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The ability of the NSW government to start removing rail lines from central Newcastle on Boxing Day is expected to be determined in the NSW Supreme Court on Wednesday morning.
Save-our-rail protesters take to the streets in Newcastle. Photo: Jonathan Carroll
Justice Michael Adams said he hoped to deliver his verdict in the morning, after advocacy group Save Our Rail sought an injunction in the court to prevent the rail line's removal.
The interlocutory hearing on Tuesday heard that the government had already begun transferring some rail infrastructure in Newcastle - such as signals, lights and boomgates - to a new owner, the Hunter Development Corporation.
The transfer, by compulsory acquisition, is being used as a means of avoiding the Transport Administration Act 1988, which prevents a rail owner from disposing of a rail line except by act of parliament.
Save Our Rail's case hinges on Section 99a of the act. This states: "A rail infrastructure owner must not, unless authorised by an act of parliament, close a railway line." The section also says a railway line is considered closed "if the land concerned is sold or otherwise disposed of, or the railway tracks and other works concerned are removed".
But Adrian Galasso, Sc, appearing for Transport Minister Gladys Berejiklian, said the HDC had already started acquiring some rail assets and planned to acquire parts of the rest of the rail corridor. The HDC was not a rail operator, Mr Galasso said.
"What is proposed to be done is a sale of certain assets by RailCorp to the Hunter Development Corporation," Mr Galasso told Justice Adams.
Because the assets would be taken from RailCorp by compulsory acquisition, this meant it was not "disposed of", he said.
Justice Adams replied: "As it is going to be taken from them, it is not a disposition?" Mr Galasso said: "Yes."
Acting for Save our Rail, barrister Shane Prince said that if the Hunter Development Corporation was obtaining the rail assets from RailCorp, it too would be considered a rail infrastructure owner.
Justice Adams said the government's device was "plainly designed to avoid a prohibition" on selling a rail corridor, but that did not mean it was unlawful.
Acting for the HDC, which joined the Minister, RailCorp and Transport for NSW as a defendant, barrister Tim Robertson said the prohibition on selling the rail corridor in the Transport Administration Act could be overtaken by a later piece of legislation.
Under the Land Acquisition (Just Terms Compensation) Act 1991, the HDC could acquire property unencumbered by previous statutes, Mr Robertson said, citing precedents.
The government wants to begin removing some rail infrastructure and building a new interchange station at Wickham on Boxing Day morning. It says any delay to the works would cost $220,000 a week.
Opponents of the plan to remove the rail line say the project will remove the city's connectivity to Sydney and other parts of the Hunter.
Supporters say the line cuts the city from its waterfront. The government has said parts of the rail corridor could be available for development, though it would eventually build a replacement light-rail line from Wickham through the centre of Newcastle.
This article first appeared on www.smh.com.au
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