Collex Pty Ltd v RTA [2005] NSWLEC 601

Land and Environment Court of New South Wales

CITATION : Collex Pty Ltd v RTA [2005] NSWLEC 601

APPLICANT Collex Pty Limited PARTIES : RESPONDENT Roads and Traffic Authority of New South Wales

FILE NUMBER(S) : 31175 of 2004

CORAM: Talbot ACJ

KEY ISSUES: Compulsory Acquisition of Land :- whether effect of deed requiring owner to enter into same agreement with purchaser to develop land in particular way to be taken into account.

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991

CASES CITED: Minister Administering the Environmental Planning and Assessment Act 1979 v Bautovich [2005] NSWCA 350

DATES OF HEARING: 14/10/05

DATE OF JUDGMENT: 10/21/2005

APPLICANT Mr J Webster SC SOLICITORS Collex Pty Ltd General Counsel LEGAL REPRESENTATIVES:

RESPONDENT Mr R Lancaster SOLICITORS Corrs Chambers Westgarth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot ACJ

21 October 2005

31175 of 2004 Collex Pty Limited v Roads and Traffic Authority of New South Wales

JUDGMENT 1 Talbot ACJ: The Applicant Collex Pty Limited was previously the owner of an area of 35.22 ha Lot no 1 DP1052225 having a frontage to Wallgrove Rd at Eastern Creek. On 28 May 2004 the Respondent acquired 4.512 ha being Lot 9 DP 1059698 out of the said Lot 1 for the purposes of the construction of the Western Sydney Orbital Road. The residue of Lot 1 is now Lot 8 in DP 1059698 comprising 30.708 ha. Collex has lodged with the Court an objection to the amount of compensation offered by the Respondent pursuant to section 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ("the Just Terms Act") 2 On 2 July 2001 Collex and Austral Brick Company Pty Ltd executed a Deed of License and Operations whereby the parties agreed to the licensing and development of Lot 1 as a landfill on the terms set out in the Deed. Austral as the owner of the land at the date of the Deed agreed to sell the land to Collex on terms whereby Collex paid Austral the sum of $3.6 million when Collex obtained all licenses reasonably necessary or advisable for the development and operation of a solid waste landfill on the land and a further sum of $1.15 million on the defined commencement date. Under clause 4.1 of the Deed Collex was required to lodge and prosecute applications for the licenses with all reasonable diligence and at its own cost and Austral was obliged to sign all documents and do all things reasonably necessary or advisable in relation to the preparation, lodgement and prosecution of the applications for the licenses. The Deed recites and imposes obligations on both partiers in regard to the creation of airspace within the land and the construction of landfill cells, haul roads and facilities for landfill operations within the land. There are a number of provisions imposing mutual obligations on the parties.