Broadcast Australia Pty Ltd v Kim Noonan
[2011] NSWSC 1524
•12 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Broadcast Australia Pty Ltd v Kim Noonan & Anor [2011] NSWSC 1524 Hearing dates: 5, 6 and 7 September 2011 Decision date: 12 December 2011 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Right acquired is land; Use not limited to public purpose; Land not transferred to the plaintiff.
Catchwords: [LAND LAW] - Compulsory acquisition of right - characterisation of "right" - whether "right" is land within the meaning of the Lands Acquisition Act 1955-1966 (Cth) - whether use of land acquired limited to the public purpose for which it was acquired - whether land transferred to the plaintiff's predecessor pursuant to National Transmission Network Sale Act 1998 (Cth). Legislation Cited: Broadcasting and Television Act 1942-1963 (Cth)
Conveyancing Act 1919
Lands Acquisition Act 1955-1966 (Cth)
Lands Acquisition (Repeal and Consequential Provisions) Act 1989 (Cth)
Lands Acquisition Act 1989 (Cth)
National Transmission Network Sale Act 1988 (Cth)
Real Property Act 1900Cases Cited: Ackroyd v Smith (1850) 10 C.B. 164; 138 ER 68
Bursill Enterprises Pty Ltd v Berger Bros. Trading Co. Pty Limited (1971) 124 CLR 73
Commissioner of Main Roads v North Shore Gas Company Limited (1967) 120 CLR 118
Commonwealth of Australia v Maddalozzo (1980) 54 ALJR 289
Jones v Commonwealth of Australia (1963) 109 CLR 475
Newcastle-Under-Lyme Corporation v Wolstanton Limited [1947] Ch 92
North Shore Gas Company Limited v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52
PMT Partners Pty Limited (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
Re Ellenborough Park; Powell v Maddison [1956] Ch 131
Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112; [2009] NSWCA 390
Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528Texts Cited: Australian Law Reform Commission, Report No. 14, Lands Acquisition and Compensation (1980)
D Brown, Land Acquisition (3rd Ed, Butterworths, 1991)
JF Gardner, "Statutory Easements", (1956) 20 The Conveyancer and Property Lawyer 208
JR Gaunt and P Morgan, Gale on Easements (18th Ed, Sweet & Maxwell, 2008)Category: Principal judgment Parties: Broadcast Australia Pty Ltd (Plaintiff)
Kim Noonan (First Defendant)
Estate of the Late Rube Lambert (Second Defendant)Representation: D Robertson (Plaintiff)
JJ Webster SC/ M Seymour (Defendants)
Minter Ellison (Plaintiff)
Nelson Keane & Hemingway (Defendants)
File Number(s): 2010/394848
Judgment
Mount Cenn Cruaich is near the town of Coonabarabran in north-western New South Wales. On top of the Mountain is an area of State Crown Land (Folio Identifier 44/753383) (the Site) that is licensed to the plaintiff, Broadcast Australia Pty Ltd (formerly known as NTL Australia Pty Limited in the period 16 November 1999 to 23 June 2002 and National Transmission Company Pty Limited in the period 11 February 1999 to 16 November 1999). There is a transmission tower and various buildings and sheds on the Site. The only way to access the Site is along a 13 kilometre access road through a rural property (the Land), of which the first defendant, Kim Noonan (the defendant) is to become the registered proprietor pursuant to the grant in the Will of her late mother, Rube Lambert (in whose name the Land was registered at the time of the trial), whose estate is the second defendant.
These proceedings arise out of a dispute in relation to the plaintiff's right to access the Site through the Land. The plaintiff seeks a declaration that it has the benefit of the right of access and seeks consequential orders. The defendant claims that the right of access originally acquired by the Commonwealth of Australia (the Commonwealth) was not transferred to the plaintiff's predecessor and thus the plaintiff has no entitlement to access the Site through the Land. Alternatively if the right was transferred, the defendant contends that the plaintiff's right of access is limited to the public purpose for which it was acquired and does not allow the plaintiff to authorise others to access the Site through the Land for other purposes. The defendant also claims that there is excessive and unreasonable use of the right of access.
The proceedings were heard on 5, 6 and 7 September 2011 when Mr D Robertson, of counsel, appeared for the plaintiff and Mr JJ Webster SC leading Mr M Seymour, of counsel, appeared for the defendants.
Lease 1965-2005
By Deed dated 24 November 1971 the Commonwealth, as lessee, acquired a lease of the Site from the State of New South Wales (the State), as lessor, in accordance with s 69A of the Crown Lands Consolidation Act 1913 and s 8(1) of the Lands Acquisition Act 1955 for a period of 40 years commencing on 1 January 1965 (the Lease).
The State reserved to itself the right of entry onto the Site "with material and equipment" to construct a "cairn mast vane satellite" or any other construction necessary for "trigonometrical survey purposes" and to "construct and maintain thereon any authorised work and to clear sight lines to other trigonometrical stations and to carry out necessary work for mapping purposes". The State also reserved to itself the right of access to and from the Site "for trigonometrical survey purposes and for such purposes to go pass and repass over" the Site "at all times with or without animals or vehicles": (cl 1(b)). Clause 3 of the Lease included the following lessee's covenants:
(b) That the Lessee will not use the demised land except as a site for the installation of a Television Transmitting Station and for no other purposes whatever without the previous consent in writing of the Minister AND will not use nor permit to be used the demised land or any part thereof for residential occupation other than by personnel concerned directly with the effective operation and maintenance of the said Station.
...
(h) That the Lessee will not erect or cause or suffer to be erected upon the demised land or any part thereof any building structure erection or improvement other than a television transmission mast or tower together with any necessary buildings and fences to be used for the purposes referred to in paragraph (b) of Clause 3 of this Lease and for which the general design and layout thereof and the materials therefor shall have been first approved by the Minister.
Lands Acquisition Act 1955-1966
The Lands Acquisition Act 1955-1966 (Cth) (the Act) provided that the Commonwealth could acquire land for a "public purpose" by agreement or by compulsory process (s 6(1)). It defined "public purpose" relevantly as "a purpose in respect of which the Parliament has power to make laws": s 5(1). Section 5(1) also provided:
"interest" in relation to land, means -
(a) a legal or equitable estate or interest in the land; or
(b) a right, power or privilege over, or in connexion with, the land;
"land" includes an interest in land.
Part II Division 3 of the Act entitled "Acquisition by Compulsory Process" included the following:
10. (1) Without prejudice to the liability of the Commonwealth under any contract for the acquisition of land by agreement, where -
...
(b) the Minister has given a certificate under sub-section (8) of section nine of the Act in relation to land,
the Minister may recommend to the Governor-General that the land or any interest in the land (not including an interest in respect of which a notice to treat has been withdrawn) be acquired by the Commonwealth by compulsory process.
(2) The Governor-General may, on the recommendation of the Minister under the last preceding sub-section, authorise the acquisition of the land by compulsory process for a public purpose approved by the Governor-General.
(3) The Minister may cause to be published in the Gazette notice of the authorisation by the Governor-General and, in the notice, declare that the land is acquired under this Act for the public purpose approved by the Governor-General.
(4) Upon the publication of the notice in the Gazette , the land to which the notice applies is, by force of this Act -
(a) vested in the Commonwealth;
(b) freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contract, licenses, charges and rates,
to the intent that the legal estate in the land and all rights and powers incident to that legal estate or conferred by this Act are vested in the Commonwealth.
(5) The land acquired under this section may be an easement, right, power, privilege or other interest which did not previously exist as such, in, over, or in connexion with land.
The interest of every person in the land acquired was converted into a right of compensation under the Act (s 11). Where land was acquired by compulsory process, the Crown Solicitor could lodge with the Registrar-General, Registrar of Titles or other proper officer of the State in which the land was situated a copy of the notice of acquisition of the land (s 15(1)). Section 15 also provided:
(2) The officer with whom the copy of a notice of acquisition is lodged in pursuance of the last preceding sub-section may register the acquisition in the manner as nearly as may be in which dealings with land are registered, and may deal with and give effect to the copy of the notice of acquisition as if it were a grant, conveyance, memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in the State or Territory in which the land is situated.
Part III of the Act entitled "Powers in relation to land" included the following:
16. (1) A person authorised in writing by the Minister to act under this section may, for the purpose of ascertaining whether land is suitable for a public purpose or of surveying or obtaining information in relation to land which he considers suitable for such a purpose -
(a) enter upon the land, or upon adjoining land, with such persons, vehicles and things as he thinks fit; and
(b) make surveys, take levels, sink pits, examine the soil and do any other thing in relation to the land.
...
17. Where land is vested in the Commonwealth, a person authorised by the Minister may, with such other persons as he thinks necessary, enter land -
...
and may occupy the land so entered for so long as is necessary for the purposes of any works connected with the carrying out of a public purpose.
18. (1) A person authorised by the Minister under the last preceding section to enter land may -
(a) in connexion with the carrying out of a public purpose, on or from that land -
(i) construct, build or place any plant, machinery equipment or goods;
(ii) take or deposit sand, clay, stone, earth, gravel, timber, wood or other materials or goods;
(iii) make roads, cuttings or excavations;
(iv) erect workshops, sheds and other buildings of a temporary character; and
(v) manufacture and work materials of any kind; and
(b) demolish, destroy or remove any plant, machinery, equipment, goods or buildings constructed, built, placed or erected on land in pursuance of the last preceding paragraph.
The Act also provided for a process by which compensation could be claimed before a court and included the following:
23. (1) In the determination of the amount of compensation payable in respect of land compulsorily acquired under this Act, regard shall be had to -
(a) the value of the land at the date of acquisition;
(b) the damage (if any) caused by the severance of the land from other land in which the claimant had an interest at the date of acquisition; and
(c) the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired.
(2) In determining the value of land acquired under this Act, regard shall not be had to any increase in the value of the land arising from the carrying out of or the proposal to carry out the public purpose for which the land was acquired.
(3) Where the interest of the claimant in other land adjoining the land acquired is enhanced or depreciated by reason of the carrying out of or the proposal to carry out the public purpose for which the land was acquired, the enhancement or depreciation shall be set off against, or added to, as the case requires, the amount of the compensation otherwise payable to the claimant.
The Minister was authorised on behalf of the Commonwealth to enter into an agreement with the owner of the land as to the amount of compensation to which the owner would be entitled if the land was compulsorily acquired (s 24).
Part VII of the Act entitled "Dealings in Land Vested in the Commonwealth" included the following:
52. Land vested in the Commonwealth may, if the Minister thinks fit, and upon such terms as he directs, be transferred to and vested in a corporation incorporated by a law of the Commonwealth.
53. (1) Where land vested in the Commonwealth is no longer required by the Commonwealth, or is not required for immediate use by the Commonwealth -
(a) it may be disposed of in any case under the authority of the Governor-General or, in a case where the minister is satisfied that the value of the land does not exceed One thousand dollars, under the authority of the Minister; or
(b) a lease of or a licence to occupy the land may be granted in any case under the authority of the Governor-General or, in a case where the lease or licence is for a term not exceeding three years at a rental, or for a periodical consideration, not exceeding One thousand dollars per annum, under the authority of the Minister.
(2) The Minister may authorize the grant of easements, or other rights, powers or privileges (other than leases or occupation licenses), over or in connexion with, land vested in the Commonwealth.
The Act was repealed by the Lands Acquisition (Repeal and Consequential Provisions) Act 1989 (Cth). However it continued to apply to the acquisition the subject of this litigation: s 5 and s 8(1). It was replaced by the Lands Acquisition Act 1989 (Cth) that provides for acquisition of land by agreement or compulsory process: s 16. "Land" is defined as "land in Australia". "Interest" in relation to land is defined to include any right "over or connection with the land or an interest in the land": s 6. That Act also provides as follows:
17 Nature of interests that may be acquired
(1) The interests that may be acquired under this Act are:
(a) a legal or equitable estate or interest in land; and
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with, land or an interest in land.
(2) Those interests include:
(a) an interest of the Commonwealth, a State or a Territory in Crown land;
(b) an interest that did not previously exist in relation to particular land;
(c) an easement in gross; and
(d) a restriction on the use of the land, whether or not annexed to particular land.
The 1989 Act was introduced consequent upon Report No 14 of the Australian Law Reform Commission, Lands Acquisition and Compensation (1980), in relation to a reference to it for report inter alia on the adequacy of the Act.
Broadcasting and Television Act 1942 - 1963
The Broadcasting and Television Act 1942-1963 (Cth) (the B&T Act) included the following definitions in s 4(1):
"broadcasting station" means a station for the transmission by means of wireless telegraphy of broadcasting programmes, that is to say, matter intended for aural reception by the general public, and includes the studio, transmitting station and technical equipment for the purposes of those programmes;
"commercial broadcasting station" means a broadcasting station other than a national broadcasting station;
"commercial television station" means a television station other than a national television station;
...
"national broadcasting station" means a broadcasting station used by the Commission for the transmission of its broadcasting programmes;
"national television station" means a television station used by the Commission for the transmission of its television programmes;
...
"television station" means a station for the transmission by means of wireless telegraphy of television programmes, that is to say, images and associated sound intended for reception by the general public, and includes the studio, transmitting station and technical equipment used for the purposes of those programmes, but does not include a television translator station;
"television translator station" means a station for the transmission by means of wireless telegraphy of television programmes, being a station of low operating power and designed to receive and re-transmit signals from a television station, or from another television translator station, without substantially altering any characteristic of the signals other than their frequencies and amplitudes;
The "Commission" to which reference is made in these definitions is the Australia Broadcasting Commission (the ABC): s 30(1). Part III Division 5 of the B&T Act entitled "Technical Services" included the following:
73. (1) The Postmaster-General shall, except in so far as he otherwise determines, provide and operate, for the purposes of the broadcasting programmes of the Commission-
(a) transmitting stations;
...
74. (1) The Postmaster-General shall, except in so far as he otherwise determines, provide and operate, for the purposes of the television programmes of the Commission-
(a) transmitting stations.
Acquisition of the "right" - 1968
On 12 September 1968 the Minister of State for the Interior (the Minister) signed a Minute Paper for the Executive Council that was in the following terms:
SUBJECT
Acquisition by Compulsory Process of an Easement for Access over land near Coonabarabran in the State of New South Wales for the Purpose of Providing Access to the Dubbo (Mt. Cenn Cruaich) Television Station in Accordance with the Broadcasting and Television Act 1942-1967.
Recommended for the approval of His Excellency the Governor-General in Council that, in pursuance of Section 10 of the Lands Acquisition Act 1955-1966, he be pleased to authorise the acquisition by the Commonwealth by compulsory process of an easement for access over the land described in the annexed Schedule for the purpose of providing access to the Dubbo (Mt. Cenn Cruaich) Television Station in accordance with The Broadcasting and Television Act 1942-1967, and to approve that purpose as the public purpose for which such easement is authorised to be so acquired.
The Land (then Old System Land) was described in detail in the Schedule to the Minute Paper.
An "Explanatory Memorandum" to the Executive Council Minute initialled by the Minister provided as follows:
The easement described in the attached Executive Council Minute is required by the Postmaster-General's Department for the provision of road access to the Dubbo Television Station which is on Mt. Cenn Cruaich near Coonabarabran, New South Wales.
The land involved is Crown land of the State of New South Wales comprising a Homestead Farm area. Neither the Department of Lands, New South Wales, nor the Crown lessee raise any objections to the Commonwealth's proposal. Compensation has not been claimed.
By arrangement with the State Authorities and also with the Crown lessee, it is proposed to proceed with the acquisition by compulsory process to facilitate registration of the Commonwealth's interest in the land.
On 12 September 1968 the Minister certified pursuant to s 9(8) of the Act that there were special reasons why section 9 of the Act should not apply "to the acquisition by compulsory process of an easement for access" over the Land "namely, that the compulsory acquisition will facilitate registration of the interest in the land". The certificate also recorded that the Minister had "pursuant to the provisions of Section 24 of the Act entered into agreement with the owner as to the amount of compensation". It appears from the Explanatory Memorandum that the owner, at that time the State, agreed not to claim any compensation in relation to the compulsory acquisition.
On 20 September 1968, the Governor-General, Lord Casey, approved the acquisition.
On 3 October 1968 the following was published in the Commonwealth Gazette (the Notice):
Commonwealth of Australia
Lands Acquisition Act 1955-1966
NOTICE OF THE ACQUISITION OF LAND BY THE COMMONWEALTH
It is hereby notified that His Excellency the Governor-General acting with the advice of the Federal Executive Council has authorised pursuant to the provisions of the Lands Acquisition Act 1955-1966, the acquisition by compulsory process of the right for The Commonwealth of Australia to go pass and repass at all times and for all purposes with or without vehicles of any description laden or unladen and with or without animals through over and along the land hereunder described, and I hereby declare that the said right over the land hereunder described is acquired by The Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General: The providing of access to a National Television Station in accordance with the provisions of the Broadcasting and Television Act 1942-1967: (File No: 63/987) (Ex. Min. No. 717).
Dated this twentieth day of September, One thousand nine hundred and sixty-eight
The Land was then described in detail.
The Land was subsequently converted to Torrens Title being now Folio 41/753383. The Register records the following:
NOTIFICATION IN COMMONWEALTH GAZETTE DATED 3.10.1968; EASEMENT FOR ACCESS AFFECTING THE LAND SHOWN SO BURDENED IN CROWN PLAN 2206.3100.
Crown Plan 2206.3100 includes the following:
Site of ("Proposed" struck through) Easement for Access 66 Feet Wide through Portion 41 acquired Gaz (Comm.) 3.10.68 Pks 68.3004. Easement resumed over same area by Electricity Commission, Gaz 8.8.69 Pks 67.3673. From [surveyor's mark] to [surveyor's mark].
The Crown Plan shows the access road across the Land to the Site.
The Site was also converted to Torrens Title being Folio Identifier 44/753383.
The defendant's family purchased the Land in the 1970s after it was converted to Torrens Title.
National Transmission Agency (NTA)
On 1 July 1992 the National Transmission Agency (NTA) was established as part of the Commonwealth Department of Transport and Communications and was responsible to the Parliament through the Secretary and the Minister for Transport and Communications. Its primary function was the planning, establishment, operation and maintenance of "a nationwide network of multipurpose transmission facilities" established primarily to broadcast the television and radio services of the ABC and SBS. It was funded directly by Commonwealth budget appropriation through the Department and its objectives included expanding "the commercial percentage of NTA's business", a performance indicator of which was the "percentage increase in the number of commercial clients".
The "Transmission Network" was described in NTA's 1993-1994 Annual Report as follows:
The network is a collection of large and small transmission facilities containing in total 1476 transmitters which are used for broadcasting. About one third of these transmitters are used to broadcast commercial and other broadcasting services. In addition, the network accommodates a large number of transmitters for radiocommunications services.
The NTA currently operates 1029 transmitters which make ABC and SBS radio and television services available for reception by the public. About 27 per cent of the sites which accommodate these transmitters are owned by commercial or other organizations.
The NTA's 1995-1996 Annual Report included the following:
A transmission facility typically consists of a site, an access road, main and emergency power supplies, a building to house equipment, satellite receiving dish or other equipment to receive signals from the broadcaster's studios, one or more transmitters, a combiner, feeder cables, a mast or tower and one or more antennas. A transmission facility's functions, therefore, are quite different from those of the broadcasting studios, or 'station' used by broadcasters to produce their programs.
Sale of the NTA
The National Transmission Network Sale Act 1998 (Cth) (the Sale Act) provided for the sale of the National Transmission Network and included the following:
3. Definitions
...
asset means:
(a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and
(b) any right, privilege or immunity, including a contingent or prospective one.
...
instrument includes a document.
. ...
original asset means an asset transferred from the Commonwealth under section 9.
...
site has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act.
...
Telecommunications Act means the Telecommunications Act 1997 .
...
Part 2 - Sale of the National Transmission Network
7. Fixtures on non-Commonwealth land
(1) The Minister for Finance and Administration may, by notice in the Gazette, declare that this section applies to network facilities specified in the notice.
(2) At the end of the day on which the notice is published, any specified network facility that is a fixture on non-Commonwealth land:
(a) is severed from the land and remains severed; and
(b) vests in the Commonwealth;
by force of this section.
(3) In this section:
network facility means any asset used, or formerly used, by the Commonwealth in connection with the transmission of a broadcasting service.
non-Commonwealth land means land not owned by the Commonwealth.
8. Effect of Lands Acquisition Act on past grants etc. of interests in land
(1) If an instrument made or executed before the commencement of this Act was expressed to grant or transfer an interest in land to or from the Commonwealth, then section 9 is to be applied on the basis that the grant or transfer is not invalid, and is taken never to have been invalid, solely because the grant or transfer was not made in accordance with the requirements of the Lands Acquisition Act.
(2) In this section:
interest in land has the same meaning as in the Lands Acquisition Act.
Lands Acquisition Act means the Act for the time being in force relating to the acquisition of land by the Commonwealth and associated matters.
9. Transfer of assets and liabilities
(1) The Minister for Finance and Administration may, by notice in the Gazette, declare all or any of the following, in relation to a company specified in the notice:
(a) a specified Commonwealth asset vests in the company at a time specified in the notice (the transfer time), without any conveyance, transfer or assignment;
(b) at the transfer time, the company becomes the Commonwealth's successor in law in relation to the transferred asset;
(c) a specified instrument relating to the transferred asset continues to have effect after the transfer time as if a reference in the instrument to the Commonwealth or to the National Transmission Agency were a reference to the company.
(2) The Minister for Finance and Administration may, by notice in the Gazette , declare all or any of the following, in relation to a company specified in the notice:
(a) a Commonwealth liability specified in the notice ceases to be a Commonwealth liability at a time specified in the notice (the transfer time) and becomes a liability of the company;
(b) at the transfer time, the company becomes the Commonwealth's successor in law in relation to the transferred liability;
(c) a specified instrument relating to the transferred liability continues to have effect after the transfer time as if a reference in the instrument to the Commonwealth or to the National Transmission Agency were a reference to the company.
(3) Declarations in relation to both assets and liabilities may be included in the same notice. The same notice may include declarations in relation to more than one asset or liability.
(4) A declaration under this section has effect according to its terms.
Note: The assets and liabilities that can be transferred under this section include assets and liabilities that consist of rights and obligations under contracts.
...
11.Registration of transfers of land
(1) This section applies if:
(a) any right, title and interest in particular land vests in a company under this Act; and
(b) there is lodged with a land registration official a certificate that:
(i) is signed by an authorised person; and
(ii) identifies the land, whether by reference to a map or otherwise; and
(iii) states that the right, title and interest has become vested in the company under this Act.
(2) The land registration official may:
(a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and
(b) deal with, and give effect to, the certificate.
(3) A document that appears to be a certificate under subsection (1) is taken to be such a certificate, and to have been properly given, unless the contrary is established.
(4) In this section:
authorised person means:
(a) the Minister for Finance and Administration; or
(b) a person authorised by the Minister for Finance and Administration, in writing, for the purposes of this section.
On 29 April 1999 the following Notice was published in the Commonwealth Gazette:
DECLARATION
DECLARATION MADE BY THE MINISTER FOR FINANCE AND ADMINISTRATION UNDER THE NATIONAL TRANSMISSION NETWORK SALE ACT 1998
1. DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
Words and phrases used in this notice which are defined in the National Transmission Network Sale Act 1998 have the same meaning when used in this instrument. In addition:
Company means National Transmission Company Pty Limited, ACN 086 048 562.
Specified Asset means an asset specified in Part 1 of Schedule A, but does not include an asset specified in Part 3 of Schedule A.
Specified instrument means an instrument specified in Part 2 of Schedule A, or Part 2 of Schedule B, but does not include an instrument specified in Part 4 of Schedule A or Part 4 of Schedule B.
Specified Liability means a liability in Part 1 of Schedule B, but does not include a liability specified in Part 3 of Schedule B.
Transfer Time means noon on 30 April 1999.
1.2 Interpretation
Unless the context otherwise requires, references to Schedules are references to Schedules in this Instrument
2. DECLARATIONS
I, John Joseph Fahey, Minister for Finance and Administration, hereby declare, pursuant to the National Transmission Network Sale Act, that at the Transfer Time:
2.1 Section 9(1) (Assets)
(a) Each Specified Asset vests in the Company without any conveyance, transfer or assignment;
(b) The Company becomes the Commonwealth's successor in law in relation to each Specified Asset; and
(c) Each Specified Instrument relating to a Specified Asset continues to have effect after the Specified Asset vests in the Company as if a reference in the instrument to the National Transmission Agency or to the Commonwealth were a reference to the Company.
2.2 Section 9(2) (Liabilities)
(a) Each Specified Liability ceases to be a liability of the Commonwealth and becomes a liability of the Company;
(b) The Company becomes the Commonwealth's successor in law in relation to each Specified Liability; and
(c) Each Specified Instrument relating to a Specified Liability continues to have effect after the Transfer Time as if a reference in the instrument to the National Transmission Agency or to the Commonwealth were a reference to the Company.
Dated 27 th April 1999
Part 1 of Schedule A to the Declaration listed the "Specified Assets" and included the following:
Properties
Subject to the limitations described at the end of this Part 1 of Schedule A, any legal or equitable estate or interest or right or entitlement which the Commonwealth has in, or in relation to, the following sites...:
The Table labelled as "Sites Classified as Available" included the following:
Site Number Site Name Title Description
2068 Mt Cenn Cruaich F/I: 44/753383
At the conclusion of the Table the Declaration records that the "inclusion of a title description in relation to a site is not necessarily an exhaustive description of that site".
Part 2 of Schedule A to the Declaration included the following:
Instruments, licenses and contracts
Any right of the Commonwealth (including a prospective or contingent right) in respect of, in relation to or which arises from any instrument, licence, contract or other legally binding arrangement which:
(a) the Commonwealth is a party to; and
(b) was entered into by the Commonwealth for the purposes of the ownership or operation of the National Transmission Network,
other than:
(c) the memorandum between Telstra Corporation Limited and the Commonwealth in relation to the provision of communications services;
(d) any other contracts entered into by the Commonwealth for the provision of goods or services across a number of Commonwealth departments or agencies, including the NTA.
Occupancy of the Site 2005-2010
On 29 June 2004 the plaintiff wrote to the State referring to the agreement between them that new tenancy agreements would be negotiated in respect of sites on which the plaintiff operated facilities commencing on 1 July 2004 for a term of 20 years. Those tenancy agreements were to be leases unless agreed otherwise. That letter included reference to the rental that would be paid and it is common ground that the plaintiff occupied the Site on the basis of that letter from the time the Lease expired in 2005 to 29 June 2010 when the State and the plaintiff entered into a Licence of the Site pursuant to s 34A of the Crown Lands Act 1989 (the Licence).
Licence 2010
The Licence grants to the plaintiff "an exclusive right to occupy the area of its hut and cable trays and a non-exclusive right to occupy the remainder of the Site for the Term for the Permitted Use where such non-exclusive use is necessary to exercise the right of Permitted Use" (cl 2.1). The "Permitted Use" is the "Installation, operation and maintenance of Telecommunication Facilities or such other use as is stipulated in the relevant Site Appendix" (Sch 1 Item 10). The only reference to any other "user" in the Site Appendix is to "Infrastructure Provider". The plaintiff is prohibited from using the Site (or allowing the Site to be used) for any purpose other than the Permitted Use (cl 2.3). The plaintiff is entitled as an Infrastructure Provider (with the Minister's consent) to grant a sub-licence to a Third Party to install and operate Facilities within the Site subject to the conditions within the Licence (cl 3.2).
The "Site Plan" annexed to the Licence includes the following description:
Lot 44 DP 753383 Part of Crown Reserve 753383 Parish of Gowang (CP2922.1797) and access thereto via Private Property
Clause 17.1 of the Licence obliges the plaintiff to ensure the continuity and maintenance of access to the Site. There are provisions dealing with the plaintiff's entitlement "as of right to pass and repass to the Site at all times" where the agreed access route to the Site is located within Crown Land or Crown Public Road. Other than the mention of the "access through Private Property" in the Site Plan and the words "Private Access Easement" on the access road on the Site Plan, the Licence does not otherwise refer to the acquisition by the Commonwealth in 1968.
Shared Facilities
The plaintiff owns and operates all equipment on the Site used for the transmission of services for the ABC and SBS. The commercial TV networks, Prime, WIN and Southern Cross, utilise part of the plaintiff's broadcast infrastructure and also their own equipment on the Site. The radio communications operators utilise their own equipment and space in the plaintiff's building and tower on the Site. There is also a telecommunications tower owned and operated by Telstra on the Site.
The plaintiff uses the facilities at the Site for the transmission of ABC and SBS television services pursuant to agreements it has in place with ABC and SBS. The plaintiff has also entered into agreements with a number of entities for the use of and access to the broadcast tower in the Site. They are Prime Analogue TV; Prime Digital TV; Southern Cross Analogue TV; Southern Cross Digital TV; WIN Analogue TV; WIN Digital TV; Department of Environment and Climate Change (providing a two way radio system); Government Radio Network; Telstra; Vodafone and Optus. These entities have been referred to in the proceedings as "Sharees".
The Site is the sole television and ABC Radio broadcast site that services the Central Western Slopes Region of New South Wales. The plaintiff and the Sharees require access to the Site at all times in the event that the services provided by the facilities are disrupted or experience a fault. The plaintiff is also required to carry out regular maintenance on the broadcast tower to maintain the appropriate level of service.
There are numerous examples of the agreements with the Sharees in evidence. Some are between the Commonwealth and the Sharees prior to the sale of the NTA whilst others are between the plaintiff and the Sharees. Those agreements establish that the Commonwealth and the plaintiff have granted Site Licenses to the Sharees that include the sharing of the "access route" across the Land. A number of the Agreements included a clause in terms similar to the following:
5.4 Access route
You may use the access route described in item 4 to gain access from the public highway to the Site. The right is granted subject to any:
(a) restrictions; or
(b) disclosure about limitations on our own access rights,
set out in item 4 .
In each of those Agreements the "access route" in item 4 is described as the "13km gravel road" over the Land.
Issues for Determination
The pivotal issues for determination in the proceedings are: (1) the characterisation or nature of the right acquired by the Commonwealth in 1968; (2) whether the acquired right (or land) so acquired was only able to be used for the public purpose for which it was acquired; and (3) whether the right was transferred to the plaintiff's predecessor pursuant to a Declaration made under the Sale Act.
Nature of the Acquired Right
There are limitations on the materials to which the Court may have regard in construing the terms of an easement in respect of Torrens Title land. Evidence to establish the intention of the parties to the grant of an easement is not admissible. However evidence may be admissible to make sense of entries on the Register such as surveying terms and/or abbreviations: Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 at 539-541 [37], [44]-[45]. However when the "right" was acquired in 1968 pursuant to the Act the land was general law or old system land. It was not converted to Torrens Title land until some years later. The High Court did not address the construction of rights or easements over old system land in Westfield Management Limited v Perpetual Trustee Company Limited because the land in that case was Torrens Title land. There are different considerations pertaining to old system land subject to the priorities of the deeds registration system. Although it does not change the outcome of this case and although the defendant argued otherwise, I am satisfied that the restrictions or limitations imposed by the High Court in relation to the construction of easements in Westfield Management Limited v Perpetual Trustee Company Limited do not apply to the construction of the Notice of the acquisition of the right in the Gazette on 3 October 1968.
The Notice did not describe the particular part of the Land over which the right was acquired. The Schedule to the Notice described the whole of the Land. However it is not in issue that Crown Plan 2206.3100 correctly identifies the location and dimensions of the "right" referred to as an "easement" being "66 Feet Wide through Portion 41".
The Minute Paper for the Executive Council of 12 September 1968 signed by the Minister and signed by the Governor-General on 20 September 1968 as having been "Approved in Council", referred to the compulsory acquisition of "an easement for access" over the Land. The Explanatory Memorandum to the Executive Council Minute also referred to the acquisition by compulsory process of "an easement for access" over the Land. So too did the Minister's Certificate under s 9(8) of the Act. However the Notice did not use the expression "easement for access". The terminology of the Notice is the acquisition by compulsory process of "the right" for the Commonwealth to "go pass and repass at all times and for all purposes with or without vehicles of any description laden or unladen and with or without animals through over and along" the Land.
The defendant submitted that it is inappropriate to characterise the "right" acquired in 1968 under the Act as an "easement" in circumstances where there was no description of the right as one of carriage way or foot way and there is no dominant tenement to which the right is made appurtenant. There is no reference in the Notice to a right of "carriage way" or a right of "foot way" as those expressions are found in s 181A and Schedule 8 of the Conveyancing Act 1919. There are some similarities between the terms of the Notice and the terms of the wording of those easements in Schedule 8 of the Conveyancing Act as can be seen from the following comparison:
The Notice
[T]he right for The Commonwealth of Australia to go pass and repass at all times and for all purposes with or without vehicles of any description laden or unladen and with or without animals through over and along the land hereunder described
Right of Carriage Way - Schedule 8
Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.
Right of Foot Way - Schedule 8
Full and free right for every person who is at any time entitled to an estate or interest in possessio n in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass on foot at all times and for all purposes, without animals or vehicles to and from the said dominant tenement or any such part thereof.
The essential characteristics of an easement are (1) there must be a dominant and a servient tenement; (2) an easement must accommodate the dominant tenement; (3) dominant and servient owners must be different persons; and (4) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant: Re Ellenborough Park; Powell v Maddison [1956] Ch 131; JR Gaunt and P Morgan, Gale on Easements (18 th Ed, Sweet & Maxwell 2008) at 1-07. It is accepted that the first three elements do not apply to the "right" acquired by the Commonwealth.
The Commonwealth was able to acquire an "easement", or a "right", or a "power", or a "privilege" or some "other interest" that was "in, over, or in connexion with" the Land (s 10(5) of the Act). Notwithstanding the specific option to acquire an "easement", it acquired the "right" as described in the Notice in the Gazette. The acquired "right" has been described variously on documents and on the Register over the years as an "easement", an "easement for access" and a "private access easement". The defendant submitted that that the "right" has been given the incorrect description of an "easement" on the defendant's Certificate of Title and should be disregarded: s 40(1B) of the Real Property Act 1900; Bursill Enterprises Pty Ltd v Berger Bros. Trading Co. Pty Limited (1971) 124 CLR 73.
The defendant submitted that the Commonwealth's interest was personal as it was not the owner of the Site upon which the "National Television Station" referred to in the Notice was to be erected and it had no interest or capacity to annex the right to the State Crown Land: Westfield Management Limited v Perpetual Trustee Company Limited at 535 [21]. The State owned both parcels of land at the time the "right" was acquired.
It was submitted that the Commonwealth could not have acquired an easement in gross as an ordinary interest but that it could acquire an analogous creature appurtenant to some enterprise. In this regard reliance was placed on Commissioner of Main Roads v North Shore Gas Company Limited (1967) 120 CLR 118 in which the High Court considered the issue of whether the respondent was the owner of the gas mains and pipes underlying certain public roads, streets and lanes that had been compulsorily acquired or "taken" by the appellant for the purpose of the construction of the Warringah Expressway. Some portions of the lands in question were resumed under the provisions of the Public Works Act 1912 for the purposes of the Main Roads Act 1924-1960 and were vested in the appellant. The respondent contended that it had sustained a loss of business caused by the resumption and acquisition of private lands because the mains and pipes underlying the land had been used as a means of supply to the consumers who had formerly lived in the vicinity and whose lands had been acquired for the construction of the Expressway.
The only relevant question for the High Court was whether the respondent's interest in the mains and pipes was "an interest in land". Barwick CJ, McTiernan, Kitto and Taylor JJ referred to the previous decision of the Court in North Shore Gas Company Ltd v Commissioner of Stamp Duties (NSW) (1940) 63 CLR 52 in which Rich J had concluded that the mains and service pipes forming part of a continuous system of gas reticulation embedded in the soil of public roads were not chattels. Dixon J (as his Honour then was) had gone further and concluded that so much of the earth as the pipes displaced formed a space in the occupation of the company and constituted "land". The purpose of determining the question in that case was to decide whether the agreement for the sale of the assets, in particular the service pipes embedded in the soil, was free from ad valorem duty as provided in the Stamp Duties Act 1920-1933.
In Commissioner of Main Roads v North Shore Gas Company Limited their Honours doubted the correctness of Dixon J's conclusion and rejected the respondent's contention that it had an interest in the land (at 126-127). That rejection was based on Evershed J's analysis in Newcastle-Under-Lyme Corporation v Wolstanton Limited [1947] Ch 92 as follows (at 103):
In these circumstances and bearing in mind the general rule that no greater rights or interests should be treated as conferred on the undertakers than are necessary for the fulfilment of the object of the statute, it seems to me reasonably clear as a matter of the construction of s.6 of the Act of 1847, that the terms of the section are not intended to confer and are not apt to confer on the undertakers any right of ownership or proprietorship of the land affected. Equally in my judgment is the language of the section inappropriate to create in favour of the undertakers any tenancy or any easement or interest analogous to an easement. ...Parliament may create an easement in gross as it may, I assume, create a tenancy without provision for the payment of rent and notwithstanding the absence of any term certain. But the absence of the incidents ordinarily appropriate to the existence of a tenancy or of an easement is, at the least, an important consideration for the determination of the question whether on the true construction of the statute the creation of any such interest was intended.
After noting the distinguishing features of the decision in North Shore Gas Company Limited v Commissioner of Stamp Duties (NSW) Windeyer J expressed the view that it was futile to try to classify and describe the respondent's rights in respect of the mains and pipes under streets and roads according to the traditional categories and terminology of the law of real property and observed that "to say that the space which a gas main or pipe occupies is "land" is not to say that the gas company has an estate in that land. All that the decisions about rating really establish is that while a gas-pipe is embedded in the soil the land where it is is in the occupation of the gas company" (at 131-132).
Windeyer J also referred to the following analogy at 133:
The gas company has however no true easement; for there is no true dominant tenement unless it be said to be the gas works. However there is here an analogy to an easement as known to the common law; and if it be necessary to given ( sic ) some name to the right in relation to land which the respondent enjoyed, it was what is nowadays very often called a "statutory easement" e.g., in the article "Statutory Easements" in The Conveyancer , vol. 20 (1956), p.208: see too Gale on Easements , 13 th ed. (1959), p.4 (n). Such so-called easements can, as is said in Halsbury's Laws of England, 3 rd ed., vol 12, p.530, be "appurtenant only to some enterprise or even irrespective of any dominant tenement at all". They may sometimes be called easements in Acts of Parliament.
The article "Statutory Easements" (J.F. Garner (1956) 20 The Conveyancer and Property Lawyer 208) to which his Honour referred was limited to a consideration of the nature of the rights given by statute to local authorities and public utility undertakings in respect of sewers, gas or water mains, or electric cables laid under or across privately owned land by virtue of their relevant statutory powers.
Windeyer J concluded that the respondent had something more than a mere revocable licence (at 134). His Honour also concluded that the respondent's loss of potential profits could not be recovered by a claim that "it has lost land". Rather, its loss arose because the land of other people had been "taken" (at 135).
The defendant submitted that the "right" acquired in this case is in the nature of a "statutory easement" that was annexed to "an enterprise" (the National Television Station or "transmitting station" operated by the Postmaster-General) rather than a dominant tenement. This case is distinguishable from the circumstances to which Windeyer J directed his observations in Commissioner of Main Roads v North Shore Gas Company Limited. In that case the Court was dealing with rights granted to utilities providing services to the public akin to easements in gross now found in s 88A of the Conveyancing Act. In the present case, as the plaintiff emphasised, the definition of "land" in the Act includes "an interest in land". Although the expression "an interest in land" is not defined in the Act the expression "'interest', in relation to land" is defined to include a "right" that is "over, or in connexion with, the land" (s 5(1)). The "right" that the Commonwealth acquired in 1968 was "land" as described in s 10(5) of the Act and as defined in s 5(1) of the Act.
The defendant submitted that the "right" acquired is a personal (and hence revocable) right. In support of that submission reliance was placed on Ackroyd v Smith (1850) 10 C.B. 164; 138 ER 68 in which Creswell J said at 187-188; 77:
Such a right, unconnected with the enjoyment or occupation of the land, cannot be annexed as an incident to it: nor can a way appended to a house or land be granted away, or made in gross; for, no one can have such a way but he who has the land to which it is appendant. ... If a way be granted in gross it is personal only, and cannot be assigned.
I am not satisfied that the Commonwealth's acquisition was of a revocable right. It was an interest in land, and thus land, that the Commonwealth was able to transfer to a corporation (s 52 of the Act) or, if it no longer required it, dispose of it or grant a lease or licence in relation to it (s 53(1) of the Act); see also Commonwealth of Australia v Maddalozzo (1980) 54 ALJR 289 at 291 per Mason J, as his Honour then was.
Was the use of the "right" limited to the public purpose?
The defendant submitted that the nature of the "right" that was acquired by the Commonwealth in 1968 is limited to the public purpose for which it was acquired. In other words the Commonwealth was only allowed to use the land or exercise the "right" for the purpose for which it was acquired, being for "access to a National Television Station in accordance with the provisions of the Broadcasting and Television Act 1942-1967".
Counsel on both sides in this matter submitted that there is no case in which it has been claimed that land acquired for a public purpose may only be used for that public purpose. However reference was made to the following passage of D Brown, Land Acquisition (3 rd Ed, Butterworths, 1991), at paragraph 2.21 (footnotes omitted):
Some of the land acquisition statutes expressly permit the authority to use the land for a different purpose from that for which it was acquired in the first instance. There is no authority for the proposition that a former owner can restrain an authority from using the land for a different purpose from that for which it was acquired in the absence of statutory authority to change the use of the land, or in the absence of statutory authority permitting a former owner to seek an injunction for such restraint.
The purpose for which the land is acquired "must be stated" in the Notice to validly effect the acquisition: Jones v Commonwealth of Australia (1963) 109 CLR 475 at 483 per Dixon CJ. The Chief Justice referred to a number of reasons why it was essential under the provisions of the statute to express the public purpose including that "a land owner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed for a public purpose" (at 483). The Chief Justice expressed himself cautiously in suggesting that it "would seem" that the landowner had a "right" in knowing the public purpose. In any event it is not necessary in this case to decide whether such a "right" exists in a landowner. Even if such right exists it does not translate into a prohibition on the Commonwealth from using the land acquired for a purpose other than that for which it was acquired. It will depend upon, inter alia, the terms of the enabling statute.
There is nothing within the Act expressly authorising the Commonwealth to use the acquired land for a purpose different from that for which it was acquired. Equally there is nothing within the Act expressly prohibiting the Commonwealth from using the acquired land for a purpose different from that for which it was acquired. Sections 16 to 18 of the Act authorise entry into and survey of land for the purpose of ascertaining if it is fit for the public purpose for which it is to be acquired. These provisions suggest that the land is to be used for the public purpose in respect of which it is being surveyed. However they do not exclude the prospect of the land being use for additional purposes. They apply to pre-acquisition conduct to enable an assessment as to whether the Commonwealth should take the step of acquisition. It would be important for the Commonwealth to know whether the purpose for which the land is to be acquired is able to be achieved particularly having regard to its liability to pay compensation.
The defendant also submitted that the provisions of s 23 of the Act suggest that the land is to be used for the purpose for which it is acquired. That section relates to the determination of the amount of compensation payable in respect of land compulsorily acquired. It requires that regard "shall be" had to the enhancement or depreciation in the value of the claimant's "interest" "in other land adjoining or severed from the acquired land" at the date of acquisition by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired. Although the Court is prohibited from having regard to any increase in value by reason of the carrying out of or the proposal to carry out the public purpose for which the land was acquired, it is required to have regard to any decrease in value by reason of that matter. It was submitted that this evidences the intention of the legislature that the acquired land would only be used for the public purpose for which it was acquired.
Section 53 of the Act provided that where land vested in the Commonwealth "is no longer required" by the Commonwealth or "is not required for immediate use" by the Commonwealth, it may be disposed of or a lease or licence to occupy the land may be granted. Provision was also made for the granting of easements or other rights, powers or privileges over or in connection with the land vested in the Commonwealth. It is not suggested in this section, which is entitled "Dealings in Land vested in the Commonwealth", that such dealing may only occur if the land is no longer required "for the public purpose" for which it was acquired. Indeed the provisions of s 52 that permitted the Minister to transfer land vested in the Commonwealth "upon such terms as he directs" (without any reference to a restriction as to public purpose) is consistent with there being no restriction on the use of the land once acquired.
The provisions referred to above are consistent with the intention that the land would be used for the purpose for which it was acquired. However these provisions do not contain a prohibition on the Commonwealth using the land acquired for purposes in addition to the purpose for which it was acquired or disposing of the land without limitations on the use to which the land may be put. That is understandable particularly where the public purpose relates to the use of technology that is changed and updated so rapidly.
On balance I am satisfied that the use of the right (the land) acquired by the Commonwealth in 1968 is not restricted to the public purpose for which it was acquired.
Was the right transferred?
The Declaration made by the Minister on 27 April 1999 (the Declaration) for the sale of the NTA listed the Site as one of the Specified Assets in Part 1 of Schedule A of the Declaration. The Declaration did not specify the land acquired by the Commonwealth in October 1968 that had been used since that date to gain access to the Site. Nor did it refer to the Land. However the plaintiff submitted that notwithstanding that absence, the Declaration effected the transfer of that land to the plaintiff by reason of: (1) the provisions in paragraph 2.1(a) and (b) and Part 1 of Schedule A of the Declaration (Specified Asset); and/or (2) the provisions of paragraph 2.1(c) and Part 2 of Schedule A of the Declaration (Instruments).
The Sale Act
The purpose of the Sale Act was to enable the sale of the NTA and provided relevantly that the Minister for Finance and Administration was able to declare that a specified Commonwealth asset vested in a company (defined as a body corporate (s 3)) at a time specified in a Notice in the Gazette (the transfer time) "without any conveyance, transfer or assignment" (s 9(1)(a)). The company would become the successor in law in relation to the "transferred asset" at the transfer time (s 9(1)(b)). The Sale Act defines "asset" to include "any legal or equitable estate or interest in real or personal property" and "any right"(s 3). The Minister was also able to declare that a "specified instrument" in relation to a transferred asset was to continue to have effect after the transfer as if a reference in the instrument to the Commonwealth or to the NTA were a reference to the compan y (s 9(1)(c)). "Instrument" was defined to include "a document".
Specified Assets
The Specified Assets that the Minster declared vested in the plaintiff's predecessor (the plaintiff) included "any legal or equitable estate or interest or right or entitlement which the Commonwealth has in, or in relation to" the Site. The Site was listed as "F/I 44/753383". The Commonwealth did not have ownership of the Site but was the lessee of the Lease of the Site granted in 1965 for 40 years to 2005. The interest transferred to the plaintiff was therefore the leasehold interest of the Site.
The plaintiff submitted that the expression "in relation to" in this context has very broad import and includes the right (the land) acquired by the Commonwealth in 1968. It was submitted that the acquired right is clearly an "interest or right or entitlement" that the Commonwealth had "in relation to" the Site. It was further submitted that in the context of the Declaration that was manifestly intended to transfer to the plaintiff the entirety of the NTA and all assets, interests and rights associated with the NTA, the words "in relation to" were intended to be sufficiently broad to include assets such as the "right" of access.
It is not in issue that the words "in relation to" are of broad import: Waugh Hotel Management Pty Ltd v Marrickville Council (2009) 171 LGERA 112 at 123-125 [43]-[50] and PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313. However they must be read in the context in which they appear. This was a transfer of assets of the NTA under the Sale Act to the plaintiff.
The right acquired by the Commonwealth in 1968 was a right to travel over the Land as described in the Notice gazetted on 3 October 1968 "to go pass and repass at all times and for all purposes with or without vehicles of any description laden or unladen and with or without animals through over and along the land hereunder described". It was the Land that was described and not the Site. The public purpose for which the right was acquired was for access to the "National Television Station". The National Television Station was on the Site but the public purpose was not declared as being for access to the Site. The Declaration under the Sale Act was of a right in relation to the Site, not in relation to access to the National Television Station. The "right" acquired was over and/or in relation to the Land. A right in relation to the Site might include such things as capacity to repair and maintain the tower on the Site and/or to fence areas around or within the Site.
Section 52 of the Act provided that the acquired land can be transferred to a corporation incorporated by a law of the Commonwealth "if the Minister [a different Minister] thinks fit, and upon such terms as he directs". Section 53 also providesd for the disposition of the acquired land in certain circumstances. Although it is accepted that the expression "in relation to" must be given broad import, it must be viewed not only in the context of the Sale Act under which the transfer of the NTA assets was to occur but also in the context of the statute that governed the acquired land. The fact that there was a statutory regime expressly providing a mechanism for the transfer of the acquired land needs to be taken into account in assessing the breadth of the expression "in relation to" in the Declaration.
In any event the plaintiff has successfully argued that the right acquired by the Commonwealth is "land" under the Act. On the basis that it is "land" that was acquired, the provisions of the Declaration that refer to a "right" that is "in relation to" the Site do not apply.
I am not satisfied that the acquired right (the land) was transferred to the plaintiff by the words "in relation to" in Part 1 of Schedule A of the Declaration under the Sale Act.
Instruments
The plaintiff also submitted that the right of access arose from an "instrument" or "other legally binding arrangement" within the meaning of those expressions in Part 2 of Schedule A to the Declaration. It was submitted that the Commonwealth was a party to that arrangement and from the terms of the 1968 Gazette, the "instrument" or "legally binding arrangement" giving rise to the right was entered into by the Commonwealth for the purposes of the ownership or operation of the NTA. It was submitted that accordingly the right of access that was vested in the Commonwealth pursuant to the Act was vested in the plaintiff by virtue of the Sale Act and the Declaration.
The Declaration included the following in Part 2 of Schedule A:
Instruments, licenses and contracts
Any right of the Commonwealth (including a prospective or contingent right) in respect of, in relation to or which arises from any instrument, licence, contract or other legally binding arrangement which:
(a) the Commonwealth is a party to; and
(b) was entered into by the Commonwealth for the purposes of the ownership or operation of the National Transmission Network,
other than:
(c) the memorandum between Telstra Corporation Limited and the Commonwealth in relation to the provision of communications services;
(d) any other contracts entered into by the Commonwealth for the provision of goods or services across a number of Commonwealth departments or agencies, including the NTA
The defendant submitted that the Declaration requires that there be an "instrument, licence, contract or other legally binding arrangement" to which the Commonwealth was a "party" for the "right" to have vested in the plaintiff's predecessor. It was submitted that the "right" was not something referable to an instrument, contract or arrangement because acquisition by compulsory process occurs by force of the Act. It was also submitted that there is no document in evidence to which the Commonwealth is properly a "party" that could be said to be the source of the "right". It was submitted that the word "party" in Part 2 of Schedule A to the Declaration used in combination with terms like "instrument, contract or legally binding arrangement" means that there must be documents of agreement and/or transfer and not a compulsory acquisition. In those circumstances it was submitted that the terms of Part 2 of Schedule A to the Declaration were not sufficient to cause the vesting of the "right" in the plaintiff.
I am not satisfied that the acquisition of the land the subject of the Notice in the Gazette on 3 October 1968 is a right that arises from an "instrument, licence, contract or other legally binding arrangement" to which the Commonwealth is a party as these expressions are to be understood in Part 2 of Schedule A to the Declaration of 27 April 1999. The "right" that arose in the Commonwealth, that is, the land that was acquired by the Commonwealth, was by force of the Act. In particular s 10(4) of the Act provided that upon the publication of the Notice in the Gazette "by force of" the Act the land vested in the Commonwealth. I am satisfied that the acquisition "by force of" the Act is not what was contemplated by the expression "other legally binding arrangement" in the Declaration. This was not such "an arrangement" but rather a compulsory statutory acquisition of land.
I am satisfied that the land acquired in 1968 remains in Commonwealth ownership and that the Declaration did not validly effect the transfer of the land to the plaintiff. The plaintiff may be able to secure a declaration in due course because it appears that the Commonwealth has allowed it to use the "land" acquired in 1968 for some many years. However the Commonwealth is not a party to this litigation.
The parties have asked that I refrain from making any declarations and orders prior to indicating the conclusions that I have reached in relation to the three issues for determination referred to above. I am of the view that it is necessary also to refrain from making findings in respect of the excessive use as claimed by the defendant in the circumstances of the conclusions I have reached. In reality the Commonwealth has permitted the plaintiff to use the land since the sale of the NTA and although it may have intended to transfer the land to the plaintiff the process failed to achieve that outcome. I apprehend from submissions that were made during the course of the hearing that the parties to this litigation and/or the Commonwealth would more probably than not seek to mediate the dispute in the light of my findings.
In the circumstances it is appropriate that I record the following conclusions:
(1) The Commonwealth acquired land described as the "right" in the Notice published in the Gazette of 3 October 1968 by force of s 10(4) of the Lands Acquisitions Act 1955-1966;
(2) The use of the land so acquired was not limited to the public purpose for which it was acquired; and
(3) The Declaration of 27 April 1999 did not transfer the acquired land to the plaintiff's predecessor or the plaintiff.
I list the matter on 15 December 2011 at 10 am for further directions and any argument as to costs.
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Decision last updated: 12 December 2011
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