Transport for NSW v Registrar-General of New South Wales

Decision: See orders at [23].

Catchwords: LAND LAW – Community title – Community scheme – Where resuming authority seeks orders restructuring community scheme consequential upon resumption of part of a development lot in the community scheme – Requirement for resuming authority to notify interested persons of the application – Orders to be made pursuant to s 73 of the Community Land Development Act 2021 (NSW) in circumstances where the value of the residue of the relevant development lot, the relative values of the lots in the community scheme, and the values and relative values of lots in two subsidiary strata schemes, are unchanged by the resumption.

Legislation Cited: Community Land Development Act 1989 (NSW)
Community Land Development Act 2021 (NSW), ss 72, 73, 74, 76, 77, 79
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Cases Cited: Sydney Water Corporation v Registrar-General of New South Wales [2025] NSWSC 375
Transport for NSW v Registrar-General of New South Wales [2024] NSWSC 1186
Transport for NSW v Registrar-General of NSW [2022] NSWSC 1660
Transport for NSW v Registrar-General of NSW [2013] NSWSC 1272

Texts Cited: N/A

Category: Principal judgment

Parties: Transport for NSW (Plaintiff)
Registrar-General of New South Wales (Defendant)

Representation: Counsel:
A Hemmings (Plaintiff)
S Prent, solicitor (Defendant)
Solicitors:
Clayton Utz (Plaintiff)
Office of the Registrar General (Defendant)

File Number(s): 2026/280459

Publication restriction: N/A

Judgment

1. The plaintiff commenced these proceedings on 8 July 2026 in relation to the resumption of part of Lot 8 in DP271278, being proposed Lot 701 in Deposited Plan DP1329363 (a Plan of Acquisition that was registered on 24 June 2026) for the purposes of the Parramatta Light Rail Stage 2 Project (the Resumed Land).

2. Deposited Plan DP271278 is a community scheme regulated under the Community Land Development Act 2021 (NSW) (the CLD Act), and situated at Wentworth Point, New South Wales (the Community Scheme). Lot 8 is a community development lot in the Community Scheme.

3. The Resumed Land was acquired in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (the Just Terms Act) by publication of acquisition notice no. 305 in the NSW Government Gazette on 31 July 2026 (the Acquisition Notice).

4. Prior to the resumption, the Community Scheme comprised:

5. Lot 1 in DP271278 – a community property lot owned by the Community Association of the Community Scheme; and

6. five community development lots, being:

(a) Lot 2 in DP271278 which has been developed and registered as a subsidiary strata scheme no. SP102274; and (b) Lot 5 in DP271278, which is non-developable land owned by SH Hill Road Development Pty Limited (SH Hill); (c) Lot 6 in DP271278, which has been developed and registered as a subsidiary strata scheme no. SP109672; (d) Lot 7 in DP271278, which is a community swimming pool and gymnasium for use by members of the Community Scheme and owned by SH Hill; and (e) Lot 8 in DP271278, which is a future development lot owned by SH Hill.

5. The Community Scheme is subject to a Community Management Statement. The subsidiary strata scheme no. SP109672 is subject to a Strata Management Statement. There is no Strata Management Statement for subsidiary strata scheme no. SP102274.

6. The Resumed Land, being proposed Lot 701 in DP1329363 registered on 24 June 2026, has an area of 1017 square metres. It was excluded from the Community Scheme by express statement in the Acquisition Notice pursuant to s 79(2) of the CLD Act.

7. The residue of Lot 8 in DP271278 has an area of 6.05 hectares and is proposed Lot 700 in DP1329363. That land continues to be owned by SH Hill and remains part of the Community Scheme.

8. These proceedings do not involve any question of compensation under the Just Terms Act. The only issue to be determined is what orders, if any, should be made under s 73 of the CLD Act as a consequence of the resumption of the Resumed Land.

9. Section 73 falls within Part 10 of the CLD Act, which applies because the Resumed Land was in a community scheme. [1]

10. Section 73 of the CLD Act relevantly provides:

“(2) A resuming authority proposing to resume part of the land in a scheme parcel or strata parcel must apply to the Supreme Court for an order restructuring the scheme.

…

(4) The Supreme Court may, when making an order restructuring the scheme, also make any order it considers necessary, including—

(a) to adjust unit entitlements, or

(b) to amend any applicable—

(i) development contract, or

(ii) management statement, or

(iii) by-laws under a strata scheme, or

(c) if part of a lot is to be resumed—

(i) to make the residue of the lot a lot in the scheme, or

(ii) with the consent of the owner of the residue of the lot, to vest the residue of the lot in the relevant association or strata corporation as association property or common property.

…

(6) An application under this section must be made before publication of the relevant notice of resumption.”

11. The plaintiff in these proceedings, Transport for NSW, is the resuming authority. By its Amended Summons filed at the hearing on 29 October 2026, the plaintiff seeks orders pursuant to s 73 of the CLD Act that, as a consequence of the resumption of the Resumed Land:

12. there is no adjustment to the schedule of unit entitlements for Community Scheme DP271278 nor to the schedule of unit entitlements for the Subsidiary Strata Schemes SP102274 and SP109672;

13. there is no adjustment to the management statement for Community Scheme DP271278 nor to the management statement for the Subsidiary Strata Scheme SP109672;

14. proposed Lot 701 in DP1329363 shall be excluded from Community Scheme DP271278; and

15. the residue of Lot 8 in Community Scheme DP271278, being proposed Lot 700 in DP1329363, is to be defined as a lot in Community Scheme DP271278 as specified in the replacement sheets for DP271278.

16. The Registrar-General of New South Wales was served with the Summons on 14 July 2026 and filed a notice of appearance. The Registrar-General appeared at the hearing on 29 October 2026 and informed the Court that they consent to the orders set out in the Amended Summons.

17. The plaintiff adduced evidence at the hearing that it has served notice of these proceedings on all other interested persons referred to in s 74(1) of the CLD Act – the Community Association DP271278, the Owners Strata Plan SP102274, the Owners Strata Plan 109672, SH Hill and the City of Parramatta Council. The evidence established that the plaintiff also provided to those interested persons on 9 October 2026 a copy of a draft of the Amended Summons in the terms in which it was filed at the hearing, and informed them of the hearing date. None of those interested persons communicated to the plaintiff that they wished to be heard in these proceedings and there was no appearance for any interested person at the hearing on 29 October 2026.

18. Having received comprehensive written submissions prepared by counsel for the plaintiff supplemented by oral submissions made at the hearing on 29 October 2026, I determined at the conclusion of that hearing that orders substantially in the terms sought in the Amended Summons should be made pursuant to s 73 of the CLD Act. I made those orders on the basis that I would publish my reasons as soon as possible. These are those reasons.

19. As Peden J observed in Transport for NSW v Registrar-General of NSW [2022] NSWSC 1660 at [33]-[37], there is no provision in the CLD Act for the method of restructuring a community scheme following a resumption of land which previously formed part of that scheme. Section 76 of the CLD Act requires the Court to consider, inter alia, whether any amendment is required to a schedule of unit entitlements or a management statement, and to make any orders that the Court considers to be appropriate, just and equitable in the circumstances. In Transport for NSW v Registrar-General of New South Wales [2024] NSWSC 1186, I respectfully agreed with Peden J that the question for the Court is the same as the question that arose under the now repealed Community Land Development Act 1989 (NSW), as articulated by Ball J in Transport for NSW v Registrar-General of NSW [2013] NSWSC 1272 at [10]. The question is whether the resumption has altered the relative value of the affected lots compared to other lots in the scheme and, if so whether unit entitlements and/or rights conferred on lot owners by the management statement need to be adjusted having regard to any change in the value of the affected lots. Insofar as the schedule of unit entitlements is concerned, I agreed with Peden J that the main concern for the Court is that, after the resumption, it continues to reflect the relative values of the remaining lots. Pike J adopted the same approach in Sydney Water Corporation v Registrar-General of New South Wales [2025] NSWSC 375, and I remain of the view that it is the correct approach.

20. The plaintiff relied on an expert report of Mr David Lunney, a certified practising valuer, dated 17 September 2026. Mr Lunney has assessed the impact of the resumption on the value of Lot 8 in DP271278, and on the relative values between Lots 2, 6 and 8 in DP271278, Lots 2, 6 and 8 being the three lots within the Community Scheme that Mr Lunney considers have development potential. Mr Lunney’s analysis of the unit entitlements for Lots 2, 6 and 8 prior to the resumption indicates that the unit entitlements for each lot were allocated in a manner that is proportionate to the potential gross floor area (or GFA) that could be yielded from a development of each of Lots 2, 6 and 8. Mr Lunney has opined that the resumption of the Resumed Land will not change the GFA of Lot 8 and that, for the purpose of considering unit entitlement adjustments, the market value of the residue of Lot 8 immediately after the resumption on 31 July 2026 is identical to the market value of the whole of Lot 8 immediately prior to the resumption. Mr Lunney has also opined that the resumption will not change the relative values between Lots 2, 6 and 8. Mr Lunney notes that Lots 2 and 6 have already been developed, and opines that their value is identical with or without the Resumed Land in Lot 8. Mr Lunney opines that the resumption will not cause any change to the value of individual strata lots in the Subsidiary Strata Schemes SP102274 and SP109672, either in absolute or in relative terms. Thus, in Mr Lunney’s opinion, no change to the schedule of unit entitlements for the Community Scheme DP271278 or for the Subsidiary Strata Schemes SP102274 and SP109672 is required as a consequence of the resumption.

21. Mr Lunney’s valuation report has been provided to the Registrar-General, who has neither objected to it nor adduced any other valuation evidence. I accept Mr Lunney’s opinions.

22. For those reasons, it is appropriate, just and equitable to make the order sought in prayer 1 of the Amended Summons that no adjustment be made to the schedule of unit entitlements for Community Scheme DP271278 nor to the schedule of unit entitlements for the Subsidiary Strata Schemes SP102274 and SP109672 as a consequence of the resumption.

23. No party submits that the resumption affects any rights conferred on lot owners in Community Scheme DP271278 under the management statement for that scheme, or any rights conferred on lot owners in the subsidiary strata scheme SP109672 under the management statement for that scheme. In those circumstances, it is appropriate, just and equitable to make the order sought in prayer 2 of the Amended Summons that no adjustment be made to those management statements as a consequence of the resumption.

24. I am satisfied that it is appropriate to make an order in terms of prayer 3 of the Amended Summons, which effectively confirms what has already occurred pursuant to s 79(2) of the CLD Act on publication of the Acquisition Notice. [2]

25. Section 73(4)(c)(i) of the CLD Act confers power on the Court in cases such as the present case where part of a lot is resumed to make an order making the residue of that lot a lot in the Community Scheme. The replacement sheets referred to prayer 4 of the Amended Summons designate as Lot 9 in DP271278 the land that comprises the residue of the former Lot 8 that has not been excluded from the Community Scheme by the resumption. I am satisfied that it is necessary and appropriate to make an order in terms of prayer 4 of the Amended Summons.

26. The plaintiff agrees to pay the Registrar-General’s costs of these proceedings in accordance with s 77 of the CLD Act.

27. For all of those reasons, the Court made the following orders at the conclusion of the hearing on 29 October 2026:

28. Order pursuant to s 73 of the Community Land Development Act 2021 (NSW) that, as a consequence of the resumption of land described as part of Lot 8 in Community Plan DP271278 by the plaintiff, being proposed Lot 701 in DP1329363, at Wentworth Point in New South Wales (the Resumption):

(a) there is no adjustment to the schedule of unit entitlements for Community Scheme DP271278 nor to the schedule of unit entitlements for the Subsidiary Strata Schemes SP102274 and SP109672; (b) there is no adjustment to the management statement for Community Scheme DP271278 nor to the management statement for the Subsidiary Strata Scheme SP109672; (c) proposed Lot 701 in DP1329363 shall be excluded from Community Scheme DP271278; and (d) the residue of Lot 8 in Community Scheme DP271278, being proposed Lot 700 in DP1329363, is to be defined as lot 9 in Community Scheme DP271278 as specified in the replacement sheets for DP271278.

2. Order that the plaintiff is to pay the defendant’s costs of the proceedings, as agreed or assessed.
3. Reserve liberty to any party to apply in the working out of these orders.

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Endnotes

CLD Act, s 72(4)(a).

See [3] above.