Land and Environment Court New South Wales Medium Neutral Citation: Billbergia Group Pty Ltd v Transport for New South Wales [2020] NSWLEC 1652 Hearing dates: Conciliation conference on 15 June 2020, 7 July 2020, 12 August 2020, 23 September 2020, 13 October 2020, 30 October 2020 and 24 November 2020 Date of orders: 17 December 2020 and amended on 18 December 2020 Decision date: 17 December 2020 Jurisdiction: Class 3 Before: Peatman AC Decision: Refer to orders below at [29] Catchwords: COMPULSORY ACQUISITION OF LAND – acquisition resulting in denial of services to residue lot, compensation, easement for services – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011 Cases Cited: Van Tonder v Hodgkinson [2012] NSWLEC 86 Texts Cited: New South Wales Department of Planning, Industry and Environment, Draft Camellia Town Centre Master Plan (2018) Parramatta City Council, Draft Parramatta Local Strategic Planning Statement, (August 2019) Category: Principal judgment Parties: Billbergia Group Pty Ltd (Applicant) Transport for New South Wales (Respondent) Representation: Counsel: I Hemmings SC and J McKelvey (Applicant) S Pritchard SC, L Waterson and (M Brady, Solicitor advocate) (Respondent) Solicitors: Shaw Reynolds (Applicant) Clayton Utz (Respondent) File Number(s): 2019/358599 Publication restriction: No Judgment 1. COMMISSIONER: This Class 3 application arises from the compulsory acquisition of the following land pursuant to Part 3 of the Land Acquisition (Just Terms Act) 1991 (Just Terms Act) for the acquisition by Transport for New South Wales (TfNSW) of: 1. a freehold interest in part of Lot 1 Deposited Plan 226202 (now known as Lot 1 in Deposited Plan 1248549); 2. a leasehold interest in part of Lot 2 in Deposited Plan 1248549 for a period terminating on 30 June 2021; 3. a leasehold interest in the whole of Lot 102 Deposited Plan 1146308 for a period terminating on 30 June 2021. 4. a leasehold interest in the whole of Lot 201 Deposited Plan 669350 for a period terminating on 30 June 2021; and 5. an easement for access over Lot 2 Deposited Plan 1248549 terminating on the date on which the Lot 102 Lease and the Lot 201 Lease are terminated (leases referred to in subparagraphs (2) and (3) above). Being part of the land known as 1 Grant Avenue, North Camellia, in the greater metropolitan area of Sydney NSW (the Land which reference is inclusive of the freehold, leasehold and easement interests). Jurisdiction Pre-requisites 1. In accordance with s 10A(2) of the Just Terms Act, TfNSW made a genuine attempt to acquire the Land by agreement for at least 6 months before giving a proposed acquisition notice. TfNSW gave an invitation to the Applicant to begin negotiations for the acquisition of the Land on 23 April 2018 and correspondence continued between the parties up to the date the Proposed Acquisition Notice (PAN) was issued. 2. On 12 February 2019, TfNSW issued a PAN to the Applicant for the acquisition of the Land in accordance with s 11(1) of the Just Terms Act. 3. Immediately before the date of compulsory acquisition of the Land on 7 June 2019, the Applicant was the registered proprietor of the Land to be acquired by the Respondent. 4. After the minimum period of notice as set out in s 13(1) of the Just Terms Act, on 7 June 2019 TfNSW compulsorily acquired the Land by publishing the acquisition in the NSW Government Gazette in accordance with s 19(1) of the Just Terms Act. 5. The Land acquired was for the public purpose of the Parramatta Light Rail. 6. The Land represents a small proportion of the total area of the Parent Parcel being 2.18%. Set out below are details of the freehold and leasehold land acquired for the purposes of the Parramatta Light Rail. Freehold Land Acquisition Area Parent Parcel 77,460m2 Acquired Freehold Land 1,695m2 Residue Land 77,765m2 1. In addition to the above, TfNSW acquired an easement for access over Lot 2 DP 1248549 terminating on the date on which the Lot 2 Lease and the Lot 201 Lease are terminated. The easement for access provides access to the Lot 102 and Lot 201 Lease areas. 2. Figure 1 below is an extract which shows the location of boundaries of the Land. 1. On 10 July 2019 the Applicant made a claim (Form 2) in accordance with s 39 (1) of the Just Terms Act. 2. On 31 October 2019 the Valuer General carried out a statutory valuation in accordance with s 41 of the Just Terms Act and determined the compensation for the Land at $284,625 (including the sum of $2,060,267 for land value under s 55(a); deducting $131,074,075 for 'betterment' under s 55(f); and adding $284,625 for disturbance under s 55(d) of the Just Terms Act) (the Compensation). Although the above appears confusing, what it means is that the Valuer General valued the land at nil because his assessment for betterment exceeded the land value under s 55(a). The Compensation as assessed was for disturbance. 3. On 1 November 2019 TfNSW made an offer to the Applicant in accordance with the Valuer General's statutory determination dated 31 October 2019 which was prepared by the Valuer General under s 42 of the Just Terms Act. 4. The Applicant appealed to this Court by filing a Class 3 Application on 14 November 2019 objecting to TfNSW's offer of Compensation as made on 1 November 2019, being within the time to file an objection pursuant to s 66(1) of the Just Terms Act. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 June 2020, 7 July 2020, 12 August 2020, 23 September 2020, 13 October 2020, 30 October 2020 and 24 November 2020. I presided over the conciliation conference. 6. The dispute between the Applicant and TfNSW related to the amount of Compensation to be paid, but that Compensation was, in part, intrinsically linked to TfNSW's removal of access to services to the Applicant's Residue land. Absent the provision of services to the Residue land, the Applicant's land would in practical terms become unable to be used for its permissible purposes. The Applicant's Residue land area is 77,765m2. 7. As at the date of acquisition, 7 June 2019, the Parent Parcel was zoned IN3 Heavy Industrial and RE1 Public Recreation under the provisions of the Parramatta Local Environmental Plan 2011. 8. It was uncontroversial that the planning regime for the Parent Parcel would be changed in view of the many strategic planning documents released by the Department of Planning between 2014 and 2019. In February 2018 the Draft Camellia Town Centre Master Plan (Town Centre Master Plan) was released. It established the vision for development of a town centre over the next 20-30 years. The Town Centre Master Plan had been designed to incorporate the Parramatta Light Rail Stage 1. 9. In August 2019 the Draft Parramatta Local Strategic Planning Statement was issued by Parramatta City Council which identified the Camellia Town Centre Precinct to be re-zoned for mixed-use/commercial/residential purposes. 10. During the conciliation conference it became apparent that if TfNSW could consent to an easement for services that the monetary compensation would be reduced substantially, and the monetary compensation for the acquisition could also be negotiated. 11. During the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The granting of the easement (as agreed) pursuant to s 88B of the Conveyancing Act 1919 ensured that the provision of services which had been removed by the acquisition, and subsequent erection of the Parramatta Light Rail line within the rail reserve, would be replaced with a single easement for all services to the Applicant's residue land which will be a stratum below the rail line reserve. 12. This decision agreed to by the parties is in the following terms: 1. The payment of the sum of $2,500,000 inclusive of statutory interest and costs in accordance with ss 55 and 59(a) and (b) of the Just Terms Act. 2. TfNSW granting an easement to the Applicant on the terms set out in Annexure A hereto. 3. The Applicant is to duly complete and deliver to TfNSW the deed of release and indemnity and direction as to payment issued by Transport for NSW within 28 days of final orders. 4. Within 28 days of TfNSW receiving the executed deed of release and indemnity and direction as to payment, TfNSW is to: 1. Pay $2,500,000 as set out in Order (1) less any advanced moneys paid plus statutory interest pursuant to ss 49 and 50 of the Just Terms Act; and 2. Deliver to the Applicant a duly executed Easement for Services in the form contained in Annexure A hereto. 1. The Applicant is to lodge for registration the Easement for Services in Annexure A within 28 days upon receipt of Annexure A in accordance with Order (4)(1)(b). 2. On or before the execution of Order (5), or within 28 days of the execution of Order (4), both parties are to produce the relevant Certificates of Title with NSW Land Registry Services to enable registration of the interests on the lots to be benefited and the lots to be burdened by the easement in Annexure A hereto. 3. Within seven (7) days of the registration of the easement for services at Annexure A, the parties are to enter into the Easement Relocation Deed in the form issued by Transport for NSW to the Applicant on 30 October 2020 (being document number 337482817.6). 4. TfNSW agrees to pay the Applicant's reasonable costs of the proceedings as agreed or assessed, subject to the production of invoices and receipts substantiating the amount of the costs claimed. There is to be no interest payable on the costs. 1. 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 functions as set out below. 2. Division 4 of Part 3 of the Just Terms Act concerns the determination of compensation following the compulsory acquisition of land. Section 54(1) provides that "The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land." In this matter 'the relevant matters' include both ss 55 and 64 of the Just Terms Act. Section 64 provides: "Compensation to which a person is entitled under this Part may, if the authority of the State concerned agree, be provided wholly or partly in the form of land or the carrying out of works." 3. The definitions in s 4 provide that 'land' includes any interest in land, and 'interest' includes an easement. 4. In Van Tonder v Hodgkinson [2012] NSWLEC 86 Biscoe J considered whether the Court had power to entertain an order for compensation in the form of works or land. His Honour observed at [9]: "In substance, at least some of the orders sought appear to be for compensation for compulsory acquisition in the form of land and works. In my opinion even if this Court has jurisdiction it has no power to make such orders. The Court's power under the Just Terms Act is limited to determining compensation because of the compulsory acquisition of land 'in accordance with' the Just Terms Act, Division 2 of Part 12 of the Roads Act 1993 or any other Act: ss 19e) and 24 of the Land and Environment Court Act 1979. Entitlement to compensation in the form of land or works only arises if the person and the authority of the State concerned agree: s 64 Just Terms Act. In the present case there is no such agreement." 1. In this case, the parties have agreed that the compensation will be partly by money paid, and partly by way of an easement for services over the Land, and entering into a deed to facilitate potential relocation of the easement if required. The deed is necessary to facilitate the movement of the stratum for the easement if the easement causes difficulty for the construction of the Parramatta Light Rail. In light of the s 34 agreement between the parties in this case, compensation determined in accordance with the requirements of Part 3 Division 4 of the Just Terms Act may be provided partly by the payment of money and partly by the giving of an interest in land. 2. As 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. 3. 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) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. The Court orders: 1. Compensation pursuant to Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991 (Act), for the acquisition of: 1. a freehold interest in part of Lot 1 DP 226202 (now known as Lot 1 Deposited Plan 1248549); 2. a leasehold interest in part of Lot 2 DP 1248549 for a period terminating on 30 June 2021; 3. a leasehold interest in the whole of Lot 102 DP 1146308 for a period terminating on 30 June 2021; 4. a leasehold interest in the whole of Lot 201 DP 669350 for a period terminating on 30 June 2021; and 5. an easement for access over Lot 2 DP 1248549 terminating on the date on which the Lot 102 Lease and the Lot 201 Lease are terminated, being part of the land known as 1 Grand Avenue North Camellia, Sydney, is determined as follows: 1. the payment of monetary compensation in the sum of $2,500,000; and 2. the grant of an easement on the terms set out in the Annexure A to this agreement. 1. The Applicant is to duly complete and deliver to the Respondent the deed of release and indemnity and direction as to payment issued by the Respondent within 28 days of the final orders in these proceedings. 2. Within 28 days of the Respondent receiving the duly completed deed of release and indemnity and direction to payment, the Respondent is to: 1. pay the monetary compensation in 1(f) above less any advanced moneys paid plus any statutory interest pursuant to ss 49 and 50 of the Act; and 2. deliver to the Applicant a duly executed Easement for Services in the form contained in Annexure A. 1. The Applicant is to lodge for registration the Easement for Services in Annexure A within 28 days of the Applicant being provided with the duly executed Easement for Services in the form contained in Annexure A as contemplated in Order 3(b). 2. To facilitate the registration of the Easement for Services referred to in Order 4, the Applicant and the Respondent are to make available to NSW Land Registry Services any necessary certificates of title for the Lot Benefitted and Lot Burdened by the Easement for Services within 28 days of the Applicant being provided with the duly executed Easement for Services in the form contained in Annexure A contemplated in Order 3(b). 3. Within 7 days of the registration of the Easement for Services at Annexure A, the parties are to enter into the Easement Relocation Deed in the form issued by the Respondent to the Applicant on 30 October 2020 (document number 337482817.6). 4. The Respondent agrees to pay the Applicant's reasonable costs of the proceedings as agreed or assessed, subject to the production of invoices and receipts substantiating the amount of the costs claimed. There is to be no interest payable on costs. 5. The parties have liberty to restore on 3 days' notice if alternative orders are required regarding the process of registration of the Easement for Services. ………………………… M Peatman Acting Commissioner of the Court Annexure A (1336996, pdf) ********** Amendments 18 December 2020 - Addition of sentence at [11]: "Although the above appears confusing, what it means is that the Valuer General valued the land at nil because his assessment for betterment exceeded the land value under s 55(a). The Compensation as assessed was for disturbance." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020