Module2 Pty Ltd v Brisbane City Council

[2006] QSC 71

SUPREME COURT OF QUEENSLAND

CITATION:

Module2 Pty Ltd v Brisbane City Council [2006] QSC 071

PARTIES:

MODULE2 PTY LTD ACN 010 936 553
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

10851 of 2005

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2006

JUDGE:

Muir J

ORDER:

1.   Application dismissed.

2.   The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis, except the costs of and incidental to the hearing on 8 March 2006.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where Council made decision under Acquisition of Land Act 1967 (Qld) that land was to be resumed – where applicant seeks review of decision – where applicant seeks order quashing decision – whether notice was invalid – whether acquisition was for park purposes or recreation ground purposes – whether non-compliance with Act results in invalidity of decision

Acquisition of Land Act 1967 (Qld), s 7, s 10(1)
Judicial Review Act 1991 (Qld), s 20

Chilton v Telford Development Corporation (1987) 1 WLR 872, considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed
Randwick Municipal Council v Rutledge (1959) 102 CLR 54, considered
Winnipeg City v St Vital Rural Municipality [1945] 1 WWR 161, considered
Wotton v Wingecarribee Shire Council & Anor (1989) 68 LGRA 38, considered

COUNSEL:

P W Hackett for the applicant
R G Bain QC with M A Williams for the respondent

SOLICITORS:

Colwell Wright for the applicant
Brisbane City Legal Practice for the respondent 

Introduction

1. In its application for a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld), the applicant Module2 Pty Ltd seeks to review the decision of the respondent Brisbane City Council made on 29 November 2005 under s 10(1) of the Acquisition of Land Act 1967 (Qld) (“the Act”) that land owned by the applicant be resumed. Alternatively, the applicant seeks an order pursuant to s 41 of the Judicial Review Act quashing that decision.

1. The applicant has two points. The first is that the notice of intention to resume served on it failed to comply with the requirements of s 7(3)(f) of the Act and is consequently void. The other point is that although the notice of intention to resume specified “park purposes” as the purpose for which the land is required by the respondent, the land is in fact being acquired is for “sport and recreation” purposes. That being the case, it is argued that the decision was an improper exercise of the power conferred on the respondent by the Act and is bad in law.

The erroneous notice point

1. Section 7 of the Act relevantly provides:

7 Notice of intention to take land
(1) A constructing authority which proposes to take any land shall serve as prescribed by this section the notice (a ‘notice of intention to resume’) prescribed by this section.
(2) A notice of intention to resume shall be served upon any and every person who to the knowledge of the constructing authority--

(a) will be entitled to claim compensation under this Act in respect of the taking of the land concerned; or

(b) is a mortgagee of the land.

(3) A notice of intention to resume shall be in writing and shall--

(a) specify the particular purpose for which the land to be taken is required; and

…

(f)state that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters.”

1. The notices of intention to resume stated:

“The Council is willing to negotiate to acquire by agreement or, failing agreement, and if the land is taken, to treat as to the compensation to be paid in all consequential matters.” (emphasis added)

1. It will be seen that the attempt by the respondent to follow the wording of subsection 7(3)(f) miscarried in that “in” was used instead of “and”.

1. It is submitted on behalf of the applicant that the Act, providing as it does for the compulsory acquisition of land, should be construed strictly and that strict compliance with its provisions is required.[1] It is further argued that s 7 is in mandatory terms. The notice of intention to resume must be in the prescribed form and s 7(3) requires that it “shall be in writing” and “shall… specify the particular purpose for which the land to be taken is required… and shall state” the matters contained in paragraph (f).

   [1]Chilton v Telford Development Corporation (1987) 1 WLR 872 and Fricke, Compulsory Acquisition of Land in Australia,  The Law Book Company, 1982.

1. Counsel for both parties are agreed that the principles applicable to the question of construction now under consideration are most usefully stated in the reasons of McHugh, Gummow, Kirby and Hayne JJ, in Project Blue Sky Inc v Australian Broadcasting Authority[2] in which their Honours said: [3]

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

[2](1998) 194 CLR 355 at 389.

[3]Ibid at 388-389.

1. After concluding that the traditional approach of distinguishing between provisions which were “directory” or “mandatory” should no longer be followed, their Honours said:[4]

“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

[4]Ibid at 390.

1. Even taking into account the nature of the legislation and the important role played by the notice of intention to resume, it does not seem to me that it is “a purpose” of the Act that any breach of s 7 would have the effect of invalidating the notice. There are indications in the Act that undue emphasis is not to be placed on the observance of all the Act’s requirements. Section 7(5) contemplates that once a resumption notice has been gazetted a number of specified breaches of the Act, including failure to serve a notice of intention to resume on the owner, will not invalidate the continuance of the resumption.

1. Section 8(2A) gives the constructing authority the power to amend notices of intention to resume. That power is broad enough to include an amendment to correct a deficiency of the nature of the one under consideration. One would not lightly attribute to the legislature a purpose of invalidating any acts of non-compliance with s 7, no matter how trivial and lacking in prospect of detriment. Such a conclusion would be quite inconsistent with the contemporary approach to compliance with statutory obligations concerning the giving of notices.

1. In my view any reasonable recipient of the notice would be alerted by it to the possibility of negotiations with the respondent in relation to compensation. The subject part of the notice flagged the respondent’s willingness to negotiate to acquire by agreement. It also stated the respondent’s willingness, should the land be compulsorily acquired, to negotiate “as to the compensation to be paid in all consequential matters”. One construction which could be put on those words is that the Council was willing to negotiate as to compensation to be paid in all matters consequential upon (i.e. arising from) the compulsory acquisition. That construction would make more sense than a construction which had the Council willing to negotiate in relation to the acquisition and in relation to “all consequential matters”, whatever they may be, but not in relation to the substantive matter of compensation payable.

1. As the Act makes no provision for payment of compensation for “consequential matters”, a reasonable reader of the notice would tend to conclude that something had gone wrong with its wording. The language under consideration would not tend to lead such a person to the understanding that the Council was not indicating its willingness to negotiate in relation to compensation. In other words, the error is de minimus.

The alleged misstatement of the purpose for which the land is to be taken

1. The notices of intention to resume each contained the following statement of purpose:

“Brisbane City Council intends to take for park purposes, more particularly described in the Statement of Reasons herewith, the land described in the Schedule hereto.” (emphasis added)

1. The Statement of Reasons relevantly provided:

“The land is being used for community sport activities and has established facilities for Australian Rules football. Sandgate Seahawks AFC and Sandgate Junior Australian Football Club have occupied the site since 1973. the Sandgate Seahawks AFC is currently (April 2005) negotiating a 12-month lease/licence with the owner, in order to ensure their tenancy in the short-term. …. Other users of the site include local schools, including the Sandgate District State High School.

Acquisition of the site by Council would enable the existing range of community uses to continue. The site operates at a district and sub-regional level providing for training, competition and social activities within the local and wider community.

Material on which finding of fact was based

The site is one of several privately owned properties within Brisbane City that are currently used for sporting, recreational, community or cultural purposes but are threatened by either re-development, sale and high rents.
…
While the current owner has allowed for the sport and recreation use to continue via the lease arrangements with Sandgate Seahawks AFC, there is no guarantee that this will continue under a new private owner.

If sold for redevelopment, or the lease rent increases to a level to be unaffordable, the burden will shift to Council to provide replacement Sport and Recreation Area land. If this private site is lost to other development or an excessive rent is levied, there would be a requirement for Council to identify, acquire and develop another sporting park in the user catchment surrounding the site.

A deficiency in district sporting parkland in this locality was recognised during the preparation of Fitzgibbon Local Plan (draft). …
Resumption of the site is the preferred option available to Council Acquisition of all private sport and recreation land under threat is not a viable option, but in this case the site is considered of high strategic value for sport & recreation. Acquisition will allow existing activities to continue, and avoids the development costs associated with the relocation of this type of facility.

Reasons for the Decision

Brisbane City Council has not made a direct offer to the landowner – but has indicated via letter on 23 March 2004 the importance of this site and its interest in retention of the site for sport and recreation uses (refer attachment).

Another sport-based consortium, Southport Sharks, were negotiating a half purchase from the current owners, but the proposed management structure and board membership was not approved by the Qld Office of Gaming Regulations. Earlier discussions were also undertaken with Hawthorne Football Club, however the purchase price was too high for their consideration.
…
In these circumstances, if council wishes to secure the land for sport and recreation purposes, it will need to resume the property and negotiate on an agreed value or refer the matter to the Land Court for a determination of compensation.”

1. In the letter of 23 March 2004, it was said:

“Both Cr Newton and I believe strongly in the need for this land to be used to provide Seahawks Club and other sporting bodies using the facility with much-needed recreation space. We are committed to that purpose.”

1. It is submitted on behalf of the applicant that “the question is whether the purposes set out in the Statement of Reasons are park purposes within the meaning of the Schedule to the Act”. The contention is that the purposes, properly categorised, are for sport or recreation. By operation of the Act, land may be taken for use as “parks” and also for use as “recreation grounds”. The use described in the Statement of Reasons is “for recreation grounds rather than for a park”. In that regard, the applicant refers to the Macquarie Dictionary definition of “park” which is:

“1. An area of land within a town, set aside for public use, often landscaped with trees and gardens, and with recreational and other facilities: Hyde Park.
2. A tract of land set apart, as by a city or a nation, to be preserved in its natural state for the benefit of the public: Kakadu National Park.”

1. In my view, the applicant’s argument is based on a false premise. The notices of intention to resume did not identify the purpose for which the land was required as simply “park purposes”. The “particular purpose” specified was “for park purposes, more particularly described in the Statement of Reasons herewith”.

1. On one view of the matter, the purposes described in the Statement of Reasons are more aptly described as “recreation ground purposes” than “park purposes”. But whether park purposes is an accurate description may have no practical consequences. The purposes for which the land is required were clearly spelt out in the notices of intention to resume, in the Statement of Reasons and also in the decision under review. The notice of intention to resume and the recommendations for treatment of that objection were before the Council when it passed its resolution on 29 November 2005. Also before the Council was a background statement provided by the Divisional Manager, City Policy and Strategy Division. That document made it plain that the proposed use of much of the land involved uses which included the uses discussed in the Statement of Reasons. When it was resolved that the land was “required for park purposes” what was meant was park purposes which included the sporting and recreational purposes identified in the notice of intention to resume and the other documents referred to above.

1. If there is a procedural deficiency in relation to the resumption it consists of a misdescription of the purposes for which the land is required. A description which the respondent could have used in its resolution is “park and recreational ground purposes”. If that description had been used the applicant would have had no grounds for complaint.

1. Under s 10(1C) of the Act, the responsible Minister must consider every application by a constructing authority under that section:

“including all statements and documents, or copies of documents, accompanying the application to ensure that –
(a) the land to be taken may be taken and should be taken for the purpose for which it is proposed to be taken…”.

1. The material provided by the constructing authority to the Minister must be accompanied by documents which include:

(a)        A copy of the notice of intention to resume; and

(b)        A copy of every objection and a report by the constructing authority thereon.

1. From these documents it will be plain to the Minister that, whatever the ordinary and current meaning of “park”, it was used by the respondent in a sense which included sporting and recreational purposes.

1. For the above reasons, I conclude that contrary to the applicant’s contentions, the land was “required [by the respondent] for the purpose for which it is proposed to be taken”,[5] namely park purposes “more particularly described in the Statement of reasons”. It follows that no breach of the Act has been made out.

   [5]Section 10(1) of the Act.

1. Having regard to the matters discussed above, had I concluded that the land was required for a purpose other than the purpose for which it is proposed to be taken, in the exercise of my discretion, I would have declined to make the orders sought by the applicant. The applicant has not been misled or prejudiced in any way by the alleged deficiencies or errors. The respondent’s purpose for taking the land has always been apparent and is a purpose under the Act for which land may be required by a constructing authority. The applicant has objected to the taking of the land for the purpose stated in the notice of intention to resume and the objection has been duly considered.

1. If I am wrong in my conclusion that the respondent’s resolution of 29 November 2005 is not deficient, it would be open to the respondent to pass another resolution using the terminology of the Notice of Intention to Resume. Consequently, an order quashing the respondent’s decision would have little practical effect.

1. In any event, although I consider the point arguable, I am of the view that the purposes for which the respondent requires the land are appropriately described as “park purposes” within the ordinary and current meaning of those words.

1. The applicant’s argument accepts that parks will often contain within their boundaries “recreational and other facilities”. Indeed, the contrary is unarguable. Examples abound of internationally famed areas described as parks which are given over to a number of recreational or sporting uses. For example, Longchamp Racecourse is within the Bois de Boulogne. Regent’s Park has its famous zoo and Berlin’s Tiergarten also contains a zoo and other recreational facilities. In Winnipeg City v St Vital Rural Municipality[6] it was held that a piece of land used entirely as a golf course was being used for “public park purposes”. In the course of his reasons, Bergman JA said:[7]

“In my opinion a parks board is permitted to exercise common sense in carrying out its statutory powers; and, in working out a scheme of public parks, it may elect to devote one of its parks exclusively to golf, without thereby depriving it of its character as a public park … The best and most comprehensive definition of ‘park’ which I have found, and the one which I adopt as my own, is contained in Northport Wesleyan Grove Camp Meeting Assn v Andrews (1908) 71 Atl 1027 at 1030 (Maine), and is as follows: ‘A “park” may be defined as a piece of ground set apart to be used by the public as a place for rest, recreation, exercise, pleasure, amusement, and enjoyment.’ Applying this definition I hold that the Windsor Park Golf Course is land used for public park purposes within the meaning of s 4 of the 1918 Charter [Winnipeg Charter 1918, ch 120…”.

[6][1945] 1 WWR 161.

[7]At 177-179.

1. In the same case Dysard J observed:[8]

“The term ‘public park’ or ‘park’ generally connotes a portion of land of considerable extent, provided with the means and facilities of recreation and pleasure for the public at large without fee or charge. It may conceivably – and often does – include within its borders, baseball grounds, lawn bowling grounds, tennis courts, and even golf courses.’

[8]At 180.

1. “Park” is defined in Butterworths Australian Legal Dictionary[9] as “land used for public health, recreation, enjoyment or other public purposes of a like nature.” The definition is drawn from the reasons of Hemmings J in Wotton v Wingecarribee Shire Council & Anor,[10] who considered that phrase to be consistent with the defined meaning of “public reserve” in the Local Government Act 1919 (NSW) and views expressed in Randwick Municipal Council v Rutledge.[11] In that case, Menzies J observed: “Indeed, I have no reason to think that the actual decision in Spain’s case (1929) 29 SR (NSW) 492) that Taronga Park was used for a public park, was not correct.” [12] An issue in Spain’s case was whether the site of Taronga Park Zoo was being used for a “public reserve” but Ferguson ACJ, with whose reasons the other members of the Court agreed, described the zoo site as a park.

   [9]Nygh & Butt (eds), Butterworths Australian Legal Dictionary, Butterworths, 1997.

   [10](1989) 68 LGRA 38 at 47.

   [11](1959) 102 CLR 54.

   [12]At 65.

1. It therefore seems to me that the fact that the respondent contemplates that the land will continue to have on it an oval and club house used by an Australian Rules football club and other ovals used by schools and other entities for sporting purposes does not require the conclusion that the intended used is not properly described as park purposes. The respondent’s position is strengthened by the fact that the land will continue to be used for “the existing range of community uses.”[13] They include “training, competition and social activities”[14] and “passive recreation.”[15] It is relevant also that part of a waterway corridor is located on the land. It provides an alternative setting for walking and other more passive forms of recreational activity. The respondent had that in mind for relevant purposes.

   [13]Statement of Reasons, affidavit of Trevor Connolly at p 12.

   [14]Ibid.

   [15]Affidavit of Christian Hunt at para 14.

1. Conclusion

1. The application is dismissed. It is ordered that the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis, except the costs of and incidental to the hearing on 8 March 2006.