Rakus v Energy Australia [2004] NSWLEC 657

Rakus v Energy Australia [2004] NSWLEC 657

The permissive occupancy did not confer exclusive possession because the conditions and Crown reservations preserved public, mining, timber and other rights, so it was not a leasehold, legal or equitable interest under paragraph (a) of the definition of interest in land. However, the occupancy gave the applicant rights and powers to occupy, use, improve, cultivate and, with consent, transfer the occupancy, and imposed obligations connected with the land. On the natural and ordinary meaning of s 4 of the Land Acquisition (Just Terms Compensation) Act 1991, and without the absurdity present in Hornsby, those rights constituted a right, power or privilege over or in connection with the land...

Jurisdiction
Australia
Judgment Date
29 November 2004
Procedural Posture
Claim for Compensation Under S 39 of the Land Acquisition (just Terms Compensation) Act 1991 Arising From Compulsory Acquisition of Crown Land / Interlocutory Hearing of Two Preliminary Questions of Law
Outcome
The first preliminary question was answered yes; the second preliminary question did not arise; the applicant received the costs of the preliminary questions as costs in the proceedings.
Legal Topics
['permissive Occupancy' 'interest in Land' 'legal or Equitable Estate or Interest' 'right, Power or Privilege Over or in Connection With Land' 'exclusive Possession' 'interlocutory Costs']
['land Acquisition and Compensation' 'property Law' 'crown Land' 'costs'] ['permissive Occupancy' 'interest in Land' 'legal or Equitable Estate or Interest' 'right, Power or Privilege Over or in Connection With Land' 'exclusive Possession' 'interlocutory Costs']

Case Brief

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Procedural Posture

Claim for Compensation Under S 39 of the Land Acquisition (just Terms Compensation) Act 1991 Arising From Compulsory Acquisition of Crown Land / Interlocutory Hearing of Two Preliminary Questions of Law

Legal Issues

  1. 1 ['Whether the applicant had an interest in the acquired land, Lot 3541 in Deposited Plan 1044499, that was divested, extinguished or diminished by the acquisition notice.' 'Whether, if the applicant had no such interest, the proceedings should be dismissed.' 'Whether a permissive occupancy was a legal or equitable interest in land or a right, power or privilege over or in connection with land under s 4 of the Land Acquisition (Just Terms Compensation) Act 1991.' 'How costs of the preliminary questions of law should be dealt with.']

Ratio Decidendi

The permissive occupancy did not confer exclusive possession because the conditions and Crown reservations preserved public, mining, timber and other rights, so it was not a leasehold, legal or equitable interest under paragraph (a) of the definition of interest in land. However, the occupancy gave the applicant rights and powers to occupy, use, improve, cultivate and, with consent, transfer the occupancy, and imposed obligations connected with the land. On the natural and ordinary meaning of s 4 of the Land Acquisition (Just Terms Compensation) Act 1991, and without the absurdity present in Hornsby, those rights constituted a right, power or privilege over or in connection with the land...

Court Disposition

The first preliminary question was answered yes; the second preliminary question did not arise; the applicant received the costs of the preliminary questions as costs in the proceedings.

Orders

  • ['The question, does the applicant have an interest in the acquired land (Lot 3541 in Deposited Plan 1044499) that was divested, extinguished or diminished by the acquisition notice, be answered: Yes.' "The costs of the hearing of two preliminary questions of law are to be the applicant's costs in the proceedings."...