A Look at Alexandria Landfill Pty. V Transport for NSW [2020]
Contents
Introduction: 3
Summary of the Case 3
Analysis 4
Introduction:
On 4 August, the New South Wales Court of Appeal published its much anticipated
decision on the long running case of Alexandria Landfill Pty Ltd v Transport for
NSW concerning the compulsory acquisition of the former Alexandria Landfill (ALF)
site for the St Peters Interchange (part of the M8 Motorway). The case provided
guidance on various matters arising from compensatory claims in land acquisition
cases. This Report seeks to analyse the Court’s decision and its outcomes. It makes
a start in giving a brief summary of the case before going on to give a critical and
reflective analysis of the case highlighting its outcomes, its benefits and the
subsequent changes brought about by the case.
Summary of the Case
The land in this case involved a 15ha and an 1800 square metre lot owned by
Alexandria Landfill (ALF) but leased to a tenant, Boiling Pty Ltd (Boiling). The
operations undertaken on the land were carried out by a separate entity, Dial and
Dump Industries Pty Ltd (DADI). The owner and tenant sought to be compensated
for “the extinguishment of landfilling activity”; and “the costs involved in relocation of
the recycling/waste transfer operations (on a smaller scale) to another (smaller) site
in Alexandria. In July 2015, the Valuer-General determined the owner’s
compensation under the Land Acquisition (Just Terms Compensation Act) in the
amount $70,019,285. The owner and tenant were dissatisfied with the award and in
August 2015, they filed proceedings appealing the same.
In the Land and Environment Court, the Court awarded compensation of
$45,742,270 for the market value of the lot and $424,910.68 for disturbance under
the Just Terms Act which was substantially lower than both the Valuer-General’s
determination of $70,019,285 and ALF’s claim, which exceeded $500 million. The
owner was also dissatisfied with this decision by the Court and appealed the same.
They were unsuccessful on all 9 grounds of appeal. Grounds 5, 6, 7, 8, and 9 related
to compensatory claims, and is the part of the judgment that will be of particular
interest to this report.
Analysis
The Court found the owner could not claim lost profits because there was no use of
the land by the owners as it was leasing the land and was not in possession or
control of the land.
ALF argued that it could claim the disturbance costs of another party, being Dial and
Dump Industries Pty Ltd as that was not prevented by section 59(1)(f) and on the
basis that Dial and Dump Industries was acting as ALF’s agent. The Court found that
the owner could not claim disturbance costs for lost future profits based on the
relationship with Dial. This is because the owner failed to establish that Dial and
Dump was using the land as agent for the owner and that it had incurred costs or
derived revenue in connection with the business operated on the land. The Court
held that the owner’s loss was the result of the disruption of the business of its
subsidiary; yet to fall within the terms of the Act the costs must be incurred “as a
direct and natural consequence of the acquisition.” The appellant’s loss was at best
indirect and dependent upon the passing of a financial benefit by the subsidiary to
the appellant.
This is important as it confirms that an owner is unable to claim disturbance costs for
lost future profits as ‘agent’ if there is another entity carrying out operations on the
land, and if the owner is unable to establish that it (as distinct from a related
company) incurred costs or derived revenue in connection with the business on the
land.
The Court further held that even if the owner had carried on the actual use of the
land itself, its claim would have failed as an element of double recovery. The
disturbance claim amounted to “double recovery” as the value of the land acquired
had been calculated on the basis of discounted cash flow resulting from future
business operations. The Court of Appeal relied upon the decision in Roads and
Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Pty Ltd and held
that where the claimant’s interest in land has been valued by reference to its
commercial potential to return profits it would be double recovery for the claimant to
obtain the capital value of the land valuated on that basis and, in addition, the
amount representing the present value of future profits.
The case provided further guidance on what is considered an “interest” in land for
the purposes of the Land Acquisition (Just Terms Compensation) Act 1991 (the Act).
This decision will likely affect the way that companies organise their business
activities to ensure that the company using and operating on the land will be
considered to have an interest.
Bibliography
Nicholas Brunton, Anneliese Korber, Nicola Targett Landmark compulsory
acquisition decision upheld in the NSW Court of Appeal Alexandria Landfill Pty Ltd v
Transport for NSW [2020] NSWCA 165, August 2020
https://www.nortonrosefulbright.com/en-
au/knowledge/publications/8f947bbc/landmark-compulsory-acquisition-decision-
upheld-in-the-nsw-court-of-appeal
Todd Neal, Katherine Pickerd and others, The year in review – A look at NSW
planning and environment law in 2020, https://www.cbp.com.au/planning-
government-infrastructure-environment-team/our-knowledge/legal-knowledge-
matters/the-year-in-review-a-look-at-nsw-planning-and-en?article=10545 accessed
13 th August 2022
Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165
https://www.caselaw.nsw.gov.au/decision/173b15bd3b9a862e6d1d4d33
Dennis Loether & Julide Ayas, A claim for disturbance costs based on an ‘agency
relationship’ rejected by the Court of Appeal in Alexandria Landfill Pty Ltd v
Transport for NSW [2020] NSWCA 165 23 September 2020
https://www.bartier.com.au/insights/articles/a-claim-for-disturbance-costs-based-on-
an-agency-relationship/ accessed 13 th August 2022
Compulsory Acquisition – Recent Developments in relation to an “interest” in land
https://www.matthewsfolbigg.com.au/news/local-government/compulsory-acquisition-
recent-developments-relation-interest-land/
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