IT must surely be the most scrutinised two kilometres or so of rail track anywhere in the country.
But just for good measure, the NSW Court of Appeal is about to add its two cents’ worth to the city’s seemingly never-ending always-festering divisive rail line debate.
And it could cost the government a pretty penny if that doesn’t go its way.
The long-awaited appeal of the Supreme Court’s ruling last year that the government lacks the authority to remove the heavy rail between Wickham and Newcastle is listed for hearing in Sydney on Wednesday.
The state government and community group Save Our Rail have each filed appeals to different aspects of Justice Michael Adam’s ruling delivered on Christmas Eve last year, which tied the government’s hands before they could start ripping out the tracks on Boxing Day.
Not to be entirely thwarted, it ceased running trains, pulled out boom gates, installed several ‘‘temporary’’ crossings and left the tracks to rot. The case –and arguably the government’s broader revitalisation vision for the city– turns on a section of the Transport Administration Act.
Section 99A says a ‘‘rail infrastructure owner’’ can’t close a rail line unless they have the approval of parliament – an act.
Importantly, a rail line would be considered closed, it says, if ‘‘the land concerned is sold or otherwise disposed of or the railway tracks and other works concerned are removed’’.
But the government did not so much as introduce a bill as Boxing Day drew near, leaving critics wondering what else it had up its sleeve.
As it turned out, a clever ‘‘device’’, as Justice Adams described it. But one not clever enough for him.
The court hearing flushed out the elaborate plan – overhead wiring and boom gates would be transferred by owner RailCorp to the Hunter Development Corporation (HDC) on Boxing Day.
HDC would then take ownership of the land using its powers under compulsory acquisition laws.
Government lawyers argued HDC would not be bound by section 99A, because the agency did not fall within the act’s definition of a ‘‘rail infrastructure owner’’.
And the compulsory acquisition meant RailCorp could not be considered to have technically ‘‘disposed of’’ the corridor land.
Justice Adams noted he was ‘‘not concerned with whether the project is a good one or a bad one’’, before ruling that HDC would still be bound by the Transport Administration Act even though the acquisition would not amount to a sale or land ‘disposal’.
Save Our Rail vice president Kim Cross said the government would again argue that HDC is not a rail infrastructure owner but ‘‘they are going to attempt to adduce some new evidence about that and I suspect that will be the subject of legal argument so I won’t say anything more’’.
The government’s evidence so far showed it planned for HDC to acquire the corridor, then lease much of it to UrbanGrowth, she said.
Some would be leased to RailCorp to run light rail from Wickham to Worth Place, and into Hunter Street.
‘‘It’s clearly quite a complicated device, as described by Justice Adams, to avoid the application of the Transport Administration Act,’’ Ms Cross said on Friday.
‘‘But we’re confident that just as he saw what it was, a clear construction of the legislation will indicate that really what the government’s simply got to do is introduce a bill to parliament to close the rail line.’’
Recent budget papers revealed the government has spent $60million on the project. If it loses the appeal, it could seek support from upper house crossbench MPs.
The two Christian Democrat MPs are steadfast against the plan.
Animal Justice Party MP Mark Pearson has flagged he would consider any case. Shooters and Fishers MPs say they’ve not heard anything from the government.
A Transport for NSW spokeswoman said planning for the light rail ‘‘is well under way’’, but declined to comment on the court proceedings.
Construction of another new pedestrian crossing at Argyle Street is due to start in mid-July.