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New Land and Environment Court Class 3 Compensation Claims Practice Note

On 15 March 2019, the Chief Judge of the Land and Environment Court of New South Wales issued a new Practice Note for Class 3 Compensation Claim proceedings relating to the acquisition of land. The purpose of this new practice note was to implement a significant change to the way in which compensation proceedings are managed. More specifically, the new practice note is better aimed at facilitating just, quick and cheap resolutions of what can often be very complex compensation cases.

Change 1 – Earlier Conciliation conferencing

The biggest change in the practice note is that conciliation conferencing will be one of the initial procedural steps undertaken prior to preparation of expert evidence. The old practice note provided that conciliation conferences were to take place approx. 16 weeks after the initial directions hearing, following preparation of all of the expert evidence and relevant pleadings. Under the new practice note, parties should now expect to attend a conciliation conference approx. 4 weeks after the initial directions hearing.
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Indemnity Costs Order in Class 3 Proceedings

On 7 February 2018, Molesworth AJ of the Land and Environment Court delivered his judgment in Croghan v Blacktown City Council (No 2) [2019] NSWLEC 9 (Croghan). The judgment represents a notable development in the law concerning the making of costs order in Class 3 land acquisition proceedings.  It represents the first time that the Land and Environment Court in New South Wales has ordered the claimant to pay the acquiring authority’s legal costs assessed on an indemnity basis.

Background

In Croghan, the acquiring authority is Blacktown City Council (Council), who sought to acquire part of Mr Croghan’s land in the suburb of Vineyard in 2016 for the purpose of constructing new drainage system and for public recreational uses.

In October 2016, the Valuer-General of New South Wales had assessed the total compensation payable to Mr Croghan at $4,802,000.

Dissatisfied with the Valuer General’s assessment, Mr Croghan lodged an appeal in the Land and Environment Court under the Court’s Class 3 jurisdiction. In the Class 3 Application, Mr Croghan sought a compensation of $11,157,251.88.  This figure was revised down $8,405,752.00 four days before the hearing in February 2018.
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Prefabricated Buildings Pty Ltd v Bathurst Regional Council (No.2) [2017] NSWLEC 111

Background

On 24 April 2017 judgment was delivered in Prefabricated Buildings Pty Ltd v Bathurst Regional Council [2017] NSWLEC 44 dismissing a Class 3 application brought by Prefabricated Buildings Pty Ltd (‘Prefabricated Buildings’) appealing against a rates notice issued by Bathurst Regional Council (‘Council’). The appeal was brought pursuant to s 574(1) of the Local Government Act 1993 (NSW) (‘Act) and related to an annual rates notice issued for water and sewerage services.

A summary of that case by our Local Government specialists can be found here.

Council’s Notice of Motion for costs

On 10 May 2017, Council filed a Notice of Motion seeking an order that Prefabricated pay its costs in the proceedings, including the costs of the Motion. The case of Prefabricated Buildings Pty Ltd v Bathurst Regional Council (No.2) [2017] NSWLEC 111 deals with this Motion.

At the Motion, Robson J considered at whether a departure from the presumptive rule that each party bears its own costs is warranted and whether it is fair and reasonable in the circumstances to award costs. He looked at whether the applicant acted unreasonably and whether proceedings were solely centred on a question of law.
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