NSW GOVERNMENT Acquisition Powers boosted after DESANE decision overturned

WHEN one thought it could not get any worse in New South Wales … it certainly has with the Court of Appeal decision boosting the Berejiklian Government ability to compulsorily acquire property to benefit Transurban, the light rail and the Prince of Wales Hospital redevelopment …

WAS Justice delivered, or dogma, or more of the same?

An AWFUL prospect for the 165 subject to the acquisition notices like those before them robbed of the market value of their properties

State acquisition powers boosted after Desane decision overturned

The NSW government has succeeded in its appeal against a landmark decision to block it from forcibly acquiring property from a developer in Sydney’s inner west for the $16.8 billion WestConnex toll road project.

The judgment in the NSW Court of Appeal is a boost to the Berejiklian government’s ability to compulsorily buy property for major projects in Sydney worth billions of dollars such as the Parramatta light rail line and the Prince of Wales Hospital redevelopment.

The Desane property, outlined in red, at the centre of the legal tussle.
The Desane property, outlined in red, at the centre of the legal tussle.Photo: Supplied


It overturns a NSW Supreme Court decision in May that found Roads and Maritime Services’ plans for a 5274-square metre property in Rozelle owned by Desane were ill-defined and “may never be realised”. The case centred on the validity of a proposed acquisition notice.

In the Court of Appeal judgment handed down on Thursday, the proposed acquisition notice issued to Desane by the roads agency in May last year for the property was found not to be invalid, and nor did it have to strictly comply with an approved form.

Under plans for the final stage of WestConnex, Cabinet agreed in July 2016 to turn 10 hectares of land on the western half of the disused Rozelle Rail Yards into parkland.


Less than a year later, Roads and Maritime Services issued a proposed acquisition notice for Desane’s Lilyfield Road property which abuts the old rail yards.

The Supreme Court found in May that the purpose to acquire the land for open space and parkland was “ulterior to the purpose” of the acquisition notice.

An artist's impression of the parkland planned to cover the old Rozelle Rail Yards.
An artist’s impression of the parkland planned to cover the old Rozelle Rail Yards.Photo: Supplied


But the Court of Appeal found there was no uncertainty that Desane’s property would be used as part of a construction site and that there was “no need to identify the specific use with precision” at the time the proposed acquisition notice was issued to the property developer.

And in relation to the roads agency contemplating using the property for open space and parkland, the judgment said this was not until after the construction would be finished and “did not mean that [Roads and Maritime Services] was actuated by an improper purpose”.

The court also found that there was no requirement under the Just Terms Act 1991 for a valid acquisition notice to state the public purpose for the purchase of property.

The state’s roads authority had successfully sought to fast-track the appeal, after warning it placed in doubt about 165 existing proposed acquisition notices issued to land owners by government agencies.

Roads and Maritime Services said the judgment would be considered in detail, and added that the government “would be unable to deliver projects that benefit communities across the state” without property acquisitions.

Desane said it was disappointed by the judgment and would consider its options.

“Whatever course of action company decides has to be in the best interests of its shareholders,” Desane chairman John Sheehan said.

The property developer has been ordered to pay Roads and Maritime Services’ costs.

Matt O'Sullivan

Matt O’Sullivan is the Transport Reporter for The Sydney Morning Herald.


SOURCE:  https://www.smh.com.au/national/nsw/state-acquisition-powers-boosted-after-desane-decision-overturned-20180906-p50247.html