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[2025] NSWLEC 77
General information, not legal advice.
Land and Environment Court (NSW)
2025-07-25
Pepper J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: UPG 72 Pty Ltd v Blacktown City Council (No 2) [2025] NSWLEC 77
Hearing dates: 24 July 2025
Date of orders: 25 July 2025
Decision date: 25 July 2025
Jurisdiction: Class 3
Before: Pepper J
Decision: Notice of motion dismissed. Respondent to pay the applicant’s costs of the proceedings and costs of the motion.
Catchwords: COSTS: whether the respondent should pay the applicant’s costs in compulsory acquisition proceedings – where the applicant was awarded more compensation than that contended for by the respondent but less than the Valuer-General’s offer and less than it sought in the proceedings – applicable legal costs principles compulsory acquisition proceedings – respondent to pay the applicant’s costs of the proceedings and of the motion.
Legislation Cited: Civil Procedure Act 2005, s 98
Land Acquisition (Just Terms Compensation) Act 1991, s 66
Local Government Act 1993, ss 24 and 186(1)
Land and Environment Court Rules 2007, r 3.7
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde (No 3) [2022] NSWLEC 37
Brock v Roads and Maritime Service (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404; (2012) 191 LGERA 267
Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179
Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; (2024) 262 LGERA 24
Overton Investments Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2001] NSWCA 137; (2001) 113 LGERA 439
Qasabian Family Investments Pty Ltd v Roads and Maritime Services (No 2); Fishing Station Pty Ltd v Roads and Maritime Services (No 2) [2017] NSWLEC 179
Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449
UPG 72 Pty Ltd v Blacktown City Council [2025] NSWLEC 29
Category: Costs
Parties: UPG 72 Pty Ltd (Applicant)
Blacktown City Council (Respondent)
Representation: Counsel:
T To with L Nurpuri (Applicant)
M Astill (Respondent)
Solicitors:
Macpherson Kelley (Applicant)
Maddocks Lawyers (Respondent)
File Number(s): 2022/310394
Publication restriction: Nil
This application concerns the availability of an alternative costs order if favour of the respondent, Blacktown City Council (“Council”), in Class 3 compulsory acquisition proceedings.
On 14 September 2022 the Council offered UPG 72 Pty Ltd (“UPG”) compensation in the sum of $2,494,984.44 for the acquisition of UPG’s land (“the acquisition”), Lot 31 in DP 1246761 (“the acquired land”), as determined by the Valuer-General (“statutory offer”).
UPG objected to that offer pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (“Just Terms Act”) and commenced a Class 3 proceedings against that determination on 18 October 2022. UPG claimed compensation in the sum of $7,035,521.20, while the Council contended for nil compensation.
The hearing took place on 13 to 16, 20 and 22 May, 20 December 2024 and 28 January 2025. The finalisation of the decision was delayed pending the determination of the appeal in Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292; (2024) 262 LGERA 24.
On 10 December 2021, the Council compulsorily acquired the land for the stated purpose of constructing trunk drainage (“drainage”) and creating habitat for the Green and Golden Bell Frog (“GGBF habitat”).
UPG contended that but for the public purpose of constructing drainage and GGBF habitat, the acquired land would have been zoned R2 Low Density Residential (“R2”) pursuant to the land releases that comprised the broader Riverstone Precinct urbanisation project. It therefore sought compensation based upon a market value calculated by reference to R2 zoning that totalled approximately $7 million and $35,521 for disturbance losses.
By contrast, the Council argued that the public purpose for the acquisition was that of the NSW Government’s, namely, land release by way of the rezoning of precincts for urban purposes, and that in delivering drainage, the Council was the vehicle by which the NSW Government achieved part of this purpose. It argued that but for this purpose, the acquired land would have been zoned according to its pre-existing Rural zoning or, in the alternative, an E2 Environmental Conservation (“E2”) zoning. The Council offered nil compensation because it contended that UPG owned land adjoining the acquired land (“Lot 30”) whose value increased and thus exceeded that of the acquired land when it became available for development due to the construction of precinct wide drainage.
The principal issues for determination at the hearing were four-fold:
(a) what was the public purpose for which the land was acquired; (b) what was the underlying zoning of the acquired land absent the public purpose; (c) if the acquired land was zoned R2, what drainage solution was required; and (d) whether any betterment arose under s 55(f) of the Just Terms Act relevant to the determination of the market value of the acquired land.
(a) applying Goldmate*,* the statutory power conferred upon the acquiring authority – the Council – did not include the power to acquire land in order to release it for urban purposes, but did include the power to acquire the land for drainage under ss 24 and 186(1) of the Local Government Act 1993 (at [144], [145] and [148]); (b) the Council’s public purpose in acquiring the land was for drainage and GGBF habitat. This purpose served a different function to the development carried out on other allotments (at [156] and [158]); (c) the acquired land was unlikely to have been zoned Rural given that the land release strategy specified that the Riverstone Precinct was the first to be released for urbanisation (at [173]); (d) the acquired land would have been predominantly zoned E2 with a portion zoned R2. The E2 zoning was consistent with the planning documents before the relevant Minister which made clear that the GGBF habitat required preservation, whereas the R2 zoning was consistent with the acquired land’s highest and best use in permitting a single dwelling entitlement (at [175] and [193]); (e) in the alternative, if the conclusion above was incorrect and the land was zoned R2, a vegetated riparian corridor drainage solution would have been preferrable to the drainage scheme that UPG proposed given that the latter did not comply with the Council’s Development Control Plan and design principles (at [199] and [200]); and (f) no betterment arose on the facts. The value of Lot 30 did not increase by reason of the public purpose found by the Court given that land in the Riverstone Precinct would have been released with drainage on it and the temporary on-site detention (“OSD”) basin on Lot 30 would have remained. Even if the OSD basin were to become permanent, a prudent owner would relocate the basin onto the least valuable land – the acquired land – to develop Lot 30 (at [216] and [217]).
223 Although UPG has been awarded compensation in a sum less than the amount claimed by it and less than that offered by the Valuer General, the amount is more than the compensation offered by the Council during these proceedings. Accordingly, the Council should pay UPG’s costs of the proceedings. However, because the matter was not the subject of argument, the parties ought to be given the opportunity of making further submission on the issue if they wish.
(1) compensation under the Land Acquisition (Just Terms Compensation) Act 1991 for the acquisition on 10 December 2021 of land comprising Lot 31 in DP 1246761 is determined in the sum of $1,235,521.20; and
(2) the Council is to pay UPG’s costs of the proceedings unless, with 14 days, either party approaches the Court to seek an alternative costs order.
1 Pursuant to Order 2 of the Orders made by Pepper J on 1 April 2025 in this matter:
a. The Respondent is to pay the Applicant’s costs of the proceedings incurred up to but excluding the first date of hearing (i.e. till 12 May 2024) in an amount agreed or as assessed;
b. Each party is to bear its own costs incurred from the first day of hearing (i.e. 13 May 2024).
UPG resisted such an order and submitted that the tentative costs order made by the Court at the conclusion of the hearing ought not be disturbed.
I agree with UPG. For the following reasons I have therefore determined that the Council should pay UPG’s costs of the proceedings, including UPG’s costs of the motion.
The Court’s discretion to award costs pursuant to s 98 of the Civil Procedure Act 2005 is unconstrained save that it must be exercised judicially. Although costs usually follows the event pursuant to r 42.1 of the Uniform Civil Procedure Rules 2005, that rule does not apply in respect of Class 3 proceedings of the Court’s jurisdiction (UCPR, Schedule 1). There is therefore no presumption that costs follow the event in Class 3 compulsory acquisition proceedings.
Compulsory acquisition proceedings are, moreover, not affected by the application of r 3.7 of the Land and Environment Court Rules 2007 (r 3.7(1)(c) of those Rules).
In the exercise of the Court’s discretion, an applicant to compulsory acquisition proceedings is usually entitled to recover the costs of the proceedings if that applicant acted reasonably in pursuing the proceedings and has not conducted themselves in a manner which gives rise to unnecessary delay or expense (Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 at [70] per Basten JA). This is because an owner who has been compulsorily dispossessed of their land should be entitled to take reasonable steps to seek the Court’s judgment in respect of the adequacy of the compensation offered (Dillon at [71] per Basten JA).
Relevantly for the purpose of this application, Basten JA opined in Dillon (at [72]):
72 Whether steps taken in maintaining proceedings are reasonable will depend upon the circumstances of the particular case. These may include a comparison between the positions adopted by the parties at the commencement of proceedings and the final outcome. To the extent that a claimant obtains less than the valuation provided by the Valuer-General, the claimant has been unsuccessful in the litigation. That will be a factor to be taken into account, but the weight given to that factor may depend upon the extent of the failure. The Court may also take into account the time and expense incurred in relation to specific items. Beyond such general statements, it is unhelpful to go, lest the very generality of the discretion be thought to be fettered in some way. In short, the purpose of an award of costs must be taken into account, namely to compensate the party for expenditure incurred in the course of litigation; the nature of the litigation and the reasonableness of the conduct of the litigation are central considerations.
In other words, where an applicant obtains less than the Valuer-General’s determination this is a factor to take into account in assessing the reasonableness of maintaining the proceedings and the weight to be accorded to the factor will depend on the shortfall.
In Dillon, the dispossessed landowners obtained less than the statutory offer but exceeded the amount contended for by the respondent. Relevantly, at first instance the Court ordered the respondent to pay 75% of the applicants' costs of the first stage of the proceedings. The Court of Appeal upheld the applicants’ entitlement to 75% of its costs on appeal.
Dillon was subsequently applied in Brock v Roads and Maritime Service (formerly Roads and Traffic Authority of NSW) [2012] NSWCA 404; (2012) 191 LGERA 267, where Tobias AJA noted (at [92]-[98]):
92 …Only two factors were referred to by the primary judge which could be said to be in some way adverse to [the appellant]. The first was his Honour’s statement at [113] of the costs judgment that she would have been better off had she accepted the statutory offer or either of the offers of compromise made close to the date of trial. As she did not accept those offers, his Honour considered that she was unsuccessful in her litigation. With the benefit of hindsight this was so.
93 The second was his Honour’s observation at [123] that the appellant may have had unrealistic hopes or expectations for her litigation. However, she was entitled to rely on the advice of Mr Jones and her legal representatives and there was no suggestion that she was acting unreasonably in doing so.
94 Neither of these factors could, as a matter of principle, carry determinative weight in the application of the discretion with respect to costs in what has been referred to in the authorities as “out of the ordinary litigation”. Further, neither factor is capable of displacing the principle that a claimant for compensation with respect to the compulsory acquisition of his or her land should usually be entitled to recover the costs of the proceedings where he or she has acted reasonably in pursuing the proceedings and has not conducted them in a manner which gives rise to unnecessary delay or expense. In the present case, his Honour specifically found (at [123]) that he could find no basis for a finding that the appellant (or for that matter the respondent) behaved unreasonably in the conduct of the litigation. Additionally, as the appellant submitted, his Honour did not find that it was unreasonable for the appellant to have held hopes or expectations with respect to the outcome of her litigation which ultimately turned out to be unrealistic.
95 As was noted by Basten JA in Dillon at [71], an owner of land who has been compulsorily dispossessed is entitled to take reasonable steps to seek the judgment of the court in respect of the adequacy of any compensation offered. The appellant took such steps and there was no suggestion that in so doing she acted unreasonably. Although in one sense she was unsuccessful in the litigation in that she obtained less than the statutory offer and accepting that that is a factor to take into account, on the other hand at trial she obtained an award of compensation which, with respect to market value, exceeded the amount contended for by the respondent by $117,087. In other words, at trial the respondent contended that apart from disturbance the amount which should be awarded to the appellant for the market value of the land as well as injurious affection and severance was $320,000. His Honour found that the proper amount was $437,087. To that extent she had a victory at trial.
96 As Basten JA concluded at [72] in Dillon, the purpose of an award of costs, being to compensate the party for expenditure incurred in the course of litigation, must be taken into account although the nature of the litigation and the reasonableness of the conduct of the litigation by the claimant are central considerations.
97 The nature of the litigation is, as Wilcox J observed in Banno, that it is not “ordinary litigation”. Furthermore, as I have already noted, there was no finding by the primary judge that the appellant had acted in any way unreasonably in conducting the litigation. Finally, there was no finding by the primary judge that the appellant had pursued a vexatious, dishonest or grossly exaggerated claim.
98 It follows from the foregoing that, given the findings to which I have referred, it is apparent that his Honour's order that the appellant should bear her own costs of the proceedings was inconsistent with the application of the correct principles. That inconsistency involved an implicit erroneous decision as to correct principle and thus gave rise to a question of law.
70 The amount of compensation to be determined by the court is at large and the Valuer-General's determination may or may not play a part in the hearing. Like this trial, most compensation hearings take a considerable time to hear by reason of the valuation evidence regarding hypothetical developments, comparable sales and the like. This case was no exception.
71 This Court heard argument as to the relevance to the issue of costs of the amount of the Valuer-General's determination and its relationship to the ultimate award by the Court. I do not understand either party to suggest that it is an irrelevant factor to be taken into account on costs. In my view, it can be a relevant factor but one which rarely will be a determining one. Nevertheless, I do not see that his Honour placed any undue weight on the factor.
72 Nor do I see that it is a simple matter of ascertaining who won or lost the litigation. Compensation determinations are not like awards of damages for personal injury. Obtaining an award of compensation of $100 does not necessarily mean that a landowner “wins” the litigation. A judge is entitled to look realistically at the litigation, the issues, the way it was conducted and the result, in order to assess who really succeeded and to what extent.
73 In my opinion, the exercise of the discretion by his Honour, although involving the error identified above, was otherwise a sound exercise of discretion. The result of the order that each party pay its and his own costs was a fair one and properly reflective of the litigation. I do not think that this Court should intervene. In any event, if the Court were to re-exercise the costs discretion, I would come to the same conclusion as his Honour.
74 On a final note, it was said that if a landowner was not entitled to his costs of a trial where an award of compensation is obtained, then he could be at the mercy of the Government in prolonging the litigation. I do not accept that this is so and indeed, the opposite could be claimed. That is, if a landowner is always to get its costs so long as it obtains an award of compensation, however small, the resuming authority may be at the mercy of the landowner in prolonging a trial.
Thus there can be no expectation that dispossessed owners will always recover costs, irrespective of the merits of their case.
Accordingly, in exercising the discretion to award costs, the Court is not limited to a consideration of whether the applicant obtained more than the amount of compensation determined by the Valuer-General, it can also take into account the time and expense incurred by parties during the proceedings. It can, in my view, also have regard to whether the applicant obtained more than the amount offered by the respondent in defending the proceedings.
This was the conclusion reached by Moore J in Azizi v Council of the City of Ryde; Alnox Pty Ltd v Council of the City of Ryde (No 3) [2022] NSWLEC 37 (at [23]):
23 The appropriate comparison is not between what the Azizi interests achieved and what had been the Valuer General's determination which they contested. The proper comparison is between what the Azizi's interests achieved (being, admittedly, only modestly better than the Valuer General's second determination), but how much more they achieved when compared to what the Council contended should be the outcome of the proceedings. In this regard, the position adopted by the Council (and pursued by its advocate in the hearing) was that the amount of compensation determined by the Valuer General should be significantly reduced to the market value shown at paragraphs [13] and [16] earlier, as setting out the Council's position at the commencement of the hearing before me.
While the Council was not critical of UPG’s initial decision to test the Valuer-General’s determination, it submitted that UPG unreasonably continued the proceedings from the date of the commencement of the hearing, first, because UPG’s claim substantially failed. The amount of compensation ordered by the Court was less than 50% of the statutory offer and less than 20% of the quantum of compensation that UPG was seeking. On any view, therefore, UPG was substantially unsuccessful in the litigation.
Second, UPG must have been aware of the critical flaws in its case prior to the start of the hearing upon receipt of the joint expert evidence. By this stage, the decisive issues had been comprehensively ventilated in joint expert reports on ecology, town planning and hydrology, namely:
(a) a joint ecology report prepared by Nathan Garvey and Michael Sheather-Reid, dated 4 October 2023; (b) a joint town planning report prepared by Paul Grech and Anthony Rowan, dated 20 February 2024; and (c) a joint hydrology report prepared by Dr Daniel Martens and Martin Giles, dated 26 September 2023.
The Council argued that these reports exposed key weaknesses in UPG’s case. For example, they established the presence of GGBF habitat on the acquired land which militated against the R2 zoning that UPG was contending for. The expert hydrology reports also highlighted the difficulties of removing or piping the watercourse traversing the acquired land, which was a prerequisite for achieving the 18 lot subdivision that formed the basis of UPG’s claim. The Court found against UPG on both issues.
The Council therefore submitted that a reasonable litigant would have re-assessed its position on the evidence available to it at this stage of the litigation and accepted the Valuer-General’s statutory offer. UPG’s unreasonable conduct in this regard resulted in a loss that caused both parties to incur the costs of the hearing. Requiring the Council to bear these costs in all the circumstances would be unjust.
Applying these principles, the split costs order suggested by the Council reflected, it asserted, the reasonableness of UPG’s conduct during both phases of the proceedings. The Council provided a schedule of authorities where the Court had made a split costs order, including Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449 and Qasabian Family Investments Pty Ltd v Road**s and Maritime Services (No 2); Fishing Station Pty Ltd v Road**s and Maritime Services (No 2) [2017] NSWLEC 179 (which were handed down after Dillon). In the latter cases, the respondent was ordered to pay costs up to a certain point, with each party to pay their own costs thereafter.
In response, UPG contended that the outcome of the litigation did not entitle the Council to an alternative cost order. First, to do so would be inconsistent with the principles articulated in Brock and Dillon.
Second, the reliance that the Council placed on the outcome to establish unreasonable conduct was insufficient. The matters which the Court found against UPG with respect to zoning and drainage were neither vexatious or dishonest, nor did they place an unnecessary burden on the parties or the Court insofar as they were directly relevant to the real issues in dispute.
And third, the Council had ignored issues upon which UPG succeeded, most significantly, that of the public purpose and, critically, that no compensation was payable by reason of alleged betterment. It maintained this position throughout the proceedings. Not only did the Court accept UPG’s identification of the public purpose, the Court held that no betterment arose on the facts and that UPG was entitled to compensation for the acquisition. UPG contended that the outcome of the litigation was thus more favourable to it than that which the Council has posited.
As the authorities make plain, an owner of land who has been compulsorily dispossessed by an authority of the State is entitled to take reasonable steps to seek the judgment of this Court in respect of the adequacy of compensation offered. The Just Terms Act provides that the Valuer-General must first determine the compensation available according to the procedures of that Act. The Act then permits the dispossessed landowner to object to that determination by instituting proceedings in the Court. The Court must subsequently hear and dispose of the person’s claim for compensation by fixing an amount that justly compensates that person for the dispossession.
UPG initiated the proceedings objecting to the statutory offer pursuant to its entitlement to do so under the Just Terms Act. In doing so it raised legitimate issues concerning the determination of the market value of the acquired land, including the identification of the public purpose for which the land was acquired. It did so without delay or in a way that inflated the parties’ costs. In other words, up to the commencement of the hearing it acted entirely reasonably. This is no doubt the reason for the first limb of the split costs order proposed by the Council. I agree that such an order is appropriate.
Rather, the question is whether UPG’s continuation of the proceedings once the joint expert reports were served and digested was reasonable. To reiterate, the Council submits that upon receipt of these reports the weaknesses in UPG’s case became manifest and it ought to have accepted the Valuer-General’s determination of compensation payable prior to the hearing commencing.
As is evident from the reasons given in the judgment, the issues raised by the expert evidence and the opinions expressed in the joint reports were contestable (during the hearing of the motion UPG helpfully provided the Court with an aide memoire to assist its recollection in this regard). While the experts commendably reached agreement on many matters, the key issues identified above remained in dispute and required resolution. It is not the case that upon receipt of UPG’s expert evidence, or the joint expert reports referred to above, that these issues were able to be easily resolved absent cross-examination or the making of submissions in relation to their evidence. That is, this is not an instance where by reason of the evidence there was in effect nothing left to litigate but a party persisted in doing so anyway.
The Council relied upon the strident language that the Court had employed in its judgment to argue that the findings of the Court were so strong that this was indicative of the inherent inadequacy of UPG’s case. In my view, this submission must be rejected. The opinions expressed by the Court were the product of careful deliberation after having had the benefit of hearing the oral evidence of the witnesses and the final submissions of the parties.
If, as the Council correctly accepts, UPG has the right to challenge the determination of the Valuer-General by commencing proceedings, then it follows that inherent in this right is the ability to proceed to trial if the evidence is cogent, which it was in this case.
I do not accept that receipt of the joint expert reports revealed deficiencies in UPG’s case such that it rendered the continuation of the proceedings unreasonable. The fact that UPG obtained greater compensation that the nil value contended for by the Council is demonstrative of this proposition. Viewed this way, UPG has arguably enjoyed a measure of success in the litigation.
Against this, however, is the fact that UPG neither obtained an award of compensation commensurate with or greater than the statutory offer and nor did it obtain the quantum that it sought during the hearing. In this sense UPG was unsuccessful in its claim.
Although I do not agree with the Council’s description of compulsory acquisition cases as a form of “commercial litigation” due to the invariably involuntary nature of the dispossession and the absence of any participation by the dispossessed owner in the calculation of the statutory offer, it must nevertheless be observed that no litigation is risk free and it is incumbent upon both parties, especially a claimant, to evaluate at every stage of the proceedings whether or not it ought to compromise its claim. A failure to do otherwise may amount to unreasonable conduct.
Applying the principles discussed in the authorities referred to above, and mindful of the observation by Stein JA in Overton, although finely balanced, I am of the opinion that the Council should pay UPG’s costs of the proceedings notwithstanding its failure to obtain an award greater than the Valuer-General’s determination or the amount of compensation claimed by it in the proceedings. The issues raised by UPG were more than arguable; the evidence was contestable; the proceedings were conducted efficiently, including the hearing; and UPG achieved a considerably better result than the nil value accorded to the claim by the Council. On the facts of this case, therefore, I find that UPG acted reasonably in the conduct of the litigation, including the conduct of the hearing. As a consequence, the Council ought to be liable for UPG’s costs of the proceedings.
Finally, and for the sake of completeness, I note that many of the costs cases referred to by the Council in the schedule attached to its written submissions are distinguishable. For example, in Tempe there was an offer of compromise and in Qasabian a split costs order was made in one set of proceedings because the joint expert valuers agreed on the amount of compensation for the value of the applicant’s interests in the acquired land, and therefore, to proceed to a hearing after receipt of the joint expert report was not reasonable. That is not this case.
The orders of the Court are as follows:
the Council’s notice of motion is dismissed;
the Council is to pay UPG’s costs of the proceedings; and
the Council is to pay UPG’s costs of the motion.
**********
UPG 72 Pty Ltd
Blacktown City Council
(2012) 191 LGERA 267
(2011) 184 LGERA 179
(2024) 262 LGERA 24
(2001) 113 LGERA 439
(2014) 88 NSWLR 449