JC & FW Kennett Pty Ltd v Transport Construction Authority

Introduction 1These three proceedings are compulsory acquisition proceedings in Class 3 of the Court's jurisdiction. They travel with related proceedings (30192, 30199, 30200 and 30201 of 2011). 2When the matters came became before Assistant Registrar Anastasi on 21 June 2011, by consent various procedural orders were made. One of these orders was that by 1 July 2011 the applicants were to serve their individual non-valuation expert evidence, including evidence relating to the Licence Agreement referred to in the Points of Claimed filed 15 April 2011. 3The proceedings come before me today in my capacity as List Judge upon the application of the applicants. The applicants have sought to re-list the matter because there have been material slippage in the timetable and the order referred to above has not been complied with. 4The proceedings involve the acquisition by the respondent of an easement over various parcels of land that together comprise a solid non-putrescible waste facility in Glenfield ("the land") and the freehold acquisition of another allotment. The acquisition is for the purpose of enabling the acquiring authority to obtain access across the land to the freehold allotment, which was otherwise land-locked by the East Hills rail line. Part of the public purpose for which the land was acquired included the construction of an access road over the land. 5It is alleged in the Amended Points of Claim (filed 16 May 2011) that the respondent has caused disturbance to the acquired land in a number of ways described therein. The disturbance is pleaded as: (a) royalty fees - arising from a Licence Agreement between the applicant and another company granting certain rights to that company to carry on excavation and land filling activities on the land. Since the date of acquisition these activities have been interrupted by compulsory acquisition of the easement rights thereby reducing the royalty fees payable to the applicant; (b) damage to landfill cells - the applicant's land is subject to an environmental licence that provides that once the applicant's land has been excavated and filled by the company the subject of the Licence Agreement, the landfill cells on the land must be capped in accordance with a Leachate Management Plan. By reason of the compulsory acquisition of the easement rights it is alleged that the respondent has damaged or disturbed the capped landfill cells; (c) maintenance of easement - by reason of the compulsory acquisition of the easement rights the applicant will incur additional addition costs to maintain and repair its land; and (d) exclusive possession - as a consequence of the compulsory acquisition of the easement rights the respondent has erected a fence or barrier on the applicant's land preventing the applicant from accessing part of its land and thereby giving the respondent exclusive possession of that part of the applicant's land. 6The applicant relied on an affidavit of Mr Alexander Dwyer, sworn 18 July 2011. Mr Dwyer is the solicitor with carriage of the matter for the applicants in all of the matters. The affidavit was read without any objection from the respondent. Mr Dwyer was not cross-examined. 7In his affidavit Mr Dwyer deposed that in relation to the disturbance costs caused by the damage to the landfill cells, the basis of the claim was monitoring data that demonstrated that since the date of the acquisition and, relevantly, the construction of the access road, there have been elevated levels of methane gas recorded at the site, suggesting that a clay liner and clay cap preventing the escape of leachate and associated gases from the landfill has been damaged. 8The applicants had instructed an environmental scientist, Mr Duncan Lowe, of Consulting Earth Science, to prepare a report in relation to the environmental issues arising as a consequence of the disturbance. The central issue that Mr Lowe was investigating related to the possible piercing by the respondent of the clay liner and clay cap. It is alleged that this damage occurred as a consequence of the carrying out of the purposes for which the land was acquired. 9Mr Lowe attended the site on 10 May and 20 June 2011. On 1 July 2011 Mr Lowe provided advice to Mr Dwyer to the effect that his report could not be completed until he had further documentary material provided to him. Mr Lowe provided a list of the documents which he required. 10In order to obtain this information, Mr Dwyer issued a notice to produce to the respondent on 15 July 2011. On 18 July 2011, the respondent advised Mr Dwyer that they could produce the documents requested by 29 July 2011. 11Mr Lowe has advised Mr Dwyer that he requires approximately two weeks from the date upon which he receives the material to complete his report. 12The applicants also briefed Mr Graham Granger, a civil engineer, to prepare a report in relation to the engineering disturbance occasioned by the carrying out of the public purposes. 13However, on 30 June 2011, Mr Granger advised Mr Dwyer that he was unable to complete his report due to family health issues. 14He has subsequently returned his brief in the matter. 15As a consequence, on 12 July 2011 Mr Robinson was instructed to prepare a report in respect of the engineering issues arising from the disturbance. At that time Mr Robinson indicated to Mr Dwyer that he requires approximately two weeks in order to complete the report. Mr Robinson has similarly requested that documents be provided to him, specifically in relation to the number of truck movements coming onto the land as a consequence of the respondent's activities. This information has again been sought by way of a notice to produce. 16Mr Dwyer also stated that in the other related proceedings referred to above, similar claims for disturbance are made that amount to several millions of dollars for operational impacts allegedly caused by the acquisition of the land. It is envisaged that the same experts will be used in all proceedings. 17Finally, Mr Dwyer deposes that it has taken almost 12 months to prepare the non-valuation evidence in the other proceedings because of the extremely complex nature of the evidence required to demonstrate the physical impacts of the acquisition and to assess the quantum of damage. 18As a consequence of the preparation of the other proceedings and the difficulties described by Mr Dwyer in his affidavit in retaining non-valuation, an extension of the timetable by approximately four weeks is sought. 19The proceedings have not been set down for hearing.