The Owners of Strata Plan 30064 v Road and Traffic Authority

[2003] NSWLEC 248

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Land and Environment Court

of New South Wales

CITATION:	The Owners Of Strata Plan 30064 v Road And Traffic Authority [2003] NSWLEC 248
PARTIES:	APPLICANT: The Owners Of Strata Plan 30064 RESPONDENT: Road And Traffic Authority
FILE NUMBER(S):	(3)0226 of 2002
CORAM:	Bignold J
KEY ISSUES:	Compulsory Acquisition of Land :- acquisition of part of common property of strata scheme-whether lessees of three lots entitled to claim compensation by way of disturbance-application for joinder as claimants
LEGISLATION CITED:	Land Acquisition (Just Terms Compensation) Act 1991 Strata Schemes (Freehold Development) Act 1973
CASES CITED:
DATES OF HEARING:	08/11/2002
EX TEMPORE JUDGMENT DATE :	11/08/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr J Webster SC SOLICITORS Hunt and Hunt RESPONDENT: Mr J Maston, Barrister SOLICITORS Corrs Chambers Westgarth

JUDGMENT:

IN THE LAND AND

Matter No. 0226(3) of 2002

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

8 November 2002

THE OWNERS OF STRATA PLAN 30064

Applicant

v

ROADS AND TRAFFIC AUTHORITY

Respondent

JUDGMENT

1. This is a Motion filed in class 3 proceedings involving a claim for compensation for the compulsory acquisition of some land at Prestons, compulsorily acquired pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 by gazette notice published on 17 December 2001. The land acquired was part of the common property of a strata scheme involving a warehousing type development and not a residential strata scheme.

2. The Motion before the Court today was for joinder in the proceedings brought by the body corporate or the owners’ corporation by three companies each of which is a lessee of a lot or lots in the strata scheme, and it appears from the affidavits in support that the reason for their claim to compensation is founded upon an apprehension that there will be at some time in the future, when the Roads and Traffic Authority come to carry out the physical road works on the land resumed and other lands forming part of the roads bus transit lane scheme, that they will suffer some loss or lack or absence of access between their leased premises and the road, Hoxton Park Road, on which those premises front.

3. The Motion also claims an order that the proceedings be stood over for nearly a year, the reason for that period of adjournment of the proceedings apparently being that it is thought that physical road construction on the compulsorily acquired land will not have been completed until about that time, and the rationale clearly is to see if and whether the anticipated dislocation of access arrangements to the demised premises materialises or not.

4. Senior Counsel representing the three interests has indicated that claims to compensation under the Act which the three lessees would wish to pursue would be disturbance claims within the meaning of the Just Terms Act and in particular s 59, “loss attributable to disturbance”, and in particular par (f) of s 59, any other financial costs reasonably incurred relating to the actual use of the land as a direct and natural consequence of the acquisition.

5. In opposing the relief claimed in the Motion totally, the Roads and Traffic Authority has persuaded me that the three lessees, though possessing an interest in the common property pursuant to the provisions of the Strata Schemes (Freehold Development) Act 1973 by force of s 20 and s 24 of that Act, nonetheless do not have compensatable interests under the Just Terms Act by force of s 34 of the Strata Schemes Act.

6. That section appears in Division 3 of Part 2 under the heading “Compulsory Acquisition of Lots and Common Property”, and s 34 relevantly provides:

For the purposes of any Act relating to the payment of compensation upon the resumption of land

(b) where the resumed land or any part of the resumed land is common property, the beneficial interests of the proprietors in the common property shall for the purposes of any claim for or the payment of compensation in respect of the resumption of those interests be deemed to be vested in the body corporate to the exclusion of the proprietors.

7. In my judgment, this section clearly disqualifies the three lessees from claiming and receiving compensation under the Just Terms Act in consequence of the aforesaid compulsory acquisition, because the interest that they would otherwise have in the common property so resumed is vested in the body corporate to the exclusion of the proprietors, by force of the statute.

8. Accordingly, the three lessees do not relevantly possess an interest which would qualify them in making and pursuing in their own right a claim to compensation under the Just Terms Act, and on that account their application for joinder in the present proceedings (which have been brought by the owners’ corporation or the body corporate of the strata scheme) must fail.

9. Whether their interests in claiming and pursuing compensation under the Just Terms Act is now vested in the body corporate pursuant to s 34(b) of the Strata Schemes Act and whether that interest is capable of being pursued in the present proceedings as formulated is a matter upon which there has been some debate today, and I say no more on it in view of the fact that the Senior Counsel for the lessees and the body corporate which is the moving party in today’s proceedings has indicated that they would wish to claim alternative relief in the event of the joinder of the lessees failing, and that alternative relief will be in the nature of declarations to the effect that the lessees’ interests in the common property compulsorily acquired, to the extent to which it gives rise to a claim for compensation under the Just Terms Act, is a claim vested in, and prosecutable by, the body corporate in the present proceedings.

10. Mr Maston on behalf of the Roads and Traffic Authority has not conceded that that is the ultimate fate of the asserted claims of the three lessees, and in those circumstances I should say nothing more about the matter, having regard to the fact that an amended claim in the Motion is anticipated.

11. The consequence of the failure of the joinder application is that it is not appropriate today, in my view, to deal with the application contained in par 4 of the Motion that the proceedings be stood over until 5 September 2003 because fundamentally that claim in the Motion is contingent upon the agitation in the proceedings of the claims asserted by the three lessees, and it now appears that the question of whether those claims, though not assertable in their own right, may be assertable by the body corporate on behalf of the lessees, must await an adjudication upon the anticipated amended claim to alternative relief.

12. Accordingly, it would be premature and inopportune to deal with the application to adjourn the proceedings. However, I should note that the application to adjourn is not of the proceedings generally but only in respect of any claim which may be prosecutable in the proceedings on behalf of the three lessees, and that claim, as I have already noted is limited to a claim for disturbance loss within the meaning of s 59(f) of the Just Terms Act.

13. Accordingly, I propose to adjourn par 4 of the Notice of Motion for mention before me at 9.30 on 6 December 2002, and give leave to the Applicant to make any claim by way of amendment to the Motion for alternative relief to be returnable before me on that occasion. I direct that the Applicant in that behalf serve and file a copy of the amended claim within 14 days of today.

14. In consequence of the decision that the application for joinder must fail and that the contingent application for standing the proceedings over for a year must await the developments with any amended claim, Mr Maston on behalf of the Roads and Traffic Authority has asked that the Court should order the costs of the Motion in favour of the Roads and Traffic Authority.

15. Mr Webster, Senior Counsel for the Applicant, has submitted that the more appropriate order would be that the costs of the Motion today, be costs in the cause.

16. In my judgment, the dismissal of the Motion for joinder should be regarded as a discrete matter with the consequence that, having failed in the Motion, the Applicant must pay the Respondent’s costs of the Motion and I so order the Applicant to pay the Respondent’s costs of the Motion in the sum agreed or, failing agreement, as assessed.