Scott v Regional Growth NSW Development Corporation

[2023] NSWLEC 1779

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scott v Regional Growth NSW Development Corporation [2023] NSWLEC 1779

Hearing dates:

Conciliation conference on 22 November 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The Respondent will pay the Applicants the following amounts in compensation pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 as set out below for the compulsory acquisition by the Respondent on 5 August 2022 of the land known as 1026 Olympic Highway, Bomen, being part Lot 42 in Deposited Plan 1215424 (now being Lot 421 in DP 1279081):

(a) $960,000.00 in market value pursuant to ss 55(a) and 56; and

(b) $28,348.85 for legal costs and valuation fees pursuant to ss 55(d) and 59(1)(a) and (b).

(2) The Applicants will complete and deliver to the Respondent the Deed of Release and Indemnity and Direction as to Payment (Forms) within 28 days of a sealed judgment.

(3) The Respondent will pay the compensation referred to in Order (1)(a), less any advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 within 28 days of the Respondent receiving the duly completed Forms.

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 11, 12, 13, 41, 42, 49, 50, 55, 56, 59, 66

Land and Environment Court Act 1979, ss 19, 34

Category:

Principal judgment

Parties:

Andrew Edmund Selwyn Scott (First Applicant)
Jane Louise Scott (Second Applicant)
Regional Growth NSW Development Corporation (Respondent)

Representation:

Counsel:
T Poisel (First and Second Applicants)
M Astill (Respondent)

Solicitors:
Kent McRae Pty Ltd (First and Second Applicants)
Norton Rose Fulbright Australia (Respondent)

File Number(s):

2023/213107

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicants have filed these proceedings under s 66(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) objecting to an offer of compensation by the Respondent following compulsory acquisition of the Applicants’ Land at 1026 Olympic Highway, Bomen NSW being part of Lot 42 in Deposited Plan 1215424, in the Local Government Area of Wagga Wagga, Parish of North Wagga Wagga, County of Clarendon, and more particularly described as:

1. Lot 421 in Deposited Plan 1279081 (the Acquired Land);

2. Lot 422 in Deposited Plan 1279081 (the Residue Land); and

3. Together referred to as the Land.

2. The proceedings fall within Class 3 of the Court jurisdiction pursuant to s 19 of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is s 66(2) of the Just Terms Act and s 34(3) of the LEC Act.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 22 November 2023. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, the Respondent paying compensation to the Applicants as agreed under the provisions of the Just Terms Act, and to the Respondent agreeing to pay the costs of the proceedings on a party-party basis, as set out below.

6. 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. The parties’ decision involves the Court exercising the function under s 66(2) of the Just Terms Act and s 34(3) of the LEC Act.

7. There are jurisdictional prerequisites to be satisfied in this matter, as set out below:

1. The Respondent issued a Proposed Acquisition Notice (PAN) to the Applicants pursuant to ss 11 and 12 of the Just Terms Act on 11 April 2022.

2. The PAN was served on the Applicants as the registered proprietors of the Land.

3. The Acquired Land was compulsorily acquired by the Respondent by publication in the NSW Government Gazette on 5 August 2022 pursuant to the time provisions in s 13 of the Just Terms Act.

4. The Valuer-General issued a Determination of Compensation for the compulsory acquisition of the Applicants’ Land by the Respondent pursuant to s 41 of the Just Terms Act.

5. On 28 April 2023, the Respondent served a Compensation Notice on the Applicants pursuant to s 42(1) of the Just Terms Act offering to pay compensation in the sum of $567,803, as determined by the Valuer- General.

6. These Class 3 proceedings were commenced on 4 July 2023 being within the 90 days’ time provision set out in s 66(1) of the Just Terms Act.

8. For the facts and reasons set out above, 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.

9. 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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The Court notes the parties have agreed that the Respondent will pay the Applicants’ costs of the proceedings on a party-party basis as agreed or assessed, and that there is no interest payable on the costs of the proceedings.

11. The Court orders:

1. The Respondent will pay the Applicants the following amounts in compensation pursuant to the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 as set out below for the compulsory acquisition by the Respondent on 5 August 2022 of the land known as 1026 Olympic Highway, Bomen, being part Lot 42 in Deposited Plan 1215424 (now being Lot 421 in DP 1279081):

1. $960,000.00 in market value pursuant to ss 55(a) and 56; and

2. $28,348.85 for legal costs and valuation fees pursuant to ss 55(d) and 59(1)(a) and (b).

2. The Applicants will complete and deliver to the Respondent the Deed of Release and Indemnity and Direction as to Payment (Forms) within 28 days of a sealed judgment.

3. The Respondent will pay the compensation referred to in Order (1)(a), less any advance payment already made, plus statutory interest calculated in accordance with ss 49 and 50 of the Land Acquisition (Just Terms Compensation) Act 1991 within 28 days of the Respondent receiving the duly completed Forms.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 20 December 2023