Tallawong Ridge Pty Ltd v Blacktown City Council

Cases Cited: Apokis v Transport for NSW (2020) 101 NSWLR 844 [2020] NSWCA 39
Azizi v Council of the City of Ryde (No 2) [2022] NSWLEC 3
Barakat v Roads and Maritime Services [2019] NSWCA 240
Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75: (2016) 217 LGERA 258
Challenger Listed Investments Ltd v Valuer General (No 2) [2015] NSWLEC 60
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Coffs Harbour City Council v Noubia Pty Ltd (2024) 258 LGERA 315; [2024] NSWCA 19
Constitution Act 1902 (NSW)
David Fox v Planning Ministerial Corporation [2023] NSWLEC 109
Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; 2024) 116 NSWLR 233
Goldmate Property Luddenham No 1 Pty Ltd v Transport for NSW [2024] NSWLEC 39
Keller and Keller v Blacktown City Council [2023] NSWLEC 133
Local Government Act 1993
Maloney v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 121, 184 LGERA 386
Mir Bros Unit Constructions Pty Ltd v Roads and Traffic Authority of NSW [2005] NSWLEC 467; [2006] NSWCA 314
Myers v Milton Keynes Development Corporation [1974] 1 WLR 696, 704
oOh!Media Fly Pty Ltd v Transport for NSW [2024] NSWCA 200
Parramatta City Council v R & R Fazzolari Pty Ltd (2008) 162 LGERA 1
Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335
R & R Fazzolari v Parramatta City Council (2009) 237 CLR 603
RTA v Perry & Anor [2001] NSWCA 251: (2021) 52 NSWLR 222
Serbian Cultural Club “St Sava” Inc & Serbian Cultural Club Limited v Roads and Traffic Authority of New South Wales [2007] NSWLEC 673
Shire of Perth v O’Keefe (1963) 110 CLR 528
Spencer v Commonwealth of Australia 5 CLR 418 [1907] HCA 82
State Environmental Planning Policy (Sydney Region Growth Centres) Amendment (Blacktown Growth Centres Precinct Plan) 2016
Sydney Metro v G & J Drivas Pty Ltd (2024) 113 NSWLR 429; [2024] NSWCA 5
UPG 72 Pty Ltd v Blacktown City Council [2025] NSWLEC 29
Vilro v Roads and Traffic Authority (2010) 179 LGERA 47
Walker Corporation v Sydney Harbour Foreshore Authority [2008] HCA 5: CLR 259
Waters v Welsh Development Agency [2004] UKHL 19; [2004] 1 WLR 1304, 1344
Wenkart v Blacktown City Council (No 2) [2025] NSWLEC 138

Texts Cited: Elton Consulting, Social Infrastructure Assessment Riverstone East Precinct, 24 April 2015
NSW Department of Planning & Environment, Riverstone East Priority Precinct Stages 1 and 2, Finalisation Report, June 2016

Category: Principal judgment

Parties: Tallawong Ridge Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation: Counsel:
N Eastman SC and A Richards (Applicant)
A Shearer SC with J Taylor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Clayton Utz (Respondent)

File Number(s): 2024/363166

Publication restriction: Nil

JUDGMENT

Introduction

1. COMMISSIONER: On 1 October 2024, by Class 3 application, Tallawong Ridge Pty Ltd (the applicant) commenced proceedings pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) against Blacktown City Council (the respondent) in relation to the amount of compensation payable for the acquisition of land identified as Lot 557 in Deposited Plan 1253047, located at India Parade and Syntax Crescent, Rouse Hill (the acquired land) which has an area of 7,365 square metres (m2).

2. On 9 February 2024 (the date of acquisition), the respondent acquired the land for the purpose of “RE1 – Public Recreation” (the public purpose) as gazetted in NSW Government Gazette No 34.

3. Prior to 9 February 2024, the applicant was the registered proprietor of the acquired land and the land immediately surrounding it at 131-135 Tallawong Road, Rouse Hill (the parent parcel).

4. The parent parcel is shaded yellow with the acquired land being outlined in red on the aerial photograph below being Figure 1 from the agreed statement of facts.

5. As at the date of acquisition, the parent parcel was zoned a combination of R2 Low Density Residential and RE1 Public Recreation pursuant to State Environmental Planning Policy (Precincts-Central River City) 2021 (the Growth Precincts SEPP) which was gazetted on 2 December 2021 and commenced on 1 March 2022.

6. In accordance with Appendix 11 (Blacktown Growth Centres Precinct Plan) of the Growth Precincts SEPP (Appendix 11), the acquired land was located in the Riverstone East Stage 1 and 2 of the Blacktown Growth Centres Precinct Plan 2013.

7. Prior to the Growth Precincts SEPP, the parent parcel was zoned RU4 Primary Production Small Lots under the Blacktown Local Environmental Plan 2015.

8. On 12 April 2019, development consent DA-17-02489 (the consent) was granted by the respondent in respect of the parent parcel (encompassing the acquired land) for the “demolition of existing structures, tree removal and Torrens Title subdivision into 64 residential lots within 4 stages, 1 residue lot for a future public park, public road construction and associated subdivision works” (approved subdivision). On 16 September 2019, the respondent granted consent to modify certain conditions of the consent being MOD-19-00292.

9. On 8 July 2024, the respondent offered the applicant compensation for the compulsory acquisition of the acquired land in the amount of $6,484,620.91, as determined by the Valuer General in accordance with Div 3 of Pt 3 of the Just Terms Act.

10. The applicant filed its claim for compensation on 1 October 2024 in the following amounts:

11. $15,015,000 for market value pursuant to s 55(a) of the Just Terms Act; and

12. $68,055.48 for disturbance pursuant to ss 59(1)(a)-(e) of the Just Terms Act.

13. The hearing was conducted on 3, 4, 5 and 6 November 2025 before me and included an inspection on 3 November 2025 of the acquired land and certain other properties relied on by the parties as comparable sales.

14. During the course of the hearing, the parties reached agreement in relation to the compensation payable pursuant to s 55(d) and s 59(1)(a) and 59(1)(b) of the Just Terms Act for loss attributable to disturbance. It was agreed by the parties that the Court should award the applicant compensation in the sum of $51,018.93 comprising:

15. $34,268.93 pursuant to s 59(1)(a) for legal costs reasonably incurred in connection with the compulsory acquisition of the acquired land; and

16. $16,750.00 pursuant to s 59(1)(b) for valuation fees reasonably incurred in connection with the compulsory acquisition of the acquired land.

17. Also, during the hearing, the parties agreed that if the Court:

18. was to find in favour of the applicant, then the market value of the acquired land pursuant to s 55(a) and s 56 of the Just Terms Act would be between $12,488,000 and $12,717,000 as set out in the seven separate scenarios in the supplementary joint valuation report; and

19. was to find in favour of the respondent, the market value of the acquired land pursuant to s 55(a) and s 56 of the Just Terms Act would be the amount of $3,682,500.

20. Therefore, the outstanding issues for determination are:

21. the public purpose of the acquired land;

22. the underlying zoning of the acquired land absent the public purpose; and

23. the amount of compensation payable to the applicant pursuant to s 55(d) and s 56 of the Just Terms Act, if the Court finds that the underlying zoning of the acquired land is zoned R2 Low Density Residential.

Issues

15. In determining the public purpose of the acquired land, the resolution is whether the Court should adopt the applicant’s narrow interpretation as proffered by Mr Eastman or the respondent’s wider interpretation as contended by Mr Shearer.

16. In determining the underlying zoning of the acquired land absent the public purpose, the parties referred to the four step process set out in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales (2024) 116 NSWLR 233; [2024] NSWCA 292 (“Goldmate*”*) for assessing the market value of the acquired land absent the public purpose pursuant to s 56(1)(a) of the Just Terms Act, which turns on the resolution of the competing expert opinions of the town planners Mr Haskew and Mr Mitchell.

17. In determining the amount of compensation payable to the applicant pursuant to s 56 of the Just Terms Act, if the Court finds that the underlying zoning of the acquired land is R2 Low Density Residential then the issues for determination are:

18. whether the respondent had adequate time to consider the supplementary quantity surveying report by the jointly appointed quantity surveying expert; and

19. the relevance of the additional information in the supplementary quantity surveying report and its impact on the market value of the acquired land as set out in the supplementary joint valuation report.

Outcome

18. The Court has determined as follows:

19. The public purpose of the acquired land was as set out in the Acquisition Notice to the applicant, being ‘public recreation’.

20. Absent the public purpose, the underlying zoning of the acquired land is R2 Low Density Residential.

21. The respondent did have adequate time to properly assess and consider the further information in the supplementary quantity surveying report.

22. The market value of the acquired land pursuant to s 56(1)(a) of the Just Terms Act as at the date of acquisition to be $12,717,000.

23. The agreed amount pursuant to ss 59(1)(a) and 59(1)(b) of the Just Terms Act for losses attributable to disturbance is $51,018.93.

24. The applicant is entitled to total compensation in the sum of $12,768,018.93 rounded up to say $12,768,020.

Procedural history

19. On 26 July 2021, the respondent issued a letter to the applicant indicating that it proposed to compulsorily acquire the acquired land.

20. On 30 October 2023, the respondent issued the applicant a proposed acquisition notice pursuant to s 11 of the Just Terms Act for the compulsory acquisition of its freehold interest in the acquired land.

21. On 21 December 2023, the applicant submitted a claim for compensation to the Valuer General of New South Wales (the Valuer General).

22. On 9 March 2024, by notice published in NSW Government Gazette No 34, the respondent declared that the acquired land was acquired by compulsory process in accordance with the provisions of the Just Terms Act for the purpose of public recreation.

23. On 17 June 2024, the Valuer General issued a determination in the amount of $6,484,620.91, being $6,445,000 for market value pursuant to s 55(a) of the Just Terms Act, and $39,620.91 for any loss attributable to disturbance pursuant to s 55(d).

24. On 8 July 2024, the respondent issued a compensation notice to the applicant pursuant to s 42(2) of the Just Terms Act for the amount of $6,484,620.97.

25. It is noted that there is a difference of 6 cents between the determination of $6,484,620.91 made by the Valuer General on 17 June 2024 and the amount of $6,484,620.97 in the compensation notice issued by the respondent on 8 July 2024 to the applicant. The Court considers the difference of 6 cents to be a typographical error and is not material in these proceedings.

26. On 1 October 2024, the applicant commenced these Class 3 proceedings.

Agreed matters

27. The parties agreed the following matters:

28. the acquired land is Lot 557 in Deposited Plan 1253047, located at India Parade and Syntax Crescent, Rouse Hill;

29. the acquired land has an area of 7,365m2;

30. as at the date of acquisition, the acquired land was zoned RE1 Public Recreation under the Growth Precincts SEPP;

31. under the Growth Precincts SEPP, the acquired land was located in the Riverstone Stage 1 and 2 precinct in relation to which precinct planning had been undertaken as at the date of the acquisition;

32. the respondent was the acquiring authority under s 186 of the Local Government Act 1993 (NSW) (LGA); and

33. the RE1 Public Recreation zoning that applies to the acquired land was caused by the proposal to carry out the public purpose, and therefore the effect on value of the acquired land was to be disregarded because of the requirement in s 56(1)(a) of the Just Terms Act that 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 is to be acquired be disregarded.

Relevant legislation

28. Section 4 of the Just Terms Act defines public purpose to be “any purpose for which land may by law be acquired by compulsory process under this Act.”

29. In relation to entitlement to just compensation, s 54 of the Just Terms Act provides:

54 Entitlement to just compensation

(1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.

(2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis.

30. Section 55 of the Just Terms Act provides the relevant matters to be considered in determining the amount of compensation as set out below:

55 Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division)—

(a) the market value of the land on the date of its acquisition,

(b) any special value of the land to the person on the date of its acquisition,

(c) any loss attributable to severance,

(d) any loss attributable to disturbance,

(e) the disadvantage resulting from relocation,

(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

Note—

See also the Electricity Supply Act 1995, section 44(4) and the Energy and Utilities Administration Act 1987, section 15(4).

31. In relation to market value, the so-called statutory disregard in s 56(1)(a) of the Just Terms Act provides:

56 Market value

(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, and

…

32. It has been held that s 56(1)(a) may be read with s 3(1)(a) which provides that one of the objects of the Just Terms Act is “to guarantee that, when land affected by a proposal for acquisition by an authority is eventually acquired, the amount of compensation will be not less than the market value of the land (unaffected by the proposal)”, as explained by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 (“Walker Corporation*”*) at [54]:

“54 … The construction of the market value disregard in [s 56(1)(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 par (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.”

33. Section 59(1) of the Just Terms Act relevantly provides as follows in relation to loss attributable to disturbance:

59 Loss attributable to disturbance

(1) In this Act—

loss attributable to disturbance of land means any of the following—

(a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land,

(b) valuation fees of a qualified valuer reasonably incurred by those persons in connection with the compulsory acquisition of the land (but not fees calculated by reference to the value, as assessed by the valuer, of the land),

(c) financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs),

(d) stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired),

(e) financial costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the discharge of a mortgage and the execution of a new mortgage resulting from the relocation (but not exceeding the amount that would be incurred if the new mortgage secured the repayment of the balance owing in respect of the discharged mortgage),

(f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition.

…

34. In relation to objections against the amount of compensation offered, s 66 of the Just Terms Act provides:

66 Objection against amount of compensation offered

(1) A person who has claimed compensation under this Part may, within 90 days after receiving a compensation notice, lodge with the Land and Environment Court an objection to the amount of compensation offered by the authority of the State.

(2) If any such objection is duly lodged, the Land and Environment Court is to hear and dispose of the person’s claim for compensation.

(3) A person who does not lodge an objection within the 90-day period and who is taken to have accepted the offer of compensation under section 45 may nevertheless lodge an objection under this section, but the Land and Environment Court is not to hear and dispose of the person’s claim for compensation unless satisfied that there is good cause for the person’s failure to lodge the objection within that period.

(4) If the Land and Environment Court decides that the amount of compensation payable (without the addition of interest) does not exceed by more than 10% the amount of compensation offered by the authority of the State, the Court may cancel or reduce the amount of interest that has accrued under this Act in respect of the compensation since the institution of the proceedings.

The Court as judicial valuer

35. It is appropriate to record that in these proceedings the parties have agreed the market values of the acquired land based on the expert valuation evidence as follows:

(a) if the Court finds that acquired land is deemed to have an underlying zoning of RU4 Primary Production Small Lots (absent the public purpose) the agreed market value is $3,685,000; and

(b) if the Court finds that acquired land is deemed to have an underlying zoning of R2 Low Density Residential (absent the public purpose) the agreed market value is in the range between $12,488,000 and $12,717,000 as per the seven scenarios set out in the supplementary joint valuation report.

Planning controls

36. The parent parcel including the acquired land was zoned a combination of R2 Low Density Residential and RE1 Public Recreation pursuant to the Growth Precincts SEPP which was gazetted on 2 December 2021 and commenced on 1 March 2022.

37. Accordingly, the acquired land being Lot 557 in Deposited Plan 1253047 was zoned RE1 Public Recreation pursuant to the Growth Precincts SEPP.

Evidence

38. The following expert evidence was tendered at the hearing:

39. For the applicant:

(a) town planning report of Mr David Haskew dated 1 October 2025 (the Haskew report); and (b) valuation report of Mr Lance Kenny dated 23 September 2025 (the Kenny report).

2. For the respondent:

(a) the town planning report of Mr Paul Mitchell dated 16 May 2025 (the Mitchell report); and (b) valuation report of Mr David Lunney dated 30 September 2025 (the Lunney report).

3. Joint reports:

(a) joint town planning report dated 16 June 2025 (the joint town planning report); (b) supplementary joint town planning report 24 July 2025 (the supplementary joint town planning report); (c) further supplementary joint town planning report dated 20 October 2025 (the further supplementary joint town planning report); (d) joint valuation report dated 21 October 2025 (the joint valuation report); (e) supplementary joint valuation report dated 5 November 2025 (the supplementary joint valuation report); and (f) the quantity surveying report dated 17 September 2025 by Mr Niall McSweeney (the McSweeney report).

4. Supplementary Quantity Surveying Report as per Court order of 10 October 2025:

(a) the supplementary quantity surveying report dated 16 October 2025 (the supplementary quantity surveying report).

Issues arising from the evidence

Town planning evidence

39. The town planners agreed the following matters in the joint town planning report as at the date of acquisition:

40. the characteristics of the acquired land and its surrounds;

41. the strategic planning process relating to the proposal to use the acquired land for public open space;

42. the statutory planning framework that applied to the Stages 1 and 2 of the Riverstone East Precinct (the Precinct) as at the date of acquisition; and

43. the acquired land was zoned RE1 Public Recreation as at the date of acquisition.

44. However, the town planners did not agree on the characterisation of the public purpose of the acquired land.

45. Mr Mitchell stated that the public purpose is the partial provision of essential infrastructure to meet the needs of a growing residential community in the surround area.

46. Mr Haskew stated that public purpose was public open space.

47. Mr Mitchell further stated that:

48. the immediate use of the acquired land was to establish a local park;

49. the purpose of the acquisition was broader than its immediate use;

50. the establishment of the local park was a component of an open space network, which in turn, was part of the provision of infrastructure essential for residential development in the surrounding precinct;

51. it is important to distinguish between the immediate use (a local park) and its purpose (partial provision of essential infrastructure to meet the needs of a growing residential community in the surrounding area);

52. the knowledge and certainty that this infrastructure would be provided was one of the key factors that enabled the rezoning of the acquired land and its surrounds to establish a new residential community in a manner consistent with the applicable planning instruments;

53. he disagreed with Mr Haskew’s interpretation that the need for public open space is an effect of rezoning land for residential purposes, not the cause of it; and

54. the primary cause of the need for open space was population growth, which created a need for more residential land and the associated infrastructure and ultimately the rezoning of land.

55. Mr Haskew further stated that:

56. there is no dichotomy in the words, ‘purpose’ and ‘use’;

57. the word ‘use’ informs ‘purpose’;

58. that the acquired land will be used for public open space demonstrates that the purpose of the acquisition is for public open space;

59. the partial provision of essential infrastructure to meet the needs of a growing residential community in the surrounding area, is a partial goal of town planning but is not a public purpose; and

60. to accommodate an expanding residential population by providing residential land including the necessary infrastructure is also a function of town planning and not a public purpose.

61. Mr Haskew is of the opinion that if Mr Mitchell’s assertions are correct, that is, the public purpose is the partial provision of essential infrastructure to meet the needs of a growing residential community, then it is not within the power of the respondent because the respondent:

62. is not empowered to zone land for residential or open space purposes;

63. is not responsible for the co-ordination of any infrastructure;

64. is not responsible for a large part of the total infrastructure package; and

65. has no statutory power in the Growth Precincts land release process.

66. Mr Haskew further notes that cl 6.1 of Appendix 11 of the Growth Precincts SEPP precludes residential subdivision unless water, electricity and sewerage infrastructure are available, or satisfactory arrangements have been made to make them available when needed. Consequently, the provision of public space is not included within the list and therefore not essential for the purposes of residential subdivision.

67. Clause 6.1 of Appendix 11 of the Growth Precincts SEPP is repeated below for ease of reference.

6.1 Public utility infrastructure

(1) Development consent must not be granted for development on land to which this Precinct Plan applies unless the consent authority is satisfied that any public utility infrastructure that is essential for the proposed development is available or that adequate arrangements have been made to make that infrastructure available when it is required.

(2) This section does not apply to development for the purpose of providing, extending, augmenting, maintaining or repairing any public utility infrastructure referred to in this section.

(3) In this section, public utility infrastructure includes infrastructure for any of the following—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage.

48. Mr Mitchell disagreed with Mr Haskew’s opinion in [46] above and stated that the absence of water, electricity and sewerage disposal and management is not the only basis on which residential development could be precluded as the list in cl 6.1 at [47] above does not include roads, stormwater drainage, public transport, telecoms, gas and community services.

49. Mr Mitchell disagrees with Mr Haskew that residential development would have occurred even without the public open space.

Could the Public Open Space be Located Elsewhere

50. Mr Haskew states the amount of public open space provided by the acquired land could have been located elsewhere in the precinct provided it met certain guidelines.

51. Mr Mitchell states that any alternative location of the amount of public open space provided by the acquired land would be inconsistent with contemporary planning practice in NSW.

52. Both Mr Haskew and Mr Mitchell refer to the Elton Consulting ‘Social Infrastructure Assessment’ (2015) (the Elton Report) for the guidelines about public open space.

53. Section 7.5.5 of the Elton Report states that the locational requirement for a park is that it is within 400 to 500 metres walking distance for all residents.

54. Mr Haskew noted that within the subject Precinct, design changes were made between exhibition and finalisation of the Indicative Layout Plan (ILP) which shows that an additional ‘pocket park’ was provided to the north west of the acquired land.

55. Mr Haskew and Mr Mitchell observed that the terms ‘open space’ and ‘public open space’ are of interchangeable.

56. Mr Mitchell explained at some length the history of planning in the greater Sydney area and then narrowed this chronology down to the planning process generally within the Precinct including the co-ordinated role of the respondent and the relevant state bodies including the former Growth Centres Commission (the GCC) and the Department of Planning (the DoP).

Highest and Best Use of the Acquired Land

57. Mr Haskew and Mr Mitchell provided a supplementary joint town planning report where they discussed the highest and best use of the acquired land under the two alternative zonings proffered by the parties.

58. Mr Haskew and Mr Mitchell agreed that the highest and best use of the acquired land would be 21 residential lots with an average area of 340m2 if the acquired land was deemed to have an underlying R2 Low Density Residential zoning (R2 zoning) (absent the public purpose) (the applicant’s case). This agreement assisted the valuers in providing their evidence assuming an underlying R2 zoning of the acquired land.

59. Mr Haskew and Mr Mitchell agreed that the highest and best use of the acquired land would be a single residential lot containing a single dwelling if the acquired land was deemed to have an underlying RU4 Primary Production Small Lots zoning (RU4 zoning) (absent the public purpose) (the respondent’s case). This agreement assisted the valuers in providing their evidence assuming an underlying RU4 zoning of the acquired land.

Second Supplementary Joint Town Planning Report

60. Mr Haskew and Mr Mitchell provided a second supplementary joint town planning report in respect of amendments which Mr Haskew made in his Statement of Evidence (SOE). This report was provided to the Court in marked up form as well as final form to enable the parties and the Court to see the variations easily.

61. At par 72 of this document, Mr Mitchell states he agrees with Mr Haskew, that the cause of the rezoning (of the RU4 zoned land) was the need to provide housing for a growing population and the knowledge that essential infrastructure would be provided to enable the rezoning.

Competing Underlying Zoning Cases Absent the Public Purpose

62. The applicant’s case is twofold:

63. the public open space could have been located elsewhere within the precinct; and

64. because of (1) above, absent the public purpose, the acquired land would have been zoned R2 Low Density Residential and therefore the underlying zoning is R2 Low Density Residential.

65. The respondent’s case was threefold:

66. the respondent’s purpose of the acquisition was the partial provision of the essential infrastructure to meet the needs of a growing residential community in the surrounding area which was one of the key factors which enabled the rezoning of the acquired land to RE1 Public Recreation;

67. the public open space could not have been located elsewhere in the precinct; and

68. because of (1) and (2) above, the underlying zoning of the acquired land is an RU4 zoning.

69. Put another way, the respondent’s case is that without the allocation of public open space on the acquired land, the residential development of the precinct would not have occurred.

Applicant’s Case

65. The applicant simply states that the public open space zoned on the acquired land could have been allocated elsewhere within the precinct subject to the requirements of the Elton Report being met.

66. The applicant then notes the differences between the initial versions and the final adopted version of the ILP where additional open space was allocated at 14 Clarke Street, 58 and 72 Tallawong Road (see section 4.5 of the Riverstone East Priority Precinct Stages 1 and 2 Finalisation Report by the NSW Department of Planning & Environment dated June 2016) (the Finalisation Report).

Respondent’s Case

67. The respondent also referred to the Finalisation Report. In particular, two sections dealing with open space and infrastructure.

68. Mr Shearer noted the word, ‘essential’ in Section 4.1.2, titled, ‘Zoning for open space’, of the Finalisation Report. For reasons of clarity, I repeat the whole sentence using the word ‘essential’. “It is essential to provide for wellbeing and community interaction for access and by future residents”.

69. Mr Shearer used the example of the word, ‘essential’ in Section 4.1.2 to demonstrate to Mr Haskew that his interpretation of the absence of the words, ‘open space’, in cl 6.1 of Appendix 11 of the Growth Precincts SEPP was incorrect, because the word, ‘essential’ was used in Section 4.1.2 of the Finalisation Report

70. Mr Shearer also drew Mr Haskew’s attention to Section 4.2.2 of the Finalisation Report, titled, ‘Essential infrastructure’. In this section, ‘Essential infrastructure’ is defined as potable water, sewerage and electricity and states that the utilities agencies have committed to funding and delivery of essential infrastructure for land in Stages 1 and 2.

71. Mr Shearer by using the references in Sections 4.1.2 and 4.2.2 of the Finalisation Report was stating that the provision of open space and potable water, sewerage and electricity were essential infrastructure in the context of the planning for the precinct.

72. In the Mitchell report, Mr Mitchell at pars 40 to 54 under the heading ‘The Public Purpose’, sets out his opinion in respect of the four step process set down in Goldmate.

73. At Step 3, par 46 of the Mitchell report, Mr Mitchell states the following beginning with the third sentence:

“46. … In my opinion the properly considered purpose of the acquisition was broader than its immediate purpose, it did not occur in a vacuum. The establishment of a local park being a component of an open space network was part of the provision of infrastructure essential for residential development in the surrounding precinct; all the open space to be provided in Stage 1 is shown on the ILP. In turn, the knowledge and certainty that this infrastructure would be provided was one of the key factors which enabled the rezoning of the Acquired Land and its surrounds to establish a new residential community in a manner consistent with the applicable planning instruments. This was the Council’s (the respondent’s) public purpose. Without the provision of open space needed to meet the new residential community’s recreational needs, in my opinion, rezoning of Stages 1 and 2 would not have been possible.”

74. It appears from these statements that Mr Mitchell is saying that the residential land release for Stages 1 and 2 in the Riverstone precinct would not have occurred until the amount of open space was decided, and the provision of all other services was decided before any land was zoned residential.

75. On the matter of a broader interpretation of the public purpose, Mr Shearer referred to Parramatta City Council v R&R Fazzolari Pty Ltd; Parramatta City Council and Another v Mac’s Pty Ltd [2008] NSWCA 132 (“Fazzolari”).

76. Mr Shearer put his arguments before me on Day 4 of the hearing:

“So, council's powers, no doubt, do not include the specific power to release land, nor does it include the specific power to rezone land. But its functions do, consistently with Fazzolari, extend to implementing or enabling a release or rezoning for a plan”. (Tcpt, 6 November 2025, p 200(2-5))

77. Mr Shearer drew the distinction before me on Day 4 of the hearing:

“The distinction is an important one, because as we all know, the power to actually release land by the issuing of an order in the Government Gazette, or the power to rezone again through the adoption of a SEPP amendment, that power resides solely in the Minister. But that's only one part of the process. The process involves - the precinct planning process involved a detailed process, a collaborative process, which council was a participant in, that developed a layout plan that council agreed to as part of its position on the project control group.” (Tcpt, 6 November 2025, p 200(9-16))

78. Mr Shearer stated that the decisions by Pepper J in UPG 72 Ltd v Blacktown City Council [2025] NSWLEC 29 (“UPG 72”) had no bearing on these proceedings.

Relevant Case Law

79. Both parties have referred to the same case law being briefly:

80. Goldmate;

81. UPG 72;

82. Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222; [2001] NSWCA 251, (“Perry”);

83. Barkat v Roads and Maritime Services [2019] NSWCA 240 (“Barkat”); and

84. Coffs Harbour City Council v Noubia Pty Ltd [2024] NSWCA 19 (“Noubia”),

when considering the public purpose.

80. Preston CJ best provides the answers to the question of public purpose in the following paragraphs of Goldmate:

“93 The context and text of the phrase ‘the public purpose for which the land was acquired’ in s 56(1)(a), therefore, limit its operation to the particular public purpose for which the land in question was acquired by the particular acquiring authority under the law that authorised the acquisition of land by compulsory process. The primary judge's rejection of this construction of the phrase involved misconstruction of s 56(1)(a).

…

95 … The definition of the public purpose for which the land was acquired under s 56(1)(a) directs attention only to the immediate purpose of the acquiring authority in acquiring the land and not to an overarching, ‘coordinated goal or purpose’…

…

98 … Thus, the causal question raised by s 56(1)(a) is directed to the effects on the value of the land of the carrying out of or the proposal to carry out the public purpose for which the acquiring authority acquired the land: at [39]. Similarly, in Noubia, this Court held that: ‘In identifying the public purpose for which the land was acquired, it is clear that it is the public purpose of the acquiring authority which is relevant’: at [61].

99 The decisions of this Court in Barkat v Roads and Maritime Services [2019] NSWCA 240 (Barkat) and Roads and Traffic Authority v Perry (2001) 52 NSWLR 222; [2001] NSWCA 251 (Perry) are not to the contrary. …”

81. Pepper J noted the following in respect of the respondent’s characterisation of the public purpose at [137] in UPG 72:

“137 By contrast, the Council’s primary characterisation of the public purpose is broader, namely, that the public purpose is that of the NSW Government which includes the release by way of rezoning precincts identified in the Growth Centres SEPP for urban purposes as part of a coordinated State government response to the announcement of urban release in Western Sydney in 2004 and continuing. In delivering a component of that urban release (that is, trunk drainage infrastructure), the Council is the ‘vehicle’ by which the NSW Government achieves that part of the overall purpose. As the rezonings are part of the public purpose, the effect on land value is direct and must be disregarded. In the alternative, the public purpose comprises the delivery of Precinct wide trunk drainage infrastructure.”

82. Pepper J, in UPG 72 also noted the following:

“140 On any view, the Council submitted, this would include the acquisition and use of the land for drainage purposes, which was, in any event, provided for under the public land provisions in Ch 6 of the Local Government Act. It was clear that in rezoning the Riverstone Precinct, releasing it pursuant to the Growth Centres SEPP and by nominating the Council as the acquiring authority for drainage land, public reserves and other land, it was intended that the Council play a critical role in delivering the essential public works necessary for the urban release.

…

142 Thus, the Council asserted that it had acquired UPG’s land not for the purpose of an isolated drainage project, but as an integral element of an urbanisation project to release land for housing, employment, infrastructure and biodiversity.

143 In response, UPG contended that this identification of the public purpose for which its land was acquired was overly broad, effectively encompassing all of the functions of the Council under the EPAA and the Local Government Act. The vice in the Council’s submission was that it conflated the distinction between power and purpose contrary to Goldmate (at [73]). While it may be accepted that the Council has broad power to acquire land, the evidence does not support a finding that its purpose corresponds to the entire range of its statutory powers, such as the release of the entire Riverstone Precinct, or alternatively, the provision of Precinct wide trunk drainage infrastructure.”

83. At [145] and [146] of UPG 72, Pepper J, made the following findings:

“145 But this range of functions, broad as it is, does not include that of releasing or rezoning land for urban purposes. That act was carried out by the NSW Government pursuant to the promulgation of the Growth Centres SEPP and cl 276 of the EPA Regulations. If there was a ‘vehicle’ by which the NSW Government achieved the overall purpose of urban release, it was not the Council, it was the GCC. The Council was not authorised to acquire the land for this purpose. None of its functions include the release of land. The release of land is not a function of the Council, but is a function of the NSW Government. Irrespective of the breadth of the text of s 186(1) of the Local Government Act, its meaning is not so elastic that almost all functions of the NSW Government fall within (the logical corollary of the Council’s argument).

146 The land was therefore not acquired for the public purpose of the rezoning of the precincts identified in the Growth Centres SEPP or as part of the urban release of land in Western Sydney in 2004 and continuing. The Council had no power under the Local Government Act, or any other Act to which the Court was taken, to acquire land for this purpose.”

84. I have considered the issues raised in UPG 72 because the acquired land and the land subject of the acquisition in UPG 72 are within the same general precinct and subject to similar zoning principles.

85. In these proceedings, the respondent contends that the acquisition of the acquired land extended the public purpose to being the partial provision of essential infrastructure to meet the needs of a growing residential community in the surrounding area, which is a similar argument it proposed in the UPG 72 case as seen in the second sentence of [140] quoted at [82] of this judgment above which I repeat here for reasons of clarity: “It was clear that in rezoning the Riverstone Precinct, releasing it pursuant to the Growth Centres SEPP and by nominating the Council as the acquiring authority for drainage land, public reserves and other land, it was intended that the Council play a critical role in delivering the essential public works necessary for the urban release”, as argued by the respondent.

86. It should be noted that the word, ‘Council’ in [85] above is the respondent in these proceedings.

87. Pepper J, at [145] and [146] of UPG 72 quoted above at [83], clearly rejected this argument.

Findings

88. Section 4.1.2 of the Finalisation Report, states that it is essential for open space to be provided for wellbeing and community interaction for access and by future residents. Section 4.1.2 of the Finalisation Report does not say that open space is the partial provision of essential infrastructure to meet the needs of a growing residential community.

89. I am of the opinion that Mr Shearer has incorrectly used the word ‘essential’ in Section 4.1.2 of the Finalisation Report when applying it to ‘open space’, or ‘public open space’ or ‘public recreation’.

90. Mr Mitchell’s extrapolation is that if the acquired land was rezoned as RE1 Public Recreation (from its previous RU4 zoning) before any of the surrounding land was rezoned R2 (from its previous RU4 zoning), then the only logical underlying zoning absent the public purpose is the RU4 zoning.

91. The logical sequence of planning events as provided in the evidence is:

92. firstly, the release of land for residential development;

93. secondly, the density which should apply to that residential development; and

94. thirdly, the appropriate residential zoning in the residential development,

before any decisions can be made about the placement and quantity of essential infrastructure to meet the needs of a growing residential community.

92. Turning to the purpose of the acquisition, the acquisition notice simply states that the public purpose is public recreation. It does not say in the acquisition notice, to use words that are used similarly by Mr Mitchell and Mr Shearer, “….the partial provision of essential infrastructure to meet the needs of a growing residential community in the surrounding area”.

93. Therefore, based on the decisions of Preston CJ in Goldmate and Pepper J in UPG 72, the respondent’s arguments that the public purpose can be extended or can be broadened to include being partial provision of the essential infrastructure to meet the needs of a growing residential community in the surrounding area fails and must be rejected.

94. The reference to Fazzolari by Mr Shearer did not enhance the respondent’s case but only emphasised that it did not meet the principles set down in Goldmate.

Can the public open space be located elsewhere

95. Robson J dealt with a similar issue in Keller and Keller v Blacktown City Council [2023] NSWLEC 133 (“Keller”).

96. Mr Shearer stated that the decisions in Keller were not a precedent to be followed in these proceedings.

97. In Keller, Robson J found that the trunk drainage system could be located in a different location than that on the land the subject of the acquisition in that case.

98. At [46], Robson J stated:

“46 I am conscious that it is not just the zoning of the Acquired Land that must be set aside and that, in disregarding the blight(s) caused by the process of acquisition, the Court must also disregard its effect on other land. Although not without some caution, I accept the applicants’ narrower characterisation of the public purpose (and, as considered later in this judgment, find that but for the public purpose, there was a prospect that the Acquired Land would have been zoned R2) …”

99. Further at [46(6)], Robson J stated:

“(6) Even if the specific R2 zoning of the immediately surrounding land was disregarded, I find that the evidence is compelling that there would be movement towards residential zoning and that the ‘constraints’ otherwise raised are not such as to militate against residential development (and consequential zoning) of the Acquired Land.”

Findings

100. The argument contended by the respondent that the public open space could not be placed elsewhere is not substantiated because the adopted ILP shows additional pocket parks have been accommodated within the Precinct: see [54] and [66] above.

Quantity Surveying evidence

101. The parties jointly appointed Mr McSweeney to provide an expert quantity surveying report in respect of the acquired land assuming an underlying R2 zoning. The joint instructions to Mr McSweeney were:

102. peer review the Development Cost Schedule prepared for the applicant;

103. consider the town planning expert reports; and

104. provide an expert report with respect to the inputs and assumptions to the hypothetical development model set out in the respective parties’ Contentions on Determination of Compensation.

105. Mr McSweeney filed his expert report on 8 August 2025.

106. In his expert report, Mr McSweeney noted the following issues:

107. The creation and costs of the individually benched and levelled lots need to be included and considered in the valuation of the lots.

108. The costs associated with the under boring of the water main to connect to the 100 millimetre (mm) main are low.

109. The allowance of $50,000 for the substation seems only to be a contribution.

110. The allowance for submains and mini pillars for each lot seems low.

111. The allocation for the costs associated with the contribution plans appears to differ within the documents.

112. Following discussions with the parties subsequent to his expert report being filed, Mr McSweeney produced a cost estimate of $1,257,910 for the hypothetical subdivision of the acquired land excluding professional fees, reports and documentation dated 17 September 2025 (as part of his expert quantity surveying report).

113. Upon review of the cost estimate at [104] above, the applicant sought a supplementary report via a Notice of Motion dated 1 October 2025.

114. The respondent objected to the Notice of Motion via an Affidavit dated 8 October 2025 on the basis that the respondent did not have sufficient time to conduct a peer review, seek its own advice or seek leave to put on its own quantity surveying expert evidence.

115. The Court allowed the Notice of Motion via orders made on 10 October 2025 on the basis that the applicant paid the costs of the supplementary quantity surveying report.

116. In his supplementary quantity surveying report dated 17 October 2025 Mr McSweeney (as instructed by the applicant) provided a cost estimate of $1,144,663 dated 16 October 2025 for the hypothetical subdivision of the acquired land excluding professional fees, reports and documentation.

117. On Day 2 of the hearing the respondent stated that it was at a disadvantage by the supplementary quantity surveying report being allowed whilst acknowledging that some of the costs went up and some went down which resulted in some advantages and disadvantages to each party.

118. During the hearing I ruled that the supplementary quantity surveying report was not excluded from the proceedings as both parties bear the responsibility when there is a single joint expert report irrespective of internal resources and timing whilst noting that the parties were able to and did cross examine Mr McSweeney in respect of his supplementary quantity surveying report.

119. Mr McSweeney was cross examined by the applicant in respect of the estimated distances of some of the assumed services and the rates applied to those measurements in his development cost estimates of the hypothetical residential subdivision of the acquired land.

120. Mr McSweeney was cross examined by the respondent in relation to the interest rate he adopted and the time period he adopted in his model for estimating his development costs of the hypothetical residential subdivision of the acquired land.

121. Subsequent to the cross examination of Mr McSweeney by the parties, Mr McSweeney’s supplementary quantity surveying report was provided to Mr Kenny and Lunney for review and comment.

122. Mr Kenny and Mr Lunney reviewed the supplementary quantity surveying report and agreed a possible seven separate scenarios for the market values of the acquire land which resulted in the supplementary joint valuation report.

Valuation evidence

115. The instructive part of the valuation evidence by Mr Kenny and Mr Lunney is the joint valuation report.

116. As previously mentioned, based on the underlying RU4 zoning of the acquired land, Mr Kenny and Mr Lunney agree that the s 56(1)(a) market value is $3,682,500. Consequently, there is nothing further to say on this underlying basis as the parties have agreed.

117. Mr Kenny and Mr Lunney, using the different development cost estimates provided by Mr McSweeney in his supplementary quantity surveying report, derived the following residual land values of the acquired land using the hypothetical development model:

118. on the basis of development cost of $1,257,910 (from the quantity surveying report) a land value of $12,530,000; and

119. on the basis of development costs of $1,144,663 (from the supplementary quantity surveying report) a land value of $12,640,000.

120. As stated at [114] above, Mr Kenny and Mr Lunney agreed on seven separate scenarios based on the quantity surveying report and the supplementary quantity surveying report of Mr McSweeney.

121. Mr Kenny and Mr Lunney provided a supplementary joint valuation report both including and excluding the seven agreed separate scenarios as set out in the table below that is:

122. market values of the acquired land (with reliance on documents in supplementary brief to Niall McSweeney meaning the supplementary quantity surveying report of Mr McSweeney); and

123. market values of the acquired land (without reliance on documents in supplementary brief to Niall McSweeney meaning the supplementary quantity surveying report of Mr McSweeney).

124. Subsequent to the cross examination of Mr McSweeney and with reliance on the supplementary quantity surveying report, the applicant’s prime position in the table at [119] above is Scenario 4, that is a s 56(1)(a) market value of the acquired land of $12,717,000.

125. On the other hand, subsequent to the cross examination of Mr McSweeney and without reliance on the supplementary quantity surveying report the respondent’s prime position in the table at [119] above is Scenario 3, that is a s 56(1)(a) market value of the acquired land of $12,488,000.

Findings

122. The parties agreed to appoint a single quantity surveying expert in these proceedings, Mr McSweeney, who filed his quantity surveying report on 8 August 2025. Accordingly, it is the joint responsibility of the parties to address the quantity surveying report of Mr McSweeney which they apparently did as Mr McSweeney’s quantity surveying report includes estimates dated 17 September 2025 (post the date of filing).

123. The periods of time:

124. between Mr Sweeney’s estimates dated 17 September 2025 and his estimates dated 16 October 2025 in his supplementary quantity surveying report filed 17 October 2025 is about four weeks;

125. between Mr McSweeney’s estimates dated 17 September 2025 and the applicant’s Notice of Motion filed on 1 October 2025 is some two weeks (noting that the Notice of Motion included adjustments to the timing of other expert reports as well as the request by the applicant to engage Mr McSweeney independently of the respondent);

126. between the Notion of Motion and respondent’s Affidavit on 8 October 2025 is a period of time just over one week;

127. the decision of the Court to allow the applicant’s Notice of Motion was made on 10 October 2025; and

128. between the Court’s decision on 10 October 2025 and the commencement of the hearing on 3 November 2025 was in the order of 3 weeks.

129. In addition, the parties were able to cross examine Mr McSweeney on both his quantity surveying report and his supplementary quantity surveying report during the hearing.

130. On balance, I find that the respondent was not prejudiced in any way:

131. firstly, by the Court consenting to the supplementary quantity surveying report by Mr McSweeney (noting that the Notice of Motion included not only a request for the appointment of McSweeney by the applicant but for time adjustments for other joint expert reports and that the supplementary quantity surveying report was to be filed on 17 October 2025 with the other supplementary joint reports to filed after 17 October 2025); and

132. secondly, because parties were able to the cross examine Mr McSweeney on his quantity surveying report and his supplementary quantity surveying report.

Conclusions

126. The public purpose of the acquired land was set out in the Acquisition Notice to the applicant being, ‘public recreation’.

127. Absent the public purpose, the underlying zoning of the acquired land is R2 Low Density Residential.

128. The respondent did have adequate time to properly assess and consider the further information in the supplementary quantity surveying report.

129. The market value of the acquired land pursuant to s 56(1)(a) of the Just Terms Act as at the date acquisition is $12,717,000.

130. The agreed amount pursuant to s 59(1)(a) and 59(1)(b) of the Just Terms Act for losses attributable to disturbance is $51,018.93.

Orders

131. The Court makes the following order:

132. Compensation under Part 3 Division 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for the compulsory acquisition of the freehold interest of Tallawong Ridge Pty Ltd of land known as Lot 557 in Deposited Plan 125307 located at India Parade and Syntax Crescent, is payable in the amount of $12,768,020.

P Kempthorne

Acting Commissioner of the Court

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