On 1 May 2018, the Supreme Court of New South Wales handed down its decision in the matter of Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553.
Significantly, the decision held that the New South Wales Government did not issue a valid Proposed Acquisition Notice for the compulsory acquisition of the land proposed for the WestConnex motorway project.
The decision confirms strict compliance requirements with the statutory process for the compulsory acquisition of land in New South Wales.
The Proposed Acquisition Notice (PAN)
The formal compulsory acquisition process is commenced by an authority of the State (in this case the Roads and Maritime Services (RMS)) providing the owner of land with a PAN setting out the intention of the Authority to acquire land by compulsory process.
A primary point of contention in this case was that the RMS did not issue the PAN to Desane Properties Pty Limited (Desane) in the Approved Form, that is, the form prescribed by the regulation or approved by the Minister.
Hammerschlag J held that the PAN was of no statutory effect due to the following:
- The numerous, while mostly trivial, divergences from the Approved Form – which included the specification on the PAN that when the land is compulsorily acquired Desane would receive an offer of compensation within forty-five (45) days of the date of the publication of the acquisition notice in the Government Gazette, whereas the Approved Form refers to the period as thirty (30) days.
- While the PAN identified that the land was being acquired ‘for a public purpose’, it did not precisely identify what that public purpose was, leaving Desane to guess the public purpose for which it’s land was being acquired.
In his judgment, Hammerschlag J highlighted the importance of the New South Wales Government undertaking the process of compulsorily acquisition correctly and responsibly because:
“Compulsory acquisition of private property is no light matter. Complying with the requirements of s15 is not a matter of difficulty, and it is not too much to ask of an authority of State given power to interfere with such rights.”
The judgment also accentuates the significance of land owner protection when land is being compulsorily acquired, as in the words of Hammerschlag J:
“…a land owner…to be dispossessed is entitled to know precisely what the land is needed for a public purpose…If there is no such entitlement, the land owner might never learn why his land is to be taken, an outcome which would be dissonant with the right in point of justice”
Improper Purpose
Another argument put forward by Desane was that the RMS’ dominant purpose was to acquire the land to create an open space and green parkland, a purpose which was improper as it was not a valid purpose for acquisition under the Roads Act 1993 (NSW) necessary for the construction of the WestConnex.
In response, Hammerschlag J held that the RMS intended to acquire the land from Desane even if the Rozelle Interchange did not go ahead, therefore intending to acquire the land even if the Roads Act 1993 (NSW) had no role to play, which in the words of Hammerschlag J was a purpose “ulterior to the purpose for which the PAN could properly have been given.”
Accordingly, absent the purpose to provide the open space and green parkland, the PAN would never have been given to Desane and the acquisition would not have proceeded.
Moving Forward
As a result of this case, the New South Wales Government should ensure:
- it issues valid PANs in the Approved Form; and
- for a proper purpose.
Furthermore, land owners should seek legal advice when approached by the New South Wales Government for the acquisition of land.
If Council or a land owner requires advice in relation to the validity of PANs or the compulsory acquisition process generally, please contact Marsdens’ local government specialist David Baird on 4626 5077 or dbaird@marsdens.net.au to arrange an appointment
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
