Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. This application concerns the availability of an alternative costs order if favour of the respondent, Blacktown City Council ("Council"), in Class 3 compulsory acquisition proceedings.

2. On 14 September 2022 the Council offered UPG 72 Pty Ltd ("UPG") compensation in the sum of $2,494,984.44 for the acquisition of UPG's land ("the acquisition"), Lot 31 in DP 1246761 ("the acquired land"), as determined by the Valuer-General ("statutory offer").

3. UPG objected to that offer pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 ("Just Terms Act") and commenced a Class 3 proceedings against that determination on 18 October 2022. UPG claimed compensation in the sum of $7,035,521.20, while the Council contended for nil compensation.

4. The hearing took place on 13 to 16, 20 and 22 May, 20 December 2024 and 28 January 2025. The finalisation of the decision was delayed pending the determination of the appeal in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; (2024) 262 LGERA 24.

UPG's Land is Compulsorily Acquired by the Council

5. On 10 December 2021, the Council compulsorily acquired the land for the stated purpose of constructing trunk drainage ("drainage") and creating habitat for the Green and Golden Bell Frog ("GGBF habitat").

6. UPG contended that but for the public purpose of constructing drainage and GGBF habitat, the acquired land would have been zoned R2 Low Density Residential ("R2") pursuant to the land releases that comprised the broader Riverstone Precinct urbanisation project. It therefore sought compensation based upon a market value calculated by reference to R2 zoning that totalled approximately $7 million and $35,521 for disturbance losses.

7. By contrast, the Council argued that the public purpose for the acquisition was that of the NSW Government's, namely, land release by way of the rezoning of precincts for urban purposes, and that in delivering drainage, the Council was the vehicle by which the NSW Government achieved part of this purpose. It argued that but for this purpose, the acquired land would have been zoned according to its pre-existing Rural zoning or, in the alternative, an E2 Environmental Conservation ("E2") zoning. The Council offered nil compensation because it contended that UPG owned land adjoining the acquired land ("Lot 30") whose value increased and thus exceeded that of the acquired land when it became available for development due to the construction of precinct wide drainage.

8. The principal issues for determination at the hearing were four-fold:

a) what was the public purpose for which the land was acquired;

b) what was the underlying zoning of the acquired land absent the public purpose;

c) if the acquired land was zoned R2, what drainage solution was required; and

d) whether any betterment arose under s 55(f) of the Just Terms Act relevant to the determination of the market value of the acquired land.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1983f4b2db770003ed2fe29f)

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