Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council (No. 2)
[2006] QLC 18
•21 April 2006
LAND COURT OF QUEENSLAND
CITATION: Maroochydore Central Holdings Pty Ltd v Maroochy Shire Council (No. 2) [2006] QLC 18 PARTIES: Maroochy Central Holdings Pty Ltd
(applicant)v. Maroochy Shire Council
(respondent)FILE NO.: A2001/0104 DIVISION: Land Court of Queensland PROCEEDING: Application for a declaration that the Land Court has no jurisdiction to hear and determine the applicant's claim for compensation under the Acquisition of Land Act 1967. DELIVERED ON: 21 April 2006 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mrs CAC MacDonald ORDER: The application is refused. CATCHWORDS: Practice – Declaration – jurisdiction of Land Court to determine compensation claim – pre-conditions to exercise of jurisdiction – valid resumption purpose – scheme of Acquisition of Land Act – ss.12, 18, 26 provide right to claim – s.20 sets principles of compensation.
Resumption – Compensation – right to claim – resumed land no longer required by constructing authority for purpose taken – offer to sell land back to former owner – offer rejected – whether compensation claim still open to owner.
Practice – precedent – binding nature of Land Appeal Court decision – if sub silentio or proposition of law assumed correct without argument – not necessary to determine in present case.
Statutory Interpretation – possible disadvantage to resumee in resale process under s.41 compared to revesting under s.17 – role of Court to construe statutory provisions – not to be concerned with possible disadvantage to owner.
Practice – Estoppel – Anshun principle – matter (or defence) not raised in earlier litigation – raised in current application – possible conflicting decision of Court – estoppel applies.APPEARANCES: Mr G Allan for the applicant
Mr A Skoein for the respondentSOLICITORS p&e law for the applicant
Maroochy Shire Council Legal Support for the respondent
The applicant in these proceedings is seeking -
1. A declaration that pursuant to s.5 of the Land Court Act 2000 and s.26 of the Acquisition of Land Act 1967, the Court does not have jurisdiction to hear and determine the applicant's claim for compensation; and
2. Such further or other declarations or orders as the Court considers appropriate.
Background
The proceedings arise out of the compulsory acquisition by the Maroochy Shire Council (the respondent) of land owned by Maroochy Central Holdings Pty Ltd (the applicant). The land was resumed for road purposes by the respondent by proclamation published in the Government Gazette on 19 March 1999. The land taken was part (645 square metres) of Lot 7 on RP 895682 in the County of Canning, Parish of Mooloolah and became Lot 1 on SP 115996.
On 27 March 2001 the applicant filed an application for a determination of compensation in this Court. Between September 2000 and March 2001 the respondent paid the applicant advances against compensation totalling $180,000. The claim for compensation has not yet been heard and, therefore, there has been no determination of compensation.
The evidence before me indicates that the land was resumed for the purpose of constructing a dual lane bitumen sealed roadway as part of a Southern Access Link. The proposed alignment of the Southern Access Link was later changed. Although there is no direct evidence to this effect, it appears that the respondent determined at some time before 24 July 2001 that it no longer required the subject land for the purposes for which it was taken. A dispute then arose between the parties as to the appropriate procedure that should be followed by the respondent in connection with the subsequent disposal of the land. On 22 March, 2002, the applicant filed an application in this Court which, as amended, sought a declaration that, in the events that had happened and upon the proper construction of the Acquisition of Land Act 1967 (the Act), 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.
On 25 September 2002, I made a declaration that the appropriate procedure to follow was that provided for in s.17 of the Act. Following an appeal to the Land Appeal Court, that declaration was set aside and the matter was remitted to me for further hearing in accordance with the Land Appeal Court's reasons for judgment. The citation of the Land Appeal Court's decision is Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd [2003] QLAC 0024.
Briefly, the Land Appeal Court said (at LAC [41]) that it was not apparent that the construction of each of ss.17 and 41 must result in mutually exclusive operation of those provisions and, (at LAC [48]), that it is theoretically open in a particular case where the constructing authority finds that the resumed land is not required for the purpose for which it was taken, that the processes under ss.17 and 41 could both apply. The Court also said (at LAC [57]) that it was not for this Court to substitute its views as to how the appellant should exercise its decision making powers.
The Land Appeal Court decision was handed down on 9 April 2003. On 24 November 2004, the respondent resolved not to revest the land pursuant to s.17 and to proceed under s.41 of the Act. Accordingly, by letter dated 11 January 2005, the respondent wrote to the solicitors for the applicant, saying, inter alia -
"Council now offers the land back to your client at the price determined by the Valuer General (Acquisition of Land Act – Disposal of Land 41(1) and 41(1A)), namely $400,000.
We note that Council's drainage easement which was relinquished at the time of acquisition would require reinstatement.
This offer shall lapse at the expiration of 28 days from the date of this letter."
The applicant did not accept the offer and subsequently filed this application in this Court.
The Issues
Counsel for the applicant submitted, in support of the application, that –
1.Because the respondent no longer required the land for the purpose for which it was taken, the Land Court does not have jurisdiction to hear and determine the applicant's claim for compensation pursuant to s.20 of the Act.
2.Notwithstanding the decision of the Land Appeal Court on 9 April 2003, the offer made by the respondent on 11 January 2005 was ultra vires, invalid and of no effect in point of law.
3.The ratio of the Land Appeal Court's decision (at [47]) rested on an unstated assumption that, if the respondent elected to proceed under s.41 of the Act, the Land Court did have jurisdiction to hear and determine a claim for compensation under s.20 of the Act.
4.Since the Land Appeal Court did not consider the consequences of the Land Court's lack of jurisdiction, which was not the subject of argument before it, the Land Appeal Court decision was made sub silentio and is, therefore, not binding on a single member of the Land Court.
5.Alternatively, the Land Appeal Court purported to have assumed the correctness of a proposition of law without argument – namely, that the Land Court has jurisdiction to determine compensation pursuant to s.20 of the Act if an offer is made pursuant to s.41. In such circumstances, the decision on the point in issue is not binding on the Land Court.
Counsel also identified a number of disadvantages that the applicant would suffer as a result of the adoption by the respondent of the s.41 process and the consequent assumption by the Court of jurisdiction to determine the claim. The submissions are set out in detail below under the heading 'Potential Disadvantages to applicant resulting from s.41 process'.
In addition, Counsel submitted that the Land Appeal Court had failed to consider relevant decisions of the High Court which, if applied, would have resulted in a conclusion that there was a mandatory obligation on the respondent in the present case to seek the consent of the former owner to the revesting of the land under s.17(1A) and, if that consent were obtained, to tender, through the Minister to the Governor in Council the necessary documents which demonstrated that the preconditions to the issue of the revoking gazette notice by the Governor in Council, had been satisfied. The Land Appeal Court had also failed to consider whether upon a proper construction of the Act as a whole, the Governor in Council had a duty to issue the revoking gazette notice if the statutory preconditions in ss.17(1) and (1A) were satisfied.
Statutory Provisions
As at the date of resumption, s.17 of the Act provided:
"Revocation before determination of compensation
17.(1) If, at any time after the publication in the gazette of the proclamation taking any land (the "first proclamation") or, in the case of Brisbane City Council, the publication in the gazette of the notification of resumption taking any land (the "first notification") 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 subsequent proclamation published in the gazette, or Brisbane City Council by a subsequent notification published in the gazette, may revoke the first proclamation or, as the case may be, the first notification and, if the first proclamation or first notification has been amended, any amending proclamation or notification, or both the first proclamation or first notification and any such amending proclamation or notification, either wholly or so far as the Governor in Council or Brisbane City Council thinks necessary.
(1A) However, a proclamation or notification under subsection (1) 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 proclamation or notification relates.
(2) Upon the revocation wholly or otherwise by a subsequent proclamation or notification under subsection (1) of any former proclamation or notification -
(a) the former proclamation or notification 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 subsequent proclamation or notification relates shall revest in the person in whom the same vested immediately prior to the day when it was taken by the constructing authority under and pursuant to the proclamation or, in the case of Brisbane City Council, the notification of resumption 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 subsequent proclamation or notification 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 proclamation or notification of resumption 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."
Section 41 provided:
"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."
The Land Court's jurisdiction to determine the compensation claim
Counsel's submissions
Counsel for the applicant submitted that it is a precondition to the exercise of the Land Court's power to determine compensation under s.20 of the Act that the land be used for the purpose for which it was resumed – Clunies-Ross v The Commonwealth (1984) 155 CLR 192; s.20(3) of the Act. Since the respondent no longer required the resumed land for the purpose for which it was taken, the Land Court does not have jurisdiction to hear and determine the applicant's claim for compensation under s.20 of the Act.
In those circumstances, Counsel submitted, there must be some other specific provision in the Act authorising the Land Court to hear and determine such a claim. There is no such express provision in the Act. By contrast, when construed as a whole the Act expressly provides, in every other section which relates to compensation, the preconditions which must be satisfied before there is an entitlement to claim compensation and, consequently, power in the Court to determine compensation – ss.15(2)(b), 17(4) and (5), 18(1) and 24. These sections appear in Part 4 of the Act which is entitled 'Compensation'.
Counsel also submitted that where, as in this case, s.41 of the Act has been invoked there is no provision in that section or elsewhere in the Act which authorises the owner to bring a claim. Section 41 appears in Part 5 of the Act under the heading 'General'. The absence of any reference in s.41 to compensation and the power of the Land Court to determine compensation is unique. Even the provisions which provide for compensation to be paid by a constructing authority which causes damage when it enters on land (ss.36(5) – (7) and 37(3)) expressly provide for the circumstances which must exist to enable compensation to be claimed and s.37(5) expressly confers jurisdiction on the Land Court. Since there are no similar provisions in s.41, Counsel concluded that s.41 could only be invoked if compensation had been determined or agreed.
Jurisdiction of the Land Court
The Land Court is a court created by statute and its jurisdiction is conferred by statute. Section 5 of the Land Court Act 2000 provides that -
"Jurisdiction of Land Court
(1) The Land Court has the jurisdiction given to it under the Act.
(2) If jurisdiction for a proceeding is expressly conferred on the court under any Act, the jurisdiction is exclusive."
Section 5 of the Acquisition of Land Act sets out the purposes for which land may be taken under the Act. Sections 9 and 10 deal with the means by which land is to be taken and, in both cases, the sections provided that where land is taken by proclamation or notification in the Government Gazette the resumption is effective on the day of publication of the proclamation or notification (ss.9(6), 10(2) and (5)).
Section 12(5) is the section which creates the right to claim compensation where land is taken by publication in the gazette of a proclamation or notification of resumption under the provisions of the Act. The subsection provided, in part, that on and from the date of the publication of the proclamation or notification of resumption the land taken shall be vested or become Crown land "and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act …".
The effect of s.12(5) is to create and vest a right to claim compensation in any person whose estate or interest in the land is taken by publication in the gazette of a proclamation or notification of resumption. That right, which is absolute and unqualified, vests on and from the date of the publication of the notice in the gazette which is also the date when the land vests in the Crown or the constructing authority. Pursuant to that section, the applicant's estate and interest in the land was converted into a right to claim compensation on the date of publication.
Section 12(5A) provided that the amount of such compensation may be agreed between the parties and s.12(5B) provided that "Failing such agreement every such claim may be enforced against the constructing authority concerned under, subject to and in accordance with this Act and that constructing authority shall be liable accordingly.".
Section 26(1) provided that, subject to the section, the Land Court has jurisdiction to hear and determine all matters relating to compensation under the Act and s.20 set out the matters to be taken into account in the assessment of compensation.
Counsel for the applicant relied on the decision in Clunies-Ross v The Commonwealth, and specifically on the following passages, to support his submission that it is a precondition to the exercise of the Land Court's general power to hear and determine all matters relating to compensation under the Act that the land will be used for the purpose for which it was resumed. The High Court said (at 198) that –
"As a matter of language, a power to acquire land for a public purpose appears to us to be prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose …"
And at 199 –
"Nor is there anything in the general subject matter with which the Act deals which supports the view that the power to acquire land for a public purpose which the Act confers should be construed as extending to the acquisition of land not for purposes related to some need for or use of the land but to advance or achieve some more remote public purpose, however laudable."
Counsel submitted that although those statements were made in the context of the Commonwealth statute, they could be applied with necessary adaptation to an acquisition of land under the Queensland Act. It followed that since the respondent Council had passed a resolution to the effect that it no longer required the land for the purpose for which it was taken, the condition precedent to the exercise of the Court's jurisdiction to determine compensation under s.20 of the Act was not fulfilled and any determination would be in excess of jurisdiction and therefore void.
I do not consider that the decision in Clunies-Ross v The Commonwealth supports the submission that a condition precedent to the exercise of the Court's jurisdiction to determine compensation under s.20 is that the land has been or will be used for the purpose for which it is taken. The plaintiff in Clunies-Ross sought injunctions restraining the Commonwealth from compulsorily acquiring his land in the Cocos Islands, claiming that the purpose of the acquisition was to exclude the plaintiff and his family from the Islands and by so doing to prevent the plaintiff and his family from voting, or seeking to influence the votes of others, in the forthcoming Act of Self-Determination. Section 6 of the Lands Acquisition Act 1955 (Cth) empowered the Commonwealth to 'acquire land for a public purpose'. The primary issue for determination by the High Court was whether the executive powers to take land conferred by the Lands Acquisition Act empowered the Commonwealth to take land in order to deprive the owner of it, and thereby to advance or achieve some more remote public purpose. The majority of the Court held that the power to acquire land compulsorily for a public purpose was limited to a power to acquire land for some purpose related to a need for, or proposed use (whether active or passive), or application of the land to be acquired. It did not extend to the acquisition of land merely for the purpose of depriving the owner of it in order to achieve some purpose in respect of which the Parliament has power to make laws.
Clunies-Ross was therefore concerned primarily with the question of whether the proposed resumption was a valid exercise of the statutory power to acquire land compulsorily. It was in that context that the majority said (at 198) that "a power to acquire land for a public purpose appears to us to be prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose". That is not the issue in this case. There is no suggestion here that, as at the date of resumption, the respondent did not require the land for a lawful purpose and therefore, that the resumption of the subject land was invalid. What occurred here was that the respondent decided, after the resumption had taken place, that it no longer required the land for the purpose for which it was taken. In the absence of any indication in the Act to the contrary, such a decision does not operate retrospectively to invalidate the taking of the land. To the contrary, the Act indicates that the legislature anticipated that such a situation might arise and expressly provided for the consequences by the inclusion of ss.17 and 41 in the Act. Clunies-Ross dealt with a threshold question, namely whether the purpose of the proposed resumption was lawful. It did not deal with a situation such as has occurred in this case, where land was taken lawfully for a particular purpose, and where subsequently the constructing authority decided that it no longer required the land for that purpose. Clunies-Ross is not, therefore, authority for the proposition that it is a pre-condition to the exercise by the Land Court of the power to determine compensation under s.20 of the Act that the land will be used for the purpose for which it was resumed.
Counsel for the applicant also relied on s.20 of the Act to support his submission that because the respondent no longer required the land for the purpose for which it was taken, the Land Court does not have jurisdiction to hear and determine a claim pursuant to s.20 of the Act. Counsel said that s.20 indicates that any assessment of compensation by the Court must have regard to the purpose for which the land was taken. In particular, the assessment must, inter alia, take into account any damage caused by severance and injurious affection, offset by any enhancement.
Section 20 provided -
"Assessment of compensation
(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely –
(a) the severing of the land taken from other land of the claimant;
(b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."
Section 20 sets out the principles to be applied by the Court in assessing the quantum of compensation under the Act. The section does not deal with the threshold question of whether the Court has power to determine compensation. That question is dealt with by ss.12, 18(1) and 26(1) of the Act. As stated earlier, s.12(5) creates and vests a right to claim compensation in any person whose estate and interest in the land is taken by publication in the gazette of a proclamation or notification of resumption. Section 12(5B) provided that, failing an agreement as to the amount of compensation, the claim may be enforced against the constructing authority under, subject to and in accordance with the Act. Section 18(1) provided that "compensation whereto a right is had under s.12 may be claimed from the constructing authority under, subject to and in accordance with the provisions" of Part 4 of the Act and s.26(1) provided that subject to the section, the Land Court has jurisdiction to hear and determine all matters relating to compensation under the Act.
It is true that ss.20(1)(b) and 20(3) contemplate that the intended works will be carried out in that the subsections provided that any damage caused by the exercise of any statutory powers which injuriously affect land retained by the claimant or any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom caused by the carrying out of the works is to be taken into account.
The effect of ss.20(1)(b) and 20(3), if any, in a case such as the present is a matter to be considered when compensation is determined. Since the works are not to be constructed, it appears that any anticipated injurious affection or enhancement will not materialise. Those may be matters which affect the quantum of compensation as determined by the Court. However they are not matters which affect the jurisdiction of the Court. For the present, it is sufficient to say that the subsections do not provide any support for the submission that it is a precondition to the exercise by the Land Court of the power to determine compensation that the land will be used for the purpose for which it is resumed.
My conclusion is that I consider that the claimant's right to claim compensation, which arose under s.12(5) of the Act, remained in existence and capable of assertion by the claimant following the respondent's decision that it no longer required the land for the purpose for which it was resumed. I do not accept the submission by Counsel for the applicant, made at the hearing of this application, that that right was extinguished on the date of the resolution by the respondent Council that the land was no longer required or on the date that it was decided that the land ought not to be revested. That submission was not supported by any authority and there is no provision in the Act to that effect. It follows that the Land Court retains jurisdiction, pursuant to s.26 of the Act, to assess the applicant's claim for compensation under s.20 of the Act. Those conclusions mean that it is not necessary to find some other provision in the Act which expressly authorises the claimant to bring an action for compensation. The comparison with ss.15(2)(b) and 17(4) and (5) is not apposite because those sections deal with particular factual situations where s.12(5) does not apply and where therefore it was considered necessary to make express provision as to the right to claim compensation.
In so far as Counsel's submissions concerning s.41 are premised on the earlier submission that the Land Court has no jurisdiction to hear and determine the claim for compensation because the respondent no longer requires the land for the purpose for which it was resumed, the submissions must fail. As explained above, I consider that the Land Court retains jurisdiction to hear and determine compensation under s.20 in circumstances such as those which have occurred. Once it is accepted that the claimant's right to claim compensation remains in existence after the respondent's decision that it no longer requires the land, the absence of any reference in s.41 of the Act to the right to claim compensation or to the Court's power to determine compensation is explicable. There is no need to repeat the earlier provisions in the Act which create the right to claim compensation (s.12(5)), and regulate the way in which the right is to be exercised and the determination of compensation (Part 4 of the Act).
I do not consider, therefore, that the respondent's offer contained in the letter of 11 January 2005 was ultra vires, invalid and of no effect at law.
My conclusions have the necessary consequence that I do not consider that the submissions that the decision of the Land Appeal Court was made sub silentio or that the Land Appeal Court purported to have assumed the correctness of a proposition of law without argument can succeed. While many of the issues that have been raised by the applicant in this application were not, so far as I am aware, argued before the Land Appeal Court, I can see no reason to depart from the reasoning of the Court in that decision. The Court said at (LAC [47]) –
"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. … 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 clear that the Land Appeal Court considered that the claim for compensation remained to be finalised after the re-transfer of the land. That is a conclusion with which I respectfully agree. In those circumstances it is not necessary for me to consider whether I would have been bound in any event to follow that decision if I had come to the conclusion that the Land Appeal Court decision had been made sub silentio or that it had wrongly assumed the correctness of a proposition of law without argument.
Potential Disadvantages to applicant resulting from s.41 process
I turn now to the submissions of Counsel for the applicant concerning the disadvantages the applicant may suffer as a result of the adoption of the s.41 process and the consequent assumption by the Court of jurisdiction to determine the compensation claim under s.20.
Counsel submitted that if the Court has no jurisdiction to determine compensation under s.20 then the respondent would have acquired the land with no corresponding obligation to pay compensation. Since I have decided that the Land Court has jurisdiction under s.26 to determine compensation pursuant to s.20, it is not the case that the respondent has acquired the land with no corresponding obligation to pay for it.
Counsel also submitted that if the court wrongly assumed jurisdiction and proceeded to determine compensation under s.20 of the Act, the respondent would benefit from a windfall gain. This was because the land had increased in value since the date of resumption, as evidenced by the valuation of the State Valuation Service, Department of Natural Resources and Mines (on which the offer to retransfer the land was based) which valued the resumed land at $400,000 on 30 November 2004. That figure represented an increase of $220,000 over the $180,000 which was the value the respondent had placed on the land as at the date of resumption. If the land had been revested in the applicant pursuant to s.17 of the Act, the applicant would have obtained the benefit of that increase in the value of the land.
This submission was initially of some concern to me because it appeared that the respondent may benefit from a windfall gain, at the expense of the claimant, as a result of the resumption and subsequent change of plan by the respondent Council. However, it appears that the gain, if any, may not be of the magnitude suggested. The applicant has been paid advances totalling $180,000 in respect of the land taken, and has had the use of that money since the time it was paid. It may be that compensation is ultimately determined at an amount greater than $180,000. If so, the applicant will be entitled to payment of the additional amount plus interest including interest for the period before the $180,000 was paid. In any event, the function of the Court is to interpret the relevant statutory provisions by construing the words used in those provisions, not to determine the outcome by reference to any party’s perceived benefit or disadvantage. It is acknowledged that the applicant’s land has been compulsorily resumed and that the Court should not construe the statutory provisions on the basis "that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute" (Marshall v Director General, Department of Transport, (2001) 205 CLR 603 at 623 per Gaudron J). However, as her Honour also pointed out (ibid) –
"It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning." (footnotes omitted)
I consider that the proper construction of the statute leads to the conclusion, as set out above, that in a case where compensation has not been determined and the constructing authority has elected to proceed under s.41, the Land Court retains jurisdiction, pursuant to s.26 of the Act to determine the claim for compensation under s.20.
Counsel for the applicant also submitted that the valuation report referred to at [39] above indicated that if the road were built there was a real prospect of enhancement to the value of the applicant's adjoining land. If the Court proceeded to determine compensation under s.20 on the basis that the road was to be constructed, the Court would, pursuant to s.20(3) of the Act, be required to take into consideration, by way of set-off or abatement, any such enhancement to the value of the applicant's adjoining land. This may result in the applicant receiving nominal compensation only.
I have dealt with the submissions concerning s.20(3) of the Act, at [29] to [32] above and it is unnecessary to add to that discussion.
Counsel also referred to part of the submissions of Mr Gore QC, then Counsel for the applicant, when this matter was previously before this Court (at T7) –
"The s.17 procedure contains an express entitlement to compensation for costs incurred before the discontinuance, but the s.41 procedure does not; although the Council has 'conceded' an entitlement to compensation for costs thrown away, that has been on the basis that s.41 does not extinguish any existing entitlement to compensation but the current proceedings are for an assessment of the compensation to be paid as a result of the taking (under s.20), not in respect of the discontinuance of the taking; it is well established that parties cannot agree to confer jurisdiction on a Court which it does not have, particularly given the Council's willingness to pay appropriate compensation for the discontinuance, the lack of jurisdiction should not be taken."
Counsel submitted that the effect of the adoption of the s.41 procedure was that the applicant had been deprived of its lawful entitlement to the assessment of compensation under s.17(4).
Implicit in this submission is an assertion that the applicant has a lawful claim to compensation under s.17(4). It is clear that compensation is assessed under s.17(4) on a different basis from an assessment under s.20. It is also the case that if the s.17 process is adopted, compensation must be assessed under s.17(4) and not s.20. Similarly if the s.17 process is not adopted, the Court cannot assess compensation under s.17(4). It does not follow, however, that the applicant has a 'right' to compensation under s.17(4). In the circumstances which have occurred, the applicant has no right to claim compensation under s.17(4).
It appears that one component of the loss claimed by the applicant may be a loss in value of the land taken as a consequence of the loss of opportunity to develop the land more favourably under a now superseded planning scheme. Counsel submitted that such a loss would, prima facie, be recoverable under s.17(4) of the Act whereas it may not be recoverable under s.20.
In so far as that submission is based on the premise that the Court has no jurisdiction to determine compensation under s.20, the submission fails for the reasons set out above. If on the other hand Counsel was submitting that the alleged loss is not one that is compensable under s.20, it is a submission which relates to the assessment of the quantum of compensation. As such, it does not support an argument that the Land Appeal Court decision was incorrect, or that the Land Court does not have jurisdiction to make a s.20 determination of compensation.
Construction of s.17(1)
Counsel for the applicant submitted that the Land Appeal Court had failed to consider whether, once the preconditions to the operation of s.17(1) were satisfied, s.17(1) should be construed as imposing a mandatory obligation on the respondent Council and the relevant Minister to take the necessary steps to issue a gazette revoking notice. Counsel also submitted that the Land Appeal Court had failed to consider whether there was a duty on the Governor-in-Council to issue a gazette revoking notice if the conditions in ss.17(1) and (1A) were satisfied. Counsel said that -
1.The word 'may' in s.17(1) did not confer a discretionary power on the Governor-in-Council. Rather the power conferred was required to be exercised once the preconditions in ss.17(1) and (1A) were satisfied (Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134, 135; Samad v District Court of New South Wales (2002) 209 CLR 140 at 152, 153);
2.Section 17(1) is a remedial provision which should be construed, so far as its language allowed, to the advantage of those it was intended to benefit (Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 98).
It is not immediately apparent that these submissions are relevant to the declaration sought by the applicant. However, if the submissions were accepted, it would follow that the respondent should have proceeded under s.17 rather than s.41 and that compensation would then be assessed under ss.17(4) and (5) not s.20 of the Act. On that basis, I have decided to deal with these submissions.
There is some dispute between the parties as to whether the necessary preconditions to s.17(1) have been satisfied, in particular whether the agreement contemplated by s.17(1A) has been reached. It is not necessary for me to decide that issue, because even if the preconditions have been fulfilled, I do not consider that this submission can succeed.
As stated above, the Land Appeal Court heard and determined an appeal from a declaration that I had made in response to an application seeking a declaration that in the events that had happened the appropriate provision under which the applicant should proceed was s.17 of the Act. The construction of s.17 of the Act was a matter in issue before me. It is apparent from the Land Appeal Court decision that the construction of s.17 was also a central issue before that Court (see, in particular, paragraphs [22] – [24] and [34] – [40] of that Court's decision). I consider that as part of the ratio of its decision, the Land Appeal Court held that, in an appropriate case, a constructing authority has a choice as to whether it proceeds under s.17 or s.41, although where both avenues are open, the constructing authority must consider first whether it is appropriate to proceed under s.17. Thus the Land Appeal Court said -
At LAC [41])
"As a matter of construction of the Act, it was not necessarily apparent that the construction of each of ss.17 and 41 must result in mutually exclusive operation of the provisions."
At LAC [44]
"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."
At LAC [48] -
"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."
Counsel's submission that there is a mandatory obligation on the respondent to put in train the s.17 process in this case is directly contrary to the Land Appeal Court's decision. However, as Counsel acknowledged, the matters raised in this part of his submissions were not raised before the Land Appeal Court. There was no explanation for this omission and therefore, I do not know why these issues were not raised before me originally or on the hearing of the appeal to the Land Appeal Court, particularly when the construction of s.17 was in issue in both of those forums.
Counsel for the respondent submitted that in the circumstances the applicant was estopped from relying on the submission.
In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, the High Court considered the circumstances in which an estoppel might arise in subsequent litigation when a matter had not been pleaded in earlier litigation between the same parties. Gibbs CJ, Mason and Aickin JJ said (at 602) –
"In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
Their Honours also said (at 603, 604) that –
"It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. …
The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, although they may not be pronounced in the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."
Although there are no pleadings in this Court, I consider that these principles are applicable to proceedings in this Court. The issues raised by Counsel for the applicant in these submissions were clearly relevant to the subject matter of the earlier litigation and should have been raised at that time. The consequence of that failure is that two applications have been brought dealing with the construction of s.17 of the Act. Moreover, if the submissions were successful, they would lead to conflicting judgments in the sense referred to in Anshun. I consider therefore that the applicant is estopped from relying on this part of Counsel's submission because it was unreasonable for the applicant not to have raised these matters in the earlier proceedings where the construction of s.17 was in issue.
Conclusion
In the circumstances I consider that I am bound by the decision of the Land Appeal Court since the applicant's submissions do not establish a basis for reconsidering the matter. My conclusion is that the Land Court has jurisdiction to hear and determine the applicant's claim for compensation under the Acquisition of Land Act 1967.
ORDER
The application is refused.
CAC MacDONALD
MEMBER OF THE LAND COURT
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