In the recent case of Elmasri v Transport for NSW, the Plaintiffs were owners of land of which Transport for NSW sought to acquire a portion of the land for the construction of a motorway. 

Transport for NSW issued a proposed acquisition notice under the NSW Land Acquisition (Just Terms Compensation) Act 1991 s 11. However, the plaintiffs challenged the validity of the proposed acquisition notice and contended that the Transport authority had not made a ‘genuine attempt’ to acquire land by agreement at least six months before giving notice as required by s 10A(2) of the Act.

Transport for NSW made an oral application for a non-publication order. 

The court held that Transport for NSW had engaged detailed external expert advice and made offers of compensation to the plaintiff to secure the agreement to acquire all or part of the plaintiff’s land. Whilst the processes, timeliness and communications by Transport for NSW were not ‘perfect,’ the court considered that individually or collectively, they did not amount to a lack of bona fides. The court did not accept the plaintiffs case that s 10A(2) was not satisfied prior to the issuance of the proposed acquisition notice. 

Thus, court orders were made to affect the orders sought by Transport for NSW. This case demonstrates that even where there are flaws in government acquisition processes caused by delay and poor communication, s 10A(2) is still likely to be met unless there is a lack of bona fides. 

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