Halcyon Waters Community Pty Ltd v Chief Executive, Gold Coast City Council
[2010] QLC 138
•11 November 2010
LAND COURT OF QUEENSLAND
CITATION: Halcyon Waters Community Pty Ltd v Chief Executive, Gold Coast City Council [2010] QLC 0138 PARTIES: Halcyon Waters Community Pty Ltd
(applicant)v. Chief Executive, Gold Coast City Council
(respondent)FILE NO: AQL359-09 DIVISION: General Division PROCEEDING: General Application DELIVERED ON: 11 November 2010 DELIVERED AT: Brisbane HEARD AT: Brisbane PRESIDENT: Mrs CAC MacDonald ORDER: 1. The respondent's claim for a set off for enhancement of the Flebus land pursuant to s.20(3) of the Acquisition of Land Act 1967 (the Act), in paragraphs 21 – 26A of its further amended summary of facts and contentions dated 5 August 2010 is struck out.
2. The respondent is to pay the applicant’s costs of and incidental to the general application filed on 17 August 2010 unless the respondent contends that some other order ought to be made, in which case:
(i) The respondent is to file and serve any submissions within 14 days;
(ii) The applicant is to file and serve any response submissions within 14 days of receipt of the respondent's submissions;
(iii) The respondent is to file and serve any reply within seven days of receipt of the applicant's submissions;
(iv) The Court will decide the question of costs on the written submissions of the parties without the need for oral argument.
CATCHWORDS: Practice and procedure - interlocutory application to strike out part of exchanged statement of facts and contentions - whether such statement constituted "pleadings" - relationship between Land Court Act (and Rules) 2000 and Uniform Civil Procedure Rules 1999 - exchanged statement not pleadings - but sufficient to define issue in dispute - Land Court Act s.7.
Resumption - enhancement - whether allegedly enhanced lots need to adjoin resumed land - other unenhanced lots separated resumed and "enhanced" lots - relevant provision refers to land, not lots - balance land comprised unenhanced and enhanced lots - Acquisition of Land Act 1967 s.20(3).
Resumption - enhancement - resumed and balance land separated by road - whether "adjoining" land under s.20(3) Acquisition of Land Act 1967 - whether need to be physically contiguous - depends on context and purpose of Act - contrast other provisions on severance and injurious affection where "adjoining" not mentioned - balance land held not "adjoining".
APPEARANCES: Mr D Gore QC for the applicant
Mr B Cronin of counsel for the respondentSOLICITORS: Anderssen Lawyers for the applicant
Gall Standfield & Smith for the respondent
Introduction
The principal proceedings in this matter concern a claim for compensation in the sum of $16,060,000 plus disturbance and interest, by Halcyon Waters Community Pty Ltd (the applicant) in respect of the resumption of land under the provisions of the Acquisition of Land Act 1967 (the Act) by the respondent Gold Coast City Council. The land was resumed on 24 April 2008 for park, recreation ground and road purposes.
On 17 August 2010, the applicant filed a general application in this Court which was subsequently amended to seek the following Orders -
1.That paragraphs 21 - 26 of the respondent's further amended summary of facts and contentions and further amended response to the applicant's statement of facts and contentions be struck out.
2.Such further other orders as may be necessary, desirable or just as a consequence of the granting of the relief referred to above.
3.Costs of and incidental to the application.
This decision deals with that general application pursuant to s.19(2) of the Land Court Rules 2000.
Prior to the resumption, the applicant was the owner of Lot 11 on SP 204098 (the parent parcel). Lot 11 was 19.11 ha in size, was bisected by the Halcyon Way Road Reserve into a northern part and a southern part and was situated at 1 Halcyon Way, Hope Island, Gold Coast.
The northern part of Lot 11 was the land taken by the resumption (the resumed land). The resumed land had road frontages to Broadwater Avenue and Halcyon Way and was 4.35 ha in size.
The southern part of Lot 11 (the retained land) had a road frontage to Halcyon Way and was 14.76 ha in area.
Lots 131 and 130 on RP 79932 lie immediately to the east and north-east of the parent parcel. The claimant had no estate or interest in Lots 130 and 131. Lot 131 and part of Lot 130 were resumed in the same Taking of Land Notice and for the same purposes as the resumed land. The respondent's further amended statement of facts says that an extension of Halcyon Way was to be constructed through Lot 131 and part of Lot 130 and east through Lots 129 and 128, and, also, a road was to be constructed through Lot 130 to the intersection at Broadwater Avenue.
Lots 129 and 128 (the Flebus land) lie immediately to the east of Lot 130. The southern boundary of Lot 129 forms part of the north-eastern boundary of the retained land. Lot 128 meets the retained land at one point only but shares a common boundary with Lot 129.
Paragraphs 21 to 26 of the respondent's further amended summary of facts and contentions and further amended response to the applicant's statement of facts and contentions assert that Lots 128 and 129 have been enhanced by the resumption. The enhancement was particularized as follows -
21. Lots 128 and 129 on RP 79932 are located at 68 - 78 Broadwater Avenue, Hope Island (the enhanced land)
21A. Immediately prior to the publication in the Gazette on 24 April 2008 of "Taking of Land Notice (No. 14) 2008" the resumed land was part of Lot 11 on SP 204078 (the parent parcel).
21B. Immediately prior to the resumption the enhanced land adjoined the parent parcel.
22. On 23 March 2007 the respondent received an application for a development permit for Material Change of Use on behalf of Halcyon Days Pty Ltd (Halcyon Days) to establish an aged persons accommodation, assisted/independent living units and medical centre. (Stage 3 application) and reconfiguring a lot (4 lot subdivision and road reserve) on the enhanced land.
23. By letter from Bennett and Bennett on behalf of Halcyon Days to the respondent dated March 2007, the Stage 3 application was presented to the respondent as a relocation of the aged care facility which had been approved for the resumed land.
24. Prior to the resumption of the resumed land, Halcyon Management Pty Ltd on behalf of the applicant made representations by letter dated 18 April 2008 to the respondent that it required the Stage 3 application to be "fast tracked" as part of a settlement proposal with respect to the resumed land.
25. On its website and in its newsletter entitled "Halcyon Days" the applicant has presented the Stage 3 application as a stage of the overall development of the Village to the respondent, to the residents of the village and to persons viewing those communications.
26. The applicant has an interest in the enhanced land. Such interest is inferred from -
a. the matters referred to in paragraphs 22 to 25 above
b. the fact of there being common shareholding in both the applicant and Halcyon Days.
c. the fact that there are common directors and officers in both the applicant and Halcyon Days.
d. the fact that both the applicant and Halcyon Days operate from the same address and develop, manage or conduct a common or integrated business from 1 Halcyon Way, Hope Island.
e. the fact of the interrelationship between the activities or the development conducted on the retained land and the proposed development of the enhanced land.
f. the fact that the applicant and Halcyon Days are related entities as that term is used in the Corporations Act 2001.
26A. The applicant's interest in the enhanced land has been enhanced by the carrying out of the works or purpose for which the resumed land was taken by reason of:
a. the improved access to the enhanced land by the construction of the extension of Halcyon Way through the resumed lands Lots 130 and 131 and east through the enhanced land and by the construction of a road through Lot 130 to the intersection at Broadwater Avenue;
b. the enhanced land has greater potential for use for aged care by reason of the resumption of the resumed land which had previously been approved for aged care, thereby improving the potential for use of aged care on the enhanced land;
c. the development of sporting facilities on the resumed land has the effect of making aged care facilities on the enhanced land more desirable because of the ability for aged persons to be close to and have interaction with persons engaging in sporting activities.
Whether Pleading Bad in Law
Section 20(3) of the Act provides -
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken."
Senior counsel for the applicant, Mr Gore QC, submitted that the respondent's further amended summary was bad in law because it did not plead an integral element of s.20(3), that is that the Flebus land adjoined the resumed land. Rather, paragraph 21B of the respondent's summary relied upon an allegation that the Flebus land adjoined the parent parcel. Mr Cronin responded that paragraph 21B was an allegation of fact that satisfied s.20(3).
In this jurisdiction formal pleadings are rarely exchanged between the parties. There is no provision in the Land Court Act 2000 or the Land Court Rules 2000 for the exchange of pleadings although s.4(1) of the Land Court Rules provides that where the Land Court rules do not provide for a matter and the Uniform Civil Procedure Rules 1999 (the UCPR) would provide for the matter, the uniform rules apply with necessary changes. Chapter 6 of the UCPR sets out the rules of pleading to be observed in certain Supreme Court proceedings and, it has been held, those rules apply to Land Court proceedings where pleadings have been exchanged.[1] However s.4 of the Land Court Rules and Chapter 6 of the UCPR are to be read subject to s.7(b) of the Land Court Act which provides that the Land Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
[1] CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade [2010] QLC 0037 at [21].
In this case, the exchange of statements of facts and contentions and other information between the parties has proceeded in accordance with directions issued by me from time to time. While the statements of facts and contentions are intended to identify the issues, there had been no suggestion, prior to Mr Gore's submission, that they constituted pleadings. In my opinion, they do not. It is unnecessary therefore to consider whether the respondent's further amended summary complied with the technical requirements for pleading because I consider that the respondent's statement of facts in paragraph 21B is sufficient to identify the relevant issue.
The Application
The basis of the application that paragraphs 21 to 26 of the respondent's facts and contentions should be struck out was that those paragraphs did not disclose a reasonable claim or defence because -
(1) the Flebus land was not "adjoining the land taken or severed therefore from" for the purposes of s.20(3) of the Acquisition of Land Act;
(2) there was no allegation that the Flebus land has been enhanced "by the carrying out of the works or purpose for which the (resumed land) was taken" for the purposes of s.20(3) of the Acquisition of Land Act ("the no nexus point"); and
(3) the claimant did not have any "interest" in the Flebus land for the purposes of s.20(3) of the Acquisition of Land Act.
At the hearing of the general application, counsel for the respondent, Mr Cronin, said that the issue of the interest of the applicant in the Flebus land was a matter to be determined at a later time and the application was to be determined on the assumption that the applicant had an interest in the Flebus land. This decision therefore proceeds on that basis and does not deal with the question of whether the applicant had any or any sufficient interest in the Flebus land for the purpose of s.20(3) of the Act.
Mr Gore submitted that the Flebus land was not land "adjoining the land taken or severed therefrom" for the purposes of s.20(3) of the Act. Further, the retained land did not adjoin the resumed land because the two parcels were separated by a road, Halcyon Way. There is a long line of authority, Mr Gore said, which shows that the word "adjoining" is ordinarily used in the narrow sense of "in physical contact with". That was the meaning of "adjoining" in s.20(3).
Whether the Flebus land adjoins the resumed land
I shall deal first with Mr Gore’s submissions concerning the Flebus land, on the assumption, for the present, that the retained land adjoins the resumed land. While it is clear that the Flebus land, considered as a separate parcel, is not physically contiguous with the resumed land, the decision of the Court of Appeal in Queensland v Springfield Land Corporation (No 2) Pty Ltd[2] indicates that any issue as to the extent of land said to be enhanced under s.20(3) is to be resolved by considering the relevant land as a whole rather than lot by lot.
[2] (2009) 171 LGERA 38 at 40.
In Springfield the landowner held a large parcel of land in the vicinity of the resumed land. The parcel was divided into a number of lots. Only some of those lots were physically contiguous with the resumed land. One of the issues was whether the whole of the landowner's remaining parcel was "land adjoining the land taken" within the meaning of s.20(3) or whether it was only those lots which were physically contiguous to the land taken which constituted "land adjoining the land taken". The Court of Appeal held that the enhancement of the whole of the appellant's remaining landholding, including the lots immediately adjoining the land resumed, was to be taken into account. Keane JA said that the text of s.20(3) did not reveal any concern as to the means whereby a claimant for compensation evidenced its ownership of the land. It is the value of the land adjoining the land taken which is significant not the evidence by which ownership of that land is proved. Further, a purposive approach to s.20(3) indicated that it was impossible to attribute to the legislature an intention that the amount of compensation payable to a landowner might vary depending on whether the balance of the land retained by the landowner is contained in one or a hundred titles. His Honour continued[3] -
"The evident purpose of s 20(3) of the Act is to ensure that a landowner whose land is taken for public purposes is compensated for, but not aggrandised by reason of, the acquisition. That purpose is not well served by an interpretation of s 20(3) under which a landowner benefited by the construction of a road adjoining its land is benefited more generously if that adjoining land has been subdivided into several lots for the purposes of title registration than if it is held under one title."
[3] At 54.
In the present case, the accepted facts are that the retained land was not enhanced by the resumption. However it appears that the Flebus land may have been enhanced. Mr Gore submitted that s. 20(3) required the land adjacent to the resumed land to be enhanced. There was no suggestion in Springfield of leapfrogging from the resumed land to a parcel that did not abut the resumed land.
Mr Cronin's submission was that it was sufficient for the purposes of s.20(3) that enhancement be shown to any part of the land which adjoined the resumed land.
I have accepted Mr Cronin's argument in this regard. The effect of the decision in Springfield is that the claimant's interest in the whole parcel of any land adjoining the resumed land is to be considered in determining any question of enhancement. As P McMurdo J pointed out in Springfield (at first instance)[4] the Act distinguishes between land and a lot or lots, and s.20(3) refers to land adjoining, not a lot or lots adjoining. Since Lot 129 adjoins the retained land and Lot 128 adjoins Lot 129, I consider that, for the purposes of s.20(3), the relevant land to be considered for the purpose of any enhancement comprises the retained land plus Lots 129 and 128, which I shall collectively refer to as the balance land.
[4] (2009) 169 LGERA 284 at [32], [33].
Whether the balance land adjoins the resumed land
The balance land is separated from the resumed land by a road, Halcyon Way. A copy of registered survey plan SP 189375 appended to Mr Standfield's affidavit filed on 9 July 2010 shows that Halcyon Way was created as a road on 13 September 2006. At that time, the parent parcel comprised one lot, Lot 1 on SP 189375 bisected by Halcyon Way. Immediately prior to the resumption the parent parcel was described as Lot 11 on SP 204098, also bisected by Halcyon Way.
As noted above, Mr Gore submitted that the retained land did not adjoin the resumed land because the two parcels are separated by Halcyon Way which, he said, was a public road.
The authorities cited by counsel for both parties indicate that courts have interpreted the word "adjoining" both narrowly and widely. The strict or narrow view is that "adjoins" means physical contiguity. The wider or looser interpretation is that the word means in close proximity to.
The difference between the two approaches is illustrated by consideration of two decisions. In New Plymouth Borough Council v Taranaki Electric-Power Board[5] the relevant legislation provided that a Council may "contract with the local authority of any adjoining district" to supply electricity. The Privy Council said that the primary meaning of "adjoining" is "coterminous" but acknowledged that the word is also used in a looser sense as meaning "near" or "neighbouring". Their Lordships then cited with approval the judgment of Lord Hewart CJ in Spillers, Ld v Cardiff (Borough) Assessment Committee[6] that -
"It ought to be the rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament correctly and exactly, and not loosely and inexactly. Upon those who assert that that rule has been broken the burden of establishing their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning must be preferred."
[5] [1933] AC 680 at 682.
[6] [1931] 2 KB 21 at 43.
In Hornsby Shire Council v Malcolm,[7] Kirby P said that the word "adjoins" normally means to abut on, to be in contact with or to lie or be next to (citing the Macquarie Dictionary). His Honour then examined the context in which the word appeared including the mischief at which the relevant policy was directed, and went on to say that -
"Words in the English language are constantly changing their primary meanings as any dictionary demonstrates. The word "adjoins" is no exception. Whereas originally it might well have connotated immediate physical contiguity, nowadays that idea tends to require the use of the adverb "immediately", such as "immediately adjoins". That adverb would not be necessary if the word itself invariably connotated immediate physical proximity."
[7] (1986) 60 LGRA 429 at 433, 434.
Numerous authorities were cited by counsel in support of their respective submissions. Those cases indicate that there is no simple rule or test that can be applied to determine whether the wide or narrow meaning is to be applied to the word "adjoining". Rather, the approach to be adopted is to examine the statutory context in which the word appears as well as the purpose of the legislation as a whole.[8]
[8] See for example Harding v The Board of Land and Works (1882) 8 VLR (L) 402 at 411, 412; New Plymouth Borough Council v Taranaki Electric-Power Board [1933] AC 680 at 682, 683; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433, 434.
In my opinion the most factually relevant of the cases cited concerned legislation akin to the Acquisition of Land Act. In Minister of Works v Antonio[9] the landholder originally held 76 acres used for grazing purposes. The land was divided into two sections by a public road. One of these sections, an area of 54 acres, was compulsorily resumed for sewerage works. Relevantly, the owner claimed compensation for injurious affection to his remaining land. Section 12(1)(c) of the Compulsory Acquisition of Land Act 1925 (SA) provided that in determining compensation for compulsory acquisition, regard should be had to "the damage (if any) to other land adjoining the land taken or severed therefrom of the person entitled to compensation …". Having recognised that the word "adjoining" might be used in a wide or narrow sense, Hogarth J considered relevant authorities including New Plymouth Borough Council v Taranaki Electric-Power Board[10] and Harding v The Board of Land and Works.[11] He concluded that the word should be given its natural and primary meaning that is "to be contiguous with or in contact with". Accordingly, he held that the subject land did not adjoin the land retained by the defendant because the two sections had been separated by the road.[12]
[9] [1965] SASR 54.
[10] [1933] AC 681.
[11] (1882) 8 VLR (L) 402.
[12] [1965] SASR 54 at 62.
In Harding v The Board of Land and Works the landowner owned land which, prior to the resumption, was separated into two portions by a public road. Part of the northern portion was resumed for railway purposes. The relevant statute provided that, in assessing compensation, the jury "shall take into consideration the enhancement in value of the adjoining land belonging to the person to whom compensation is to be made …". The majority held that words used in a statute are to be given their ordinary and natural meaning unless the intention of Parliament that the words are to be otherwise construed is made apparent either by express words or necessary intendment. The learned judges said –
"Land separated from other land by a public road, the legal estate in the soil of which is in another person, cannot, in our opinion, be said to adjoin the latter land – it is separated."[13]
[13] (1882) 8 VLR (L) 402 at 411-412.
The meaning to be applied to the word "adjoining" as used in s.20(3) was left open by P McMurdo J in Queensland v Springfield Land Corporation (No 2) Pty Ltd[14] because, his Honour said, it was not an issue to be resolved since the applicant had accepted that, in the statutory context of s.20(3), "adjoining" meant physically contiguous.
[14] (2009) 169 LGERA 284 at 299.
The Macquarie Dictionary defines "adjoining" to mean "bordering or contiguous". Its primary meaning therefore connotes physical contiguity. The context in which s.20(3) appears is illuminating.
Section 20 of the Acquisition of Land Act deals with the assessment of compensation for compulsory acquisition of land. As at the date of acquisition, s.20(1) provided that –
20 Assessment of compensation
(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely -
(a)the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land."
It is to be observed that s.20(1)(a) refers to damage caused by the severing of the land taken from "other land" of the claimant and to the exercise of statutory powers injuriously affecting the claimant’s "such other" land. The word "adjoining" is not used. Thus the decision in Gold Coast City Council v Suntown Pty Ltd[15] which held that compensation was available for injurious affection to the retained land where the land which had been resumed did not immediately adjoin the land retained is entirely consistent with the terminology used in s.20(1)(a).[16] Moreover the decision says nothing about the meaning of the word "adjoining" in s.20(3).
[15] (1979) 6 QLCR 196.
[16] See also Crisp & Gunn Co-operative Ltd v City of Hobart (1963) 37 ALJR 255; Holt v The Gaslight and Coke Company (1872) LR 7 QB 728; Cowper Essex v Acton Local Board (1889) 14 App Cas 153 and Wilson v The Minister (1908) 8 SR (NSW) 427.
By way of contrast with s.20(1), s.20(3) provides that any enhancement of the value of the interest of the claimant "in any land adjoining the land taken" is to be taken into account in assessing compensation. The difference in terminology indicates, in my opinion, an intention on the part of the legislature to limit the extent of any enhancement that is to be taken into account under s.20(3). I consider therefore that the word "adjoining" as used in s.20(3) should be given its primary meaning, that is it should be construed as referring to land which immediately adjoins or is physically contiguous with the land taken. On that basis I do not consider that the balance land adjoined the resumed land within the meaning of s.20(3) because the two portions of land were separated by the road reserve.
In my opinion this conclusion is not inconsistent with the statement of the Court of Appeal in Springfield (quoted at [18] above) that the evident purpose of s.20(3) is to ensure that a landowner whose land is taken for public purposes is compensated for, but not aggrandised by reason of, the acquisition.[17] As noted above, the Court in Springfield was not concerned with the question of whether "adjoin" means "physically contiguous with" or "in close proximity to".
[17] Queensland v Springfield Land Corporation (No 2) Pty Ltd (2009) 171 LGERA 38 at 54.
My conclusion is also not affected by the fact that, prior to the resumption, the evidence is that the resumed land and the retained land were parts of the same lot, Lot 11 on SP 204098, although separated by the road. Mr Cronin said that the two parts of the lot were connected by a vinculum, prior to resumption, but this was not evident on the copies of the survey plans in evidence. In any event, it was pointed out in Springfield that the Act distinguishes between land and a lot[18] so that the question is whether prior to the resumption the two sections of the applicant's land adjoined, irrespective of how title to the land was held.
[18] Queensland v Springfield Land Corporation (No 2) Pty Ltd [2009] 169 LGERA 284 at [32], [33].
The respondent has not based its enhancement submission on severance and there is, therefore, no need to consider that issue.
Because I have concluded that the balance land did not adjoin the resumed land, I consider that paragraphs 21-26A of the respondent's further amended summary of facts and contentions should be struck out. Unless there are submissions to the contrary, the respondent must pay the applicant's costs to be assessed on the standard basis.
Orders
1.The respondent's claim for a set off for enhancement of the Flebus land pursuant to s.20(3) of the Acquisition of Land Act 1967 (the Act), in paragraphs 21 – 26A of its further amended summary of facts and contentions dated 5 August 2010 is struck out.
2.The respondent is to pay the applicant's costs of and incidental to the general application filed on 17 August 2010 unless the respondent contends that some other order ought to be made, in which case:
(i)The respondent is to file and serve any submissions within 14 days;
(ii)The applicant is to file and serve any response submissions within 14 days of receipt of the respondent's submissions;
(iii)The respondent is to file and serve any reply within seven days of receipt of the applicant's submissions;
(iv)The Court will decide the question of costs on the written submissions of the parties without the need for oral argument.
CAC MacDonald
PRESIDENT OF THE LAND COURT
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