Head, Transport for Victoria v Lantrak Developments Pty Ltd (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2019 01454

HEAD, TRANSPORT FOR VICTORIA	Applicant
v
LANTRAK DEVELOPMENTS PTY LTD (ACN 070 998 908)	Respondent

S ECI 2021 02104

LANTRAK SOUTH EAST PROJECTS PTY LTD (ACN 163 791 811)	Plaintiff
v
HEAD, TRANSPORT FOR VICTORIA	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2021
DATE OF JUDGMENT:	25 November 2021
CASE MAY BE CITED AS:	Head, Transport for Victoria v Lantrak Developments Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 774

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LAND ACQUISITION – Land compulsorily acquired by the defendant in June 2014 – Offer of compensation made to registered proprietor of land pursuant to s 31, Land Acquisition and Compensation Act 1986 (Vic) – Plaintiff occupied the acquired land as monthly tenant at will – Plaintiff’s interest first identified in correspondence to defendant in February 2017 – Plaintiff first indicated nature of claim for compensation in December 2020 – Whether defendant obliged to make an offer of compensation to plaintiff pursuant to s 31, Land Acquisition and Compensation Act 1986 (Vic) – Defendant not obliged to make an offer – Plaintiff sought extension of time to make a claim under s 37, Land Acquisition and Compensation Act 1986 (Vic) – Whether time should be extended – Relevant principles – Long and unexplained delay – Fragile interest of plaintiff in acquired land – Application for extension of time refused – Proceeding dismissed – Land Acquisition and Compensation Act 1986 (Vic) ss 31, 37, 106 – Secretary to the Department of Transport v Provan’s Timber Pty Ltd [2020] VSCA 210, applied.

PRACTICE AND PROCEDURE – Further amended particulars of claim – Application to summarily dismiss or strike out part of the respondent’s claim for compensation in respect of disturbance losses – Claimed losses suffered by tenant at will and not by respondent – Part of claim summarily dismissed – Civil Procedure Act 2010 (Vic), ss 61, 63 – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 23.01, 23.02.

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Defendant	Ms L Hannon QC with Mr T Barry	Russell Kennedy
For the Respondent/Plaintiff	Mr SR Morris QC	HWL Ebsworth Lawyers

TABLE OF CONTENTS

The site at 150–170 Old Dandenong Road, Heatherton.......................................................... 2
Is the Authority obliged to make an offer to Projects?............................................................ 6
Projects’ submissions.......................................................................................................... 8
Authority’s submissions..................................................................................................... 9
Consideration..................................................................................................................... 11

Projects’ application to extend time......................................................................................... 16
Findings in relation to the delay...................................................................................... 18
Lantrak group of companies............................................................................... 20
Interests in the site and the acquired land........................................................ 21
Before the acquisition.......................................................................................... 21
After the acquisition............................................................................................. 22
Technical solutions are explored........................................................................ 26
Authority advised of Projects’ interest.............................................................. 29
Instructions to Ferrier Hodgson......................................................................... 30
Projects’ proposed claim..................................................................................... 32

Projects’ submissions........................................................................................................ 34
Authority’s submissions................................................................................................... 36
Consideration..................................................................................................................... 39
Length of delay..................................................................................................... 40
Explanation for the delay.................................................................................... 40
Merits of the proposed claim.............................................................................. 41
Prejudice................................................................................................................ 43

Authority’s summons................................................................................................................. 44
Authority’s submissions................................................................................................... 44
Developments’ submissions............................................................................................ 46
Consideration..................................................................................................................... 47

Disposition................................................................................................................................... 47

HER HONOUR:

These two proceedings arise from the compulsory acquisition in 2014 of land for the construction of the Dingley Bypass. Lantrak Developments Pty Ltd owns land at 150–170 Old Dandenong Road, Heatherton (the site), part of which was compulsorily acquired by the Roads Corporation (the Authority)[1] on 30 June 2014. Since July 2013, Lantrak South East Projects Pty Ltd has been an occupier of the site, on which it conducts a landfill business.
[1]Roads Corporation, also known as VicRoads, has since been abolished and, relevantly here, replaced by a corporation sole titled ‘Head, Transport for Victoria’.

The first proceeding (Developments proceeding) concerns a dispute between Developments and the Authority about the compensation payable to Developments for the acquisition of its fee simple interest in the acquired land. In December 2014, the Authority offered to pay $820,000 to Developments by way of compensation, comprising $790,000 for the market value of the acquired land, and a further $30,000 for consultant fees. While Developments did not accept the offer, the amount was paid during 2015 as an advance. Over many years, no agreement was reached between Developments and the Authority about the amount of compensation payable. The dispute was referred to the Court by the Authority on 4 April 2019, under s 80(b) of the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act).

In May 2021, I refused an application by Developments to join Projects as a party to the Developments proceeding.[2] I held that there was no ‘disputed claim’ by Projects that the Court had jurisdiction to determine, because Projects had never made a claim for compensation under s 37 of the LAC Act.[3] Section 37(2) of the LAC Act requires a claim for compensation under s 37 to be made within two years after the date of the acquisition.
[2]Head, Transport for Victoria v Lantrak Developments Pty Ltd [2021] VSC 259 (Lantrak No 1).
[3]Lantrak No 1, [30]–[36].

Projects subsequently commenced the second proceeding (Projects proceeding), in which it seeks declarations that the Authority is obliged under s 31(1) of the LAC Act to make an offer of compensation to it, and that, because the Authority has not made an offer to Projects to date, the time within which Projects may make a claim has not yet commenced. Alternatively, Projects seeks an order under s 106(1)(d) of the LAC Act, extending time for it to make a claim for compensation.

In the meantime, the Authority filed a summons in the Developments proceeding, seeking to have claims made by Developments in that proceeding summarily dismissed or struck out. The claims concern losses attributable to disturbance of the landfill business conducted on the site. The Authority contends that these claims do not relate to any loss suffered by Developments, which did not conduct the business on the site.

I heard the trial of the Projects proceeding and the Authority’s summons in the Developments proceeding together on 26 August 2021.

In the Projects proceeding, I have decided that the Authority is not obliged to make an offer to Projects under s 31(1) of the LAC Act, and that time should not be extended for Projects to make a claim under s 37(1). The Projects proceeding must therefore be dismissed.

In the Developments proceeding, I consider that the claims for disturbance losses made by Developments do not relate to the acquisition of Developments’ interest in the acquired land, and so have no real prospect of success. Those claims will be dismissed, and Developments will have an opportunity to reformulate its claim for compensation.

My reasons for those conclusions follow.

The site at 150–170 Old Dandenong Road, Heatherton

As at 30 June 2014, Developments was the registered proprietor of the site, comprising about 30 hectares of land at 150–170 Old Dandenong Road, Heatherton.

The site was acquired by Developments in 2007. It is an old sand quarry which is largely exhausted, leaving four main pits on the site. These pits, in particular the north-east pit, now contain slimes of clay particles suspended in water, a by-product of washing the sand extracted from the quarry.

The planning permit for the site allows its use for the purpose of sand extraction, and also requires the owner to reclaim and rehabilitate the site. The receipt of clean fill material to fill the voids created by extracting sand from the quarry is ancillary to the site’s permitted use.

A Work Authority issued under the now repealed Extractive Industries Development Act 1995 (Vic) applies to the site. The Work Authority continues in force under the Mineral Resources (Sustainable Development) Act 1990 (Vic).[4] On 18 January 2012, a delegate of the Head of the Department of Primary Industries (the Mining Regulator)[5] approved a Rehabilitation Plan, as a variation to the approved work plan under the Work Authority.
[4]Mineral Resources (Sustainable Development) Act 1990 (Vic), sch 7 item 2.
[5]The Mining Regulator is now located within the Department of Jobs, Precincts and Regions and is designated ‘Earth Resources Regulation’.

The Rehabilitation Plan involves backfilling the pits with clean solid inert material, treated acid sulphate soils, and clean capping. A necessary part of the rehabilitation process is compacting the slimes in the pits, using the weight of the fill material. Backfilling and compaction is proposed to fill the pits ‘to a gentle mound with a subdued gradient’, which will be top dressed and grassed. The Rehabilitation Plan anticipated ‘rehabilitation to a safe and stable landform’ over a five-year period — that is, by some time in 2017.

On 30 June 2014, about three hectares of the site were compulsorily acquired by the Authority for the construction of the Dingley Bypass. The acquisition and subsequent construction of the Bypass bisected the site, as can be seen in these aerial photographs taken in August 2014 and August 2016 respectively.

Figure 1: NearMap aerial photograph dated 4 August 2014, provided in Appendix M to Gary Liemant’s statement dated 1 July 2020 filed in the Developments proceeding.

Figure 2: NearMap aerial photograph dated 28 August 2016, provided in Appendix M to Gary Liemant’s statement dated 1 July 2020 filed in the Developments proceeding.

The construction of the Dingley Bypass had been planned for many years, and so the acquisition was not a surprise. A strip of land through the middle of the site had been reserved for use as a road long before Developments acquired the site in 2007. In addition, the Authority owned the freehold interest in another strip of land bisecting the site. The Rehabilitation Plan, prepared in 2011, noted that the site was divided by the ‘Dingley Freeway alignment’, and clearly showed the proposed road in the attached drawings.

Figure 3: Drawing of the site dated 16 November 2011 included in the Rehabilitation Plan, provided in Appendix J to Gary Liemant’s statement dated 1 July 2020 filed in the Developments proceeding.

Although the Rehabilitation Plan envisaged that the rehabilitation of the site would be completed by 2017, that has not occurred. To date, no enforcement action has been taken by the Mining Regulator, and Developments has not applied to vary the Rehabilitation Plan.

In May 2019, Kingston City Council applied to the Victorian Civil and Administrative Tribunal for an enforcement order requiring Developments to remedy an alleged contravention of the planning permit for the site. The proceeding is yet to be determined.[6]
[6]In Kingston City Council v Lantrak Developments Pty Ltd [2020] VCAT 622, the Victorian Civil and Administrative Tribunal found that the failure to complete the rehabilitation by late 2017 was a breach of the Rehabilitation Plan and the planning permit, and made an enforcement order requiring the completion of a staged rehabilitation of the site by 2025. Lantrak Developments Pty Ltd successfully appealed from that order, and the proceeding has been remitted to the Tribunal for further hearing and determination: Lantrak Developments Pty Ltd v Kingston City Council [2021] VSC 708.

Is the Authority obliged to make an offer to Projects?

Projects’ primary contention is that the Authority is required under s 31(1) of the LAC Act to make an offer of compensation to Projects in writing. Projects further contends that, because the Authority has not made an offer to it under s 31(1), the time within which Projects may make a claim has not yet commenced. It seeks declarations to that effect.

Section 30 of the LAC Act provides for a right to compensation on acquisition of an interest in land:

Subject to this Act, every person who, immediately before the publication of a notice of acquisition, had an interest in land that is divested or diminished by the acquisition of the interest to which that notice relates has a claim for compensation.

Section 31 of the LAC Act provides:

Initial offer of compensation
(1) After the notice of acquisition has been published in the Government Gazette the Authority must make an offer in writing to each claimant of whose entitlement to compensation it is aware.
(2) An offer under this section must be made—
(a) within fourteen days after the date of acquisition; or
(b) within such further period as—
(i) may be agreed upon in writing between the Authority and the claimant; or
(ii) the Minister administering the special Act may certify.

(3) The offer must set out the amount that the Authority, on the information available to it, has assessed as a fair and reasonable estimate of the amount of compensation payable to the claimant under this Act on the assumption that the claimant held the interest in respect of which the offer is made.
(4) An offer under this section must be accompanied by—
(a) a copy of the certificate of valuation to which the Authority has had regard in making its offer; and
(b) a statement explaining the difference between its offer and the valuation referred to in paragraph (a) if these differ; and
(c) a statement in the prescribed form setting out the principal rights and obligations of persons whose interests in land have been acquired under this Act.

(5) In making its offer the Authority must have regard to a valuation of the land carried out by the Valuer-General or a person who holds the qualifications or experience specified under section 13DA(2) of the Valuation of Land Act 1960.
(6) A valuation under subsection (5) may be made in respect of the specific interest acquired or in respect of the freehold interest in the land whichever appears to the Authority to be appropriate in the circumstances.
(7) If an offer of compensation is made under this section in respect of an acquired interest and immediately prior to the date of acquisition—
(a) the interest was affected by another interest in the land; or
(b) rates, taxes or other charges were charged upon the land in which the interest subsists—

the Authority may reduce the amount of its offer by an amount equal to the amount that it considers is necessary to provide for that other interest or to pay those rates, taxes or other charges.
(8) To the extent that an amount of compensation offered under this section, or any part thereof, is not disputed, the amount offered is binding upon the Authority unless the Authority can demonstrate that the information contained in the offer and relied upon by the Authority in making the offer was incorrect.

The Authority was not aware of Projects’ interest in the site at the time of acquisition on 30 June 2014, and did not make an offer of compensation to Projects within 14 days of that date.

Projects maintained that the Authority became aware of its entitlement to compensation on receipt of a letter from Projects’ solicitors dated 21 February 2017, which said:

As a separate matter, we are instructed that Lantrak Projects Pty Ltd has occupied the Land since 1 July 2013 and is the company that conducts the ‘Lantrak’ land-fill business on the Land. The physical and practical difficulties caused to the Lantrak companies by the acquisition, and the resulting uncertainty as to resolution, have delayed preparation and lodging of a claim for compensation. The two year period allowed under section 37(2) of the Land Acquisition and Compensation Act for a claim by Lantrak Projects has now expired.
On behalf of Lantrak Projects, we request that Roads Corporation agree to an extension of time for the making of a claim for compensation. It is our intention that the claims of both Lantrak companies would be run as a single claim.
We look forward to your response.

The Authority, by way of a letter from its solicitors dated 8 March 2017, agreed that Projects could be joined as a claimant with Developments ‘on the clear understanding that the claims which may be available to each company would be treated as a single claim’. However, as outlined in Head, Transport for Victoria v Lantrak Developments Pty Ltd (Lantrak No 1), Projects and Developments did not make a joint claim, and nor did Projects make any claim on its own account.

Projects’ submissions

Projects submitted that s 31(1) of the LAC Act requires an acquiring authority to make an offer in writing of compensation to each claimant of whose entitlement it is aware, whenever it becomes aware of the entitlement. It pointed out that there is no qualification in s 31(1) on the expression ‘after the notice of acquisition has been published’, and argued that the natural meaning of the word ‘after’ is simply at a time later than publication of the notice of acquisition.

Projects said that there is no contextual or policy reason to qualify the word ‘after’ in s 31(1). While s 31(2) provides that an offer must be made within 14 days after the date of acquisition, it does not prevent an offer being made at a later time. Further, s 31(2) does not excuse an authority from making an offer should it fail to do so within the specified 14-day period, and does not invalidate a late offer.[7]
[7]Relying on Roads Corporation v Schembri (2009) 28 VR 229, [95].

It will frequently be the case that an acquiring authority becomes aware of a person who has an entitlement to compensation more than 14 days after the date of acquisition. In that case, Projects submitted, it would be inconsistent with the scheme and underlying purpose of the LAC Act to conclude that the authority was not required to make an offer to that person. Projects relied on authority to the effect that a legislative provision is to be ‘given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights’ — such as the right to compensation for compulsory acquisition of an interest in land.[8]
[8]Marshall v Director General, Department of Transport (2001) 205 CLR 603, [37]–[38] (Gaudron J), approved in Kettering Pty Ltd v Noosa Shire Council (2004) 78 ALJR 1022, [31], and applied in numerous decisions of this Court: see, eg, Roads Corporation v Love (2010) 31 VR 451, [774]; Secretary to the Department of Economic Development, Jobs, Transport and Resources v MG Pastoral Company Pty Ltd (2016) 214 LGERA 413, [80]–[81].

Projects denied that its construction of s 31(1) would leave s 37 of the LAC Act with no work to do. Section 37 enables a claim to be made by a person who is entitled to claim compensation, where the acquiring authority has not made an offer to the person under s 31. It argued that s 37 allows a claimant who is not known to the authority to make a claim, while s 31(1) requires the authority to make an offer to a claimant upon learning of the claimant’s entitlement. Similarly, Projects argued that the mandated periods for offers and responses under Pt 3 of the LAC Act are irrelevant to an authority’s obligation to make an offer under s 31(1).

The consequence of Projects’ construction of s 31(1) was said to be that, since the Authority became aware of its interest in the acquired land in February 2017, the Authority has been obliged to make an offer of compensation to Projects — an obligation that it is yet to fulfil.

Authority’s submissions

The Authority submitted that Projects’ construction of s 31(1) is contrary to the text of the provision, the context and structure of the LAC Act, and the extrinsic material. It contended that, properly construed, s 31(1) is qualified by s 31(2). On a plain reading of both provisions, an acquiring authority must make an offer in writing to each claimant of whose entitlement to compensation it is aware within 14 days after the date of acquisition, unless further time is agreed by the authority and the claimant, or certified by the Minister.

The Authority referred to the established principles of statutory construction, which direct attention to the text of a provision, the context and structure of the statute in which the provision appears, and any relevant extrinsic materials.[9]
[9]Referring to SAS Trustee Corporation v Miles (2018) 265 CLR 137, [20] (Kiefel CJ, Bell and Nettle JJ), [41] (Gageler J), [64] (Edelman J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503, [39]; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

As to the text of the provision, the Authority submitted that, by its text, s 31(1) requires the Authority to make an offer ‘[a]fter the notice of acquisition has been published in the Government Gazette’ — not after it becomes aware of a claimant or an entitlement to compensation. Section 31(2) qualifies the words ‘[a]fter the notice of acquisition has been published’ in s 31(1), and specifies how long ‘[a]fter the notice of acquisition has been published’ an offer ‘under this section’ must be made. The principle that a right to compensation should be construed with all the generality that the words permit does not override the limitation or qualification on s 31(1) that is expressed in s 31(2).

As to the context and structure of the LAC Act, the Authority argued that Projects’ construction of s 31(1) would leave s 37 with no work to do. In particular, there would be no need for the two-year limitation period in s 37(2), or the power to extend time in s 106, because a claimant could simply call upon an authority’s obligation to make an offer under s 31(1) at any time.

The Authority submitted that the scheme of the LAC Act requires an authority to take specific steps, and exercise diligence, before proceeding to acquire land, so as to ascertain any interest in land that may be affected by the acquisition.[10] Further, it referred to the obligations relating to publication of a notice of acquisition, which seek to identify persons who have an interest in the land described in the notice.[11] It pointed out that Pt 3 of the LAC Act prescribes tight time frames for the advancement of claims towards a resolution, which are inconsistent with the open-ended construction of s 31(1) put forward by Projects.[12]
[10]Referring to LAC Act, ss 6, 8(1)(g)(i), 8(1)(g)(iv).
[11]Referring to LAC Act, ss 19, 22(c)–(d), 23.
[12]Referring to LAC Act, ss 33, 36, 37(2), 37(4), 106, 107.

As to extrinsic materials, the Authority relied on the Explanatory Memorandum to the Land Acquisition and Compensation Bill 1986, and the explanation of cl 31 of the Bill.

Consideration

The settled approach to statutory construction is that it starts and ends with the text of the relevant provision, having regard to its context and the purpose for which it was enacted.[13] The meaning of a provision is to be determined by reference to the entire statute, on the basis that ‘its provisions are intended to give effect to harmonious goals’.[14] An effort must be made to give meaning to every word of the provision, and every provision of the statute.[15] Legislative history, extrinsic materials, the purpose and policy of a provision, and the mischief it is designed to remedy, may also be relevant.[16]
[13]Project Blue Sky, [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan, [47] (Hayne, Heydon, Crennan and Kiefel JJ); Consolidated Media Holdings, [39].
[14]Project Blue Sky, [70] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted).
[15]Project Blue Sky, [71] (McHugh, Gummow, Kirby and Hayne JJ).
[16]Alcan, [47] (Hayne, Heydon, Crennan and Kiefel JJ). See also Interpretation of Legislation Act 1984 (Vic), s 35(b).

I do not accept Projects’ submission that s 31(1) of the LAC Act requires an acquiring authority to make an offer of compensation to every claimant of whom it becomes aware, no matter when it becomes aware of the claimant’s interest in the acquired land. The text of s 31(1), read together with s 31(2), makes it plain that the requirement is to make an offer to each claimant of whose entitlement the authority is aware at the date of acquisition, within 14 days of that date. I note the following.

(a) The obligation imposed by s 31(1) commences with the publication of the notice of acquisition — that is, on the date of acquisition.[17]
[17]LAC Act, s 24(1).

(b) The present tense is used in the phrase ‘each claimant of whose entitlement to compensation it is aware’. This indicates that the obligation is to make an offer to those claimants of whose interest the authority is aware at the date of acquisition. It does not support reading the obligation as extending to a claimant of whose interest the authority later becomes aware.

(c) Section 31(2) prescribes a time limit for the authority to make ‘an offer under this section’ — that is, an initial offer of compensation under s 31. It qualifies the obligation to make an offer imposed by s 31(1). The plain meaning of ss 31(1) and (2) read together is that the acquiring authority must make an offer to each claimant of whose interest the authority is aware within 14 days after the date of acquisition.

This reading of s 31(1) is consistent with the broader context of the LAC Act, which provides a scheme ‘for the determination of the compensation payable’ in respect of land acquired for public purposes.[18] Before an authority acquires an interest in land, the LAC Act requires it to take steps to give notice of its intention to do so, and to make ‘diligent inquiry’ to identify those persons who have an interest in the land. The LAC Act also requires publication of the notice of the acquisition, beyond the claimants of whose interest the authority is aware. In particular:
[18]LAC Act, s 1.

(a) Section 6 of the LAC Act requires a notice of intention to acquire in most instances:

Subject to section 7, if the Authority intends to acquire an interest in land for the purposes of the special Act, the Authority must serve upon each person who has an interest in the land, or is empowered by this Act to sell and convey or grant and release or lease such an interest, or such of those persons as, after diligent inquiry, become known to the Authority, a notice of intention to acquire the first-mentioned interest.

(b) Section 8 prescribes the content of a notice of intention to acquire. It must include a request to the person interested in the land to advise the acquiring authority of ‘any other persons who, to the knowledge of that person, may have an interest in the land’,[19] as well as any other information relevant to the assessment of compensation.[20]
[19]LAC Act, s 8(1)(g)(i).
[20]LAC Act, s 8(1)(g)(iv).

(c) Section 22 requires an authority, within 14 days after the date of acquisition, to serve the notice of acquisition and the prescribed statement of rights and obligations:

(c) if a notice of intention to acquire has been served under section 6, upon all persons upon whom the notice of intention to acquire was served and upon any other person of whom the Authority is aware who immediately before the date of acquisition had an interest in the land described in the notice of acquisition; and
(d) in any other case, upon each person who immediately before the date of acquisition had an interest in the land described in the notice or such of those persons as, after diligent inquiry, become known to the Authority.

(d) For good measure, s 23 requires the acquiring authority to cause a copy of the notice of acquisition published in the Government Gazette to also be published ‘in a newspaper circulating generally in the area in which the land is situated’.

After the date of acquisition, Pt 3 of the LAC Act prescribes time limits for each step in the process by which compensation is determined under the LAC Act:

(a) by s 33(1), a claimant is required to respond within three months after the date of service of the initial offer under s 31, by serving either a notice of acceptance or a notice of claim;

(b) by s 36(1), the acquiring authority must reply to a notice of claim under s 33 within three months of service of the notice;

(c) by s 36(6), a claimant has a further two months to accept or reject any increased or varied offer of compensation;

(d) a person who is entitled to claim compensation who has not received an offer under s 31 may make a claim for compensation under s 37, within two years after the date of acquisition;

(e) by s 37(4), the authority must reply to the notice of claim within three months; and

(f) by s 37(9), a claimant has a further two months to accept or reject any offer made by the authority in its reply.

Each of these time limits may be extended under s 106 of the LAC Act.

A failure to take a step in the process within the time prescribed by the LAC Act results in the matter becoming a ‘disputed claim’ that may be referred to this Court or to the Tribunal for determination.[21] As discussed in Rizzo v Head, Transport for Victoria,[22] the concept of a ‘disputed claim’ is central to the determination of disputes about compensation payable under the LAC Act. The time limits that are prescribed in Pt 3 of the LAC Act are necessary for the identification of a ‘disputed claim’ and hence are integral to the scheme for the determination of compensation payable that is provided by the LAC Act.
[21]LAC Act, ss 33(2), 36(5), 36(9), 37(8), 37(12).
[22][2020] VSC 89, [21]–[25], [60]–[64] (Rizzo). See also Lantrak No 1, [7], [33]–[36].

None of this is consistent with giving s 31(1) of the LAC Act the open-ended operation contended by Projects. Rather, it supports reading ss 31(1) and (2) as requiring an acquiring authority to make an offer of compensation to every claimant of whose interest it is aware at the date of acquisition, within 14 days of that date.

This reading of s 31(1) is consistent with the express statutory purpose of providing for the determination of the compensation payable in respect of land acquired for public purposes. It is also consistent with the purpose of identifying and resolving claims in a timely manner, which is implicit in the scheme of the LAC Act, in particular the provisions discussed above.[23]
[23]See also Rizzo, [62].

I do not consider that this reading limits or impairs the right to compensation for compulsory acquisition of an interest in land under the LAC Act.[24] Section 30 confers a right to compensation on ‘every person’ who, immediately before the acquisition, had ‘an interest in land that is divested or diminished by the acquisition of the interest’. That right extends to persons of whose interest the authority is unaware at the date of acquisition, because any such person who does not receive an initial offer of compensation under s 31 may make a claim for compensation under s 37 of the LAC Act. Claimants in that position have two years from the date of acquisition to make a claim, subject to any extension of time that may be given under s 106.[25]
[24]Cf Marshall, [37]–[38] (Gaudron J).
[25]LAC Act, s 37(2).

Nor do I consider that this reading of s 31(1) of the LAC Act cuts across anything said in Roads Corporation v Schembri.[26] In that case, the acquiring authority did not make an offer of compensation within 14 days of the date of acquisition — an offer was not made until nearly three months later. This delayed the entitlement of the claimants to request and then receive an advance of compensation under s 51 of the LAC Act. The Tribunal awarded compensation for loss of use of money during the period of the authority’s delay. Justice Osborn rejected a submission that the statutory consequence of a failure to make an offer under s 31 was that the claimants were entitled to claim compensation under s 37 of the LAC Act. His Honour did not accept that this was the intent of the LAC Act read as a whole:[27]

(a)The Act presumes the acquiring authority will comply with its obligation to make an offer “to each claimant of whose entitlement to compensation it is aware” pursuant to s 31(1). If, however, some other person has a claim to compensation then that person may claim pursuant to s 37(1).
(b) If it were otherwise the authority could by deliberate breach of its obligation pursuant to s 31 postpone its obligations to make an offer within 14 days, to the date three months after a claim provided for in s 37(4) and (5). Such a construction would render nugatory the word “must” in s 31(1). “Must” would become “may” for a period potentially extending through the two years provided for a claim under s 37(2) and the further three months provided for a response by s 37(4).
(c) The construction put forward on behalf of the corporation would result in the anomalous outcome, that if an authority made an offer but then delayed in making an advance, interest would be payable under s 51(4) but conversely if an authority simply failed, refused or neglected to make an offer no compensation would be payable by way of interest or otherwise in respect of the resultant delay.
…

[26](2009) 28 VR 229.

[27]Schembri, [95].

This reasoning is entirely consistent with my conclusion that a claimant of whose interest the acquiring authority is unaware at the date of acquisition is not entitled to receive an offer under s 31 of the LAC Act. A person in that position may claim compensation under s 37.

Projects is therefore not entitled to the declarations it seeks, and the Authority is not obliged to make an offer of compensation to Projects under s 31 of the LAC Act.

Projects’ application to extend time

In the alternative, Projects seeks an extension of time to make a claim under s 37, pursuant to s 106 of the LAC Act. Section 106 provides:

Extension or abridgement of time
(1) If it is provided in this Act that an act or thing may be or is required to be done within a specified time, or not before the expiration of a specified time, and that provision is stated to be subject to this subsection—
(a) the Governor in Council may abridge that time; or
(b) the Minister, after consultation with the Minister administering the special Act, may extend that time; or
(c) that time may be extended or abridged by agreement between the Authority and the other party concerned in the matter; or
(d) in the case of sections 37(2) and 47(2) the Court or the Tribunal may extend that time.

(2) The Court, Tribunal or Minister may extend time under subsection (1) despite the fact that the time prescribed by this Act for the doing of an act or thing has expired.

In Michelotti v Roads Corporation,[28] Cavanough J determined an application for an extension of time under s 106 of the LAC Act by reference to the criteria outlined in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment.[29] Adapted to a claim under the LAC Act, those criteria are:
[28](2009) 26 VR 609, [31]–[35] (Michelotti).
[29](1984) 3 FCR 344, 348–9.

(a) Special circumstances need not be shown, but the Court must be positively satisfied that it is proper to grant the application to extend time. The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.

(b) Action taken by the applicant, other than making a claim, is relevant to whether there is an acceptable explanation for the delay. There is a distinction between a claimant who has not rested on its rights and one that has not made the authority aware of its interest in the acquired land.

(c) Any prejudice to the authority, including any prejudice in responding to the claim occasioned by the delay, is a material factor militating against the grant of an extension.

(d) However, the mere absence of prejudice is not enough to justify the grant of an extension. Public considerations may be relevant, for example if the delay may result in unsettling other people or established practices.

(e) The merits of the substantial claim are properly to be taken into account in considering whether an extension of time should be granted.

(f) Considerations of fairness as between the applicant and other persons in a like position are relevant to the exercise of the discretion.

I accept the submission made by Projects that, while these criteria are matters that may be relevant to the exercise of the discretion to extend time under s 106 of the LAC Act, they are no more than guidelines and are not to be applied inflexibly. I also accept that an extension of time may be granted even though the applicant has not established an acceptable explanation for its delay in making a claim.[30]
[30]Dix v Crimes Compensation Tribunal [1993] 1 VR 297, 302 (Brooking J); Ansett v Moss [2007] VSCA 161, [6] (Buchanan JA); Michelotti, [35].

Findings in relation to the delay

In support of its application for an extension of time, Projects relied on an affidavit of its solicitor, James Lofting of HWL Ebsworth Lawyers, dated 25 June 2021.[31] Mr Lofting made his affidavit from his own knowledge and on the basis of information from Gary Liemant and Simon Peeke of the Lantrak group of related companies. He exhibited a large number of documents to his affidavit, including a witness statement of Gary Liemant dated 1 July 2020 filed in the Developments proceeding. The Authority relied on two affidavits of its solicitor, Julie Colsell of Russell Kennedy, dated 4 August 2021 and 24 August 2021, as well as two affidavits of Ms Colsell dated 7 June 2021 and 30 July 2021 filed in the Developments proceeding.
[31]Affidavit of James Richard Wing Lofting sworn 25 June 2021 in the Projects proceeding (Lofting Projects affidavit).

The explanation for Projects’ delay in making a claim given in Mr Lofting’s affidavit was:

The principal reason for Projects not making a claim within two years of the acquisition (that is, by 30 June 2016), and for not making an application to the Court for an extension of time to bring a claim, is that the focus of the Lantrak group and its advisers has been on trying to determine the elements of the claim, rather than focusing on the claimant.
Projects’ delay in making a claim within the 2 year period under section 37(2) of the LAC Act, and the delay in bringing an application to extend time under section 106(1)(d), has arisen in the following circumstances:
(a) the Authority’s statement, by way of a letter dated 8 March 2017 from Russell Kennedy, that it would allow Projects to make a claim out of time so long as the claim was run as one claim together with Developments' claim;
(b) Projects’ reliance on the Authority’s statement while the parties were engaged in discussions regarding the consequences of the acquisition and negotiations regarding engineering solutions;
(c) the focus of my firm between 2016 and 2019 on negotiations with the Authority whilst Lantrak faced substantial difficulties arising from the acquisition, namely difficulties associated with the filling of the north east pit on the Land;
(d) after the matter had been referred to the Supreme Court in the [Developments] Proceeding on 4 April 2019, the significant focus of my firm (between 2019 and the end of 2020) in understanding the complex Lantrak entity structure in consultation with forensic accountants, directors and employees of Lantrak to identify and ascertain the relevant claimant entities;
(e) after the matter had been referred to the Court in the [Developments] Proceeding, the significant focus of my firm in particularising a claim through the briefing and engagement of experts, extensive consultation with Lantrak and comprehensive assessment of losses caused by the acquisition (as now set out in the amended particulars of claim dated 25 May 2021 filed in the [Developments] Proceeding);
(f) Lantrak’s focus on the enforcement proceedings initiated by Kingston City Council on 17 May 2019 under section 114 of the Planning and Environment Act 1987 (Vic) (Enforcement Proceeding), particularly regarding the current Work Authority relating [to] the Land and any potential impacts on the [Developments] Proceeding, and the subsequent appeal to the Court in proceeding S ECI 2020 03040;
(g) Lantrak’s focus on evaluating the complexities and uncertainties raised by the receipt of fill material from the Metro Tunnel Project from 16 April 2020 and the re-engagement and supplementary briefing of experts to re-assess the limitations caused by the acquisition given the geotechnical approach to receiving the Metro Tunnel fill material;
(h) the operational stresses caused by the COVID-19 pandemic (and the restrictions on work and mobility by way of the declared State of Emergency) between 2020 and 2021 on my firm and expert witnesses retained by Developments in the [Developments] Proceeding;
(i) my firm and counsel’s focus on the preparation of a formal application for joinder before the Supreme Court between November 2019 and April 2021.

The Authority submitted that this explanation was inadequate in many respects. In particular, the Authority argued that it was unsatisfactory that no explanation was given by an officer of Projects. The Authority also sought to demonstrate that the explanation was contrary to the evidence about Projects’ awareness of its entitlement to make a claim.

I make the following findings of fact in relation to the explanation proffered by Projects for its delay in making a claim.

Lantrak group of companies

Projects and Developments are part of the Lantrak group, which comprises at least 10 companies broadly associated with the Liemant family.[32] The ownership structure and the relationships between the various companies in the Lantrak group was not explained in Mr Lofting’s affidavit, and is not clear from the evidence available to me.
[32]Lofting Projects affidavit, [8], Exhibit JL-3 – Statement of Gary Liemant, [27]–[37] and sch A.

Projects was incorporated in May 2013. All of the shares in Projects are owned by another company, Buchanan Pty Ltd (ACN 118 667 646). Until February 2021, the sole director and secretary of Projects was Mark Richard Liemant. On 17 February 2021, Gary Liemant was appointed the sole director and secretary of both Projects and Buchanan. Mark Liemant has been the sole shareholder of Buchanan throughout.[33]
[33]Affidavit of Julie Maree Colsell sworn 4 August 2021 in the Projects proceeding (First Colsell Projects affidavit), [17], Exhibit JMC-1.

Developments was incorporated in September 1995 as Victorian Tip Trucks and Plant Hire Pty Ltd. It changed its name to ‘Lantrak Developments Pty Ltd’ on 8 December 2006. From around that date, Gary Liemant has been Developments’ sole director and secretary and the shares in Developments have been owned by Earthtrak Pty Ltd (ACN 119 054 901). Until February 2021, Mark Liemant and Gary Liemant were equal shareholders in Earthtrak. Since then, the shares in Earthtrak have been owned by another company, Trakenen Pty Ltd (ACN 078 392 408), of which Gary Liemant is the sole director and shareholder.[34]
[34]First Colsell Projects affidavit, [17], Exhibit JMC-1.

Despite the proliferation of companies in the Lantrak group, it appears that there were two people who could make decisions and give instructions on behalf of the group at relevant times: Mark Liemant and Gary Liemant. Mark Liemant could have explained why Projects did not make a claim in the years following the acquisition. Since at least February 2021, Gary Liemant has also been in a position to provide an explanation.

Interests in the site and the acquired land

Since 2007, Developments has been the registered proprietor of the site, which it owns as trustee for the Lantrak Developments Trust or the Lantrak Developments Trust No 1. The evidence included no information about this trust. Developments was the owner of the land that was acquired by the Authority on 30 June 2014.

Projects has operated the landfill business on the site since July 2013. As at 30 June 2014, it occupied the site, including the acquired land, under an informal arrangement with Developments. The only documentation of this arrangement was monthly invoices from Developments to Projects for ‘Rental for 150-170 Dandenong Road, Heath’, for $9,000 plus GST.[35] The rental amount remained at $9,000 per month after the acquisition on 30 June 2014.
[35]Lofting Projects affidavit, [13], Exhibit JL-4.

Since July 2017, Lantrak Materials (Vic) Pty Ltd has occupied the western side of the site. Projects continues to occupy the site on the eastern side of the Bypass, for which Developments invoices it for a monthly rental of $4,500 plus GST.[36]
[36]Lofting Projects affidavit, [20], Exhibit JL-4.

As at 30 June 2014, there was no written agreement between Developments and Projects as to the basis on which Projects occupied the site. That remains the case. On the most favourable view of the evidence, Projects leased the site from Developments on a month-by-month basis.

Before the acquisition

On 4 March 2014, the Authority served Developments with a notice of intention to acquire the land.[37] The notice was accompanied by a letter addressed to Gary Liemant, and the statement of rights and obligations required by s 8(2) of the LAC Act. The notice required Developments to provide the Authority with specified information, including:

1.The name of any other person who has, or you think may have, an interest in the land. (Such a person might be a tenant or a mortgagee or a person to whom you have agreed to sell the land.)
…
5.Any other matters of which you are aware which will help VicRoads to work out what compensation you should receive for the land. (This information may include details of any mortgage, lease or other arrangement affecting the land. …)

Both the letter and the statement drew attention to this requirement to provide information.

[37]Lofting Projects affidavit, Exhibit JL-3 – Statement of Gary Liemant, [65], Appendix O.

In the letter that accompanied the notice, the Authority requested Developments’ agreement to extend the time for making the initial offer from 14 to 60 days. A form agreeing to amending the timeframes outlined in the LAC Act was signed by Mark Liemant on behalf of Developments on 12 March 2014.[38]
[38]Lofting Projects affidavit, Exhibit JL-3 – Statement of Gary Liemant, [65], Appendix O.

Developments did not inform the Authority before the acquisition that the site was occupied by or leased to Projects. This was despite the fact that the form agreeing to amend the timeframes in the LAC Act was completed by Mark Liemant, who was at that time the sole director and secretary of Projects.

After the acquisition

Notice of the acquisition was published in the Government Gazette on 30 June 2014. On 23 December 2014, the Authority made its initial offer to Developments, under s 31(1) of the LAC Act. The letter communicating the offer was addressed to Gary Liemant of Developments, and enclosed the statement of rights and obligations required by s 31(4)(c) of the LAC Act and a Form 11 ‘Response to Offer’. Developments did not respond to the offer within the prescribed three-month period.

Developments had engaged HWL Ebsworth and a number of consultants in relation to its claim for compensation. A summary document on Lantrak letterhead, dated 5 March 2015,[39] identified the following areas of claim in relation to the acquired land, and the additional amounts of compensation sought in relation to each area:
[39]Affidavit of Julie Maree Colsell sworn 24 August 2021 in the Projects proceeding (Second Colsell Projects affidavit), Exhibit JMC-2, 1–19.

(a) Property Valuation/loss of the 3.046 hectares – $428,500;

(b) Hardstand replacement – $496,500;

(c) Wheel wash replacement – $268,000;

(d) Fill construction for bunds and haul/access roads – $17,500,000;

(e) Loss of sand resource available on site – $1,260,000;

(f) Loss of acid sulphate/clean fill airspace as a result of no sand extraction – $750,000;

(g) Loss of acid sulphate/clean fill airspace as a result of fill works for bunds/haul roads – $945,000; and

(h) Cost incurred associated with moving material sales operations/bins – $496,500.

In relation to each area of claim, the summary document noted the progress made in documenting the claim and ‘what work is required to be completed in the remaining 17 days’ before Developments had to respond to the Authority’s offer:

(a) Les Brown of M3 Property Group had been engaged by HWL Ebsworth to provide a property valuation. He had visited the site and Developments was awaiting his valuation.

(b) Gamcorp Engineers had designed a replacement hardstand, the construction of which had been priced by JA Quantity Surveyors at $496,500.

(c) Gamcorp Engineers had also designed a replacement wheel wash structure, which had been costed by JA Quantity Surveyors at $268,000.

(d) Douglas Partners Geotech Engineers had provided preliminary designs for the fill works required for bund walls and haul/access roads, with ‘multiple options for the design specifications’. The major fill works were to be completed by a specialised contractor, which was to provide a quote. JA Quantity Surveyors were set to meet with representatives of the Lantrak group to produce an independent cost report for the works associated with this area of the claim.

(e) An investigative report from Bell Cochrane & Associates had identified approximately 70,000 cubic metres of accessible sand resource that could have been utilised. The Lantrak group had provided CJ Ham & Murray with internal sales data to determine the value of this resource, which was still being processed to value the loss.

(f) The Bell Cochrane & Associates report also provided the basis for working out the size of the void/airspace asset that would have been created by the extraction of the lost sand asset. CJ Ham & Murray had internal sales data to determine the value of the resource, and was still processing the information.

(g) The engineering for the bund walls and haul roads being developed by Douglas Partners would include a net volume of material to be imported into the existing voids and the amount of the existing airspace asset to be exhausted. CJ Ham & Murray had the information needed to value this resource.

(h) The Lantrak group had incurred roughly $250,000 in direct costs moving the materials distribution area and bins, in addition to ‘extensive management and time exhaustion from senior Lantrak management staff to manage the transition’. HWL Ebsworth was to advise what supporting information could be provided.

Although considerable work had been done to formulate its claim, Developments did not respond to the Authority’s offer by 23 March 2015.

The identity of the companies that owned the site and operated the business on it was clarified in instructions provided by Brandon Cini, a project manager with the Lantrak group, in emails to HWL Ebsworth in September and October 2015.

(a) In an email to Mr Lofting dated 24 September 2015,[40] Mr Cini provided the following instructions:
[40]Second Colsell Projects affidavit, Exhibit JMC-2, 23–4.

•Who owns the land? Lantrak Developments Trust.
•Who operates the land? Lantrak Projects Pty. Ltd.

(b) Mr Cini provided further information about the relationship between Developments and Projects in an email to HWL Ebsworth dated 13 October 2015:[41]
[41]Second Colsell Projects affidavit, Exhibit JMC-2, 29–31.

I do not have copies of any specific agreement/documentation regarding the relationship between Lantrak Projects and Lantrak Developments, however please see below details of the relationship.
•We purchased the land through the Lantrak Developments Trust No 1. (ABN: 47 619 112 628) in the 2009 financial year.
•The Lantrak Developments Trust No 1. Owns Old Dandenong Road, however our Lantrak Projects Divisions manage the site (similarly the way we manage external parties sites and pay rent or royalties).
•Lantrak Projects (VIC) Pty Ltd (ABN: 61 123 082 315) originally managed the site, and the Lantrak Developments Trust No 1 charged them rent of $9000 + GST Per month to do this. This was to cover costs such as rates/taxes/finances etc.
•As of July 2013 Lantrak Projects (VIC) Pty Ltd (ABN: 61 123 082 315) stopped managing the site but instead Lantrak Projects Pty Ltd (ABN: 70 163 791 811) ran the site.
•The Lantrak Developments Trust No. 1 then charged the $9000+GST to Lantrak Projects Pty Ltd.
•The $9000+GST has remained the same the whole way.
•I have not seen any formal documentation outlining this relationship, however this is how it has been working for the past 6 years. Actual invoices have been raised between the entities and all taxes have been paid as required also.

Please let me know if you require any further information.

The first response by Developments to the Authority’s offer was a letter from HWL Ebsworth to the Authority dated 21 December 2015.[42] The letter explained that the acquisition had ‘adversely affected [their] client’s operation in a number of ways’, and brought to the Authority’s attention a particular difficulty in relation to the rehabilitation of the site. The backfilling of the north-eastern pit was to have been conducted from land on the west side of the pit, where there was a stable area large enough to provide truck access. However, this area was part of the land acquired by the Authority, and there was now insufficient space to carry out the filling of the pit. HWL Ebsworth invited the Authority to consider the issue and provide comment before Developments incurred further costs.
[42]Lofting Projects affidavit, [22], Exhibit JL-6.

Notably, the letter did not mention Projects’ interest in the acquired land, or the fact that it conducted the landfill business on the site, although by that time HWL Ebsworth had clear instructions to that effect.

Technical solutions are explored

Between 2016 and 2019, there were discussions between HWL Ebsworth, on behalf of the Lantrak group, and the Authority in relation to rehabilitation options and engineering solutions.[43]
[43]Lofting Projects affidavit, [23].

The parties, with their respective lawyers and consultants, met on site on 26 May 2016.[44] A second site visit and a meeting of engineers occurred on 31 August 2016.[45] The Authority’s engineer, Andrew Baker of GHD, agreed that the ‘lack of a stable, sufficiently high, bund along the western edge of the [north-east] quarry could permit uncontrolled escape of displaced slurry during filling and this would have an adverse impact on both Lantrak operations and potentially the Dingley Bypass itself’.[46] Further meetings between the parties’ engineers and representatives took place on 7 December 2016 and 12 January 2017.[47]
[44]Lofting Projects affidavit, [24]; First Colsell Projects affidavit, [23].
[45]First Colsell Projects affidavit, [24]–[33].
[46]First Colsell Projects affidavit, [33].
[47]First Colsell Projects affidavit, [35].

On 6 February 2017, Russell Kennedy sent the Authority’s in principle proposed solution to HWL Ebsworth for Developments’ consideration.[48] The proposal was as follows:
[48]First Colsell Projects affidavit, [37]–[44], Exhibit JMC-3.

•VicRoads would in due course transfer to Lantrak a strip of land 15m wide in the immediate vicinity of the silt dam (a sketch plan in this regard is attached – the area coloured yellow represents approximately the strip of land in question).
•before actual transfer of the strip area VicRoads would:
–arrange for a survey to be undertaken and a plan of subdivision to be prepared, thus enabling transfer of the strip area to Lantrak to be effected;
–at its cost carry out necessary works to enable the strip area to be made available for use by Lantrak which would include construction of an underground barrel drain to replace the existing swale drain (which in turn would require a drainage easement to be noted in the plan of subdivision in respect of the strip area), relocate the existing pedestrian/ bike track path and carry out all other works that may be necessary to give effect to the proposal.

A rough sketch plan reflecting the situation to be achieved is enclosed.
It is expected that if agreement can be reached based upon the “In Principle” proposal set forth above, VicRoads should be able to complete construction works within 3 months of agreement being reached. It is understood that the silt dam can continue to be filled at the present time having regard to its current level.

The Authority sought Developments’ response to this proposal by 20 February 2017. In a letter dated 21 February 2017, HWL Ebsworth advised that its client and its engineers were considering the proposal, and sought further information.[49] Discussions continued throughout 2017, with no agreement reached.[50]
[49]Lofting Projects affidavit, Exhibit JL-7.
[50]Lofting Projects affidavit, [28]–[30].

On 29 January 2018, Russell Kennedy wrote to HWL Ebsworth with a firm proposal from the Authority to adopt one of two specific options that had been developed by the parties’ respective engineers.[51] The letter advised that the Authority was prepared to adopt either option, ‘as your client may choose each of which will result in part of the acquired land being returned to Lantrak’. Either option would have required the Authority to relocate the shared pathway up to the height of the Bypass.
[51]First Colsell Projects affidavit, [45]–[52], Exhibit JMC-4.

Further discussions ensued into 2018, again without any resolution being reached. In June 2018, the Authority engaged CPB Contractors for the construction of the proposed works.[52] On 14 November 2018, Russell Kennedy wrote to HWL Ebsworth with a further offer to Developments to construct one of the options, at the Authority’s cost, with part of the acquired land to be returned to Developments. The offer was open for acceptance until 21 December 2018.[53]
[52]First Colsell Projects affidavit, [68].
[53]Lofting Projects affidavit, [37], Exhibit JL-10; First Colsell Projects affidavit, [65]–[70].

The Authority’s offer was not accepted. On 18 March 2019, the Authority gave notice under s 107 of the LAC Act, requiring Developments to deliver a Response to Offer within seven days. It did not provide any substantive response to the offer, and the Authority referred the disputed claim to the Court on 4 April 2019.[54]
[54]First Colsell Projects affidavit, [71]–[73].

According to Mr Lofting, the Lantrak group was ‘reluctant to commit to the Authority’s proposal’ without exploring alternatives, given ‘various complexities arising from the acquisition’.[55] However, the Lantrak group did not express any concerns to the Authority about its proposal, or make any counter proposal.[56]

Authority advised of Projects’ interest

[55]Lofting Projects affidavit, [38]–[39].

[56]First Colsell Projects affidavit, [74]–[77].

On 21 February 2017, in response to Russell Kennedy’s letter of 6 February 2017, HWL Ebsworth advised the Authority for the first time of Projects’ interest in the acquired land. The correspondence was set out in Lantrak No 1, and is repeated here for convenience:[57]
[57]Lantrak No 1, [14]–[16].

On 21 February 2017, [Developments’] solicitors wrote to the Authority’s solicitors as follows:
As a separate matter, we are instructed that Lantrak Projects Pty Ltd has occupied the Land since 1 July 2013 and is the company that conducts the ‘Lantrak’ land-fill business on the Land. The physical and practical difficulties caused to the Lantrak companies by the acquisition, and the resulting uncertainty as to resolution, have delayed preparation and lodging of a claim for compensation. The two year period allowed under section 37(2) of the Land Acquisition and Compensation Act for a claim by Lantrak Projects has now expired.
On behalf of Lantrak Projects, we request that Roads Corporation agree to an extension of time for the making of a claim for compensation. It is our intention that the claims of both Lantrak companies would be run as a single claim.
We look forward to your response.

The Authority responded in a letter from its solicitors dated 8 March 2017, relevantly:
I note your comments concerning Lantrak Projects Pty Ltd. Roads Corporation agrees that that company can be joined as a claimant with Lantrak Developments on the clear understanding that the claims which may be available to each company would be treated as a single claim.

Despite this favourable response, no claim was made jointly by [Developments] and Projects. Nor did Projects make any claim on its own account for compensation for the acquisition of its interest in the acquired land, or specify what that interest was.

I held in Lantrak No 1 that the Authority’s agreement contained in its letter of 8 March 2017 was no more than an agreement that Projects could join its claim to Developments’ response to offer, despite more than two years having elapsed since the acquisition. That agreement was conditional on Developments and Projects making a joint claim within a reasonable time, which they did not do. The two further years that elapsed before the Authority referred the disputed claim to the Court, on 4 April 2019, was a more than reasonable time for Developments and Projects to make a joint claim.[58]

Instructions to Ferrier Hodgson

[58]Lantrak No 1, [31]–[32].

In June 2015, HWL Ebsworth instructed Greg Meredith of Ferrier Hodgson to prepare a forensic accounting report assessing the financial impacts of the acquisition on the business operations of Developments and Lantrak (Projects) Vic Pty Ltd, the company that had operated the landfill business on the site prior to July 2013.

The misidentification of the company that operated the business at the date of acquisition was corrected, at the latest, in February 2017. On 3 February 2017, HWL Ebsworth sent Mr Meredith a draft business statement prepared on the basis of instructions received from Developments.[59] In relation to the relevant business entities, the draft statement said:[60]
[59]Second Colsell Projects affidavit, Exhibit JMC-2, 44–51.
[60]Passages in italics are highlighted in the document, presumably for confirmation by Developments.

1. Lantrak Developments Pty Ltd (Lantrak Developments) are the trustee the Lantrak Developments Trust No. 1 (ABN 47619 112 628) (Lantrak Trust).
2. Lantrak Developments are the registered proprietor of the land at 150-170 Old Dandenong Road, Heatherton (Land). Lantrak Projects became the registered proprietor of the Land on 27 December 2007.
3. Lantrak Projects Pty Ltd (Lantrak Projects) currently operates the business on the Land and has done since 1 July 2013.
4. Lantrak Projects (Vic) Pty Ltd (Lantrak Projects Vic) operated the business on the Land prior to 1 July 2013.
5. Lantrak Projects Vic paid the rehabilitation bond for the Land to the former Department of Primary Industry (DPI or Mines Department).
6. Lantrak Projects pays $9,000 (excl. GST) rental per month to Lantrak Developments at a flat rate. The rental is intended to cover costs such as interest on the mortgage and rates. The rental amount has not changed since 1 July 2013.
7. In the event that Lantrak Projects undertakes any sand extraction from the Land, it is intended that a royalty payment would be made to Lantrak Developments on a per tonne basis. The royalty payment would include all associated costs, including payment of the extractive industry royalty.

These instructions were formalised in a letter from HWL Ebsworth to Mr Meredith dated 9 February 2017.[61] The letter summarised the aspects of the claim as:
[61]Second Colsell Projects affidavit, Exhibit JMC-2, 52–60.

(a) Hardstand replacement;

(b) Wheel wash replacement;

(c) Value of the loss of the sand resource on the site;

(d) Value of the loss of the acid sulphate/clean fill airspace as a result of the loss of the sand excavation;

(e) Costs incurred associated with moving the materials and sales operations/bins;

(f) Field construction costs for the loss of haul/access roads adjacent to north-eastern pit;

(g) Value of the loss of acid sulphate/clean fill airspace as a result of the fill works for the access and haul roads; and

(h) Operational costs.

Various documents were attached to this letter, including the 5 March 2015 summary document, Mr Cini’s emails of 24 September 2015 and 13 October 2015, and the draft business statement. Mr Meredith was also advised of the other experts engaged to advise in relation to the claim, including Les Brown of M3 Property, Michael Hocking of CJ Ham & Murray, Basil Natoli of BCA, and Coffey Environments (and prior to Coffey Environment’s engagement, Douglas Partners).

On 16 March 2020, HWL Ebsworth provided a further letter of instruction to Mr Meredith, and requested that he provide further advice regarding the financial impacts in relation to the value of sand reserves and airspaces at the date of acquisition and relevant losses attributable to the acquisition. A copy of a report from Mr Natoli of BCA, dated 25 February 2020, was enclosed. Further letters of instruction were sent to Mr Meredith on 1 July 2020, 28 October 2020, and 23 November 2020.

Mr Meredith’s report dated 27 November 2020 was filed in the Developments Proceeding on 1 December 2020.[62] His calculation of past and future losses totalling $35,626,986 did not differentiate between Developments, Projects, and other companies in the Lantrak group. As he explained:

I have treated the Lantrak entities as one group (or one entity) for the quantification of this claim, noting that the losses have been allocated to Lantrak South East Projects Pty Ltd consistent with my instructions.

Those instructions were conveyed in HWL Ebsworth’s letter of instruction dated 28 October 2020, which was Appendix C.2 to Mr Meredith’s report.

Projects’ proposed claim

[62]Lofting Projects affidavit, Exhibit JL-20, annexure 3.

On 1 December 2020, HWL Ebsworth filed and served Mr Meredith’s report and Gary Liemant’s statement dated 1 July 2020 in the Developments proceeding. In a letter to the Authority’s solicitors, HWL Ebsworth advised of their instructions to amend Developments’ particulars of claim, including by joining Projects as a respondent to the proceeding.[63]
[63]Lofting Projects affidavit, Exhibit JL-21.

The joinder application was not filed until 8 April 2021. The application was refused on 14 May 2021, for the reasons given in Lantrak No 1.

The claim that Projects seeks an extension of time to make is for a total of $35,626,986, comprising:[64]
[64]Lofting Projects affidavit, Exhibit JL-2.

Loss of future income

$14,699,672

1.        Loss of sand $806,372

2         Loss of airspace due to sand not being extracted $3,219,840

3.        Loss of airspace due to construction of bund walls and platform $10,673,460

Past costs

$1,033,266

4.        Initial relocation of infrastructure $327,605

5.        Excavation of southern hole $355,261

6.        Establishment of drying pans $350,400

Future costs

$19,894,048

7.a      Cost of replacing the wheel wash on the acquired land $268,000

7.b      Cost of replacing a shed on the acquired land $97,355

7.c      Cost of fencing $33,250

8.a      Cost of constructing bund walls $8,675,122

8.b      Cost of constructing platform $10,119,774

9.        Cost of reworking eastern stockpile $89,548

10.      Cost of removing material for establishment of drying pans $611,000

Legal, valuation and other professional expenses

$597,941.42

Legal $247,424.85

Geologist $8,246.50

Valuation $8,000.00

Engineering $314,140.47

Forensic accounting $20,129.51

TOTAL

$35,626,986.00

The central elements of the claim that Projects now seeks to make are the same as the main areas of claim identified in the Lantrak group’s summary document of 5 March 2015. Then and now, the major component of the claim is the cost of constructing bund walls around the north-east pit and a platform (now) or access/haul roads (then) from which to fill the pit. Then and now, losses of sand and airspace form part of the claim, although the claimed value of the lost airspace has increased substantially. Then and now, there are claims for the cost of relocating infrastructure, and replacing the wheel wash.

The differences between the claim that the Lantrak group identified in March 2015 and the claim that Projects now seeks to make are:

(a) there is no longer any claim based on the market value of the acquired land ($428,500 not claimed);

(b) there is no longer a separate claim for hardstand replacement ($496,500 not claimed);

(c) there are now claims for replacing a shed and fencing on the acquired land ($130,605 claimed); and

(d) there are now claims for the cost of establishing drying pans, excavating the southern hole and reworking the eastern stockpile ($1,406,209 claimed).

Projects’ submissions

Projects submitted that the principal cause of delay in formulating its claim was the difficulty in finding an acceptable solution to reinstating the ability to fill the north-eastern pit from its western side, and in determining how to continue to fill the site and carry on the Lantrak business. It said that it was not possible to prepare a claim while it was still working through how the acquisition was going to affect its operations, which was something of a moving feast. It argued that this case was markedly different from many land acquisition matters, because the loss flowing from the acquisition was not known at the date of acquisition, was difficult if not impossible to predict, and would not crystallise for several years. In short, Projects submitted, it did not know what to claim.

While the Lantrak group knew reasonably early in the process that Projects was the occupier of the site and the operator of the business, it submitted that its attention was on working through the consequences of the acquisition and identifying the loss to the group. Once that had been done to the point of being able to particularise the claim, attention then returned to which Lantrak company had suffered which loss. It was always intended that the claims would proceed as one and that there would be no double recovery.

As to action taken by Projects to assert its claim, it relied on the notification of its interest in the acquired land set out in its solicitor’s letter of 21 February 2017. At that time, the Authority was content to deal with Projects’ claim as a single claim with that of Developments. Projects said that, from the continuing dealings with Developments, the Authority has been aware since late 2015 that the Lantrak group was adversely affected by the acquisition and that the scale of the financial impact was likely to be substantial. The Authority could not reasonably have thought that the claim had resolved or gone away.

Projects claimed that there would be no significant prejudice to the Authority if time were extended. None of the components of its proposed claim are new to the Authority. It disputed that the Authority would encounter any significant difficulty in defending the claim, due to the passing of time and the fading of memories, because the claim principally involves losses incurred by Projects’ landfill business.

During the hearing of the application, there was some confusion about Projects’ position in relation to statutory interest on its claim. Section 53 of the LAC Act provides that, if an amount of compensation is awarded by the Court under the LAC Act, the difference between the amount of compensation awarded and the amount offered by the Authority immediately before the claim became a disputed claim, bears interest at the rate determined under s 52 from the date of acquisition until the date the compensation is paid. Section 57 provides that, if a claimant seeks an extension of time under the LAC Act before making a claim, interest is not payable to the claimant on any unpaid amount of compensation during the period of the extension.

Projects clarified its position following the hearing, in a letter from HWL Ebsworth to the Court dated 3 September 2021, which conveyed the following undertaking:

Lantrak South East Projects Pty Ltd (ACN 163791811) (Projects), of Level 1, 18 Dansu Court, Hallam undertakes to the Court:
1. That it will not claim 70% of the interest to which it would otherwise be entitled under the Land Acquisition and Compensation Act 1986 (Act) in respect of the period from 30 June 2014 to 30 June 2016;
2. That it will not claim 70% of the interest to which it would otherwise be entitled under the Act in respect of the period from the extended date for making a Claim to the first day of the trial of the proceeding;
3. For the avoidance of doubt, it will also not claim any interest that it may have been otherwise entitled to under the Act for the period 30 June 2016 to the extended date for making a Claim; and
4. In the event that interest is payable as a matter of statute, it undertakes that this sum is to be offset against any interest awarded pursuant to statute.

As to the merits of the substantial claim, Projects contended that it has a strongly arguable case for compensation. The acquisition diminished its interest in the acquired land, as an occupier paying rent, and caused substantial disruption to its business. The elements of its claim are all arguably losses suffered as a natural, direct and reasonable consequence of the acquisition.

Projects submitted that it would be fair and equitable in all the circumstances to extend time for it to make a claim. It argued that there would be no unfairness to other parties if it were able to do so.

Authority’s submissions

The Authority’s position was that the explanation given by Projects for its delay in making the claim was insufficient and inadequate in many respects. It highlighted the following matters in its submissions:

(a) No current or former officer of Projects had deposed to their knowledge in respect of Projects’ right to make a claim for compensation. No officer had deposed to whether they were aware of any entitlement to make a claim for Projects at the time of the acquisition or at any time after that. No officer had explained why Projects’ interest in the acquired land was not identified by either Projects or Developments at an earlier time. No officer had explained why Projects did not make a claim after HWL Ebsworth’s letter of 21 February 2017, when the Authority sent its s 107 letter of 18 March 2019, or after the Authority referred Developments’ disputed claim to the Court on 4 April 2019.

(b) In the absence of any explanation from an officer of Projects, the explanation proffered in Mr Lofting’s affidavit should carry little if any weight. The Authority queried whether the hearsay evidence in Mr Lofting’s affidavit could be relied on at the final hearing of Projects’ application for an extension of time. It submitted that various conclusory statements made in Mr Lofting’s affidavit about the reasons for Projects’ delay should be given no weight.

(c) The explanation provided by Mr Lofting was inadequate. The Authority referred to contemporaneous documents that indicated that Projects and HWL Ebsworth were aware of Projects’ interest between 2015 and 2019, had identified the elements of its claim by March 2015, and had done substantial work towards preparing its claim by March 2017. Although Mr Lofting referred to the Authority’s agreement, in March 2017, that Projects could make a claim together with Developments, he did not explain whether Projects or HWL Ebsworth had relied on that agreement.

The Authority characterised Mr Lofting’s explanation — that the focus of the Lantrak group and its advisers had been on trying to determine the elements of the claim, rather than focussing on the claimant — as unfair to the Authority and other claimants who diligently comply with the timelines in Pt 3 of the LAC Act. It contrasted the efforts made by the Authority, from March 2014 onwards, with Projects’ inaction and lack of urgency. The Authority submitted that Projects had at all relevant times delayed taking action and had rested on its rights.

As to prejudice, the Authority was most concerned about the potential for a substantial interest liability if Projects were permitted to make a late claim. It emphasised its interest in maintaining compliance with the statutory time frames, to ensure that claims for compensation are made and advanced quickly to resolution.

The Authority also argued that, if Projects’ claims are allowed to proceed, the Authority would be at a significant disadvantage in defending the claims due to the passing of time. The acquisition occurred more than seven years ago, the Dingley Bypass was completed more than five years ago, and key employees and advisers have now retired or moved on. The recollections of witnesses are likely to have faded, including in relation to the discussions held between the Lantrak group and the Authority between 2016 and 2018. In addition, the Authority was concerned that granting an extension to Projects would further delay resolution of Developments’ claim, and would set an undesirable precedent.

As to the merits of the claim, the Authority submitted that there were ‘overwhelming difficulties’ with the claims that Projects seeks to make. Projects’ interest in the acquired land was a fragile interest — as a tenant at will, its occupancy was vulnerable to termination at any moment.[65] In those circumstances, the Authority argued, it was not clear how the very substantial future losses that Projects claims to have suffered could have arisen as a natural, direct and reasonable consequence of the diminution of its interest. In addition, at the time of the acquisition, Developments was obliged to complete rehabilitation of the site by 2017. There was no basis for Projects to expect that the Rehabilitation Plan would be amended to extend the time allowed for rehabilitation of the site. A number of other difficulties with the claims advanced by Projects were pointed out by the Authority in its written submissions, although the Authority accepted in oral submissions that these were more to do with the amount of the claim, rather than whether Projects had a claim at all.
[65]Relying on Secretary to the Department of Transport v Provan’s Timber Pty Ltd [2020] VSCA 210, [152], [155]–[156].

Finally, the Authority contended that it would be manifestly unfair to all claimants who have made and advanced claims in a timely way to endorse Projects’ failure to do so by granting it an extension of time.

Consideration

The discretion to extend time under s 106 of the LAC Act must be exercised in the context of the rationale for the limitation period in s 37(2). The rationales for limitation periods generally include the deterioration in the quality of justice caused by delay, the public interest in the prompt resolution of disputes, and the desirability of people, including public authorities, being able to order their affairs and utilise their resources on the basis that claims cannot be made after expiry of the limitation period.[66] The two-year limitation period fixed by s 37(2) of the LAC Act represents the legislature’s judgment that society is best served by claims being made within that period, and achieves ‘a balance between the objective of a speedy resolution of the issue and the objective of fairness to the landowner’.[67] The discretion to extend time therefore requires an applicant to show that its case is a ‘justifiable exception to the rule that the welfare of the State is best served by the limitation period in question’.[68]
[66]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551–4 (McHugh J).
[67]Stuart Morris, Land Acquisition and Compensation: Proposals for New Land Acquisition & Compensation Legislation: Report to the Minister for Planning (January 1983) (Morris Report), 48 [541]. The limitation period of two years prescribed by s 37(2) of the LAC Act is significantly longer than the three months recommended in the Morris Report.
[68]Brisbane South, 553–4 (McHugh J).

Projects has not demonstrated that its case is a justifiable exception to the rule that claims for compensation under the LAC Act must be made within the two-year period prescribed in s 37(2). There are three primary reasons why I have concluded that time should not be extended: the length of the delay, the lack of any real explanation for it, and the merits of Projects’ claim. As a secondary consideration, I accept that the Authority would be prejudiced in responding to the claim, so long after the acquisition.

Length of delay

Projects seeks an extension of time in the order of five years. The land was acquired on 30 June 2014, and the time for Projects to make a claim under s 37(2) expired two years later, on 30 June 2016. In February 2017, Projects indicated its intention to make a claim, but did not do so. It was not until 1 December 2020 that Projects indicated the nature of its claim. Its application for an extension of time was filed more than six months later, on 16 June 2021. This is a very significant delay, which calls for an explanation.

Explanation for the delay

I have read Mr Lofting’s affidavit in support of Projects’ application carefully. Despite its length, and the volume of documents exhibited to it, the affidavit is surprisingly uninformative about the reasons for Projects’ delay in making a claim. It sets out a long chronology of events, and describes a great deal of activity undertaken on behalf of the Lantrak group, but does not explain why no claim was made on behalf of Projects until December 2020.

The unexplained lack of any evidence from Projects’ current director, Gary Liemant, or its former director, Mark Liemant, is telling. Either might have explained what Projects, through its officers, knew of its entitlement to make a claim, and why it did not do so. Neither gave any explanation, either directly or through Projects’ solicitor. Gary Liemant’s detailed witness statement in the Developments proceeding was one of the exhibits to Mr Lofting’s affidavit. It does not explain why Projects did not make a claim at an earlier time.

Further, the principal reason advanced by Mr Lofting for the delay is at odds with the findings I have set out at [54] to [91] above. Mr Lofting claimed that the principal reason for the delay was that ‘the focus of the Lantrak group and its advisers has been on trying to determine the elements of the claim, rather than focusing on the claimant’.[69] I cannot reconcile that claim with the documents referred to above, which indicate that both the Lantrak group and its advisers:
[69]Lofting Projects affidavit, [9].

(a) had formulated the essential elements of the claim that Projects now seeks to bring as early as March 2015;[70] and

(b) understood by the end of 2015 that Projects operated the landfill business on the site, and paid rent to Developments for its occupation of the site.[71]

[70]See [66]–[68], [90]–[91] above.

[71]See [69] above.

I accept that a great deal of time and energy was spent between 2016 and 2019 in ultimately fruitless discussions with the Authority about a technical solution to the difficulties the acquisition had caused for the operation of Projects’ business. The evidence does not explain why Projects did not make a claim during these drawn out discussions. It is a simple enough matter for a party to make a formal claim while also engaging in discussions to resolve it. I do not accept that focussing on the latter is an explanation for not taking the steps needed to commence the former.

While the lack of an acceptable explanation for the delay is not conclusive, there would need to be some other good reason to grant the extension that Projects seeks. I have considered whether the merits of its claim for compensation are such that Projects’ claim should be permitted to proceed, despite its unexplained and lengthy delay. I am not convinced that they are of that quality.

Merits of the proposed claim

Projects’ proposed claim is remarkably large — more than $35 million — given the fragility of its interest in the acquired land. It was, at best, a monthly tenant at will at the time of the acquisition.

An occupant with the same interest was found in Roads and Maritime Services v United Petroleum Pty Ltd[72] to have no entitlement to compensation for loss of future profits, beyond the one-month notice period. The New South Wales Court of Appeal rejected the idea that loss of profits due to the closure of the business was a loss reasonably incurred as a direct and natural consequence of the acquisition.[73] The loss was the result of the nature of the lessee’s tenure. As Sackville AJA observed, the conclusion in United Petroleum ‘limits the opportunities for related companies to order their affairs so that each is entitled to claim compensation for what is essentially the same economic detriment’.[74]
[72](2019) 99 NSWLR 279 (United Petroleum).
[73]United Petroleum, [52] (Basten JA), [72] (Macfarlan JA), [73], [75] (Payne JA), [116]–[118] (Sackville AJA), [161] (Preston CJ of LEC).
[74]United Petroleum, [121] (Sackville AJA).

United Petroleum has been followed in Victoria in Secretary to the Department of Transport v Provan’s Timber Pty Ltd.[75] In that case, the Court of Appeal held that a tenant at will was not entitled to compensation for relocation costs incurred following the acquisition of the land on which it conducted its hardware business. The principal or direct cause of its relocation costs was the insecure tenancy on which it based its business.[76] The Court of Appeal held that an occupying interest that has no market value is insufficient to generate an entitlement to substantial compensation.[77] It went on to explain that the nature and duration of the occupying interest is critically important to the determination of the compensation to which an occupier is entitled, and that ‘the fragility of a tenancy at will, its “ephemeral” quality, must also mean that the causation test cannot be applied to it as though it were an enduring or robust interest in land’.[78]
[75][2020] VSCA 210 (Provan’s Timber).
[76]Provan’s Timber, [156].
[77]Provan’s Timber, [136].
[78]Provan’s Timber, [152] (citations omitted).

In light of the authorities of United Petroleum and Provan’s Timber, there is little obvious merit to Projects’ substantial claim for loss attributable to disturbance for the acquisition of its ‘ephemeral’ interest in the acquired land. I accept, as Projects submitted, that the question of whether a loss is the natural, reasonable and direct consequence of an acquisition is a question of fact, and that the answer depends on the facts and circumstances of each case. However, Projects did not attempt to explain how the facts of this case differ from those considered in United Petroleum and Provan’s Timber, or why a different conclusion might be reached. As the Authority submitted, Provan’s Timber is a ‘steep hill to climb’, and Projects did not satisfy me that it had any real prospect of climbing it. In short, the merits of Projects’ proposed claim do not compensate for the long and unexplained delay in making it.

Prejudice

The undertaking given by Projects after the hearing clarified its position in relation to interest on its proposed claim.[79] It alleviated the Authority’s fear that an extension of time would expose it to a very significant liability for statutory interest, for the whole period during which Projects rested on its rights. I therefore put aside that aspect of the prejudice that the Authority claimed it would suffer were time to be extended.
[79]See [97] above.

However, I was satisfied that the Authority would be placed at a disadvantage in responding to Projects’ claim, due to the passage of time. The evidence relied on by the Authority established that a number of key employees and advisers involved in the Dingley Bypass project have retired or moved on, in the five years since construction of the Bypass was completed. This is an additional, albeit less weighty, consideration against granting an extension of time. For reasons I will discuss shortly, I do not accept that the Authority will have to respond to the substance of Projects’ proposed claim in the context of the existing Developments proceeding.

For those reasons, I refuse Projects’ application under s 106 of the LAC Act for an extension of time to make a claim under s 37.

Authority’s summons

At the conclusion of my reasons in Lantrak No 1, I observed that ‘various claims made in the current version of the particulars of claim relate to the business conducted by Projects, and not [Developments’] interest in the acquired land’.[80] I therefore made an order directing Developments to file and serve further amended particulars of claim, deleting any head of claim that is no longer pressed, and omitting any claims that there is no proper basis for Developments to make.
[80]Lantrak No 1, [38].

On 24 May 2021, Developments filed and served further amended particulars of claim in the Developments proceeding. However, the amended document did not omit the claims for loss attributable to disturbance that were also the subject of Projects’ proposed claim. Paragraph 1 of the amended document claimed a total of $35,626,986 by way of disturbance losses, formulated in exactly the same way as Projects’ proposed claim.[81]
[81]Set out at [89] above.

This prompted the Authority to file a summons on 7 June 2021, seeking summary dismissal of the claims made in paragraph 1 of Developments’ further amended particulars of claim dated 24 May 2021, pursuant to ss 61 and 63(1) of the Civil Procedure Act 2010 (Vic) or in the inherent jurisdiction of the Court. In the alternative, the Authority sought an order dismissing the claims pursuant to r 23.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), or an order striking out the claims pursuant to r 23.02 of the Rules.

Authority’s submissions

The Authority submitted that the disturbance losses currently claimed by Developments in paragraph 1 of its further amended particulars of claim have no real prospect of success and should therefore be summarily dismissed under s 63 of the Civil Procedure Act. It referred to authorities that it said established the following principles:

(a) Disturbance loss is personal to the owner of an acquired interest in land, and its recovery depends on the claimant showing that it has suffered an actual loss that is a natural, direct and reasonable consequence of the acquisition.[82]
[82]Love v Roads Corporation [2011] VSCA 434, [96]. See also LAC Act, s 41(1)(d).

(b) Disturbance loss is a residual category of compensation, confined to pecuniary loss ‘for which provision is not otherwise made in this Part’.[83]

(c) Compensation for disturbance loss cannot be divorced from the interest in land that is divested or diminished.[84]

[83]Referring to Secretary to the Department of Economic Development, Jobs, Transport and Resources v Manor Lakes (Werribee) Pty Ltd (2017) 224 LGERA 195, [27]. See also LAC Act, s 40 — definition of ‘loss attributable to disturbance’.

[84]Referring to Provan’s Timber, [6].

The Authority argued that the evidence established that, if the losses claimed were suffered by anyone, they were suffered by Projects. It said that there was no real prospect that Developments could recover the disturbance losses claimed, for the following reasons:

(a) At the time of the acquisition, Developments was the owner of the site, which it used to undertake a tenancy business. It received rent of $108,000 each year, both before and after the acquisition. At no time has Developments conducted any other business connected with the site.

(b) Projects occupied the site at the time of the acquisition, and operated the landfill business on the entire site from 1 July 2013 to 30 June 2017. From 1 July 2017, it has occupied, and operated the landfill business from, the eastern side of the site.

(c) The instructions given by HWL Ebsworth to Mr Meredith on behalf of the Lantrak group were that all past and future losses were losses of Projects. Those instructions are reflected in Mr Meredith’s expert report dated 27 November 2020.

(d) Both Developments’ unsuccessful application to join Projects as a party to the Developments proceeding and Projects’ subsequent application for an extension of time were made on the basis that the disturbance losses were suffered by Projects. The evidence relied on in support of both applications was that Projects, as the operator of the business conducted on the site, had suffered loss of income and incurred costs due to the acquisition, and would continue to do so.

Notably, the Authority accepted that Developments may have claims for compensation for the acquisition of its land on 30 June 2014, such as compensation for the market value of the freehold interest in the acquired land, including any improvements, and loss attributable to severance. However, Developments had not made or pleaded any claims of this nature, although the proceeding has been on foot since 4 April 2019.

Developments’ submissions

Developments did not dispute the Authority’s summary of the principles relating to compensation for disturbance loss, or its factual submissions. Its preference was that the losses suffered by Developments and Projects by reason of the acquisition should be considered and assessed as one claim, so that there would be no need to attribute the losses to either one of them.

In the event that Projects did not obtain an extension of time, Developments foreshadowed a wish to recast its claim, on the basis that Developments’ interest in the acquired land was not qualified by Projects’ fragile interest as a tenant at will. Its submissions identified possible claims for loss of market value or special value, as well as additional costs that must be incurred in order to complete the rehabilitation of the site. Developments pointed out that it has the obligation to rehabilitate the site, under the Work Authority in force under the Mineral Resources (Sustainable Development) Act, and that it is the respondent to Kingston City Council’s enforcement action that is pending in the Tribunal.

Consideration

The claims made by Developments for loss attributable to disturbance, as set out in its further amended particulars of claim, cannot be maintained. They reproduce the proposed claim that Projects belatedly sought to make, for disturbance losses suffered or to be incurred by Projects in the conduct of its landfill business. As those claims are formulated at present, they simply do not relate to the divesting or diminishing of Developments’ freehold interest in the acquired land as at 30 June 2014.

Projects has not succeeded in its application for an extension of time in which to make a claim that could be considered and determined together with Developments’ claim. However, I accept that it may still be possible, even at this very late stage, for Developments to formulate a claim for compensation in respect of its interest in the acquired land, by reference to the factors set out in s 41(1) of the LAC Act. To date, Developments has made no claim for market value, special value, or loss attributable to severance. Nor has it made any claim for loss attributable to disturbance, based on the effect of the acquisition on its ability to meet its obligations to rehabilitate the site. Claims of this kind may have some prospect of success. Claims in respects of losses and expenses incurred by another company do not.

The claims made in paragraph 1 of Developments’ further amended particulars of claim dated 24 May 2021 will be summarily dismissed. Developments will have an opportunity to reformulate its claim.

Disposition

The Projects proceeding must be dismissed. Projects did not succeed in its claim for declarations, or in obtaining an extension of time under s 106 of the LAC Act.

In relation to the Authority’s summons in the Developments proceeding, I will make an order under s 63 of the Civil Procedure Act and r 23.01 of the Rules, summarily dismissing the claims made in paragraph 1 of Developments’ further amended particulars of claim. I will further order that, by 25 February 2022, Developments is to file and serve second further amended particulars of claim. The proceeding will be listed for further directions in early March 2022.

I will hear the parties in relation to the costs of the Projects proceeding and the costs of the Authority’s summons in the Developments proceeding.

Loss of future income	$14,699,672
1. Loss of sand	$806,372
2 Loss of airspace due to sand not being extracted	$3,219,840
3. Loss of airspace due to construction of bund walls and platform	$10,673,460
Past costs	$1,033,266
4. Initial relocation of infrastructure	$327,605
5. Excavation of southern hole	$355,261
6. Establishment of drying pans	$350,400
Future costs	$19,894,048
7.a Cost of replacing the wheel wash on the acquired land	$268,000
7.b Cost of replacing a shed on the acquired land	$97,355
7.c Cost of fencing	$33,250
8.a Cost of constructing bund walls	$8,675,122
8.b Cost of constructing platform	$10,119,774
9. Cost of reworking eastern stockpile	$89,548
10. Cost of removing material for establishment of drying pans	$611,000
Legal, valuation and other professional expenses	$597,941.42
Legal	$247,424.85
Geologist	$8,246.50
Valuation	$8,000.00
Engineering	$314,140.47
Forensic accounting	$20,129.51
TOTAL	$35,626,986.00

[2021] VSC 774

25 November 2021