Auld v The Dampier to Bunbury Natural Gas Pipeline Land Access Minister
[2005] WASC 17
AULD & ORS -v- THE DAMPIER TO BUNBURY NATURAL GAS PIPELINE LAND ACCESS MINISTER [2005] WASC 17
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 17 | |
| Case No: | CIV:1294/2003 | 24 JANUARY 2005 | |
| Coram: | PULLIN J | 2/03/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN AULD ROBYN AULD VALTER BRUNO WHITE TORO PTY LTD GIUSEPPE BRUNETTO GIUSEPPA BRUNETTO ROBERT WILLIAMS FRANMAR NOMINEES PTY LTD MAX FEWSTER KEVIN HOUSE JEAN HOUSE GAVIN DREW SHEILA DREW ROBERT ENGELKE PAULINE ENGELKE MAUREEN MARSHALL DAVID COOK JOAN COOK KELVIN SEWELL HEATHER SEWELL ANTHONY SEABROOK JULIA SEABROOK EVENGLOW PTY LTD JANE BELLINGE ARTHUR DEWAR RONALD WILKINSON DEANNA WILKINSON GARY PARK ANNE PARK HAMIKA PTY LTD DAHLIA RICHARDSON PETER RICHARDSON CARARA PTY LTD BROCKMAN HOLDINGS THE DAMPIER TO BUNBURY NATURAL GAS PIPELINE LAND ACCESS MINISTER |
Catchwords: | Resumption and acquisition of land Dampier to Bunbury gas pipeline Whether interest taken by Minister was a freehold interest in land |
Legislation: | Dampier to Bunbury Pipeline Act 1997 (WA), s 27, s 28, s 29, s 31, s 33 Land Administration Act (WA), s 151, s 170, s 178, s 179 |
Case References: | Commonwealth v New South Wales (1923) 33 CLR 1 Fejo v Northern Territory of Australia (1998) 195 CLR 96 Wik Peoples v Queensland (1996) 187 CLR 1 DellaVedova v State Energy Commission of Western Australia; unreported; Compensation Court (Pidgeon J); Library No 7451.2; 22 December 1988 DellaVedova v The State Planning Commission, unreported; Compensation Court (Pidgeon J); Library No 7451.2; 22 December 1988 Marshall v Director General, Director of Transport (2001) 205 CLR 603 R v Compensation Court of Western Australia (1990) 2 WAR 242 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- ROBYN AULD
VALTER BRUNO
WHITE TORO PTY LTD
GIUSEPPE BRUNETTO
GIUSEPPA BRUNETTO
ROBERT WILLIAMS
FRANMAR NOMINEES PTY LTD
MAX FEWSTER
KEVIN HOUSE
JEAN HOUSE
GAVIN DREW
SHEILA DREW
ROBERT ENGELKE
PAULINE ENGELKE
MAUREEN MARSHALL
DAVID COOK
JOAN COOK
KELVIN SEWELL
HEATHER SEWELL
ANTHONY SEABROOK
JULIA SEABROOK
EVENGLOW PTY LTD
JANE BELLINGE
ARTHUR DEWAR
RONALD WILKINSON
(Page 2)
- DEANNA WILKINSON
GARY PARK
ANNE PARK
HAMIKA PTY LTD
DAHLIA RICHARDSON
PETER RICHARDSON
CARARA PTY LTD
BROCKMAN HOLDINGS
Plaintiffs
AND
THE DAMPIER TO BUNBURY NATURAL GAS PIPELINE LAND ACCESS MINISTER
Defendant
Catchwords:
Resumption and acquisition of land - Dampier to Bunbury gas pipeline - Whether interest taken by Minister was a freehold interest in land
Legislation:
Dampier to Bunbury Pipeline Act 1997 (WA), s 27, s 28, s 29, s 31, s 33
Land Administration Act (WA), s 151, s 170, s 178, s 179
Result:
Application dismissed
Category: B
(Page 3)
Representation:
Counsel:
Plaintiffs : Mr D W McLeod & Ms L Rowley
Defendant : Mr B P King
Solicitors:
Plaintiffs : McLeods
Defendant : State Solicitor
Case(s) referred to in judgment(s):
Commonwealth v New South Wales (1923) 33 CLR 1
Fejo v Northern Territory of Australia (1998) 195 CLR 96
Wik Peoples v Queensland (1996) 187 CLR 1
Case(s) also cited:
DellaVedova v State Energy Commission of Western Australia; unreported; Compensation Court (Pidgeon J); Library No 7451.2; 22 December 1988
DellaVedova v The State Planning Commission, unreported; Compensation Court (Pidgeon J); Library No 7451.2; 22 December 1988
Marshall v Director General, Director of Transport (2001) 205 CLR 603
R v Compensation Court of Western Australia (1990) 2 WAR 242
(Page 4)
1 PULLIN J: Part of the Dampier to Bunbury gas pipeline was constructed on, or rather under, land owned by the plaintiffs.
2 The plaintiffs have been served with a taking order dated 14 August 2002 reading as follows:
"TAKING ORDER
of Land to Confer Interests Under Written Law
DAMPIER TO BUNBURY PIPELINE ACT 1997
LAND ADMINISTRATION ACT 1997
(Section 178(1)(b)(ii) and (2)(d))
The DBNGP Land Access Minister, a body corporate established by section 29(1) of the Dampier to Bunbury Pipeline Act 1997, pursuant to a delegation under section 159(da) of the Land Administration Act 1997 (LAA), hereby order in accordance with Sections 177 and 178 of the LAA that:
1. All interests and rights in the land described under each heading of 'PARCEL OF LAND' such as to enable the DBNGP Land Access Minister to hold State corridor rights under the Dampier to Bunbury Pipeline Act 1997 are taken for the purpose(s) specified in respect of that land, subject to the preservation of those interests (if any) specified as being preserved in respect of that land under the heading of 'INTERESTS TO BE PRESERVED'.
2. The interest described under each sub heading of 'IMMEDIATE DISPOSITION/GRANT' are to be disposed of or granted to the persons specified in respect of those interests.
3. Subject to any provision made pursuant to clause 2 above, the interest and right is to be held in the name of the State of Western Australia.
4. The provisions made under each heading of 'PARCEL OF LAND' shall apply in respect of that land.
PARCEL OF LAND:
LAND DESCRIPTION:
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- 1. Portion of Lot 10033 on Deposited Plan 206626 as shown on Deposited Plans 215539 and 220864 being part of the land comprised in Certificate of Title Volume 1463 Folio 496.
…
PLAN/DIAGRAM: Refer to the plans listed with the Land Descriptions.
LAND SITUATED IN: Shire of Irwin, Shire of Carnamah, Shire of Coorow, Shire of Dandaragan, Shire of Gingin and Shire of Chittering.
TAKING PURPOSE: State corridor rights to the DBNGP Land Access Minister under the provisions of the Dampier to Bunbury Pipeline Act 1997.
IMMEDIATE DISPOSITION/GRANT: State corridor rights to the DBNGP Land Access Minister.
INTERESTS TO BE PRESERVED: Nil.
DOLA FILE: 1310-2000.
(Signed)
DBNGP LAND ACCESS MINISTER
- ACTIONS ON CERTIFICATES OF TITLE: State corridor rights to the DBNGP Land Access Minister are recorded on all Certificates of Title.
As to land Description 1 only: The portion of Memorial G610796 as contained in Deposited Plans 215539 and 220864 is extinguished.
…
Dated this 14th Day of August 2002
(Page 6)
ALANNAH MacTIERNAN MLA
DBNGP LAND ACCESS MINISTER"
The Declaration Sought
3 The plaintiffs in the originating summons seek:
"A declaration that on a proper construction of the statutory provisions and written instruments and documents set out below, the interest resumed from the Plaintiffs for the purposes of the Dampier to Bunbury Pipeline is a freehold interest entitling the Plaintiffs to claim compensation under s.241(2) (6)(7)(8)(9) and (11) of the Land Administration Act 1997 …".
4 The documents, instruments and statutory provisions referred to were s 170, s 177, s 178 and s 241 of the Land Administration Act, s 28 of the Dampier to Bunbury Pipeline Act 1997 ("the Pipeline Act") and the taking order which I have set out above.
5 The question for me to determine therefore, is whether the interests and rights in the land "such as to enable the DBNGP Land Access Minister to hold State corridor rights under the Pipeline Act", amount to a "freehold interest" in the land. The parties agreed that the reference to "freehold" in the originating summons is a reference to the plaintiff's registered legal estate in fee simple in the land.
6 In Fejo v Northern Territory of Australia (1998) 195 CLR 96 at [93] reference was made to what was said by Isaacs J in Commonwealth v New South Wales (1923) 33 CLR 1 at 42about the meaning of an estate in fee simple:
"In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate … A fee simple is the most extensive in quantum, and the most absolute in respect of the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination."
7 In Wik Peoples v Queensland (1996) 187 CLR 1 at 288, Gummow J said that fee simple is the "largest estate known to the common law,
(Page 7)
- confers the widest powers of enjoyment in respect of all the advantages to be derived from the land itself and from anything found upon it."
8 I must therefore determine whether the interests and rights taken amount to all the interests and rights which may exist in relation to the plaintiffs' land.
The Dampier to Bunbury Gas Pipeline
9 The Dampier to Bunbury gas pipeline is a high pressure gas main, running from Dampier to Bunbury, conveying natural gas to markets principally in the south-west. Part of the pipeline runs through the plaintiffs' agricultural land. It is buried underground. The Dampier to Bunbury gas pipeline was designed and built in the early 1980s, becoming operational in 1984 under the control of the State Energy Commission. In January 1995 the State Energy Commission was split into a gas authority and an electricity authority. The pipeline assets were vested in the Gas Corporation later called Alinta Gas.
10 When the pipeline was installed, it was installed and maintained pursuant to the provisions of the Petroleum Pipelines Act 1969 and the Energy Operators' (Powers) Act 1979. The property in the pipeline vested in the Gas Corporation and the Gas Corporation arranged for agents or contractors to construct or maintain the pipeline and used a system of licences and easements for these purposes. The plaintiffs were entitled to compensation when licences or easements were granted affecting their land.
Privatisation and the Pipeline Corridor
11 The State Government then decided to privatise the gas distribution system and in due course it was sold to Epic Energy. The Pipeline Act facilitated the sale and transfer. The Pipeline Act provided for the sale of assets. It also provided for the identification of a corridor of land within which the pipeline ran. This was called the "Pipeline corridor" in the heading to Part 4 of the Pipeline Act and the "DBNGP corridor" throughout sections in the Pipeline Act. Section 29 provided that the designated Minister should be called the "DBNGP Land Access Minister" ("Minister") and provided that the Minister should be a corporation sole. The Minister had the right to acquire rights, titles and interests. Section 29(2) read:
"A right, title, or interest -
(Page 8)
- (a) may be acquired by the DBNGP Land Access Minister by agreement; or
(b) may be taken under Part 9 of the Land Administration Act 1997 whereupon, unless it would be incompatible with the nature of the right, title, or interest for it to do so, it vests in the DBNGP Land Access Minister,
and in neither case does the right, title, or interest merge with any estate of the Crown that is not held under this Part by the DBNGP Land Access Minister."
12 The Pipeline Act contained provisions stating what was to be done to create the corridor. Section 31 provided that the Gas Corporation should prepare a schedule identifying land which the corporation proposed to sell and on which the "corporation's DBNGP system" (meaning the pipeline) was located, and by these means the land on which the pipeline was located would then fall within the corridor. Section 33 of the Pipeline Act provided for land owned by others to be brought within the corridor. That section provided that additional land could be brought within the corridor by order of the Minister, notice of which was to be published in the "Government Gazette". Section 33(2) read:
"The DBNGP Land Access Minister can designate additional land to be in the DBNGP corridor only if satisfied that it may be appropriate, either then or in the future, to confer on anyone rights under section 34 in respect of the additional land."
13 The plaintiffs' land has been brought within the corridor under s 33. Section 34 of the Pipeline Act provides:
"(1) The DBNGP Land Access Minister may, in writing, confer on a person any right in respect of land in the DBNGP corridor as the DBNGP Land Access Minister considers to be appropriate -
(a) for the purpose of -
(i) having, constructing, or operating, on the DBNGP corridor any pipeline for transporting gas; or
(ii) enhancing any pipeline referred to in subparagraph (i);
(Page 9)
- or
- (b) for any incidental purpose.
- (2) In subsection (1) -
'operate' includes to maintain, test, or repair.
(3) Rights may be conferred under this section with the intention that they be exercised by a nominee of the holder and, whether or not they were conferred with that intention, the rights may be exercised by a nominee of the holder approved by the DBNGP Land Access Minister in writing.
(4) Approval under subsection (3) may be given when the rights are conferred or later, and before approving a nominee the DBNGP Land Access Minister is to be satisfied that there are appropriate arrangements between the holder and the nominee.
(5) The rights that may be conferred under this section include, so far as is appropriate, rights similar to the rights that, before the commencement of Part 6 Division 2 of the Gas Corporation (Business Disposal) Act 1999, the corporation would have had under the Energy Operators (Powers) Act 1979 in respect of land for the purposes of a gas transmission pipeline of its own outside the DBNGP corridor.
(6) Rights conferred under this section -
(a) are not exclusive; and
(b) may be exercised by any person acting on behalf of either the holder or the holder's nominee."
14 Section 41 imposed restrictions on the use of land which became part of the corridor. In general terms the restrictions were that the land was not to be used in a way that was inconsistent with anything that was done on the land in accordance with rights conferred under s 34, either in existence or which might in future be conferred.
(Page 10)
Compensation
15 Section 42 of the Pipeline Act provided for compensation in these terms:
"(1) A land holder whose right, title, or interest in land is injuriously affected by -
(a) conferring rights under section 34;
(b) exercising any right conferred under section 34; or
(c) any restriction arising under section 41,
is entitled to compensation.
(2) In accordance with section 28, land in respect of which the DBNGP Land Access Minister holds State corridor rights is incapable of being injuriously affected as described in subsection (1), and the creation of State corridor rights by section 31(5)(b) does not give rise to an entitlement to compensation under subsection (1).
(3) Schedule 2 applies with respect to compensation.
(4) For the purposes of this section and Schedule 2 -
'land holder' means a person holding any right, title, or interest in land and includes a native title holder;
'native title holder' has the same meaning as it has in the Native Title Act 1993 of the Commonwealth;
'right, title, or interest in land' does not include any right conferred under section 34."
17 Compensation is also payable under the Land Administration Act ("LA Act") if land, or an interest in land, in the corridor is taken under the LA Act.
"State corridor rights"
18 If "State corridor rights" constitute a "right" referred to in s 29 then the Minister may acquire "State corridor rights" (whatever they may be)
(Page 11)
- by agreement or by taking under Pt 9 of the Land Administration Act. See s 29(2) which I have set out above. If that happens, then it is clear from s 28 that, whatever they are, they constitute an interest in land. In this case the Minister has taken "all interests and rights" in the land "such as to enable the Minister to hold State corridor rights". Compensation is therefore payable under the LA Act. The plaintiffs contend that the interest taken is the freehold interest. If this is correct, it will yield the greatest amount of compensation.
19 The expression "State corridor rights" first appears in s 27 which is an interpretation section. It states that the phrase has the meaning given by s 28. Section 28(1) states that State corridor rights are an interest in land in the corridor and purports to limit the extent of the interest in land; but to state that State corridor rights are an interest in land is not to explain what State corridor rights are. I should set out s 28 in full. It reads:
"(1) State corridor rights are an interest in land in the DBNGP corridor and the extent of the interest is such that, if State corridor rights are held in land, neither conferring rights under section 34 nor exercising any right conferred under that section would injuriously affect any right, title, or interest in the land.
(2) State corridor rights may be taken or acquired as described in section 29(2)."
20 Section 31(5)(b) states that State corridor rights pass to the Minister in any land in which the Corporation holds an estate in fee simple and the estate in fee simple becomes subject to those rights. That provision is not of any relevance to the issue in this case.
21 The final reference to State corridor rights is in s 42(2) to which I have already referred.
22 These confusing provisions leave those reading the Act to work out what "State corridor rights" might mean. The phrase seems to have been drafted by someone who assumed that if the Minister held corridor rights then they were held for the State. That is a false assumption because the Minister is a corporation sole and s 29(2) is at pains to make it clear, at least in relation to rights acquired or taken by the Minister, that they are rights of the Minister and not rights of the State.
(Page 12)
23 I voiced the view during oral argument that the phrase "State corridor rights" included statutory rights or powers conferred on the Minister under the Pipeline Act in relation to the corridor as well as to rights acquired or taken by the Minister as contemplated under s 29(2). Counsel appearing for the parties would not agree that was the meaning. In fact, neither counsel would proffer a definition of "State corridor rights". Counsel for the plaintiffs would only offer a submission about the effect State corridor rights would have. He submitted that:
"State corridor rights are such that once held by the Minister there is nothing held by the landowners who could claim compensation for injurious affection."
24 In my opinion this offers no more guidance about what State corridor rights are than the submission by counsel for the defendant who would also only make a submission about the effect of State corridor rights, which was said to be:
"… a legislative means by which the Minister can elect through the taking thereof under s 29(2) of the Pipeline Act to pay compensation under the Land Administration Act and to preclude the paying of compensation for injurious affection under the Pipeline Act."
The taking process
25 I now turn to relate some facts relating to the taking process under the Land Administration Act ("the LA Act").
26 The Minister gave a notice of intention to take an interest in land under s 170 of the LA Act. The notice said that the nature of interests which were to be taken were:
"All registered and unregistered interest that may exist in the land under the heading 'land description' such as to enable the DBNGP Land Access Minister to hold State corridor rights under the Dampier to Bunbury Pipeline Act 1997".
27 The plaintiff contended the Minister had to hold interest in the land amounting to freehold in order to grant rights under, for example, s 34 of the Pipeline Act. I do not agree. It seems to me that the Minister has statutory power to grant the rights under s 34. The Pipeline Act is the source of that power.
(Page 13)
28 The defendant contended that the Minister had decided to take a limited interest in the land in order to trigger the right to compensation under the LA Act rather than to leave the plaintiffs with a right to compensation under s 42 of the Pipeline Act. Counsel for the defendant also contended that without a Taking Order there would be no right to compensation under the LA Act. The land owner would be limited to compensation for injurious affection as spelled out in s 42 of the Pipeline Act. These contentions relate to the reasons why the Minister issued the Taking Order but the reasons are of no relevance to the issue in this case. The Minister contends that an interest in land has been taken, but that whatever the interest is, it is not the fee simple.
29 During oral submissions I raised the question as to whether any interest in land had been taken at all. I asked this because if the Minister has been given under the Pipeline Act all powers or rights necessary to build and maintain the pipeline within the corridor, then it is arguable that the Minister does not have to hold any interest in the land to "hold" State corridor rights. Neither party was interested in exploring that question.
30 Both parties therefore based their case on the assumption that some interest in the plaintiffs' land has been taken and they both argued on the basis that I was to concern myself only with the question as to whether a freehold interest was, or was not, taken.
The interest in land taken was not an estate in fee simple
31 If, as the parties wished to assume, the Taking Order did resume an interest in land, it is my opinion that it does not amount to a freehold interest.
32 In my opinion, after the Taking Order the plaintiffs remained the registered proprietor of an estate in fee simple in the corridor land. The plaintiffs' arguments that they have had their estate in fee simple resumed is at odds with the fact that the plaintiffs are entitled to remain in occupation of the corridor land on their properties. The restrictions in s 41 do not take away all of the plaintiffs' rights in the land. The existence of the power to grant rights under s 34 does not take away the plaintiffs' freehold. Rights granted to third parties pursuant to s 34 do not take away all the plaintiffs' rights in the land. In my view the right to enforce the s 41 restrictions and (arguably) the power to grant rights under s 34 and rights granted under s 34 are the only "rights" I can identify which might fit the description "State corridor rights". If the plaintiffs are not precluded from occupying the land then they are free to crop the land, to graze stock on the land, to lease the land to others, to grant licences to
(Page 14)
- enter the land, in short to use it as a freehold owner but subject only to the restrictions imposed under the Act and subject to the rights conferred on third parties under s 34.
The Taking Order
33 The plaintiff argued that the whole of the land that the plaintiff owns in the corridor has been taken because the heading in the Taking Order refers to s 178(1)(b)(ii) of the LA Act which is a section which allows for the taking of "land" (meaning every interest in the land - see s 151(2)). Secondly the plaintiffs referred to the fact that the Taking Order also states that interests to be preserved are "nil" and that this is also consistent with s 178(1)(b)(ii). Thirdly the plaintiffs argue that the words "such as to enable the DBNGP Land Access Minister to hold State corridor rights under the Dampier to Bunbury Pipeline Act 1997" are words stating the purpose for which the land was taken rather than forming part of the description of the interests and rights which were taken under the Taking Order.
34 I disagree with those submissions.
35 As to the first argument, I refer to s 177(1) which authorises the Minister to make a Taking Order only if it is consistent with the notice of intention. The notice of intention was a notice of intention to take an "interest in land", not a notice of intention to take "land". Section 179 must also be given effect to. It is quite explicit when it states that if the Taking Order provides that the "land is taken", every registered and unregistered interest in the land not preserved under s 178(2) is extinguished. Section 179 also provides that "if the order does not provide that the land is taken" then those interests declared in the Taking Order are extinguished and converted into a claim for compensation. Quite clearly the Taking Order does not provide that the "land" is taken. It provides only that an "interest" was taken.
36 As to the second argument, it is my opinion that the notice is to be read as meaning that in relation to the interest or rights in the land taken (whatever that might be) no interest was preserved. In any event the reference to "Nil" interests preserved does not and could not convert the Taking Order into an order to take the whole of the land.
37 As to the third argument, it is my opinion that the words quoted, ie "such as to enable the DBNGP Land Access Minister to hold State corridor rights under the Dampier to Bunbury Pipeline Act 1997" are part of the description of the interest in the land which was taken, not merely a
(Page 15)
- restatement of the purpose for which those interests were being taken. The description is uninformative because it requires meaning to be given to the phrase State corridor rights.
38 As a result, whatever interest has been taken in the plaintiffs' land (if any) it is not the plaintiffs' estate in fee simple. I therefore dismiss the application.
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