Jomaring Pty Ltd v Head, Transport for Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0136

JOMARING PTY LTD (ACN 006 457 192)	Applicant
v
HEAD, TRANSPORT FOR VICTORIA (ABN 97 481 088 949)	Respondent

S EAPCI 2023 0137

DAVID RONALD KINGSTON	Applicant
and
HEAD, TRANSPORT FOR VICTORIA (ABN 97 481 088 949)	Respondent

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JUDGES:	EMERTON P, RICHARDS JA and GARDE AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2025
DATE OF JUDGMENT:	5 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 128
JUDGMENT APPEALED FROM:	[2023] VSC 618 (Quigley J)

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LAND ACQUISITION AND COMPENSATION – Proper construction of the Land Acquisition and Compensation Act 1986 s 41(5) and s 41(7) – Whether reservation compensation paid under the Town and Country Planning Act 1961 s 41(1) is to be taken into account in determining acquisition compensation under Land Acquisition and Compensation Act 1986 s 41(5) – Calculation of the ‘B’ value in the formula contained in the Land Acquisition and Compensation Act 1986 s 41(7) – Studley Developments Pty Ltd v Department of Planning and Urban Growth [1993] 1 VR 15; Studley Developments Pty Ltd v Department of Planning and Urban Growth [1994] 1 VR 643, considered.

STATUTORY INTERPRETATION – Principles of statutory construction – Purposive approach to statutory construction – Legislative intent to pursue its purposes by coherent means – Construction of statutory provisions on the prima facie basis that they were intended to give effect to harmonious goals – Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; SAS Trustee Corporation v Miles (2018) 265 CLR 137; R v A2 (2019) 269 CLR 507; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, followed.

STATUTORY INTERPRETATION – Effect of savings provisions – Application of the Interpretation of Legislation Act 1984 s 16(b) – Whether Pt 5 of the Planning and Environment Act1987 is a re‑enactment – Whether there is an express contrary intention – Whether the previous payments of compensation were a ‘thing done under the repealed Act or provision’ within the meaning of s 16(b) – Scope and application of the Planning and Environment Act 1987 s 206 – Felman v Law Institute of Victoria [1998] 4 VR 324; Waterfront Place Pty Ltd v Minister for Planning and Environment (2019) 59 VR 556; ADCO Containers Pty Ltd v Goudappel (2014) 254 CLR 1; North Burnside Pty Ltd v Melton Shire Council (2006) 18 VR 1, considered.

WORDS AND PHRASES – Meaning of expression ‘pursuant to’ in Land Acquisition and Compensation Act 1986 s 41(5) – Garbin v Wild [1965] WAR 72; Habel v Tiller [1929] SASR 170; Birchill & Ors v Premier Holdings Pty Ltd and Anor [2011] NSWSC 1020, considered.

CIVIL PROCEDURE – Taking of new points on appeal – Whether exceptional circumstances – Coulton v Holcombe (1986) 162 CLR 1; Sambucco v Sambucco (2023) 72 VR 121, followed.

Town and Country Planning Act 1961 ss 41(1)–(4), 42(4)–(5); Planning and Environment Act 1987 ss 4(1), 4(2)(l), 98, 99 (a)–(b), (d), 102, 105, 110–112, 206, 207(2); Land Acquisition and Compensation Act1986 ss 30, 37, 40, 41(1), 41(5), 41(7), 89(2); Interpretation of Legislation Act 1984 s 16(b).

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Counsel
Applicants:		Mr D Batt KC with Mr L Chircop
Respondent/s:		Mr J Pizer SC with Mr M Roberts
Solicitors
Applicants:	Rigby Cooke
Respondent/s:	Hall & Wilcox

EMERTON P
RICHARDS JA
GARDE AJA:

Introduction

David Ronald Kingston and Jomaring Pty Ltd (ACN 006 457 192) (‘Jomaring’) (collectively, ‘the applicants’) apply for leave to appeal and if leave is granted, appeal to this Court on two questions of law under s 89(2) of the Land Acquisition and Compensation Act 1986 (‘LAC Act’). Mr Kingston is the sole director and secretary of Jomaring.
The applicants seek compensation from Head, Transport for Victoria (‘authority’) for the compulsory acquisition in 2019 of about 8ha of their landholdings (‘Kingston land’ and ‘Jomaring land’ respectively) at 260 Centre Dandenong Road, Dingley for the Mordialloc Freeway. The landholdings are the remnant of a larger holding owned by Mr Kingston’s grandfather. The landholdings have a lengthy history of subdivision and sale, including in 1984 the payment of reservation compensation in relation to claims made under the provisions of the Town and Country Planning Act 1961 (‘TCP Act’). The 1984 claims were made by William Ronald Kingston and Irene Young (‘previous claimants’) who were Mr Kingston’s father and aunt. The previous claimants received reservation compensation at about 92% of the 1984 value of the Kingston land, and about 96% of the 1984 value of the Jomaring land.
Following a 12 day trial, the primary judge held that the amount of compensation payable to the applicants as a result of the 2019 acquisition should be proportionately reduced because of the 1984 payments of reservation compensation.[1] The primary judge reduced the compensation payable by the prescribed amount being the amount calculated in accordance with the formula set out in s 41(7) of the LAC Act. The formula very substantially reduced the amount of acquisition compensation payable to the applicants.
[1]Kingston v Head, Transport for Victoria; Jomaring Pty Ltd v Head, Transport for Victoria [2023] VSC 618 (‘Reasons’).
The applicants raise two questions of law on which they seek leave to appeal. First, they say that the acquisition compensation that they received should not have been reduced by the prescribed amount because the reservation compensation paid by the former Road Construction Authority (‘RCA’) was not paid pursuant to Pt 5 of the Planning and Environment Act 1987 (‘PE Act’) as required by s 41(5) of the LAC Act. Secondly, they say that the formula in s 41(7) of the LAC Act was incapable of application because the ‘B’ value described in the formula was not ascertainable. They contend that no prescribed amount should be deducted from their acquisition.
For the reasons that follow, we have decided that the grounds of appeal fail. The primary judge was correct when she determined the questions of law now raised adversely to the applicants.

Background facts – Kingston land

The background facts relating to the 1984 acquisition are set out in the reasons and are not in dispute.[2] In relation to the Kingston land, they may be summarised as follows:
[2]Reasons, [21]–[107].
(a)1979 — the Kingston land was owned by the previous claimants as part of the parent title. It was zoned ‘Rural’ under the Melbourne Metropolitan Planning Scheme (‘MMPS’);
(b)12 December 1979 — part of the parent title including the Kingston land was reserved for a proposed main road. The reserved land became unzoned;
(c)22 April 1983 — the previous claimants sold part of the parent title to PT Nominees (Canberra) Ltd (‘PT Nominees’) (later Permanent Trustee Australia Ltd) (‘Permanent Trustee’) with a 99 year lease of the Kingston land to David Ronald Kingston together with an option to purchase the Kingston land for $1 once it became a separate allotment (‘1983 option’);
(d)11 May 1983 — Instrument K366646 was lodged for registration, subdividing the parent title to create the Kingston land (Lot A) of 3.35ha, and Lot B and transferring the Kingston land to PT Nominees;
(e)27 January 1984 — the previous claimants lodged a claim for loss on sale of the Kingston land under s 41 of the TCP Act;
(f)6 September 1984 — the RCA paid the previous claimants’ compensation of $166,680 of which $103,749 was attributable to the land ultimately acquired. The compensation was calculated on the basis that the underlying zoning of the Kingston land was Garden Industrial;
(g)1 November 1984 — a statement under s 41(3) of the TCP Act was lodged with the Registrar of Titles in respect of the compensation paid;
(h)8 July 1987 — plan of subdivision LP204907B divided the Permanent Trustee land and resulted in the creation of a parcel which is the Kingston land;
(i)28 October 1993 — on exercise of the 1983 option by Mr Kingston, the Kingston land was transferred to him;
(j)22 December 1999 — the Kingston Planning Scheme was gazetted (‘planning scheme’), and the Kingston land was zoned Industrial 1;
(k)29 March 2019 — the Kingston land was acquired by Roads Corporation for the Mordialloc Bypass with the Kingston land still zoned Industrial 1;
(l)3 December 2020 — Mr Kingston filed a notice of referral in the Supreme Court seeking compensation under s 30 of the LAC Act and ultimately claiming compensation of $18,251,386.26 for the acquisition of the Kingston land; and
(m)2 and 14 November 2023 — the primary judge made orders awarding Mr Kingston compensation of $1,112,943.

Background facts – Jomaring land

The background facts relating to the Jomaring land are similar and may be summarised as follows:
(a)1979 — the Jomaring land was owned by the previous claimants as part of the parent title. It was zoned ‘Rural’ under the MMPS;
(b)12 December 1979 — the Jomaring land was reserved for a proposed main road;[3]
[3]Prior to 1999 when new format planning schemes were introduced, land required for public purposes was typically described as reserved land. In new format planning schemes, land required for public purposes was commonly shown as subject to a public purpose overlay control. The notion of reserved land disappeared from planning schemes.
(c)11 May 1983 — Instrument K366646 was lodged for registration, subdividing the parent title to create Lot A (Permanent Trustee land) and Lot B which included the Jomaring land;
(d)18 October 1983 — the previous claimants applied for a planning permit to develop the Jomaring land for light industry;
(e)27 January 1984 — the Melbourne and Metropolitan Board of Works refused the permit application for the reason that part of the land was required for a public purpose, being the proposed main road;
(f)28 March 1984 — the previous claimants lodged a claim under s 41 of the TCP Act for loss arising out of the permit refusal;
(g)17 October 1984 — RCA paid compensation of $366,000 of which $290,104 was attributable to the Jomaring land. The compensation was calculated on the basis that the underlying zoning was Garden Industrial;
(h)1 November 1984 — a statement under s 41(3) of the TCP Act was lodged with the Registrar of Titles in respect of the compensation paid;
(i)25 February 1991 — William Ronald Kingston became the sole proprietor of the balance of the parent title including the Jomaring land;
(j)8 October 1993 — William Ronald Kingston transferred the parent title to Jomaring of which he was a director;
(k)9 June 1994 — the parent title was cancelled and Certificate of Title Volume 10199 Folio 125 issued in respect of the Jomaring land;
(l)22 December 1999 — the planning scheme was gazetted with the Jomaring land zoned Residential;
(m)2004 — William Ronald Kingston died and Mr Kingston became the sole director of Jomaring;
(n)29 March 2019 — the Jomaring land was acquired by Roads Corporation for the Mordialloc Freeway. At that time, the Jomaring land was zoned General Residential;
(o)3 December 2020 — Jomaring filed a notice of referral in the Supreme Court seeking compensation under s 30 of the LAC Act, and ultimately claiming compensation of $34,530,847.97 for the acquisition of the Jomaring land; and
(p)2 and 14 November 2023 — the primary judge made orders awarding Jomaring compensation of $1,126,635.

Key legislative provisions

The key legislative provisions relating to the applications are found in the PE Act, the TCP Act, the LAC Act and the Interpretation of Legislation Act 1984 (‘IL Act’). The PE Act and the LAC Act were drafted and passed through Parliament contemporaneously. The LAC Act was assented to on 23 December 1986, and came into force on 29 November 1987. The PE Act was assented to on 27 May 1987, and came into force on 16 February 1988.

TCP Act

The claims for reservation compensation made by the previous claimants were governed by the TCP Act.
Section 41(1)–(4) of the TCP Act provided:
(1)Subject to this Act compensation shall be payable by the responsible authority to the owner or occupier of any land or the owner of any interest therein for all loss or damage suffered by or as a result of the operation of any interim development order or of any planning scheme under this Act where no part of that land was purchased or acquired by the responsible authority.
(2)Part III of the Valuation of Land Act 1960 shall with such adaptations as are necessary extend and apply with respect to any claim under this section as if the claim were a claim with regard to the purchase or taking of land and notice to treat had been served at the time liability to pay compensation first arose.
(3)Where compensation is paid pursuant to this section by a responsible authority to the owner or occupier of any land, the responsible authority shall forthwith after the payment is made lodge with … the Registrar of Titles a statement in writing describing the land in respect of which the compensation was paid and giving particulars of the compensation including the name address and description of the person to whom it was paid and the nature of his interest in the land.
(4)Upon the lodging of a statement pursuant to sub‑section (3) the Registrar of Titles shall make … in the register book such entries as may be necessary or expedient for the purpose of bringing the statement or the information contained therein to the notice of persons searching the title to the land described in the statement.
Section 42(4) of the TCP Act provided that regard must be had in determining compensation to any amount already paid or payable in respect of the land by way of compensation. Section 42(5) made provision for the payment of compensation for loss on sale of reserved land. Those provisions were as follows:
(4) Where compensation in respect of any matter relating to any land is to be paid either under section forty or section forty‑one of this Act regard shall be had—
(a)to any amount already paid or payable in respect of the land by way of compensation under either or both of those sections or any corresponding previous enactments (whether by the same responsible authority or not); and
…
(b)to any amount already paid or payable in respect of the land by way of compensation under any other Act.
(5) If the Minister is satisfied—
(a)that under … a planning scheme any land or any part of any land has been reserved or is proposed to be reserved for public purposes;
(b)that the owner of the land or any part of the land … has sold the land owned by him at a lesser price than he might reasonably have expected to receive had there been no reservation or proposed reservation as aforesaid;
(c)that the said owner before selling the land gave notice in writing to the responsible authority of his intention to sell the land owned by him and to seek a direction of the Minister pursuant to this sub‑section; and
(d)that the owner sold the land in good faith and took all reasonable steps to obtain the best possible price for the land—
then the Minister, if the owner of the land within two years after the date of the sale requests him to do so may direct that notwithstanding anything to the contrary in sub‑section (2) of this section compensation shall be payable pursuant to section forty‑one of this Act for any loss or damage suffered by the owner …

PE Act

The objectives of planning in Victoria include the following:
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
…
(e)to protect public utilities and other assets and enable the orderly provision and co‑ordination of public utilities and other facilities for the benefit of the community;
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
…
(g)to balance the present and future interests of all Victorians.[4]
[4]PE Act, s 4(1).
The objectives of the planning framework established by the PE Act include:
to provide for compensation when land is set aside for public purposes and in other circumstances.[5]
[5]PE Act, s 4(2)(l).
Part 5 of the PE Act deals with compensation generally. Part 5 provides for claims for financial loss as a consequence of the reservation of land for a public purpose under a planning scheme and in certain other circumstances.
Section 102 of the PE Act provides where compensation has previously been paid in respect of land under Pt 5 or a corresponding previous enactment such as the TCP Act that:
In determining the compensation to be paid under this Part, regard must be had to any amount already paid or payable in respect of the land by way of compensation under—
(a)this Part, or any corresponding previous enactment; and
(b)any other Part of this Act or any other Act.[6]
[6]PE Act, s 102.
Section 110 provides where compensation has been paid under the PE Act or a corresponding previous enactment such as the TCP Act that:
(1)Any person who has paid compensation under this Act or a corresponding previous enactment to the owner or occupier of any land and who has not already done so under that enactment must lodge a statement with the Registrar of Titles without delay.
(2)The statement must in the prescribed manner—
(a)describe the land for which the compensation was paid; and
(b)give the prescribed particulars of the compensation.
(3)On receiving a statement, the Registrar of Titles must make any recordings in the Register which are necessary to bring the statement to the notice of anyone searching the Register.
(4)At the request of any person who lodged a statement under subsection (1) or a corresponding previous enactment, the Registrar of Titles must delete from the Register a recording made under subsection (3).[7]
[7]PE Act, s 110.
Section 111 provides that compensation previously paid may be recovered in certain circumstances.
Section 206 is the savings provision in the PE Act, and is set out at [107] below.

LAC Act

Section 40 of the LAC Act defines the expression ‘market value’ in these terms:
‘market value’, in relation to any interest in land on a particular date, means the amount of money that would have been paid for that interest if it had been sold on that date by a willing but not anxious seller to a willing but not anxious purchaser.
Section 41 sets out the general principles on which compensation is based. Section 41 contains the following provisions:
(1)Except as otherwise provided in this Part, in assessing the amount of compensation payable to a claimant in respect of an interest in land which is acquired under this Act, regard must be had to the following factors—
(a)the market value of the interest on the date of acquisition;
…
(5)If compensation has previously been paid in respect of the land pursuant to Part 5 of the Planning and Environment Act 1987, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.
…
(7)In this section the prescribed amount in relation to land is the amount calculated by the following formula—
where—
A =the amount of compensation previously paid in respect of the land for loss of market value due to—
(i)the reservation or proposed reservation of the land or part of the land for a public purpose in a planning instrument; or
(ii)any part of the land being required for a public purpose.
B =the market value of the land in respect of which the compensation was paid, that value to be determined on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation.
C =the compensation payable under this Part for market value and severance less the value of the land attributable to improvements of a durable nature made—
(i)with the consent of the Authority under section 12(1)(b); or
(ii)after the last date on which compensation was paid in respect of the land and before service of the most recent notice of intention to acquire an interest in the land.

IL Act

Section 16 of the IL Act makes provision in certain circumstances for subordinate instruments made or things done under a repealed Act or provision to continue to have effect under a re‑enacted Act or provision. It is as follows:
Where an Act or a provision of an Act is repealed and re‑enacted (with or without modification) then, unless the contrary intention expressly appears—
(a)any reference in any Act or subordinate instrument to the repealed Act or provision shall be construed as a reference to the re‑enacted Act or provision; and
(b)insofar as any subordinate instrument made or other thing done under the repealed Act or provision, or having effect as if so made or done, could have been made or done under the re‑enacted Act or provision, it shall have effect as if made or done under the re‑enacted Act or provision.

Legislative background

The primary judge summarised the legislative changes that gave rise to Pt 5 of the PE Act and s 41 of the LAC Act in these terms:
Under the TCP Act, as first enacted, it remained the case that planning authorities could prepare planning schemes and make interim development orders, with planning blight compensation available (subject to limitations) and with such compensation to be assessed under the Local Government Act 1958 (Vic). Planning authorities could also ‘compulsorily take’ land and in that regard had to pay compensation, to be assessed under the LC Act[8] which remained in force.
What was new in the TCP Act was that, pursuant to s 42(4), when a responsible authority was required to pay compensation under ss 40 or 41, ‘regard’ had to be had to any amounts of compensation already paid or payable under the TCP Act ‘or any corresponding previous enactment’.
However, no formula or other stipulation as to the mode of assessing the relevance of previous compensation was provided. Therefore, there was no consistent approach across the valuation industry, with both arithmetic and proportional approaches being common and established practice.
In 1965, s 41(2) of the TCP Act was amended to provide for the assessment of compensation for planning blight to be done under Part III of the Valuation of Land Act 1980 (‘VL Act’) with ‘such adaptations as are necessary’ (required because Part III dealt with compensation for acquisitions only). However, the VL Act continued the requirement that assessment of compensation be determined in accordance with s 11B of the LC Act … [9]
[8]Lands Compensation Act 1958.
[9]Reasons, [114]–[117].
As to the introduction and passage of the LAC Act and the PE Act, the primary judge said:
On 8 May 1986, the Land Acquisition and Compensation Bill 1986 (‘the LAC Bill’) was introduced into Parliament. This followed a report which Stuart Morris, barrister, had provided to the relevant Minister in 1983 on the operation of the compulsory acquisition legislation (‘the Morris Report’). The Minister then established the Land Acquisition Task Group to work on the reforms and that Task Group prepared a subsequent report.
The Second Reading Speech for the LAC Bill explained that the ‘[t]he Morris Report as modified by the task group report formed the basis of the Bill’ and set out the following major objects of the Bill:
1.to establish uniform practices to be adopted by acquiring authorities in the course of compulsory or negotiated acquisition of land;
2.to reform, consolidate and codify the law relating to compensation for interests in land;
3.to establish a system of land acquisition which is equitable to all landowners and which does not impose such burdens on Government so as to prevent proper planning and public sector activity;
4.to ensure certainty in the practices of land acquisition;
5.to encourage a cooperative rather than a confrontationalist relationship between Government and landowner; and
6.to establish a speedy system of resolution of disputed claims concerning acquisition of interests in land.
The LAC Act was assented to on 23 December 1986 and came into operation on 29 November 1987. The LAC Act continued the scheme for the recognition of previous compensation in assessments for compensation, by the combined operation of ss 41(5) and 41(7).
Meanwhile, on 17 September 1986, the Planning and Environment Bill 1986 (‘P&E Bill’) was introduced into Parliament and read for a second time the following day. Notably, that version of the Second Reading Speech contained the following remarks:
The compensation provisions set out in Part 6 largely reflect the existing provisions of the Town and Country Planning Act. Nowhere in the Bill is the evidence of plain language and straightforward style more striking. The right to claim compensation has been clarified and the possibility of payments for solatium to householders and necessary expenses to all claimants has been recognised. Following the report on compensation by Mr Stuart Morris, the right to claim in cases of proposed reservation for public purposes has been clarified and the Minister administering the Land Acquisition and Compensation Act is given power to deal with cases of hardship. For administrative reasons, very small claims will not be allowed and compensation will not be recoverable when reservations are removed if it was paid more than six years previously.
Following some delay caused in the Legislative Council, the P&E Bill was reintroduced into the Assembly (largely in the same form but now dated 1987) on 25 February 1987 and was read a second (or a ‘second second’) time the following day.
In the (second) Second Reading Speech, the P&E Bill was described as a ‘total overhaul of the now outdated Town and Country Planning Act’. The following objectives of effective planning legislation were also stated:
recognise that planning is an activity involving elected officials, appointed advisers, interested members of the public, individually or in groups, and professional practitioners;
provide for continual strategic planning, attempting to clarify our view of the future;
ensure that values can be made explicit, through articulation of objectives and policies;
provide an ability to set rules about the use and development of land;
establish a framework for making, amending, administering and enforcing those rules by appropriate levels of government;
provide a framework for the resolution of disputes about the way land should be used and developed;
provide for compensation for those whose land is or will be required for a public purpose.
The [PE Act] was assented to on 27 May 1987, but did not commence until 16 February 1988. Therefore, there was a period of about 11 weeks (29 November 1987 to 15 February 1988) where the LAC Act operated according to its original terms.
Under those terms, s 41(5) provided (emphasis added):
If compensation has previously been paid in respect of the land pursuant to section 41 of the Town and Country Planning Act 1961, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.
On 16 February 1988, three things happened simultaneously upon the commencement of the [PE Act]:
(a)Part 5 of the [PE Act] was enacted;
(b)most of the TCP Act, including ss 40, 41 and 42, was repealed; and
(c)s 41(5) of the LAC Act was amended to refer to Part 5 of the [PE Act] rather than s 41 of the TCP Act.[10]
[10]Reasons, [118]–[126].
The primary judge summarised the statutory amendments which gave rise to the present form of ss 41(5) and 41(7) of the LAC Act in the following way:
These amendments brought s 41(5) into its present form:
If compensation has previously been paid in respect of the land pursuant to ~~section 41 of the Town and Country Planning Act 1961~~ Part 5 of the Planning and Environment Act 1987, the amount of compensation payable under this Part in respect of an acquired interest in land or in respect of land in which an acquired interest subsists must be reduced by the prescribed amount.
The Explanatory Memorandum and Second Reading Speech do not specifically refer to this change.
At this time, as originally enacted, the s 41(7) formula in the LAC Act for calculating the ‘prescribed amount’ expressed integer B as follows:
B = the market value of the land in respect of which the compensation was paid, that value to be determined as if the underlying zoning applied to the land at the date which was the basis for the calculation of that compensation.
In 2006, the Road Legislation (Projects and Road Safety) Act 2006 (Vic) was enacted. Section 59(1) introduced the new s 43(1A) into the LAC Act, dealing with the situation where a reservation is used by a planning authority to create a zone boundary, and where the decision to impose the boundary is unrelated to the original purpose of the reservation. In addition, s 59(3) amended s 41(7) of the LAC Act as follows, to bring it into its present form:
B = the market value of the land in respect of which the compensation was paid, that value to be determined ~~as if the underlying zoning applied to the land~~ on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation.
Again, the Explanatory Memorandum and Second Reading Speech were silent as to this particular change.
The considerable amendments over time to the relevant legislation are part of the network of facts which become relevant upon the statutory construction exercise presently before the Court. They demonstrate how the relevant law has been shaped.[11]
[11]Reasons, [127]–[132].
None of these summaries and descriptions were challenged before us.

Proposed grounds of appeal and main issues

Mr Kingston and Jomaring rely on the same proposed grounds of appeal. They are in substance:
(1)the Court erred in holding that, by operation of s 16(b) of the IL Act, the reference in s 41(5) of the LAC Act to compensation ‘paid … pursuant to Pt 5 of the PE Act’ includes compensation paid under s 41 of the TCP Act; and
(2)the Court erred:
(a)in holding that, in the definition of the ‘B’ value in the formula in s 41(7) of the LAC Act, the reference to the ‘actual zoning that applied to the land’ is a reference to the zoning which was actually the basis for the calculation of the compensation at a previous assessment date, rather than a reference to the zoning of the land, in fact, at the previous assessment date; and
(b)accordingly, in holding that, in the facts of the present matter, there was an ascertainable ‘B’ value and the formula was capable of application.
The proposed grounds of appeal give rise to the following main issues:
(a)What is the proper construction of s 41(5) of the LAC Act?
(b)Do the payments of compensation made to Mr Kingston and Jomaring under s 41 of the TCP Act take effect by reason of s 16(b) of the IL Act as if made under Pt 5 of the PE Act?
(c)Do the payments of compensation made to Mr Kingston and Jomaring under s 41 of the TCP Act have the same status, effect and operation by reason of s 206 of the PE Act as if made under Pt 5 of the PE Act?
(d)How should the ‘B’ value as found in the formula in s 41(5) of the LAC Act be construed?
(e)On the facts of the present case:
(i)is there an ascertainable ‘B’ value for the purposes of the formula in s 41(5) of the LAC Act; and
(ii)is the formula capable of application?
The authority filed a notice of contention to the effect that the words ‘compensation … paid … pursuant to [Pt 5 of the PE Act]’ encompassed compensation paid under s 41 of the TCP Act. The authority also contended that the decision of the primary judge should be upheld because reservation compensation paid under s 41 of the TCP Act was a ‘thing’ or ‘circumstance’ for the purposes of s 206 of the PE Act that continued to have the same status, operation and effect as it would have had if the TCP Act had not been repealed.

Principles of statutory construction

The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision, considered in light of its context and purpose.[12] Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each of those meanings with the scheme of the statute and its identified objects or policies.[13] That is significant in the present context.
[12]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41 (‘Alcan’). See also SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ); [2017] HCA 34 (‘SZTAL’); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); [2012] HCA 55 (‘Federal Commissioner of Taxation’); SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); [2018] HCA 55 (‘SAS’).
[13]SAS (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); [2018] HCA 55 (citations omitted). See also SZTAL (2017) 262 CLR 362, 375 [38] (Gageler J); [2017] HCA 34.
Interpretation of the legislation consistently with statutory purpose is ‘integral’ where the Court is faced with a constructional choice between the ordinary meaning of the text and some other available meaning(s).[14] While the text is not to be ignored, the purposive approach may prefer the broader meaning of the text over its ordinary or grammatical meaning where that will give effect to statutory purpose.[15] This recognises that the legislature ‘ordinarily intends to pursue its purposes by coherent means’.[16]
[14]SZTAL (2017) 262 CLR 362, 375 [39] (Gageler J); [2017] HCA 34 . See also SAS (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ); [2018] HCA 55.
[15]R v A2 (2019) 269 CLR 507, 520–521 [32], 527 [58] (Kiefel CJ and Keane J); [2019] HCA 35.
[16]SAS (2018) 265 CLR 137, 157 [41] (Gageler J); [2018] HCA 55 (citations omitted).
A purposive approach to statutory construction may allow for an interpretation that excludes application of the legislation to ‘matters that would have fallen within the application of their literal meaning’.[17] However there are ‘questions of degree’ which arise regarding the extent to which the Court may depart from the ordinary meaning of the words and ‘it will be more difficult to displace an interpretation that “has a powerful advantage to ordinary meaning and grammatical sense”’.[18]
[17]SAS (2018) 265 CLR 137, 162–63 [64] (Edelman J); [2018] HCA 55.
[18]SAS (2018) 265 CLR 137, 163 [64] (Edelman J); [2018] HCA 55 (citations omitted).
The task of statutory construction is also to be undertaken consistently with the principle that the statute ‘must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals’.[19] Where competing provisions give rise to conflicting interpretations, the High Court has stated that it must:
[adjust] the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.[20]
[19]ENT19 v Minister for Home Affairs (2023) 278 CLR 75, 106 [87] (Gordon, Edelman, Steward and Gleeson JJ); [2023] HCA 18 (‘ENT19’).
[20]ENT19 (2023) 278 CLR 75, 106 [87] (Gordon, Edelman, Steward and Gleeson JJ); [2023] HCA 18 quoting Project Blue Skyv Australian Broadcasting Authority (1998) 194 CLR 355, 382 [70] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
We turn to consider the proper construction of ss 41(5) and 41(7) of the LAC Act having regard to these principles.

Proper construction of s 41(5) of the LAC Act

The question of the proper construction of s 41(5) of the LAC Act was not argued before the primary judge. It was raised by the Court on the hearing of the appeal and subsequently embodied in a notice of contention filed by the authority. The question is of general importance and should be decided by this court.
The applicants maintained that s 41(5) only applied if the reservation compensation previously paid was compensation paid in relation to a claim for compensation brought under a provision of Pt 5 of the PE Act. As the compensation paid to the previous claimants was paid under the TCP Act, they contended that s 41(5) and therefore s 41(7) of the PE Act had no application.
The authority submitted that the words ‘pursuant to’ found in s 41(5) took the meaning of ‘in accordance with’ or ‘consequent upon’ or ‘conformable with’. The authority contended that reservation compensation paid under the TCP Act was conformable with the provisions of Pt 5. As a result, the formula in s 41(7) applied to the determination of the acquisition compensation to be paid to the applicants.
The principles of statutory construction govern the proper construction of s 41(5).

Text

Part 4 of the LAC Act is concerned with the measure of compensation. Section 41 lists the general principles on which compensation is based. Section 41(5) is concerned to ensure that where reservation compensation has previously been paid acquisition compensation is reduced by the prescribed amount. Satisfaction of s 41(5) is the gateway to s 41(7) and the application of the formula in s 41(7) to determine the prescribed amount.
The critical issue in the construction of s 41(5) is the meaning to be ascribed to the words ‘pursuant to’. The Macquarie Dictionary defines ‘pursuant to’ to mean ‘proceeding conformably with’, ‘according to’, and ‘in a manner conformable to’. Similar meanings are given by the Shorter Oxford Dictionary: ‘consequent and conforming to; in accordance with’. The words are protean words and can assume different shades of meaning as illustrated in the decided cases.
In Garbin v Wild, the Western Australian Full Court construed a provision in a statute which relevantly prohibited the drawing of water otherwise than pursuant to a licence issued for that purpose.[21] The appellants were in breach of their licence because they had refused to permit meters to be fixed to their wells. The Court adopted the meaning of the words ‘pursuant to’ found in the Oxford Dictionary, and held that they meant ‘in accordance with’, and ‘consequent and conformable to’.[22] Garbin v Wild has been followed and applied in numerous cases where the meaning of the words ‘pursuant to’ has arisen for consideration.[23]
[21][1965] WAR 72.
[22][1965] WAR 72, 76 (Wolff CJ and Jackson J; Virtue J agreeing).
[23]Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 QdR 204, 222 (Kelly SPJ); Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1992) 40 FCR 409, 424 (Lockhart J); [1993] FCA 77; R v Karageorge (1998) 146 FLR 100; Williams v Licensing Court of New South Wales [2000] NSWSC 1222; Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2005] NSWSC 774, [6] (Barrett J); Gumland Property Holdings Pty Ltd v Duffy Brown Fruit Marketing (Campbelltown) Pty Ltd [2006] NSWSC 10, [45], [49]–[50] (Macready AsJ); Duffy Bros Fruit Markets (Campbelltown) Pty Ltd v Gumland Property Holdings Pty Ltd [2007] NSWCA 7, [110] (Giles JA, Santow and Tobias JJA agreeing).
In Habel v Tiller, the Full Court of the Supreme Court of South Australia held that the words ‘pursuant to’ were capable of a wide meaning, and extended to acts done in intended or substituted performance as well as acts done strictly in performance of an agreement.[24] In Birchill & Ors v Premier Holdings Pty Ltd and Anor, Brereton J referred to earlier authorities and observed that while a relatively broad view may be taken of the words ‘pursuant to’ (so that a lesser connection is required than that the source of the power be the authority for the act), some connection between the act and the source of the power to which it is said to be pursuant to is necessary.[25]

Context

[24][1929] SASR 170 (Angas Parsons, Napier and Piper JJ).

[25][2011] NSWSC 1020, [37] (Brereton J). See also No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd [2022] NSWSC 1345, [165] (Black J).

Part 5 of the PE Act is the part of the PE Act that is concerned with compensation generally.
Section 102 of the PE Act expressly provides that in determining compensation to be paid under Pt 5, regard must be had to any amount paid or payable in respect of the land by way of compensation under this Part or a corresponding previous enactment. As a result, reservation compensation paid under the TCP Act must be taken into account in determining a subsequent loss on sale claim under s 106 of the PE Act. It would be inconsistent with the meaning and intent of s 102 if reservation compensation awarded under the TCP Act were not taken into account when acquisition compensation was determined under the LAC Act.
Likewise, s 110 of the PE Act requires that compensation paid under a corresponding previous enactment, such as the TCP Act, be noted on title. This provision would serve no purpose if the notation was to be disregarded when acquisition compensation was determined.
Sections 111 and 112 provide for the recovery and reimbursement of reservation compensation in certain circumstances.
The applicants’ construction of s 41(5) would exclude from reduction by the prescribed amount cases where reservation compensation had been paid under the provisions of the TCP Act and acquisition took place after 2006, when s 41(5) of the LAC Act was amended into its current form. However, reservation compensation paid under the TCP Act would be taken into account if the acquisition took place prior to 2006, when s 41(5) referred to s 41 of the TCP Act. Equally, reservation compensation paid under Pt 5 of the PE Act after 2006 would fall within s 41(5), and acquisition compensation would be reduced by the prescribed amount when acquisition took place.
If the applicants’ construction were correct, all claimants who received reservation compensation under the TCP Act would receive double compensation if their land was acquired after 2006. Such a result would be irrational and would represent a major oversight in the drafting of the relevant provisions of the PE Act.
The applicants were unable to advance any cogent reason why such a construction should be preferred, or refer to any authority which might support their construction.
In addition, the Court has the benefit of substantial extrinsic material. Both the PE Act and the LAC Act had extended passage through Parliament. The extrinsic material includes the foundational reports on which the reforms in the PE Act and LAC Act were based,[26] including the explanatory memorandum and the parliamentary debates. The applicants did not suggest that any support for their construction of s 41(5) of the LAC Act is to be found in extrinsic material or in the preceding reports.
[26]S Morris, Land Acquisition and Compensation Proposal for New Land Acquisition and Compensation Legislation (January 1983); Report to the Minister for Planning on the Morris Report (July 1983).
In our view, considerations of context favour the construction of s 41(5) of the LAC Act urged by the authority.

Purpose

It is an objective of the planning framework established by the PE Act to provide compensation when land is set aside for public purposes and in other circumstances.
It is inherent in the concept of compensation, and fundamental to a system of compensation, that a claimant who has suffered loss be compensated fully and fairly. Just compensation should be awarded. This statutory purpose is not achieved by overcompensation or undercompensation.
The statutory purpose of the LAC Act would not be achieved if the applicants’ construction of s 41(5) of the LAC Act were adopted. Section 41(5) should not be construed so as to lead to a windfall for claimants or a bargain for the authority. Payment of substantial reservation compensation followed by payment of full acquisition compensation would lead to a windfall to claimants.
As Osborn J said in McCann v Roads Corporation:
The notion of compensation ordinarily envisages that an owner is entitled to be compensated fairly and fully for his loss, but is not entitled to receive more than fair compensation. Quoting from Scott LJ in Horn v Sutherland Corporation in Transport for London v Spirerose, Lord Neuberger referred to the underlying concept in the following terms:
‘the principle of equivalence, which is at the root of statutory compensation, the principle that the owner shall be paid neither less nor more than his loss’, save, I should add, where the legislation otherwise provides.[27]
[27][2011] VSC 96, [18], quoting Transport for London (formerly London Underground Ltd) v Spirerose Ltd [2009] 1 WLR 1797, 1814; [2009] UKHL 44.
We conclude that consideration of statutory purpose strongly favours the construction of s 41(5) urged by the authority.

Reservation compensation

Reservation compensation is payable under Pt 5 of the PE Act where the reservation of land for public purposes blights the potential use of the land or adversely affects its value. Section 98(1) of the PE Act provides a right for an owner or occupier of land to claim compensation for financial loss suffered as the natural, direct and reasonable consequence of the land being reserved for a public purpose. The right to receive that compensation arises in the circumstances set out in s 99 — relevantly here, after refusal of a planning permit because the land may be required for a public purpose,[28] and for loss on sale of the land.[29]
[28]PE Act, s 99(a), (d). See also s 98(2).
[29]PE Act, ss 99(b), 106.
The amount of compensation payable under s 98 of the PE Act is to be assessed using the processes provided under the LAC Act.[30] Section 104 sets a maximum amount of compensation that may be recovered under s 98, which is the difference between the value of the land on the date the liability to pay compensation first arose, and the value the land would have had if not affected by the reservation. The loss to be compensated is loss caused by the reservation; there must be ‘a very close and limited connection between the imposition or proposal of the reservation and the financial loss suffered’.[31]
[30]PE Act, s 105, applying LAC Act, s 37, pts 10, 11.
[31]Halwood Corporation Ltd v Roads Corporation (1995) 89 LGERA 280, 303, cited in Brompton Lodge Pty Ltd v Head, Transport for Victoria [2021] VSCA 302, [98].
The usual method of determining reservation compensation is to assess the ‘before value’ of the affected land at the relevant date in the absence of the reservation and the ‘after value’ of the same land at the same date having regard to the effect of the reservation.[32] The after value is often described as the carcass value, or the residual value. The amount of reservation compensation is determined by deducting the after value from the before value.
[32]See, eg, Kajag v Head, Transport for Victoria [2023] VSC 392, [254]–[257] (Richards J); Kilpatrick v Head, Transport for Victoria [2020] VSC 53, [236] (Garde J).
Following payment of reservation compensation, the relevant authority must lodge a statement with the Registrar of Titles describing the land for which compensation was paid, and giving the prescribed particulars.[33] The recording of the statement by the Registrar of Titles on the title of the affected land ensures that notice of the payment of reservation compensation is given to anyone searching the title.
[33]PE Act, s 110; formerly TCP Act, s 41(3).
When the affected land is acquired by the authority, the landowner is paid acquisition compensation for the residual value of the affected land assessed as at the date of acquisition. The compensation is assessed in accordance with the provisions of the LAC Act.

Previous authority

In Studley Developments Pty Ltd v Department of Planning and Urban Growth, a previous owner had received reservation compensation following a loss on sale claim.[34] Six years later, the purchaser sought reservation compensation following the refusal of a permit application on the basis that the land was reserved for a public purpose.
[34][1993] 1 VR 15 (Gobbo J) (‘Studley No 1’).
As to the claimant’s arguments, Gobbo J said:
I am not persuaded by the arguments. They appear to be founded on a fallacy, namely they proceed on the basis that the second application is one that creates a new loss. They rest on the convention that compensation, even where there was no acquisition, is assessed by means of a ‘before’ and ‘after’ exercise that assumes that the ‘before’ land is not affected by any reservation. But the first step before all that, is to ascertain whether there has been any financial loss at all caused by the operation of the reservation.
…
In my view, in the above example, the loss suffered as a result of the first refusal was the deprivation of a permit to develop the land for its highest and best use. Another way to put it is that the first refusal was in respect of the maximum development of the land. The result of the second refusal is exactly the same. In these circumstances, the owner has not in my view suffered any financial loss at all. He cannot again be deprived of the potential for a highest and best use development for he has already been deprived of that.
This conclusion is founded on the principle that no one can recover twice for the same injury. So, to take an obvious example, a man can only claim and recover once for the loss of his right arm. The operation of the principle is not met by saying that the owner of reserved land brings to account previous compensation received for an earlier claim based on a planning application for the same use.
This conclusion accords in my view with principle. It is important to remember that the recovery for loss and damage is drawn very much from common law principles and is not based on any statute derived from resumption law. It is also a conclusion that accords with common sense. Why should the authority pay the value of the land as ‘financial loss’ when it has already paid out that value for the same land? In the example given, the increase in value is not due to any increase in value of the land because of improvement of the land but is simply the product of inflation. It is true that s 102 speaks of ‘regard’ being had to the previous payment of compensation but there is no obvious and clear formula for ignoring the increase due solely to inflation. Finally I note that there is no reason on the claimant's argument, and ignoring for the moment the fact of acquisition, why the claimant could not in the postulated example secure another refusal of permit in five years’ time and again recover a substantial figure in compensation, founded essentially on the effect of intervening inflation.[35]
[35]Studley No 1 [1993] 1 VR 15, 22–23 (Gobbo J).
On appeal, the Court said:
In the present case, the findings of the trial judge show that the reserved land was by force of the reservation stripped of its development potential for residential subdivision. That is not to say that there could never be any prospect of some development which might become possible by reason of changes in planning schemes. But there had here been no such changes.
The authority had paid the full value of the land, a value arrived at by considering its potential for residential subdivision; the authority had, in other words, paid the fee simple price for residential land, upon the basis that its reservation had destroyed the land’s potential for residential subdivision. We repeat the judge's rhetorical question: “Why should the authority pay the value of the land as ‘financial loss’ when it has already paid out that value for the same land?”
It was then argued for the appellant the fact that, as the judge found, the value of the land, were it not for the reservation, would by the refusal date have increased in value, establishes some financial loss. We cannot accept that argument. The commencing point in the proof of loss is not notional value. The fact is that the loss of value to the owner of the reserved land was here caused not by the refusal of the permit, but by the reservation. Full compensation had been paid in respect to that loss, which was a loss of the potential for residential development. The refusal of the permit did not again cause such a loss by again destroying that potential.[36]
[36]Studley Developments Pty Ltd v Department of Planning and Urban Growth [1994] 1 VR 643, 647–‍648 (Southwell and Teague JJ, Brooking J agreeing) (‘Studley No 2’).
The Court concluded:
For the reasons given, we are of the view that the learned judge was correct, and that the principal contentions of the respondent should be upheld.
We would add that our conclusion appears to us to accord with ordinary principles of compensation, with the justice of the case, with the policy of the legislation, so far as it can be gleaned from a consideration of s 104 and, as the learned trial judge observed, with commonsense.[37]
[37]Studley No 2 [1994] 1 VR 643, 648 (Southwell and Teague JJ, Brooking J agreeing).
The same principles should be applied in the present case. The previous claimants were compensated in 1984 for the market value of the reserved land except for the residual or carcass value. This reflected the destruction of the highest and best use of the land and the loss of its potential for industrial development. When acquisition occurred in 2019, the Kingston land and the Jomaring land no longer had any significant development potential, as this had been lost and compensated. The compensation payable on acquisition would represent the residual or carcass value of the acquired land at that time.

Conclusion

In our opinion, the words ‘pursuant to’ found in s 41(5) should be read as meaning ‘in accordance with’ or ‘consistent with’ or ‘conformable with’. The previous payment of reservation compensation under the TCP Act was ‘consistent with’ or ‘conformable with’ Pt 5 of the PE Act. Such a construction would provide a workable and sensible result and avoid irrationality and absurdity.
As a result, the reservation compensation paid to the previous claimants is compensation previously paid pursuant to Pt 5 of the PE Act for the purposes of s 41(5) of the LAC Act. This conclusion flows from the proper construction of s 41(5), without needing to resort to s 16(b) of the IL Act. The parties’ submissions to the primary judge concentrated on the application of s 16(b) of the IL Act. This focus is reflected in the applicants’ first ground of appeal, to which we now turn.

Ground 1 – Application of s 16(b) of the IL Act

The primary judge reached the same construction of s 41(5) by a different pathway and found that by operation of s 16(b) of the IL Act, the reservation compensation paid to the previous claimants under the TCP Act was taken to have been paid under Pt 5 of the PE Act.
The applicants submitted that the primary judge was wrong to do so, relying on three principal submissions to the effect that s 16(b) did not apply. They were:
(a)Pt 5 of the PE Act was not a re‑enactment of the relevant TCP Act provisions;
(b)the LAC Act manifested a contrary intention, namely that payments made under the TCP Act were not to be taken into account for the purposes of s 41(5) of the LAC Act; and
(c)the previous payments were not a ‘thing done under the repealed Act or provision’.

Purpose of s 16(b) of the IL Act

The purpose of s 16 of the IL Act is described in the explanatory notes to the Interpretation of Legislation Bill 1984 in these terms:
Clause 16 provides that where an Act or a provision of an Act is repealed and re‑enacted (with or without modification) then, unless the contrary intention expressly appears, any reference in any Act or subordinate instrument to the repealed Act or provision shall be construed as a reference to the re‑enacted Act or provision and any subordinate instrument made or other thing done under the repealed Act or provision shall have effect as if made or done under the re‑enacted Act or provision insofar as it could have been made or done under that Act or provision.
This clause will render it unnecessary to include general saving provisions in repealing enactments designed, for example, to continue subordinate legislation in force notwithstanding the repeal of the provisions under which that legislation was made. The common law rule is that subordinate legislation lapses on the repeal of the provisions under which it is made unless its operation is saved by the repealing enactment.
It is apparent from the explanatory notes that s 16 is a general savings provision which effects a number of different savings intended to avoid the need to include general savings provisions in repealing enactments. Section 16(b) overcomes the common law rule that subordinate legislation lapses when the statute under which it is made ceases to have effect unless saved by the repealing enactment. The savings effected by s 16(b) extend to subordinate legislation, and to things done under the repealed statute or provision which could have been made or done under the re‑enacted statute or provision. The savings effected by s 16(b) are subject to any contrary intention expressly appearing in the re‑enacting statute.
Section 16 may be compared with s 14 of the IL Act. Section 14 also has operation where statutes or provisions of statutes are repealed or cease to have effect and among other things provides that the repeal or cessation of effect of the statute or statutory provision does not affect the previous operation or legal effect of the statute or provision.

Is Pt 5 of the PE Act a re-enactment?

The primary judge concluded that Pt 5 of the PE Act was a re‑enactment of similar provisions in the TCP Act with some modifications. This was because:
(a)on 16 February 1988, Pt 5 provided for a continuation of the rights and obligations previously found in ss 41 and 42 of the TCP Act, including the entitlement to claim compensation and the process for that claim to be assessed;
(b)the modifications effected to parts of the process and rights (generally by their expansion) were not so severe as to rebut the conclusion that re‑enactment occurred; and
(c)many of the essential features of the planning blight compensation regime under the TCP Act were carried through into the PE Act.[38]
[38]Reasons, [189]–[190].
Her Honour noted the essential features across the two regimes as submitted by the authority. They were in substance:
(a)a right to compensation on the part of owners or occupiers of land for planning blight which can arise where land is reserved for a public purpose;
(b)the right arises where a permit is refused on the basis that land is required for a public purpose or where land is sold at a loss due to the impact of such a reservation;
(c)the compensation for loss is capped and the cap under both regimes is the same. The compensation may not exceed the difference between the actual and unaffected value of the land on the date when the liability to pay compensation first arose;
(d)multiple claims in respect of the same plot of land can be made. However, compensation previously paid must be factored into later claims;
(e)the recognition of previous compensation paid is at the heart of s 41(5) of the LAC Act and is the reason for that provision’s existence; and
(f)the amendment of s 41(5) occurred on the same day that the regime under the PE Act commenced with the effect that this caveat on the right to compensation was intended to be continuous.[39]
[39]Reasons, [191]–[192].
The primary judge undertook a detailed analysis of the relevant provisions of the TCP Act, comparing them with the corresponding provisions of the PE Act. Annexure A to the Reasons embodies her Honour’s summary of the position.

Her Honour observed that the PE Act made significant changes to the planning regime in terms of planning permission, and other associated planning provisions. However, the concept of compensation for planning blight remained a firm aspect of the regime with some minor modifications.[40]
[40]Reasons, [195].
The applicants submitted that:
(a)Pt 5 of the PE Act made fundamental changes to the TCP Act;
(b)the requirement that in assessing compensation regard should be had to reservation compensation previously paid was replaced by payment of compensation under the mandatory proportional formula found in s 41(7) of the LAC Act;
(c)there were numerous discrete changes to ss 41 and 42 of the TCP Act and the compensatory provisions in s 11B of the Lands Compensation Act 1958 were replaced by Pt 5 of the PE Act and s 41 of the LAC Act; and
(d)there was a sufficient alteration of the rights and obligations of claimants that it could not be said that Pt 5 of the PE Act regulated the award of reservation compensation in ‘very much the same way’.
The authority submitted that:
(a)ss 41 and 42 of the TCP Act were the progenitor of Pt 5 of the PE Act;
(b)Parliament must be taken to have assumed that for the purpose of s 16(b) of the IL Act, Pt 5 of the PE Act was a re‑enactment of ss 41 and 42 of the TCP Act because the contrary view produces an irrational result;
(c)Pt 5 of the PE Act deals with the same mischief in very much the same way as ss 41 and 42 of the TCP Act; and
(d)S 16(b) applies in circumstances where an Act or provision is repealed or re‑enacted with or without modification. It does not require that the amount payable under the PE Act be the same as the amount payable under the TCP Act.
In Felman v Law Institute of Victoria, the Court of Appeal decided that ss 14(2) and 16(b) of the IL Act applied to protect proceedings issued, and orders made under the Legal Profession Practice Act 1958 following the enactment of the Legal Practice Act 1986.[41] In deciding this question, the Court determined that:
(a)the legislature proceeded on the basis that the sections of the IL Act made adequate provision for proceedings and orders of the kind in question because the contrary view produced an irrational result;
(b)an order made in proceedings under the repealed Act was a ‘thing done’ for the purposes of s 16(b);
(c)the new provisions addressed essentially the same mischief in very much the same way as before;
(d)the changes made were not so substantial as to lead a court to conclude that something more than a re‑enactment was intended; and
(e)ultimately, it is a matter of substance and degree.[42]
[41][1998] 4 VR 324.
[42][1998] 4 VR 324, 339–340 (Kenny JA, Winneke P and Brooking JA agreeing) (‘Felman’).
By contrast, in Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd, Templeman J of the Western Australian Supreme Court held that there was an inconsistency between a former law and the repealing law.[43] Both dealt with the making of payments in lieu of the provision of land in subdivisional approvals. However there was a change in valuation dates between the corresponding provisions of the former and repealing laws. Section 36 of the Interpretation Act 1984 (WA) applied to protect acts, and things done under the former law only in so far as consistent with the repealing law. Because of the inconsistency, the conditional approval obtained under the former law could not endure for the purpose of the repealing law.[44]
[43][2008] WASC 38.
[44]Shire of Peppermint Grove v Owston Nominees No 2 Pty Ltd [2008] WASC 38, [73]–‍[75] (Templeman J).
The primary judge’s assessment of the status of Pt 5 of the PE Act is consistent with the Second Reading Speech in the Legislative Assembly for the Planning and Environment Bill, where the Minister for Housing said:
The compensation provisions set out in Part [5] largely reflect the existing provisions of the Town and Country Planning Act. Nowhere in the Bill is the evidence of plain language and straightforward style more striking. The right to claim compensation has been clarified and the possibility of payments for solatium to householders and necessary expenses to all claimants been recognised. Following the report on compensation by Mr Stuart Morris, the right to claim in cases of proposed reservation for public purposes has been clarified and the Minister administering the Land Acquisition and Compensation Act is given power to deal with cases of hardship. For administrative reasons, very small claims will not be allowed and compensation will not be recoverable when reservations are removed if it was paid more than six years previously.[45]
[45]Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1986, 667 (Frank Wilkes, Minister for Housing).
The primary judge’s assessment is also consistent with previous judicial dicta. In Halwood Corporation v Roads Corporation, Tadgell JA described Pt 5 of the PE Act as replacing the admittedly difficult and obscure nature of ss 41–‍43 of the TCP Act (whilst also criticising the plain English style and language of the PE Act).[46] In Studley No 1, Gobbo J described the provisions in Pt 5 of the PE Act as substantially similar to the previous legislation, namely, ss 41 and 42 of the TCP Act.[47] Gobbo J noted that the PE Act was ‘substantially the same as its predecessors, so far as recovery of compensation for a permit refusal because of reservation is concerned’.[48]
[46][1998] 2 VR 439, 445 (Tadgell JA, Brooking JA agreeing).
[47][1993] 1 VR 15, 19 (Gobbo J); appeal dismissed in Studley No 2 [1994] 1 VR 643.
[48]Studley No 1 [1993] 1 VR 15, 21 (Gobbo J).
It is true as the applicants submitted that some changes made the assessment process more favourable to claimants. The changes included the removal of the need for the Minister to authorise loss‑on‑sale claims and the two‑year time limit that formerly applied to these claims. The charges permitted solatium to be awarded when residences were removed, and compensation to be paid for loss caused by the removal or lapsing of a reservation.[49] Other reforms included the grant of power to authorities to reject small claims, and to recover compensation where a reservation was removed.[50]
[49]PE Act, ss 10, 106, 107; TCP Act, s 42(4). See Melbourne Saw Manufacturing Co v MMBW [1970] VR 394 for the unavailability of solatium under the TCP Act.
[50]PE Act, ss 103, 111.
Perhaps the most significant change in the assessment process between the TCP Act regime and Pt 5 of the PE Act was the introduction of the proportional formula found in s 41(7) of the LAC Act. There was no formula in the TCP Act for this purpose. The formula in s 41(7) clarified the compensation process by directing how previously paid reservation compensation was to be taken into account when assessing acquisition compensation. However, there was no inconsistency with what had gone before. Rather, additional guidance was given as to how acquisition compensation was to be assessed.
For the reasons which we have set out above, we agree with the conclusion of the primary judge that Pt 5 of the PE Act is a re‑enactment of ss 41 and 42 of the TCP Act with modifications. The modifications are limited, and do not upset the character of Pt 5 as a re‑enactment.

Is there an express contrary intention?

The primary judge held that there was no contrary intention expressly appearing in the LAC Act which would override the operation of s 16(b) of the IL Act whether plainly, clearly or by necessary implication.[51]
[51]Reasons, [217].
The applicants submitted that the LAC Act manifested a contrary intention to the operation of s 16(b) of the IL Act. Their main submissions were:
(a)s 41(5) of the LAC Act manifested an intention that payments made under the TCP Act were not to be taken into account for the purposes of the LAC Act;
(b)s 42(4) of the TCP Act provided that regard was to be had in calculating the amount of compensation payable under that Act to any amount of compensation previously paid under that Act or any other Act;
(c)in times where there were material increases in land values, and particularly where there was a long gap between reservation and acquisition, the proportional approach would be far more disadvantageous to a claimant than a straight deduction method;
(d)Parliament took a different approach to older payments of reservation compensation under the TCP Act; and
(e)the true intent of the LAC Act was that proportional deduction by means of the formula in s 41(7) was mandated only in cases where reservation compensation was paid under the LAC Act.
The authority submitted:
(a)the LAC Act does not manifest an express contrary intention to exclude s 16(b) of the IL Act;
(b)there is no very powerful indication from the structure, content and purpose of the LAC Act to this effect;
(c)there is no evidence to support the view that landowners would have acted in one way or another, particularly as different authorities took different approaches;
(d)there was no reasonable expectation on the part of landowners that previous payments made under the TCP Act were not to be taken into account for the purposes of the LAC Act;
(e)even if there was such an expectation on the part of landowners, there was no reason to conclude that Parliament would defer to it; and
(f)the presumptions of retrospectivity and legality had no application to the assessment of compensation following a future acquisition under the LAC Act.
In Waterfront Place Pty Ltd v Minister for Planning and Environment, the Court of Appeal considered what was necessary to show that a statute manifested a contrary intention to exclude a provision of the IL Act.[52] The Court held that the threshold requirement for contrary intention – whether it be ‘reasonable certainty’ or ‘necessary implication’ – should be strictly applied,[53] and followed the earlier Court of Appeal decision in Mitchell v Latrobe Regional Hospital where the Court held that ‘expressly’ meant ‘plainly’, ‘clearly’ or ‘by necessary implication’.[54]
[52](2019) 59 VR 556 (Maxwell ACJ, T Forrest and Emerton JJA); [2019] VSCA 156 (‘Waterfront’).
[53]Waterfront (2019) 59 VR 556, 560, 564–65 [12], [29]–[34] (Maxwell ACJ, T Forrest and Emerton JJA); [2019] VSCA 156.
[54][2016] 51 VR 581, 595–96 [64] (Osborn and Beach JJA and Forrest AJA); [2016] VSCA 342.
In ADCO Containers Pty Ltd v Goudappel, a plurality of the High Court held that the expression ‘unless the contrary intention appears’ used in New South Wales interpretation legislation required the contrary intention to be demonstrated with ‘reasonable certainty’.[55]
[55](2014) 254 CLR 1, 15 [27] (French CJ, Crennan, Kiefel and Keane JJ); [2014] HCA 18 (‘ADCO’).
In the same decision, Gageler J said:
A contrary intention sufficient to displace s 30 of the Interpretation Act must ordinarily appear with the same reasonable certainty as is needed to displace the general common law rule. A contrary intention need not be express and its implication, although sometimes referred to as ‘necessary implication’, has not been confined to those extreme circumstances in which alteration of an existing right or liability ‘cannot be avoided without doing violence to the language of the enactment’. The cases, rather, demonstrate that a contrary intention will appear with the requisite degree of certainty if it appears ‘clearly’ or ‘plainly’ from the text and context of the provision in question that the provision is designed to operate in a manner which is inconsistent with the maintenance of an existing right or liability.[56]
[56]ADCO (2014) 254 CLR 1, 22 [52]; [2014] HCA 18.
As the primary judge found, there is no indication in the LAC Act or in the PE Act that s 16(b) of the IL Act was to be excluded. There was no reasonable certainty or necessary implication that this was intended by Parliament.
The applicants’ submissions are advanced on an erroneous basis. Section 41(5) of the LAC Act properly construed does not show any intention to exclude payments of reservation compensation from consideration in the determination of acquisition compensation. While s 42(4) of the TCP Act provided that regard is to be had in calculating the amount of compensation payable under that Act to any amount of compensation previously paid under that Act or any other Act (as does s 102 of the PE Act), this is not inconsistent with the award of compensation in the manner set out in s 41(7) of the LAC Act. While the proportional deduction of compensation is less favourable to the landowner than an arithmetical deduction if land values are rising and a long time has elapsed between reservation and acquisition, there is nothing to suggest that the adoption of this method to determine the residual value of the affected land indicates a contrary intention for the purposes of s 16(b) of the IL Act. It is not correct to say that Parliament took a different approach to payments of reservation compensation under the TCP Act than it did in relation to payments of reservation compensation under Pt 5 of the PE Act. Nor is it correct to say that the true intent of the LAC Act was that proportional deduction by means of the formula in s 41(7) was mandated only in cases where reservation compensation was paid under the PE Act. On the proper construction of s 41(5), use of the formula in s 41(7) is mandated where reservation compensation is paid under the TCP Act or PE Act prior to acquisition.

Were previous payments a ‘thing done under the repealed Act or provision’?

In a supplementary submission, the applicants contended that the previous payments were not a ‘thing done’ for the purpose of s 16(b) of the IL Act, and that s 16(b) did not apply. This is a new point not raised at the trial.
In support of this submission, the applicants contended that:
(a)the payments of compensation to the previous claimants were not ‘things done’ within the meaning of s 16(b) of the IL Act. When the TCP Act was repealed, they were not existing and in force; and
(b)the payments made to the previous claimants were legally concluded when made.
As to the text of s 16(b), the applicants contended that:
(a)the expression ‘other thing done’ in s 16(b) is used in conjunction with ‘any subordinate instrument made’ and should be understood in the same sense;[57]
(b)the balance of s 16(b) is expressed in the present tense and refers to things ‘having effect’, providing that those things ‘shall have effect’ as if made or done under the re‑enacted Act or provision. The use of this language was inapt to describe a thing that is not existing and in force at the repeal date;
(c)the statutory mandate ‘shall have effect as if made or done’ naturally described the effect of s 16(b) in the case of an appointment, delegation or approval, but was an odd way to describe the effect of a thing which was legally spent; and
(d)s 14(2)(d) of the IL Act had an extensive saving effect on things which were done or suffered. It would be incongruous for s 16(b) to be construed in a way which also applied to save such things.[58]
[57]Relying on Deputy Commissioner of Taxation v Dick (2007) 226 FLR 388, 391 [13] (Spiegelman CJ); [2007] FCAFC 193 and on the ejusdem generis rule to the effect that the reference to ‘things done’ should be restricted in the same manner as the words ‘subordinate instrument made’ i.e. to things having continuing effect.
[58]Section 14(2)(d) of the IL Act provides that:
(2)Where an Act or a provision of an Act –
(a)is repealed or amended; or
(b)expires, lapses or otherwise ceases to have effect –
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears –
…
(d)affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision.
The authority objected to the new point taken by the applicants and submitted that it should not be permitted. While the point was not one that might have been met by evidence at trial, systemic considerations prevented parties from raising new points on appeal other than in the most exceptional circumstances. There were no exceptional circumstances that could justify the taking of the new point at such a late stage.
The authority additionally submitted that the new point should be rejected for two reasons:
(a)first, the expression ‘thing done’ was not confined to a thing that was existing and in force so that, unless saved, it would lapse on the repeal of the Act or provision under which it was done; and
(b)secondly, the legal effect of the payment of reservation compensation was not spent when the compensation was paid.
In support of the first reason the authority contended:
(a)a thing was done under an Act or provision where the thing was done in consequence of a power being exercised, a function being performed, or a duty being discharged in accordance with the Act;
(b)s 16(b) only applied to a subordinate instrument or thing that was existing and in force when the Act or provision of the Act was repealed. It did not resurrect instruments or things whose legal effect was exhausted at the time of the repeal;
(c)there was nothing in the text that required s 16(b) to be read down or confined to ‘things done’ that would otherwise lapse on the repeal of the relevant Act or provision;
(d)the ejusdem generis rule was restricted and did not replace the ordinary principles of statutory interpretation;[59]
(e)the expression ‘other thing done’ should be given a broad operation, as its purpose was to facilitate a smooth transition between legislative schemes by deeming things done under repealed legislation to have been done under re‑enacted legislation. This facilitated the work of Parliamentary Counsel and avoided absurd or unintended outcomes;
(f)Felman is a decision where an order made under the repealed Act was held to be effective;[60] and
(g)In the case of R v Corby Juvenile Court; ex parte M, a resolution was passed by a county council assuming parental rights and duties over children.[61] The council proposed to terminate the mother’s access to the children. The Court held that the mother was able to access the review mechanism under the re‑enacted Act as if the council had assumed parental responsibility under that Act.[62]
[59]Greater Shepparton City Council v Clark (2017) 56 VR 229 [67] (Santamaria, Beach and Kaye JJA); [2017] VSCA 107.
[60]Felman [1998] 4 VR 314, 341 (Kenny JA, Winneke P and Brooking JA agreeing).
[61][1987] 1 WLR 55 (‘M’).
[62]M [1987] 1 WLR 55 .
In support of the second reason, the authority contended:
(a)the legal effect of the payment of previous compensation was not instantly exhausted, as the payments had ongoing legal effect when s 41 of the TCP Act was repealed;
(b)s 42(4)(a) of the TCP Act required the previous compensation to be taken into account when any subsequent compensation was paid, and under ss 41(3) and (4) for that previous compensation to be recorded on title. The requirement that previous compensation be recorded on title remained a requirement under s 110 of the PE Act;
(c)these requirements put purchasers on notice of the reservation of the land and the fact that compensation had been paid. The effect of the reservation and payment of compensation was to reduce the value of the land;
(d)the payments of reservation compensation had to be taken into account when acquisition compensation was paid — it was much more than a historical fact; and
(e)there is no inconsistency between ss 16(a) and 16(b) of the IL Act. Section 16(a) complements s 16(b), but has a different function. Section 16(a) concerns references to the repealed Act and provisions. Section 16(b) deals with ‘things done’ under the repealed Act and provisions. The provisions remove the need to include boilerplate transitional provisions in every new Act to avoid absurd outcomes.

We accept the authority’s submissions. First, the practice of taking of new points on appeal not argued before the primary judge is not permitted and is only allowed in the interests of justice in exceptional circumstances. The practice undermines the respective functions of trial and appellate courts and deprives the appeal court of the considerable benefit of the primary judge’s views on the new point in the context of the evidence at trial. This is a serious disadvantage and a systemic departure from the ordinary operation of the appeals system.[63] There are no exceptional circumstances in this instance, and none were urged by the applicants.
[63]Coulton v Holcombe (1986) 162 CLR 1, 7–8 [10]–[11] (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33; Sambucco v Sambucco (2023) 72 VR 121 [29]–[30] (McLeish and Walker JJA and Gorton AJA); [2023] VSCA 199; Wallis Nominees (Computing) Pty Ltd v Pickett (2013) 45 VR 657, 675 [74]–[77] (Warren CJ and Davies AJA, Redlich JA agreeing); [2013] VSCA 24.
In any event, the point raised by the applicants is misconceived and has no merit. The payment of reservation compensation under the TCP Act has continuing effect up to and after the acquisition of the affected land, and until acquisition compensation is paid.
The payments of compensation to the previous claimants were ‘things done’ under the TCP Act and had the following effects:
(a)under s 41(3), the authority was required to lodge with the Registrar of Titles a statement in writing describing the land in respect of which the compensation was paid and giving particulars of the compensation paid and the nature of the claimant’s interest in the affected land;
(b)under s 41(4), the Registrar was required to make entries in the Register Book necessary or expedient to bring the information in the lodged statement to the attention of persons searching the title;
(c)the entries on title continued indefinitely (unless the authority requested their removal under s 41(5)(a) and (b));
(d)when acquisition compensation was paid, s 42(4)(a) and (b) of the TCP Act required in substance that regard be had to the amount already paid as reservation compensation; and
(e)where compensation was paid in relation to a reservation which was subsequently revoked, s 43(2) of the TCP Act authorised the authority to acquire the land unless the owner repaid to the authority the amount of compensation previously paid.
Likewise, Pt 5 of the PE Act and the LAC Act contain provisions to similar effect:
(a)under s 110 of the PE Act, compensation paid is required to be noted on title;
(b)under s 111, an authority can recover compensation previously paid if the reservation is removed and in some other circumstances;
(c)under s 102, in determining the level of compensation to be paid under Pt 5, regard is to be had to any amount of compensation previously paid or payable; and
(d)under s 41(5) of the LAC Act, acquisition compensation is required to be reduced by the prescribed amount.
We accept the authority’s submission that the payments of reservation compensation in 1984 were ‘things done’ within the meaning of s 16(b) of the IL Act. They had continuing effect until compensation was paid on the acquisition of the affected land in 2019.

Conclusion

For these reasons, Ground 1 fails. The primary judge was correct to hold that s 16(b) of the IL Act applied with the result that the payments of compensation made under ss 41 and 42 of the TCP Act took effect as if made or done under Pt 5 of the PE Act.

The scope and application of s 206 of the PE Act

Section 206 of the PE Act provides:
Except as in this Act expressly or by necessary implication provided all persons, things and circumstances appointed or created by or under any Act which is amended or repealed by this Act or existing or continuing under that Act immediately before the commencement of the item in the Schedule amending or repealing that Act continue under and subject to this Act to have the same status, operation and effect as they respectively would have had if that Act had not been so amended or repealed.
The primary judge observed that there was only a subtle distinction between the application of s 16(b) of the IL Act and s 206 of the PE Act in the present case. The distinction made no difference, as the outcome was the same. However, as she had already made a positive determination of the re‑enactment issues under s 16(b), and as the s 206 argument was not fully developed or properly directed at the trial, she decided that there was no need to examine this argument further.[64]
[64]Reasons (n 1) [241]–[244].
The parties provided written submissions to this Court as to the proper construction of s 206 of the PE Act.
The authority submitted that:
(a)the payment of previous compensation occurred under s 41(1) of the TCP Act and was therefore a thing ‘created under’ the TCP Act;
(b)the PE Act amended or repealed the TCP Act;
(c)no contrary intention was to be found expressly or by necessary implication in the PE Act;
(d)at all times before the repeal of the TCP Act, reservation compensation was required to be taken into account in the assessment of later acquisition compensation;
(e)all reservation compensation was previously paid under s 41 of the TCP Act; and
(f)Parliament intended that reservation compensation under the TCP Act would be deducted from acquisition compensation offered under the LAC Act using the methodology prescribed by s 41(5) and (7) of the LAC Act.
The applicants made two submissions, namely that:
(a)the terms of s 41(5) of the LAC Act are not engaged by s 206 of the PE Act; and
(b)s 206 of the PE Act exhaustively states the transitional rules governing the relevant repeal of the TCP Act, and precludes any collateral operation of s 16(b) of the IL Act.
In support of the first submission, the applicants contended:
(a)s 206 is expressly and by necessary implication subject to the other provisions of the PE Act including the former s 205 and item 42 of the schedule to the PE Act[65] which amended s 41(5) of the LAC Act from ‘section 41 of the Town and Country Planning Act 1961’ to ‘Part 5 of the Planning and Environment Act 1987’;
(b)s 206 cannot operate to reverse the substitution made by the former s 205 and item 42;
(c)ss 102 and 110 of the PE Act by implication provide otherwise than for s 206 to apply as contended by the authority by referring to compensation paid under the PE Act or any ‘corresponding previous enactment’. In contrast, other provisions of the PE Act refer only to compensation paid under the PE Act itself; and
(d)where a provision of the PE Act does not refer to compensation paid under any ‘corresponding previous enactment’ it only applies to compensation paid under the PE Act itself.
[65]Section 205 of the PE Act provided: ‘On the coming into operation of an item of the Schedule, the Act referred to in that item is amended or repealed as set out in that item.’ Item 42 stated: ‘In section 41(5) for “section 41 of the Town and Country Planning Act 1961” substitute “Part 5 of the Planning and Environment Act 1987”’. Section 205 and item 42 were repealed by s 24 of Act No 86/1989 on 5 December 1989.
The applicants additionally submitted:
(a)the authority had not identified a ‘thing’ or ‘circumstance’ created by or under the TCP Act within the meaning of s 206;
(b)the previous payments were not a ‘thing’ or ‘circumstance’;
(c)while reservation compensation had to be recorded on title under s 41(3)–‍(6) of the TCP Act, not all reserved land was ultimately acquired;
(d)application of the formula in s 41(7) to reservation compensation under the TCP Act was not authorised by s 205 and item 42 of the Schedule to the PE Act;
(e)the relevant effect of s 206 was that the thing or circumstance created under the repealed Act had ‘the same status, operation and effect’ as if the Act ‘had not been so … repealed’. This meant that the previous payments would continue in force as payments made under s 41 of the TCP Act and not as payments made under Pt 5 of the PE Act;
(f)the effect of s 206 is to preserve matters undisposed of before the relevant repeal of the TCP Act; and
(g)no different result is suggested by the legislative history.
Finally, the applicants submitted that Pt 11 of the PE Act, which is headed ‘Repeals, transitions, and savings’, impliedly excluded the operation of the more generic savings rules contained in interpretation legislation such as s 16(b) of the IL Act.

Construing s 206 of the PE Act

The applicants’ arguments as to the construction of s 206 are founded on a strictly literal reading of s 206. Significantly, they do not seek to apply the principles of statutory construction stated and restated by the High Court.[66] When the principles of statutory construction are applied to s 206 of the PE Act, it can be seen that the applicants’ arguments are misconceived and wrong.

Text

[66]See above [29]–[32].

Section 206 of the PE Act is engaged if three requirements are satisfied. They are:
(a)there is a thing or circumstance created by or under an amended or repealed Act, or existing or continuing under that Act;
(b)the PE Act amended or repealed the other Act; and
(c)there is no contrary intention found expressly or by necessary implication in the PE Act.
If the three conditions are met, s 206 provides for the thing or circumstance to continue, and subject to the PE Act, to have the same status, operation and effect as it would have had if the other Act had not been so amended or repealed.
In considering the operation of s 206, four conclusions can be drawn:
(a)given the terms of the section, it is necessary to identify the ‘thing’ or ‘circumstance’ created by or under the other Act or which is said to exist or continue under the PE Act;
(b)the savings provision will operate subject to a contrary intention which must be found either expressly or by necessary implication in the PE Act itself;
(c)the thing or circumstance continues ‘under and subject to’ the PE Act. It cannot have an operation or effect that is inconsistent with the operation of the PE Act; and
(d)the thing or circumstance will continue to have the same status, operation and effect as it would have had if the other Act had not been amended or repealed.
In North Burnside Pty Ltd v Melton Shire Council, an authority entered into an agreement under seal in 1987 with the owner of land in an area covered by a planning scheme.[67] The agreement was made under s 52A of the TCP Act and related to the provision of infrastructure and services. A developer of the land subsequently submitted a new development plan to the council and applied for a subdivision permit. The authority declined to approve the plan or grant the permit. The Victorian Civil and Administrative Tribunal held that the s 52A agreement was not binding on the council. In considering the application of s 206 of the PE Act, Osborn J observed that s 206 provided for the circumstances continuing under the repealed Act to continue under the PE Act ‘subject to this Act’. This necessarily conveyed that the agreement insofar as it may have had continuous operation was subject to the provisions of the PE Act, and planning schemes under the PE Act. A permit could not be granted to the developer unless the plan of subdivision was generally in accordance with a development plan. This required the exercise of an independent discretion by the authority having regard to the applicable mandatory considerations in the operative planning scheme.[68]
[67](2006) 18 VR 1; [2006] VSC 35.
[68](2006) 18 VR 1, 14–15 (Osborn J); [2006] VSC 35.
It is clear that the three requirements for the operation of s 206 of the PE Act are met in the present case as:
(a)the payment of compensation to the previous claimants was a thing or circumstance created under the TCP Act;
(b)the PE Act amended or repealed the TCP Act; and
(c)there is no contrary intention expressly or impliedly found in the PE Act.
As to these requirements:
(a)there is nothing in the PE Act which states that payments of reservation compensation under the TCP Act are not to have continuing effect when the affected land is compulsorily acquired;
(b)prior to the repeal of s 41 of the TCP Act, reservation compensation was required to be taken into account in the assessment of acquisition compensation;
(c)when s 41 of the TCP Act was repealed, all reservation compensation that had previously been paid had been paid under the TCP Act;
(d)the repeal of s 41 of the TCP Act did not abrogate the requirement for acquiring authorities to have regard to the previous payment of reservation compensation in the assessment of acquisition compensation; and
(e)the status, operation and effect of previously paid reservation compensation could be, and was preserved under s 206 of the PE Act.
The requirement to have regard to previous reservation compensation arose under s 42(4) of the TCP Act and s 102 of the PE Act. In addition, s 41(5) of the LAC Act directed that the amount of compensation payable under Pt 5 of the PE Act in respect of an acquired interest in land must be reduced by the prescribed amount using the methodology in s 41(7) of the LAC Act.

Context and purpose

Section 206 of the PE Act is found in Part 11 of the PE Act which is entitled ‘Repeals, transitions and savings’. It forms part of a group of savings and transitional provisions. As a general savings provision, it provides for the continuance of appointments made, or things and circumstances created under repealed or amended legislation, such as the TCP Act. It overcomes the lapse or potential lapse of appointments, or things or circumstances done or created under previous legislation.
Section 207(2) of the PE Act is likewise concerned with acts, matters and things of a continuous nature done or commenced under revoked planning schemes, whilst s 207(3) provides for the continuance of legal proceedings, arrangements, contracts, agreements, assets and liabilities among other things. Section 208 of the PE Act is concerned with the continuance of permits granted under planning schemes in force under previous legislation.
The PE Act effected important reforms to the planning system and planning schemes. It is not surprising that the changes were supported by comprehensive savings provisions. These savings provisions are wide in scope and were not intended to be mutually exclusive. They include the general savings provisions in the IL Act, as well as the savings provisions in the PE Act.
These considerations support the view that the authority’s submissions as to the construction of s 206 are correct and should be accepted.

Conclusions concerning s 206 of the PE Act

We reject the submissions made by the applicants as to the application and effect of s 206 of the PE Act for the following additional reasons:
(a)in Waterfront, the Court of Appeal considered what was necessary to show that a statute manifested a contrary intention, holding that the threshold requirement for showing a contrary intention was reasonable certainty or necessary implication, or that the contrary intention arose plainly, clearly or by necessary implication;[69]
(b)there is no express provision or implication that s 16(b) of the IL Act was intended by Parliament to be excluded on the enactment of s 206 of the PE Act;
(c)there is nothing inconsistent about the complementary or collateral operation of general savings provisions in the IL Act and specific provisions in a reenacting statute such as the PE Act; and
(d)there is nothing that suggests that the savings provisions in the IL Act are to be taken as excluding the savings provision in the reenacting statute. Rather, there is good reason why both should apply and take effect.
[69](2019) 59 VR 556; [2019] VSCA 156. See above [89].
In summary:
(a)the provisions of the PE Act and LAC Act under consideration must be construed in accordance with accepted principles of statutory construction;
(b)there is no reason to conclude that the only references to the TCP Act intended by the PE Act arise where a reference is made to a corresponding previous enactment;
(c)there is no reason why the payment of reservation compensation under the TCP Act should not be regarded as having the same status, operation and effect under the PE Act;
(d)the previous payments are not past events but have continuing significance and effect as we have described;[70]
(e)there is good reason why a thing or circumstance preserved under s 206 of the PE Act should have the same status, operation and effect under the repealing or amending Act as it did under the repealed or unamended Act; and
(f)there is nothing in the legislative history or extrinsic material that is inconsistent with the conclusions that we have reached.
[70]See above [103]–[104].
We therefore accept the authority’s submissions as to the proper construction of s 206 of the PE Act and hold that it is effective to give the payments of previous compensation under the TCP Act the same status, operation and effect under the PE Act as they would have had if the TCP Act had not been repealed.

Ground 2 – Construction of the ‘B’ value in s 41(7) of the LAC Act

Section 41(5) directs that acquisition compensation must be reduced by the prescribed amount. Section 41(7) determines how this is done. The enactment of these provisions resolved a longstanding uncertainty as to how previous reservation compensation was to be taken into account when calculating acquisition compensation. The uncertainty had not been resolved by courts when the LAC Act was enacted. Under s 41(7), acquisition compensation is calculated using the ratio or proportion derived from the formula in s 41(7) and not by arithmetical deduction.
The primary judge construed the B value component in the formula in s 41(7) of the LAC Act in the following way:
In my view, applying the principle of noscitur a sociis, the clause ‘which was the basis for the calculation of that compensation’ in s 41(7) operates to inform the interpretation of the phrases ‘the actual zoning’ and ‘the date’. The provision must be read in context and it must be read as a whole. When this is done, it is evident that the crucial aspect of s 41(7) is the identification of the basis of the original calculation of compensation, at the time such calculation was made. In the present circumstances, the original calculation was based on a zoning (both valuers at the time proceeded as if the GIZ applied to the reserved land) and s 41(7) can be understood and applied in those terms. Put another way, ‘actual zoning’ means the zoning which was actually the basis for the calculation of the compensation.[71]
[71]Reasons, [257].
The applicants submitted that:
(a)when s 41(7) was amended in 2006, the reference to underlying zoning in the B value was replaced by the words ‘actual zoning’;[72]
(b)the extrinsic materials do not advert to the reason for the change;
(c)the primary judge was wrong to construe s 41(7) as if the B value referred to the zoning which was actually the basis for the calculation of the reservation compensation;
(d)the primary judge’s construction takes the provision back to the very meaning from which the legislature had determined to depart;
(e)the plain and literal meaning of the words ‘actual zoning that applied to the land’ is the only tenable interpretation;
(f)the Court was bound to apply the applicants’ construction of s 41(7) as the affected land was reserved land and had no ‘actual zoning’ at the relevant time; and
(g)no B value could be calculated and no prescribed amount determined.
[72]Road Legislation (Projects and Road Safety) Act 2006, s 59(3) (‘2006 Act’).

The applicants challenged the primary judge’s finding that the applicants’ construction of the B value would give rise to absurd results for three reasons:
(a)the primary judge’s concerns no longer arise because all land has had a zone since 1999;
(b)even if s 41(5) does not apply, reservation compensation is still taken into account under the general compensation principle; and
(c)even if unexpected results arise in some cases, a construction of the words which avoids these results is not open on the legislative language.
The authority submitted that the applicants’ construction of s 41(7) was wrong for the following reasons:
(a)when the LAC Act was first enacted, the B value referred to the underlying zoning;[73]
(b)the expression ‘underlying zoning’ was used because until the late 1990s reserved land was not zoned, and was understood to refer to the zoning that the affected land would have had if it had not been reserved;[74]
(c)the purpose of the amendments to s 41 of the LAC Act effected by the 2006 Act was to update the language used in the LAC Act;
(d)there is no reference to this amendment in the explanatory memorandum or the second reading speech to the 2006 Act;
(e)the words ‘actual zoning’ are not used in isolation but as part of the composite expression ‘on the basis of the actual zoning that applied to the land at the date which was the basis for the calculation of that compensation’;
(f)the constructional choice was determined by an evaluation of the relative coherence of the alternatives with identified statutory objects or policies;
(g)the applicants’ construction would lead to absurd results, and a windfall to them; and
(h)the applicants’ construction nullifies s 41(5) which provides that previous compensation must be deducted.
[73]See above [24].
[74]Victoria Planning Provisions, cl 45.
The primary judge was faced with a constructional choice. If the words ‘actual zoning’ found in the value were given a plain or literal meaning then absurd results would follow, or the determination of a prescribed amount as required by s 41(5) of the hypothetical LAC Act might be impossible. The absurd results would extend to all cases where the actual zoning differed from the zoning used to determine reservation compensation. The formula would fail in all cases where the affected land was reserved and not zoned when reservation compensation was paid. The construction adopted by the primary judge gave effect to the legislative purpose of the formula in s 41(7) and avoided a miscarriage in the operation of the provision.
We have set out relevant principles of statutory construction in paragraphs [29] to [32] above. In short, where the text of a statutory provision is capable of more than one potential meaning, the constructional choice may depend on the relative coherence of each with the scheme of the statute and its identified objects and policies.[75] Legislation must prima facie be construed on the basis that its provisions are intended to give effect to harmonious goals.[76]
[75]SAS (2018) 265 CLR 137149 [20] (Kiefel CJ, Bell and Nettle JJ); [2018] HCA 55.
[76]See above [32].
Furthermore, in R v A2, two members of the High Court observed that a literal approach to construction which requires the courts to obey the ordinary meaning or usage of the words of the provisions, even if the result is improbable, has long been eschewed.[77] The same members observed that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different meaning after the process of construction is complete.[78]
[77]R v A2 (2019) 269 CLR 507, 520 [32] (Kiefel CJ and Keane J); [2019] HCA 35.
[78]R v A2 (2019) 269 CLR 507, 521 [32] (Kiefel CJ and Keane J); [2019] HCA 35.
The intended function of the formula in s 41(7) is easy to perceive and understand when expressed in simple terms. It involves two steps. The first step is to calculate the proportion of market value of the affected land absent the reservation that was compensated by the reservation compensation. This is done simply by dividing the amount of reservation compensation paid for diminution of market value (the numerator), by the market value of the affected land absent the reservation at the same time (the denominator). The proportion so derived reflects the level of impairment of the affected land by reason of the reservation.
The second step is to apply the ratio or proportion so derived to the compensation payable for loss of market value, including severance of the affected land, at the date on which acquisition compensation is to be paid.
In short, the formula educes the proportion of the affected land the authority has already paid for by reason of the payment of reservation compensation and thereby determines what acquisition compensation should be paid in relation to the residual or carcass value of the affected land when acquired.
The result is that the authority takes the benefit of any subsequent increased value of the interest in land that it has already paid for through the payment of reservation compensation. The claimant receives reservation compensation, and on acquisition takes the benefit of any subsequent increase in the market value of the residual or carcass land. There is nothing unfair in such an approach.
Once the legislative purpose of the formula is understood, it is plain that the B value must be taken to mean the market value of the land at the relevant date for the purposes of the determination of reservation compensation. The formula would make no sense and inevitably produce absurd results if it were otherwise.[79]
[79]The authority gave the following example of the absurdity that would follow from using the actual zoning, rather than the actual zoning used as the basis for the calculation of the reservation compensation. Suppose reserved land is zoned green wedge, and worth $200,000, and but for the reservation it would have been zoned residential, and worth $1,000,000. Suppose also that a planning permit to develop the land is refused, and the landowner then receives reservation compensation of $800,000, assessed by reference to the hypothetical zoning, which is residential. The land is then acquired. On the applicants’ construction, the A value is $800,000 and the B value is $200,000. Whatever the C value, the prescribed amount will be greater than the market value of the land at the date of acquisition. This would have the effect that the landowner would receive no acquisition compensation, despite having previously received reservation compensation for only 80 per cent of the unaffected value of the land.
The primary judge determined the meaning of the expression ‘the actual zoning’ by considering the surrounding words and phrases.[80] Of crucial importance in the interpretation of this expression, are the reference in the B value to ‘the date’ and the ‘basis for the calculation of that compensation’. These components of the B value make it clear that the factor is calculated using the basis on which the reservation compensation is calculated and the same date. The reference to ‘actual zoning’ can then be sensibly read as the zoning that was adopted as the basis for the calculation of reservation compensation. If this is not done, anomalous results will abound because the proportion intended to be calculated by the formula will not be derived sensibly or accurately. This was illustrated by the authority in its submissions by case examples.
[80]Reasons, [257].
The conclusion that we have reached as to the proper construction of the formula in s 41(7) is strengthened by the following considerations:
(a)the use of the expression ‘underlying zoning’ found in the previous form of the B value in s 41(7) confirms that what was intended was to adopt the same market value for the affected land as was used to pay reservation compensation;
(b)the purpose of the amendment to the B value of s 41(7) was to update the terminology as the expression ‘underlying zoning’ was no longer in use, but not to alter the application or operation of the formula in s 41(7);
(c)this is confirmed by the absence of any reference in the explanatory memorandum or second reading speech for the 2006 Act to the amendment of the B value in the formula; and
(d)the direction in s 41(5) that the amount of compensation payable on acquisition ‘must be reduced’ by the prescribed amount is best achieved if the construction adopted for the formula is given meaningful application and the B value construed in a reasonable and sensible way.
We conclude that Ground 2 must fail. The applicants have not succeeded in showing any error by the primary judge in the construction or application of s 41(7) of the LAC Act or the formula in that provision.

Conclusion

For the reasons that we have given, Grounds 1 and 2 fail. The applicants have not shown any error by the primary judge. In addition, the primary judge’s conclusion about the application of s 41(5) of the LAC Act is affirmed by both grounds advanced in the authority’s notice of contention.
We would grant leave to each applicant to appeal on both grounds but dismiss the appeals.
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[2025] VSCA 128

5 June 2025