Nevis Pty Ltd v Department of Main Roads
[2003] QLC 52
•29 July 2003
LAND COURT OF QUEENSLAND
CITATION:Nevis Pty Ltd & Ors v Department of Main Roads [2003] QLC 0052
PARTIES:Nevis Pty Ltd (the first claimant)
Australian Self Storage Pty Ltd (the second claimant)
Australian Self Storage Pty Ltd
as Trustee of the Australian Self
Storage Superannuation Fund (the third claimant)
and Body Corporate for 4032 Pacific Highway
Community Titles Scheme 22755 (the fourth claimant)
v.
Chief Executive, Department of Main Roads
(respondent)
FILE NO: A2000/0005
DIVISION: Land Court of Queensland
PROCEEDING: Application for determination of a preliminary point; Claim for Compensation consequent upon the resumption of land by the Chief Executive, Department of Main Roads, for transport and incidental purposes under the provisions of the Acquisition of Land Act 1967, the Transport Infrastructure Act 1994, and the Transport Planning and Coordination Act 1994
DELIVERED ON: 29 July 2003
DELIVERED AT: Brisbane
HEARD AT: Brisbane
MEMBER: Mr JJ Trickett, President
ORDER:For the purpose of rehearing the claimants' claim for further compensation, it is determined that the purpose for which the claimants' land was resumed was the upgrading of the Pacific Highway from six lanes to eight lanes.
CATCHWORDS: Resumption - Injurious Affection - application of Marshall principle - Purpose of resumption - Two upgrades (widenings) Pacific Highway - Claimants' land only resumed (in part) for second widening - But some damage caused from first widening - Whether latter part of resumption project.
Resumption - Injurious affection - Acquisition of Land Act s.20(1)(b) - Purpose of resumption affecting balance land - Distinguish from scheme of resumption (Pointe Gourde) in assessing value of land resumed.
Resumption - Injurious affection - purpose of resumption - Means of determining such - Formal Cabinet decisions on "works" more relevant than internal departmental views and documents.
Practice and Procedure - Determination of preliminary point - Rule 19(2) Land Court Rules 2000.
COUNSEL: Mr DR Gore QC and Mr TN Trotter for the claimants
Mr MD Hinson SC for the respondent
SOLICITORS: Dibbs Barker Gosling, Lawyers, for the claimants
Crown Solicitor for the respondent
This matter concerns a preliminary point which the parties agreed should be determined by the Court before hearing the claim for further compensation for injurious affection based on the principle in Marshall v Director-General, Department of Transport (2001) 75 ALJR 1218.
Background
The second claimant conducts a self storage business in a complex at 4032 Pacific Highway, Loganholme, on land held by the other claimants as registered owners. In June 1996, the claimants were informed that some of the land may be resumed as part of a project to widen the Pacific Highway. By April 1998, it was clear that a strip of land approximately 20 metres wide on which the office and caretaker's building and one of the self storage modules were situated, would be required.
On 7 July 1998, the Main Roads Department issued a notice of intention to resume the land "for transport purposes or for an incidental purpose". On 25 June 1999 by proclamation an area of 1,092 m² was resumed "for transport purposes and incidental purposes". The claimants claimed compensation of $1,228,496.60. Following a hearing of the matter in the Land Court, on 23 March 2001, I determined compensation under all heads at $854,719.
The claimants applied for a rehearing under s.12 of the Land Court Act 2000 on various grounds. On 10 December 2001, the Land Court refused to grant the application. Following an appeal to the Land Appeal Court against that decision, on 13 June 2002 the Land Appeal Court allowed the appeal on one issue and ordered that the claimants be granted leave to have the matter of their claim for compensation reheard "... in respect of the issue of further compensation based on the decision in Marshall v Director-General, Department of Transport (2001) 75 ALJR 1218". The Land Appeal Court remitted that matter to me for rehearing in respect of that issue.
The claimants had sought a rehearing on this issue on the basis that the property suffered a reduction in exposure to highway traffic and the adverse effects of future roadworks. On 20 January 2003 the claimants delivered particulars of the claim for further compensation as follows:
"Compensation is claimed on the following grounds:
1.Disturbance and business loss suffered during the construction of the Beenleigh-Redland Bay Road/Pacific Highway interchange and widening of the Pacific Highway to six lanes during the period of construction June 1995-June 1997.
2.Future disturbance and business loss expected to be suffered during construction to widen the Pacific Highway to eight lanes and during construction of a new service roadway. This ground was assessed by Mr JJ Trickett in his judgment dated 23 March 2001 on the basis that compensation was only payable for disruption caused by the roadworks undertaken specifically on the resumed land. Utilising the reasoning of the Court in Marshall, this ground of compensation should also encompass losses that can be foreseen due to the total scheme of works.
3.Business loss suffered due to the reduction in exposure caused by works undertaken on land other than the resumed land and future business loss expected to be suffered due to a reduction in exposure caused by future works to be completed on land other than the resumed land."
Access to the Claimants' Land
The claimants' land, upon which is situated the self-storage complex, is to the east of the Pacific Highway, just to the south of the Beenleigh-Redland Bay Road intersection with the highway. The evidence has established that prior to 1983, the intersection operated as an open at grade (one level) intersection, with right turning traffic entering and exiting the Beenleigh-Redland Bay Road, turning across highway traffic. Access to the claimants' property was from a service road connected to the Beenleigh-Redland Bay Road near its intersection with the highway.
In 1983, for safety reasons, the opening in the median of the highway was closed, denying traffic the option of turning right into and out of the Beenleigh-Redland Bay Road and requiring such traffic to use alternative access.
The works involved in the widening of the highway from four lanes to six lanes included the construction of the Beenleigh-Redland Bay Road underpass, which involved the reconstruction of some of the service roads, including a new road connection to the service road serving the claimants' land, from a point off Cairns Street near its intersection with the Beenleigh-Redland Bay Road. However, the six laning project did not require any land to be acquired from the claimants' property or any alteration of the service road in front of that property.
It was not until the widening of the Pacific Highway from six lanes to eight lanes that relocation of the service road was necessary, requiring the resumption of land from the front of the claimants' property.
The Effect of Marshall
The relevant legislation in this matter is s.20 of the Acquisition of Land Act 1967 which provides as follows:
"(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."Prior to the decision of the High Court in Marshall, on the authority of the decision of the English Court of Appeal in Edwards v Minister of Transport [1964] 2 QB 134, it was generally accepted that compensation for injurious affection could be awarded only where there was a loss in value to the owner's other lands which was caused by works performed (or exercise of any statutory powers) by the constructing authority on the resumed land itself.
In Marshall, however, the High Court held that s.20(1)(b) was not confined to the exercise of statutory powers on and only on the resumed land. In this regard, the majority of the High Court said at [20]:
"Once the constructing authority acquires land for a statutory purpose and carries out the statutory purpose, it must, pursuant to section 20(1)(b) of the Act, compensate the dispossessed owner for the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective."
Later, on the same aspect, the majority of the High Court said at [34]:
"The acquisition of the land, the work done on it, and the use, passive or active, to which it is put in pursuance of a statutory purpose such as that involved here, will form part of the exercise of the relevant statutory power so as to give rise to a right to compensation for such injurious affection as is caused to the remaining land by reason of the exercise of the power. If it were otherwise, the authority would have neither the need nor the legal right to acquire the land in question."
The Preliminary Point
On 2 April 2003, the Crown Solicitor on behalf of the respondent, with the consent of the claimants, applied to the Land Court under Rule 19(2) of the Land Court Rules 2000 for the determination of a preliminary point as to what works constitute the "scheme" pursuant to which the claimants' land was resumed.
The respondent contends that injurious affection to the claimants' retained land is confined to the upgrading of the Pacific Highway from six lanes to eight lanes as that was the purpose for which the claimants' lands were taken. On the other hand, the claimants seek to recover losses suffered during the construction of works in the period 1995 to 1997 as part of the six-lane upgrading of the Pacific Highway, in addition to future losses expected to be suffered during the widening of the Pacific Highway to eight lanes and during the construction of the service road, as well as business losses suffered and expected to be suffered due to reduction in exposure.
In my determination of compensation consequent upon the resumption of the land, I determined an amount for future disturbance to the business of the claimants during the construction of the service road on the resumed land at $32,673. The claimants correctly make the point in Claim 2, that my assessment of that disturbance was made on the basis that compensation was payable only for disruption caused by the roadworks undertaken specifically on the resumed land. They now argue that, utilising the reasoning of the High Court in Marshall, this aspect of compensation should also encompass losses that can be foreseen due to the total scheme of works.
The purpose of the present application is not to deal with the merits of the claimants' claims, but rather to deal with the preliminary point on a single issue. In simple terms, that issue is whether the purpose of the resumption was for the widening of the Pacific Highway from four lanes to six lanes, as a first stage and then to eight lanes as a second stage, as contended by the claimants, or was it solely for the purpose of widening the Pacific Highway from six lanes to eight lanes, as contended by the respondent.
I was assured by the parties that determination of this preliminary point would significantly reduce the evidence that would be required at the rehearing of the Marshall issue, shorten the time of the hearing and result in a significant saving in costs. In those circumstances, I gave leave to argue the preliminary point to identify the relevant purpose underlying the resumption for the purpose of assessing the claim for further compensation.
The Hearing of the Application
A diagram tendered by the claimants shows that the road between Brisbane and the Gold Coast from the Stanley Street intersection to the Klumpp Road/Mains Road intersection is known as the South East Freeway, while the road south of that intersection is known as the Pacific Highway. The diagram also shows a number of discrete sections of the highway which are relevant in the present matter; the section past Garden City between Klumpp Road/Mains Road and the Gateway Motorway intersection, the section between that intersection and the Loganlea Road intersection near Springwood, the section between Loganlea road and the Beenleigh-Redland Bay Road past the Logan Hyperdome, and the section between the Beenleigh-Redland Bay Road and the Logan Motorway, in which the subject land is situated.
A statement by Mr Stuart Lutton of the Department of Main Roads was tendered on behalf of the respondent. Mr Lutton had been the project manager for the South-East Transit (SET) Project, which was the eight laning of the Pacific Highway. He traced the timing and planning of construction projects for the Pacific Highway near the Beenleigh-Redland Bay Road Interchange. Of relevance to the present matter was his evidence of the following events:
· In May 1991, the engineering firm, Rankine & Hill Pty Ltd, was engaged to undertake the planning of a new Brisbane to Gold Coast highway link, referred to as the Eastern Corridor (the Eastern Corridor Planning Study Report). The Eastern Corridor was to be a new road to the east of the Pacific Highway, planned to support the Pacific Highway, with each of them sharing the Gold Coast traffic volumes.
· On 24 February 1992, Cabinet decided (Cabinet Decision 1954) that the Pacific Highway upgrading be planned by way of progressive improvement, including the addition of extra traffic lanes up to six lanes as required. Cabinet also endorsed the preferred route as recommended by the Eastern Corridor Planning Study Report for the Eastern Corridor from the Beenleigh-Redland Bay Road to the Coomera River, but rejected the Report's preferred route from the Beenleigh-Redland Bay Road to the Gateway Arterial Road, as alternatives were available. Cabinet also directed that further detailed investigations be carried out for the balance of the Eastern Corridor proposal.
· In March 1995, the construction contract for the upgrading of the Pacific Highway from four lanes to six lanes was awarded to Hollands Pty Ltd, with a practical completion date of March 1997. The works included the construction of the Beenleigh-Redland Bay Road underpass of the Pacific Highway. No consideration for eight lanes was made in the planning, design or construction work.
· The six laning project also included the reconstruction of service road segments on the eastern and western sides of the highway, including a new road connection to the service road serving the claimants' land from a point off Cairns Street near its intersection with the Beenleigh-Redland Bay Road.
· In September 1995, a media release indicated that the Government had revised the Eastern Corridor proposal to exclude the road north of the Beenleigh-Redland Bay Road through koala habitat, but would continue with the upgrading of the Pacific Highway to six lanes.
· On 19 February 1996, following a change of government, the Department of Main Roads was directed to commence planning for the upgrading of the existing Pacific Highway to eight lanes. As a consequence, part of the claimants' land was resumed for the construction of a relocated service road. Planning for the eight laning of the highway commenced in August 1996. However, the construction works in the Beenleigh-Redland Bay Road area were postponed because of funding restrictions, but planning and design have been completed.
Mr Lutton expressed the view that the six laning project made no provision for later eight laning of the highway, as demonstrated by the extent of road infrastructure rework required near the Beenleigh-Redland Bay Road Interchange. These works included demolition and reconstruction of on and off ramps, widening the interchange underpass bridge to carry eight lanes, relocation of service roads, relocation of utility services and the resumption of 16 properties near the interchange. The underpass bridge was widened under a separate contract with Moggill Constructions, commencing in July 1999.
As a result of Mr Lutton's evidence, the respondent contended that the eight laning project was an entirely separate scheme from the earlier six laning project.
Evidence on behalf of the claimants was given by Mr Brian Davis, a consulting engineer, who traced the historical background to the upgrading of the Pacific Highway, explaining that traffic growth on the Pacific Highway had been consistently high for over 20 years driven by population and economic growth within the corridor.
In summary, the evidence of Mr Davis was to the effect that –
·In September 1987, the Main Roads Department Divisional Engineer, Metropolitan, sent a memo to the District Engineer requesting that planning layouts be prepared for the South East Freeway and part of the Pacific Highway, particularly requesting three lanes in each direction from Springwood to the Logan River and use of 3 metre RH (right hand) shoulder as a HOV (high occupancy vehicle) or express lane.
·In 1990, the SEQ 2001 Study was commenced, identifying the likelihood of high population growth in the corridor with increased traffic growth and the necessity for the development of a network of busways to improve public transport.
·In January 1992, the Principal Manager, Major Projects, Department of Transport, had forwarded a memorandum to the Regional Director, Metropolitan, which included a report titled "Effect of an Eight Lane Pacific Highway on the South East Freeway".
·In July 1993, a memorandum from the Regional Director, Metropolitan, to the Executive Director (Infrastructure Development), regarding the Pacific Highway upgrading from the Gateway Arterial Road to the Beenleigh-Redland Bay Road, recommended proceeding with the six laning of the Pacific Highway from the Gateway Arterial to the Beenleigh-Redland Bay Road, to give some relief to severe congestion occurring in peak conditions and weekends.
·In 1995, the Regional Framework for Growth Management for South-East Queensland (RFGM) was completed, which represented the culmination of the SEQ 2001 project. Mr Davis included a plan showing eight lanes on the Pacific Highway at Loganholme, which he believed to have been completed about that time.
·In early 1996, the Department of Main Roads prepared a report titled "Consultations with Property Owners/Occupants South East Freeway/Pacific Highway", regarding land requirements for widening the road to eight lanes. There is reference in that report to the concerns of property owners "being aggravated by the current six-laning construction", which was under way at the time.
·In April 1996, planning commenced for the upgrade of the Pacific Highway to eight lanes from the Logan Motorway to Nerang.
·In June 1996, letters were sent to the owners of properties from which land was required for the eight-lane proposal. The principals of the claimants were interviewed on 5 July 1996.
·In August 1996, the Minister for Transport announced that the South East Freeway and Pacific Highway south to the Logan Motorway would be upgraded to eight lanes. The project was called the South East Transit (SET) Project.
·In October 1996, Queensland Transport made a submission to the Public Works Committee Enquiry into the SET Project, referring to a number of studies, including the SEQ 2001 Project which started in 1990, the RFGM (1995) and the draft Integrated Regional Transport Plan. Mr Davis included a diagram showing that for the section at Loganholme, four lanes existed and the widening to six lanes was under way and two additional HOV (high occupancy vehicle) lanes were proposed.
·In May 1997, planning layouts of options for eight lanes went on display. At the time the construction of the widening to six lanes was under way. The plan produced by Mr Davis shows eight through lanes, two of which were proposed to be HOV lanes and for the resumption of the front of the claimants' land for the provision of a two-way two-lane service road for local access. Mr Davis noted that the scheme was ultimately approved and the land resumed by the Department of Main Roads.
According to Mr Davis, as the Pacific Highway is the only road crossing the Logan River, it caters for a large number of local trips in the vicinity of the subject land, causing variations in travel speed and frequent lane changing. Separate facilities are required to accommodate the range of road functions and a complex system of service roads as proposed in the SET Project. It was clear in the early 1990's that additional distributor road space was required.
Mr Davis contended that as long ago as 1987, the Divisional Engineer, Metropolitan, recognised that capacity in excess of six lanes was required when he recommended that some flexibility be provided by the inclusion of wide shoulders to permit HOV's or express lanes. He went on to express the view that had the proposal for the Eastern Corridor route proceeded, it could not have satisfied the needs of local demand, nor provided a location for a HOV lane for much needed bus services to the Pacific Highway corridor. At best, he contended, the Eastern Corridor would have reduced the need for one additional lane in each direction for a short time , but the distributor type service road and the service road providing access to adjoining local streets would still have been required, resulting in acquisition of the claimants' land. He thought that it was highly likely that enough land would have been taken to accommodate the facilities outlined in the SET Project.
Mr Davis went on to say:
"The studies in the early 1990's indicate that there was corporate knowledge within the MRD, QT and DMR that the six-lane facility completed in 1997 was merely a step towards the provision of the extra capacity for the access distribution and through movement functions provided by the SET Project which triggered the resumption of the [claimants'] land."
From the information available, Mr Davis concluded that there was one plan for the Pacific Highway and that it would be delivered in two stages. The first stage was for six through lanes and a grade separated interchange at Beenleigh-Redland Bay Road; the second stage was for six through lanes and two HOV lanes, together with a distributor type service road and a local service road.
The Claimants' Argument
The claimants contend that there was one scheme, which was the upgrading of the Pacific Highway to cope with the increasing traffic demand between Brisbane and the Gold Coast. That scheme, it was argued, was implemented in two stages; the first stage being the widening of the highway from four lanes to six lanes which commenced in 1995 and the second stage being the widening of the highway from six lanes to eight lanes.
The claimants contend that from the 1980's there was corporate knowledge in the Main Roads Department that six lanes would not be sufficient to cope with the traffic in the longer term; the six laning project was simply a step in the process which would lead to an eight lane Pacific highway.
As to the question of whether there was one scheme or two, the claimants submitted that assistance can be gained by reference to the principles in the Pointe Gourde cases as to the identification of a scheme: Pointe Gourde Quarrying and Transport Co Ltd v. Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565. They argued that the land was resumed "for transport purposes and incidental purposes", not for the purposes of eight laning the Pacific Highway. The claimants contend there is ample evidence that as long ago as 1987, the Department had anticipated upgrading the Pacific Highway in the vicinity of the claimants' land to beyond six lanes.
The Respondent's Argument
The respondent argued that the purpose for which the land was resumed was for the SET Project, the upgrading of the Pacific Highway from six lanes to eight lanes. There had been no need to acquire land from the claimants' property for the upgrading from four lanes to six lanes, as that upgrading and the construction of the Beenleigh-Redland Bay Road underpass occurred largely within the then existing road corridor. The respondent relied upon the Cabinet decision in February 1992 to upgrade the highway to a maximum of six lanes, in conjunction with detailed investigation of an Eastern Corridor. The argument continued: the decision was implemented by upgrading the highway from four lanes to six lanes; it was not until a change of Government in early 1996, that a decision was made to abandon the Eastern Corridor project and upgrade the highway from six lanes to eight lanes; the resumption of the claimants' land occurred in the implementation of that decision.
The respondent went on to submit that the two decisions were unrelated, made by different Governments, some four years apart. The second decision triggered the need for the resumption of the claimants' land, while the first did not. The second decision was not the second stage of some over-arching scheme, nor the first decision the first stage of such a scheme. The respondent contended they are two different unrelated schemes, not a single evolving scheme undertaken in two stages. It was a change in Government thinking, resulting in a new scheme to upgrade the highway from six lanes to eight lanes, which necessitated relocating the service road and resuming the claimants' land.
Consideration and Conclusion
In this case the parties agreed that the preliminary point for determination by the Court is simply what works constitute the "scheme" pursuant to which the claimants' land was resumed. However, it is essential to keep in mind that the Land Appeal Court ordered that the claimants' claim for compensation be reheard in respect of the issue of further compensation based on the High Court decision in Marshall. As explained earlier, in that case the High Court was dealing with the interpretation of the provisions of s.20(1)(b) regarding "... the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective." (Marshall [20])
The parties have requested that I identify the "scheme". However, s.20(1) of the Acquisition of Land Act 1967 does not refer to a "scheme". Section 20(1)(b) refers to the exercise of any statutory powers by the constructing authority which injuriously affects the claimants' other land. The land was resumed for "transport purposes and incidental purposes". In Marshall the High Court did not consider the "scheme", but focused upon the purpose for which the land was taken. Indeed, McHugh J said at [45]:
"It seems natural to read the reference in that paragraph to 'the exercise of any statutory powers' by that authority as referring to the exercise of powers implementing the purpose for which the land was taken: Westaway v Landsborough Shire Council (1964) 31 QCLLR 1 at 16."
The same reasoning appears in the judgment of the majority at [34]:
"The acquisition of the land, the work done on it, and the use, passive or active, to which it is put in pursuance of a statutory purpose such as that involved here, will form part of the exercise of the relevant statutory power so as to give rise to a right to compensation for such injurious affection as is caused to remaining land by reason of the exercise of the power. If it were otherwise, the authority would have neither the need nor the legal right to acquire the land in question."
The parties submit that the "scheme" should be understood as being the same as the purpose referred to in s.20 of the Acquisition of Land Act. They also agree that the "scheme" is not the same as the "scheme" in the Pointe Gourde situation. However, the claimants suggest that the Pointe Gourde cases are of assistance in this matter. I cannot agree with that suggestion. The Pointe Gourde principle is concerned with the question of the value of the resumed land and that principle requires that any enhancement in value of that land, or in the reverse, any depreciation in the value of that land (Melwood Units Pty Ltd v Commissioner of Main Roads [1979] 1 AC 426), which occurs as a result of the "scheme" of which the resumption is part, must be ignored. In the present case, what arises for consideration is the question of injurious affection under s.20(1)(b) of the Act, which requires that regard be had to the damage, if any, caused by the exercise of the statutory powers by the constructing authority otherwise injuriously affecting other land of the claimants. Section 20(3) requires that any enhancement to the retained land from the carrying out of the works or purpose for which the land is taken, must be taken into consideration by way of set-off or abatement. The effect of Marshall requires the same exercise to be done when assessing injurious affection, whereas previously the exercise had been undertaken by considering at the exercise of powers only on the land which was taken.
In my view, the cases dealing with the Pointe Gourde principle are not directly applicable. Here it is the "purpose" and not the "scheme" which must be considered. The land was resumed for transport purposes and incidental purposes. The question is whether those purposes relate to the implementation of the SET project, upgrading the highway from six lanes to eight lanes, or whether there is a broader purpose which encompasses the previous upgrading of the highway from four lanes to six lanes, which was carried out between 1995 and 1997.
The claimants argue that the term "transport purposes and incidental purposes" is wide enough to encompass a single scheme or purpose, which is the upgrading of the Pacific Highway, which they contend, occurred in two stages. Although the first stage did not require the resumption of the claimants' land, the principles in Marshall require compensation for injurious affection to the balance lands because of the exercise of the statutory powers of the constructing authority. They claim that stage one of the project, the upgrading of the highway from four lanes to six lanes, caused loss by way of injurious affection. Although such losses occurred prior to the resumption of the claimants' land, such losses were recoverable under the principle in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111.
In my view, the principles determined by the Privy Council in Shun Fung are not applicable in this case. In Shun Fung there was no dispute about what constituted the scheme. It was well known that the claimant's land and the business thereon would be resumed to make way for the development of a new town. The claimant's business suffered as a result long before the land was resumed. The question before the Privy Council was whether the claimant was entitled to compensation for those business losses which occurred prior to the resumption of the land. In the event, the Privy Council found that a loss sustained after the identification of the scheme and prior to the resumption will not fail for lack of causal connection by reason only that the loss arose before the resumption, provided it arose in anticipation of the resumption and because of the threat which the resumption presented. In the present case, the Acquisition of Land Act presents a different statutory framework from that applicable in Shun Fung and there is a different question concerned with injurious affection, rather than disturbance or business losses by way of disturbance. While in Shun Fung the losses were clearly related to the anticipated resumption, in the present case there was no suggestion of resumption of the subject land until it was decided to undertake the eight laning project.
In support of their contention that there had long been corporate knowledge in the Department that six lanes would not be sufficient, the claimants rely on the memorandum of 11 September 1987 requesting planning layouts for the ultimate development of the South East Freeway to accommodate eight lanes. However, there is no evidence that this is any more than the view of a particular senior officer, or that this memorandum had any causal connection with the resumption of the claimants' land in 1999. The claimants also rely on the January 1992 report by Rankine & Hill Pty Ltd on the effects of an eight lane Pacific Highway on the operation of the South East Freeway. However, that report has no connection with the resumption. It was concerned with the capacity of the South East Freeway if eight lanes were constructed between the Gateway Arterial Road and Springwood. That is a different section of the highway. The claimants also rely on the plan which Mr Davis thought was prepared in 1995 and showed eight lanes of the Pacific Highway. However, Mr Davis was unable to identify anything in particular about the plan; it is undated and is marked "superseded by Plan No. 234798". No evidence was produced about that later plan.
The claimants further rely on the memorandum dated 8 July 1993 from the Regional Director to the Executive Director, recommending that priority be given to the six laning of the Pacific Highway as an interim measure. In my view, it does not matter what individual departmental officers thought about the ultimate development of the Pacific Highway. They did not influence the Cabinet decision made in early 1992 to upgrade the highway to six lanes and identify the route of part of the Eastern Corridor, with directions given to continue with further planning for that corridor.
The next critical decision was made in early 1996 following a change of Government. In fulfilment of an election promise, the Government abandoned the Eastern Corridor and directed the Department to commence planning for upgrading the highway to eight lanes. This was a different decision. In my view, the first decision is not related to the second decision. It is the second decision, the eight laning project, which caused the resumption of the claimants' land.
In support of their arguments, the claimants relied upon a number of principles which were applied and emphasised by the High Court in Marshall, including the following passages:
"The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provision should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute." (Gaudron J at para.38)
"No narrow view should be taken of what is incidental to the purpose for which the land was acquired. If part of a parcel of land is taken for road purposes, any damage caused to the residue in the course of constructing, paving, draining or making safe the road and its accessories will be injurious affection for the purpose of the paragraph [Section 20(1)(b) of the Acquisition of Land Act]." (McHugh J at para.45)
"No narrow view should be taken of what constitutes the exercise of a statutory power when the acts or omission of the constructing authority have resulted or will result in damage to the remaining land of the claimant. In particular, there is no scope for applying the principles that courts use in construing provisions that protect public authorities from the actions arising out of the exercise of statutory powers." (McHugh J at para.47)
"The legislation is intended to ensure that the person whose land has been taken is justly compensated. Such legislation should be construed with the presumption that the legislature intended the claimant to be liberally compensated." (McHugh J at para.48, citation omitted)
In my view these principles extracted from Marshall do not assist the claimants in identifying the project for which the land was resumed. In Marshall there was no such issue. Certainly those principles must be applied once the project resulting in the resumption of the claimants' land has been identified and the legislation given the widest possible interpretation. However, they do not assist in identifying the project itself.
The evidence clearly establishes that from the 1980s, officers of the Main Roads Department were considering a number of options for alleviating the traffic problems on the South East Freeway and Pacific Highway, including constructing an Eastern Corridor and upgrading the existing Pacific Highway by increasing the number of lanes. However, in my view, the Cabinet decision of 24 February 1992 resolved the matter with the decision to upgrade the Pacific Highway to a maximum of six lanes, adopting the route for an Eastern Corridor for the part of that road from the Beenleigh-Redland Bay Road to the Coomera River (as recommended by the Eastern Corridor Study) and incorporating that into the local authority strategic plans. Cabinet also decided that there be further detailed investigations into the Eastern Corridor.
The upgrading of the Pacific Highway to six lanes proceeded, with works being undertaken which would cater for no more than six lanes.
From the evidence of Mr Davis, it is clear that there was a view by some departmental officers as far back as 1987 that capacity in excess of six lanes would be required. However, the fact remains that in 1992 the Government adopted a project for the six laning of the Pacific Highway, with or without an Eastern Corridor road. There is no evidence from the documents tendered that the six laning project was the first stage of an eight laning project. It was not until there was a change of government in February 1996 that the Department was directed to commence planning for the upgrading of the Pacific Highway to eight lanes.
In my view there are two separate projects, the six laning project and the eight laning project. They are not part of a wider project to upgrade the Pacific Highway. Decisions to proceed with each project were made by different Governments at different times, approximately four years apart. It was the eight laning project which resulted in the resumption of the claimants' land.
My view in this regard is reinforced by the fact that so much of the infrastructure at the Beenleigh-Redland Bay Road interchange had to be demolished to make way for the eight laning project. In addition, the bridge over the underpass had to be widened under a separate contract to accommodate eight lanes. If the six laning project was the first stage of an ultimate eight laning of the highway, provision would have been made for the additional lanes.
Therefore, I am of the view that the project pursuant to which the claimants' land was resumed was the project to upgrade the Pacific Highway from six lanes to eight lanes. The project to upgrade the highway from four lanes to six lanes was a separate project and had no relevance to the resumption of the subject land.
Order:
For the purpose of rehearing the claimants' claim for further compensation, I determine that the purpose for which the claimants' land was resumed was the upgrading of the Pacific Highway from six lanes to eight lanes.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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