Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 Hearing dates: 27 May 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Before: Ward P at [1]; Gleeson JA at [2]; Mitchelmore JA at [3]; Basten AJA at [4]; Preston CJ of LEC at [80] Decision: (1) Dismiss the appeal from the judgment of the Land and Environment Court delivered on 27 August 2021. (2) Order that the appellant pay the respondent's costs in this Court. Catchwords: LAND LAW – compulsory acquisition of land – compensation – compensable interests in land – bare licence to occupy land terminable at will by owners – interest had no market value – meaning of "privilege over, or in connection with, land" – claim for compensation for losses attributable to disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 4, 59 STATUTORY INTERPRETATION – definition of "interest" in land – interest included "privilege over, or in connection with, land" – reliance on statutory context – consistency of meaning – reliance on object to provide compensation – statute using language of ownership – interest able to be divested, extinguished or diminished by acquisition STATUTORY INTERPRETATION – precedent – challenge to earlier decisions of Court of Appeal – whether court comfortably satisfied reasoning in earlier decisions wrong – Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 – Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 considered STATUTORY INTERPRETATION – extrinsic materials – legislative history – substantial amendments made without changing effect of precedent Legislation Cited: Crown Land Legislation Amendment Act 2017 (NSW) Sch 4.44 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 4, 11, 12, 19, 20, 22, 34, 37, 54, 55, 59, 62 Local Government Amendment (Regional Joint Organisations) Act 2017 (NSW), Sch 2.15 Public Works Act 1900 (NSW), s 117 Statute Law (Miscellaneous Provisions) Act 2017 (NSW), Sch 2.22 Regulatory Reform and Other Legislative Repeals Act 2015 (NSW), Sch 1.14 Cases Cited: Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 Gaudioso v Transport for New South Wales [2021] NSWLEC 91 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2015) 89 NSWLR 237; [2015] NSWCA 100 Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353; (2006)149 LGERA 149 Minister for Education and Training v Tanner [2003] NSWCA 164; (2003) 128 LGERA 281 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279; [2019] NSWCA 41 Sorrento Medical Service v Chief Executive, Department of Main Roads [2007] 2 Qd R 373; [2007] QCA 73 The Minister v The New South Wales Aerated Water and Confectionery Company Ltd (1916) 22 CLR 56; [1916] HCA 48 Texts Cited: JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2015) WN Hohfeld, Fundamental legal conceptions as applied in judicial reasoning (Yale University Press, 1923) Category: Principal judgment Parties: Olde English Tiles Australia Pty Ltd (Appellant) Transport for New South Wales (Respondent) Representation: Counsel: I Hemmings SC / L Nurpuri (Appellant) R Lancaster SC / A Hemmings (Respondent) Solicitors: Mills Oakley Lawyers (Appellant) Herbert Smith Freehills (Respondent) File Number(s): 2021/273007 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Class 3 Citation: [2021] NSWLEC 90 Date of Decision: 27 August 2021 Before: Duggan J File Number(s): 2018/288532