THE Hunter Development Corporation is poised to ‘‘compulsorily acquire’’ the Newcastle rail corridor as part of what a judge has described as an unfair government ‘‘device’’ intended to circumvent laws requiring an Act of Parliament before the rail line is removed.
Under the elaborate arrangements, which came to light in the Supreme Court on Tuesday, overhead wiring, boom gates and other rail infrastructure will be transferred by owner RailCorp to HDC on Boxing Day, the same day contractors are scheduled to start work on the heavy rail’s truncation in the first phase of the government’s $460million city transport project.
HDC will later take ownership of the land using its powers under compulsory acquisition laws.
The government has kept quiet on the deals up until now, despite the court hearing that Transport minister Gladys Berejiklian has already directed RailCorp to agree to the terms of the compulsory acquisition and the sales agreement for the infrastructure was signed on December 19.
But whether the measures are legal remains up in the air, with Justice Michael Adams expected to deliver his judgment on Wednesday as to whether the government should have secured first an Act of Parliament to endorse its plans.
The Save Our Rail group has sought an injunction to prevent the government starting the works from Friday, arguing it lacks the legal authority.
Under the Transport Administration Act, a rail infrastructure owner - in this case RailCorp - can’t close a rail line without Parliament’s approval.
Section 99A says a line would be considered closed if the land is ‘‘sold or otherwise disposed of or the railway tracks and other works concerned are removed’’.
Barrister for the minister, Adrian Galasso SC, said HDC would not be bound by the Act because the agency did not fall within its definition of a ‘‘rail infrastructure owner’’, as the Act did not vest it with the infrastructure, unlike RailCorp.
As well, HDC’s compulsory acquisition of the corridor meant RailCorp could not be considered to have technically ‘‘disposed of’’ the rail land.
‘‘As it’s going to be taken from them it’s not a disposition?" Justice Adams asked.
‘‘Yes,’’ Mr Galasso replied.
Justice Adams indicated his decision would rest on whether he accepted the argument, observing the two agencies were both under the government’s control and the process was not at ‘‘arm’s length’’.
‘‘Each is an arm and it has the one head, that’s the reality of it,’’ he said.
However, Tim Robertson SC, barrister for HDC, which was joined as a party to the proceedings, argued compulsory acquisition laws would override the Transport Administration Act, in effect freeing the rail land - and HDC - of any restrictions that section 99A may impose.
Reflecting on the government’s arrangements, Justice Adams said they appeared ‘‘a bit unfair’’ given ordinary people would look at the Transport Administration Act and believe Parliament would need to approve the closure of a rail line.
‘‘One can understand why people are disquieted by it because it does have the appearance of a device ... [although] it may be a perfectly legal device,’’ Justice Adams said before adjourning the Sydney hearing.
The matter will resume at 10am on Wednesday.
Overhead wiring, boom gates and some other infrastructure in the Newcastle rail corridor is set to be transferred to the Hunter Development Corporation on Boxing Day, it has been revealed in the NSW Supreme Court.
HDC will also eventually "compulsorily acquire" the corridor land, as part of the state government's attempts to get around legislation that says a rail infrastructure owner needs an Act of Parliament before it can close a rail line.
The Save Our Rail group has sought an injunction from the court to stop the government starting work to truncate the line from Boxing Day, ahead of a hearing of its case in which it would argue the government lacks the legal authority to remove the line.
Already the court has heard of an agreement signed on December 19 for the rail corridor owner, Rail Corp, to transfer certain corridor "assets", including the wiring, fencing and boom gates, to HDC, which will occur on December 26.
Justice Michael Adams was told on Tuesday morning the agreement does not include a transfer of land, but that is expected to be compulsorily acquired later by the Hunter Development Corporation.
Under section 99A of the Transport Administation Act, the government cannot close a line without Parliament's approval.
A line would be considered closed if the land is "sold or otherwise disposed of or the railway tracks and other works concerned are removed".
Barrister for Transport Minister Gladys Berejiklian, Adrian Galasso SC, said the government's arrangements meant the HDC was not a rail infrastructure owner that would be bound by the requirements of the act, while the compulsory acquisition meant RailCorp could not be considered to have "disposed" of the land.
"As it's going to be taken from them it's not a disposition?" Justice Adams asked.
"Yes," Mr Galasso replied.
The hearing is continuing.