Jonathan ChancellorDecember 8, 2020
The ASX-listed residential developer Desane has won its court battle against the NSW government's proposed low value compulsory acquisition of its development site in Rozelle for the construction of the WestConnex motorway.
Justice Hammerschlag ruled the government's notice to acquire Desane's development site at 68-72 Lilyfield Road in Rozelle had no statutory effect.
"Compulsory acquisition of private property is no light matter.
"Complying with the requirements of s 15 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 judge ruled.
Desane will keep the land to progress the residential development of its $100 million 200-apartment project, its chairman Professor John Sheehan advised.
"I refer to Darryl Kerrigan in the movie The Castle," Professor Sheehan said after the court judgement.
"The court basically threw out the case."
"They were being mean and tricky and trying to steal the property from us. They conveniently overlooked the LEP [Local Environmental Plan]."
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"The bigger picture is that is is simply due to cost overruns, and the government is looking at value capture," he added.
They will acquire some sites on the fringe and get a development application... to offset the cost overrun," he said.
"It begs the question why some of these properties on the edge of infrastructure projects are being acquired," he told The Australian Financial Review adding that evidence revealed that the site was merely being considered for a car park.
“From day one, Desane questioned the true purpose of RMS’ proposed acquisition of our
Rozelle property”, Professor Sheehan officially advised shareholders his ASX notification.
“We are pleased that Justice Hammerschlag has found that the PAN issued by RMS was of no effect.”
"If a land owner compulsorily to be dispossessed is entitled to know precisely what the land is needed for a public purpose, that entitlement must stem from elsewhere," Justice Hammerschlag said in his judgment.
"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 [articulated by Dixon CJ]."
"I conclude that the proposed acquisition notice of no statutory effect for failure to state the public purpose for which the property is to be acquired."
Late last year the Supreme Court of New South Wales
ordered a mediation with the NSW government and various government agencies related to their proposed compulsory acquisition of the developer’s site in Sydney’s
Rozelle.
Desane Properties Pty Ltd was represented in the proceedings by the Honourable Ron Merkel QC, David Pritchard, SC, and Stewart Levitt of Levitt Robinson Solicitors.
RMS had throughout known that Desane wished to negotiate a solution which obviated the necessity for the permanent taking of the whole of the property.
His honour noted what appeared to be the most developed plan at the time of the PAN shows only a use of a sliver of the property for a utilities corridor.
"An easement would no doubt have sufficed to achieve this requirement absent the parkland commitment," Justice Hammerschlag ruled.
"The same can be said of any works deep beneath the property.
"In my view, it is improbable that RMS would have sought to acquire the entirety of the property (which it currently values at over $20 million) where only a sliver of it would be used, but for its open space and green parkland purpose."
His Honour noted "in contrast to its somewhat amorphous purpose for acquiring the property to be used as a construction site, from at least 21 July 2016 RMS has had the unqualified and fixed purpose to acquire the Property to provide 10 hectares of open space and green parkland as publicly committed to by the Government
.
"The PAN was given to effectuate that purpose.
"That purpose is ulterior to the purpose for which the PAN could properly have been given," he ruled.
"It will be an abuse of RMS’ powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose."
