Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac's Pty Ltd [2008] NSWCA 132

Reported Decision: 162 LGERA 1 Appeal Outcome: Appeal allowed by the High Court 2 April 2009 [2009] HCA 12

New South Wales Court of Appeal

CITATION: Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council v Mac's Pty Ltd [2008] NSWCA 132

HEARING DATE(S): 1 May 2008, 2 May 2008

JUDGMENT DATE: 11 June 2008

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 8; Palmer J at 202

In proceedings Nos. CA 40726/07 and CA 40727/07: (a) Appeals allowed. DECISION: (b) In each matter the declaration and orders (other than Order 4) made by Biscoe J on 28 September 2007 be set aside and in lieu thereof: (i) the Class 4 Applications filed on behalf of Mac's Pty Limited on 21 August 2007 and on behalf of R & R Fazzolari Pty Ltd on 22 August 2007 be dismissed. (ii) the respondent in each application to pay the appellant's costs of the application and of the appeal from the decision of Biscoe J with respect to that application but to have with respect to each appeal a certificate under the Suitor's Fund Act 1951, if otherwise qualified.

CATCHWORDS: Local government – Statutory functions – Compulsory acquisition – Purpose of acquisition – Whether acquisition was for purpose of exercising statutory service function – Land adjoining or in vicinity of other land proposed to be compulsorily acquired – Public-private partnership for development – Whether council proposed to acquire land for purpose of resale – Meaning of resale – Distinction between purpose and motive – Dominant purpose – Implementation of Parramatta Civic Place Master Plan.

Lands Acquisition Act (NT) section 43 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) sections 11, 19 Local Government Act 1919 (NSW) sections 321, 322 Local Government Act 1993 (NSW) sections 6, 7, 8, 21, 23, 24, 45, 186, 187, 188, 400B, 400E, 400I, 403, 405, 406 and 407 LEGISLATION CITED: Local Government Amendment (Public-Private Partnerships) Act 2004 (NSW) Roads Act 1993 (NSW) sections 41, 43 Suitor's Fund Act 1951 (NSW) Sydney Regional Environmental Plan No.28 – Parramatta clauses 10, 15 and 28 Sydney Regional Environmental Plan No.28 – Parramatta (Amendment No.6)