Save Leamington Avenue Submission on Land Acquition and Transport

SAVE
LEAMINGTON AVENUE (SLA)[1]

NSW Long Term
Transport Master

Plan Discussion Paper

April
2012

1.0         
INTRODUCTION

 

A
Long Term Transport Master Plan is an essential step in delivering effective
transport solutions for the people of NSW. This is particularly so for the
Sydney metropolitan area given the failings of transport planning over many
decades.  Effective transport planning is
key to ensuring economical prosperity and community wellbeing for the people of
NSW. 

Whilst
an effective Long Term Transport Master Plan must identify the detailed
transport objectives and outcomes sought to be achieved, it is equally
important that the plan identify the means
by which those objectives and outcomes will be achieved. In other words, the ‘how’
is as important as the ‘what’.

Ultimately
the measure of success of the Long Term Transport Master Plan will not only be
whether specific transport projects are delivered, but also the manner in which those projects are
implemented. 

Failure
to consider the manner in which transport planning is undertaken will mean
there is a real risk the community will not be accepting of the plan, with the consequent
risk that the plan itself is not delivered: the
ends do not always justify the means.  

The
‘how’
includes: 

• ensuring genuine, meaningful and transparent
  consultation and public participation in the transport planning process;
• integrating transport and land use planning
  processes so that precious transport resources are targeted to the areas of
  greatest need;
• making it mandatory for all transport
  corridors to be identified in environmental planning instruments (EPIs) at the earliest opportunity; 
• ensuring people’s right to know about
  transport decisions which affect them is enshrined as a fundamental principle
  underpinning transport and planning laws; and
• undertaking urgent reforms to the compulsory
  acquisition laws to ensure transport planning does not deliver unfair or unjust
  results for those adversely affected by transport decisions.  

Whilst
the NSW Long Term Transport Master Plan
Discussion Paper appropriately focuses on the key transport objectives
sought to be achieved[2],
there is no mention in the Discussion Paper of how Government intends to deal
with those who are adversely impacted
by transport decisions.

The
recent experience of residents of the ‘Pines Estate’ Newtown in saving their homes
from acquisition and demolition provides an excellent example to Government of ‘how’
not
to do it.  The SLA experience serves as a
timely reminder that without community acceptance, transport proposals will
inevitably fail.

If
lessons are not learnt from the SLA experience the same could occur time and
time again as the NSW Long Term Transport Master Plan is implemented. Indeed similar
problems are already apparent in the current planning process for the North
West Rail Link (NWRL) – being the ‘biggest transport infrastructure project
since work on the Sydney Harbour Bridge started 90 years ago’[3].

2.0         
THE SLA
EXPERIENCE

The Pines Estate, comprising Leamington Avenue,
Holdsworth, Pine and Wilson Streets, Newtown, adjoins the largely disused,
Government owned, North Eveleigh site.  

In December 2008 a concept plan was approved for
North Eveleigh which provides for a $550 million redevelopment of the10.7
hectare site, comprising residential, commercial, retail and open space areas[4].  The concept plan also identifies that the
site will accommodate rail infrastructure. 

In early June 2010, residents of the Pines Estate
received an anonymous flyer advising their homes had been identified for
possible compulsory acquisition by Railcorp.

This was to make way for the City Relief Line (CRL)
– a key component of the Western Express Project (WEP), one of the
main transport proposals contained in the Metropolitan Transport Plan, ‘Connecting
the City of Cities’, released by the former Government in February 2010.  The
CRL was proposed to commence by way of dive tunnel located on the North
Eveleigh site.

The flyer identified 34 homes as being affected[5]. This was the first time the residents had been informed their homes may
be compulsorily acquired to make way for the CRL.

A
few days later an article in the Sydney Morning Herald reported:

‘Just 2 months
after the NSW Government spared the heritage suburbs of Pyrmont and Rozelle by
dumping the CBD Metro, another historic precinct is under threat from another
controversial transport plan’[6].  

Reflections
by one of the residents show the devastating impact of hearing the news in this
way:

‘My heart sank when I
saw a picture of my house under the newspaper heading “Rail
tunnel plan threatens historic homes”. It is hard to describe how surreal
the feeling was reading this article traveling on the train to work. The
enormity of the moment was overwhelming’.         

Residents’
alarm was further heightened when it was discovered:

●     
the homes identified for possible acquisition
formed part of the Pines Estate Heritage Conservation Area[7]
and the Hollis Park Urban Conservation Area[8]; 

●     
the Planning Minister approved the concept
plan for redevelopment of the North Eveleigh site without consulting affected
residents about the potential acquisition implications – this was despite
engineering plans forming part of the concept plan clearly indicating properties
in the Pines Estate may require demolition;  

●     
the WEP/CRL had never been identified in any
EPI as a potential rail corridor nor had any other steps having been taken by
Transport NSW (TNSW) to alert
property owners and prospective purchasers of the proposal;

●     
15 properties had been sold in Leamington
Avenue and the adjoining streets between 2007/08 – 2010, with innocent
purchasers completely unaware of their fate, whilst Transport authorities had
knowledge of the possibility of compulsory acquisition since as early as
2007; 

●     
despite this knowledge, Railcorp was also
routinely approving residents’ development applications[9]
and allowing residents to commence costly renovations in complete ignorance of
the financial risks they faced in the event the properties were acquired;          

●     
as a result of information then in the public
domain, property owners came under a legal
obligation to make full disclosures to prospective purchasers about the
threat of acquisition. This was despite owners not being entitled to any
protection under the Land Acquisition
(Just Terms Compensation) Act 1991 (Land
Acquisition Act) at that point in the process[10].

After
a concentrated and highly successful community campaign, the Government
announced in August 2010 that feasibility/investigative studies, which
were only agreed to be undertaken as a result of the SLA campaign, revealed
there was “no engineering or design basis
to acquire the properties”.

Despite this, residents
of the Pines Estate still do not have confidence their homes are safe from
acquisition and demolition:

• whilst the WEP may be gone, the CRL remains
  very high on the Transport agenda (indeed the CRL will be a crucial component
  of any rail proposals for the Sydney Metropolitan area given the projected increases
  in congestion levels on the City Circle)[11];
• despite a change of Government, it is still
  the same Transport bureaucracy that residents are dealing with: despite
  numerous requests since 2010, TNSW refuses to provide information detailing the
  results of the investigative studies which concluded the CRL can be wholly
  accommodated on the North Eveleigh site without the need for acquiring any
  neighbouring properties[12];
• without such information, residents cannot
  meaningfully participate in the planning process for the North Eveleigh site
  nor ensure appropriate steps are taken by TNSW and the Sydney Metropolitan
  Development Authority to set aside sufficient land on the North Eveleigh site
  to accommodate the CRL and associated construction sites before the land is
  sold off to private developers;  

The
SLA campaign was recognized by the Planning Institute of Australia in 2011,
with SLA receiving a commendation in the ‘Hard Won Victory’ category at the
annual ‘Planning Excellence Awards’.

The
SLA experience raises serious questions about why a community campaign of the
size and scale undertaken by SLA was necessary to achieve outcomes that should
have been the result of a proper planning process?  What would the result have been if the local
community did not have the resources or perseverance to orchestrate such a
campaign?

3.0         
THE
IMPORTANCE OF IDENTIFYING TRANSPORT CORRIDORS IN EPIs

One
of the key issues identified during the SLA campaign was the failure of
Government to identify the CRL as a transport corridor in an EPI.  

EPIs
are the key means by which people can be informed about future development
proposals which affect their land. Indeed, the conveyancing process recognizes
this by requiring a s.149 certificate to accompany any contract for the sale of
land. 

Section
149 certificates are intended to indicate the ‘true status’ of the land, having
regard to the planning matters specified in Schedule 4 of the Environmental Planning and Assessment
Regulation 2000 . This includes, amongst other things, whether an EPI makes
provision for the compulsory acquisition of the land.

Prospective
purchasers rely on the s.149 certificate to inform themselves about any
possible ‘affectations’ on title.  The
s.149 certificate is also important for the vendor, given the vendor disclosure
obligations that apply under the conveyancing process.  Failure by the vendor to make relevant
disclosures can give rise to a breach of contract, entitling the purchaser to
rescind the contract. 

As
noted above, in the case of the Pines Estate residents, people selling their
properties came under a legal obligation to make full disclosures to
prospective purchasers about the possibility of compulsory acquisition.  This was despite the CRL proposal never
having been identified in an EPI and there being no protections under the Land
Acquisition Act at that point. This effectively rendered the properties
valueless and property owners in legal and financial limbo.

There
is currently no statutory requirement for transport corridors to be identified
in EPIs.  This is essential to ensure
people can make informed decisions about
property related matters e.g. deciding whether to buy or sell property or
invest resources in renovations.   People
should not be in a position where they are blindly entering into major
financial commitments, without knowledge of the financial risks involved.

Where
transport corridors are identified in EPIs, the purposes for which the land may
be used should be clearly identified. 
Land should not be identified for a ‘public purpose’ (e.g. rail
corridor) if it is in fact intended to be used for other, non-public purposes (e.g. private residential, retail or commercial
development).  This is because where land
is identified for a ‘public purpose’, special planning privileges usually apply
e.g:

• more
  generous permissibility provisions;
• relaxation
  of planning controls and development standards that might  otherwise apply;
• public
  authority entitlements to compulsorily acquire land.

Where
Government owned land (or land that may potentially be owned by Government as a
result of compulsory acquisition) is intended to be used for non-public
purpose, the EPI should appropriately reflect this.  The same planning controls should apply to
that land as applies to other land intended to be used for those same
purposes.  In other words, the special
privileges applying to public purpose land should not apply. 

4.0         
NEED FOR
URGENT REFORM OF COMPULSORY ACQUISITION LAWS

The
SLA experience also illustrates the inadequacies of the current compulsory
acquisition laws in NSW. 

Compulsory
acquisition is a necessary part of the transport and planning system.  However, unless there are reforms to the
compulsory acquisition laws to deliver fairer, more equitable outcomes, it is
very unlikely the community will accept increased levels of compulsory
acquisition by the State. This will significantly impact on the effective
implementation of the NSW Long Term Transport Plan, once it is adopted.

The
key areas of concern are:

• property owners/occupiers need to be
  adequately and fairly compensated when
  compulsory acquisition is required;
• compulsory acquisition powers under
  any act should only be enlivened where transport corridors have been
  identified in EPIs and land reserved exclusively for the intended transport
  purpose (this is not currently the case);
• zoning of publicly owned land for non-public purposes (e.g. private
  residential, retail or commercial development) should not give rise to a right
  to compulsorily acquire land; and
• compulsory acquisition should only
  ever be pursued as a last resort.

Sydney is not alone in dealing with the inevitable
problems arising from the lack of adequate transport planning. At the same time
as the SLA campaign was underway, hundreds of property owners in Victoria also
found out their properties were to be acquired through media reports, rather
than through formal notification by transport authorities (see attached ABC
Radio National, Law Report, transcript dated 19.10.10 which mirrors the
experience of the Pines Estate residents).

The
Land Acquisition Act is outdated legislation that does not reflect the ever increasing need for Government to
consider compulsory acquisition. Reforms to the Act are urgently required
as it is one of the least generous compensation acts in the country.  For example:

(a)         
losses incurred before people are served with a Proposed Acquisition Notice
are not recognized nor compensable (this is particularly important in
circumstances where the acquisition does not in fact proceed, as happened in
the case of the Pines Estate residents);

(b)         
the Act does not recognise the impact on
people who are not acquired but who are adversely affected by the acquisition
of neighbouring properties;

(c)         
there is no requirement to acquire land that
is not directly needed for the proposal – this is despite the fact that the
remaining/adjoining land may be adversely affected by the acquisition (be it
loss in value and/or loss of amenity); 

(d)         
the ‘market value’ at the time of acquisition, being the basis upon which compensation
is currently calculated, may not reflect the owners’ actual losses arising from
the acquisition e.g. the market value of a property which is partly demolished
as a result of renovations, may not be a reasonable basis on which to determine
compensation entitlements; 

(e)         
the Act does not provide for ‘reinstatement’
costs e.g. in circumstances where there is no equivalent stock in the
surrounding area, people may be forced to move out of the area altogether
because the compensation payable is insufficient to purchase an equivalent property
in the same location; 

(f)          
the ‘solatium’ component of compensation
(i.e. compensation for non-financial disadvantage resulting from the need to
relocate) is grossly inadequate[13]
– solatium should be calculated based on a % of market value, as occurs in
other states[14];

(g)         
compensation under the NSW Land Acquisition
Act is calculated in strict compliance with the identified heads of
compensation set out in Part 3 of that Act – by contrast, the Commonwealth Lands Acquisition Act 1989[15],
requires ‘all relevant matters’ to be
taken into account in determining compensation, thereby allowing the special
circumstances of each individual case to be taken into account;  

(h)         
the Act needs to provide greater flexibility
in the timing of acquisition to better reflect the varying circumstances of
affected residents – currently a 90 day notice period applies[16],
after which, the acquiring authority is entitled to charge the person market
rent if they stay in the property beyond the notice period.    

In
addition to the above, the compulsory acquisition laws were further undermined
in 2006[17]
when the owner initiated acquisition provisions of the Environmental Planning & Assessment Act 1979 (EP&A Act) and Land Acquisition were
amended so that owners subject to compulsory acquisition clauses in EPIs can
now only compel an authority to acquire their property if they are able to
demonstrate they are suffering hardship[18].   

Previously,
where an EPI reserved land exclusively for a public purpose, the affected owner
could compel the acquiring authority to acquire the land at any time, without
having to demonstrate hardship. 

Where
land is acquired by a public authority and then part is on-sold to a private
developer (e.g. as may occur where rail corridors are rezoned to facilitate
residential, retail or commercial development), the person whose land is
compulsorily acquired should be entitled to a proportion of the uplift in value
of the land.   This is only fair because
the uplift in value could not have been realized without the person’s land
being acquired. The public authority that acquired the property and the
subsequent owner of land should not be the sole beneficiaries of the uplift in
value where this occurs[19]. 

The
Local Government Act 1993 (LG Act) and the Roads Act 1993 (Roads Act)
recognise this by placing an express limitation on councils and the RTA being
able to compulsorily acquire land for
re-sale without first obtaining the approval of the owner[20].   This provides the owner with the opportunity
to negotiate a level of compensation outside the constraints imposed by Part 3
of the Land Acquisition Act (which requires compensation based on market value
of the property, without regard to the proposed
future use of the property).

Whilst
this protection is enshrined in the Roads Act and the LG Act (and was upheld by
the High Court in R&R Fazzolari Pty
Ltd v Parramatta City Council; Mac’s
Pty Ltd v Parramatta City Council (2009) 237 CLR 603),  the same can not be said in relation to other
public authorities, such as Railcorp, the State Transit Authority, Sydney
Ferries and the Transport Construction Authority.  Unlike the Roads Act and the LG Act, the Transport Administration Act 1988 gives
these agencies an express power to acquire land for the purpose of re-sale
without the approval of the owner[21]. 

5.0         
IMPLICATIONS
OF THE SLA EXPERIENCE FOR THE NSW LONG TERM TRANSPORT MASTER PLAN

The
SLA experience demonstrates a number of significant failings in the current
transport planning process which need to be fixed if the NSW Long Term Transport Master Plan is to effectively deliver
transport solutions for NSW[22]. 

We
need:

•                    
  Genuine consultation processes:

Current community
consultation mechanisms are inadequate – 
new, more effective consultation models are needed if community
consultation is to have any real meaning and the community is to have any faith
in the decision making process.

•                    
  Proper, integrated transport and land use
  planning processes:

There is currently a
lack of integration between transport and land use planning with planning
instruments failing to reflect key transport strategies. 

•                   
  Transport corridors to be identified in EPIs
  at the earliest opportunity: 

There should be a
statutory requirement for all transport corridors to be identified in EPIs and
projects should not be able to be approved until this has been done. The
identification of transport corridors should occur at the earliest opportunity
in the planning process following meaningful consultation with those likely to
be affected.

•                   
  People’s right to know should be enshrined as
  a fundamental principle underpinning transport and planning laws:

People have a right
to know about planning and transport decisions that affect them, particularly
where those decisions impact on property rights – a person’s home is likely to
be the most valuable asset they will ever own. People should not find out their
homes are to be acquired by reading about it in the paper.

•                   
  Urgent reforms to the compulsory acquisition
  laws:

People who are
adversely affected by transport decisions need to be fairly compensated.  The compulsory acquisition process should not
be a mean-spirited one when it comes to people being forced out of their homes.
People should be generously compensated when they are being asked to make
sacrifices for the greater good of the community. 

Without
addressing the current failings of the transport planning process, the SLA
experience will be repeated as Government attempts to deliver its transport
agenda. 

Indeed
the NWRL project, being the most significant transport infrastructure project
currently being undertaken by the NSW Government, looks set to repeat a number
of the failings illustrated by the SLA experience.  

Planning
for the NWRL is well underway with the Environmental Impact Statement (EIS) for the 23 km rail line currently
on public exhibition. The EIS indicates the construction works for the NWRL
will require the acquisition and demolition of 92 buildings, including 60 residential properties[23]. 

Specific
properties have been identified for acquisition and demolition despite the full
route of the NWRL still not having been
identified as a transport corridor in the relevant EPIs[24] nor the land exclusively reserved for
rail purposes.  Without this, affected
residents are exposed to the same risks and liabilities experienced by the
residents of the Pines Estate.

The
Discussion Paper recognises the importance of identifying transport corridors[25]:

Protecting
transport corridors is an important planning mechanism to ensure the
availability of land for future transport projects… Preserving corridors
enables urban development to progressively occur across the city in a way that
does not preclude transport options in the future.  

The
Premier and Minister for Transport recently announced plans to ‘future-proof North West Sydney’s public
transport options’[26]
by identifying a transport corridor for the future expansion of the NWRL.   Whilst this is a desirable and appropriate
step, it raises some important questions:

• why has the existing route for the NWRL not yet been identified in an EPI?
• in identifying a rail corridor for the future
  expansion of the NWRL, will the EPI also reserve the land exclusively for rail
  purposes to ensure the compulsory acquisition provisions under the EP&A Act
  are enlivened so that affected property owners are not adversely affected?      
• will the Government acquire the properties as and when affected property owners request,
  rather than waiting until projects are funded and/or subjecting property owners
  to an unnecessary ‘hardship test’? 

The
Minister for Transport recently said in respect of the proposed rail corridor
for the future expansion of the NWRL, ‘No
land will be acquired at this stage. The land will be zoned for public
infrastructure purposes and only acquired when a specific project has been
approved in future’[27]. 

If
this is the case, how and when will affected property owners be compensated for
the consequent reduction in land values once the transport corridor is
identified in an EPI?

6.0         
CONCLUSION

The
success of the ‘NSW Long Term Transport Master Plan’ will be dependent on
addressing the current failings of the transport planning process and having
due regard to the ‘how’ as well as the ‘what’ of transport delivery. 

Most
importantly, as illustrated by the SLA experience, the compulsory acquisition
process needs to operate more fairly and transparently if Government expects
the community to be accepting of the process. Otherwise there will be
increasing community backlash, as occurred with the CRL.  Surely the cost of providing a fair
compensation process, be it financially or politically, will be significantly less
than the cost of, yet another, failed transport proposal? 

The
NSW Long Term Transport Master Plan
Discussion Paper proposes the following objectives to underpin future
planning for transport in NSW[29]:

• Putting the customer first
• Economic development
• Planning and investment
• Coherence and integration
• Performance and delivery
• Efficiency
• Environmental sustainability
• Social benefits 
• Safety

For
the NSW Long Term Transport Master Plan to receive the necessary community
support to ensure its successful delivery, it is imperative the plan also have
as one of its core objectives: 

• Fairness
  and Equity.  

This objective requires:

• ensuring people who are adversely affected by
  transport proposals are informed in a timely manner about decisions which may
  affect them;
• treating people who are adversely affected by
  transport proposals fairly and equitably;
• only pursuing compulsory acquisition as a
  last resort;
• where people’s homes and business premises need
  to be acquired, justly compensating people for the loss of their properties in
  recognition of the sacrifices they are making for the greater good of the
  community; and
• ensuring those who may not be acquired but
  who are nonetheless detrimentally affected by the compulsory acquisition process,
  are also fairly compensated. 

The
SLA experience should not be repeated in delivering the NSW Long Term Transport
Plan.