Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd
[2003] QLAC 24
•9 April 2003
LAND APPEAL COURT OF QUEENSLAND
CITATION: Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd [2003] QLAC 24
PARTIES: Maroochy Shire Council
(appellant)
vMaroochydore Central Holdings Pty Ltd
(respondent)
FILE NO: LAC2002/0833
DIVISION: Land Appeal Court of Queensland
PROCEEDING: Appeal from the Land Court against a declaration
ORIGINATING COURT: Land Court of Queensland
DELIVERED ON: 9 April 2003
DELIVERED AT: Brisbane
HEARD AT: Brisbane
JUDGE: Justice Mullins
MEMBERS: Mr JJ Trickett
Mr RP Scott
ORDER: 1. The appeal is allowed.
2.The declaration made on 25 September 2002 is set aside.
3.The application is remitted to the learned Member of the Land Court for further hearing in accordance with these reasons for judgment.
CATCHWORDS: RESUMPTION – PROCEDURE – Acquisition of Land Act 1967 (Q) – where constructing authority found that resumed land was not required for the purpose for which it was taken –where compensation for the taking of the land had not been determined or agreed - whether the process under s 17 or the process under s 41 of Act for the return of land to original property holder applied – as a matter of construction of the Act, the constructing authority should not proceed to apply s 41 of the Act unless it has decided that it is not appropriate to implement or has exhausted the process under s17
STATUTORY INTERPRETATION – Acquisition of Land Act 1967 (Q) – where s 17 of the Act has no application after compensation for the taking of land has been determined or agreed – whether reference to compensation in s 17 of the Act includes an advance of compensation pursuant to s 23 of the Act – an advance in respect of compensation is not equivalent to the payment of compensation in respect of the taking of land under s 17 of the Act
STATUTORY INTERPRETATION – Acquisition of Land Act 1967 (Q) – where s 41 of the Act applies where land has been taken either pursuant to an agreement under s 15 or by compulsory process under the Act - the word “taken” in s 41 the same meaning which is given to the word in the balance of the Act – it is not necessary for compensation to be determined before s 41 can be applied
COUNSEL: Mr A Skoien for the appellant
Mr DR Gore QC for the respondent
SOLICITORS: Maroochy Shire Council Legal Support for the appellant
Lestar Manning Lawyer for the respondent
REASONS FOR JUDGMENT
This is an appeal by Maroochy Shire Council (“the appellant”) from the declaration obtained by Maroochydore Central Holdings Pty Ltd (“the respondent”) on an application for a declaration pursuant to s 33 of the Land Court Act 2000 (“LCA”). That application was determined by the learned Member, Mrs CAC MacDonald, who on 25 September 2002 made a declaration in the following terms:
“It is declared that in the events which have happened and upon the proper construction of the Acquisition of Land Act 1967, the appropriate procedure to follow in respect of Lot 1 on SP 115996, County of Canning, Parish of Mooloolah is that provided for in s.17 of the Act.”
The citation of the learned Member’s reasons for judgment is Maroochydore Central Holdings v Maroochy Shire Council [2002] QLC 77.
Background
The respondent was the owner of land situated in the Maroochy Shire described as Lot 7 on RP 895682 County of Canning, Parish of Mooloolah. Part of that land, having an area of 645 m², which became Lot 1 on SP 115996 was resumed by the appellant for road purposes by proclamation published in the Government Gazette on 19 March 1999. On 20 June 2000 the respondent served a claim for compensation upon the appellant in respect of that resumption and also filed an application for compensation with the Land Court. Between September 2000 and March 2001 the appellant paid advances to the respondent against compensation pursuant to s 23 of the Acquisition of Land Act 1967 (“the Act”) in the total sum of $180,000. On 19 March 2001 the respondent served an amended claim for compensation on the appellant.
On 24 July 2001 the appellant wrote to the respondent in the following terms:
“Please be advised Council by resolution of the 4th July 2001 resolved viz:
‘…Council discontinue the taking of the land from Maroochydore Central Holdings and in accordance with the Acquisition of Land Act – Section 17(1A) seek the dispossessed owners agreement in having the resumed area of 645m2 transferred back to the dispossessed owner’
Council subsequently seeks your agreement in writing to the revesting as provided by the aforementioned section of the land and the land is hereby offered to you at the price determined by the Valuer General (Acquisition of Land Act – Disposal of land 41.(1) and 41.(1A)), namely $180,000.00.
This offer shall lapse at the expiration of 28 days from the date of this letter.”
There was no evidence before the learned Member specifically to the effect that the appellant had found that the land was not required for the purpose for which it was taken. It is implicit in the above resolution of the Council by referring to discontinuance that the condition which must exist to enable the process under s 17(1) of the Act to be invoked, that the land that has been taken is not required for the purpose for which it was taken, could be satisfied in this matter. In paragraph 5 of the grounds of appeal of the notice of appeal filed by the appellant against the decision of the learned Member there is an express statement that:
“The Appellant has determined that it no longer requires the subject land for the purposes for which it was taken.”
The offer in the terms in which it was framed by the appellant in its letter of 24 July 2001 was not accepted by the respondent. Another offer was made by the appellant in its letter of 31 August 2001 to the respondent as follows:
“Pleased be advised Council by resolution of 29 August 2001 resolved viz.
1.That Council has taken the relevant property by compulsory process under the Acquisition of Land Act, no longer requires the land.
2.That Council discontinue the taking of the land from Maroochydore Central Holdings and in accordance with the Acquisition of Land Act – Section 41(1) offer the land back to the dispossessed owner for $180,000.00, being the amount valued by the Valuer-General.
Council subsequently seeks your agreement in writing to the revesting of the land for the amount of $180,000.00, as determined by the Valuer-General of the Department of Natural Resources.
This offer shall lapse at the expiration of 28 days from the date of this letter.”
The respondent’s application for compensation which had been listed for hearing before the Land Court on 27 August 2001 was adjourned. After further correspondence between the parties, the respondent filed the application seeking a declaration that, in the events that had happened, the appropriate provision under which the appellant should proceed was s 17 of the Act and not s 41 of the Act.
The application for compensation in respect of the resumption of Lot 1 on SP 115996 has not yet been determined by the Land Court and compensation has otherwise not been agreed between the parties.
Reasons of the learned Member
The learned Member found that as the principal proceedings between the parties concerned the respondent’s claim for compensation, the declaration that was sought by the respondent as to whether what should be done in the events that had occurred was governed by ss 17 or 41 of the Act fell within s 33(1)(a) of the LCA and that as the declaration also involved the construction of the Act which would affect the way in which compensation was assessed under the Act, it also fell within s 33(1)(b) of the LCA.
The learned Member found that the payment of an advance against compensation did not preclude the application of s 17 of the Act, as that provision applied in circumstances after the publication of the gazette resumption notice and before either the amount of compensation for that taking was determined by the Land Court or full payment of the compensation (if otherwise agreed) had been made.
The learned Member found that that interpretation of s 17 was consistent with the general arrangement of the Act, stating at para [15]:
“Section 17 is to be found in Part 3 of the Act, which Part is headed ‘Discontinuance of Taking of Land’. Part 4 of the Act deals with compensation, and Part 5, which includes s.41, is entitled “General”. There is a general structure discernible in the Act, moving from the taking of land, discontinuance of the taking before compensation is finalized, assessment of compensation, and general matters, including, in s.41, what is to occur after the taking is complete, should the resuming authority decide it no longer requires the land.”
At para [16] of the reasons for judgment, the learned Member set out other reasons for concluding that s 17 was appropriate to this case, concluding that where the taking of the land has not been completed by the payment of full compensation, the process under s 17 of the Act appears to be more suitable than that under s 41:
“If s.41 were applied, it would follow that in a case such as this, the applicant would need to continue its existing claim for full compensation and then be faced with a ‘take it or leave it’ situation in responding to an offer to repurchase the land under s.41 at a price be determined by the Chief Executive, Department of Natural Resources and Mines. This appears to be a clumsy and potentially lengthy process with possible adverse consequences for an applicant, in that the price at which the land is to be repurchased may exceed the compensation which the applicant receives as a result of a court determination. It is noted that the date at which compensation is assessed under s.20 is the date of resumption whereas the date at which the repurchase price is to be determined under s.41 is not stated, although it would presumably be the date as at which the resale is to occur. Section 17 has the advantage that the land can be revested immediately, and the amount of compensation is assessed in relation to the period of time for which the applicant was out of its land, plus costs and expenses incurred before the revesting (see s.17(4) and (5)).”
It had been argued on behalf of the appellant before the learned Member that s 17 of the Act was not applicable where an advance of compensation had been made, because there was no procedure set out in s 17 to enable the appellant to enforce repayment of the advance. The learned Member observed that there was no reason why a resuming authority could not include a term in the agreement that is contemplated by s 17(1A) of the Act to the effect that the landowner agreed to return the advance, but that in any case the amount of the advance would be recoverable by the resuming authority against the landowner in another court. The learned Member therefore concluded that the fact that an advance of compensation had been made did not prevent the application of s 17.
It was noted by the learned Member that even though s 17 of the Act contained the appropriate procedure to be followed in this case, it could be used only where the owner entitled to compensation had agreed in writing to the revesting of the land, as required by s 17(1A) of the Act and that if the owner failed to so agree, it would follow that a resuming authority which no longer required the land would have to pay the appropriate compensation for the land and then, possibly, offer the property back to the owner pursuant to s 41, before selling it to a third party, should the original owner not wish to repurchase it.
It is implicit in the reasons of the learned Member that, even though the conclusion was reached that s 17 was the appropriate procedure to be followed in this case, the learned Member did not conclude that the procedure provided in s 41 was not applicable, as a matter of construction of the Act.
Relevant legislation
Part 2 of the Act deals with the taking of land. The means by which land is taken by an authority such as the appellant is set out in s 9 of the Act. The taking is effected by declaration made by the Governor in Council by gazette notice. Section 9(8) of the Act provides that the taking is effective on the day of publication of the notice. The effect of the gazette resumption notice is dealt with in s 12 of the Act. Section 12(1) of the Act provides that land taken by a gazette resumption notice shall vest in the Crown or in the constructing authority which requires the land on and from the date of the publication in the gazette of the notice. Section 15 of the Act deals with taking of land by agreement.
Part 3 of the Act which deals with discontinuance of taking of land provides for two circumstances in which discontinuance may occur. Provision is made in s 16 of the Act for discontinuance of resumption before the publication of the gazette resumption notice. As a result of such a discontinuance, the owner has no claim for compensation for any loss or damage as a result of the service of the notice of intention to resume or the discontinuance of the resumption, except a claim for costs and expenses and any compensation for actual damage done to the land by the constructing authority: see s 16(1A) of the Act.
Section 17 of the Act deals with discontinuance after the publication of the gazette resumption notice and provides:
“Revocation before determination of compensation
17.(1) If, at any time after the publication of the gazette resumption notice and before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made, it is found that the land or any part thereof is not required for the purpose for which it was taken, the Governor in Council, by a gazette notice (the “revoking gazette notice”) may revoke the gazette resumption notice and, if the gazette resumption notice has been amended, any amending gazette notice, or both the gazette resumption notice and any such amending gazette notice, either wholly or so far as the Governor in Council or Brisbane City Council thinks necessary.
(1A) However, the revoking gazette notice shall not be made or published in the gazette unless the person entitled as owner to compensation in respect of the taking of the land has previously agreed in writing to the revesting as provided by this section of the land or part to which that notice relates.
(2) Upon the revocation wholly or otherwise by a revoking gazette notice of any gazette resumption notice or amending gazette notice –
(a) the gazette resumption notice or amending gazette notice shall to the extent to which so revoked be deemed to be absolutely void as from the making thereof as if it had not been made; and
(b) without prejudice to the provisions of paragraph (a), the land or part thereof, as the case may be, to which the revoking gazette notice relates shall revest in the person in whom the same vested immediately prior to the day when it was taken by the constructing authority or Brisbane City Council under the gazette resumption notice or amending gazette notice taking the land and, subject as hereinafter in this subparagraph provided, shall so revest for the person’s then estate or interest therein; and
(c) the constructing authority shall cause a gazette copy of the revoking gazette notice to be lodged with the land registry, and the registrar of titles must as soon as may be thereafter, at the cost and expense of the constructing authority, do and execute all such acts, matters, and things as the registrar of titles shall consider necessary to give effect to this subsection.
(2A) Subject to subsection (2)(a), for subsection (2)(b) the land or part shall so revest subject to all trusts, obligations, mortgages, encumbrances, charges, rates, contracts, claims, estates and interests of what kind soever subsisting therein or thereover immediately prior to the taking thereof, but so that no person shall be prejudiced by reason of the person having, in consequence of the gazette resumption notice or amending gazette notice taking the land in question and in the meantime, done or omitted to do any act or thing or failed to exercise any right in respect of any such trust, obligation, mortgage, encumbrance, charge, rate, contract, claim, estate, or interest and, without limiting the generality of the aforegoing, so that the time allowed under any such trust, obligation, mortgage, encumbrance, charge, rate, contract, claim, estate, or interest for the doing of any act or the exercising of any right shall be deemed not to be shortened by the period commencing on and including the date on which the land was taken and ending with and including the day immediately preceding the date on which the land or part was revested.
(3) Without limiting the generality of the provisions of subsection (2)(c), the registrar of titles may make such endorsements upon the deed of grant or certificate of title for any lot or parcel of such revested land or part, or issued such new certificates of title therefor with such endorsements thereon (if any) as the registrar of titles may deem requisite in the circumstances.
(4) Any person entitled to claim compensation under this Act in respect of the taking of any land may, upon the revesting of such land or part thereof pursuant to this section, claim from the constructing authority compensation for the loss or damage and (if any) costs or expenses incurred by the person in consequence of the taking of the land and prior to its revesting.
(5) The constructing authority and the claimant may agree upon the amount of the compensation to be paid under subsection (4), or they may agree that such amount be determined by the Land Court, in which case such amount shall, upon the reference of either of them, be determined by the Land Court as if the land had been taken and not revested and the claim were limited to the compensation payable under that subsection.”
A discontinuance under s 17 of the Act therefore results in the land revesting in the owner immediately prior to the day when it was taken under the gazette resumption notice and also results in the claim for compensation in respect of the taking of the land being limited to compensation for the loss or damage and costs or expenses incurred by the owner in consequence of the taking of the land and prior to its revesting. If the owner had made a claim for compensation in respect of the land taken prior to the revesting, that claim for compensation could not be pursued after the revesting, except to the extent that it covers the matters for which compensation can be pursued under s 17(4) of the Act.
Part 4 of the Act deals with compensation and, in particular, by whom and how it is to be claimed and the assessment, determination and payment of compensation. One of the provisions in Part 4 which deals with advance against compensation is s 23:
“Advance against compensation
23.(1) A claimant for compensation may at any time after the date on which the claimant delivered to the constructing authority his or her claim for compensation in accordance with the requirements of section 19, apply to the constructing authority to make to the claimant an advance not exceeding the amount prescribed by subsection (3) in respect of the compensation claimable by the claimant.
(2) Subject to being satisfied that the applicant is entitled to claim compensation and to subsection (3) of the constructing authority shall make to the applicant the advance applied for by the applicant in respect of the compensation claimed by the applicant.
(3) The amount of an advance under this section shall not exceed –
(a) where the constructing authority has made to the claimant an offer in writing of an amount of compensation in settlement of the claimant’s claim – that amount; or
(b) where the constructing authority has not made the offer mentioned in paragraph (a) – an amount equal to its estimate of the amount of compensation payable to the claimant.
(4) Subject to subsections (5) and (6), any amount payable to a claimant under this section which is not paid within 90 days after the claimant applied for the payment shall be recoverable by the claimant as a debt due and unpaid to the claimant by the constructing authority.
(5) Before paying the advance the constructing authority may require the claimant to satisfy it regarding taxes, rates and other moneys which, if unpaid, would be a charge upon the land, and may reduce the advance by any sum which, in respect of any thereof, is unpaid or, as respects any period of time prior to the date when the land was taken, will become payable.
(6) Where the land concerned is subject to a mortgage at the date when it is taken the constructing authority may reduce the advance by the sum due to the mortgagee.
(7) The constructing authority may pay to the Crown or to the local government concerned or to the mortgagee any sum by which the advance has been reduced under subsection (5) or (6).”
Part 5 of the Act is entitled “General” and deals with sundry matters including powers of entry by persons on behalf of a constructing authority to land for the purposes of the Act, delegation of authorities and functions by the Minister, temporary occupation of land by a constructing authority, the procedure where an owner or occupier refuses to give up land that has been taken, service of documents and offences. One of the provisions in Part 5 of the Act which deals with disposal of land is s 41:
“Disposal of land
41.(1) Notwithstanding any provision of any other Act, where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act and, within 7 years after the date of taking, the constructing authority no longer requires the land, then the constructing authority shall offer the land for sale to the former owner at a price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered.
(1A) Unless sooner accepted by the former owner the offer shall lapse at the expiration of 28 days after it is made.
(2) In this section –
‘the former owner’ in relation to land means –
(a) where only 1 person had an interest in the land at the date of acquisition and that person is still alive or, in the case of a corporation, in existence – that person; or
(b) in any other case – such person or persons (if any) as the Minister, in the Minister’s absolute discretion, having regard to the interest that existed in the land at the date of acquisition, considers to be fairly entitled to the benefit of this section.
(3) A person contracting or otherwise dealing with the constructing authority is not concerned to inquire whether the requirements of this section have been complied with, and the title of such a person to land acquired from the constructing authority is not affected by any failure to comply with those requirements.”
Grounds of appeal
The appellant claims in the grounds of appeal that the learned Member erred in the construction of ss 17 and 41 of the Act. In particular, the appellant claims that the learned Member erred in:
· determining that the words “the payment of compensation” in s 17 of the Act mean that “the full amount of compensation has been … paid”;
· determining that s 17 of the Act has application when an advance of compensation has been paid under s 23 of the Act;
· determining that s 41 of the Act has no application when an advance of compensation has been paid under s 23 of the Act; and
· determining that, in the events which have happened, upon the proper construction of the Act, the appropriate procedure to follow in respect of the subject land is that provided for in s 17 of the Act.
Arguments of the appellant on the appeal
The appellant focussed primarily on the construction of s 17 of the Act. Mr Skoien of counsel who appeared on behalf of the appellant submitted that one of the events which precluded revocation under s 17(1) of the Act was “the payment of compensation in respect of the taking” and that the reference to “compensation”, as a matter of construction, included the payment of an advance against compensation under s 23 of the Act which was made before the compensation had been determined or agreed.
The appellant therefore argues that s 17(1) of the Act cannot be utilised where there has been payment of an advance on account of the compensation which has not been otherwise determined or agreed.
The appellant relies on the failure of the Legislature to make a specific provision within s 17 of the Act for the party receiving back the land to repay any advance of compensation to the constructing authority. The appellant points to the difficulty in seeking to recover an advance of compensation, if the land were revested, if a payment from the advance had been made to a mortgagee under s 23(6) of the Act. The appellant therefore submits that the failure of s 17 to provide for the return of any advance is supportive of an intention of the Legislature that the procedure under s 17 of the Act would not apply in circumstances where an advance against compensation had been paid.
With respect to the construction of s 41 of the Act, it was submitted by the appellant that the reference to “where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act” is a reference to the taking of land in the sense in which that is used in Part 2 of the Act and after the process in s 17 of the Act has been exhausted. As an alternative submission, it was put by Mr Skoien that if the court considered that “compulsory process under this Act” did not extend to discontinuance under s 17, the appellant relied on the maxim generalia specialibus non derogant to submit that if the requirements of the more specific provision regarding discontinuance applied, that would have precedence in application over the more general provision contained in s 41 of the Act. The appellant submitted that if the conditions in s 17 could not be fulfilled, but the constructing authority no longer required the land for the purpose for which it was taken, the constructing authority was bound to comply with s 41 of the Act.
The appellant submitted that it was not necessary for compensation in respect of the taking of the land which was provided for in Part 4 of the Act to have been determined or agreed, before s 41 could be invoked, if the constructing authority no longer required the land and the period of seven years after the date of taking had not expired.
Arguments of the respondent on the appeal
The respondent relies on the general structure of the Act, the language of s 17 of the Act, unsatisfactory features of the s 41 procedure and the legislative history as supporting the conclusion that s 17 rather than s 41 of the Act applies in the circumstances of this matter. The first three indicators relied on by the respondent reflect the reasons for judgment of the learned Member. The aspect of the legislative history of s 17 on which the respondent relies is that its predecessor was s 8A(2) in the Public Works Land Resumption Acts 1906-1955 which relevantly used the same language:
“(2.) If, at any time after the making of the Proclamation taking any land and before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made, it is found that the land or any part thereof is not required for the purpose for which it was taken, the Governor in Council may, by a subsequent Proclamation revoke the former Proclamation…”
The respondent submits that as the Public Works Land Resumption Acts never contained any equivalent provision to either ss 23 or 41 of the Act, had the repealed legislation still been in force s 8A(2) would have been apt to apply. It is submitted that the presence of the new ss 23 and 41 in the Act should not alter this outcome.
Mr Gore of Queen’s Counsel who appeared on behalf of the respondent submitted that, having regard to where s 41 of the Act is placed in Part 5 of the Act, it is not intended to be operative, until compensation has been finally determined and paid. Mr Gore submitted that the structure of the Act allowed for the conclusion that the Legislature intended by implication that the procedure under s 41 of the Act would be exclusive of the procedure under s 17 of the Act. It was submitted that it did not make sense that the Legislature would require the constructing authority to “offer the land for sale to the former owner”, if the former owner had not been paid for the land in the first place. The respondent also relies on the period of 7 years after the taking of the land referred to in s 41 of the Act as reinforcing the assumption that the taking be truly completed, by the finalisation of the compensation process, before s 41 of the Act could be invoked.
In response to the appellant’s concern that there is the possibility of a windfall for the respondent, if the procedure under s 17 were followed, but the advance were not repaid, the respondent submits that there is no doubt that the appellant would be entitled to recover the advance, relying on York Airconditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11, 31, 55, 63-64.
Nature of the Land Court’s jurisdiction to make declarations
The extent of the jurisdiction of the Land Court under s 33 of the LCA to make declarations is not an issue for the parties on this appeal. The respondent’s application for a declaration was brought in the proceeding that was commenced in the Land Court by the respondent to claim compensation for the taking of Lot 1 on SP 115996. It is apparent from the reasons of the learned Member and the arguments advanced on this appeal that, at the very least, there was a question about the application or the construction of the Act which could affect the procedure followed by the appellant under the Act in relation to that resumption.
Section 33 of the LCA provides the Land Court with a useful adjunct to its jurisdiction under the Act, enabling a decision about the construction or the application of the Act to be made in advance of the determination of the entire dispute between the parties. In some cases using this additional jurisdiction may facilitate the resolution of the larger dispute between the parties.
There is nothing in the language of s 33 of the LCA to suggest that it is concerned with other than the application or construction of legislation in respect of which the Land Court has jurisdiction. It is not intended to confer on the Land Court a jurisdiction similar to that which involves the review of administrative decision making, as conferred by the Judicial Review Act 1991.
Construction of s 17(1) of the Act
The construction of s 17(1) advanced by the appellant is artificial and ignores the precise language of the provision. The period in which discontinuance of the resumption can be effected under s 17(1) of the Act is identified as commencing with the publication of the gazette resumption notice and ending “before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made”. The end of the period is therefore identified by reference to the earlier of two events. The first is the determination of the amount of compensation by the Land Court. The second is the payment of compensation in respect of the taking. Compensation can be paid before any determination by the Land Court, if it is agreed between the parties. That brings an end to the compensation process. Both events which can mark the end of the period for discontinuance under s 17(1) are tied to the completion of the determination of the amount of the compensation. The term “compensation” has the same meaning for each of the two events. It is logical that the constructing authority is precluded from discontinuing the resumption, after the compensation for the taking of that land has been determined or, if it has been agreed, paid.
An advance in respect of compensation is not equivalent to the payment of compensation in respect of the taking. Although the amount of the advance is calculated by reference to any offer made by the constructing authority in respect of the claim of compensation or, if no offer has been made, the constructing authority’s estimate of the amount of compensation payable to the claimant, that is merely a means for calculating what amount can be advanced on account of the compensation and is not necessarily equivalent to the compensation as determined or agreed. It may be that in some cases the amount of the advance coincides with the amount of the compensation ultimately determined or agreed. The possibility of that coincidence does not change the character of an advance, as described in s 23 of the Act, as an advance payment on account of the compensation claimable by the claimant, but not yet determined or agreed, at the time the advance payment is made.
The appellant supports its construction of s 17(1) of the Act on the basis that, if a revesting were to occur, as there is no express provision for repayment of an advance of compensation, the owner may not disgorge the advance and would gain a windfall on the revesting. The appellant argues that the Legislature could not have intended to cause a constructing authority such a problem and that s 17(1) of the Act must be construed to avoid the problem. This argument is based on a misunderstanding of the process under s 17(1) of the Act. It provides for a procedure which can be invoked by the constructing authority after the land has been taken, but before the compensation has been finalised, if it is found by the constructing authority that the land or any part of the land is not required for the purpose for which it is taken. The process results in the Governor in Council making a revoking proclamation which revests the land that was taken in the owner. The effect of the process of revesting is retrospective in that, upon revesting, the resumption is deemed not to have occurred and the landowner becomes liable for rates and charges for the period during which the land had been notionally taken: see ss 17(2) and (2A) of the Act.
Importantly, the procedure of revesting is available only if the person entitled as owner to compensation in respect of the taking of the land has previously agreed in writing to the revesting.
As the learned Member observed at para [17] of the reasons for judgment, there is no reason why a constructing authority could not include a term in the agreement that is contemplated by s 17(1A) to the effect that the owner agrees to the return of the advance. If there were an expectation that the advance would not be recoverable from the owner (or any mortgagee which had received payment from the advance under s 23(6) of the Act), that could be a relevant matter for the constructing authority to take into account in determining whether to embark on the procedure under s 17(1) of the Act. Other events in respect of the resumed land between the publication of the gazette resumption notice and the determination of the constructing authority that it no longer requires the land for the purpose for which it was taken, such as a fire, could have a bearing on whether it is appropriate for the constructing authority to invoke the process under s 17(1) of the Act.
In any case, the learned Member correctly observed that if the procedure under s 17(1) were invoked by the constructing authority with the consent of the owner pursuant to s 17(1A), then the money paid by way of an advance would be recoverable in another court. This would be on the basis that the advance was a provisional payment: York Airconditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) CLR 11, 63-64. An example of a recovery proceeding which was taken in respect of the amount by which an advance under the Act exceeded the amount of the compensation that was determined is the decision in Queensland Electricity Commission v Windsor (unreported, Sup Ct (Q), Weld M, 26 June 1987) which was affirmed on appeal in Queensland Electricity Commission v Windsor (unreported, Sup Ct (Q), Moynihan J, 7 August 1987).
There was no error in the learned Member’s construction of s 17(1) of the Act and the conclusion that s 17 of the Act could have application, when an advance against compensation had been made under s 23 of the Act, but the full amount of compensation had not been determined or, if agreed, paid.
Construction of s 41 of the Act
The submissions on this appeal on behalf of both the appellant and the respondent favoured an outcome in the construction of the Act that made ss 17 and 41 mutually exclusive in operation. As a matter of construction of the Act, it is not necessarily apparent that the construction of each of ss 17 and 41 must result in mutually exclusive operation of the provisions.
There is no doubt that as a timing issue, the Legislature contemplated that the process under s 17(1) would usually be invoked at a relatively early stage in the resumption process and that the process under s 41 would not necessarily occur at an early stage. This follows from the outer limit of the time period for invoking s 17(1) being related to the determination of the amount of the compensation or, if there is an earlier agreement between the parties as to the amount of the compensation, the payment of the full amount of the compensation. The fact that the process under s 41 can be invoked up to 7 years after the date of the taking of the land means that there can be considerable delay after the resumption, before the process under s 41 is invoked.
The condition which must be satisfied in order to invoke the operation of each of ss 17 and 41 is not identical for each provision. Under s 17(1), the constructing authority must have found that the land or any part of the land that was taken was not required for the purpose for which it was taken. Under s 41 of the Act, land which has been taken (which could include part of the land originally taken) must be offered for sale to the former owner when the constructing authority “no longer requires the land”. Section 41 therefore could apply where the land had been used for the purpose for which it was resumed, but it was no longer required for that purpose or for any other purpose, as well as applying where it was not actually used or required for any purpose after resumption.
As set out above, the constructing authority is not bound to implement the process of revoking a resumption under s 17(1), if the condition on which s 17(1) depends does exist and the period in which s 17(1) can be invoked has not passed. The constructing authority could not invoke the process which results in the revocation of the gazette resumption notice by the Governor in Council without deciding to implement that process. As s 17(1A) precludes the revoking gazette notice from being made unless the owner has agreed in writing to the revesting, the Council would need to have obtained that written consent from the owner, before embarking on the process that results in the revocation by the Governor in Council.
Section 41 places a mandatory requirement on the constructing authority to offer the land for sale to the former owner, if within the relevant period of 7 years after the taking of the land, the constructing authority no longer requires the land.
Not only are the respective means by which a discontinuance under s 17 and a disposal of the land taken under s 41 effected different, the consequences of each are very different. The discontinuance of the resumption under s 17 means that the taking of the land is, in effect, reversed and the ownership of the land revests in the owner, as if the taking had not occurred. Under s 17 the compensation which the owner can pursue for the taking of the land is limited to that which has accrued prior to the revesting. If the owner accepts an offer from the constructing authority to the transfer of the land under s 41, the former owner has to purchase the land for the price at which s 41 requires the constructing authority to offer the land for sale which is the price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered which must be the price which applies at the date of the offer. Whereas the process under s 17 has the effect of continuity of ownership despite the taking of the land, the process under s 41 recognises that there has been a taking of the land which can be followed by a subsequent re-transfer of the land.
The question of construction of s 41 of the Act which was squarely raised by this appeal is what is meant by the words “where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act”. As set out above, taking of land is governed by Part 2 of the Act and where the constructing authority is neither the Brisbane City Council nor an approved local government the land is taken by the Governor in Council by gazette notice declaring that the land is taken for the purpose mentioned in the notice: see ss 9 and 12 of the Act. Land can also be taken following an agreement, as contemplated by s 15 of the Act. The words “taken” and “taking” are used consistently throughout the Act to denote the processes of compulsory taking by gazette resumption notice. The existence of the process for discontinuing the resumption under s 17(1) of the Act is not a sufficient reason to deny the words “taken” and “taking” in s 41(1) of the Act the same meaning which is given to those words in the balance of the Act. The effect of giving that consistent meaning to the words “taken” and “taking” in s 41 of the Act is that the process under s 41 can be invoked after resumption of the relevant land, even if the compensation has not been determined or agreed. If the process under s 41 is invoked when compensation for the taking of the land has not been determined or agreed, that claim for compensation remains to be finalised, even after the re-transfer of the land.
It is theoretically open that in a particular case where the constructing authority finds that the resumed land is not required for the purpose for which it was taken the processes under ss 17 and 41 could both apply. In view of the structure of the Act which supports the process under s 17 occurring at a relatively early stage after the resumption and the effect of revesting being to reverse the resumption, the constructing authority would have to consider whether it would proceed under s 17, before acting under s 41 of the Act. If the process under s 17 was successfully invoked, there is no longer a taking of land and therefore no room for s 41 to operate.
If the constructing authority decided to proceed under s 17(1), but were unable to obtain the former owner’s consent to the revesting, the discontinuance of the resumption could not proceed. If the constructing authority no longer required the land, it would be bound to comply with s 41 in seeking to dispose of the land to the former owner at the price provided for in that provision.
The learned Member referred in para [16] of the reasons for judgment to the clumsy and potentially lengthy process that could follow, if s 41 were applied, when the compensation for the taking of the land had not been determined. That could be the outcome, if s 17 could otherwise have been invoked, but the former owner did not consent to the revesting. It could also be the outcome, if s 17 could otherwise have been invoked, but the constructing authority has decided that it is not appropriate to invoke the process of revesting.
It was submitted by Mr Gore that a sale under s 41 is not an ordinary “arms-length” transaction and in this particular case the respondent disputes that the nominated price of $180,000 represents the correct market value and, were it to accept the offer, the respondent is concerned about prejudice in respect of potential resumptions affecting other land owned by it in the near vicinity.
If the land that is no longer required for the purpose for which it is taken remains in the same state that it was at the date of the taking, and the compensation has not been determined for that taking, the price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered would merely be one aspect of the evidence of the value of the subject land, if the value of the land at the date at which it is offered for sale to the former owner under s 41 has some correlation with the value of the land for the purpose of assessing the compensation for the taking of the land. The special circumstances of a sale under s 41 must affect the use made by it as a comparable sale in respect of other land in the vicinity.
Before compensation has been determined or agreed, a constructing authority that finds it no longer requires the resumed land for the purpose for which it was taken, must consider whether it is an appropriate case to invoke s 17 of the Act. In these circumstances, as a matter of construction of the Act, until the constructing authority has decided that it is not appropriate to implement the process under s 17 or otherwise exhausted the possibility of discontinuance under s 17, the constructing authority should not proceed to apply s 41 of the Act to a proposed parting by the constructing authority with the resumed land.
Whether a declaration should have been made
On the one hand, the appellant may have good grounds for not proceeding under s 17 which would make s 41 of the Act applicable to any disposal of the land by the appellant. On the other hand, there may not be a good reason for the appellant not to embark on a discontinuance under s 17 of the Act.
It is not apparent on the material that was before the learned Member that the appellant has undergone the process of considering whether it is appropriate or feasible to seek the respondent’s consent to the revesting of the land on the terms provided by s 17.
What is apparent from the resolution that was passed by the appellant on 4 July 2001 was that the appellant did not appreciate the distinction between a discontinuance of the subject land under s 17 of the Act and a disposal of the land under s 41 of the Act. This confusion also seems to be evident in the appellant’s resolution of 29 August 2001. The processes are distinct, but the appellant seems to have blurred the processes.
It is not for the Land Court or this Court to substitute its views as to how the appellant should exercise its decision making powers, in considering whether a declaration and, if so, what declaration should be made under s 33 of the LCA.
In view of the state of the material before the learned Member, it was not open to the learned Member to make a declaration in the terms of that made on 25 September 2002. In the light of these reasons, it may be that there is a form of declaration which could be made, if the parties have an opportunity to place further material before the learned Member.
The appeal is therefore allowed, the declaration made on 25 September 2002 is set aside and the application is remitted to the learned Member for further hearing. Although the appellant has been successful in having the declaration set aside, it has not been successful in pursuing the construction of s 17 of the Act which it advanced on the appeal and, as a result of its misconception about the effect of ss 17 and 41 of the Act, the matter between the parties remains unresolved, until at least the further hearing. We would therefore not be disposed to make any order for costs in respect of the appeal, but this must be subject to hearing submissions from the parties on that issue.
Orders
The formal orders made at this stage are:
1.The appeal is allowed.
2.The declaration made on 25 September 2002 is set aside.
3.The application is remitted to the learned Member of the Land Court for further hearing in accordance with these reasons for judgment.
MULLINS J
JUSTICE OF THE SUPREME COURT
JJ TRICKETT
PRESIDENT OF THE LAND COURT
RP SCOTT
MEMBER OF THE LAND COURT
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