Santilli v Blacktown City Council; Tanti v Blacktown City Council

Catchwords: PRACTICE AND PROCEDURE – motions that two proceedings be tried at same time and before same judge – proceedings for compensation for compulsory acquisition of land – whether common central question of law – applicants’ claims different – applicants’ lawyers and experts different – hearings should be heard separately but consecutively.

Legislation Cited: Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1)
Local Government Act 1993 (NSW)
Blacktown Local Environmental Plan 2015
State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Cases Cited: Attard and Ors v Transport for New South Wales [2013] NSWLEC 176
Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales (2024) 116 NSWLR 233; (2024) NSWCA 292
Keller and Keller v Blacktown City Council [2023] NSWLEC 133
UPG 72 Pty Ltd v Blacktown City Council [2025] NSWLEC 29

Category: Procedural rulings

Parties: Marcello Santilli (Applicant)
Blacktown City Council (Respondent)
Emanuel Tanti (First Applicant)
Doris Tanti (Second Applicant)
Blacktown City Council (Respondent)

Representation: Counsel (Santilli proceeding):
H Grace (Barrister) (Applicant)
C O Gleeson SC (Respondent)
Solicitors (Santilli proceeding):
Gadens (Applicant)
Maddocks (Respondent)
Counsel (Tanti proceeding):
T Poisel (Barrister) (Applicants)
C O Gleeson SC (Respondent)
Solicitors (Tanti proceeding):
Lander & Rogers (Applicants)
Maddocks (Respondent)

File Number(s): 2025/38123 (Santilli proceeding)
2025/38330 (Tanti proceeding)

Publication restriction: NIL

JUDGMENT

1. Blacktown City Council (Council) compulsorily acquired two adjoining properties, 5 Clarke Street and 7 Clarke Street, at Rouse Hill. Mr Marcello Santilli owned 5 Clarke Street (the Santilli land). Mr and Mrs Tanti owned 7 Clarke Street (the Tanti land).

2. The notice of acquisition with respect to the Santilli Land, published in the NSW Government Gazette on 2 August 2024, identified the purpose of the acquisition to be open space, drainage and road extension. The notice of acquisition with respect to the Tanti land, published in the NSW Government Gazette on 22 November 2024, identified the purpose of the acquisition also to be open space, drainage and road extension.

3. The Valuer-General determined the amount of compensation to be paid in respect of the acquired land to be $2,365,400 for the Santilli land and $8,112,445 for the Tanti land. Both Santilli and Tanti objected to the amount of compensation offered by the Council in the respective compensation notices. They each commenced proceedings in this Court on 30 January 2025 contending for a significantly greater amount of compensation for the acquisition of their respective lands.

4. Both proceedings are ready, or nearly ready, for hearing. On 5 December 2025, the Registrar fixed the Tanti proceeding for hearing for 10 days commencing on 27 July 2026. The Santilli proceeding is ready to be fixed for hearing, but has not yet been fixed.

5. The Council, by identical notices of motion filed in each proceeding on 3 December 2025, seeks an order that both proceedings be tried at the same time and before the same judge of the Court. Santilli and Tanti oppose that course, submitting that each proceeding should be heard separately.

6. The Council submits that the 10 days set aside for the hearing of the Tanti proceeding will be sufficient to hear also the Santilli proceeding in that period. The Council contends that although the acquired lands were owned by different people, and the amount of compensation payable must depend on each applicant’s particular interest in the acquired land, there will be material similarities in the assessment of the amount of compensation payable to each applicant.

7. The acquired lands are adjoining parcels acquired by the same authority (the Council), under the same legislation (Local Government Act 1993 (NSW)), for the same purposes (open space, drainage and road extension), and at a similar time (2 August 2024 for the Santilli land and 22 November 2024 for the Tanti land).

8. The Council contends that both proceedings will raise a single contested question of law concerning the characterisation of the public purpose for which the land was acquired. This question will need to be decided to determine the market value of the land on the date of its acquisition. Section 56(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Land Acquisition Act) defines “market value” to mean:

“(1) In this Act—

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)—

(a) 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,”

9. As I have noted, the public purpose for which the land was acquired was stated in each notice of acquisition as being “open space, drainage and road extension”.

10. The Council contends that the market value of both the Santilli land and the Tanti land was affected by the carrying out of, or the proposal to carry out, these public purposes for which the land was acquired. The Council contends that part of the proposal to carry out these public purposes was the rezoning of each of the Santilli land and the Tanti land under State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) in 2010 and 2016. Part of each land (being the part in the Riverstone Precinct) was rezoned from General Rural under the former Blacktown Local Environment Plan 1988 to SP2 (Drainage) and REI (Public Recreation) under the Growth Centres SEPP. The balance of each land remained General Rural. In 2015, the balance of each land that was zoned General Rural was rezoned under Blacktown Local Environmental Plan 2015 to be RU4 Primary Production Small Lots. In 2016, the Growth Centres SEPP rezoned the balance of each land that was by then zoned RU4 to be SP2 (Drainage) and REI (Public Recreation). The result was that, by 2016, both the Santilli land and the Tanti land were zoned partly SP2 (Drainage) and partly REI (Public Recreation).

11. The Council contends that the rezoning of the land by the Growth Centres SEPP in 2010 and 2016 altered the value of the land. The Council submits that, under s 56(1)(a) of the Land Acquisition Act, in determining the market value of the land, any increase or decrease in the value of the land caused by the rezoning must be disregarded. The Council contends that this disregard would involve assessing the market value of the land on the assumption that the land had the zoning it had under Blacktown Local Environmental Plan, immediately before the rezoning by the Growth Centres SEPP in 2010 and 2016, which was General Rural and RU4. The Council submits that each acquired land would need to be valued on the assumption that the land had these zonings.

12. In making this argument, the Council says it will contend that the public purpose for which the land was acquired must be identified, not as any one or more of the purposes stated in the notices of acquisition of open space, drainage or road extension, but instead “at the level that reflects the coordinated, precinct-wide planning strategy of which those works formed part”. The Council will contend that the purpose of the acquisition is “enabling the integrated urban release of the precincts or implementing the SEPP amendments”.

13. The Council’s argument will involve consideration and application of the Court of Appeal’s decision in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales (2024) 116 NSWLR 233; (2024) NSWCA 292. The Council submits that its argument will involve distinguishing two decisions of this Court that it perceives are contrary to its argument or otherwise arguing that they were wrongly decided. These are the decisions of Keller and Keller v Blacktown City Council [2023] NSWLEC 133 and UPG 72 Pty Ltd v Blacktown City Council [2025] NSWLEC 29.

14. The Council submits that there will be economies in making this argument about the proper characterisation of the public purpose for which the land was acquired once rather than twice. This can be achieved if the two proceedings are tried at the same time. The Council submits that there would also be economies on appeal, if the Council’s argument about the proper characterisation of the public purpose were to be rejected by the trial judge. There would be one consolidated appeal, not two separate appeals.

15. The Council submits that the proper characterisation of the public purpose for which the land was acquired will be determinative of the basis of valuation. If the Council’s broader characterisation of the public purpose prevails, the land would be valued under s 56(1)(a) of the Land Acquisition Act on the basis that it would have been zoned General Rural or RU4. The Council is also advancing an alternative case that the land would alternatively have been zoned C2, a conservation zone. In this event, the Council submits that the land still would have negligible development potential and the valuation result would be similar to the result if the land were to be zoned General Rural or RU4.

16. The Council submits that the valuation exercise will be similar for both the Santilli land and the Tanti land. The two parcels of land bear similar features, are traversed by First Ponds Creek and lack biodiversity certification. The pool of comparable sales to be used to value both lands will be the same.

17. The Council submits that some of the witnesses called in each proceeding will overlap. This is true for the Council’s witnesses. The Council’s two lay witnesses have sworn materially identical affidavits. The Council’s experts are the same in both proceedings. Both of the applicants have engaged the same valuer, Mr Carrapetta. However, the other experts called by Santilli and by Tanti are different.

18. The Council submits that this commonality of the question of the characterisation of the public purpose for which the land was acquired and the valuation exercise with respect to each of the acquired lands, and the overlap of some of the parties’ witnesses, will lead to a saving of time if both proceedings are tried at the same time.

19. Both Santilli and Tanti oppose an order for the hearing of their proceedings at the same time. Their arguments are similar. Both applicants dispute the Council’s argument that there is a central question of law in both proceedings. They contend that the public purpose for which the land was acquired was that stated in the notices of acquisition, namely “open space, drainage and road extension.” They submit that no question regarding the public purpose for which the land was acquired ought to arise. The questions that do arise are, first, whether the rezonings of the land by the Growth Centres SEPP are part of the proposal to carry out the public purpose for which the land was acquired and, if so, whether the rezonings caused a decrease in the value of the land which is to be disregarded. Santilli and Tanti submit that the rezonings did decrease the value of the land because, but for the rezoning to SP2 and RE1, the Growth Centres SEPP would have rezoned each land for a mix of residential and conservation purposes, such as R2 or R3 zones and C2 zone. These are questions of fact, not law.

20. Santilli and Tanti submit that hearing the two proceedings together will increase the time taken for the hearing. The Tanti proceeding is anticipated to take 7 to 8 days (notwithstanding 10 days have been allocated). The Santilli proceeding is estimated to take 6 to 7 days. If both proceedings were to be heard together, Santilli and Tanti estimate that the combined hearing would be around 13 days. This would add 5 or 6 days to the hearing time compared to the time needed for individual hearings.

21. Santilli and Tanti submit that there would also be attendant extra time and cost in each applicant’s preparation for the hearing, including by the lawyers and experts reviewing the submissions and evidence in the other proceeding. This might involve 4 days’ extra preparation for the lawyers and 2 days’ extra preparation for the experts.

22. Santilli and Tanti submit that trying their proceedings at the same time will lead to inefficiencies in the conduct of the hearing. Whilst Santilli and Tanti have retained the same valuer, they have retained different ecologists, hydrology engineers, town planners and quantity surveyors. There can be no efficiencies in the taking of these different experts’ evidence at a joint trial. These inefficiencies are not overcome by the fact that the Council will call the same experts for both proceedings. The joint conferencing and concurrent evidence in each proceeding will be different because of the differences in the applicants’ experts in the proceedings, regardless of the commonality of the Council’s experts. Other than ordering that evidence in one proceeding be evidence in the other proceeding, there is no practical way of compartmentalising the evidence in each proceeding if they are tried together. And ordering that evidence be common in both proceedings leads to its own problems. Santilli and Tanti have also instructed different lawyers, both solicitors and barristers.

23. Santilli and Tanti submit that the threat of inconsistent judgments in the two proceedings and sequential appeals can be overcome by allocating the same judge to hear and dispose of both proceedings and listing the hearings back-to-back. This way the one judge will determine both proceedings at the same time.

24. I consider there is little advantage, and instead considerable disadvantage, in ordering that the two proceedings be heard together, for the reasons advanced by Santilli and Tanti. Santilli and Tanti are running different cases, with different experts except for the valuer. They are contending for quite different amounts of compensation. The Council, being the same acquiring authority, might be defending these different objections by Santilli and Tanti in similar ways, including by calling the same experts. But this does not cause each of the Santilli and Tanti proceedings to involve the same dispute. I consider that each applicant should be given the opportunity to run its own case, unaffected by the other applicant’s case.

25. The situation here is different to the situation in Attard and Ors v Transport for New South Wales [2013] NSWLEC 176 where the applicants in different proceedings sought jointly for their cases to be heard together. The applicants had common legal representation and were calling the same two experts.

26. However, I do perceive that there will be a distinct advantage in having the same judge hear and dispose of the two proceedings. This can be arranged by allocating one judge to hear both proceedings, without ordering that the proceedings be tried together.

27. The Tanti proceedings have already been fixed for hearing for 10 days from 27 July 2026 to 7 August 2026. It would be advantageous if the Santilli proceeding could be fixed for hearing immediately or at least shortly after the hearing of the Tanti proceeding. This would be on 10 August 2026 or shortly thereafter. Santilli estimates the hearing of the Santilli proceedings will take 6 to 7 days. Santilli said it could be ready for a hearing on 12-14, 17-21 August 2026. The Council indicated it could also accommodate these dates. The same judge can be allocated to hear both the Tanti proceeding and the Santilli proceeding.

28. This sequential hearing of the two proceedings can still achieve efficiencies. Any site view taken during the hearing of the Tanti proceeding may not need to be duplicated in the Santilli proceeding. The trial judge necessarily will see both properties, as they are adjoining, on the site view in the Tanti proceeding and may not need to view both properties again during the hearing of the Santilli proceeding. This is a matter that can be addressed at the pre-trial mention in both proceedings. The Council’s oral articulation of its argument on the proper characterisation of the public purpose for which the land was acquired in the Tanti proceedings may be able to be abridged in the Santilli proceedings, especially if written submissions are provided repeating the Council’s fuller argument. Likewise, the Council’s submissions on the common valuation evidence of the applicants’ valuer may be able to be abridged in the Santilli proceeding by reference to what the Council submitted in the Tanti proceeding. And, no doubt, counsel for the parties can find other efficiencies in the conduct of the hearings.

29. For these reasons, I make the following orders:

30. Dismiss the respondent’s notices of motion filed on 3 December 2025 in each proceeding.

31. Fix the hearing in proceeding no. 38123 of 2025, Marcello Santilli v Blacktown City Council (the Santilli proceeding), for 8 days on 12-14 and 17-21 August 2026, commencing in court.

32. Vacate the listing of the Santilli proceeding before the Registrar on Friday 27 February 2026 and instead list it on Thursday 5 March 2026 before the Registrar.

33. List proceeding no. 38330 of 2025, Emanuel Tanti v Blacktown City Council (the Tanti proceeding) before the Registrar on Thursday 5 March 2026.

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