Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde [2021] NSWLEC 40

Land and Environment Court New South Wales

Medium Neutral Citation: Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde [2021] NSWLEC 40 Hearing dates: 22 April 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [122] and [123] Catchwords: COMPULSORY ACQUISITION - Respondent acquires land for public recreation purposes - land zoned R2 Low Density Residential prior to rezoning for public recreation - land compulsorily acquired from each Applicant after successful hardship applications - Applicants dissatisfied with Valuer General's compensation determinations - Applicants commence proceedings seeking higher compensation - dispute as to whether Valuer General's future land zoning basis for compensation is correct - Applicants contend future zoning would be R4 High Density Residential - Respondent contends zoning would remain R2 Low Density Residential - Consent Orders in related Supreme Court proceedings resulted in advance payments to each Applicant - advance payments significantly less than 90% of the compensation determination made by the Valuer General in each instance - each Applicant now seeks an order requiring the Respondent to make an additional payment to bring the total advance payment to 90% of the Valuer General's compensation determination - Respondent contends in each proceeding that the Valuer General's compensation determination is too high and that 90% of the Valuer General's determination would exceed the amount that will be the outcome in each proceeding - Respondent has paid $5 million into its legal representatives' trust account to protect each Applicant's compensation position but resists paying additional advance payment amounts direct to each Applicant - Respondent proposes continuation of the trust account regime which had been established pursuant to this Supreme Court proceedings' Consent Orders - consideration of the statutory regime in the Land Acquisition (Just Terms Compensation) Act 1991 (the Land Acquisition Act) concerning advance payments - Applicants submit there is no power to withhold advance payments as proposed by the Respondent - held that there is no discretionary power to withhold the statutorily mandated advance payments - held that there is power to order the Respondent to make the additional advance payments sought - additional advance payments ordered to be made DISCRETION - appropriate to consider issues of discretion on a contingent basis - statutory regime in the Land Acquisition Act for recovery of monies when advance payments exceed the quantum of compensation determined by the Court - consideration of whether Respondent has an arguable case in support of its future zoning position - held Respondent has an arguable case in support of its future zoning position - nature of the financial information concerning each of the Applicants - necessity to evaluate evidence as to whether each applicant would be able to repay any overpayment of monies made as advance payments - taking into account the advance payment already made to Mr Azizi, no basis to conclude he would not be able to make any required repayment - if power to maintain Respondent's trust account regime, it would not be appropriate to exercise it in Mr Azizi's proceeding - taking into account the advance payment already made to Alnox Pty Ltd, there is a proper basis to conclude Alnox Pty Ltd would not be able to make any required repayment - if power to maintain Respondent's trust account regime, it would be appropriate to exercise it in the Alnox Pty Ltd proceeding COSTS - costs follow the event in Class 3 compensation proceedings - both Applicants succeed in obtaining orders sought in the relevant Notice of Motion - Respondent ordered to pay Applicant's costs of the relevant Notice of Motion Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991, ss 4, 48, 66 and 68 Land and Environment Court Act 1979, ss 16 and 23 Land and Environment Court Rules 2007, r 3.7 Ryde Local Environmental Plan 2014 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Blacktown City Council v Concato [2018] NSWSC 1039 Brock v Roads and Traffic Authority of New South Wales (No.2) [2012] NSWLEC 114 Council of the City of Ryde v Azizi [2019] NSWSC 1605 Gosford City Council v Valuer-General (1996) 90 LGERA 413 Haig v Minister Administering the National Parks & Wildlife Act (No 3) (1996) 90 LGERA 408 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sydney Water Corporation v Caruso and Ors (2009) 170 LGERA 298; [2009] NSWCA 391 Taylor v The Owners of Strata Plan 11564 and Others (2014) 253 CLR 531; [2014] HCA 9 Category: Procedural rulings Parties: 168439 of 2020 Raymond Boutros Azizi (Applicant) Council of the City of Ryde (Respondent)