PORT STEPHENS COUNCIL v FIDLER [1997] NSWCA 249

PORT STEPHENS COUNCIL v FIDLER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and POWELL JJA and SHEPPARD AJA 4 August 1997, 4 August 1997 [1997] NSWCA 249

Building Control and Town Planning - Environmental Planning Instruments - Reserved land — Public recreation zone — Request to responsible authority to acquire — Responsible authority and land owner unable to agree on market value — Application by landowner to Land and Environment Court for order that landowner acquire by compulsory process — Whether responsible authority had failed to comply with obligation to acquire.

Powell JA This is an appeal pursuant to the provisions of s58 of the Land and Environment Court Act 1979 from a Declaration made on 24 September 1996, and consequential Orders made on 25 November 1996, by Talbot J in Class 4 proceedings which had been brought by the Respondent against the Appellant seeking Orders pursuant to the provisions of Div 3 of Pt6 of the Environmental Planning And Assessment Act 1979.

In his Application the Respondent, who was registered as the proprietor of two parcels of land located within an area zoned 6(a) for the purposes of Port Stephens Local Environment Plan 1987, sought the following relief:

"1. An order that the Respondent acquire

(a) Lot 2 in DP 854716; and

(b) proposed lot 71 in DP being part of lot 7 in DP 854332 for which a Certificate of Title has not yet issued;

both of which lots are zoned 6(a) pursuant to Port Stephens Local Environment Plan 1987, by compulsory acquisition in accordance with the Land Acquisition (Just Terms Compensation) Act 1991; 9. Costs."

On 24 September 1996, Talbot J made a Declaration that the Appellant was required to acquire the two lots by resumption and made orders for costs.

On 25 November 1996, when dealing with an application on behalf of the Appellant for a stay of proceedings, Talbot J made an order that the Appellant acquire the two lots by compulsory process and made certain other consequential Orders.