Rafailidis v Roads and Maritime Services (No 2)

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9
Hearing dates:3, 4, 5 February 2014
Decision date: 11 February 2014
Jurisdiction:Class 3
Before: Craig J
Decision:

1. Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

2. In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820.

3. Exhibits other than Exhibit 1A may be returned.

Catchwords: COMPULSORY ACQUISITION - determination of compensation for compulsory acquisition of land - land compulsorily acquired for the purpose of upgrading and widening a road - whether Roads and Maritime Services is an authority of the State for the purposes of the Lands Acquisition Act 1989 (Cth) - validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - what is just compensation - determination of market value - whether decrease in value of land at date of acquisition by reason of the roadworks - injurious affection - costs which qualify as 'loss attributable to disturbance'
Legislation Cited: Camden Local Environmental Plan 2010
Commonwealth Constitution
Constitution Act 1902 (NSW)
Judiciary Act 1903 (Cth)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
Land and Environment Court Act 1979 (NSW)
Lands Acquisition Act 1989 (Cth)
Roads Act 1993 (NSW)
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Transport Administration Act 1988 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Armidale Dumaresq Council v Vorhauer [2012] NSWLEC 154
Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196
Durham Holdings Pty Ltd v The State of New South Wales [2001] HCA 7; 205 CLR 399
Johnston Fear & Kingham & Offset Printing Company Pty Ltd v The Commonwealth [1943] HCA 18; 67 CLR 314
Leichhardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; 149 LGERA 439
Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 467
National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573
Rafailidis v Roads and Maritime Services [2013] NSWLEC 131
R v MSK and MAK [2004] NSWCCA 308; 61 NSWLR 204
The Queen v Phillips [1970] HCA 50; 125 CLR 93
Trade Practices Commission v Tooth & Co Ltd [1979] HCA 47; 142 CLR 397
Category:Principal judgment
Parties:

Koula Rafailidis (First applicant)
Efrem Rafailidis (Second applicant)

Roads and Maritime Services (First Respondent)

Attorney General for New South Wales (Intervenor)
Representation:

COUNSEL

Self represented (Applicants)
N Eastman (First Respondent)
B K Baker (solicitor) (Intervenor)
SOLICITORS

Self represented (Applicants)
Clayton Utz (First Respondent)
I V Knight, Crown Solicitor (Intervenor)
File Number(s):30195 of 2013

Judgment

  1. Koula and Efrem Rafailidis (the…

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Details
Case
[2014] NSWLEC 9
Decision Date

CaseChat Overview and Summary

The case involved Mr Rafailidis, who challenged the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), and the Roads and Maritime Services, who were required to determine the compensation payable for the acquisition of Lot 2 in Deposited Plan 1170535. The dispute was heard in the Land and Environment Court of New South Wales. Mr Rafailidis contested the constitutional validity of the Act, asserting it was invalid as it did not sufficiently protect property rights and did not provide just terms for the acquisition of property. He also challenged the adequacy of the compensation offered under the Act.

The court examined whether the Act was consistent with the requirements of Chapter III of the Constitution, specifically section 51(xxxi), which deals with the acquisition of property on just terms. The court found that the Act was valid and in accordance with the Constitution. It held that the Act provided adequate protection for property rights and that the compensation process was fair and reasonable. The court rejected Mr Rafailidis' argument that the compensation offered was inadequate.

The court ordered that the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) be dismissed. It further determined the compensation payable by the Roads and Maritime Services for the acquisition of Lot 2 in Deposited Plan 1170535 on 16 November 2012 to be $153,820. The court allowed exhibits other than Exhibit 1A to be returned.

Orders

Orders of the court

1. Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).

2. In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820.

3. Exhibits other than Exhibit 1A may be returned.

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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