Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9

Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9

The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is a valid State enactment not constrained by s 51(xxxi) of the Commonwealth Constitution, and just compensation is to be determined by reference to the market value of the acquired land, decrease in value of residue land as a result of the acquisition, and proven disturbance costs. The applicants' challenge to constitutional validity is dismissed, and compensation is assessed at $153,820 based on these statutory criteria and the evidence.

Parties
First Applicant: Koula Rafailidis; Second Applicant: Efrem Rafailidis; First Respondent: Roads and Maritime Services; Intervenor: Attorney General for New South Wales
Jurisdiction
Australia
Judgment Date
11 February 2014
Procedural Posture
Compulsory Acquisition – Land and Environment Court Class 3 Proceedings / Final Judgment After Hearing on Constitutional Validity and Compensation Quantum
Outcome
Applicants' constitutional challenge dismissed; compensation determined at $153,820 for the acquisition; exhibits (except 1A) may be returned.
Legal Topics
Compulsory Acquisition of Land, Determination of Compensation, Validity of Land Acquisition (just Terms Compensation) Act 1991 (nsw), Application of S 51(xxxi) Commonwealth Constitution to State Acquisitions, Assessment of Market Value and Injurious Affection, Loss Attributable to Disturbance
Constitutional Law Property Law Administrative Law Compulsory Acquisition of Land Determination of Compensation Validity of Land Acquisition (just Terms Compensation) Act 1991 (nsw) Application of S 51(xxxi) Commonwealth Constitution to State Acquisitions Assessment of Market Value and Injurious Affection +1 more

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Parties

Koula Rafailidis

First Applicant

Efrem Rafailidis

Second Applicant

Roads and Maritime Services

First Respondent

Attorney General for New South Wales

Intervenor

Procedural Posture

Compulsory Acquisition – Land and Environment Court Class 3 Proceedings / Final Judgment After Hearing on Constitutional Validity and Compensation Quantum

Legal Issues

  1. 1 Whether the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is a valid enactment in light of s 51(xxxi) of the Constitution
  2. 2 What is the just amount of compensation payable for compulsory acquisition of land under the Act

Ratio Decidendi

The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is a valid State enactment not constrained by s 51(xxxi) of the Commonwealth Constitution, and just compensation is to be determined by reference to the market value of the acquired land, decrease in value of residue land as a result of the acquisition, and proven disturbance costs. The applicants' challenge to constitutional validity is dismissed, and compensation is assessed at $153,820 based on these statutory criteria and the evidence.

Court Disposition

Applicants' constitutional challenge dismissed; compensation determined at $153,820 for the acquisition; exhibits (except 1A) may be returned.

Orders

  • Dismiss the applicants' challenge to the validity of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW).
  • In accordance with the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) determine compensation payable by the respondent for acquisition on 16 November 2012 of Lot 2 in Deposited Plan 1170535 in the sum of $153,820.