Kevin Snell Pty Limited v Manly Council

[2004] NSWLEC 567

Land and Environment Court

of New South Wales

CITATION:	Kevin Snell Pty Limited v Manly Council [2004] NSWLEC 567
PARTIES:	APPLICANT: Kevin Snell Pty Limited RESPONDENT: Manly Council
FILE NUMBER(S):	10460 of 2004
CORAM:	Pain J
KEY ISSUES:	Question of Law :- Whether notice of realignment method of acquisition given for land affected by road widening
LEGISLATION CITED:	Crown and Other Roads Act 1990, sch 2 Local Government Act 1919, s 262 Public Roads Act 1902, s 28 Public Roads (Amendment Act) 1968 Roads Act 1993, s 26, sch 2
CASES CITED:
DATES OF HEARING:	15/10/2004
DATE OF JUDGMENT:	10/22/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr M. Craig QC with Ms S. Duggan instructed by Bruce & Stewart RESPONDENT: Mr B. Coles QC with Ms H. Irish instructed by Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

22 OCTOBER 2004

10460 of 2004 KEVIN SNELL PTY LIMITED v MANLY COUNCIL

JUDGMENT

1 Her Honour: The Applicant, Kevin Snell Pty Limited, has commenced Class 1 proceedings in this Court appealing against Manly Council's refusal of its development application for a change of the use of a building known as 36-38 South Steyne, Manly (“the building”) to a hotel and for alterations and additions to the building. The Statement of Issues filed by the Council on 22 July 2004 raises the following issue for determination at prayer 3:

Whether the proposed development should be approved, given it includes major rebuilding within the road widening area required under the Roads Act 1993 which would prolong the life of the building and hinder the achievement of the road widening.

2 Section 26 of the Roads Act 1993 provides as follows:

(1) A person must not construct, replace or repair a building or work on land to which a road widening order applies.
Maximum penalty: 10 penalty units.
(2) This section does not prevent a person from carrying out minor repairs or improvements to a building so long as:
(a) they are designed merely to enable the reasonable preservation of the building for temporary use, and
(b) they are carried out with the consent of the appropriate roads authority.
(3) A consent may not be given with respect to a classified road except with the concurrence of the RTA.
(4) If, in contravention of this section, a person constructs, replaces or repairs a building or work on land affected by a road widening order, the roads authority may direct the owner of the land to carry out such work as is necessary to restore the land to the state it was in before the contravention occurred.

3 Accordingly, the Statement of Issues raises the issue of whether a road widening order within the meaning of s 26(1) of the Roads Act 1993 applies to the building.

4 Both the Applicant and the Council filed Notices of Motion seeking the determination of separate questions of law in relation to this issue prior to the hearing of the Applicant’s Class 1 Appeal. The parties discussed the final form of the question I should answer at the commencement and conclusion of the hearing before me and the parties have now agreed that it is appropriate that I answer the following question of law:

Was the letter headed “Application to Realign South Steyne” dated 12 June 1951 from the Respondent Council, addressed to (among others) the then owners of the land the subject of these proceedings, a notice served in accordance with section 262(3) of the Local Government Act 1919 relating to the widening of South Steyne by realignment pursuant to section 28 of the Public Roads Act 1902 , effected by notification published in the Gazette on 24 March 1961, and thereby a notice deemed by reason of clause 47(1) of Schedule 2 to the Roads Act 1993 to be a road widening order for the purpose of that Act?

5 The parties agreed that the letter referred to in the above question of law (“the letter”) was received by the estate of one of the Applicant’s predecessors in title to the building, being the late R. L. Moss, care of the Perpetual Trustee Co Ltd and that the letter stated as follows:

Dear [ ]
Application to Realign South Steyne.
Assessment No. [ ] Lot [ ]
Property known as [ ]
As part of a long-range plan of effecting future essential improvements within the Municipality, the Council at a recent meeting adopted a recommendation by its Planning Committee to the effect that, with the ultimate object of carrying out a future road widening scheme in connection with such planning, necessary steps be taken under the provisions of Section 262 of the Local Government Act to have realigned the thoroughfare within the Municipality known as South Steyne between the Corso and Ashburner Street to provide a roadway (including footway) 100 feet in width measured from the eastern kerb line of the South Steyne Reserve.

In consequence, application as prescribed is now being submitted to the Minister for Lands in the abovementioned direction, and in compliance with the provisions of the Local Government Act, it is necessary to notify you of the proposal of the Council in such regard by reason of the fact that your property facing the South Steyne will be affected by the scheme.

Owners of other properties which are embodied in the proposed future widening of the South Steyne are also being similarly notified.

Yours faithfully,

Town Clerk

6 On 15 March 1961, nearly ten years after the letter was sent, a notice was published in No 36 of the New South Wales Government Gazette at folio 934 (“the gazetted notice”). The gazetted notice stated that pursuant to s 262 of the Local Government Act 1919 the South Steyne had been realigned under the Public Roads Act 1902 as follows:

…
South Steyne, from the Corso to Ashburner-street, total width 56 feet and variable. This is a realignment in order to widen the road or part of the alignment shown on plan M 31-2,193 and affects the south-western side only…

7 At the time the letter was sent the Local Government Act 1919 and the Public Roads Act 1902 applied. Section 262 of the then Local Government Act 1919 provided as follows:

(1) The council may cause any aligned public road to be realigned under the Public Roads Act, 1902, in order to widen the road.
(2) Any realignment under this section may be carried into effect by the acquisition under this Act of the necessary land, or under the succeeding provisions of this section relating to the realignment method of acquiring land, or by a combination of these methods.
(3) Where the council proposes to apply the realignment method of acquisition to any lands affected by a realignment it shall serve notice accordingly upon the owners of the lands affected; and until such notice is served the interests of such owners shall not be affected by the realignment.
(4) Under the realignment method compensation for any injurious effects suffered by reason of such realignment may be claimed but shall be limited to payment of the value of the land taken from any owner by reason of the realignment.
Such value shall be ascertained and such compensation shall be payable:
(a) in the case of land clear of buildings and obstructions, as at the date when the notice referred to in subsection three of this section is served upon the owner of such land, and
(b) in all other cases, as at the date when such land is cleared of buildings and obstructions by the owner or lessee whether for the purpose of building to the new alignment or not.
Subject to the provisions of this section, from the date upon which such compensation shall be payable the land shall vest in the council for a public road.
(5) Where any public road is realigned, and where the realignment method is applied, the owner of any land or building or work affected by such realignment shall not construct, build, place, reconstruct, rebuild, replace or repair any building or work or portion of a building or work standing upon the land between the old alignment and the new :
Provided that the council may approve the execution of minor and not substantial repairs and improvements in order to permit of the reasonable preservation and temporary use of any existing building or work, but not so as to violate the intention of this section.

8 Section 28 of the Public Roads Act 1902 provided as follows:

(1) On written application by the council of any municipality and on their undertaking to pay when called upon such part or the whole of the cost as may be agreed upon as aforesaid the Minister may cause the width and the position of the carriage-way and the footways in any street or public place that has been previously aligned under this or any other Act to be re-marked or altered and a plan thereof to be prepared which plan may be submitted by the Minister to the Governor for approval.
(2) When such approval has been given and published in the Gazette the said plan shall be for all purposes conclusive evidence of the limits and boundaries of the said street or public place and the carriage-ways and footways as re-marked or altered according to the said plan shall for the purposes of the Municipalities Act of 1897 and all enactments relating to the alignment of streets or public places be deemed to have been set out and defined by the council within the meaning of section two hundred and thirty-four of the said Act.
(3) No alignment shall be altered under this section until one month after notice has been published in the Gazette and in some local newspaper indicating the proposed alteration and calling upon all persons interested to set forth in writing addressed to the Minister within one month of the date of such notice any well grounded objections that appear to them to exist to the proposed alteration.
(4) In the event of any apparently valid objection being received from any person whose property might be directly affected in an injurious manner should the alteration be effected as proposed such objection shall be referred by the Minister to the council of the municipality for settlement and the proposed alteration shall not be carried into effect until the objection is withdrawn or otherwise dealt with by the council to the satisfaction of the Minister.

9 The Public Roads Act 1902 was subsequently amended by the Public Roads (Amendment Act) 1968 so that s 28 was incorporated, with amendments not currently relevant, into s 27 of the Public Roads Act 1902.

10 The Public Roads Act 1902 was subsequently repealed by the Crown and Other Roads Act 1990. Schedule 2 to the Crown and Other Roads Act 1990 enacted savings and transitional provisions in relation to the repeal of the Public Roads Act 1902. The savings and transitional provisions contained in Sch 2 include the following:

Effect of repeal in transaction effected under former Act

General saving

15. The repeal of the former Act does not, of itself deprive any act, matter or thing done of any effect which it was declared or otherwise caused to have by that Act.

11 The parties agreed that the effect of these savings and transitional provisions was that the gazetted notice continued to have effect. The Crown and Other Roads Act 1990 did not otherwise affect the operation of s 262 of the Local Government Act 1919.

12 In 1993 the Roads Act 1993 and the Local Government Act 1993 were enacted and the Crown and Other Roads Act 1990 and the Local Government Act 1919 were repealed. Schedule 2 to the Roads Act 1993 contains the following savings and transitional provisions in relation to the repealing of the Crown and Other Roads Act 1990 and the Local Government Act 1919:

General savings
16. (1) If anything done under a repealed Act still has effect immediately before the repeal of that Act and that thing could have been done under a provision of this Act if it had been in force at the time when the thing was done, the thing continues to have effect after that repeal as if it had been done under that provision.
…
Section 262 Notices
47. (1) A notice served on the owner of land under s 262 of the repealed Act is taken to be a road widening order within the meaning of this Act.
…

13 The parties agreed that the effect of these provisions is that if the 1951 letter constituted a valid notice under s 262(3) of the Local Government Act 1919 then cl 47 of Sch 2 of the Roads Act 1993 has the effect that the letter is taken to be a road widening order and the prohibition contained in s 26 of the Roads Act 1993 applies to the building. Accordingly I must determine whether the letter constituted a valid notice under s 262(3) of the Local Government Act 1919 as at the time it was sent.

The Council’s Submissions

14 The Council argued that the letter constituted a valid notice under s 262(3) of the Local Government Act 1919. The Council argued that the wording of s 262 of the Local Government Act 1919 and s 28 of the Public Roads Act 1902 suggested that a notice under s 262(3) of the Local Government Act 1919 should be sent to relevant landowners close to the time when the Council resolved to initiate a road widening process under s 28 of the Public Roads Act 1902. The Council argued that unless such a notice was sent to affected landholders prior to the commencement of the process prescribed by s 28 of the Public Roads Act 1902 affected landholders may be unaware that the process has commenced. The Council argued that as the letter post dated the Council resolution to initiate the road widening process, which the Council minute papers contained in exhibit A indicate was made on 9 March 1951, the letter satisfied the requirements imposed under s 262(3) of the Local Government Act 1919 and was, accordingly, a valid notice under that section.

15 The Council also argued that the prohibition contained in s 262(5) of the Local Government Act 1919 was preserved by the general savings provision contained in cl 16(1) of Sch 2 to the Roads Act 1993 and that, provided the letter was a valid notice under s 262(3), that prohibition continued to be in force.

The Applicant’s Submissions

16 The Applicant argued that the wording of s 262(2) and (3) of the Local Government Act 1919 is clearly directed to the situation which occurs after the road realignment (widening) procedures contained in s 28 of the Public Roads Act 1902 have been carried out and the one month period specified in s 28(3) has expired without any apparently valid objection being received. The Applicant argued that that process is referred to in s 262(1) of the Local Government Act 1919 so that it is the Public Roads Act 1902 which is directed to the road widening itself while the Local Government Act 1919 is directed to the method whereby the Council will acquire the affected land to give affect to the road widening. The Applicant argued that a notice under s 262(3) of the Local Government Act 1919 is clearly directed to advising the landowner that the Council elects to adopt the “realignment method of acquisition” as s 262(5) prescribes certain consequences if this method is pursued, rather than an acquisition by the Council of the affected land through the compulsory acquisition powers contained in the Local Government Act 1919. The Applicant argued that the express terms of s 262 of the Local Government Act 1919 make it clear that a notice under s 262(3) may only be served after the realignment has been effected and, as the letter was served nearly ten years prior to the gazetted notice, the letter cannot be a valid notice pursuant to s 262(3).

17 Further, the Applicant argued that the letter was not a notice under s 262(3) of the Local Government Act 1919 as it did not indicate, as required by the section, that the Council had elected to adopt the “realignment method” of acquisition. The letter simply advises of the intention to take “necessary steps…to have realigned…South Steyne” and that it was necessary to notify of this intention as “your property…will be affected by the scheme”. Further, the Applicant argued that the letter was not a valid notice under s 262(3) of the Local Government Act 1919 as it does not accord with the area of land the subject of the gazetted notice in that the letter refers to 100 feet whereas the gazetted notice refers to 56 feet (variable).

18 In relation to the Council’s argument that cl 16(1) of Sch 2 to the Roads Act 1993 operates to preserve the prohibition contained in s 262(5) of the Local Government Act 1919 the Applicant argued that this clause is expressly limited to actions taken under a previous enactment and does not extend to the prohibition contained s 262(5). Given this, the Applicant argued that the ordinary rules of statutory construction do not allow for the Council’s interpretation. In any event, the Applicant argued that, as s 262(3) of the Local Government Act 1919 provides that “until such notice is served the interests of such owners shall not be affected by the realignment”, s 262(5) only operates if a s 262(3) notice has been served which the Applicant argued has not occurred.

Finding

19 I agree with and adopt the Applicant’s arguments as set out at par 16 to 18 above. The unsatisfactory nature of the Council’s arguments is demonstrated when the consequences of the approach it argued for are considered in this context. Section 262(4) of the Local Government Act 1919 makes it clear that, in the case of “land clear of buildings and obstructions” in relation to which a Council has elected to apply the realignment method of acquisition, compensation is payable and is to be determined on the basis of the value of the land as at the date on which a notice under s 262(3) is served. If the Council’s submissions are correct, this date could be a date earlier than the date on which the notice referred to in s 28(2) of the Public Roads Act 1902 is published in the gazette. Accordingly, where the amount of land specified in the gazette is smaller than that to which the purported notice under s 262(3) of the Local Government Act 1919 relates, the amount of compensation under s 262(4) would be assessed on the larger area in the notice. Here, the letter referred to the roadway being realigned to be 100 feet wide whereas the gazetted notice, which set the boundary of the road pursuant to the Public Roads Act 1902, stated that the road was to be widened to a width of 56 feet. According to the Council’s argument the Council was liable to acquire, by the realignment method, the 100 feet specified in the letter, not the lesser amount referred to in gazetted notice forming the actual road widening order made in 1961.

20 As argued by the Applicant, this liability of the Council under s 262(4) of the Local Government Act 1919 would arise before it was even clear that the Minister, as the responsible person under the Public Roads Act 1902 would agree to the road realignment sought by the Council, as required by s 28(2) of the Public Roads Act 1902, or before any objection under s 28(4) of the Public Roads Act 1902 had been taken into account. This would appear a completely anomalous result which it is unlikely the legislature would have intended.

21 Further, the transitional provisions contained in cl 47 of Sch 2 to the Roads Act 1993 provide that it is the notice pursuant to s 262(3) of the Local Government Act 1919 which is to be regarded as a road widening order under the Roads Act 1993 and not the gazettal of the notice under s 28(2) of the Public Roads Act 1902. Accordingly, if the Council is correct and the letter constitutes valid notice under s 262(3) of the Local Government Act 1919, the prohibition contained in s 26 of the Roads Act 1993 would apply to the 100 feet specified in the letter and not the lesser amount of 56 feet specified in the 1961 gazettal notice. This would again seem to be an anomalous result.

22 In my view the results which necessarily follow if a notice under s 262(3) of the Local Government Act 1919 can be validly issued prior to the publication in the gazette of the notice referred to in s 28(2) of the Public Roads Act 1902 and the one month period specified in s 28(3) of that Act has expired, demonstrate that the Council’s submissions cannot be correct. It follows that the letter is not a valid notice for the purpose of s 262(3) of the Local Government Act 1919 and, accordingly, that the letter is not a road widening order and the prohibitions contained in s 26 of the Roads Act 1993 do not apply to the building. I answer the question of law agreed by the parties in the negative.

23 The question of law formulated as follows is answered “no”:

Was the letter headed “Application to Realign South Steyne” dated 12 June 1951 from the Respondent Council, addressed to (among others) the then owners of the land the subject of these proceedings, a notice served in accordance with section 262(3) of the Local Government Act 1919 relating to the widening of South Steyne by realignment pursuant to section 28 of the Public Roads Act 1902 , effected by notification published in the Gazette on 24 March 1961, and thereby a notice deemed by reason of clause 47(1) of Schedule 2 to the Roads Act 1993 to be a road widening order for the purpose of that Act?