Australia: NSW Government Bulletin - 17 February 2016

Last Updated: 26 February 2016
Article by Kim Nguyen and Christine Jones

On 9 February 2016, the NSW Court of Appeal handed down the decision of Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7. This decision involved the interpretation of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act).

In 2010, the Roads and Maritime Services (RMS) acquired some land for constructing the F3 Freeway to Branxton Highway Link (Hunter Expressway). Allandale Blue Metal Pty Ltd (ABM) was the owner of the acquired land. The land was used both for grazing and as a quarry. ABM did not operate the quarrying business itself and granted a lease to Quarry Products (Newcastle) Pty Ltd (QPN), a related company, to carry on the quarrying business.

Both ABM and QPN claimed compensation under the Just Terms Act. Whilst QBN commenced proceedings for financial loss as lessee, the proceedings were discontinued for the sum of $807,758 in compensation. ABM rejected an offer of compensation, and continued with its claim in the Land and Environment Court. On 17 February 2015, Pain J of the Land and Environment Court ordered payment of $3,387,796 in compensation to ABM.

RMS has appealed the judgment of Pain J, arguing that ABM and QPN could not be compensated for the same loss, for which one of the parties had already received compensation.

The Court of Appeal upheld the original decision in part, stating that a loss suffered by two different entities cannot be "the same loss". The Court of Appeal also stated that the Just Terms Act did not preclude the recovery of losses from different entities from the same circumstance. Section 56(2) of the Just Terms Act prevents generally, former owners of land receiving a sum for the market values of each interest which, together, will exceed the market value of the land. However, in this case, QPN did not receive any amount in relation to market value.

The RMS was successful on a separate issue in reducing the award for restriction on access to the timbered land. The timbered land was land not acquired by RMS, although the only means of access was an underpass constructed as part of the Hunter Expressway. Pain J had allowed compensation for "injurious affection", at 15% of the value of this land.

The Court of Appeal considered the question of whether adequate access was provided. The Court of Appeal stated that ABM already had unrestricted access to this area through an underpass, which was soon to be legally secured by registration of the necessary instrument under section 46 of the Roads Act 1993 (NSW). There was also no evidence suggesting that RMS would depart from its legal obligations in this respect. Therefore, ABM was not entitled to this component of compensation.

Change of date – 2016 NSW Government Lawyers Day
Please note, having regard to the NSW Government Legal Services Panel tender period, Holding Redlich's third annual NSW Government Lawyers Day will now be held in July. Stay tuned for further information soon about dates and session topics.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this  link.  Membership is open to lawyers employed in the public sector.

In the media

Department takes court action on AGLs political donation disclosures
The Department of Planning and Environment welcomes AGL's guilty plea in response to an investigation into the company's political donation disclosures (12 February 2016). Department takes court action on AGLs political donation disclosures

Public to have its say in Independent Review of Lockouts, Last Drinks and 10pm Liquor Laws
The public is being invited to have its say in an independent, evidence-based review of the 1.30am lockouts, 3am last drinks and 10pm takeaway liquor laws that will be led by a former High Court judge, Deputy Premier and Minister for Justice Troy Grant (11 February 2016). Public to have its say in Independent Review of Lockouts, Last Drinks and 10pm Liquor Laws

Liquor licence freeze extension gives community, business certainty
The NSW Government will extend the freeze on new liquor licences in the Kings Cross and Sydney CBD Entertainment Precincts for a further year to allow the upcoming statutory review of the lockout and last drinks legislation to be completed (06 February 2016). Liquor licence freeze extension gives community, business certainty

Auburn Council suspended, dodgy deals investigated
Auburn City Council has been temporarily suspended and an independent public inquiry mounted into alleged dodgy dealings of some of its councillors, NSW Local Government Minister Paul Toole announced today (10 February 2016). Auburn Council suspended, dodgy deals investigated

Public inquiries into NSW council mergers kick off
Residents, councillors, organisations and council staff spoke across a wide range of issues with almost all speaking in opposition to the creation of a new super council (03 February 2016). Public inquiries into NSW council mergers kick off

In practice and courts

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related Prosecutions. Updated 2 February 2016 Prosecution outcomes and briefs with the DPP

Independent Review of Lockouts, Last Drinks and 10pm Liquor Laws: submissions
 The review's terms of reference include examination of the impacts on alcohol-related violence and other harms and impacts on business, patrons and community amenity. Submissions can be made online or by mail. Further details of the review and consultation process are available at http://www.justice.nsw.gov.au/liquorlawreview and View Terms of Reference (06 February 2016)

NSW Parliament - This month in committees

Upcoming hearings

Reparations for the Stolen Generations in New South Wales (Wed 17)

Reparations for the Stolen Generations in New South Wales (Thu 18)

Review of the Report of the Inspector of the NSW Independent Commission Against Corruption regarding Operation 'Hale' (Fri 19)

Inquiry into elder abuse in New South Wales (Mon 22)

Inquiries receiving submissions

Inquiry into Legislative Council committee system, closes 6 March.

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 10 March.

Government responses due

Progress of the Ombudsman's investigation 'Operation Prospect' (response due) (Thu 25)

Companion Animal Breeding Practices in New South Wales (response due) (Sat 27)

NCAT: Security update for NCAT Online
A security update will soon be made to the NCAT Online​ application lodgement website with the latest encryption standards (09/02/2016) ​ Security update for NCAT Online

NCAT: New and updated NCAT policies

Publishing R​​easons for Decisions - The updated NCAT Policy 2 - Publishing Reasons for Decisions [PDF, 50kB] sets out the practices and considerations which apply to the publication of reasons for decisions​ made in the various Divisions​ ofthe Tribunal and by the Appeal Panel.

Provision of Statistical Data - The updated NCAT Policy 3 - Provision of Statistical Data [PDF, 33kB] sets out the circumstances in which statistical data might be provided to external bodies and individuals, and the procedures for dealing with statistical data requests.

Access to and Publication of Information -​The new NCAT Policy 4 - Access to and Publication of Information Derived from Proceedings [PDF, 45kB] sets out the legislative provisions, protocols and procedures that apply where persons who are not parties to proceedings wish to gain access to, or publish, information derived from proceedings in the Tribunal.​

(02/02/2016)  New and updated NCAT policies

Cases

BMY v Department of Family and Community Services [2016] NSWCATAD 24
The decision that access is refused is set aside and a substitute decision is made
ADMINISTRATIVE REVIEW- privacy-whether alteration of record needed to ensure accuracy, completeness and not misleading-whether personal information used or disclosed
Privacy and Personal Information Protection Act 1998; Privacy Code of Practice (General) 2003
More...

Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7
APPEAL – grounds – question of law – factual finding not challengeable where some evidence available and finding reasonably open – Land and Environment Court Act 1979 (NSW), s 58   STATUTORY INTERPRETATION – statutory provision for compensation on just terms – whether expression of elements of compensation varies effect of general law principles   WORDS AND PHRASES – "market value" – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55, s 56; "special value of the land" - Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(b); "loss attributable to disturbance" – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 55(d), s 59.  More...

Power Grid Cables Pty Ltd v Endeavour Energy [2016] NSWSC 34
INJUNCTIONS - Interlocutory injunctions – whether status quo can be preserved pending trial – expedited hearing ordered since interim relief not practical
ADMINISTRATIVE LAW – whether decision by state-owned corporation to remove items from approved materials list is an administrative decision which attracts requirements of procedural fairness
PRACTICE AND PROCEDURE – transfer of proceedings – "special federal matter"
Competition and Consumer Act 2010 (Cth), ss 46, 47; Electricity Supply Act 1995 (NSW), ss 26, 31
More...

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Kim Nguyen
Christine Jones
 
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