Australia: NSW Supreme Court rules that compulsory acquisition can proceed despite Proposed Acquisition Notices (PAN) not being issued to all owners

The Baptist Union of New South Wales & Anor v Georges River Council [2017] NSWSC 347

A recent decision of the NSW Supreme Court has confirmed that there is no jurisdictional requirement that every person with an interest in land must be issued a proposed acquisition notice (PAN) before the land can be compulsorily acquired.


  1. The first plaintiff, the Baptist Union of New South Wales (Baptist Union), was the registered proprietor of church property at 4-6 Dora Street Hurstville (Land).
  2. The defendant, Georges River Council (Council), issued a PAN on Baptist Union on 6 December 2016. The PAN was unsigned. A signed, amended PAN was issued on 22 March 2017 (Amended PAN).
  3. The second plaintiff, Baptist Churches Property Trust (Trust), claimed to be the legal and beneficial owner of the Land by reason of the Baptist Churches of NSW Property Trust Act 1984 (Property Trust Act). The plaintiffs argued that s 16 of the Property Trust Act had the effect of fully divesting Baptist Union of any legal or equitable interest in the Land, notwithstanding that Baptist Union was the registered proprietor. The Trust did not receive a PAN.
  4. At the time the PAN was issued, the Land was occupied by Connect Church on a month-to-month tenancy. Connect Church, who was not a party to the proceedings, also did not receive a PAN.
  5. The plaintiffs argued that the PAN was void for jurisdictional error because: (i) it purported to notify Baptist Union of an intention to acquire an interest in the Land which was not "held" by Baptist Union; and (ii) it failed to comply with the requirements of ss 11 and 12 of the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act), as it did not notify any "owners" with an interest in the Land.
  6. The plaintiffs sought various orders which were directed at restraining the Council from acquiring the Land.
  7. The defendant argued that: (i) the PAN was valid; (ii) it was not necessary that a PAN be served on every owner; (iii) the orders sought by the plaintiff were inappropriate and/or could not be granted; and (iv) that the proceedings were commenced out of time by reason of rule 59.10 of the Uniform Civil Procedure Rules 2005 in any event.


The Court considered the following issues in the proceedings:

  1. Was it appropriate to extend time for commencing the proceedings?
  2. Was service of a PAN on every owner a jurisdictional requirement that had to be met before the acquisition could proceed?
  3. Was the PAN issued to Baptist Union invalid on the basis that Baptist Union did not have an "interest" in the Land?
  4. Was the PAN issued to Baptist Union invalid on the basis that it was unsigned?
  5. Was Council required to serve a PAN on Connect Church on the basis that Connect Church was in lawful occupation of the land (s 12(1)(b) of the Just Terms Act)?
  6. Was Council required to serve a PAN on the Trust on the basis that it had "actual knowledge" of the Trust's interest in the Land (s 12(1)(c) of the Just Terms Act)?
  7. Were the orders sought by the plaintiffs inappropriate or incapable of being granted?


In relation to each of these questions, the Court held as follows:

  1. Although the proceedings were commenced out of time, it was preferable, in the interests of justice, to determine the issues on their merits. In this case, any potential prejudice to the defendant could be managed by the delivery of the Court's judgment on an urgent basis (at [26]).
  2. Service of a PAN on every owner is not a jurisdictional requirement that has to be met before the acquisition can proceed. The objects, provisions and structure of the Just Terms Act support the conclusion that it was not the purpose of the legislation that an act which breaches s 12 amounts to jurisdictional error. Hence, there was no jurisdictional error in proceeding to gazettal of the acquisition notice having failed to issue a PAN to the Trust (at [67] and [84]).
  3. Baptist Union did have an "interest" in the Land. At the very least, Baptist Union, being the registered proprietor of the land, had a "right, power or privilege over or in connection with the land". It was unnecessary to decide whether s 16 of the Property Trust Act overrode the indefeasibility conferred by s 42 of the Real Property Act 1900 (at [69] and [73]).
  4. In the circumstances, the PAN was not invalid due to the absence of a signature. Section 15 of the Just Terms Act does not require that a PAN be signed. Even if a signature was required, its omission is in the nature of a clerical error or obvious mistake that was remedied by the Amended PAN (at [77]).
  5. Consistent with its earlier findings, the Court held that there would be no jurisdictional error in proceeding to gazettal of the acquisition notice having failed to issue a PAN to Connect Church (at [82]).
  6. The Council did not have actual knowledge of the Trust's interest in the Land. Correspondence over the years of negotiations over the sale of the Land contained various descriptions of the "seller" of the Land. In these circumstances it could not be accepted that the Council had "actual knowledge" of the Trust's interest in the Land (at [83] and [84]).
  7. The Court accepted that the orders sought by the plaintiff were inappropriate or could not be granted (at [58]-[63] and[85]).


The Court made the findings regarding the following sections of the Just Terms Act:

  • Section 4: A registered proprietor of land has at the very least a "right, power or privilege over or in connection with the land" (at [69]).
  • Section 11: The requirements of s 11 in terms of the persons upon whom a PAN should be served should be read subject to s 12 (at [64]).
  • Section 12: An act done in breach of s 12 does not amount to jurisdictional error (at [66]).
  • Section 15: The provisions of s 15 do not include a mandatory requirement that the PAN be signed (at [74]).
  • Section 16: The power in s 16(3) to correct a "clerical error" or an "obvious mistake" in a PAN extends to signatures (at [76]).
  • Section 33: s 33 supports the conclusion that the validity of an acquisition is not affected by any failure to comply with s 12 of the Just Terms Act (at [51] and [66]).


Key takeaways from the decision are that:

  1. it is not necessary for all owners of land to receive a PAN in order for the land to be compulsorily acquired; and
  2. the Just Terms Act is directed towards the prompt and efficient acquisition of land for just compensation, and this includes circumstances where a person has not been notified of the acquisition or the authority was not aware of the person's interest in the land.

The decision is also an illustration of the broader principle that the exercise of a statutory power is not necessarily invalid if it is exercised in breach of a condition on that power. In this case, the Court was satisfied that it was not the intention of the Just Terms Act to prevent an acquisition in circumstances where the notice requirements of s 12 of the Just Terms Act had not been met.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.