Ibos Pty Limited v DHSH (Aust) Travel Pty Limited
[2007] NSWLEC 120
•9 March 2007
Reported Decision: 152 LGERA 348
Land and Environment Court
of New South Wales
CITATION: Ibos Pty Limited v DHSH (Aust) Travel Pty Limited [2007] NSWLEC 120
This decision has been amended. Please see the end of the judgment for a list of the amendments.PARTIES: APPLICANTS:
Ibos Pty Limited and Martin and Anna HazenveldFIRST RESPONDENT:
SECOND RESPONDENT:
DHSH (Aust) Travel Pty Limited
Minister for LandsFILE NUMBER(S): 30071 of 2006 CORAM: Biscoe J KEY ISSUES: Compulsory Acquisition of Land :- application to Minister to compulsorily acquire land under Roads Act 1993 (NSW) Part 12 Div 2 - Minister decides to deal with application and gives notice of decision under s 185 - after considering submissions Minister decides to continue with proposed acquisition, gives notice of decision, determines claims of interest in the land and gives notice of determination under ss 187 and 189 - whether land sufficiently identified in the decisions, determinations and notices under ss 185, 187 and 189. LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979 ss 19(a), 24 and 25
Roads Act 1993 (NSW) Part 12 Division 2CASES CITED: King Gee Clothing Pty Ltd v The Commonwealth (1945) 71 CLR 184;
Nedoni Pty Ltd v Minister for Roads [2004] NSWLEC 56;
Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 73DATES OF HEARING: 6 September 2006, 19-20 October 2006
DATE OF JUDGMENT:
9 March 2007LEGAL REPRESENTATIVES: APPLICANTS:
Ms H Irish, barrister
SOLICITORS
Donovan Oates HannafordFIRST RESPONDENT:
Mr J Doyle, barrister
SOLICITORS
Thompson PlayfordSECOND RESPONDENT:
(submitting appearance)
Mr R Schultz
SOLICITORS:
Department of Lands
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
9 March 2007
30071 of 2006
JUDGMENTIBOS PTY LTD AND ANOR v DHSH (AUST) TRAVEL PTY LIMITED & ANOR
HIS HONOUR
:
INTRODUCTION
1 Under the Roads Act 1993 (NSW) Part 12 Division 2, a person may apply to the Minister for Lands to compulsorily acquire land for the purposes of a public road. If the Minister decides to deal with the application and, after considering any submissions, to continue with the proposed acquisition, and if a person who has an interest in the land has applied for compensation, the amount of compensation is to be determined by agreement between the applicant and the third party and then approved by the Minister. If no agreement is approved, the applicant, the third party or the Minister may apply to this Court for determination of the amount of compensation. The approved agreement or curial determination lapses if the land is not acquired within 12 weeks thereafter. As soon as practicable after the amount of compensation has been agreed or determined, the Minister must require the applicant to pay that amount to the Minister who must, on acquiring the land, pay the compensation to the claimant. The Minister may abandon the proposed acquisition at any time.
2 In the present case, the applicants, who own rural land in the local government area of Port Macquarie – Hastings, made such an application in 2003 for the opening of a public road over rural lands of a neighbour, DHSH (Aust) Travel Pty Ltd, in order to gain better access to the applicants’ property. DHSH’s lands comprised Lots 58,63, 64 and 71 in DP 754417. The Minister approved the application and no agreement as to amount having been reached between the applicants and DHSH, the applicants applied to this Court to determine the amount of compensation. The respondents are DHSH and the Minister for Lands. The Application, as amended, states that is brought under s 193 of the Roads Act 1993.
3 Before me is an amended Notice of Motion filed by DHSH on 20 October 2006, which seeks an order that the Application be summarily dismissed or struck out. There were previously before me for determination a number of points of law and issues set out in two documents filed by DHSH respectively entitled (a) “Respondent’s Statement of Points of Law and Issues” filed on 1 June 2006, which was substantially amended during the course of the hearing before me, and (b) “Further Points of Law and Issues Raised by the Respondent” dated 6 September 2006. Some issues in those two documents are subsumed in the amended notice of motion and, to the extent that they are not, it was agreed by the parties that they would not be determined at this time.
4 Five grounds for summary dismissal or strike-out are set out in DHSH’s amended notice of motion as follows:
- (a) The Minister is not authorised to acquire land from the respondent under Part 12 Division 2 of the Roads Act (1993)(“Roads Act”) because the only time the Minister purported to notify the respondent that he was considering to acquire land for the purpose of a public road, he did not identify the land concerned as he was required to under Section 184 of the Roads Act , and he could not therefore have lawfully resolved to continue with a proposed acquisition of land from the respondent under Section 187 of the Roads Act .
(b) No determination has been made under Section 187 of the Roads Act because no land was ever identified to be the subject of that determination before it was made.
(c) No notice under Section 189 of the Roads Act of a decision by the Minister under Section 187 to proceed with the acquisition of land from the respondent has ever relevantly issued because the only notice the Minister ever purported to issue failed to sufficiently identify the land to be acquired and did not meet the statutory requirements of Section 189(2).
(d) Because no notice under Section 189 of the Roads Act has ever relevantly issued, 12 weeks cannot have elapsed since service of such a notice and the applicant has no right to commence proceedings under Section 193 of the Roads Act.
(e) No reasonable cause of action is disclosed (Part 13, rule 5 of the Supreme Court Rules 1970 adopted by Part 6 rule 1 of the Land and Environment Court Rules)
5 In summary, those grounds say that these proceedings have not been properly commenced under s 193, because the Minister has not validly made the necessary prior determinations or validly issued the prior notices required by ss 184, 187 and 189. The reason is said to be because the land to be acquired was not identified with particularity. DHSH submits that that is not a matter that can now be overcome and, accordingly, that the Application should be struck out or dismissed.
6 The applicants’ Statement of Facts filed on 17 August 2006 included the following:
2. The proposed road to be opened (“ Proposed Road” ) will follow the same path as the presently used track in use which has been in use for over one hundred years.
4. The Proposed Road to the applicants’ land will be a no through road ending at travelling stock route (TSR) 27023. The TSR will provide access to the applicants’ land from the end of the Proposed Road to the frontage of the applicants’ Land.3. The applicants’ land was approximately 7,000 hectares in area. It is surrounded by national park and nature reserves. The applicants’ Land can be practically accessed only by the existing track in use.
7 Part 12 of the Roads Act 1993 is entitled “Acquisition of Land”. Division 2 of Part 12 is entitled “Acquisition of Land on Private Application”. It comprises ss 181 to 202 which relevantly provide as follows:
182 Private individuals etc may request Minister to acquire land…
(1) Any person who is not empowered to compulsorily acquire land may apply to the Minister for the acquisition under this Division of land (other than unoccupied Crown land) for the purposes of a public road.
- …
183 Minister may require information and advance payments(3) The Minister may, by notice published in the Gazette, acquire the whole or any part of the land to which such an application relates.
(4) Land may not be acquired under this Division unless the provisions of this Division have been complied with.
(1) The Minister may from time to time, by notice in writing served on the applicant, require the applicant to lodge with the Minister any one or more of the following within the period specified in the notice:
- (a) any fee required to cover the cost of processing the application,
(b) any sum of money necessary to defray a cost incurred by the Minister or any other person with respect to the proposed acquisition,
(c) particulars of the financial resources available to the applicant,
(d) any further information relevant to the application,
(e) a plan of survey , in a form approved by the Minister, of the land proposed to be acquired.
(2) Such a notice may be served either before or during the consideration of the application.
184 Decision on whether to deal with application(3) An application is taken to have been abandoned if the requirements of any such notice are not duly complied with.
(1) The Minister:
- (a) must decide whether to deal with the application or whether to refuse to deal with the application, and
(b) must give notice to the applicant of the decision and (if the Minister decides to refuse to deal with the application) of the reasons for the decision.
- (a) to be published in a local newspaper, and
(b) to be served on each person who is an apparent owner of the land affected by the proposed acquisition…
…
- (a) must state that the Minister is considering whether to acquire the land for the purposes of a public road, and
(b) must identify the land , and
(c) must indicate the place at which, and the times during which, a plan of the land is available for inspection by members of the public, and
(d) must state that any person is entitled to make submissions to the Minister with respect to the proposed acquisition of the land, and
(e) must state that, if the land is acquired, any person having an interest in the land will be entitled to compensation so long as the person has lodged a claim of interest with the Minister, and
(f) must indicate the manner in which, and the period (being at least 42 days) within which, any such submission or claim should be made or lodged.
(4) The Minister must ensure that copies of the plan of the land are available for inspection by members of the public at the place, and during the times, specified in the notice.
186 Public submissions and claims of interest185 Registrar-General to be notified of Minister’s decision to deal with an application
(1) The Minister must, as soon as practicable after publishing a notice of intention to deal with an application, give notice of that fact to the Registrar-General.
(2) Any such notice must be in such form as the Registrar-General approves.
(3) On receipt of the notice, the Registrar-General must make such recordings as the Registrar-General considers appropriate in the Register kept under the Real Property Act 1900 , or in the General Register of Deeds kept under the Conveyancing Act 1919 , as the case requires.
(1) Any person may make submissions to the Minister with respect to the proposed acquisition of land under this Division.
(2) Any person who believes that he or she may have an interest in the land proposed to be acquired may lodge a claim of interest with the Minister.
(3) A claim of interest:
- (a) must contain the full name and residential address of the claimant, the claimant’s address for service of notices and particulars of title of the land in respect of which the claim is made, and
(b) must specify the interest that the claimant claims to have in the land, and
(c) must state whether the claimant is aware of any other person who has an interest in the land and, if so, must also state, to the extent to which the claimant is aware of them, the name and residential address of that person and particulars of the interest.
- 187 Decision on whether to continue with proposed acquisition
(1) After considering any submissions that have been duly made with respect to the proposed acquisition of land, the Minister:
- (a) must decide whether to continue with , or to abandon, the proposed acquisition, and
(b) if the Minister decides to abandon the proposed acquisition, must give notice to the applicant of the decision and of the reasons for the decision.
- (a) must determine each claim of interest , and
(b) must give notice to the claimant of the determination and (if the Minister decides to reject the claim) of the reasons for the determination.
(4) This section does not prevent the Minister:
- (a) from determining a claim that is lodged after the due date for lodgment of claims, or
(b) from determining a claim that is taken to have been rejected.
…
189 Notice to be sent to holders of interests in land
(1) After the claims of interest have been determined , the Minister must give notice of the decision to continue with the proposed acquisition of the land to:
- (a) the applicant, and
(b) each person whose claim of interest has been accepted.
- (a) must invite the applicant and each such person to agree on the amount of compensation to be paid or otherwise provided in respect of that person’s interest, and
(b) must notify the applicant and each such person that any such agreement does not have effect unless it is approved by the Minister, and
(c) must notify the applicant and each such person that either of them, or the Minister, may apply to the Land and Environment Court for a determination of the amount of compensation to be paid or otherwise provided if an agreement is not made and approved within 12 weeks after service of the notice.
- 190 Entitlement to compensation
(1) Any person from whom an interest in land is acquired under this Division is entitled to compensation from the Crown for the land acquired.
(2) There is no entitlement to compensation with respect to:
- (a) any right, licence, authority, permit, permissive occupancy or yearly lease of Crown land, or
(b) any authority, mineral claim or opal prospecting licence under the Mining Act 1992 , or
(c) any petroleum title under the Petroleum (Onshore) Act 1991 , or
(d) any interest in respect of which a claim of interest has not been duly made, or
(e) any interest in respect of which a claim of interest has been made but has been rejected.
(4) The provisions of sections 49, 50, 52 and 53, and Division 4 of Part 3, of the Land Acquisition (Just Terms Compensation) Act 1991 apply to compensation to be paid or otherwise provided for the acquisition of land under this Division as if references in those provisions to an authority of the State were references to the Minister.
(5) Interest under section 49 of the Land Acquisition (Just Terms Compensation) Act 1991 is not payable on any amount of compensation paid within 28 days after the date of acquisition.
(6) The applicant must pay to the Crown the amount of any compensation to be provided under this Division, together with any costs incurred by the Crown in connection with the provision of any such compensation.
- …
- 192 Determination by agreement
(1) An agreement for compensation must be in writing, must be signed by the parties to the agreement and must be approved by the Minister.
(2) The Minister:
- (a) must decide whether to approve the agreement for compensation or whether to refuse approval, and
(b) must give notice to each of the parties of the decision and (if the Minister decides to refuse approval) of the reasons for the decision.
- 193 Determination by the Land and Environment Court
(1) The claimant, the applicant or the Minister may, in accordance with rules of court, apply to the Land and Environment Court to determine the compensation to be provided, if no agreement has been approved :
- (a) within 12 weeks after service of the relevant notice under section 189, or
(b) where no such notice is required to have been given (an agreement having been lodged as referred to in section 189 (3)), within 12 weeks after the agreement was lodged.
194 Determination by Valuer-General(2) At the hearing of the application, the Minister, the claimant and the applicant are entitled to appear and be heard.
- On the request of the Minister, the Valuer-General is to determine the compensation payable to an owner of the interest in land specified in the request.
195 Payment of compensation money…
(1) As soon as practicable after compensation has been agreed or determined under this Division, the Minister:
- (a) must require the applicant to pay to the Minister such part of the compensation so determined as is to be paid in money, and
(b) must pay any such amount received from the applicant into a trust account for payment to the persons entitled to the compensation, and
(c) must, on acquiring the land, pay the compensation to each person entitled to compensation for the acquisition of the land.
197 Release and indemnity(2) The compensation money must be refunded to the applicant if the proposed acquisition is abandoned .
(3) Any money remaining in the trust account after 6 years from the date of the acquisition of the land is to be paid to the Chief Commissioner of Unclaimed Money for payment into the Consolidated Fund, there to be dealt with as unclaimed money under the Unclaimed Money Act 1995 .
(4) The Minister is relieved from further liability with respect to any amount paid into the Consolidated Fund in accordance with subsection (3).
…
- The Minister may require the person to whom any compensation is to be paid or otherwise provided:
(a) to release the Minister from any liability to that person with respect to the interest in land for which the compensation is to be paid or provided, and
(b) to indemnify the Minister from any liability to any other person with respect to that interest, and
(c) to produce any relevant documents of title.
199 Abandonment of applications etc
198 Agreement or determination to lapse if land is not acquired within 12 weeks
(1) If land for which compensation has been agreed to or determined is not acquired under this Division within 12 weeks after the agreement was approved or the determination was made, as the case requires, the agreement or determination ceases to have effect.
(2) A person entitled to compensation may ratify such an agreement or determination, whether or not it has lapsed under this section, but no later than 12 months after the date on which the agreement was entered into or the determination was made.
(3) An agreement or determination ratified under this section continues in force for 12 weeks from the date of ratification and then lapses unless within that period the land to which it relates is acquired under this Division.
(4) If an agreement or determination made in respect of a claim for compensation has lapsed under this section and no ratification of the agreement or determination under this section is currently in force, the provisions of this Division apply to the claim as if no such agreement or determination had been made.
(1) An applicant may, at any time, withdraw an application for the acquisition of land under this Division.
(2) The Minister :
- (a) may at any time and for any reason , and
(b) must if the relevant application is withdrawn,
abandon the proposed acquisition of land under this Division.
(3) If the Minister decides to abandon the proposed acquisition of land otherwise than because the application is withdrawn, the Minister must cause notice to be given to the applicant of the decision and of the reasons for the decision.
(4) The applicant is entitled to be refunded all money paid by the applicant to the Minister with respect to the proposed acquisition, other than such amounts as the Minister considers appropriate to compensate the Minister and any other persons who have incurred costs with respect to the proposed acquisition.
(5) If a proposed acquisition of land is abandoned, no further application with respect to that land is to be considered by the Minister during the period of 12 months after the acquisition is abandoned unless the Minister is satisfied that the special circumstances of the case justify the consideration of the further application within that period.
200 Registrar-General to be notified of abandonment of application
(1) The Minister must, as soon as practicable after the proposed acquisition of land is abandoned, give notice of that fact to the Registrar-General.
(2) Any such notice must be in such form as the Registrar-General approves.
(3) On receipt of the notice, the Registrar-General must make such recordings as the Registrar-General considers appropriate in the Register kept under the Real Property Act 1900 , or in the General Register of Deeds kept under the Conveyancing Act 1919 , as the case requires.
(4) This section does not apply if the Minister has not published a notice under section 184 with respect to the proposal.
202 Effect of acquisition of land201 Waiver of claims
(1) Any person may, by notice in writing served on the Minister, waive that person’s entitlement to compensation under this Division.
(2) The Minister may require a person who has, or who in the opinion of the Minister may have, an entitlement to compensation to give notice to the Minister as to whether or not the person intends to claim compensation.
(3) A person on whom such a notice is served is taken to have waived the person’s entitlement to compensation (if any) if the person has not claimed compensation within 42 days after service of the notice.
(1) On the acquisition of land under this Division, the land becomes free of all trusts, restrictions, dedications, reservations, obligations and interests and, subject to this section, becomes Crown land.
(2) There may be excepted from an acquisition effected under this Division:
- (a) any easement which is specified in the notice effecting the acquisition and to which the land was subject immediately before the acquisition, and
(b) any easement specified in that notice which is appurtenant to an easement referred to in paragraph (a).
- (a) in accordance with subsection (2), an easement is excepted from the acquisition, and
(b) immediately before the acquisition, the benefit of a restriction as to user was annexed to the easement,
then, unless otherwise specified in the notice by which the acquisition is effected, the restriction continues to have effect as if the acquisition had not taken place.
(emphasis added)(4) The provisions of sections 33–36 of the Land Acquisition (Just Terms Compensation) Act 1991 apply to land acquired under this Division as if references in those provisions to an authority of the State were references to the Minister.
8 A notable feature of this statutory scheme is that agreement concerning, or curial determination of, compensation precedes compulsory acquisition and that, notwithstanding agreement or determination, it remains open to the Minister to abandon the proposed acquisition. This is in sharp contrast to the procedures under the Land Acquisition (Just Terms Compensation) Act 1991 whereby there is a compulsory acquisition followed by agreement or curial determination of the amount of compensation. Whereas cases under the Just Terms Act are commonplace, cases under the Roads Act are rare.
9 A claim for compensation in accordance with Division 2 of Part 12 of the Roads Act is assigned to Class 3 of this Court’s jurisdiction: Land and Environment Court Act 1979 ss 19(a), 24 and 25. In hearing and disposing of any such claim “the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled”: s 25(1).
THE EVIDENCE
10 On 3 March 2003 the applicant Mr Hazenveld wrote to persons associated with DHSH concerning the latest developments in regard to legal access to the applicants’ property over DHSH’s property. He said that under the Roads Act the Land Board could open a 20 metre wide road over an existing track, which makes it a public road. He indicated a belief that granting of an unrestricted right of carriageway over the track in use was a better option than the declaration of the public road over this track. He expressed a wish to resolve the matter by discussion.
11 On 10 March 2003, the Department of Land and Water Conservation sent a facsimile to persons associated with DHSH. This facsimile stated that the Department had received an enquiry from Mr Hazenveld, concerning the lodgement of a road opening application over an access track in use in the Mount Seaview area on DHSH’s land.
12 On 14 May 2003, the applicants applied in writing, on a standard form, under s 182(1) of the Roads Act to the Department of Land and Water Conservation for the opening of a proposed road over rural lands including those owned by the respondent “as illustrated on the accompanying map/diagram/plan: (a) to open the road(s) in the location(s)/position(s) shown by red colour”. The stated purpose was “to enable practical and legal access” to the applicants’ property. The accompanying diagram to this application is a copy of DP 1037653, which shows a “right of carriageway over track in use” passing over lands owned by DHSH comprising lots 58, 63, 64 and 71 in DP754417, and (for a short distance) over the publicly owned TSR 27023. A schedule of the land affected by the proposed road referred to those lots owned by DHSH and to TSR 27023. The information provided with the application stated that the previous owners and the applicants had constructed part of the road. The printed form of application stated, “Survey of the proposed road is to be arranged privately”. The following information was provided to printed questions on the form:
- Is the proposed road formed and in use? Yes.
Is the proposed road in use in the location
13 The said existing track in use was recorded on the title to DHSH’s relevant lands by the notification “DP1037653 Right of carriageway over track in use appurtenant to the land above described”. DHSH’s Lot 58 is separated from its other lots by land owned by Ralph Clissold over which the existing track in use also passes (Lots 23 and 24 in DP 754417). Reference to the applicants’ certificate of title for Lot 75 in DP 754417 indicated that the applicants had a registered “right of carriageway over the track in use” registered on Mr Clissold’s title for Lot 24 in DP754417. Anomalously, the applicants had no registered right of carriageway over the track in use over DHSH’s lands. The application to the Minister was designed to create an alternative form of legal right, following unsuccessful negotiations with DHSH.
Minister’s Decisions and Notices under ss 184 and 185
14 By letter dated 27 May 2003 to the applicant Mr Hazenveld, the Department of Land and Water Conservation gave notice under s 184(1)(b) of the Roads Act that the Minister had decided to deal with the applicants’ application.
15 Having decided to deal with the application on 11 July 2003, the Minister caused notice of that fact to be published in a local newspaper and to be served by letter on each person who was an apparent owner of the land affected by the proposed acquisition, as required by s 184(2)(a) and (b) of the Roads Act. The newspaper notice relevantly stated:
In accordance with Section 184, Division 2 of Part 12 of the Roads Act 1993, notice is hereby given that the Minister for Lands proposes to consider the acquisition of land for the purpose of a public road. The application has been lodged by Martin and Anna Hazenveld/Ibos Pty Ltd as Trustee of the Hazenveld Family Trust. The road proposed to be opened is within Lots 58, 63, 64 and 71 DP754417 being land owned by DHSH (AUST) Travel Pty Ltd as well as TSR27023, Parish Jasper, County Macquarie at Mount Seaview. Inspection of a plan (diagram) of the proposed road opening be made at the Taree Office of the Department of Lands 98 Victoria Street Taree between the hours of 8.30am and 4.30pm, Monday to Friday . Any person is entitled to make submissions to the Minister with respect to the proposed acquisition of land. If the land is acquired, any person having an interest in the land will be entitled to compensation so long as the person has lodged a claim of interest with the Minister. Written submissions and claims of interest must be lodged with the District Manager, at the Taree Office of the above Department, Post Office Box 440, Taree, 2430 within forty-two (42) days from the date of this advertisement. A copy of any submission lodged will be on public record and may, at the discretion of the Minister or his delegate, be referred to the applicant and/or Council. File No: TE03 H 66. GA2510918PROPOSED ROAD OPENING
SECTION 184 ROADS ACT 1993
16 The newspaper notice stated that the road proposed to be opened is within DHSH’s Lots “as well as TSR 27023.” The only diagram that shows the road passing over TSR 27023, is the red line diagram attached to the applicants’ application for the opening of a road. I infer that this is the plan (diagram) referred to in the newspaper notice.
17 The Department’s letter dated 11 July 2003 gave notice to DHSH as required by s 184(2)(b):
PROPOSED ROAD OPENING
PARISH JASPER, COUNTY MACQUARIE
Notice is hereby given that the Minister for Lands proposes to consider the opening of a road as described and illustrated in the enclosures.
All persons interested are hereby called upon to set forth in writing and forward to this office, within forty-two (42) days from the date of this notice, any objections which may appear to them to exist to the opening and closing of such roads.
If a person who is entitled to compensation under the provisions of the Roads Act 1993 does not make a claim for entitlement to compensation within the forty-two (42) day period that person will be taken to have waived their entitlement.In addition any person who wishes to make a claim for compensation in respect to the acquisition of the interest in land required for the proposed road should lodge a claim for entitlement to compensation with this office within forty-two (42) days from the date of this notice on the attached claim form. Such claim will then be forwarded to the relevant compensating authority.
18 One of the enclosures referred to in the first paragraph of this letter comprised a copy of the newspaper notice and a “diagram of proposed acquisition lots 58, 71, 63 and 64 DP 754417”. The footnote to that diagram read “Proposed acquisition shown by thick black line”. The location of the thick black line was substantially the same as the location of the red line shown on the diagram accompanying the applicants’ application for the opening of a road, except that it does not show the proposed road line extending (for a short distance) over TSR 27023.
19 On 11 July 2003, the Department also wrote to Hastings Council advising that the Department was processing an application for the opening of a road and the Council replied by letter dated 18 July 2003. The Department’s letter seems to have been as a matter of inter-governmental courtesy. I do not think that this correspondence is significant in the present case.
20 As required by s 185(1) and (2), on 23 July 2003, the Minister notified the Registrar-General of the Minister’s intention to deal with the application. Consequently, on or about 24 July 2003 the Registrar-General, pursuant to s 185(3), recorded the words “proposed acquisition pursuant to s 185 Roads Act 1993 affecting the part shown in plan with 9912331” in the Register of DHSH’s Lots 58, 63, 64 and 71 in DP 754417.
DHSH’s Compensation Claim
21 On 18 September 2003, the Department of Lands sent a facsimile to DHSH’s solicitors, noting that the Department had not yet received any claim for entitlement to compensation. On 26 September 2003, the Department of Lands sent another facsimile to DHSH’s solicitors stating that failing receipt of a claim for entitlement to compensation from DHSH within 14 days, the road opening would continue on the assumption that DHSH will not be claiming compensation. It also stated that an instruction was currently being prepared for issue to Mr Hazenveld’s surveyor for preparation of a survey plan for lodgement with the Land and Property Information (LPI). The Department’s attempts to have DHSH contact them regarding a claim for compensation continued by telephone on 15 and 17 October 2003. On 20 October 2003, the Department of Lands wrote to DHSH noting that no objections were received to the proposal advertised in the local newspaper and notified to DHSH on 11 July 2003, and that no claim for compensation in respect of the acquisition had been received. The Department stated that the matter could not be protracted any longer and that if no claim for compensation was received within 14 days it would be assumed DHSH had waived any rights to compensation.
22 Eventually, by letter dated 5 November 2003, DHSH by its solicitors responded to the Department, requesting that the decision to open the road be deferred until a report from a traffic consultant was prepared and made available to DHSH. The letter also stated “Our client claims compensation as the owner of the land for the proposed road opening”. It stated that the results of the report would need to be considered before DHSH could make any reasonable assessment of the compensation likely to be payable. This submission and claim were well outside the 42 day period required by the Department’s letter of 11 July 2003 and s 184(3)(f) of the Roads Act.
23 On 12 November 2003 a Departmental report was produced which stated:
Background
An application was received from MARTIN & ANNA HAZENVELD/IBOS PTY LTD AS TRUSTEE OF THE HAZENVELD FAMILY TRUST on the 15th May 2003 to open a road over the existing Right of Carriageway as shown by red colour on diagram A (tabbed) to enable him to gain practical access to his property further to the north. The properties being Lots 58, 63, 64 and 71 DP754417 are currently owned by DHSH (Aust) Travel Pty Ltd. Access through the adjoining TSR is available under Section 98 of the Rural Lands Protection Act.
Mr Hazenveld claims that he was to have been included as a beneficiary to the Right of Way however due to an oversight was excluded. The properties have since changed ownership and any attempts by Mr Hazenveld with the new owners to be included have been unsuccessful.
Current Situation
The proposal was advertised in the Port Macquarie News on the 11th July 2003; referencing to relevant authorities and affected landowners were undertaken and the proposed was put on display at this office.
No objections were received to the proposal.
Two claims for entitlement to compensation have been received.
The first claim is from Mrs EM Clissold. Mrs Clissolds property is not affected by the action being undertaken by this Department and is therefore not considered relevant.
It is RECOMMENDED that:The second claim is from Cowley Hearne, Lawyers of Sydney on behalf of their clients DHSH (Aust) Travel Pty Ltd.
1. The Department accepts the Claim for Entitlement to Compensation lodged by Cowley Hearne Lawyers on behalf of DHSH (Aust) Travel Pty Ltd.
2. The Department reject the claim by Mrs Clissold as being irrelevant.
3. APPROVAL be given to the acquisition of the land shown by red colour on Diagram A for road under the provision of the Roads Act 1993, the road to be opened as a Crown public road.
4. The applicants and DHSH (Aust) Travel Pty Ltd be advised of the decision to continue with the proposed acquisition of the land for road as applied for.
5. Invite the applicant and DHSH (Aust) Travel Pty Ltd to agree on the amount of compensation to be paid.
6. Notify the parties involved that any such agreement does not have effect unless it is approved by the Minister, and
7. Notify the parties involved that either of them may apply to the Land and Environment Court for a determination of the amount of compensation to be paid if an agreement is not reached.
24 Pursuant to s 187(1)(a), the recipient of this report, Mr Wiseman, exercised his delegated authority from the Minister to decide to continue with the proposed acquisition. The decision is recorded in his handwritten note at the end of the report:
- In approving these recommendations I note that there is a separate application to open the road over the section referred to as the missing link by Council. The application will formalise an existing arrangement and will not necessarily lead to any significant increase in traffic and in any event I would expect that Council considered this when granting the DA for residue. Any variation to existing land use would require a further DA where traffic movement would again be addressed.
(emphasis added)
25 The identity of “diagram A” referred to in the above report (with the existing right-of-carriageway shown in red thereon) appears to be the plan annexed to the May 2003 application for the opening of the road. Another photocopy plan from the department’s file marked “A” and with a road marked in much the same location is in evidence but nothing is otherwise known of its provenance or use and it would be unsafe to infer that it is the diagram referred to in the report.
26 By letter dated 13 November 2003, the Minister gave notice to DHSH of his decision to continue with the proposed acquisition and to accept DHSH’s compensation claim, as required by ss 187(2)(b) and 189(1)(b) and (2). The letter stated that approval in principle had been given by the Minister’s delegate to proceed with the opening of the road as a Crown road. The words “approval in principle” were apt because, under s 199(2)(a) the Minister may at any time and for any reason abandon the proposed acquisition of land under Division 2. The letter continued:
The Minister has accepted your Claim for Entitlement to Compensation. All that remains is to settle on the amount of compensation to be paid.
The amount of compensation to be provided for land acquired for road is to be determined by agreement between the applicant and your client.
Any agreement for compensation must be in writing, signed by all parties and forwarded to the Department for approval by the Minister. The claimant or the applicant may apply to the Land and Environment Court to determine the amount of compensation if no agreement has been approved.The applicant and your client may choose to have valuations carried out to assist them to negotiate and reach agreement on the amount of compensation to be paid; however, there is no obligation upon them to do so. Any agreement is purely a matter that rests between the parties to the agreement.
27 On the same date, 13 November 2003, the Minister gave notice of his decision to continue with the proposed acquisition to the applicant in equivalent terms, as required by s 189(2).
Survey
28 Prior to the notification of the Minister’s decision to proceed with the proposed acquisition, the Minister, by letter dated 20 October 2003, pursuant to s 183(1)(e), gave notice to the applicants to lodge with the Minister a plan of survey, in a form approved by the Minister, of the land proposed to be acquired. Such a notice may be served either before or during the consideration of the application: s 183(2). The letter stated, “Arrangements can now be made to undertake a survey of the roads to be opened. This survey is to be effected in accordance with the following requirements...”. One requirement was “Land to be acquired for road be shown as Lots 1, 2, 3 and 4 (thick black line on attached diagram), the residue of title to be shown as Lots 5, 6, 7 and 8. Title box on the plan should read Plan of proposed acquisition of part Lots 58, 63, 64 and 71 DP 754417 for road”. Another requirement was that the intentions to dedicate blocks should read, “It is intended to acquire Lots 1 to 4 for road purposes”. The letter concluded by stating that further action would be taken to process the application upon receipt of the plan of survey.
29 On 23 October 2003, the applicants sent a facsimile to Andrew Campbell of King and Campbell Pty Ltd (Surveyors), stating: “As we are in the process of opening a road over neighbouring property, we were contacted by the Department of Lands to arrange a survey of the road as marked out by the thick black line on the enclosed map. For your reference we also enclose a map of a survey of the existing track (done by your company), which could be helpful. Could you please quote us for a survey in accordance with the specifications as set out in the letter dated 20-10-2003 from the Department of Lands…”
30 On 5 November 2003 Mr Steve Kipreotis, the Surveyors, sent a facsimile to the Department of Lands stating: “We are doing a plan of acquisition over that part of an existing track in use (DP 1037653) shown in thick black lines on the following plan. The plan is to be done in accordance with the letter [of 20 October 2003] from Brenda Meldrum from Dept of Lands (copy also following). The boundary definition for DP 1037653 was suffice for a plan for a right of carriageway over track in use. Could you please advise whether the definition shown on DP 1037653 is still adequate for the proposed plan of acquisition and if not, to what extent the boundary definition is required”. The enclosed plan is a copy of DP 1037653, which was attached to the applicants’ original application for the opening of a road but the plan shown thereon is now shown as a thick black line instead of the thin red line on the former plan.
31 On 11 November 2003, the Department of Lands replied, advising that all new boundaries and existing intercepted boundaries must be defined by survey, that existing boundaries required further definition, and that, if further survey information was not available, a report detailing the Department’s definition of those boundaries should be furnished.
32 On 14 November 2003, the Surveyors wrote to Mr and Mrs Hazenveld stating that they had “obtained formal advice from the Department of Lands (copy enclosed) as to the extent of the survey required to create the road. The letter of advice requires a rather onerous boundary definition survey to be carried out in order to prepare the necessary plan of acquisition. The previous plan for the Rights of Carriageway over Track in Use did not require the boundary definition to be so extensive, hence the need to extend and improve the survey control in accordance with the advice from the Department of Lands.” They enclosed a fee estimate to carry out the survey.
33 On 11 December 2003, the Surveyors wrote to Mr and Mrs Hazenveld confirming their instructions to proceed with the survey in accordance with the Surveyors' letter of 14 November 2003. The letter stated that the survey would be carried out in January 2004, the plan completed by mid February 2004 and that they would inform them of a definite date for commencement.
34 On 2 March 2004, the Surveyors wrote to the Department of Lands stating that they had carried out an extensive boundary survey to try and define the associated boundaries in accordance with the Department’s facsimile of 11 November 2003. Other details of the survey work that had been carried out were set forth. They stated that the survey to date had taken considerable time and effort, especially as the country was mountainous and heavily timbered and that to extend the survey would be a costly exercise without any strong prospects of finding additional information and would cause undue hardship and unwarranted costs. They asked that the plan be accepted with the extent of the survey to date.
35 On 22 March 2004 the Surveyors sent Mr Hazenveld a bill for their services to date, which included liaising with DHSH’s lawyers.
36 On 24 March 2004, the Surveyors wrote to Mr and Mrs Hazenveld noting that since they last met on the 17th February 2004, “we have obtained written confirmation of the welcoming news that the survey work currently undertaken appears to be adequate to define the subject land, subject to a complete examination upon lodgement for registration. We have contacted the surveyors carrying out the survey work, notifying them to proceed with the survey as soon as possible”. The letter indicated that the final plan could be anticipated sometime after 19 April 2004.
37 A file note, dated 19 April 2004 by the Surveyors, recorded a conversation with Brenda Meldrum of the Department of Lands in relation to compensation. She said it was up to the two parties involved as to when they sort out compensation; it was better to sort it out before the plan was registered as otherwise the compensation may never be sorted out and it would be a waste registering the plan.
38 On 30 April 2004, the Surveyors sent a facsimile to Mr and Mrs Hazenveld advising that there would be a delay in the finalisation of the plan. On 19 May 2004, they sent another fax to Mr and Mrs Hazenveld stating that there would be a field party on site on 31 May 2004, to complete the field survey and that the final plan would be completed shortly thereafter.
39 On 10 June 2004, the Surveyors sent a fax to Mr and Mrs Hazenveld stating that the field party was on-site the previous week; that the registered surveyor was now preparing the plan of survey, which would be forwarded to the Surveyors for checking once completed; and that they should have the final plan completed and signed the following week. On 18 June 2004, the Surveyors advised the Hazenvelds by facsimile that the plan was still currently being drafted. On 29 July 2004, the Surveyors wrote to the Hazenvelds confirming that the final Plan of Acquisition and accompanying survey report, was forwarded to the applicants’ solicitors earlier that month and enclosed a copy.
40 The survey plan is dated 3 June 2004. By letter dated 9 October 2006, the applicants’ solicitors wrote to the Department of Lands enclosing a copy of the survey plan. They stated among other things:
We would also be obliged if the Minister would consider lodging with the Land and Property Information an amended Request removing from the amended Request the incorrect reference in the originally filed Request to Section 11 of the Land Acquisition (Just Terms Compensation) Act.We enclose for your information a copy of a survey plan of the land to be acquired by the Minister for the opening of the road upon the application of our clients. Would you please confirm that the land marked in yellow on the attached survey plan is the land that the Minister intends acquiring for the road.
Negotiations between applicants and DHSH re amount of compensation
41 Meanwhile, the applicants and DHSH had been negotiating with a view to agreeing the amount of compensation, as contemplated by s 192. Negotiations commenced on 19 November 2003, when the applicants’ solicitors wrote to DHSH’s solicitors noting that the Department of Land had now advised that the Minister’s delegate had agreed to proceed with the opening of the Crown road. They suggested that the appropriate method of resolving the issue was for the applicants to engage the State Valuation Office to carry out a valuation for purposes of determining the compensation payable and that the parties would then enter into an agreement for compensation as required by the Department of Lands for the amount of valuation. It was said that this would avoid the expense associated with the issue of compensation to be determined by the Land and Environment Court. They requested that DHSH let them know by the 3 December 2003, as to whether that suggested course of action was acceptable.
42 On 12 December 2003, DHSH’s solicitors replied stating that DHSH agreed to the State Valuation Office providing an indicative estimate of the compensation likely to be payable under the Just Terms Act for the acquisition of the road area (as well as construction and use), but did not agree to be bound by the determination of the State Valuation Office.
43 A valuation dated 7 March 2005, by the NSW Department of Commerce Property Valuation Services, prepared for the applicants’ solicitors, recommended fair compensation for land proposed to be acquired for road opening purposes from DHSH of $21,000. It was based on the attached unregistered plan. This plan was an extract of the survey plan of the proposed road dated 3 June 2004, referred to at [40] above, which had been obtained by the applicants at the request of the Department. There followed correspondence from the solicitors for each party to the Department of Commerce Property Valuation Services making submissions as to that valuation.
44 On 3 May 2005, DHSH’s solicitors wrote to the applicant’s solicitors, referring to a valuation of the proposed Crown road conducted by the NSW Department of Commerce Property Valuation Services for the applicants. This letter stated that (a) certain matters had not been adequately addressed in the valuation report; (b) notwithstanding that DHSH reserved its rights to obtain its own valuation and to have the amount of compensation determined by a Court, it agreed that it would be useful for the NSW Department of Commerce to provide a valuation as a starting point to negotiations; and (c) DHSH would accept $150,000 as a commercial resolution of the matter.
45 On 29 June 2005, the Department wrote to the applicants’ solicitors advising that the road opening could not proceed until the issue of compensation was settled and that the claimant, the applicants or the Minister may apply to the Land and Environment Court to determine the amount of compensation if no agreement can be reached. The letter stated that it was normal for the applicant or claimant to make the application, being the principal parties to the matter.
46 By letter dated 8 September 2005 to the applicants’ solicitors, the NSW Department of Commerce provided a revised valuation in which they assessed the fair compensation for the acquisition of DHSH’s land at $30,800.
47 A Department file note dated 8 December 2005 commented in relation to a phone call from a DHSH agent that he “seems to be looking for a loophole of some sort to negate the Department’s decision”.
48 On 12 December 2005, DHSH’s solicitors wrote to the Department of Lands asking the Minister to reconsider his delegate’s approval in principle in the circumstances set out therein. One of those circumstances was: “While the road is proposed to follow a vehicular track over a historical track in use, the easements which create that track in use only benefit lots owned by our client for most of its length. Accordingly there is no right for any other property to use it”. This letter evidences that DHSH knew that the proposed road was over the existing vehicular track. The letter also states that the compensation offered by the applicant is $30,800, whereas DHSH assessed compensation in excess of $150,000.
49 The Department replied by letter dated 20 January 2006, stating:
The matter is now waiting agreement between the parties on the amount of compensation. As you were previously advised, where agreement cannot be reached the claimant or the applicant may apply to the Land and Environment Court to determine the amount of compensation. It is considered that the points raised in your letter relate mainly to compensation matters and should therefore be addressed in your negotiations with the applicant or the Land and Environment Court should your client or the applicant decide to pursue that course of action.You were advised by letter of 13 November 2003 that the period for objections/submissions in respect of the road opening proposal formally expired on 1 September 2003. As no objections were received by that time approval in principle was given by the Minister’s delegate to proceed with the opening of the road as a Crown road. You were also advised that the Minister had accepted your client’s Claim for Entitlement to Compensation.
50 A letter dated 20 January 2006, from DHSH’s solicitors to the Department of Lands (which seems to have crossed in the mail with the last-mentioned letter), enclosed a valuation that they had obtained and stated that it showed that the compensation offered by the applicants was inadequate. That valuation expressed some points of disagreement with the valuation provided by the applicants and contended for a compensation figure based on the value of the land lost, plus an agreed figure for severance compensation.
51 On 17 January 2006, the applicants commenced these proceedings. The first intimation by DHSH that there was any deficiency in identification of the land to be acquired was in its Statement of Points of Law and Issues dated 1 June 2006, filed in these proceedings.
DISCUSSION
52 The applicant’s Application to this Court is to determine the amount of compensation for the proposed acquisition under s 193 of the Roads Act 1993. DHSH seeks an order that the Application be summarily dismissed or struck out.
53 DHSH submits that the court may not make a determination under s 193 of the Roads Act, because the Minister has not validly made the necessary prior determinations or validly issued the necessary prior notices required by ss 184, 187 and 189. The reason is said to be because the land was not identified with particularity in those determinations and notices: Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 73; King Gee Clothing Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 196 – 198; and Nedoni Pty Ltd v Minister for Roads [2004] NSWLEC 56. DHSH submits that it is not a matter that can now be overcome and, accordingly, the application should be struck out or dismissed. DHSH submits that a line on a map is insufficient identification, even if the line was stated to follow an existing track in use.
54 The application to the Minister was to open a road over a long-established track in use over specified land owned by DHSH and (for a short distance) a travelling stock route. The location of the existing track in use was identified by a line on the diagram accompanying the application. That was the diagram referred to in the Minister’s s 184 newspaper notice of 11 July 2003. The applicants have provided the Minister with a survey of the proposed road, in accordance with the Minister’s notice for them to do so under s 183(1)(e). The Minister is empowered by s 183 to give such a notice either before or during the consideration of the application. Such consideration continues until the land is acquired. This suggests that it is not essential that he give notice for a survey before the procedures in ss 184, 187 and 189 are exhausted.
55 The parties had no difficulty in identifying the land proposed to be acquired. It was the existing track in use over DHSH’s specified land, which was registered on DHSH’s title. They negotiated over the amount of compensation and obtained competing valuations. At no time did DHSH make any complaint about, or raise any issue concerning, the adequacy of identification until 1 June 2006, well after the proceedings commenced, when it filed its Statement of Points of Law and Issues. The Registrar-General also had no difficulty in identifying the land proposed to be acquired from DHSH and making the appropriate recording on the title to DHSH’s lands, upon receipt from the Minister of a notice under s 185(1).
56 The issue is whether the land to be acquired was sufficiently identified for the purposes of the Minister’s decisions and notices under ss 184, 187 and 189. It is relevant to note that those sections are concerned with matters of a preliminary nature. They are preliminary both to the determination of the amount of compensation and, later, to compulsory acquisition, which may never occur.
57 The Minister’s decision under s 184 was merely “to deal with” the application. The notices required by s 184 were notices of that decision. Section 184(3)(b) required that they identify the land. The newspaper notice identified the land by stating that the road proposed to be opened was within lots 58, 63, 64 and 71 in DP 754417, owned by DHSH, as well as TSR 27023 and by stating that inspection of the plan of the proposed road could be made at the Department’s offices. The plan to which the newspaper notice referred appears to have been the plan attached to the application to the Minister to open the road. The s 184 notice to DHSH enclosed a copy of the newspaper notice and a diagram, which showed the existing track in use marked with a thick black line over DHSH’s land which, I infer, was an aid to visual comprehension of how DHSH’s land was affected. In my view, no more detailed identification of the land to be acquired was required under s 184.
58 The Minister’s subsequent decision under s 187(1), after considering submissions, was simply “to continue” with the proposed acquisition. The Minister also, under s 187(2), determined each claim of interest and gave notice of that determination to the claimants. DHSH’s claim of interest was over the track in use the subject of the application and was recognised by the Minister. Then, under s 189, after the claims of interest had been determined, the Minister gave notice of the decision to continue with the proposed acquisition to the applicants and to DHSH. In my view, there was no requirement under ss 187 and 189 for the Minister to more particularly identify the land to be acquired in his decision, determination or notice.
59 In reaching these conclusions, I have taken into account the cases cited in DHSH’s submissions and referred to at [53] above. In Television Corporation at 73 Kitto J said: “…where an Act on its true construction authorises only conditions characterised by reasonable certainty of meaning and application, it is for the courts to hold beyond power any attempt to set up as a condition a provision which does not possess that certainty”. In King Gee Clothing at 198, Dixon J held that a Prices Regulation Order fixing the price of outwear was invalid where “it deserts clear objective standards capable of producing a result about which every man must agree if he knows the facts and figures and has made his calculations correctly”. Dixon J explained that the Order was struck down because “the power has not been pursued” where the Order is uncertain (at 197). This is the passage to which DHSH points. However, Dixon J was concerned with the issue of power and distinguished between absence of power and difficulty of construction (at 197):
- …in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power .
In my view, in the present case the first consideration is the construction or interpretation of the contested Ministerial decisions and notices.
60 In Nedoni an order was sought that the respondent Minister resume land that had been reserved for a road, in accordance with a notice issued under a provision of a Local Environmental Plan (LEP). The notice identified the land to be acquired as that part of Lot 2 in Deposited Plan 500653 that was zoned “9(a) (Proposed Road Zone)” by the LEP. The respondents opposed the order on the ground that the notice was void for uncertainty because it did not identify the land required to be acquired with sufficient certainty. Bignold J found that the description of the land was sufficiently certain notwithstanding that the precise dimensions were not specified in the notice: at [49]. This was said to be ”because the precise dimensions are readily capable of ascertainment by reference to the zoning map forming part of the LEP which shows in cadastral detail (albeit at a scale of 1:10,000) the physical extent of Zone No 9(a) (Proposed Road), including its extent in respect of Lot 2 in DP 588653. That lot contains an area of 3,576 square metres and the part of that area included with Zone No 9(a) would appear from visual inspection of the relevant sheet of the Zoning Map to be approximately 30 percent, but precise delineation would obviously require some surveying or cartographic input”.
61 In my view, these authorities do not weigh against the conclusion that the requirements of ss 184, 187 and 189 were satisfied in this case. They do not require that the land proposed to be acquired be identified at those stages with the precision of a survey. However, as in Nedoni, precise delineation could be achieved in the present case by a survey, which has in fact been carried out and provided to the Minister.
62 It is true that precise identification of the land proposed to be acquired from DHSH is required in order for this Court to determine the amount of compensation and, ultimately, for that land to be resumed. At this stage, this can be achieved by a direction to the Minister to precisely identify that land. The Minister may perhaps elect to do that by reference to the survey with which he has been provided by the applicants in response to the Minister’s statutory notice. I propose to give such a direction.
63 Accordingly, I make the following orders:
(3) The exhibits may be returned.(1) The first respondent’s amended notice of motion filed on 20 October 2006 is dismissed with costs.
(2) Order that the second respondent file and serve a statement of the precise identification of the proposed land to be acquired on or before 21 March 2007.
(4) The proceedings will be listed before the list judge for directions on 23 March 2007.
(5) Liberty to apply on 2 days’ notice.
16/07/2007 - Punctuation amendments - Paragraph(s) 21, 20, 44, 45, 47, 57
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