the Minister for Education and Early Learning (the Applicant) to an offer of compensation arising from the compulsory acquisition by Shoalhaven City Council (the Respondent) of the Acquired Easements set out in Annexure A being easements of parts of the land comprised in 6 / 1156684 known as 69 George Evans Road, Mundamia in the State of New South Wales, pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act).

Jurisdiction Pre-requisites

2. The Valuer General of NSW on behalf of the Respondent assessed the amounts of compensation as follows:

s 55(a) Market Value

                             $16,545.00

s 55(d) Disturbance

                              $0.00

Total

                                                      $16,545.00

3. The Applicant’s claim set out the amounts of compensation as below:

s 55(a) Market Value

                            $160,000.00

s 55(d) Disturbance

                              $22,776.74

Total

                                                     $182,776.74

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 23 February 2023.

5. I presided over the conciliation conference.

s 34 Agreement

6. 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.

7. The terms of the agreement reached by the parties are that:

1. In compensation for the compulsory acquisition of the Acquired Easements set out in Annexure A, the Respondent is to pay the Applicant the following amounts:

1. $120,000 in market value determined pursuant to section 55(a) of the Land Acquisition Act (Just Terms Compensation Act 1991 NSW (Just Terms Act);

2. $18,776.74 for legal costs, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act; and

3. $4,000 for valuation fees, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act.

2. The Respondent is to pay the Applicant’s costs of the proceedings in the amount of $65,000.

3. Within 28 days of this judgement, the Respondent must

1. pay to the Applicant the amount of compensation referred to in Orders (1), (2) and (3), plus statutory interest calculated in accordance with ss 49 and 50 of the Just Terms Act; and

2. pay to the Applicant the amount of the Applicant’s costs of the proceedings set out in Orders (4).

8. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the functions pursuant to s 66(1) and s 66(2) of the Just Terms Act to hear and dispose of the Applicant’s claim for compensation.

9. 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.

10. 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.

Orders

11. The Court orders compensation for the compulsory acquisition of the Acquired Easements set out in Annexure A, the Respondent is to pay the Applicant the following amounts:

1. $120,000 in market value determined pursuant to section 55(a) of the Land Acquisition Act (Just Terms Compensation) Act 1991 (Just Terms Act);

2. $18,776.74 for legal costs, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act;

3. $4,000 for valuation fees, pursuant to sections 55(d) and 59(1)(a) of the Just Terms Act;

4. the Applicant’s costs of the proceedings in the amount of $65,000;

5. within 28 days of a sealed judgment, the Respondent must pay the Applicant the amount of compensation referred to in Orders (1), (2) and (3), plus statutory interest calculated in accordance with sections 49 and 50 of the Just Terms Act; and

6. within 28 days of a sealed judgment, the Respondent must pay the Applicant the amount of the Applicant’s costs referred to in Order (4).

P Kempthorne

Acting Commissioner of the Court

Annexure A (117634, pdf)

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Decision last updated: 11 April 2023