Warning of ‘unfair’ process unheeded as government forges ahead with property resumptions

Posted on 05/12/2018 by

Then-Prime Minister Tony Abbott and NSW Premier Mike Baird at a Westconnex press event in March 2015. Photo: Edwina Pickles Elizabeth Slakey with her children (from left) Luca, 8, Declan, 5, and Pippi, 2. They are among those affected by the WestConnex project. Photo: Kate Geraghty

A child’s submissions to the Department of Planning and Environment. Photo: Supplied

Separate motorway links are planned from Sydney Airport’s domestic and international terminals to the WestConnex tollroad. Photo: Cole Bennetts

The WestConnex M4 East tunnel, running largely south of Parramatta Road. Photo: WestConnex Delivery Authority

Hundreds of millions of dollars worth of property is being forcibly resumed by the NSW government to make way for major infrastructure projects such as the WestConnex motorway using a system it was warned three years ago was unfair to landowners.

Despite the report of a parliamentary committee chaired by Liberal MP Matt Kean calling for an overhaul of the compulsory acquisition system, the government has not implemented key recommendations while forging ahead with forced resumption of private homes.

The Baird government’s extensive infrastructure program has seen a surge in the number of private homes that have and will be compulsorily acquired for projects including WestConnex, NorthConnex, the Sydney Metro and the CBD light rail.

But many landholders have complained they are being given compensation hundreds of thousand of dollars below market value, amid the recent Sydney property boom.

Under the Land Acquisition (Just Terms Compensation) Act, if a landowner cannot reach agreement with the government about how much they will be paid, the Valuer-General provides a valuation as part of a compulsory acquisition.

The landowner can appeal the decision to the Land and Environment Court. But doing so can cost tens of thousands of dollars.

In 2013, the joint standing committee on the office of the valuer-general published a major report on the NSW land valuation system.

It found the compulsory acquisition system is “unfair and inadequate”.

“The entire approach to objection and compulsory acquisition valuations requires a paradigm shift where landholders are no longer seen as the receiver of a valuation notice, but rather as an interested party, whose views and opinions are entitled to be heard,” the report found.

It recommended landholders be legally entitled to two conferences – in person, by telephone or online – with the valuer or acquiring authority after they make a submission on the valuation of their land.

Far more information should be disclosed about how the valuation was made, the committee said, while authorities should be required to provide in writing reason for rejecting a landholder’s submission. Similar rights are in place in Victoria and Queensland.

The report found that “the current costs associated with litigation in the Land and Environment Court represent a material barrier to the enforcement of legal rights.”

A full hearing in the Land and Environment Court can cost $100,000 in fees for lawyers and experts.

The report also recommended landholders be entitled to a merits review of their valuation in either the Land and Environment Court or the more affordable option of the NSW Civil and Administrative Tribunal.

Vincent Butcher, a lawyer at Slater and Gordon representing over 100 property owners affected by WestConnex, NorthConnex and other projects said the Land Acquisition Act states a person should not be put in a worse situation.

“The process in which the acquiring authority is engaging in restricts and doesn’t give land owners a fair opportunity to have their say,” he said.

Mr Butcher said implementing the committee’s recommendations would be “a good starting point” but what was needed was an independent panel to impose “more accountability on the acquiring authority during the negotiation process.”

The NSW minister for finance, services and property, Dominic Perrottet, said the government was committed to a land acquisition process that is fair and efficient for all parties.

“It should be noted the vast majority of land acquisitions are already achieved by agreement,” he said.

“In line with the committee’s recommendations the Government and the Valuer General have already introduced a series of measures to improve the fairness and transparency of the valuation system and provide a smoother consulation process.”

“These include descriptions of the process in plain English, face to face meetings, and additional reporting information.”

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