Module2 Pty Ltd v Brisbane City Council

[2006] QCA 226

SUPREME COURT OF QUEENSLAND

CITATION:	Module2 P/L v Brisbane CC [2006] QCA 226
PARTIES:	MODULE2 PTY LTD ACN 010 936 553 (applicant/appellant) v BRISBANE CITY COUNCIL (respondent/respondent)
FILE NO/S:	Appeal No 3732 of 2006 SC No 10851 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED EX
TEMPORE ON:	19 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2006
JUDGES:	Williams JA, Keane JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed with costs
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the appellant is the registered owner of land currently used for sport and recreation purposes – the respondent gave notice to the appellant pursuant to s 7 of the Acquisition of Land Act 1967 (Qld) of its intention to resume the land – whether an error in the notices of intention to resume invalidated those notices – whether the land was being resumed for an improper purpose
Acquisition of Land Act 1967 (Qld), s 5(1)(b), s 7, s 10(1) Judicial Review Act 1991 (Qld), s 20
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied
COUNSEL:	K S Howe for the applicant/appellant R G Bain QC, with M A Williamson, for the respondent
SOLICITORS:	Colwell Wright for the applicant/appellant Brisbane City Council Legal Practice for the respondent

WILLIAMS JA:

(1) At first instance the appellant sought a statutory order

of review pursuant to section 20 of the Judicial Review the provisions of the Act as they applied as at 29 November 2005. The application was dismissed and the appellant now appeals to this Court.

Act 1991 of the decision made by the respondent on 29
November 2005 under section 10(1) of the Acquisition of

(2) Section 5(1)(b) of the Act provides that a local

government may take land under the Act for any purpose set out in the Schedule which the local government may lawfully carry out. The Schedule to the Act sets out

numerous purposes for which land may be taken under and lawfully take land under the Act, the proposed use of the land would have to be covered by at least one of the purposes stated in the Schedule. It should also be noted that section 5(2) provides that the power to take land for a purpose stated in the Schedule includes power to take land "for any purpose incidental to the carrying out" of that purpose.

subject to the Act. Included in those purposes are
"parks" and "recreation grounds". It is clear from a
reading of the Schedule that each stated purpose is not
mutually exclusive and a proposed user of the land may
well fall under a number of the purposes stated therein.

(3) Section 7 then provides that the "constructing

authority", in this case the respondent local government, the notice of intention to resume. It provides:

proposing to take any land "shall serve as prescribed by
this section the notice ... prescribed by this section".

"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

(b)

State the description of the land to be taken ... ...

(d)

State that the person to whom the notice is directed may, on or before the date specified in the notice serve upon the constructing authority...an... objection in writing to the taking of the land; and

(e)

In relation to the objection mentioned in paragraph (d) set out:

(i)	that the objection must state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds; and
(ii)	that any matter pertaining to the amount or payment of compensation is not a ground of objection; and
(iii)	that an objector who states in the objection that the objector desires to be heard in support of the grounds of the objection may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice; 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."

(4) Then comes section 10(1) which is in the following terms:

"If within the time stated in the notice of intention apply for the taking by it of the land."

to resume no objection is made or if, after due
consideration of all objections, Brisbane City Council
is of opinion that the land in question is required
for the purpose for which it is proposed to be taken,

(5) It has been assumed without argument that a resolution

under section 10(1) of the Act is a decision reviewable

pursuant to the Judicial Review Act.

(6) The appellant is the registered owner of land situated at

120 Lemke Road, Taigum ("the land"). The land is currently zoned and used for sport and recreation purposes. On 21 July 2005 the respondent gave notices

pursuant to the Act of its intention to resume the land
for park purposes.

(7) One of the appellant's principal contentions is that the

notices to resume were invalid because they did not
comply with the requirements of section 7 of the Act. In
particular they did not comply with subsection 3(f)
because instead of referring to "and all consequential
matters", the notices said, "in all consequential
matters". It was said that the typographical error of
including the word "in" instead of the word "and"
invalidated the notices and in consequence the respondent
was not entitled to proceed to make a decision pursuant
to section 10(1) of the Act.

(8) The notices of intention to resume stated that the

respondent intended to take the land "for park purposes, acquired by the respondent it would be necessary for it to "acquire and develop another sporting park in the user catchment surrounding the site".

more particularly described in the Statement of Reasons
herewith". The accompanying Statement of Reasons
provided a page and a half of detail as to the proposed

(9) The appellant, through its solicitor, formally objected

objection relevant for present purposes was that the
notices stated that the land was being resumed "for park
purposes" whereas that was not the respondent's "true
intention and therefore the Council is purporting to use
its power of resumption under the Act for an improper
purpose". That objection was particularised as being
that the respondent did not intend to use the land as a
park but to use it for sport and recreational purposes.

to the notices of intention to resume. One ground of considered by the respondent and it was decided on 29 November 2005 to proceed with the resumption. It was resolved that the respondent would make application to the Department of Natural Resources and Mines for approval to the proposed resumption. That decision was communicated to the appellant's solicitors by letter dated 1 December 2005.

user. It referred to the fact that the land was
currently being used "for community sport activities" and
went on to state: "Acquisition of the site by Council
would enable the existing range of community uses to
continue. The site operations at a district and sub-
regional level providing for training, competition and
social activities within the local and wider community."

(10) On the hearing of the application to review the

respondent's decision the appellant raised for the first time the error in the notices of intention to resume and also relied on the objection taken that the land was

being resumed for an improper purpose.

(11) Justice Muir in dismissing the application concluded that

the literal error in the notices of intention to resume did not invalidate the notices and that the purpose for which the land was to be taken was the purpose specified
in the notices of intention to resume. On appeal it is
contended that his Honour erred in reaching each of those
conclusions.

(12) There was agreement at first instance and on appeal that

the appropriate test to apply in order to determine
whether or not the notices were invalid was that
formulated by Justices McHugh, Gummow, Kirby and Hayne in

Project Blue Sky v. Australian Broadcasting Authority

(1998) 194 Commonwealth Law Reports 355 at 389. construction; whether the legislative purpose was to invalidate any act that failed to comply with the statutory requirements. As was said by their Honours:

"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."

(13) In my view it is usually of significance to evaluate the

conclusion will often be reached that substantial
compliance with the statutory requirements is sufficient;
provided that the recipient of the notice is made aware
of all matters provided for by the statutory provision,
departure from the form may not have the consequence of
invalidating the notice. That would seem to be
recognised by section 10(1C)(b) of the Act which obliges
the Minister to ensure that the local authority has
"taken reasonable steps to comply with section 7 and 8".

degree of departure from the statutory requirements. The strict compliance with section 7. Further, section 7(5) of the Act would appear to deal with fundamental non- compliance and provides that is not necessarily sufficient to invalidate the process. Also the local authority may, by relying on section 8(2A), amend the notice. Those are further indications that failure to comply strictly with the requirements of section 7 will not invalidate the process.

(14) Here the departure was of the most trivial kind. The

critical requirement was that the resuming authority give relevance. It is only in exceptional cases that there would be "consequential matters" that would be the subject of "treating" between the parties. The use of the word "in" rather than the word "and" if anything made the last peripheral matter unintelligible. But if any recipient of a notice went to a solicitor, as the appellant did here, the purport of that peripheral notification would be made clear.

notice that it was willing to negotiate to acquire the
land by agreement, and if there was no such agreement it
was willing to "treat as to the compensation to be paid".

(15) It is sufficient to say for the reasons given by Justice Muir and the reasons stated above, the typographical error in the notices was not such as to invalidate them.

(16) As already noted, the notices merely had to specify one of the purposes in the Schedule to the Act as providing the lawful basis for the resumption. Bearing in mind the

reference to incidental purposes in section 5(2) of the Act, it was not necessary for the purpose to be limited in a strict sense to what could be regarded as the

principal purpose for which the land was to be used. on the expression "park purposes" by referring to the Statement of Reasons. As Justice Muir has amply pointed out in his reasons, both dictionary definitions and common usage essentially equate park purposes with recreational purposes or sporting purposes. To the references included by Justice Muir in his reasons one could add another famous landmark; Cardiff Arms Park. Locally one could refer to many sporting facilities called parks; Lang Park, Albion Park, Bottomley Park, Crosby Park and Marchant Park.

(17) Justice Muir was clearly right in rejecting the

submission that the resumption was for an improper

purpose.

(18) Further, there is no basis for interfering with the

exercise of discretion at first instance.

(19) The appeal should be dismissed.

KEANE JA: I agree. Fundamental to both arguments agitated by
the appellant is the proposition that non-compliance with s 7
is intended by the statute to invalidate a decision to
institute the process of acquisition under s 10. A clear
indication that this proposition cannot be sustained is
s 10(1C)(b). This provision plainly assumes that a notice
which has not complied with s 7 may be a sufficient foundation
for the process of acquisition which follows a decision under
s 10(1). I agree with the orders proposed by the presiding
Judge.

HOLMES JA: I agree with the reasons of the presiding Judge and Justice Keane and with the orders proposed.

... with costs.

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