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NSW to fight landmark Desane decision

May 18, 2018

The WestConnex proposal includes a plan for the acquisition of a property in Lilyfield Road, Rozelle. Photo: Supplied

Nick Lenaghan and Su-Lin Tan 

The Roads and Maritime Services in New South Wales is set to appeal a landmark decision that had quashed its bid to compulsorily acquire a development site held by Desane.

The Supreme Court of NSW this month ruled in favour of ASX-listed residential developer Desane, which had fought a long-running battle to stop the RMS taking over its land in inner-west Sydney for the construction of the WestConnex motorway.

With court orders expected in the case on Friday, the NSW Crown Solicitor’s Office advised Desane’s lawyers Levitt Robinson Solicitors it would seek to appeal the ruling on behalf of the RMS.

“His Honour’s judgment causes significant uncertainty for a large number of pending and future acquisitions of land,” the Crown Solicitor’s letter said, referring to the ruling by Justice David Hammerschlag.

Evidence had revealed that the Desane site was being considered for a car park.

As the case was moved to the Supreme Court from the Land and Environment Court, more evidence was heard that the NSW government had taken steps to compulsorily acquire Desane’s site even though it had no firm plans to use it for the WestConnex project.

“If a land owner compulsorily to be dispossessed is entitled to know precisely what the land is needed for a public purpose, that entitlement must stem from elsewhere,” Justice Hammerschlag said in his judgment this month.

The judge found that the Proposed Acquisition Notice, or PAN, was of no statutory effect because it failed to “state the public purpose for which the property is to be acquired”.

The RMS appeal will challenge Justice Hammerschlag’s findings on the validity of the PAN and that it was given for an improper purpose.

Late on Thursday Desane chairman John Sheehan issued his response.

“On behalf of our company and its mum-and-dad shareholders, I am deeply disappointed that following the comprehensive judgment, RMS have not heeded the advice of NSW Premier Gladys Berejiklian, when she publicly stated that the RMS needed to respect what the court had decided and she expected them to move forward in a positive way.”

The land is dispute is a 5274-square-metre development site at 68-72 Lilyfield Road in Rozelle, an area earmarked for residential development and mixed-use urban renewal.

After its victory this month, Desane said it intended to press ahead with its development of the site into a $100 million, 200-apartment residential project.

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