Daniells v Caboolture Shire Council

[2000] QSC 38

SUPREME COURT OF QUEENSLAND

CITATION:

Daniells v Caboolture Shire Council [2000] QSC 038

PARTIES:

DANIELLS

(applicants)
v

CABOOLTURE SHIRE COUNCIL
(respondents)

FILE NO/S:

S8491/99

DIVISION:

Trial Division

PROCEEDING:

Application for Statutory Order for Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2000

JUDGE:

Williams J

ORDER:

Application dismissed with costs.

CATCHWORDS:

JUDICIAL REVIEW – acquisition of land by local authority for road purposes – whether decision within power – availability of road reserve at great cost – whether factors personal to applicants outweigh other considerations.

Acquisition of Land Act 1967 (Qld)
Judicial Review Act 1991 (Qld)
Local Government Act 1993 (Qld)

COUNSEL:

Mr A Garnham for applicants
Mr M Hinson SC for respondent

SOLICITORS:

Maskiells Solicitors for respondent

1. J:Williams This is an application pursuant to the Judicial Review Act 1991 for a statutory order of review of a decision of the respondent, the Caboolture Shire Council. The applicants, Terry Rowan Daniells and Kym Daniells, are the registered proprietors of Lot 7 on R P 202828, situated at 398 Jackson Road, Wamuran. The decision of the respondent, made on 17 August 1999, was that the respondent should proceed with the acquisition for road purposes of part of the applicant’s land pursuant to the provisions of the Acquisition of Land Act 1967.

1. The applicants acquired Lot 7, which has an area of approximately 22 acres, on 8 January 1999.  At that time most of the land was used for a banana plantation; there are some 3000 Cavendish banana trees on the land.  The previous owners had successfully carried on a banana growing business and the applicants had reasonable expectations that carrying on that activity would be profitable for them.

1. A number of banana plantations in the general area had been affected over recent years by Panama disease, which is destructive of certain banana crops, particularly Cavendish.  Once the disease is present in the soil those varieties cannot be grown.  The soil contamination is often permanent.  The fungus is soil and water borne, so the risk of contamination is great.  It would appear that it was fortunate that over recent years the applicants’ land had not become contaminated.  If reasonably strict quarantine measures were taken then the applicants’ land could remain unaffected indefinitely.  But equally it has to be conceded that there was always, and always will be,  a risk that the property would become affected by the disease.

1. Whilst the disease is destructive of Cavendish bananas there are other varieties which are resistant to it.  If the applicants’ land were to become contaminated with the disease it would be some 3 years before a crop of a variety immune to Panama disease was ready for marketing.  That indicates the scope of the loss the applicants’ might suffer if their land became contaminated.

1. Original survey plan No CG 54 dated 28 February 1902 identifies a road reserve; then there was no more than an access track.  That has now become Jackson Road.  At the top of the ridge near the applicants’ land the road reserve was quite wide; as I read the plan the reserve included land on either side of the peak of the ridge. The evidence indicates that in about June 1958 one Lindsay applied to the State Government for a special lease over most of the road reserve. That application was granted leaving a strip about one chain (20 metres) wide as the road reserve.  The land retained as the road reserve was along the southern boundary of the original reserve; that meant that the chain wide road reserve was on the southern side of the peak of the ridge.  Lindsay’s land was given the description Portion 73 on Plan No CG 2344; it has now become Lot 7, the applicants’ land.

1. Later in 1962 survey plan CG 2542 was prepared.  That showed the chain wide road reserve and Portion 73.  It shows the road reserve as it still formally exists today.

1. Lindsay assigned the special lease to his brother-in-law, John Gray, in about 1962, and about that time Gray bulldozed and upgraded the old Jackson Road access track.  It would seem that at least from about that time the track, as formed, followed the peak of the ridge.  That meant that it did not follow the road reserve but cut across part of Portion 73.  Traffic using the track increased as time went on and in about March 1997 the respondent graded and formed up Jackson Road to make it trafficable.  Until then for much of the year only a 4 wheel drive vehicle could negotiate the track.  When the respondent upgraded the track to form Jackson Road it followed the route of the existing track; thus part of the road traversed Portion 73 rather than followed the road reserve.  It would appear that the actual position of the road was marked on a number of maps.

1. That was the situation when the applicants acquired the subject land and became registered proprietors on 31 March 1999. That meant that Jackson Road as formed by the Council traversed part of the land owned by the applicants.

1. The applicants’ banana plantation was on the northern side of the peak of the ridge to which reference has been made.  In other words the existing road reserve was on the southern side of the peak of the ridge, the road as formed or constructed ran along the approximate peak of the ridge, and the banana plantation was on the northern side of the peak of the ridge.

1. At some time in the early part of 1999, probably around April, the applicants became concerned that the use by vehicles of Jackson Road as formed constituted a threat to their banana plantation.  The concern was that dust and water run-off associated with that use could result in their property becoming contaminated with Panama disease.  Because of that they took the decision to close off Jackson Road as formed where it passed through their property.  That threat was of concern to other land owners in the district whose primary access to Caboolture and other centres was Jackson Road.  A number of those road users raised their concerns with the respondent. 

1. C D Moorhead, the Chief Surveyor with the respondent, inspected the road as formed and the road reserve.  On one occasion at least Moorhead was accompanied by J H Mills, the respondent’s Works Supervisor, when making an inspection, but the date of that joint inspection is not established by the evidence.

1. The problem was raised at a meeting of the respondent Council on 20 April 1999.  The minutes of that meeting record the following:

“Executive Summary

Jackson Road, Wamuran, is located, in part, outside of the road reserve.  This report recommends acquisition of land to locate the road within the road reserve. 

Background

Investigations have shown that the formation of part of Jackson Road, Wamuran, encroaches on Lot 7 on RP 202828 as shown on Drawing No A3/1261-03 (refer attachment folder).  The land is owned by Mr T and Mrs K Daniells (purchase from Mr D M Gray not yet registered).  Mr and Mrs Daniells have suggested that the road be closed.

The formation of Jackson Road has been upgraded in recent years to a trafficable standard.  The road follows the historic coach and bullock team route and was confirmed by surveys in 1908.  In 1961, Jackson Road was reduced in width to 20 metres to create Portion 73 (now Lot 7 on RP 202828), however, there was no consideration of the physical road location.  As a result the road is not located within the designated road reserve. 

The road is used a short cut  from Mount Mee to Old North Road and Bellmere.

The owners will not agree to Council acquiring the land required to locate the road within a road reserve and have requested that the road be closed to traffic. 

A site inspection has confirmed that the slope of the land precludes construction of the road within the existing reserve.

Financial Implications

Compensation is estimated at $2,500 with costs of $2,000 to be charged to miscellaneous truncations.

Conclusion

Considering the current use of Jackson Road, closure of the road to traffic is not an option.  The Acquisition of Land process gives the owners ample opportunity for discussion and negotiation.

Recommendation

That Council give notice to acquire under the provisions of the Acquisition of Land Act of 1967 for road purposes the land described as part of Lot 7 on RP 202828 situated at 398 Jackson Road, Wamuran, containing an area of approximately 4,400 square metres and which is shown in Council’s Rates Database as being owned by Mr D M Gray.

Council Resolution

2.3.11 Acquisition of Land – 398 Jackson Road, Wamuran.
Moved by Cr G Chippendale, seconded by Cr S Grubb and carried that the recommendation be adopted.”

1. That decision would appear to be based on information provided by Moorhead (and perhaps Mills).  It was his view, after inspection, that the “severe slope of the land, which is approximately 22%, prevents construction of a road within the existing road reserve as the land is simply too steep.  To form it up and batter it and have it in suitable condition to form a road would be an extremely costly exercise for Council.”  That was also the view of Mills: “I simply could not recommend to Council that it build a road on the road reserve itself as the cost of that would be absolutely astronomical given the extremely steep terrain on the road reserve.  It would simply not be practicable to relocate the road formation to within the road reserve which would require forming up and battering the existing road reserve to have it in a suitable condition so as to create a road upon it because it would be such a costly exercise.”  In oral evidence Moorhead conceded that a road could be constructed on the existing reserve; that is, it could be done as a matter of engineering.  His assessment was that the gradient in the existing reserve was “too steep to meet safe standards within budgetary constraints”.

1. It should be noted that neither Moorhead nor Mills is an engineer.  Both, however, had had extensive experience with the local authority and were in a position to make an assessment of what was involved in the construction of the road.  In all probability Mills would have been in charge of any actual road upgrade, whether it be on the existing reserve or closely following the present route.

1. By letter dated 30 April 1999 the respondent informed the applicant of the decision reached at its meeting on 20 April.  The letter stated that it had “been decided to keep Jackson Road open to traffic” and went on: “To relocate the road formation to within the road reserve is not practical or cost effective because of the steep terrain and unacceptable grades within the road reserve.”  The letter then indicated that either the applicants and the respondent could agree a value for the land the respondent wished to acquire or the respondent could compulsorily acquire it pursuant to the provisions of the Acquisition of Land Act.  The letter pointed out that if the latter course was adopted the applicants would have the right to lodge a formal objection.  It also indicated the willingness of the respondent to offer $2,500 for the land required.

1. That was followed by a formal Notice of Intention to Resume dated 21 May 1999.  The land to be resumed had an area of 4,400 square metres, more or less, and was delineated in red on a plan attached to the Notice.  The Notice informed the applicants of their right to make an objection in writing and detailed the time within which and place at which such objection should be lodged.  In accordance with the statutory provisions a summary of the relevant provisions of the Acquisition of Land Act was enclosed with the Notice.

1. Around that time, some of the dates are not made clear on the evidence, the applicants shut off access to that part of Jackson Road as formed which traversed their property.  Users of the road concerned by that contacted the respondent.

1. Then on 23 June 1999 the applicants lodged a formal Notice of Objection pursuant to the provisions of the Acquisition of Land Act.  The stated grounds of objection were:

“1.That other more suitable land is available to be acquired by the Council for the purpose referred to in the Notice of Intention to Resume.

2.That it is not necessary to resume the land.

3.That the acquisition of the land would affect the viability of the remaining land.”

1. Thereafter a number of facts and circumstances were set out in support of the grounds.  In general it was asserted that the road could be constructed on the existing road reserve.  It was also said that “the formation of a road on the subject land would preclude the objectors from controlling access to all of the remaining portion of their property.”  Under cross-examination Mrs Daniells did not give a meaningful explanation of what was meant by that.

1. At the meeting on 9 July following the lodging of the objection the applicants handed to the respondent a petition containing some 27 signatures purporting to support the objection of the applicants.  The wording of that petition appeared to support the closing of Jackson Road at the boundary of the applicants’ property.

1. A summary was prepared of the matters which were discussed at the meeting on 9 July.  That was included in the material which was before councillors on 17 August 1999 when the decision now under attack was reached.  For present purposes it is sufficient to record some of the matters discussed at the meeting and the response of Council officers.  The applicants asserted that water run-off  “from the section of road within the area to be acquired would discharge water contaminated with Panama disease into their banana plantation”.  The Council responded by undertaking to “provide sufficient drainage under Jackson Road to ensure all water discharged on to the road reserve to the south”.  That undertaking was made with respect to the portion of the road which ran through  the existing property of the applicants.  The applicants also contended that “contaminated dust from the traffic on the road in its current location would be blown by south-westerly winds, and that if the road was constructed within the road reserve, this would not be a problem”.  The response of the Council was that a bitumen seal would reduce the dust problem.  The applicants also expressed some concern that trespass on to their banana plantation by vehicles would be a problem.  The Council responded by pointing out that the situation would not be worsened by taking the land in question and constructing the road there.  The Council raised the possibility of meeting the cost of new fencing.  The end result was that the meeting failed to resolve the matters in dispute

1. The respondent then wrote to each of the signatories to the petition with a view to ascertaining in some more detail the views of those people.  A number of responses were received.  It is not necessary to refer to those responses in detail.  In the minutes of the meeting of the respondent on 17 August 1999 it is recorded that of the 29 letters sent out 13 replies were received, of which 5 agreed with the closure of the road and 8 disagreed.

1. The minutes of the Council meeting on 17 August 1999 record the history as outlined above; it will not be repeated.  But the minutes do record the following “comment” by officers of the respondent:

“1.The only land on which to build the road is the existing road reserve, which is too steep to meet safe standards of construction (e.g. grades up to 22%).

2.Although no property relies on this section of the road for sole access, the general public uses the route as an alternative access.  Mr Hughes (Lot 18 RP 902092) has stated that this section of road provides the only wet weather access to his property.

3.There is no intention by Council to change the location of the existing road formation, and therefore, most of the existing trees which form a windbreak can be excluded from the area to be acquired.”

1. The minutes went on to state that the “owners objections have not raised any matter which justifies not taking the land and there is not unanimous support for the closure of the road.”  The following resolution was then passed:

“That Council:

1.Proceed with the acquisition of land described as part of Lot 7 on RP 202828 shown edged in red on Council’s Plan No A3/1261-03 as attached to Notices of Intention to Resume dated 21 May 1999 and served upon the owners and that Council take all necessary steps pursuant to the provisions of the Acquisition of Land Act of 1967 to apply to the Minister for Natural Resources for the approval of the Governor in Council of the taking by Council of the land.

2.Inform Mr and Mrs Daniells of this recommendation accordingly and also of the results of Council’s survey.”

1. In response to a request from the applicants the respondent stated that the assessment of grades referred to in the minutes (22%) “were determined from contour information (DNR1: 25000 series) held by Council”.  A copy of that contour map was provided.

1. In support of its decision the respondent placed evidence before the court from other land holders (Hughes and Lindsay) in the vicinity.  The property owned by Hughes is on the opposite side of the road and his evidence is that the usual access (and the only wet weather access) to his property is along Jackson Road as formed.  Lindsay, a neighbour of the applicants, has regularly used Jackson Road as formed for many years and his evidence was to the effect that Jackson Road gives important access to his land.

1. The applicants’ case is essentially that the respondent failed to measure properly the gradients involved, and that a road constructed in the existing road reserve would not be too steep.  Further, they contend that the respondent failed to assess properly the financial cost of resuming land and upgrading the road where it is presently formed.  Part of their argument with respect to the latter point involves the proposition that the respondent failed to take into account the cost of effectively quarantining the applicants banana plantation from Panama disease.

1. In support of their case the applicants called an engineer, McDonald, and an agricultural consultant, Pulsford. 

1. Pulsford was primarily concerned with the increased threat of the applicants’ land being contaminated by Panama disease if the respondent proceeded with the resumption and upgrading of the road.  He conceded that the risk would be reduced if water run-off was drained to the southern side of the ridge and the road sealed.  It seems that if that were done properly the risk of contamination would be not significantly greater than if the road were constructed through the existing road reserve.  In his report Pulsford referred to some existing trees operating as a wind break and was concerned as to the consequences of their removal.  That would appear to be addressed by the Council resolution which indicated that “existing trees which form a wind break can be excluded from the area to be acquired”.

1. Whilst the issues raised by Pulsford are of great concern to the applicants, they have to be balanced against the needs of the wider community and assessed in the light of the right of the applicants to compensation.  It is clear that the respondent took the issues raised by Pulsford into account in arriving at its decision; they were specifically discussed at the meeting on 9 July.

1. McDonald expressed the view that a road could be constructed on the existing road reserve with an acceptable gradient.  He also pointed out that over a short distance the gradient of the road as presently formed was greater than what would be involved with a road on the existing reserve.  Again all of that can be accepted.  The real question is one of costs, a question McDonald did not consider.  He refers to a “siding cut” if a road were to be constructed on the existing road reserve, and the Council officers have referred to battering and the like.  There is no doubt that from an engineering point of view a road with acceptable gradients could be constructed.  The real question is whether or not that could be done at an acceptable cost.  The respondent came to the conclusion that it could not.

1. Counsel for the applicant placed reliance in his submissions on s 494 of the Local Government Act 1993 dealing with “matters relevant to good rule and government”. The applicants’ case was that, inter alia, the upgrading of the road would not promote or contribute to the economic development of the area. It was asserted that in order for the decision to be within power there had to be some “realistic material public benefit” created by it. I have come to the conclusion that s 494 is irrelevant for present purposes. It is found in that Part of the Act which deals with “Enterprises”; that appears to relate to the power of local authorities to conduct businesses. The construction of a road to afford access to properties owned by local residents is not the carrying on of an “enterprise” for purposes of that Part of the Act.

1. The applicants also attacked the decision on the basis that neither Moorhead nor Mills was a qualified engineer and in consequence the respondent had not taken proper advice before arriving at its decision.  However, as already noted, both Moorhead and Mills were experienced Council officers and were regularly involved in evaluating the cost of Council works such as this.

1. In submissions counsel for the applicants relied on a number of matters said to be made relevant to an application such as this by s 20(2) of the Judicial Review Act.

1. It was submitted that there was a failure by the respondent to observe procedures.  The argument as developed did not involve the suggestion that the respondent failed to observe the procedural requirements of natural justice or the procedural requirements provided for by the Acquisition of Land Act. Rather the submissions were directed to the respondent’s assessment that a satisfactory road could not constructed on the existing reserve for an acceptable cost. The attack was directed, for example, at the fact that Moorhead worked from a contour map rather than taking his own readings of the relevant gradients. The issues raised by counsel for the applicants under this head may well be relevant to the reasonableness of the decision reached by the respondent, but, in my view, they do not establish a failure to observe proper procedures within s 20(2)(b) of the Judicial Review Act.

1. Then it was submitted that the respondent took into account irrelevant considerations in arriving at the decision in question.  The first alleged irrelevant consideration was said to be “the respondent’s intention not to change the location of the existing road formation”.  It was submitted that it was improper for the respondent to take into consideration “its own opinion in the decision making process of deciding to acquire part of the applicants’ land”.  Frankly, I do not understand the import of the submission.  Any decision maker, in particular a local authority, must of necessity rely upon its own opinion or assessment of relevant considerations in arriving at a decision.  In certain cases some of those considerations may be of a general policy nature.  Frequently that will involve the decision maker taking into consideration its own opinion of relevant considerations.  I cannot see there is any substance in this submission.

1. It was also contended that the issue of “wet weather access” for Hughes was a matter for which he (Hughes) was solely responsible and was not one for which the applicants should be responsible.  Because of that it was said that the respondent erred in taking into account an irrelevant consideration, namely the question of access to Hughes’ property, in arriving at its decision.  The submission went so far as to contend that general public user of the road was also an irrelevant consideration.

1. The provision of local roads and the provision of such roads as are reasonably necessary to give land owners in the area access to and from their properties are clearly within the power and function of a local authority.  In the circumstances I reject the contention that the decision in question was vitiated because the respondent took into account the “irrelevant considerations” nominated by  counsel for the applicants.

1. Next it was submitted that the respondent failed to take into account relevant considerations.  Under this heading it was said that the respondent failed to determine the actual cost of acquisition and the cost of constructing the road on the resumed land.  It was said that any decision to resume made before final costs had been accurately determined was one which failed to take into account relevant considerations.  Again I reject that proposition.  There were clearly a number of competing considerations involved in the decision making process.  The comparative costs and comparative difficulty of constructing the road on the existing reserve and on the resumed land were relevant considerations, but it was not necessary to have precise figures in order to make a decision between the two.  Clearly the respondent directed its mind to what was involved in the construction of a road on the competing sites and to the broad cost factors involved in each.  It also directed its mind to the issue of compensation to the applicants.  It is sufficient to say that the evidence does not satisfy me that the respondent failed to take into account relevant considerations in arriving at its decision.

1. There is more substance in the applicants’ submission that the respondent’s exercise of its power was so unreasonable that no reasonable person could have arrived at it.  Under this heading it is appropriate to point to the absence of any detailed costing, the absence of any assessment by a qualified engineer of the problems and cost associated with the construction of a road on the existing reserve, and to the use of a contour map rather than specific independent readings to assess the relevant gradients.  But at the end of the day I am not convinced that such considerations make the decision of the respondent an entirely unreasonable and unsupportable one.  The respondent was entitled to rely on the advice of its experienced officers.  This was not a major construction project; it involved at most a few hundred metres of roadway.  It is clear from the evidence (in particular the meeting between the parties on 9 July) that the respondent’s attention was directed to the issues of concern to the applicants and they were addressed.  The respondent has given an undertaking to provide drainage which will ensure that water run-off is to the south and to provide a bitumen sealing to minimise, if not eliminate, dust.

1. Given the fact that the applicants’ property has been at risk for contamination by Panama disease for some time, and given that it is not possible to eliminate entirely that risk in the future, the minimal increase in risk associated with the construction of a road on the land proposed to be resumed does not make the respondent’s decision wholly unreasonable.

1. Finally it was contended that the result of the exercise of the power was uncertain.  The evidence does not support such a proposition.

1. The material clearly establishes the need for a formed road in the area in question.  It is necessary for general public use and in particular to provide all weather access to other properties in the vicinity of the applicants’ land.  The choice between constructing the road on the existing reserve or resuming that part of the applicants’ land where the road presently goes involved a balancing exercise.  There were a number of relevant factors for the local authority to take into account, and, in my view, the evidence does not disclose that its decision was unreasonable, or that there was no proper justification for the decision reached.

1. I reiterate that it is an important function of a local authority to provide local roads to meet the needs of the local community.  The law provides that where that can, in the view of the local authority, be best achieved by resuming privately owned land, the local authority has power to do so on compliance with the requirements of the Acquisition of Land Act.  That has all been done in this case.

1. I am not satisfied on the material that any ground has been established for setting aside the decision of the respondent.

1. The application should be dismissed with costs.