Sydney Water Corporation v Besmaw Pty Ltd

Sydney Water Corporation appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning compensation payable to Besmaw Pty Ltd under the *Land Acquisition (Just Terms Acquisition) Act 1991* (NSW). The dispute arose from Sydney Water's acquisition of land, and the compensation amount included an allowance for "disturbance" under section 59(f) of the Act. Sydney Water contended that the Land and Environment Court erred in its assessment of this disturbance, arguing that certain rights it held to block the respondent's access were merely theoretical and that the respondent could have obtained relief under section 41 of the *Sydney Water Act 1994* (NSW).

The central legal issues before the Court of Appeal were whether the Land and Environment Court had correctly determined the quantum of compensation payable for disturbance, specifically considering the impact of Sydney Water's rights to obstruct access. The court was required to assess whether these rights were indeed theoretical and, if so, how that affected the compensation assessment. Furthermore, the court had to consider whether the availability of relief under section 41 of the *Sydney Water Act 1994* was a relevant factor in reducing the compensation payable for disturbance under the *Land Acquisition (Just Terms Acquisition) Act 1991*.

The Court of Appeal dismissed Sydney Water's appeal. The court reasoned that the Land and Environment Court had properly considered the practical impact of Sydney Water's rights on the respondent's use and enjoyment of the land, and that these rights were not merely theoretical in their effect. The court found that the compensation awarded for disturbance was justified, taking into account the actual and potential impediments to the respondent's access and operations. The availability of relief under section 41 of the *Sydney Water Act 1994* was not considered to be a factor that would diminish the compensation payable for disturbance under the acquisition legislation. Consequently, the appeal was dismissed with costs.