Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council
[2002] QLC 76
•25 September 2002
LAND COURT OF QUEENSLAND
CITATION: Maroochydore Central Holdings v Maroochy Shire Council [2002] QLC 76
PARTIES: Maroochydore Central Holdings Pty Ltd
(applicant)
v
Maroochy Shire Council(respondent)
FILE NO: A2001/0104
DIVISION: Land Court of Queensland
PROCEEDING: Application for a declaration pursuant to s.33 of the Land Court Act 2000
DELIVERED ON: 25 September, 2002
DELIVERED AT: Brisbane
HEARD AT: Brisbane
MEMBER: Mrs CAC MacDonald
ORDER: 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.
CATCHWORDS: Resumption – procedure – Acquisition of Land Act 1967 – discontinuance after proclamation – when s.17 or s.41 applicable – s.17 applies if full compensation not determined or agreed.
Statutory Interpretation – Acquisition of Land Act – discernible scheme in Act – taking of land, discontinuance, assessment, general matters including events after taking complete – aid in construction of ss.17 and 41.
Land Court jurisdiction – Land Court Act 2000 – power to make declaration (s.33) – limits – issue must be within statutory jurisdiction of Land Court.
Practice and Procedure – declarations – power of Land Court under Land Court Act 2000 (s.33) – limits on power – form of declaration.
COUNSEL: Mr DR Gore QC for the applicant
Mr AWS Skoein for the respondent
SOLICITORS: Lestar Manning Lawyer, for the applicant
Maroochy Shire Solicitor for the respondent
Introduction
The applicant has applied to the Court pursuant to section 33 of the Land Court Act 2000 for a declaration as to the appropriate procedures to be followed under certain provisions of the Acquisition of Land Act 1967 (the Act).
The applicant 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 the land (645 m²) was resumed by the Maroochy Shire Council for road purposes by proclamation published in the Government Gazette dated 19 March 1999. That part of the land which was resumed became Lot 1 on SP 115996, County of Canning, Parish of Mooloolah. On 20 June 2000 the applicant lodged a claim for compensation in this Court in respect of the land taken. Between September 2000 and March 2001 the respondent paid amounts to the applicant totalling $180,000. It appears, as discussed further below, that those sums were paid as an advance in respect of the compensation payable for the resumed land, pursuant to s.23 of the Act.
The Maroochy Shire Council resolved, on 4 July 2001, that
“… 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 645 m² transferred back to the dispossessed owner.”.
By letter dated 24 July 2001 the respondent advised the applicant of that resolution and continued –
“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.”
The application, as amended, sought a declaration 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”. Counsel for the applicant contended that the “return” of the land to the applicant and the assessment of any compensation or other monies payable by the respondent to the applicant should take place pursuant to s.17 of the Act. Counsel for the respondent submitted that compensation should continue to be assessed pursuant to s.20 of the Act, and that the land should to be offered for sale back to the applicant pursuant to s.41 of the Act..
Jurisdiction of the Court
Section 33 of the Land Court Act 2000 provides, so far as is relevant, that:
“33.(1) Any person may bring proceedings in the Land Court for a declaration about –
(a)a matter done, to be done, or that should have been done under this Act or another Act giving jurisdiction to the court; and
(b)the construction of any legislation for the purpose of proceedings in which the court has exclusive jurisdiction.
…
(5) The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1).”
It was only with the enactment of s.33 of the Land Court Act 2000 that this Court has been empowered to make a declaration. This is the first decision to be made under s.33. The Land Court, unlike the Supreme Court of Queensland, is not a court of general jurisdiction (cf Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1993] 2 QdR 192 at 196). The Court does not have an unlimited power to make a declaration but may only make a declaration about those matters set out in s.33. The amended declaration sought by the applicant is confined, in its terms, to a claim for relief as to a matter to be done under the Act and the construction of s.17 of the Act. Since the respondent has submitted that the appropriate process to be adopted is to be found in s.41 of the Act, the application necessarily involves construction of that section also.
The Acquisition of Land Act establishes processes whereby land may be compulsorily resumed by particular bodies for specified purposes, and for the assessment and payment of compensation to the person whose land is resumed. The Land Court is given jurisdiction by the Act, to hear and determine all matters relating to compensation under the Act (s.26). Section 17(5) of the Act also provides that, in the event of the revocation of a resumption, the resuming authority and the claimant may agree that the amount of compensation payable under s.17(4) of the Act may be determined by the Land Court.
I consider that the Court has jurisdiction to make the declaration sought. This Court has exclusive jurisdiction under the Acquisition of Land Act in all matters relating to compensation (s.26). The principal proceedings between the parties concern the applicant’s claim for compensation. The applicant is seeking a declaration as to whether what should be done in the events that have occurred, is governed by s.17 or s.41 of the Act. This falls within s.33(1)(a) of the Land Court Act. The declaration sought also involves construction of the Acquisition of Land Act, and will affect the way in which compensation is assessed under that Act, and therefore, it also falls within s.33(1)(b) of the Land Court Act.
Relevant Legislative Provisions
The Act sets out the processes by which a resumption is to be effected. The purposes for which land may be taken and the authorities which may resume the land are identified in s.5. Section 7 requires that a notice of intention to resume be served on the persons specified in the section. The resumption is effected by publication of a gazette notice, the date of resumption being the date on which the gazette notice is published (s.10). The resumed land vests in the authority on that date (s.12(1)(a)(i))and the estate or interest of the owner is thereby converted into a right to claim compensation under the Act (s.12(5)).
Part 3 of the Act deals with discontinuance of the taking of land. Section 16 provides for discontinuance before the publication of the gazette resumption notice and is not relevant here. The applicant has submitted that s.17 is the section which should be followed in this case. The section provides so far as is relevant: “Revocation before determination of compensation”
(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 -
…
(b) … 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.
…
(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.”
The respondent submitted that s.17 is not applicable in this case because compensation in the sum of $180,000 had been paid to the applicant prior to the respondent’s decision to discontinue the resumption. This was not, therefore, a case where compensation had not been paid. The appropriate procedure to follow, Counsel submitted, was that set out in s.41 of the Act, which so far as is relevant provides:
“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 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.
…”
It is noted that the respondent’s first decision to discontinue the taking of the land (set out at [3] above) is somewhat contradictory in its terms in that the resolution relied initially on s.17 of the Act and sought the respondent’s agreement to a revesting of the land pursuant to s.17(1A), but then went on to offer the land to the respondent pursuant to s.41 of the Act. Subsequent to that decision, the respondent passed a second resolution, on 29 August 2001, which purported to be an offer to resell the land to the applicant pursuant to s.41. It is considered that neither of these resolutions are determinative of the matters in issue in this application.
Construction of the Legislation
In this case, an amount of $180,000 was paid to the applicant before the decision was made by the respondent to discontinue the taking of the land. Although it was said by Counsel for the respondent that the respondent regarded the payment as total compensation for the land taken, it appears that the monies were paid as an advance, pursuant to s.23 of the Act. There was no direct evidence before the Court indicating the basis on which the sum of $180,000 was paid to the applicant, however Counsel for the applicant said that the money had been paid as an advance and Counsel for the respondent also referred to it as an advance, from time to time. The money was also referred to as an advance in a letter (dated 23 August 2001) from the respondent’s legal office to the applicant (Exhibit TE 16 to the affidavit of John Terence Ell sworn on 22 March 2002). It is the case that the sum paid is equal to the price determined by the Chief Executive of the Department of Natural Resources and Mines pursuant to s.41 of the Act, but advice of that valuation was not, apparently, in the hands of the respondent until 23/24 July 2001, some four months after the final payment was made and it did not, therefore, influence the decision of the respondent as to the amount of the advance to be paid. If the amount of the advance was calculated in accordance with s.23(3) of the Act, the amount paid would equal the respondent’s estimate of the amount of compensation payable to the applicant but, as indicated above, the evidence is that the money was neither paid nor received by the applicant in full satisfaction of the claim.
The question to be determined therefore is whether s.17 is applicable where monies have been paid by way of advance before the notice of resumption is revoked. I have come to the conclusion that s.17 does apply in such circumstances. Section 17(1) says that “If at any time … 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 Governor in Council may revoke the gazette resumption notice. On one view, the words “or the payment of compensation in respect of the taking is sooner made”, indicate that s.17 means that the section is to be applied only where no compensation has been paid. However such an interpretation does not sit easily with the preceding phrase, which refers to the time “before the amount of compensation … is determined by the Land Court”. In cases where the amount of compensation is determined by the Land Court, it is clear that the Governor in Council may revoke the resumption notice at any time before the Court’s final determination is made, provided the other requirements in s.17 are met. The Court’s determination is a determination of full compensation. It is a reasonable deduction, therefore, that in cases where the amount of compensation is settled by agreement between the parties, (or, perhaps, by some other means) the compensation must be paid in full before the Governor in Council is precluded from acting under the section. It is considered that the context of the words “or the payment of compensation … is sooner made” is such that the section is referring to cases where the Governor in Council revokes the resumption notice before the full amount of compensation has been determined or paid.
This interpretation is consistent with the general arrangement of the Act. 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.
It is also considered that the conclusion that s.17 is applicable in this case is appropriate for other reasons. 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)). In a case where the taking of the land has not been completed by the payment of full compensation, this appears to be a more suitable process.
Counsel for the respondent submitted that s.17 was not applicable in cases such as this because there was no mechanism in the section to enforce the repayment of the advance. While the applicant here had acknowledged its liability to return the $180,000 if the land were revested under s.17, Counsel submitted that there was no guarantee that, in another case, a landowner would return any monies paid by way of advance. This does not seem to be an insuperable obstacle. Although there is no provision in s.17 dealing expressly with the return of any advance, it seems that there is no reason why a resuming authority could not include a term in the agreement that is contemplated by s.17(1A), to the effect that the landowner agrees also to the return of the advance. Alternatively, it is considered that the money would be recoverable in another court. My conclusion is, therefore, that this issue does not of itself prevent the application of s.17 in cases where an advance against compensation has been paid.
Although I have decided that s.17 of the Act contains the appropriate procedure to be followed in this case, it should be noted that the section can only be used where the owner entitled to compensation, has agreed in writing to the revesting of the land (see subs (1A)). If the owner fails to so agree, it would appear to follow that a resuming authority which no longer requires the land would have to pay the appropriate compensation for the land, as provided for in s.20, 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.
Order
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.
CAC MACDONALD
MEMBER OF THE LAND COURT
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