NEWCASTLE'S rail line has not technically been closed just because trains no longer service all its stations, the state government has told the Court of Appeal as part of renewed efforts to remove the city's rail tracks.
A hearing began on Wednesday to consider whether the government has the authority to rip out the heavy rail between Wickham, Civic and Newcastle stations, during which its lawyers insisted the "line remains open" and both sides pondered whether "the line" encompassed the tracks running from as far as Sydney.
The government wants the heavy rail gone as part of its $460 million plan to build a new transport interchange at Wickham and install light rail along part of the corridor.
But a Supreme Court decision handed down on Christmas Eve last year threw a major spanner in the works, ruling an act of Parliament was needed before the tracks could be taken out.
The government was still able to cease train services and did so on Boxing Day before lodging an appeal.
Save Our Rail, which brought the original case, is cross appealing the few legal points it lost.
The complex case turns on the Transport Administration Act, which says Parliament must pass an act before a "rail infrastructure owner" can close a line. A line is deemed closed if the tracks are removed or the rail corridor land is sold or "disposed of".
"This is not the closing of a rail line just because you take two stations off the route," Tim Robertson SC, barrister for state agency the Hunter Development Corporation, told the Court of Appeal.
"It depends if you look at it from the perspective of [someone in] Newcastle," Justice Anthony Meagher replied.
To avoid seeking Parliament's approval, ministers issued orders last year that the Hunter Development Corporation (HDC) would buy various parts of the infrastructure from RailCorp, then use its compulsory acquisition powers to take possession of the land. It emerged during the hearing on Wednesday the sale price was to have been $10. But in the end only about 780 metres of overhead wiring was actually sold to HDC in the wake of last year's court ruling.
The government says RailCorp can not be considered to have sold or "disposed" of the land if forced to hand it over, and it therefore wouldn't be breaching the law.
It renewed the arguments on Wednesday, with Mr Robertson telling the Court of Appeal that HDC was not a "rail infrastructure owner" under the Transport Administration Act so wouldn't be bound by its terms even after taking possession of the land and tracks.
In any case, powerful compulsory acquisitions laws would "eviscerate" the Transport Administration Act's effect, he said, freeing the government from the need to get Parliament's approval.
As an example, he cited a 1909 case that "ironically" involved the resumption of a road at Carrington to make way for a railway for coal operations, in which laws relating to the public road were overridden by the resumption.
But Save Our Rail barrister Shane Prince told the court the government's elaborate arrangements involved a "degree of artificiality".
He argued the act was concerned with preserving the NSW rail network unless Parliament approved other plans for it, and law makers never intended for it to be read in such a "tightly technical" way.
The government's legal team included about two dozen people, compared to the group's three lawyers.
The hearing is continuing.