Sydney Water Corporation v Registrar-General of New South Wales

1. [1]

   The plaintiff (Sydney Water) intends to resume a wastewater pumping station at Bingara Gorge, a large community title scheme (being Community Scheme DP270536) (Scheme) located in South Western Sydney.

2. [2]

   The Scheme is subject to the Community Land Development Act 2021 (NSW) (CLD Act). Part 10 of the CLD Act deals with resumptions of the land subject to the CLD Act.

3. [3]

   Section 73(2) of the CLD Act provides:

4. [4]

   By summons filed on 7 February 2025, the plaintiff seeks the following relief:

5. [5]

   The plaintiff also seeks an additional order, set out in some short minutes of order provided to my chambers yesterday evening, as follows:

6. [6]

   This order is necessary by reason of the provisions of s 88(2)(c) of the CLD Act.

7. [7]

   The only defendant to the proceedings is the Registrar-General who does not oppose the orders sought. The proceedings are otherwise not contested.

8. [8]

   For the reasons set out below, I am satisfied that the orders sought should be made. What follows is based, with gratitude, on the helpful written submissions provided by Mr Farland of counsel for the plaintiff.

Applicable Legislation and notification of the application

1. [9]

   As Sydney Water intends to compulsorily acquire the Pump Station (as defined below) and associated easement, Part 10 of the CLD Act applies, necessitating an application to the Supreme Court under s 73 of that Act, as noted above. The section provides (in full):

2. [10]

   The application has been made before any resumption, as s 73(6) requires. Noting s 73(3), the Pump Station is not association property.

3. [11]

   Section 74 of the CLD Act deals with notice and requires each owner and each other interested party, such as mortgagees, to be notified of the application. That section provides:

4. [12]

   In view of the minor nature of the change to the Schedule of Unit Entitlements in the Scheme, Sydney Water made application to limit the parties to whom notification of the application to the Court is made as permitted by s 74(1)(a) of the CLD Act. On 18 March 2025, I made orders limiting service to each headline Lot in the Scheme (of which there are 45) together with the Precinct Association, which are subsidiary schemes. I did not require service on the subdivided lots which are themselves within the various Precinct Schemes (as set out below).

5. [13]

   Service in accordance with those orders has been effected. No party who has been notified of the application by the solicitors for Sydney Water has indicated that they wish to be heard on the application. Exhibit C sets out the position in relation to who has been notified and any responses received.

Evidence relied on

1. [14]

   Sydney Water reads the following evidence in support of the orders sought in the Summons:

Overview of the facts

1. [15]

   The Pump Station is on land being part of Lot 13 in the Scheme. As the name suggests, that land houses a pump station operated by Sydney Water. The Pump Station is a pumping station that connects to the Bingara Gorge water resource recovery facility as part of the Wilton waste water scheme. Waste water from homes and businesses is treated at the facility to produce high quality recycled water which is used to irrigate the Bingara Gorge Golf Course and it is provided as recycled (non-drinking) water to the Bingara Gorge Estate located in Wilton in the Macarthur region of Sydney.

2. [16]

   Sydney Water acquired the Bingara Gorge water resource recovery facility from Bradcorp Wilton Park Pty Limited, pursuant to a contract for sale dated 23 December 2021, that settled on 28 June 2022.

3. [17]

   Sydney Water now intends to acquire the Pump Station by way of compulsory acquisition.

4. [18]

   The actual area to be acquired has been defined as proposed Lot 47 by a plan entitled “Plan of Proposed acquisition and Proposed Easement A affecting lot 13 in DP270536” (Acquisition Plan), which has been registered at the office of the Registrar-General as Deposited Plan 1306265.

5. [19]

   The residue of Lot 13 (termed Lot 46 in the Acquisition Plan) will become Lot 54 in the Scheme (being the next available lot number in the Scheme) once the compulsory acquisition occurs.

6. [20]

   The Acquisition Plan also includes a proposed easement for access, which will provide access to and from proposed Lot 47 from what is known as Fairway Drive. That easement is marked E on the Acquisition Plan.

7. [21]

   Lot 13 itself is subject to various easements. All of those easements are being retained and not released as part of the compulsory acquisition. The Acquisition Plan records that proposed Lot 46 (the residue Lot) and proposed Lot 47 (the lot being acquired) are each subject to the existing easements, as listed in the Acquisition Plan.

8. [22]

   As required by s 96 of the CLD Act, the Acquisition Plan also bears a statement that “on lot 47 being transferred to Sydney Water Corporation, the land constituting Lot 47 is excluded from the scheme”.

9. [23]

   The Scheme was created by DP207536 pursuant to the former Community Land Development Act 1989 (former CLD Act). It is comprised of residential housing, with common amenities including retail shops, a gym, pool and golf course.

10. [24]

    Each of the lots in the scheme has a unit entitlement. The unit entitlement details are recorded in a schedule that is part of the administration sheet for DP270536, as I explain below. The Scheme is also subject to a community management statement (CMS). As referred to above, no changes to the CMS are proposed as part of the acquisition, as no part of the community property, or any other lot is affected by the resumption, and an order confirming that position is included in the orders that I propose to make. The Scheme also includes a number of precinct schemes, for which individual Precinct Associations exist. Pursuant to the orders that I made on 18 March 2025, each Precinct Association has been notified of the present application.

11. [25]

    There have been numerous subdivisions of lots within the Scheme. With each subdivision, a new sheet or sheets within DP207536 has been registered.

12. [26]

    A Schedule of Unit Entitlement (Schedule) is shown on the community property title created by DP207536, being the initial deposited plan which created the Scheme. With each subdivision, that Schedule is updated.

13. [27]

    The Schedule records 53 lots in the Scheme with an aggregate entitlement of 9,827,023 units.

14. [28]

    Presently Lot 13 has an entitlement of two units, as shown in the Schedule. Ms White has calculated, and I accept, that the unit entitlement is 0.00002035204% of the total Unit Entitlement. This is insignificant considering the aggregate unit entitlement of almost ten million units.

Consideration

1. [29]

   Section 76 of the CLD Act is the principal section that falls for consideration on the hearing of the application, so far as a change per unit entitlement is concerned. That section provides:

2. [30]

   Section 76 has been considered in several earlier decisions of this Court, most particularly the decision of Ball J in Transport for NSW v Registrar General of New South Wales [2013] NSWSC 1272, the decision of Peden J in Transport for NSW v Registrar-General of New South Wales [2022] NSWSC 1660 and, most recently, the decision of Williams J in Transport for NSW v Registrar General of New South Wales [2024] NSWSC 1186.

3. [31]

   In the second of those decisions, Peden J stated at [33]-[37]:

4. [32]

   It will be seen that Peden J adopted what Ball J said in the first of the decisions. In turn, what was said by Peden J was followed in the third and most recent decision of Williams J.

5. [33]

   Having regard to the provisions of s 76 of the CLD Act itself, and the above authorities, the principal question for the Court is whether the relative values of the remaining lots in the Scheme have altered as a result of the resumption. In this case, whilst there has been an alteration, that alteration is extremely minor. Lot 13, of which the Pump Station forms part, has a unit entitlement of two, measured against the total unit entitlement of almost ten million. Whilst there has been an alteration, it is de minimis as the percentage calculation set out above makes clear.

6. [34]

   That conclusion, without more, justifies the making of the orders, and principally order 1(a) that I am asked to make.

7. [35]

   However, for abundant caution, Sydney Water has obtained a valuation from Iain Avery concerning the Pump Station, the proposed easement and the residue land (exhibit B). Mr Avery's report reveals that he has been personally involved with the Scheme as a valuer since 2020.

8. [36]

   Quite understandably, Mr Avery does not consider that either the part of Lot 13 being retained (the pump station - Lot 47), or the residue (proposed Lot 46) had any value for the purposes of establishing unit entitlement. Accordingly, he attributed a value of $1 to the whole of Lot 13. I accept this evidence.

9. [37]

   Mr Avery also concluded that "the impact of the proposed severance of lot 46 [the pump station land] is considered to be so minor that no alteration of the unit entitlement is warranted". I accept this evidence.

10. [38]

    Following the resumption, the Unit Entitlement of the residue will remain as two, in accordance with the recommendation of Mr Avery.

Conclusion

1. [39]

   Having regard to the matters set out above, I am satisfied that the Court should make the orders sought by Sydney Water.

2. [40]

   The orders of the Court are -

   1. (1)

      Order pursuant to s 73 of the Community Land Development Act 2021 (NSW) (CLD Act) that, as a consequence of the resumption of land described as proposed Lot 47 in Deposited Plan 1306265, (Resumed Lot) being part of Lot 13 in Community Plan DP270536 by the plaintiff, at Bingara Gorge in New South Wales:

   2. (2)

      Proposed easement for access 5.6 wide & variable width noted and marked "E" on DP1306265 be registered over the Residue Lot.

   3. (3)

      The Registrar in Equity affix the Seal of the Court to the Schedule of Unit Entitlement in the form being Annexure S to the affidavit of Alexandra Isabella White dated 8 April 2025 and filed in these proceedings (located at Court Book 5/95/2000).

   4. (4)

      Order that the plaintiff pay the defendant's costs of the proceedings pursuant to s 77 of the Act.