Land Acquisition Widens.

A judgement in the NSW Court of Appeals will send a shudder down the spine of property owners in this state.  We have always accepted that property resumption to enable major projects to proceed is an unfortunate necessity, but we expect to be paid a fair price and there have been rules governing these transactions.

One of those rules was a requirement that the government accurately define the need for the acquisition, and a ruling this week in the Court of Appeals simply set that back to zero.   In fact, it overturned a victory for the land owner obtained previously in the NSW Supreme Court.

The land in question was to be resumed as part of the Roads and Maritime Services plan for the $16.8 billion West Connex road project.   This 5274 square metre piece of land in Rozelle was challenged over the validity of the acquisition notice.

Plans for the West Connex have had several major revisions.  In May 2016 cabinet agreed to turn 10 hectares of land on the western side of the disused Rozelle rail yards into parkland.   This land under acquisition in Rozelle formed part of the land being used for that purpose and the Supreme Court ruling found that the purpose of acquiring land for open space and parkland  was " ulterior to the purpose of the acquisition notice ".

The Appeals Court has now found that there is no uncertainty that the land will form part of a construction site and " there was no need to identify the specific use with precision " at the time the acquisition notice was issued to the property owner.   The Appeals Court ruling went on to say that using the land for open space or parkland would not occur until after the project was finished " and did not mean Roads and Maritime was actuated by an improper purpose."

A new precedent has been set that seems to remove the protection that should a plan be changed to make the acquisition of property redundant to the use nominated in the acquisition notice the land owner could appeal to have the acquisition set aside - and continue to own the property.   In the past, many acquisitions have failed on these grounds.

This new legal thinking will have wide repercussions across Sydney.  It immensely strengthens the governments hand in acquiring properties associated with the redevelopment of Price of Wales hospital and the growing light rail corridors which are reaching into Sydney's western suburbs.  A change of plan is no longer a valid reason for a successful  appeal.

Being served with an acquisition order is a nightmare for the average property owner.  Usually the acquisition will take place some time in the future and their property is likely to stay in limbo for a long period of time.  One of the avenues fort a successful appeal has just been closed off.  Home owners now learn of government plans for their suburb - with apprehension  !