The High Court’s decision on compulsory acquisition of land

Author: Brian Glendenning, Samantha Ellis

Publish Date: April 13, 2009

On 2 April 2009 the High Court unanimously held in the case of R & R Fazzolari Pty Ltd v Parramatta City   
Council; Mac’s Pty Ltd v Parramatta City Council [2009] HCA 12 that Council could not compulsorily acquire  land without the approval of the owners.

Prior proceedings

The Land and Environment Court (‘LEC’) at first instance held that Council was constrained by s188(1) Local  Government Act (‘LGA’) from compulsorily acquiring the land from the owners without their approval.  The  Court of Appeal overturned the LEC’s decision on the basis that Council was empowered by s186 LGA to compulsorily acquire the land as it was part of the implementation of Council’s Civic Place redevelopment  project. 

Facts

Council needed to acquire several blocks of land as part of a Public Private Partnership (‘PPP’). Pursuant to  the PPP agreement, Council was required to acquire the blocks of land and re-sell them to the developer.   In  return the Council was to receive significant financial payments and other benefits from the developer.

Two of the blocks of land were roads owned by Council and Council acquired this land under Land
Acquisition   (Just Terms Compensation) Act.  The other two blocks were owned by R & R Fazzolari and
Mac’s Pty Ltd respectively.  Neither of these parties agreed to Council acquiring their land.

Decision

The High Court took a narrow construction of Council’s source of power to compulsorily acquire land and held  that Council could not compulsorily acquire the land because it intended on reselling the land on to the
developer, even though it was directed towards Council’s “Civic Place” redevelopment.   The High Court
rejected Council’s argument that it could rely on s188(2) Local Government Act to acquire land without the
owner’s approval if the land adjoined or lies in the vicinity of other land acquired at the same time due to the
Council land being acquired under the Land Acquisition (Just Terms Compensation) Act and not the Local
Government Act therefore s186   was not engaged.

If youwould like    further information, please contact  Brian Glendenning or Samantha Ellis  on 49076300. 

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