Posted on March 22, 2019 by Sophia Urlich and Stuart Simington

New Practice Note for Class 3 Compensation Claims in NSW Land and Environment Court

The Chief Judge of the Land and Environment Court of New South Wales has issued a new Practice Note for Class 3 Compensation Claims proceedings relating to the acquisition of land (‘Practice Note‘).

The Practice Note commenced on 15 March 2019 and replaces the earlier Practice Note  dated 15 July 2011.

The Practice Note implements a significant change to the way in which such proceedings are to be managed, and presumably is aimed at better facilitating the just, quick and cheap resolution of what often prove to be very complex cases.

Earlier conciliation conferencing 

The key change is that conciliation conferencing will be one of the initial procedural steps undertaken prior to the preparation of expert evidence.

The parties will ordinarily expect to attend a conciliation conference (suggested to be) 4 weeks after the first directions hearing. This will follow the exchange of schedules of losses attributable to disturbance and other financial costs, points of claim, points of defence, position papers and any lay evidence.

This contrasts with the procedure outlined in the earlier Practice Note, which provided for the parties to attend a conciliation conference or settlement (suggested to be) 16 weeks after the first directions hearing, following the preparation of all of the expert evidence and then the pleadings.

Bringing conciliation conferencing forward to an earlier point in the proceedings is presumably intended to provide a better opportunity for matters to be resolved more quickly and economically. That may well be the result in less complex matters, but it remains to be seen whether it will be appropriate in all matters.  To address the possibility that it isn’t, and rather than allocate matters to separate procedural streams from the outset,  the Practice Note makes provision for there to be a second conciliation conference after the second directions hearing  if the parties think that this would have good prospects of success at that point.

Pleadings

The required contents of the pleadings have slightly been amended and should now include:

(a) the amount of compensation that each party contends should be payable,

(b) the components thereof by reference to each relevant matter in s55(a) to (f) of the Land Acquisition (Just Terms Compensation) Act 1991 (‘LA (JTC) Act‘),

(c) the basis of the valuation of the market value or special value of the land under s55(a) and (b), and s56 and s57 of the LA (JTC) Act,

(d) particulars of any comparable sales upon which the valuation is based,

(e) a schedule of hypothetical development calculations,

(f) the schedule of losses attributable to disturbance under s55(d) and s59(1)(a) to (e) of the LA (JTC) Act,

(g) the schedule of other financial costs claimed under s59(1)(f) of the LA (JTC) Act, and

(h) in the points of defence, any matter which the respondent contends compensation is not payable under s61 or 62 of the LA (JTC) Act, and any matter relied upon to offset the claim.

Second directions hearing

At the second directions hearing (where one is necessary), the list judge will consider the appropriateness of the matter proceeding on a paperless basis, fix the hearing dates (if that has not already occurred) and a date for a pre-hearing mention, and make other standard directions regarding expert evidence, the filing and service of bundles of documents (including a Court Book, Evidence book and bundle of documents), and submissions.

Paperless hearings

The Practice Note contains a separate set of standard directions that will be made at a second directions hearing if the compensation claim hearing is to be conducted on a paperless basis (see Schedule C to the Practice Note). In essence, these directions provide for the arrangement and lodgment of the various documents for the hearing in prescribed formats on USB stick(s).

Early site inspections

Another noteworthy change is the provision of the opportunity to arrange an early site inspection by the hearing judge or commissioner, where:

  • a party considers it might be appropriate,
  • the List Judge considers it potentially warranted and raises it with the Chief Judge, and
  • the Chief Judge considers it appropriate (see [76] – [77] of the Practice Note).

Housekeeping

The Practice Note also updates a number of other matters including:

  • noting the availability of Online Court for timetable variation requests, and
  • making reference to the need to obtain leave for any proposed expert evidence under the UCPR.

The Practice Note can be viewed here.

To discuss this post please contact Sophia Urlich on 02 8235 9708 or Stuart Simington on 02 8235 9704.