The NSW government will be unable to remove railway tracks through the centre of Newcastle for the time being after a community group won a last-ditch court judgement.
The victory for the Save Our Rail group followed the government’s extraordinary manoeuvre in which it attempted to bypass laws preventing the disposal of rail assets by beginning the transfer of those assets to another government agency.
“David has given Goliath a big headache for Christmas,” a jubilant president of Save Our Rail, Joan Dawson, said outside the NSW Supreme Court on Wednesday afternoon.
Following two days of hearings, Justice Michael Adams told the Court that if rail assets were acquired by the other agency – the Hunter Development Corporation - then it would became a rail infrastructure owner and therefore unable to remove tracks except by act of parliament.
Counsel for RailCorp Adrian Galasso immediately said the government would appeal the decision.
Transport Minister Gladys Berejiklian had wanted RailCorp to start the process of removing the track infrastructure from Boxing Day. The government wants to remove the rail line between Wickham and Newcastle, which splits the commercial heart of the city from its waterfront, and allow development along parts of the corridor.
It plans to eventually run a light rail line along part of the existing rail line, but partly on a different route into the city.
The Save Our Rail Group won the reprieve for the existing rail line by appealing to Section 99A of the Transport Administration Act 1988.
The section says that a rail infrastructure owner cannot, unless authorised by Parliament, close a railway line.
To get around the Act, the NSW government last week started the process of transferring by compulsory acquisition certain rail assets such as signalling systems, lighting equipment, overhead wiring and boom gates from RailCorp to the Hunter Development Corporation.
This was revealed only in court on Tuesday.
Mr Galasso, acting for the Minister, RailCorp, and Transport for NSW, said the government also intended to transfer the rest of the rail corridor between Wickham and Newcastle to the Hunter Development Corporation using these means.
In a judgement delivered on Wednesday afternoon, Justice Adams found that this was a legal means of transfer and was not prevented by the Transport Administration Act.
But the Judge accepted the argument advanced by barrister for Save our Rail Shane Prince that this also meant the Corporation could not remove the rail line.
“The relevant infrastructure which has been acquired by the Hunter Development Corporation has made it a rail infrastructure owner… and it follows therefore that without an act of Parliament it can’t remove railway tracks or other works concerned.”
Nevertheless, the government still intends to undertake some works from Boxing Day. Mr Galasso said the majority of the works were to start on “positive” infrastructure, such as a new interchange at Wickham, and did not relate to removal.
But he sought and gained the right for RailCorp to remove about 700 metres of overhead wiring around Wickham from Boxing Day. If RailCorp and the Hunter Development Corporation lose an appeal, likely to be lodged in the new year, they will have to replace the overhead wiring.
The NSW government had been confident it would win the case. Earlier this week, Ms Berejiklian told Fairfax Media: “Our legal position is clear - Transport for NSW will not be in breach of section 99A of the Transport Administration Act 1988.”
In an emailed statement on Wednesday afternoon, Ms Berejiklian said:
“As stated by the Premier, Newcastle Council will have the final say about the future use of the corridor after truncation. We have always said the truncation is part of the wider revitalisation of Newcastle.
“As announced in July and communicated to customers, trains will stop operating beyond Wickham from Boxing Day this year. Accessible and air-conditioned buses will be in place to meet trains, running every ten minutes in the peak.
“We will not back away from our long standing commitments to revitalise Newcastle.”