Goldmate Property Luddenham No 1 Pty Ltd v Transport for NSW

Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 49, 50, 55, 56, 59, Pt 3 Div 4
Land and Environment Court Act 1979 (NSW), ss 38, 57
Roads Act 1993 (NSW), s 177
Environmental Planning Policy (Western Sydney Aerotropolis) 2020

Cases Cited: Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19
Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales (2024) 116 NSWLR 233; [2024] NSWCA 292
Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39
RD Miller Pty Ltd v Roads and Maritime Services NSW (2020) 245 LGERA 259; (2020) 103 NSWLR 234; [2020] NSWCA 241
Sydney Metro v G & J Drivas Pty Ltd (2024) 258 LGERA 197; (2024) 113 NSWLR 429; [2024] NSWCA 5
Telado Pty Ltd; CFT No. 8 Pty Ltd v Sydney Metro (No 2) [2025] NSWLEC 124
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; (2008) 170 LGERA 345; [2008] HCA 5

Category: Principal judgment

Parties: Goldmate Property Luddenham No 1 Pty Ltd (Applicant)
Transport for NSW (Respondent)

Representation: Counsel:
B Walker SC and T Hale SC (Applicant)
N Hutley SC and M Astill (Respondent)
Solicitors:
Colin Biggers & Paisley Lawyers (Applicant)
Clayton Utz (Respondent)

File Number(s): 2022/00161771

Publication restriction: Nil

JUDGMENT

Nature of proceedings

1. On 19 April 2024, I delivered a judgment in relation to the Applicant’s claim for compensation for the compulsory acquisition of its land at Luddenham: Goldmate Property Luddenham No*.* 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39 (Goldmate LEC).

2. The Applicant appealed to the Court of Appeal from my decision. On 9 December 2024, the Court of Appeal delivered its judgment wherein it upheld the Applicant’s appeal for the reasons identified in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292 (Goldmate CA), and made the following orders:

3. Appeal allowed.

4. Set aside:

(a) the determination by Duggan J of market value pursuant to s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW); (b) the order of 19 April 2024 for determination of the compensation payable to the appellant under Part 3 Division 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW); and (c) the order for the costs of the proceedings in the Court below.

3. Remit to the Land and Environment Court:

(a) the determination of market value pursuant to s 55(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) to be determined according to law; and (b) the costs of the proceedings before Duggan J.

4. Order the respondent to pay the appellant’s costs of the appeal.

5. These proceedings relate to the remittal of the matter to me for determination in accordance with the law as identified in Goldmate CA. The period of time between the hearing of the remittal and the decision in Goldmate CA was largely to enable the Respondent to prosecute its unsuccessful application to the High Court for special leave from Goldmate CA.

Scope of remitter

4. The appeal in Goldmate CA was on two grounds as identified by Adamson JA in Goldmate CA at [5] as:

5 …

(1) the primary judge erred in her Honour’s interpretation of s 56(1)(a) of the Act in finding that the public purpose for which the Land was acquired for the purposes of that section could be other than the purpose identified in the notice of acquisition, which nominated the Roads Act 1993 (NSW) as the source of the respondent’s power to acquire the Land; and

(2) the primary judge erred by asking the wrong legal question when assessing the injurious affection to the Residue Land.

5. Her Honour further identified the substance of ground 1 at [29] as:

29 The question of law which arises from ground 1 is whether the identification of the public purpose of the acquiring authority (in this case, the respondent) within the meaning of s 56(1)(a) of the Act is:

(1) to be determined solely by reference to the statute which authorises the acquiring authority to acquire the subject land (as the appellant contended); or,

(2) a question of fact to be determined, if need be, by the primary judge (as the respondent contended).

6. The ultimate finding as to ground 1 was contained in [76]-[78] per Adamson JA (with whom Gleeson JA and Preston CJ of LEC agreed) where it was stated:

76 I accept the appellant’s submission that the Act requires that the relevant purpose identified in step (3) above, be the purpose by reference to which the causation question in s 56(1)(a) of the Act is to be answered. To do otherwise, would create legislative incoherence as well as uncertainty. The expression “public purpose” is defined in s 4 of the Act as “any purpose for which land may by law be acquired by compulsory process under this Act.” The definition is to be read into s 56(1)(a) of the Act, in order to give effect to it: Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [84] and [103] (McHugh J).

77 The primary judge’s finding of fact as to the purpose of the acquisition of the Land for the M12 was legally erroneous. Her Honour’s enquiry as to the wider background of the acquisition was irrelevant because the respondent’s purpose, for the purposes of s 56(1)(a) of the Act, was constrained by the terms of the Roads Act and could not amount to a public purpose as that term is defined in s 4 of the Act. Thus, her Honour erred in steps (2), (3) (and, therefore, (4)) above.

78 Accordingly, ground 1 has been made out.

7. In the further reasons given by Preston CJ of LEC (with whom Gleeson JA agreed) the error relating to ground 1 was identified at [108]-[110] as:

108 The upshot is that the public purpose for which the primary judge found the land was acquired (in [51]) was not a purpose of the Roads Act for which land may be acquired under s 177 of the Roads Act. This did not cause TfNSW’s acquisition of the land to lack validity. The land was stated in the proposed acquisition notice and notice of acquisition of land to be acquired for the purposes of the Roads Act and in particular “in connection with the construction, operation and maintenance of the M12 Motorway.” That clearly is a purpose of the Roads Act for which land may be acquired.

109 Rather, the primary judge’s finding that the purpose for which the land was acquired was not that purpose but instead a broader purpose that is not a purpose of the Roads Act reveals error on a question of law. Whilst identification of the public purpose for which the land was acquired is a factual exercise, it must be undertaken within the constraints of the law that governs the acquisition of land by compulsory process. One of those constraints is that an authority of the State may only acquire land for a public purpose for which land may by law be acquired by compulsory process. In the case of TfNSW, it may only acquire land by compulsory process for any of the purposes of the Roads Act. The primary judge erred in finding that the public purpose for which the land was acquired was a purpose other than any of the purposes of the Roads Act. The primary judge’s task, in determining the market value of the land, was to identify a public purpose for which the land was acquired that was a purpose within, not outside, the power of the acquiring authority of TfNSW to acquire land by compulsory process.

110 For these further reasons, the primary judge erred on a question of law by misconstruing and misapplying the definition of “market value” in s 56(1) of the Land Acquisition Act in determining the public purpose for which the land was acquired. Ground 1 is therefore established. …

8. Ground 2 was found not to arise for determination as it was an alternative ground to that upheld in ground 1. However, the Court of Appeal at [80] per Adamson JA and at [110]-[111] per Preston CJ of LEC (the reasoning of both of whom Gleeson JA agreed) determined that, in effect, the error asserted in ground 2 was one that related to the impact on the Residue Land of the OSO, which error was one of fact and not of law and therefore could not fall within the Court of Appeal’s jurisdiction as conferred by s 57(1) of the LEC Act.

9. On that basis, the Court of Appeal identified at [79] that:

79 It was common ground that, in this event, the matter ought be remitted to the Court below in order that the market value of the Land could be assessed on the correct legal basis. The remitter is limited to the determination of market value pursuant to s 55(a) of the Act, applying the proper interpretation of s 56, as no other integer has been successfully challenged.

10. The scope of the remitter is therefore that identified (and limited) by the words of [79] of Goldmate CA and I must now determine the market value pursuant to s 55(a) of the Just Terms Act, applying a proper interpretation of s 56 of that Act.

Issues for determination

11. Having regard to the scope of the remitter there are a number of issues that arise for redetermination:

12. The public purpose. It was agreed that consequent upon the error identified in Goldmate CA my determination of the public purpose as set out at [51]-[52] of Goldmate LEC is not the relevant public purpose. I must now determine the public purpose having regard to the statement of the legal principles as identified in Goldmate CA.

13. Market value. As a consequence of the redetermination of the public purpose in accordance with law, it is then necessary to redetermine the market value of the Acquired Land in accordance with the provisions of s 56(1)(a) of the Just Terms Act. In this case, what arises is a redetermination of whether the rezoning of the Acquired Land (which rezoning was agreed to increase the value of the Acquired Land) was caused by the carrying out of, or the proposal to carry out, the public purpose for which the Acquired Land was acquired. This issue will be determined on the basis of my findings of the public purpose identified in issue 1 above.

14. The OSO. The Applicant also raises for redetermination whether there was a decrease in the value of its Residue Land that adjoined the Acquired Land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the Acquired Land was acquired. This claim arises pursuant to s 55(f) of the Just Terms Act. As the determination of this question also requires a consideration of the redetermined public purpose to be identified in issue 1 above, the claim relating to the OSO will require redetermination.

15. Determination of the amount of compensation. Upon the redetermination of issues 1, 2 and 3 above the amount of compensation will be required to be redetermined in accordance with s 55 of the Just Terms Act. However, apart from the inputs relating to market value (s 56(1)(a)) and the OSO (s 55(f)) the quantum of any of the other relevant factors are not required to be redetermined as a consequence of the scope of the remitter and will remain as determined by me for the reasons identified by me in Goldmate LEC.

16. Cost****s. The remitter requires a redetermination of costs of the Goldmate LEC proceedings having regard to the relevant costs principles that apply in the context of the quantum of compensation as redetermined by me. It is also necessary that I determine the appropriate order for costs of these remitter proceedings.

Facts and evidence

12. I must determine the issues that arise for determination having regard to the relevant evidence that was tendered in Goldmate LEC. Further, except to the extent that I made a finding of fact that is now to be redetermined in light of the scope of the remitter, findings of fact made by me in Goldmate LEC remain.

13. The facts to which I have regard are largely recited at [2]-[13], [37]-[41] of Goldmate LEC and I adopt them without repetition.

14. The defined terms used in Goldmate LEC are adopted without further definition.

Issue 1 – What was the public purpose?

15. The statutory language of the Just Terms Act identifies the legal context in which the relevant public purpose is to be determined. As held at [71] of Goldmate CA:

71 The proper construction of s 56(1)(a) of the Act, when read in light of the authorities, of which Walker Corporation is the leading case, requires the following steps to be taken in an assessment of market value under s 56(1)(a) of the Act:

(1) the identification of the acquiring authority;

(2) the identification, by reference to the empowering legislation, of the public purpose or purposes for which the acquiring authority (identified in (1) above) has the power to acquire land;

(3) the identification of the acquiring authority’s public purpose in acquiring the land, which must fall within the purpose or range of purposes identified in (2) above; and

(4) the determination of the question, which is one of fact, whether there has been any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, identified in (3) above (any such increase or decrease is to be disregarded).

16. In Goldmate CA at [71] the Court of Appeal identified the relevant steps as they applied to the appeal before it considered those steps as they related to the appeal at [73]:

73 In the present case, the respondent is the acquiring authority (step (1)). As to step (2), the respondent’s power to acquire the Land derives from s 177 of the Roads Act. The only purpose in the Roads Act which was identified as supporting the acquisition was s 71: namely, to carry out road work. There is a distinction between power and purpose; however, the respondent’s power to acquire land is constrained by the purpose of the acquisition. The respondent could not point to any source of power to acquire land for any broader purpose than that for which the Roads Act provided. Thus, its purpose in acquiring the Land, being the sole statutory purpose authorised, was to carry out road work for the M12 (step (3)).

17. Whilst the Court of Appeal identified that the public purpose in acquiring the Acquired Land was to carry out road work for the M12, each of the parties contended that such words did not represent a relevant finding upon which I was bound to follow, as the nature of the appeal was limited to whether I had erred in law in the determination of the public purpose. Therefore, with that limitation, it was not a matter for the Court of Appeal to determine the factual question of what was the public purpose. Having regard to the nature of the terms of the remitter I accept that it was intended that in the remitter I determine, as a question of fact, what was the relevant public purpose and that I must do so in accordance with the legal requirements of that exercise as determined in Goldmate CA.

18. The parties were at issue as to the proper determination of what the public purpose should be.

Applicant’s submissions

19. The Applicant contended that the public purpose was, as identified by the power to acquire land in the Roads Act and as described in the Acquisition Notice, for the purpose of the construction, operation and maintenance of the M12: see also Goldmate LEC at [31].

Respondent’s submissions

20. The Respondent submitted that the public purpose should be identified as the WSIP. This contention was an adoption of the third basis upon which the Respondent contended for a “broader purpose”. I did not determine this contention in Goldmate LEC, having preferred the Respondent’s other alternative characterisation of the public purpose. That third basis was, as I set out in Goldmate LEC at [32]:

32 …

(3) If, in the further alternative, TfNSW’s purpose comprises only the WSIP without reference to the State’s overarching purpose but for the WSIP, the rezonings would not have taken place. The effect of the public purpose on values is indirect, but nevertheless within that which must be disregarded under s 56(1)(a) of the Just Terms Act.

21. It was conceded that the WSIP may include works (including road works) that were outside the statutory remit of the Respondent, and to that extent the relevant public purpose was that part of the WSIP that related to works for which the Respondent had statutory power, which included but was not limited to the M12. On the Respondent’s submission the relevant stepped approach identified in Goldmate CA was capable of being met with the characterisation of the public purpose as being the WSIP.

22. The WSIP related solely to infrastructure and the development of roads that were within the remit of the Respondent. It did not involve the rezoning of any land.

23. In the alternative, the Respondent contended that the public purpose was the M12.

Findings on public purpose

24. In accordance with Goldmate CA I am required to determine the acquiring authority’s public purpose as one that falls within the purposes as identified in the empowering legislation, which in this case was to carry out road work in relation to the roads for which the Respondent is responsible: see s 177 of the Roads Act.

25. I accept the Respondent’s submission that both the M12 and those parts of the WSIP that relate to roads for which the Respondent had responsibility are purposes within the scope of the Respondent’s power as conferred by the Roads Act. However, in determining the public purpose I must also have regard to the matters for consideration identified by me in Goldmate LEC at [20] as the settled principles to be applied in the task of determining the public purpose, which summary was not criticised in Goldmate CA and therefore remain appropriate.

26. This case requires me to determine the public purpose for which the Acquired Land was acquired: see ss 56(1)(a) and 55(f) of the Just Terms Act. The WSIP was broader than the Acquired Land and related to roads that included but was not limited to the M12. The other roads that were included in the WSIP, whilst part of a package of infrastructure intended to “support integrated transport for the western Sydney region” (Goldmate LEC at [41(2)]), were not identified in the evidence or submissions as having a connection to the M12, in that they were required to permit it to function for its intended purpose, or were required or intended to be supplemented by or enhanced by, the operation of the other roads.

27. The Acquired Land was acquired to facilitate the construction of the M12, in that it was proposed that the road infrastructure that was to be the M12 was to be constructed on the Acquired Land. Absent some interconnection of purpose relating to the road work proposed (in this case, the M12) I do not consider the other roads to which the WSIP related were a part of the public purpose for the acquisition of the Acquired Land. I find that the public purpose was for the construction, operation and maintenance of the M12.

28. In the alternative, even if the WSIP more generally was relevant to my consideration of the public purpose it would still be necessary for me to determine the public purpose (Goldmate LEC at [20(4)]):

20 …

(4) … at the appropriate level of generality is to be determined. Factors to be taken into account may include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority: Noubia at [62]-[63].

29. In this case, it is apparent from the evidence I outlined at Goldmate LEC at [37]-[41] that the M12 component was treated as a separate road project from those other roads identified in the WSIP. Further, there was no degree of continuity or consistency between the M12 as a road project, or as a road generally, with the other roads to which the WSIP related. On that basis, I find that in determining the public purpose at the appropriate level of generality the public purpose would be limited to the construction, operation and maintenance of the M12.

30. For the reasons outlined above, I find that the public purpose for which the Acquired Land was acquired was for the construction, operation and maintenance of the M12.

Issue 2 – Did the public purpose (or the proposal to carry out the public purpose) cause the change in the zoning of the Acquired Land?

31. Having regard to my determination of the public purpose I must determine whether there was (as is relevant in this case) an increase in the value of the Acquired Land caused by the carrying out of, or the proposal to carry out, the M12. In this case, the parties agree that this question is directed to whether the zoning of the Acquired Land as at the Date of Acquisition as Enterprise ENT under the provisions of the SEPP Aerotropolis was caused by the carrying out of, or the proposal to carry out, the M12.

Respondent’s submissions

32. The Respondent contended that notwithstanding the redetermination of the public purpose, whether such purpose was the roads identified in the WSIP or the M12, that the rezoning of the Acquired Land was caused by that purpose, or the proposal to carry it out.

33. Succinctly put the Respondent maintained that the evidence established that without the M12 the rezoning would not have occurred and this was sufficient for it to be disregarded by operation of s 56(1)(a) of the Just Terms Act.

34. The Respondent alternatively contended that if it could be found on the evidence that the rezoning caused the M12 and the M12 caused the rezoning – which proposition was described as “mutually directly causative” – for the purposes of s 56(1)(a) of the Just Terms Act the M12 would be said to have caused the rezoning. The argument was that each event would equally meet the “but for test” in determining causation and as the rezoning had the effect of increasing the value of the Acquired Land it is legally causative for the purposes of the requirements of s 56(1)(a).

35. The Respondent accepted that the relevant cause was required to be a direct cause of the relevant increase or decrease in value of the land acquired. However, the Respondent advocated for a nuanced understanding of what was considered to be a direct cause as required by Walker. Where two events were necessary to bring into effect a desired result, and the two events were undertaken by different departments of the same government (each having responsibility for the different administrative function), the decision in Walker was not intended to discount as indirect two departments acting in concert to achieve the same end. Rather, the concept of direct and indirect requires a consideration of whether something is “sufficiently direct” in so far as it is a link in the chain of causation.

36. The Respondent, after traversing the decisions relating to causation summarised its position at par 42 of its written submissions as follows:

37. Where the public purpose causes a different zoning to that which would otherwise apply, and that zoning affects value, that change of zoning is (or can be) a link in the causal chain contemplated by the concept of causation (between public purpose and change in value) in s 56(1)(a). That is so even if other authorities may have been required to exercise their separate statutory discretions: see MMTR Pty Ltd v Roads and Maritime Services [2015] NSWLEC 177 at [135], citing AMP Capital Investors Ltd v Transport Infrastructure Development Corp (2008) 163 LGERA 245 (AMP) at [99]; see also Cupo v Chief Executive, Dept of Transport and Main Roads [2014] QLC 019 at [27];

38. Thus, the public purpose need not be the sole cause of the change in value; and

39. That such a question is one of fact.

40. The Respondent contended that the relevant causal inquiry could include the “but for test” noting that in Drivas CA at [85], [88] such test was not wholly rejected:

85 Textual and contextual considerations point away from the respondents’ construction in that the causal question needs to be directed to the effects on the value of the land of the authority carrying out or proposing to carry out the public purpose, not the effects of the proposed acquisition. It strains reasonableness of attribution for there to be causal significance to the free choices of the owners in response to the possibility or certainty of acquisition. The respondents’ construction moves away from the central concern of s 56(1)(a).

…

88 … An increase or decrease in value caused only by choices made by an owner prior to the date of acquisition in relation to the land, being choices made because of the possibility or certainty of the land being acquired, are not the types of effects on value which can be regarded as having been caused by the actual or proposed carrying out of the public purpose for which the relevant authority is acquiring the land…

38. This proposition was reinforced by the decision of the Court of Appeal in Noubia CA where Payne JA stated at [77]:

77 … It is correct, as Kirk JA explained in Sydney Metro at [89], that the likelihood of a development consent being obtained by the date of acquisition but for the actual or proposed carrying out of the public purpose may be relevant to the s 56(1)(a) inquiry, even though doing so may involve taking account of steps that would have been taken prior to the acquisition by the acquiring authority. The public purpose itself in such a case has causal significance in the analysis beyond steps the owner would or would not have taken because of the proposed acquisition.

39. The application of these principles should be made in the context of the findings of fact made in Goldmate LEC. As the Court of Appeal in Goldmate CA does not affect the findings of fact made, those findings should inform the determination of the question of causation.

40. The findings of fact made indicate that the WSIP and the M12 were intended as a catalyst for the development of the area in accordance with the SEPP Aerotropolis. The M12 was always intended to be (and was) a necessary element to enable the rezoning of the Acquired Land. Emphasis was placed upon my findings at [42], [44]-[46] of Goldmate LEC (Respondent’s emphasis):

42 … I also find for the same reasons that the actions of TfNSW in acquiring the land for the purposes of the M12 was in the furtherance of that purpose. The goal for the acquisition of the M12 was not merely to provide vehicular movements to and from the WSA but also to make provision for transport related to the intended land use changes which would facilitate commercial, employment and industrial uses around the WSA to leverage the economic opportunities provided by the WSA. Each element had to work in concert, or the goal (the purpose of such works) would not be achieved. To paraphrase the language in Perry at [100], the actions were a continuous and consistent action to give effect to such purpose.

…

44 The evidence (as outlined above) does not support a finding that TfNSW (or the departmental predecessors that were responsible for roads in NSW) would have constructed the M12 absent the land use changes. It is apparent from the date of the announcement and the subsequent implementation of the WSIP continuing until the Date of Acquisition that the M12 was intended to accommodate transport for the WSA as well as providing for the growth in the economic activity of Western Sydney more broadly, but particularly in connection with commercial uses around the WSA.

45 Until the announcement of the WSA the State Government had made no movement towards providing such road infrastructure in this locality. The lack of road infrastructure was one of the reasons that the investigations into the creation of the South West Growth Area indicated a planning horizon decades into the future.

46 Accordingly, the evidence supports a finding that the road project was intricately linked with the land use changes around the WSA. Absent such land use changes the M12 would not have been developed at this time or in this form.

41. On the basis of the evidence, the Respondent contended that I should find that the carrying out of the public purpose, being the M12, relevantly caused the rezoning and therefore the increase in value should be disregarded in the determination of the market value of the Acquired Land.

Applicant's submissions

42. The Applicant submitted that the M12 did not cause the rezoning of the Acquired Land and should not be disregarded for the purpose of determining the market value of the Acquired Land.

43. The Applicant also accepted that my determination of the cause of the increase in value should be undertaken on the basis of my findings on the evidence in Goldmate LEC, albeit to support the different conclusion than that formulated by the Respondent.

44. The Applicant contended that the proper approach to the construction of the disregard in s 56(1)(a) of the Just Terms Act was largely well settled and identified the following principles in its written submissions in reply at par 4 as the relevant principles, as summarised below:

45. The public purpose for which the land is acquired must be a public purpose for which the acquiring authority acquired the land, and for which the acquiring authority had power to acquire the land under the empowering legislation: Goldmate CA at [71]; steps (1), (2) and (3);

46. The determination of the question, which is one of fact, whether there has been any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired in (1) above, being step (3): Goldmate CA at [71]; step 4;

47. Section 56(1)(a) reflects “a policy to require a disregard only of that increase or decrease... in value for which the resuming authority is responsible”: Goldmate CA at [32], [72]; Drivas CA at [38]-[39]; Walker at [54]; and

48. Section 56(1)(a) requires a direct causal connection between a decrease in value of the land, and the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. An indirect relationship is not sufficient: Noubia CA per Payne JA at [67] (with whom Kirk JA and Preston CJ of LEC agreed); RD Miller Pty Ltd v Roads and Maritime Services NSW (2020) 245 LGERA 259; (2020) 103 NSWLR 234; [2020] NSWCA 241 per Preston CJ of LEC at [180] (with whom Bell P agreed).

49. The Applicant contended in its oral submissions that something has a sufficiently direct causal connection with another thing if it comes about because of the other with no interposing extraneous contribution to the result.

50. The concept of a direct consequence was derived from the High Court in Walker at [54] wherein it was stated:

54 This reasoning should be accepted. The construction of the market value disregard in para (a) for which the Foreshore Authority correctly contends, links “the proposal” to that of the resuming authority. It puts aside anterior discussions or agitations by the Council and others in favour of classifying the Land as public space. In this way there is reflected in the terms of para (a) of s 56(1) a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority is responsible.

47. The causation question is directed to that which the resuming authority is responsible.

48. As to the Respondent’s submission that “mutually directly causative” factors operating such that each of the multiple factors may be sufficient to fall within the causation consideration posed by s 56(1)(a) of the Just Terms Act the Applicant contended that this approach was impermissible. Rather, the statutory enquiry is merely: does one thing cause another; not, do two or more things cause each other.

49. The causative event in this locality was the announcement that the Federal Government was proceeding with the WSA. The fact of that proposal indicated to the relevant market that there was to be changes in the locality which could affect the value of the lands in the area, either by increase or decrease. The M12, being the public purpose for which the Acquired Land was acquired was responsive to the WSA not the rezoning of land, the rezoning of lands was responsive to the WSA and not the M12. Whilst both the rezoning of the land and the provision of the M12 benefited each other, this does not necessarily meet the statutory causation question: was the increase in the value of the Acquired Land caused by the construction, operation and maintenance of the M12?

Findings on market value

50. The determination of market value, and in particular whether a change in value of the Acquired Land was caused by the carrying out of, or the proposal to carry out, the public purpose is a factual one. The remitter of this matter to me for determination in accordance with the reasons in Goldmate CA do not require (or permit) a redetermination of the facts on the evidence before me in Goldmate LEC.

51. Further, in determining the cause of an increase or decrease in value all factual matters that are capable of effecting such a change in value are relevant – the factual enquiry as to the cause of the change in value is not limited only to those facts relating to the determination of the public purpose. To put it another way, I am not limited in the enquiry merely to matters relating to the M12 (being the public purpose as identified) rather all facts capable of influencing the change in value are to be considered and then the question answered: was the change in value of the Acquired Land caused by the M12?

52. In this case, the volume of evidence was substantial and related to the historical context of development in the locality, the WSA, the decision-making and investigations that formulated the M12 and the SEPP Aerotropolis. The evidence was considered and opinions were expressed by expert town planners that opined as to the influences on development in the locality. Based upon my consideration of that evidence I made findings of fact as set out in Goldmate LEC.

53. Based on the findings of fact made by me in Goldmate LEC I consider the following evidence relevant to the determination of the cause of the change in value as a result of the rezoning of the Acquired Land:

54. Prior to the introduction of the SEPP Aerotropolis the Acquired Land was zoned RU2;

55. Whilst land had been acquired by the Federal Government for airport purposes it was not until the announcement of the creation of the WSA in 2014 that such a proposal became concrete: Goldmate LEC at [37];

56. Upon the announcement of the WSA: Goldmate LEC at [41]:

41 …there were actions taken to ensure both the provision of infrastructure (including the M12) and the provision of changes to the planning regime to redefine the land uses around the proposed WSA. Whilst the infrastructure and planning actions were undertaken by separate departments within the NSW Government and, to that extent, each had a focus on their particular portfolios, the actions were undertaken in concert to achieve the coordinated goal or purpose of effecting change within the locality of the WSA to support the airport and to leverage economic benefit to Western Sydney through transport and planning change.

4. Goldmate LEC at [42]:

42 …at all material times, the purpose of the NSW Government was to carry out the broad intention of the WSIP which included traffic and transport infrastructure together with the rezoning of certain areas as part of a coordinated State Government response to the announcement of the WSA in 2014 and continuing. I also find for the same reasons that the actions of TfNSW in acquiring the land for the purposes of the M12 was in the furtherance of that purpose. The goal for the acquisition of the M12 was not merely to provide vehicular movements to and from the WSA but also to make provision for transport related to the intended land use changes which would facilitate commercial, employment and industrial uses around the WSA to leverage the economic opportunities provided by the WSA. Each element had to work in concert, or the goal (the purpose of such works) would not be achieved. To paraphrase the language in Perry at [100], the actions were a continuous and consistent action to give effect to such purpose.

5. Goldmate LEC at [44]-[46]:

46 The evidence (as outlined above) does not support a finding that TfNSW (or the departmental predecessors that were responsible for roads in NSW) would have constructed the M12 absent the land use changes. It is apparent from the date of the announcement and the subsequent implementation of the WSIP continuing until the Date of Acquisition that the M12 was intended to accommodate transport for the WSA as well as providing for the growth in the economic activity of Western Sydney more broadly, but particularly in connection with commercial uses around the WSA.

47 Until the announcement of the WSA the State Government had made no movement towards providing such road infrastructure in this locality. The lack of road infrastructure was one of the reasons that the investigations into the creation of the South West Growth Area indicated a planning horizon decades into the future.

48 Accordingly, the evidence supports a finding that the road project was intricately linked with the land use changes around the WSA. Absent such land use changes the M12 would not have been developed at this time or in this form.

6. Disregarding the finding as to the scope of the public purpose my findings on the evidence in Goldmat**e LEC at [51]-[52] remain relevant wherein I stated:

51 Having regard to the evidence that there was a unified goal that characterised the actions subsequent to the announcement of the construction of the WSA, that goal was to facilitate the operations of the WSA and to facilitate commercial, industrial and employment uses around the WSA to leverage the economic opportunities provided by the WSA….

52 …[which] required coordinated actions to provide the necessary infrastructure and to facilitate the required land uses by the rezoning of land around the WSA.

7. Absent the WSA the prospect of any rezoning of the Acquired Land was not sufficient to impact on the value of the Acquired Land as at the Date of Acquisition: Goldmate LEC at [67]-[68].

8. It is clear from the evidence and the factual findings that the creation of the WSA was a significant change to the existing land uses in the locality. The past investigations into the opportunities for land use changes in the locality had indicated that there was insufficient demand for higher order commercial land uses and therefore the need for more infrastructure investment. On the evidence, development potentiality of the land in the locality (including the Acquired Land) was unlikely to change within a time horizon sufficiently proximate to the Date of Acquisition to impact on land values.

9. The creation of the WSA changed that position immeasurably. The creation of the WSA immediately created demand for change in the locality that would support its operation, and in the context of the State Government, to enable it to leverage the economic opportunity that was available as a consequence of the creation and operation of the WSA. The retention of the Acquired Land with a RU2 zoning (and the low order zoning of other land) would not permit the leveraging of that opportunity. The leveraging of the opportunity would also create demand for improved infrastructure, including roads, to meet the demand created both by the WSA and the economic opportunities. As I found in Goldmate LEC, absent the WSA there would have been no land use planning or infrastructure in the locality.

10. Using whichever metric for determining causation as is appropriate, be it the “but for test” as advocated by the Respondent, or the creation of an effect without the intervention of an interposing extraneous factor as advocated by the Applicant, there is no doubt on the evidence that the WSA caused the rezoning changes and the infrastructure changes in the locality including the Acquired Land.

11. The only event that occurred that changed the development potential of the Acquired Land was the creation of the WSA. Absent the WSA there would be no need for the M12 and no necessary development potential beyond the existing RU2 zoning.

12. The changes in value to which s 56(1)(a) of the Just Terms Act are directed are those caused by the carrying out of, or the proposal to carry out, the public purpose, which has been explained as those changes in value for which the acquiring authority is responsible. The creation and operation of the WSA, and the effect on value consequential upon such event, is a change in value caused by the Federal Government and not the public purpose identified in this case, namely the construction, operation and maintenance of the M12.

13. For the reasons outlined above, the change in value of the Acquired Land caused by the rezoning is not a matter to be disregarded by application of s 56(1)(a) of the Just Terms Act.

14. Additionally, if the effect on value is considered purely on the basis of the actions undertaken after the creation of the WSA, including the rezoning and creation of the M12 as it relates to the Acquired Land, I do not accept the Respondent’s submission that the M12 relevantly caused the rezoning (with the consequential change in value) such that it would be required to be disregarded.

15. The evidence as recited herein and in Goldmate LEC indicates that the M12 was to make provision for the traffic demand from the WSA and the rezoned lands. That is, that the rezoned lands created an impact by increasing traffic demand that required the provision of greater road infrastructure. The response to the demand was to identify the necessary infrastructure to accommodate the demand and build it. In this case, that infrastructure was ultimately determined to be the M12.

16. What is apparent, as I found in Goldmate LEC at [51] and recited at [53(6)] above is that the co-ordinated purpose of the State Government was to leverage the economic advantages brought about by the WSA. In addition, I found that absent the rezoning of the lands surrounding the WSA there was no evidence that the M12 would have been developed at all or at the relevant time.

17. If a cause of the change in value is to be determined with this in mind I find that the proposal to rezone the land around the WSA was the cause of the change in value and the cause of the M12, not the converse as contended by the Respondent.

18. The argument that “but for the M12 there would have been no rezoning” is not sufficiently nuanced or sufficiently cognisant of the factual context that was occurring in the locality to permit a consideration of the totality of decision-making taking place at the time. In this factual context the “but for test” as formulated by the Respondent does not adequately engage with the totality of the facts that occurred and had the potential to influence the value of the Acquired Land. Whilst the M12 facilitated the movement of traffic from the rezoned land it was not the foundation for the decision to rezone the land.

19. Further, the M12 was designed to respond to the demand created by the WSA and the rezoned land: see Goldmate LEC at [41(1)-(4)] and [41(6)]. For the same reasons, I do not accept that the M12 and the rezoning were “mutually directly causative” (without the need to determine whether such a concept falls within the statutory context of s 56(1)(a) of the Just Terms Act).

20. Accordingly, I find that the increase in the value of the Acquired Land consequent upon its rezoning to ENT pursuant to the SEPP Aerotropolis was not caused by the carrying out of, or the proposal to carry out, the construction, operation and maintenance of the M12 and therefore is not required to be disregarded for the purposes of the determination of market value as required by s 56(1)(a) of the Just Terms Act.

Issue 3 – OSO

67. This enquiry in this case is directed to whether the public purpose caused, in this case, a decrease in the value of the Applicant’s Residual Land which relevantly adjoined the Acquired Land. The factor to which this issue relates is the identification of a possible future location of the OSO on the Applicant’s land, adjacent to the Acquired Land: Goldmate LEC at [13].

68. The substance of the argument is whether the identification of the possible future location of the OSO caused by the carrying out of the M12.

Applicant’s submissions

69. The Applicant contended that, upon my determination of the public purpose in accordance with the legal principles in Goldmate CA I would reconsider the findings I made in Goldmate LEC, as my earlier findings were made in the context of my erroneous determination of the public purpose.

Respondent’s submissions

70. The Respondent contended that my earlier findings in Goldmate LEC remained applicable, as my findings related to adequacy of the evidence as to the reasons for the location of the OSO and, in the alternative, on the basis of the case as put by the Applicant, which is the case which I now have found in connection with the public purpose, namely that the public purpose was the construction, operation and maintenance of the M12.

Findings on the OSO

71. I accept that by redetermining the public purpose in a manner differently than that which I found in Goldmate LEC I am required to reconsider the claim under s 55(f) of the Just Terms Act as it relates to the impact of the OSO.

72. The case as put by the Applicant with regard to this consideration was that identified by me in Goldmate LEC at [121]-[122] wherein I stated:

121 The Applicant was unable to identify any evidence that established that the OSO was located on the Residue Land by virtue of the location of the M12. The Applicant relied upon the drawing of an inference from the evidence that the OSO was so located due to the fixing of the location of the M12.

122 The evidence discloses that the location of the OSO has not yet been fixed. It is identified in the SEPP Aerotropolis as “Outer Sydney Orbital (Under Consideration)”. Further, it has not been designated as land reserved for a road in the SEPP Aerotropolis or any other planning instruments. The evidence discloses that the OSO was the subject of consideration independent of the M12. The proposed location of the OSO had varied over time. The current location at the Date of Acquisition had been nominated after its previous location had been abandoned due to the fact that it had impacted upon residential properties. The inference to be drawn is not that the M12 dictated the location of the OSO, but rather the particular features of the land rendered it more suitable than other identified locations.

73. The foundation of the Applicant’s case has not changed by virtue of my redetermination of the public purpose, nor has the evidence. On that basis, I accept the Respondent’s submission that my findings as to the impact of the OSO and the claim pursuant to s 55(f) of the Just Terms Act would not alter. I further accept that in considering the Applicant’s claim I also considered it in the context of the M12, that is, having regard to the public purpose that I have now identified in this redetermination of that issue. In redetermining the claim I make the same findings I made in Goldmate LEC at [123]-[130] wherein I found, and I again find:

123 The inference contended for by the Applicant is not open on the evidence available.

124 However, even if the inference was available, it is necessary that the location of the OSO be so determined by reason of the carrying out of, or the proposal to carry out, the Public Purpose for which the land was acquired. The Applicant contended that the reference in s 55(f) of the Just Terms Act “by reason of” was a broader consideration than the use in s 56(1)(a) “caused by”. I do not accept that such a construction is open. Whilst the words used in each section are different the context and subject matter of the Just Terms Act does not permit a construction that would produce a lesser test for determining compensation for land retained by a dispossessed owner than the land actually acquired. Whilst I acknowledge that a different formulation of words is used in each section, those words in essence have the same meaning when read having regard to the context and purpose of the Just Terms Act.

125 Therefore, it is necessary for the Applicant to establish that the Public Purpose (as identified above at [51]) caused the loss in value occasioned by the location of the OSO. In light of the determination of the Public Purpose, the location of the OSO and its impact on value does not arise by reason of the Public Purpose, it has no connection to the achievement of the Public Purpose – but, even if the inference that the OSO was located by reference to the location of the M12 is accepted, such a decision was made by an authority in response to the acquisition and is therefore not a matter subject to the statutory disregard: Drivas at [88].

126 The evidence that related to the impact of the OSO upon the determination of value differed depending upon whether it was considered to have been caused by the Public Purpose. Mr Dempsey considered a downward adjustment of the “after” value across the whole of the Residue Land was appropriate as it was an impact caused by the carrying out of the Public Purpose. Mr Lunney ascribed a 10% downward adjustment on the land occupied by the OSO designation in both the “before” and “after” scenarios as he approached the impact of the OSO as being independent of the Public Purpose and therefore an influence on value in both scenarios. Mr Lunney ultimately accepted that the percentage value did contain an element of value judgment and that the range of impact could reasonably be between 10-20%.

127 For the reasons outlined above, I have found that the OSO was not caused by, or located by reason of, the Public Purpose. As a consequence of that finding the claim for the impact of the OSO pursuant to s 55(f) of the Just Terms Act cannot succeed. As a further consequence, the calculation of the diminution in value as a consequence of the OSO cannot be measured across the whole of the land affected by the OSO together with the Residue Land. On the basis of my finding as to Public Purpose, the impact on value of the land occupied by the OSO is present in both the “before” and “after” scenarios and is limited to the determination of the relevant rate/m2 for the area of land identified as the OSO.

128 As to the appropriate rate, I have concerns with respect to the 30% identified by Mr Dempsey. Such a rate assumes a degree of certainty as to the location of the OSO and therefore a high discount. For the reasons identified above, the OSO is not certain but has been identified as “under consideration”, and as a consequence of that uncertainty I find that the market is unlikely to treat the OSO as effectively unavailable for future development.

129 As to the rates identified by Mr Lunney, I accept his evidence that the market would consider the OSO land to be of some value, but tempered by the risk of either acquisition in the future or delays in obtaining development consent. Whilst I acknowledge that Mr Lunney identified a range of percentages that would be applicable, his acceptance of the subjectivity of where within that range the reduction should be fixed causes me to accept a percentage figure which best favours the dispossessed owner, the evidence being that the fixing of such a rate is within the range of reasonable valuation expectations. Accordingly, I adopt a rate for the OSO land that is 10% less that the rate for the land unaffected by the OSO in both the “before” and “after” scenarios.

130 For those reasons, the value of the land affected by the OSO is to be valued in both the “before” and “after” valuations at 10% of the otherwise determined rate/m2 in each scenario.

74. For those reasons, I find that the Applicant is not entitled to its claim for the effect of the OSO and that it is appropriate in both the before and after scenarios that a discount of 10% of the otherwise agreed rate/m2 should be applied to the land affected by the designation of the OSO.

Issue 4 – Determination of compensation

75. There were some submissions made about the areas of land to which the relevant rates I determined should be applied. For the avoidance of doubt, having regard to the evidence, I determine that the land to which each of the rates to be applied is that set out below.

76. Accordingly, for the reasons identified above, the compensation for the Acquired Land is to be determined on the following basis:

77. The market value is to be determined pursuant to s 56(1)(a) of the Just Terms Act on the basis that the land would be valued with an ENT zoning in both the before and after scenarios. Accordingly, I will apply the rate agreed between the valuers and the parties of $260/m2.

78. In the before scenario the total land area of Lot 26 was 31.79 hectares (Goldmate LEC at [2], par 4 of the Amended Points of Claim and admitted in the Amended Points of Defence at par 4).

79. Upon acquisition two lots were created from Lot 26:

(a) Lot 2, the Residue Land, retained by the Applicant with an area of 17.13 hectares (Goldmate LEC at [6(1)], par 19 of the Amended Points of Claim but not admitted in the Amended Points of Defence at par 19); (b) Lot 7, the Acquired Land, acquired by the Respondent with an area of 14.66 hectares (Goldmate LEC at [6(2)], par 19 of the Amended Points of Claim but not admitted in the Amended Points of Defence at par 19); and (c) I make no adjustments for the impacts of the easements in both the before and after scenarios for the reasons as set out in Goldmate LEC at [113] as the impacts on the easements is the same in both the before and the after.

4. I make a 10% adjustment for the impact of the OSO in both the before and after scenarios as I have found above that the location was not a matter to which a s 55(f) consideration arose. The same adjustment applies in both the before and after adjustment and results in a rate of $234/m2.

5. I apply the adjustment for the OSO to the area of the land in the before and after scenarios upon an area of 117,000m2 being the area of the land affected by the designation of the OSO as estimated by Mr Lunney and for which no evidence to the contrary has been identified.

6. I make a further allowance under s 55(f) for the impact on access in the amount of $100,000 as identified in Goldmate LEC at [116]-[120].

7. I assess the compensation for disturbance as identified in Goldmate LEC at [132]-[138].

8. I otherwise make no further adjustments for the reasons set out in Goldmate LEC at [98]-[113].

9. Accordingly, adopting the rates I have identified above, the market value of the Acquired Land is to be determined on the following basis:

10. Valuation – the “before” scenario:

| | Area (m2) | $/m****2 Rate | $ | | Non OSO Corridor | 200,900 | $260 | $52,234,000 | | OSO Corridor | 117,000 | $234 | $27,378,000 | | TOTAL | 317,900 | | $79,612,000 |

2. Valuation – the “after” scenario:

| | Area (m2) | $/m****2 Rate | $ | | Non OSO Corridor Land | 54,300 | $260 | $14,118,000 | | OSO Corridor | 117,000 | $234 | $27,378,000 | | TOTAL | 171,300 | | $41,496,000 |

3. Determination of market value having regard to the before and after calculations above:

| Valuation Before | $79,612,000 | | Valuation After | $41,496,000 | | Diminution in value (compensation payable): | $38,116,000 |

78. For the reasons herein, I determine that the Applicant is entitled to compensation totalling $38,353,979.78 comprised of the following amounts:

79. Section 55(a) market value: $38,116,000;

80. Section 55(f): $100,000; and

81. Section 55(d) determined in accordance with s 59(1)(a) and (b) disturbance: $137,979.78.

Costs of the Notices of Motion

79. Prior to the hearing of the remitter the parties filed three Notices of Motion which are summarised below:

80. The Applicant’s Notice of Motion dated 2 May 2025 seeking leave to reopen evidence on a limited basis and call upon the subpoena to Mr Simon Hunter to give evidence. The Court granted leave for the Applicant to issue that subpoena on 2 May 2025.

81. The Respondent’s Notice of Motion dated 22 May 2025 seeking an order that the leave to issue the subpoena granted on 2 May 2025 be set aside; and

82. The Respondent’s Notice of Motion dated 9 July 2025 seeking an order to set aside the Notice to Admit facts that the Applicant served on the Respondent on 2 July 2025.

83. The three Notices of Motion were fixed for hearing before me on 25 August 2025. On 19 August 2025, the President of the Legislative Council (the President) filed a Notice of Motion seeking leave pursuant to s 38(3) of the LEC Act to appear as amicus curiae in respect of the Applicant’s Notice of Motion filed 2 May 2025. The President sought to assert parliamentary privilege with respect to various comments made by a representative of the Respondent before the Legislative Council Public Accountability and Works Committee.

84. On 20 August 2025, the Applicant wrote to the Respondent’s solicitors advising that it would be withdrawing its Notice of Motion. The Court recorded the withdrawal of the Applicant’s Notice of Motion at the appearance on 25 August 2025. As a consequence of this withdrawal the Respondent’s Notices of Motion did not arise for determination and were also withdrawn.

85. The Respondent seeks its costs of the Notices of Motion. The Applicant contends that the appropriate order be that the costs be in the cause.

86. The relevant principles relating to costs in Class 3 compensation proceedings were identified by me in Telado Pty Ltd; CFT No. 8 Pty Ltd v Sydney Metro (No 2) [2025] NSWLEC 124 (Telado) at [8]-[12]. These principles are applicable to the question of costs on the Notices of Motion in so far as the questions for consideration in the Notices of Motion related to the determination of the quantum of compensation in connection with the compulsory acquisition of the Applicant’s land.

87. As the Notices of Motion were withdrawn, the merits of the Notices of Motion are not to be determined in the determination of an appropriate costs order. I can consider whether it was apparent on its face that the withdrawal of the Notices of Motion were, in effect, a recognition that the Notices of Motion had no prospects of success or were a capitulation on the part of the withdrawing party.

88. Each of the Notices of Motion related to the Applicant’s desire to re-open its case relating to the location of the OSO in light of my finding in Goldmate LEC that there was no evidence establishing a connection between the location of the M12 and the OSO. The Applicant, by reference to some testimony before the Parliamentary Committee on a date after the hearing and determination of Goldmate LEC, sought to establish otherwise, which course (in its various forms) was opposed by the Respondent.

89. In this case, the Applicant contends that the event that led to the prompt withdrawal of the Notices of Motion was the assertion of privilege by the President. Whilst I accept that the existence of the privilege rendered the Notices of Motion futile, I do not accept that the application to be heard by the President acted as a supervening event. The privilege asserted existed at all times; it would be for the Applicant to establish that the privilege was waived or otherwise inoperative in these circumstances.

90. In those circumstances, I consider that the pursuit by the Applicant of the Notices of Motion was unreasonable in the circumstances. I also accept that an order that costs be costs in the cause would, in effect, grant the Applicant its costs of the Notices of Motion due to the exercise of my costs discretion in the proceedings. Having regard to the substance of the Notices of Motion, the finding that the pursuit of the motions was unreasonable and in the general exercise of my costs discretion I find that it is appropriate that the Applicant not be awarded (in effect) its costs, and that it should be required to pay the Respondent’s costs of the Notices of Motion.

91. Accordingly, I will order that the Applicant pay the Respondent’s costs of the Notices of Motion.

Costs of these proceedings and the proceedings before me in Goldmate LEC

89. In Goldmate LEC at [139] I identified the agreed basis upon which costs of those proceedings should be determined. As identified above, I have determined an amount of compensation that exceeds that identified by the Respondent. No party has submitted that a different approach should be taken in redetermining those costs upon the remitter of that question from the Court of Appeal. For the same reasons, I therefore find that the Respondent should pay the Applicant’s costs of the Goldmate LEC proceedings.

90. With respect to the remitter proceedings, I have found that the Applicant has been largely successful in the outcome of the remitter proceedings with respect to the redetermination of those questions identified in Goldmate CA and the issues that were in dispute between the parties in that redetermination. I consider that the same principles that apply in Class 3 proceedings as I identified in Telado at [8]-[12] would equally apply in such proceedings remitted from the Court of Appeal. The Applicant has acted reasonably in the conduct of the remitter proceedings and, in addition, has been successful. Accordingly, I find that it is appropriate that the Respondent also pay the Applicant’s costs of the remitter proceedings.

Orders

91. The Court orders that:

92. Compensation under Part 3 Division 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Just Terms Act), for the compulsory acquisition of the Applicant’s interest in land in Certificate of Title Lot 7 Deposited Plan 1270586 (formerly part of Lot 26 in Deposited Plan 604586) formerly known as 777-819 Luddenham Road, Luddenham NSW, is determined in the sum of $ 38,353,979.78 plus statutory interest being payable under ss 49 and 50 of the Just Terms Act.

93. The Respondent is to pay the Applicant’s costs of the proceedings relating to the decision in Goldmate Property Luddenham No. 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39.

94. The Respondent is to pay the Applicant’s costs of the remitter proceedings except as provided in order (4) below.

95. The Applicant is to pay the Respondent’s costs of the Notices of Motion filed by:

(a) The Applicant on 2 May 2025; (b) The Respondent on 22 May 2025; and (c) The Respondent on 9 July 2025.

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