Olde English Tiles Australia Pty Ltd v Transport for New South Wales

Olde English Tiles Australia Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning compensation following the compulsory acquisition of land by Transport for New South Wales (the respondent). The dispute centred on whether the appellant held a compensable interest in the acquired land, specifically a licence to occupy, which it claimed had been extinguished by the acquisition.

The primary legal issue before the Court of Appeal was the interpretation of the term "interest" as defined in section 4 of the *Land Acquisition (Just Terms Compensation) Act 1991* (NSW). This definition includes a "privilege over, or in connection with, land". The court had to determine whether the appellant's bare licence to occupy the land, which was terminable at will by the landowner, constituted such an interest for which compensation could be claimed, particularly in light of losses attributable to disturbance. This required considering whether the licence had any market value and whether it was the type of interest that could be divested, extinguished, or diminished by a compulsory acquisition.

The Court of Appeal, applying principles of statutory interpretation, considered the context and object of the Act, which is to provide just terms compensation. It analysed previous decisions of the Court of Appeal, including *Hornsby Council v Roads and Traffic Authority of New South Wales* and *Dial A Dump Industries Pty Ltd v Roads and Maritime Services*, to ascertain whether the appellant's licence fell within the scope of a compensable interest. The court found itself not comfortably satisfied that the reasoning in the earlier decisions, which had held that a bare licence terminable at will was not a compensable interest, was wrong. The court also considered legislative history and extrinsic materials, noting that substantial amendments had been made to the Act without altering the effect of the established precedent.

Consequently, the Court of Appeal dismissed the appeal from the judgment of the Land and Environment Court and ordered that the appellant pay the respondent’s costs.