Cappello v Roads and Maritime Services

[2019] NSWCA 227

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Cappello v Roads and Maritime Services [2019] NSWCA 227
Hearing dates:	20 August 2019
Date of orders:	20 August 2019
Decision date:	16 September 2019
Before:	Payne JA at [1]; Brereton JA at [60]; Emmett AJA at [61]
Decision:	(1)    Leave to appeal granted. (2)    Grant leave nunc pro tunc to file notice of appeal which was filed on 2 July 2019. (3)    Appeal dismissed. (4)    Appellant to pay the costs of the respondents.
Catchwords:	ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), Div 5.2, s 5.19 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 13 Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 19 Road Transport Act 2013 (NSW), s 4 Roads Act 1993 (NSW), ss 3, 7, 52, 63, 64, 71, 177, 178
Cases Cited:	ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48 Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Municipal Officers’ Association of Australia v Lancaster (1981) 54 FLR 129 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) K Roach, “The Uses and Audiences of Preambles in Legislation” (2001) 47 McGill LJ 129 A Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 MULR 184
Category:	Principal judgment
Parties:	Rosario Cappello (First Appellant) Maria Cappello (Second Appellant) Roads and Maritime Services (First Respondent) Registrar General of New South Wales (Second Respondent)
Representation:	Counsel: A Cheshire SC (Appellants) N Owens SC / L Waterson / L Johnston (First Respondent)   Solicitors: Murphy Lyons Lawyers (Appellants) Crown Solicitor’s Office (First Respondent) Office of the Registrar General of New South Wales (Second Respondent)
File Number(s):	2019/00147141; 2019/00232564
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2019] NSWSC 439 Date of Decision: 18 April 2019 Before: Campbell J File Number(s): 2019/00061724

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants were the registered proprietors of two adjoining parcels of land at Haberfield. Roads and Maritime Services proposed to acquire the appellants’ land to construct a tunnel as part of the WestConnex project between Haberfield and St Peters. A road was to be constructed in the tunnel and that road was to be a tollway. The proposed acquisition notices stated that the land was to be acquired “for the purposes of the Roads Act 1993 in connection with the construction, operation and maintenance of WestConnex M4 – M5 Link tunnels”. The appellants challenged the validity of the proposed acquisition notices on the basis that the acquisitions were outside the scope of the purposes of the Roads Act 1993 (NSW) and therefore unauthorised and ultra vires. The primary judge held that RMS was empowered to acquire private land for the purpose of the construction of a tollway and dismissed the proceedings: Cappello v Roads and Maritime Services [2019] NSWSC 439.

The Court, dismissing the appeal, held:

(i)   The “purposes” of the Roads Act referred to in s 177 are not limited only to the “objects” described in s 3 of the Act. The scope of the expression “the purposes of this Act” in s 177 is to be determined by reference to the provisions of the Roads Act read as a whole. The “purposes” of the Roads Act referred to in s 177 include the exercise and achievement of particular purposes of the Act identified in the powers granted by the Act: [39], [42].

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 applied.

(ii) Section 3(f) of the Roads Act provides that one of the objects of the Act is to “confer certain functions … on RMS”, and the Act then confers functions on RMS that include the construction of proposed “tollways”. This is by specifically conferring upon RMS the function of “carrying out road work”. The Roads Act defines carrying out road work by reference to “roads” generally and not public roads. Even on the appellants’ construction, the power to acquire land to build a road must fall within s 3(f): [49].

(iii) The power of a roads authority to carry out road work under s 71 of the Roads Act is not limited to the carrying out of road work on an existing public road. Section 52(1)(b) of the Roads Act contemplates that a tollway may be a road to be constructed by RMS on land to be owned it. Section 64(1A) of the Roads Act contemplates that RMS may have conferred upon it the functions of a road authority to carry out the construction of a tollway. The mainline tunnel as part of the WestConnex project was approved as State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979 (NSW). Under s 64(1A) of the Roads Act, the effect of the approval of the project under the Environmental Planning and Assessment Act was to empower RMS to “exercise the functions of a roads authority with respect to any road” for the purposes of the carrying out of the WestConnex project: [49], [51], [52].

(iv) The power to acquire under s 177 of the Roads Act coupled with the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) gave RMS the power here to acquire the relevant land compulsorily: [44].

Judgment

1. PAYNE JA: On 20 August 2019 the Court heard an appeal in this matter. At the conclusion of the appeal the following orders were made:

(1)    Leave to appeal granted.

(2)    Grant leave nunc pro tunc to file notice of appeal which was filed on 2 July 2019.

(3)    Appeal dismissed.

(4)    Appellant to pay the costs of the respondents.

(5)    Reasons reserved.

2. These are my reasons for joining in those orders.

Relevant facts

3. This case involves an application for declaratory relief challenging the validity of two proposed acquisition notices issued in relation to the proposed compulsory acquisition of sub-stratum land at Haberfield for stage 3A of the major road building and engineering project known as the “WestConnex project”.

4. The appellants were the registered proprietors of land at Haberfield the subject of the proposed acquisition notices. The acquisitions of the appellants’ land relate to the construction of a tunnel as part of the WestConnex project between Haberfield and St Peters. Part of the tunnel comprises an underground on-ramp tunnel that will connect the tunnel to a nearby street in Haberfield. Part of the on-ramp tunnel will be located under the appellants’ land.

5. On 17 August 2018, pursuant to s 52(1) of the Roads Act 1993 (NSW), an order was published in the Gazette declaring the proposed road to be constructed in the mainline tunnel, including the on-ramp tunnel, to be a “tollway”. The tollway when constructed will be a “private road” under the Roads Act.

6. On 18 January 2019, the first respondent, Roads and Maritime Services (“RMS”) issued proposed acquisition notices under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) to the appellants in respect of each parcel of land. The proposed acquisition notices stated:

“3. The Authority proposes to utilise the land which is proposed to be acquired for the purpose identified in part 2 of the schedule which follows.

4. The basis of the power of the Authority to acquire that land is identified in part 3 of the schedule which follows.

SCHEDULE REFERRED TO ABOVE

Part 2:

The land is proposed to be acquired for the purposes of the Roads Act 1993 in connection with the construction, operation and maintenance of WestConnex M4 – M5 Link tunnels.

Part 3: The Authority is a statutory corporation and NSW Government Agency established under Part 6 of the Transport Administration Act 1988. The Authority’s functions include those conferred on it by or under the Roads Act 1993. The power to acquire land is conferred on the Authority under Part 12 of the Roads Act1993, and specifically section 177 of that Act. The Authority is required to comply with the Land Acquisition (Just Terms Compensation) Act 1991 in undertaking the acquisition.”

7. The appellants brought proceedings in the Supreme Court challenging the validity of the proposed acquisition notices on the basis that the acquisitions were outside the scope of the purposes of the Roads Act and therefore unauthorised and ultra vires. The appellants sought declarations that the acquisitions were unauthorised and ultra vires and an order that RMS be restrained from compulsorily acquiring the land.

8. On 18 April 2019, Campbell J refused the relief sought by the appellants and made orders dismissing the proceedings. On 3 May 2019, RMS became the registered proprietor of the land pursuant to s 19 of the Just Terms Act.

9. The central issue on appeal is whether the identified purposes, being “purposes of the Roads Act 1993 in connection with the construction, operation and maintenance of WestConnex M4 – M5 Link tunnels”, are within the scope of the purposes of the Roads Act.

Decision of the primary judge

10. The primary judge held that “for any of the purposes of this Act” in s 177 of the Roads Act does not mean “only for any one or more of the objects expressed in s 3 of this Act”. Rather, “the purposes of this Act” in s 177 is a reference to the general statutory purposes to be gleaned from all of the provisions of the Act including the objects provision, the nature of the functions imposed upon the Minister, RMS or a Council by the RoadsAct and the powers conferred by the operative provisions. Taking that approach, his Honour was satisfied that RMS was empowered to acquire private land either by agreement or otherwise in accordance with the Just Terms Act for the construction of a proposed road declared by the Minister under s 52 of the Roads Act to be a tollway on land to be acquired by RMS.

11. The primary judge held that it was central to the appellants’ argument that the power of acquisition for the purposes of the Roads Act should be read as a power of acquisition for the objects of the Act as expressed in the objects provision in s 3 of the Roads Act and that those objects should be read as only concerned with the performance of administrative and other action in relation to existing public roads. His Honour held that the appellants’ approach significantly reads down the ordinary meaning of s 177 and treats the objects provision in s 3 as a constraint on the meaning, operation and application of the Roads Act.

12. The primary judge did not regard the objects provision as controlling the meaning to be given to other operative provisions of the legislation. While accepting that semantically “purposes” may be taken to be a synonym of “objects”, his Honour found that it did not follow that the purposes of the Roads Act are confined by the matters described in the objects provision. His Honour did not regard the objects provision as an exhaustive statement of the purposes of the Roads Act within the meaning of s 177.

13. The primary judge held that the conclusion that RMS is empowered to acquire private land for the purpose of the construction of tollways should be drawn as:

1. Section 52 of the Roads Act indicates that it is a purpose of the Roads Act that the Minister may declare land acquired by RMS for the construction of new roads to be a tollway. The Minister may not make an order classifying a road except on the recommendation of RMS. An order may be made in relation to a proposed road and the order takes effect only when the land to which it relates is open to the public as a road. A tollway may be “opened to the public as a road” upon condition of the payment of toll by those members of the public who use it, and yet remain a private road, at least for the purpose of the Roads Act.

2. Section 64(1A) of the Roads Act empowers RMS to carry out the “functions” of a roads authority with respect to the proposed tollway “for the purposes of carrying out the project approved” as State significant infrastructure under the Environmental Planning and Assessment Act1979 (NSW) of which the WestConnex tunnel forms part. The conferral of the functions of a roads authority on RMS for the purpose of carrying out the WestConnex project is indicative of the discharge of that statutory function by RMS being a purpose of the Roads Act referred to in s 177. It is also an object of the Roads Act in the narrower sense in as much as s 3(f) specifically applies.

3. Section 64(1) of the Roads Act is an “important marker of a statutory purpose of the Roads Act” in that it expressly empowers RMS to exercise the functions of a roads authority, with respect to any classified road (which includes a tollway) whether or not it is the roads authority for that road under the Roads Act and whether or not the road is a public road.

4. Section 71 of the Roads Act empowers a road authority to carry out road work on any public road for which it is the roads authority and on any other land under its control. Road work is defined widely by the dictionary in the Roads Act as including the roadway itself, and, relevantly for present purposes, a tunnel. The phrase “carry out road work” includes carrying out any activity in connection with the construction of a road work. The function of a roads authority which RMS may exercise under s 64(1) of the Roads Act with respect to any tollway includes constructing the tollway on any land under its control under s 71. Facilitating the exercise of this function is a purpose of the Roads Act and accordingly for this reason too, RMS is empowered to acquire the land.

5. Section 63 of the Roads Act empowers the Minister to direct that all of the functions of a roads authority are, to the fullest extent possible, to become the responsibility of RMS with respect to this project. This consideration indicates that the discharge of that function by RMS, as directed, is a purpose of the Roads Act and that RMS is empowered by s 177 of the Roads Act to acquire private land in accordance with the Just Terms Act for that purpose.

14. His Honour concluded that the proposed acquisition notices were therefore authorised by law and dismissed the summons.

Notice of appeal

15. The notice of appeal filed on 2 July 2019 raised the following grounds:

“(1) The primary judge erred in holding that section 177(1) of the Roads Act 1993 empowers the first respondent to compulsorily acquire private land for the construction of the tollway known as stage 3A of the Westconnex project.

(2)    The primary judge erred in holding that the construction of the tollway known as stage 3A of the Westconnex project is a purpose of the Roads Act 1993 within the meaning of section 177(1) of the Roads Act 1993.

(3)    The primary judge erred in holding that [it] is the first respondent that will be constructing the tollway known as stage 3A of the Westconnex project.

(4) The primary judge erred in holding that “for the purposes of this Act” in section 177(1) of the Roads Act 1993 is not confined to the objects of the Roads Act 1993 in section 3 of the Roads Act 1993.

(5)    The primary judge erred in holding that “for the purposes of opening, widening or constructing a road or road work” includes the construction of the tollway known as stage 3A of the Westconnex project.

(6) The primary judge erred by misconstruing sections 3 and 177 of the Roads Act 1993.”

16. The appellants sought declarations that the compulsory acquisition of the appellants’ land was unauthorised and ultra vires and an order that the first respondent do all things and execute all documents necessary to return the title to the land to the appellants.

17. The second respondent, the Registrar General of New South Wales, filed a submitting appearance in this Court as no relief was sought against it.

Evidence on appeal

18. The appellants read the affidavit of James Lyon sworn on 2 July 2019. Mr Lyon, solicitor for the appellants, annexed to his affidavit a valuation of the appellants’ house on the subject land. This affidavit was intended to demonstrate that an amount in excess of $100,000 was involved in determination of the appeal and that leave should therefore be granted. The affidavit did not establish that matter. Rather than take up time, the Court admitted the affidavit but described it as “at the very margins of relevance”. There was, in truth, no cogent evidence of the effect on value of the appellants’ land by reason of the acquisitions here in issue. Leave to appeal was granted, however, on the basis that the point raised by the appellants may affect other landowners.

19. RMS read the affidavit of Andrew Roderick McKindlay affirmed on 16 July 2019 and the affidavit of James Michael Innes affirmed on 1 August 2019. Mr McKindlay, project director of the WestConnex project, set out the background of the project and the proposed acquisitions of the subject land. Mr Innes, solicitor for RMS, annexed to his affidavit an acquisition notice, title searches and correspondence between the parties relating to the publication of the acquisition notices and registration of the subject land. That evidence was tendered as relevant only to the question of the available relief if the appeal were allowed. As the Court concluded that the appeal should be dismissed the content of that evidence need not be considered further.

Appellants’ submissions

20. The appellants submitted that the purposes of the Roads Act within the meaning of s 177 are set out definitively rather than inclusively in s 3 of the Roads Act. Whilst the appellants accepted that regard is to be had to the context within which s 3 appears and to the language of the Act as a whole, that does not lead to a conclusion that the purposes of the Roads Act are contained in “all the provisions of the statute”. It was submitted that, even if the purposes of the Roads Act were not exclusively as set out in s 3, the specific purposes must, as a matter of logic, form a subset of those general objects or at the very least the “purposes” in s 177 must be interpreted so as to be consistent with the objects in s 3.

21. The appellants submitted that, on the face of s 3 and the Roads Act generally, the statute is “primarily” concerned with public roads and that the powers in respect of private land and in particular tollways can be exercised by reference to existing roads only. It was submitted that it is clear from s 3 that the construction of a private road in the form of a tollway is outside of the objects of the Roads Act.

22. It was submitted that there is a fundamental difference between the extensive powers granted by the Roads Act over public roads, being roads for the benefit of the public generally, and powers over private roads (including tollways), let alone powers over private land where no road yet exists. Such a broad interference with the property rights of the citizen could not be justified in the absence of clear words. The construction preferred by the primary judge was also submitted to be inconsistent with the principle of legality.

23. The appellants submitted that, whilst the classification of roads may be one of the purposes of the Roads Act under s 3(d) that subsection does not require or expressly contemplate the construction, operation and maintenance of a tollway. Rather the construction, operation and maintenance of a tollway cannot be characterised as power expressly or impliedly contemplated as being related to the classification of a road. The language of the subsection suggests the pre-existence of a road to be classified. Similarly, whilst the conferral of various functions upon RMS may be within the purposes of the Roads Act under s 3(e)-(g), those subsections do not require or expressly contemplate the construction, operation and maintenance of a tollway. The language of those subsections suggests that those functions can be exercised in respect of existing roads.

20. The appellants submitted that the effect of the primary judge’s decision was to equate the language in s 177 “for any of the purposes of this Act” with “for the purpose of exercising any of its powers under this Act”. It was submitted that his Honour’s conclusion that the purposes are to be found in “the express powers conferred by operative provisions” appears to contemplate that the power of compulsory acquisition itself is one of the purposes of the Roads Act. It was submitted that this approach leads to a position where impermissibly powers are equated with purposes, s 177 becomes circular, the express limitation in s 177 is deprived of any effect, and the power of compulsory acquisition becomes unlimited, in spite of the express limitation.

21. The appellants submitted that the primary judge erred in concluding that the purposes of the Roads Act are “not confined or constrained by the objects provision”. It was submitted that the dissenting judgment of Isaacs J in James v Cowan (1929-1930) 43 CLR 386; [1930] HCA 48 offers no support for looking for the purposes of the Roads Act beyond the objects expressly set out in s 3. It was submitted that his Honour also erred in concluding that the purposes of the Roads Act, according to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, are to be found “in all the provisions of the statute”. It was submitted that the decision in Project Blue Sky was not that the purposes of a statute are to be found in all its provisions, but rather that in interpreting an individual provision, a court may have regard to the purpose of the statute and should seek consistency with the remainder of the statute. It was submitted that the primary judge erred in relying upon the decision in Municipal Officers Association of Australia v Lancaster (1981) 54 FLR 129, where the Court, in identifying the objects, considered the method by which the legislature had implemented those objects. It was submitted that this approach, consistent with Project Blue Sky, does not justify departure from the objects provision nor lead to a conclusion that the objects were to be found in those methods.

22. The appellants submitted that the primary judge erred in extending the search for the purposes of the Act to ss 52, 63, 64 and 71 of the Roads Act without regard to s 3. It was submitted that s 52 does not require or expressly contemplate that a private road in the form of a tollway will be constructed for the purpose of declaring a road as a tollway or that land may be acquired for the construction of a tollway. The fact that certain functions may be conferred on RMS in relation to private roads and tollways under ss 63, 64 and 71 also does not lead to a conclusion that the construction of a tollway is within the purposes of the Roads Act.

23. The appellants accepted that upon acquisition RMS obtained the benefit of an indefeasible title by registration. It was submitted, however, that registration does not exclude personal equities and so does not prevent the appellants asserting rights in personam against RMS. The appellants submitted that they have a personal equity for restitution in the form of the return of the property, whether based upon lack of consent, want of authority, powerlessness, illegality or some combination of those factors. Alternatively, it was submitted that this would give rise to a resulting trust or a remedial constructive trust.

Legislative provisions

28. Section 3 of the Roads Act provides:

3          Objects of Act

The objects of this Act are:

(a)    to set out the rights of members of the public to pass along public roads, and

(b)    to set out the rights of persons who own land adjoining a public road to have access to the public road, and

(c)    to establish the procedures for the opening and closing of a public road, and

(d)    to provide for the classification of roads, and

(e)    to provide for the declaration of RMS and other public authorities as roads authorities for both classified and unclassified roads, and

(f)    to confer certain functions (in particular, the function of carrying out road work) on RMS and on other roads authorities, and

(g)    to provide for the distribution of the functions conferred by this Act between RMS and other roads authorities, and

(h)    to regulate the carrying out of various activities on public roads.

29. The Dictionary to the Roads Act relevantly provides:

roads authority means a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.

…

road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre or rail infrastructure) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.

…

private road means any road that is not a public road.

…

public road means:

(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and

(b) any road that is declared to be a public road for the purposes of this Act.

30. Section 52 provides in respect of “tollways”:

52        Tollways

(1) The Minister may, by order published in the Gazette, declare to be a tollway:

(a)    any road that is owned by RMS and that is designed to facilitate the movement of motor traffic, or

(b)    any road proposed to be constructed on land owned or to be owned by RMS.

(2)    A public road that is declared to be a tollway ceases to be a public road by virtue of the declaration.

31. A tollway is not a road or road-related area within the meaning of s 4(1) of the Road Transport Act 2013 (NSW) for the purposes of any Act or law, or any provision of an Act or law, prescribed by the regulations for the purposes of this section. Section 7 of the Roads Act provides:

7          Roads authorities

(1)    RMS is the roads authority for all freeways.

(2) The Minister administering the Crown Land Management Act 2016 is the roads authority for all Crown roads.

(3)    The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4)    The council of a local government area is the roads authority for all public roads within the area, other than:

(a)    any freeway or Crown road, and

(b)    any public road for which some other public authority is declared by the regulations to be the roads authority.

(5)    A roads authority has such functions as are conferred on it by or under this or any other Act or law.

32. Sections 63 and 64 of the Roads Act provides:

63        Ministerial directions

(1) The Minister may, if of the opinion that special circumstances so require, direct that some or all of the functions of a roads authority with respect to a classified road are to become, to the extent provided by the direction, the responsibility of RMS.

(2)     While a direction under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the direction, to be exercised by RMS.

64        RMS may exercise functions of roads authority with respect to certain roads

(1)    RMS may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and, in the case of a classified road, whether or not that road is a public road.

(1A) RMS may, for the purposes of the carrying out of a project approved under Part 3A, State significant development for which development consent has been granted under Part 4, or State significant infrastructure approved under Part 5.1, of the Environmental Planning and Assessment Act 1979, exercise the functions of a roads authority with respect to any road.

(2)    The roads authority for a road with respect to which RMS is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by RMS.

Note. See Division 5 of Part 9 as to the exercise by RMS of the functions of another roads authority in respect of certain actions undertaken on a public road for the purposes of, or incidental to, development or operation of a light rail system.

33. The carrying out of the road work was approved under s 5.19 of the Environmental Planning and Assessment Act 1979 (NSW) which is contained in Division 5.2 of the Act. By operation of clause 13 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), references to Part 5.1 of the Environmental Planning and AssessmentAct are to be read as references to Division 5.2 of the Act.

34. Section 71 of the Roads Act provides:

71        Powers of roads authority with respect to road work

A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.

35. Section 177 of the Roads Act provides:

177       Power to acquire land generally

(1) The Minister, RMS or a council may acquire land for any of the purposes of this Act.

(2)    Without limiting subsection (1), the Minister, RMS or a council may acquire:

(a)    land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or

(b)    land that forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired for the purpose of opening, widening or constructing a road or road work.

(3)    Without limiting subsection (1), RMS may also acquire land that it proposes to declare to be RMS development land.

36. Section 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) provides:

11        Notice of intention to acquire land by compulsory process

(1)     An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so.

(2)     The authority of the State is not prevented from acquiring the land by agreement after giving the proposed acquisition notice.

Consideration

37. In Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 French CJ, Crennan and Bell JJ said at [39]:

“[39] … the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.” (Footnotes omitted.)

38. At [65]-[66] in the same case Gageler and Keane JJ said:

“[65] Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning … but not always”. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.

[66] Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies. …” (Footnotes omitted.)

39. The first, and fundamental, premise of the appellants’ argument, that the “purposes” of the Roads Act referred to in s 177 are limited only to the “objects” described in s 3 of the Roads Act is not correct. It may be accepted that “purposes” and “objects” can, depending on context, be treated as synonyms. It does not follow that when s 177 of the Roads Act refers to “purposes” of the Roads Act the legislature thereby intended to confine the “purposes” of the Roads Act to the “objects” described in s 3. Where the legislature has chosen to use a different word, the “purposes of this Act” contemplated by s 177(1) are unlikely to be limited only to the “objects” described in s 3.

40. Even assuming that the section headed “objects” was headed “purposes”, the phrases “For the purposes of this Act” or “For the purposes of this document” or “For the purposes of this instrument” are well-known shorthand phrases used in drafting legislation. The phrase “For the purposes of this Act” is not to be conflated with the objects of the Act. [1] As Pearce and Geddes in Statutory Interpretation in Australia (8th ed, 2014, LexisNexis) say at [4.51]:

“It has also to be borne in mind when considering an objects clause that it alone will not represent the object of the legislation. Intention is to be gleaned from the whole of the Act and regard must also be had to other sections …”

1. This traditional role for objects clauses is reflected in the academic literature: see, for example, K Roach, “The Uses and Audiences of Preambles in Legislation” (2001) 47 McGill LJ 129; A Winckel, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 MULR 184.

41. Evaluation of the relative coherence of the alternative constructions offered by the parties here with the statutory objects or policies of the Roads Act points decisively to rejection of the appellants’ suggested constructional choice. The appellants accepted that if the powers of RMS granted by the Roads Act were limited to powers specifically enumerated in s 3, the acquisition of land for the purpose of constructing a freeway was “potentially” not within the purposes of the Roads Act. This concession is a demonstration of the likely incoherence of the appellants’ suggested construction.

42. The scope of the expression “the purposes of this Act” in s 177 is to be determined by reference to the provisions of the Roads Act read as a whole. The “purposes” of the Roads Act referred to in s 177 include the exercise and achievement of particular purposes of the Roads Act identified in the powers granted by the Roads Act.

43. As to the appellants’ principal claim, s 177 itself makes plain that the power of acquisition extends beyond the acquisition of land for “public roads”. Section 177(2)(b) clearly identifies that the general power in s 177(1) includes the power to acquire land “for the purpose of opening, widening or constructing a road or road work”. That power is not confined to acquiring land to construct “public roads”. Section 177(2) tells fatally against the appellants’ construction of s 177(1). The appellants’ suggestion that s 177(2) provides only a limited or ancillary power is to render the statutory scheme incoherent. If the appellants were correct, the commencing words of s 177(2), “Without limiting subsection (1)” refer to a number of things which, on the appellants’ construction fall outside the express terms of s 3. Section 177(1) is not referring to a definition found somewhere else in the Roads Act. What the section is doing is providing words of extension which are inconsistent with the submission that the purposes of the Act referred to in 177(1) are limited only to the objects identified in s 3 of the Roads Act.

44. Section 177 does not distinguish between the RMS acquiring property voluntarily or compulsorily. Section 177 simply provides the power to acquire. [2] Section 52(1)(b) of the Roads Act expressly contemplates a road proposed to be constructed on land to be owned by RMS. That is, the Act expressly contemplates that there is land which RMS might acquire for that purpose. The power to acquire under s 177 of the Roads Act coupled with the Just Terms Act gives RMS the power to acquire such land compulsorily. The appellants accepted that, if the construction they were advancing was correct, “it may be right” that RMS could never acquire land, either voluntarily or compulsorily, for the purpose contemplated by s 52 of the Roads Act. That construction involves an incoherent application of the Roads Act read as a whole and must be rejected.

    2. In relation to which see also s 178 of the Roads Act.

45. The appellants’ criticism of the primary judge’s construction of s 177 as circular is unfair. His Honour did not conclude that words should be read into the definition but rather engaged in a traditional process of statutory construction to determine the meaning of the phrase “the purposes of this Act” when used in s 177.

46. The principle of legality was also relied upon by the appellants as supporting the construction they proffered. Consideration of the principle does not give rise to any different conclusion about the appellants’ suggested construction. In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39 at [307]-[314] Gageler and Keane JJ explained the principle as one of construction [3] and said:

“[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.” (Footnote removed.)

3. See also ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7 at [43].

47. For the reasons already given, little assistance is provided in identifying the scope of the power in s 177 of the Roads Act to invoke any general presumption against, in this case, the acquisition of private land. In any event, this is a case where the legislative intent to interfere with private property rights for the purposes of the Roads Act is manifest. Whatever the limits of the power granted by s 177, the acquisition of private property by RMS to construct a road is clearly within the contemplated exercise of power.

48. Even if, contrary to my principal conclusion, attention were confined only to the objects in s 3, those objects do not expressly or impliedly exclude the performance of road work in relation to a private road. Section 3(d) provides for the “classification of roads”. The Roads Act classifies both “public” and “private” roads.

49. Section 3(f) of the Roads Act provides that one of the objects of the Act is to “confer certain functions … on RMS”, and the Act then confers functions on RMS that include the construction of proposed “tollways”. This is by specifically conferring upon RMS the function of “carrying out road work”. The Roads Act defines carrying out road work by reference to “roads” generally and not public roads. Even on the appellants’ construction, the power to acquire land to build a road must fall within s 3(f). The object in s 3(f) is specific and actually refers to road work, which includes the construction of a road, in contradiction to the other objects which refer to declarations and actions with already existing roads. As I have said, s 52(1)(b), specifically contemplates the possibility of a “tollway” (which is by definition a “private road”) that is a “road proposed to be constructed on land … to be owned by RMS”. The suggestion that the purposes of the Roads Act do not extend to the construction by RMS of a proposed tollway on land that is not yet, but is to be, owned by RMS is inconsistent with the express terms of s 52.

47. The appellants’ argument that the power of a roads authority to carry out road work under s 71 is limited to the carrying out of road work on an existing public road fails to recognise the distinction between the appointment of RMS as the roads authority in relation to a “public road” by operation of s 7 of the Roads Act and the conferral or exercise of the functions of a roads authority on RMS in relation to a road by operation of the other provisions of the Roads Act. The Roads Act specifically contemplates that RMS may have conferred upon it the functions of a road authority in relation to other types of road.

48. When the functions of a roads authority are conferred upon RMS in relation to a road by ss 64(1A), 64(1) or 63, one of the functions conferred is the carrying out of “road work”. “Road work” is very widely defined and specifically includes “the construction, erection, installation … of a road work”. The definition of road work is not exhaustive and specifically includes the construction or installation of “any kind of work”, including a “roadway” and “tunnel” on or in the vicinity of a road for the purpose of facilitating its use as a road. Conferral of the function plainly carries with it the power to carry out that function, including, relevantly, the power to construct a new road. The power to carry out road work includes the power to construct a tollway.

49. The primary judge made an unchallenged factual finding that the mainline tunnel as part of the WestConnex project was approved as State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act: at [53]. Under s 64(1A), the effect of the approval of the project under the Environmental Planning and Assessment Act was to empower RMS to “exercise the functions of a roads authority with respect to any road” for the purposes of the carrying out of the WestConnex project. The plain purpose of s 64(1A) of the Roads Act is to confer on RMS “the functions of a roads authority” in respect of a road where RMS is not “the roads authority” for that road under s 7. Section 71 empowers a “roads authority” to “carry out road work” “on any public road for which it is the roads authority” and “on any other land under its control”. “[T]he functions of a roads authority” which s 64(1A) confers upon RMS includes the function of constructing a road.

50. To confine the function in s 71 when conferred on RMS by operation of s 64(1A) to the carrying out of road work on a “public road” for which RMS was the “roads authority” would add nothing to what s 71 already confers on RMS in its direct application when RMS is the “roads authority” for that road. The appellants’ suggested construction would give s 64(1A) no work to do and should be rejected for that reason.

51. That this is the correct interpretation of s 64(1A) is confirmed by reference to s 52 under which the road here in question has been classified as a “tollway”. Section 52 specifically authorises that classification for “any road proposed to be constructed on land … to be owned by RMS”. Thus, s 52 expressly contemplates that a “tollway” may be a road to be constructed by RMS on land to be owned by it in the future and is plainly consistent with the Roads Act otherwise authorising RMS to undertake that expressly contemplated construction activity. The appellants’ suggested construction gives rise to an incoherent result.

52. By operation of s 64(1A), the function of carrying out the original construction of the road for the purposes of the WestConnex project was conferred on RMS. Construction of the road for the purposes of the WestConnex project is thus a purpose of the Roads Act within the meaning of s 177. The acquisition of the appellants’ land for this purpose was therefore authorised under s 177.

53. Although not necessary so to decide, given the clear operation of s 64(1A), the primary judge was correct to conclude that the same conclusion could be reached by operation of ss 63 and 64(1). In relation to s 63, a ministerial direction was given. The effect of that direction was all “the functions of a roads authority” in respect of the proposed tollway becoming exercisable by RMS. Under s 64(1), RMS was authorised to exercise “the functions of a roads authority” with respect to “any classified road whether or not that road is a public road”. This includes a road such as the present road which has not been classified as a public road but rather as a “tollway”.

54. For these reasons the primary judge was correct to reject the appellants’ challenge to the validity of the proposed acquisition notices in this case.

Conclusion

58. It is unnecessary to determine the possible ambit of relief available to the appellants if they had succeeded in the appeal. The appellants accept that by registration RMS obtained the benefit of an indefeasible title. If the appellants had succeeded, difficult questions would arise about possible exceptions to indefeasibility and about whether the state of the evidence before this Court would permit orders to be made beyond bare declaratory relief. As the appellants have failed to demonstrate that the primary judge’s orders should be set aside there is no occasion to address possible relief that would have been available if the appellants had succeeded.

59. It is for these reasons that I joined in the orders of the Court made on 20 August 2019.

60. BRERETON JA: I have had the benefit of reading in draft the reasons to be delivered by Payne JA, which encapsulate my own reasons for joining in the orders made on 20 August 2019, and with which I agree.

61. EMMETT AJA: This hearing was concerned with the validity of two notices given to Rosario Cappello and Maria Cappello (the Owners) under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The notices related to two parcels of land situated in Haberfield owned by the Owners. The Owners challenged the validity of the notices in proceedings brought in the Common Law Division of the Supreme Court of NSW against the respondent, Roads and Maritime Services (RMS). On 18 April 2019, a judge of the Common Law Division refused the relief sought and dismissed their proceedings.

62. The Owners applied to this Court for leave to appeal. On 20 August 2019, at the conclusion of oral argument, the Court granted leave to appeal and dismissed the appeal with costs. The reasons for those orders were reserved. The reason for adopting that course was the imminence of work proposed to be undertaken on the Haberfield land by RMS. I have had the opportunity of reading in draft form the proposed reasons of Payne JA for joining in the orders made on 20 August 2019. The reasons proposed by his Honour are also my reasons for joining in those orders.

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Endnotes

Decision last updated: 16 September 2019