Porter v Hunters Hill Council

[2003] NSWLEC 179

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Reported Decision: (2003) 131 LGERA 144

Land and Environment Court

of New South Wales

CITATION:

Porter & Anor v Hunters Hill Council [2003] NSWLEC 179

PARTIES:

APPLICANTS
Graham William Porter and Meredith Ruth Porter

RESPONDENT
Hunters Hill Council

FILE NUMBER(S):

40313 of 2002

CORAM:

Pain J

KEY ISSUES:

Jurisdiction :- land compulsorily acquired pursuant to LEP by commencement of separate proceedings that are already concluded - Council refused to give Applicants a notice under s 42 of the Land Acquisition (Just Terms Compensation) Act 1991 - Applicants seek delivery by Council of a notice under s 42 in new Class 4 proceedings - jurisdiction of Court to hear and dispose of proceedings - whether jurisdiction arises because the obligation to pay compensation is inherent in the obligation to acquire - whether jurisdiction arises under s 24 of the Land and Environment Court Act 1979 - whether ancillary jurisdiction under s 16(1A) of Land and Environment Court Act 1979 can be invoked - proceedings dismissed

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 27
Hunters Hill Local Environmental Plan cl 24
Land Acquisition (Just Terms Compensation) Act 1991 s 4, s 5, s 7, s 11, s 12, s 13, s 14, s 15, s 19, s 20, s 28, s 37, s 39, s 41, s 42, s 43, s 44, s 47, s 55, s 66, s 67, s 68
Land and Environment Court Act 1979 s 16(1) , s 16(1A), s 19, s 20, s 24, s 25, s 31, s 32
Land and Environment Court Rules 1996 Pt 6 r 1
Local Government Act 1993 s 186
Supreme Court Rules 1970 Pt 8 r 8, Pt 13 r 5(1)

CASES CITED:

Davey v North Sydney Council [2002] NSWSC 662;
Duncan v Moore (1999) 103 LGERA 312;
McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238;
Mitchell v Waugh (1993) 82 LGERA 44;
N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248;
Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95;
Nelson v Ballina Shire Council (1993) 80 LGERA 271;
Nix and Dunn v Pittwater Council (1994) 84 LGERA 199;
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403;
Pittwater Municipal Council v Nix and Dunn (1993) 80 LGERA 385 at 387;
Scharer v State of New South Wales (2001) 53 NSWLR 299

DATES OF HEARING:

12/05/2003, 17/06/2003

DATE OF JUDGMENT:

08/13/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr JA Ayling SC
SOLICITORS
Philip Parbury & Associates

RESPONDENT
Mr P Clay (barrister)
SOLICITORS
Abbott Tout

VALUER-GENERAL
Ms H Roberts (solicitor) (12/05/2003)
Mr JB Maston (barrister) (17/06/2003)
SOLICITORS
Crown Solicitors Office

JUDGMENT:

21

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

40313 of 2003

Pain J

13 August 2003

GRAHAM WILLIAM PORTER AND MEREDITH RUTH PORTER

Applicants
v

HUNTERS HILL COUNCIL

Respondent

Judgment

Introduction

1. In 2000 the Applicants commenced proceedings in this Court in matter no. 40092 of 2000 seeking orders requiring Hunters Hill Council (the Council) to compulsorily acquire land owned by the Applicants known as Lot 31, DP 104062 at 16 Vernon Street, Hunters Hill (the land) pursuant to cl 24 of the Hunters Hill Local Environmental Plan (the LEP). Orders to that effect were made by the Court (by consent) on 29 August 2001, with further orders being made on 26 April 2002.

2. On 15 November 2002 the Council compulsorily acquired the land by publication in the Government Gazette. In February 2003 the Valuer-General (the VG) provided to the Council a document purporting to be a determination of compensation to be offered to the Applicants in the sum of $2,515,000. The Council has not given notice to the Applicants under s 42(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (the Just Terms Act) of the compulsory acquisition, the Applicants’ entitlement to compensation and the amount of compensation as determined by the VG.

3. On 21 March 2003 the Applicants commenced these Class 4 proceedings. The Applicants seek in their Class 4 Application:

An order that the respondent do within 72 hours of the making of this order deliver to the applicants a notice of acquisition pursuant to section 42 of the Land Acquisition (Just Terms Compensation) Act 1991 in respect of the land contained within Lot 31 Deposited Plan 104062 at Vernon Street, Hunters Hill, containing an offer to pay compensation determined by the Valuer-General

4. I note that the reference in the Applicants' Class 4 Application to the delivery of "a notice of acquisition pursuant to s 42" (emphasis added) of the Just Terms Act is incorrect and should refer to a notice of compensation.

5. The Council has filed a defence in these proceedings to the effect that it is not under an obligation to give notice under s 42 of the Just Terms Act on the basis that there has not been a proper valuation by the VG because the VG made errors of law in determining the valuation such that it is not a proper step in the statutory process.

6. On 12 May 2003 two Notices of Motion were heard by the Court. Firstly, the Council’s Notice of Motion dated 7 April 2003 seeking to join the VG as a party to the proceedings pursuant to Pt 8 r 8 of the Supreme Court Rules 1970 (SCR) (which applies pursuant to Pt 6 r 1(2) of the Land and Environment Court Rules 1996 (the Court Rules)). Secondly, the Applicants’ Notice of Motion dated 14 April 2003 seeking the following relief:

1. An order that the Court review the decision of the Registrar made on 27 March 2003 whereby the expedition of these proceedings was refused and the motion of the applicant seeking such expedition was dismissed.
2. An order that the points of defence filed by the respondent and dated 7 April 2003 be struck out on the ground that they disclose no defence and accordingly are an abuse of process.
3. Costs.

The VG appeared and made submissions in relation to these Notices of Motion.

7. After the hearing of these Notices of Motion the issue of whether this Court has jurisdiction to deal with the Applicant's Class 4 application was raised with the parties by me. It must be emphasised that the issue is not whether the Applicant can bring such a claim against the Respondent, but whether this Court or the Supreme Court of New South Wales is the correct court in which to do so. A Notice of Motion was filed by the Council on 13 June 2003 in the following terms:

Argument in relation to this jurisdictional point was heard on 17 June 2003. The VG also appeared and made submissions on that occasion.

8. If I find against the Applicants on the issue of jurisdiction it will be unnecessary to deal with the other Notices of Motion referred to in par 6. I will therefore deal with the issue of jurisdiction first. It is first necessary to set out the relevant statutory provisions in some detail.

Relevant statutory provisions
The Just Terms Act

9. Under s 4 “authority of the State” includes the Council. Section 5(1) provides “[t]his Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process”. Section 7(1) provides “[t]his Act does not empower an authority of the State to acquire land if it does not have the power (apart from this Act) to acquire the land”.

10. Sections 11 - 15 relate to the giving of notice to the owners of land by an authority of the State that intends to acquire land by compulsory process, particulars to be included in the notice, and completing the compulsory acquisition process as soon as practicable.

11. Section 19(1) provides that an authority of the State can compulsorily acquire land by notice published in the Gazette. Section 20 provides that when the acquisition notice is published in the Gazette the land described in the acquisition notice becomes vested in the relevant authority of the State. Part 2 Div 3 makes provision for owner initiated acquisition in certain circumstances. Section 28 (which is in Part 2 Div 3) provides:

(1) This Division does not affect any obligation of an authority of the State to acquire land as referred to in section 27 of the Environmental Planning and Assessment Act 1979.
(2) However, any such acquisition may be effected by compulsory process in accordance with this Division.

12. Section 37 of the Just Terms Act vests in the owner of an interest in land which is divested, extinguished or diminished by an acquisition notice the right to be paid compensation in accordance with Part 3 of the Just Terms Act. Section 39 requires a person who wants to claim compensation to lodge a claim with the authority of the State who is acquiring the land. Section 41(1) requires the authority of the State to give a copy of the claim to the VG. Section 42(1) provides:

An authority of the State which has compulsorily acquired land under this Act must, within 30 days after the publication of the acquisition notice, give the former owners of the land written notice of the compulsory acquisition, their entitlement to compensation and the amount of compensation offered (as determined by the Valuer-General).

13. The Just Terms Act was amended by the Land Acquisition (Just Terms Compensation) Amendment Act 1993 to insert s 42(8), which provides:

If a former owner of land has not been given a compensation notice as required by this section, the Valuer-General must, as soon as practicable after being requested to do so, give the former owner written notice of the amount of compensation to be offered to the former owner as determined by the Valuer-General. This subsection extends to a compulsory acquisition of land before the commencement of this subsection.

The purpose behind this amendment is set out in the Second Reading Speech as referred to in Davey v North Sydney Council [2002] NSWSC 662 at [21].

14. I note that although this subsection may have been enacted to help cure the very situation in which the Applicants find themselves, according to the Second Reading speech, as the Applicants' counsel noted, it is doubtful whether the wording of the section actually achieves that aim. It appears that the Applicants have accepted, by filing this Class 4 Application, that despite the insertion of s 42(8) it is still necessary for them to obtain a s 42 notice before the process of compensation under the Just Terms Act can proceed any further.

15. Section 43 provides:

A compensation notice given to a former owner of land must:
(a) be in the form prescribed by the regulations or (if there is no prescribed form) the form approved by the Minister, and
(b) notify the owner that the land has been compulsorily acquired, and
(c) state that the owner is entitled to compensation, and
(d) offer to pay a specified amount of compensation as determined by the Valuer-General and be accompanied by a form of deed of release and indemnity for completion if the offer is accepted, and
(e) inform the owner of the right to object to the amount offered.

16. Section 44(1) provides that a person entitled to compensation can accept the amount of compensation offered in the compensation notice. Section 47 provides “The Valuer-General is to determine the amount of compensation to be offered to a person under this Part.”

17. Part 3, Div 4 (ss 54 – 65) sets out provisions in relation to the determination of the amount of compensation.

18. Section 66(1) provides:

A person who has claimed compensation under this Part may, within 90 days after receiving a compensation notice, lodge with the Land and Environment Court an objection to the amount of compensation offered by the authority of the State.

19. If such an objection is lodged s 66(2) gives the Land and Environment Court power to hear and dispose of the person’s claim for compensation. Section 67(1) provides:

A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim.

Section 67(3) gives the Land and Environment Court power to hear and dispose of the person’s claim for compensation. Section 68 relates to the payment of compensation arising from proceedings before the Land and Environment Court.

20. Section 27 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) provides:

(1) Where an environmental planning instrument reserves land for use exclusively for a purpose referred to in section 26 (1) (c), that environmental planning instrument shall make provision for or with respect to the acquisition of that land by a public authority unless the land is owned by a public authority and is held by that public authority for that purpose.
(2) Nothing in this section shall be construed as authorising or requiring an environmental planning instrument to contain a provision empowering or purporting to empower the compulsory acquisition of land.

21. Section 186 of the Local Government Act 1993 provides:

(1) A council may acquire land (including an interest in land) for the purpose of exercising any of its functions.
(2) Without limiting subsection (1), a council may acquire:
(a) land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or …

22. Section 16(1) of the Land and Environment Court Act 1979 (the Court Act) provides “[t]he Court shall have the jurisdiction vested in it by or under this or any other Act”. Section 16(1A) the Court Act provides:

The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

23. Section 19 of the Court Act (which is in Part 3) provides:

The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of:
…
(e) claims for compensation by reason of the acquisition of land, referred to in Division 2, …

24. Part 3 Division 2 of the Court Act contains s 24 and s 25. Section 24 provides:

(1) If:
(a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 , Division 2 of Part 12 of the Roads Act 1993 or any other Act, and
(b) no agreement is reached between the claimant and the authority required to pay the compensation,
the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise.

(2) The Court shall, for the purpose of determining any such claim, give effect to any relevant provisions of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation.

25. Section 25(1) provides:

(1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled.

26. Section 20(1)(a) – (dh) gives the Court jurisdiction in Class 4 to hear and dispose of proceedings under certain specified Acts or sections of Acts. The Just Terms Act is not one of those specified Acts. Section 20(1)(e) gives the Court power to hear and dispose of proceedings referred to in s 20(2). Section 20(2) provides:

The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings:
(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,
(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and
(d) whether or not as provided by section 68 of the Supreme Court Act 1970 – to award damages for a breach of a development contract.

27. Section 20(3) defines a planning or environmental law for the purposes of s 20(2). Essentially it includes any of the Acts or parts of Acts there listed and any statutory instruments made under those Acts. The EP&A Act is listed as one of the Acts, and the Court’s jurisdiction therefore also extends to Local Environmental Plans made under the EP&A Act. The Just Terms Act is not listed as a planning or environmental law.

Issue: Should these proceedings be dismissed because the Court does not have jurisdiction to hear and dispose of the Applicants’ Class 4 Application?

28. The Applicants relied on three separate arguments as grounds to submit that the Court has jurisdiction to hear and dispose of their Class 4 Application. Firstly, that the obligation to pay compensation is inherent in the obligation to acquire, such that the Court has jurisdiction. Secondly, the Court has direct jurisdiction to deal with the matter pursuant to s 24 of the Court Act. Thirdly, jurisdiction arises under s 16(1A) of the Court Act. I will deal with each of these arguments in turn.

1. Does the Court have jurisdiction because the obligation to pay compensation is inherent in the obligation to acquire?
Applicants’ submissions

29. The land was acquired pursuant to s 28 of the Just Terms Act. This section provides a link to the EP&A Act. Section 28 states that it does not affect the obligation of the Council to acquire the land as required by s 27 of the EP&A Act, which in turn provides a link to the LEP. Correctly categorised, the proceedings do not only involve enforcement of the Council’s obligations under the Just Terms Act. The primary obligation the Council is seeking to avoid does not arise under the Just Terms Act, but under the EP&A Act or both Acts at the same time. That obligation arises from the operation of s 27 of the EP&A Act, which provides that where an environmental planning instrument reserves land for a public purpose (as was the case with the Applicants' land) the instrument must make provision for the acquisition of the land by the relevant public authority. The LEP complied with s 27.

30. Although there is no principle enshrined in the NSW Constitution that no person may be deprived of their property by the State or its agencies without compensation, there have always been statutory guarantees of the rights of the dispossessed, such as the Just Terms Act. Under common law principles the duty to compensate has always been seen as closely related to the power to resume.

31. The EP&A Act does not specifically mention the mechanism or process of assessment and payment of compensation when it refers to the obligation to acquire. It is a basic tenet of the law of statutory interpretation that the provisions of a statute be understood in such a way as to give them full force and effect. The mechanism of compulsory acquisition and the processes relating to compensation are irretrievably connected. The acquisition is not in any real sense over until the dispossessed person has been compensated. The true meaning and effect of s 27 of the EP&A Act is that the obligation to acquire includes the inherent obligation to pay compensation according to law. The two obligations cannot be treated as separate and distinct, arising under separate Acts. The duty to comply with the process relating to compensation is one imposed by a planning or environmental law (cl 24 of the LEP) and the enforcement of that duty is within the Court’s jurisdiction by virtue of s 20(2)(a) of the Court Act.

Council’s submissions

32. There was an obligation on the Council to acquire the land following the serving of the notice by the Applicants to acquire the land pursuant to cl 24 of the LEP. There were proceedings commenced and orders made for acquisition (see par 1). The obligation under cl 24 of the LEP has been perfected. The obligation created by s 42 of the Just Terms Act is separate and part of the compensation process. The statutory regime which commands the notice under s 42 is a separate statutory regime relating to compensation, it is not required by the LEP. There is separation between acquisition and compensation as a matter of law and fact. The Court has jurisdiction in relation to the acquisition under the LEP, but not to enforce the notice under s 42 of the Just Terms Act.

Valuer General’s submissions

33. The earlier proceedings in this Court (matter no 40092 of 2000: see par 1) were to enforce a right under the EP&A Act which arose out of the LEP. Those proceedings are at an end. Under s 19(1) of the Just Terms Act the Council was authorised to acquire the land. Under s 20(1) of the Just Terms Act on the date the acquisition notice is published in the Gazette the land is vested in the Council. At that date the Applicants had no interest in the land, but are given the right to compensation. The right to compensation was the only right possessed when the proceedings were commenced and this does not depend on the LEP or the EP&A Act. The only right to compensation is contained in the Just Terms Act.

Finding

34. Although it may be said as a matter of logic that compensation necessarily flows from acquisition, I am unable to accept that in this case any such link is sufficient to found the jurisdiction of the Court to hear and dispose of the Applicants’ Class 4 Application. This Court is a specialist Court and its jurisdiction is limited to that granted to it by the Court Act or any other Act that confers jurisdiction. Its powers cannot be widened beyond that which was envisaged by Parliament unless under s 16(1A) of the Court Act, which is addressed in issue 3. In this case, the Court has not explicitly been granted jurisdiction to deal with a claim under s 42 of the Just Terms Act either by s 20 of the Court Act, or any other section of the Court Act, the Just Terms Act or any other Act (I note here that in relation to issue 2, I reject the Applicants’ arguments that direct jurisdiction arises pursuant to s 24 of the Court Act: see par 47). The matters which the Just Terms Act grants jurisdiction to this Court to hear are limited: see ss 66, 67 and 68 of the Just Terms Act. The matters the Court Act grants jurisdiction for this Court to hear and dispose of, including claims for compensation by reason of the acquisition of land as referred to in ss 24 and 25 of the Court Act (see s 19(e)), are also limited.

35. Bearing in mind this limited jurisdiction the Applicant nevertheless seeks to argue that on a proper interpretation of s 27 of the EP&A Act the obligation to pay compensation is inherent in the obligation to acquire, such that the obligation to pay compensation arises from an environmental or planning law, namely cl 24 of the LEP, such as to satisfy s 20(2)(a) of the Court Act. I am unable to accept that the Applicants’ reliance on cl 24 of the LEP is sufficient to found jurisdiction in this Court in relation to ordering the delivery of a s 42 notice under the Just Terms Act. The LEP provides the right for the acquisition to occur. But that is where its function ends. The LEP itself provides no mechanism for compensation. The Parliament has set up a detailed statutory regime in relation to compensation which is to be found in the Just Terms Act and it is s 37 of the Just Terms Act which founds the right to compensation for a person whose land has been acquired, not cl 24 of the LEP.

36. The Applicants must fail in relation to this argument.

2. Does the Court have direct jurisdiction pursuant to s 24 of the Court Act?
Applicant’s submissions

37. Sections 19 – 21B of the Court Act ascribe particular matters within the Court’s jurisdiction to particular classes, i.e Classes 1 - 7. Section 24 of the Court Act is in more general terms. That section provides that if a claim is made for compensation because of a compulsory acquisition and no agreement is reached the claim is to be heard and disposed of by the Court.

38. The Court Act does not define “claim for compensation” and it should not be read as being limited to a formal claim for compensation under the Just Terms Act. In taking a purposive approach to the section it is clear that the intention of the legislature was that disputes in relation to the payment of compensation where a claim exists are to be made to the Land and Environment Court. Section 24(2) is a provision that allows the Court to deal with all aspects of compensation. A compensation notice is a necessary pre-requisite for the assessment required by s 66 of the Just Terms Act. That section provides that the Land and Environment Court is the proper forum for hearing an objection to compensation. However, it is not necessary to read s 66 and s 67 of the Just Terms Act and s 24 of the Court Act together such that s 24 is limited to a specific claim for compensation. Section 24 of the Court Act should not be read as being limited to matters arising out of ss 66 and 67 of the Just Terms Act. Neither refers to the other. If there are matters which do not fall within ss 66 and 67 but which fall within s 24 then the Court has jurisdiction.

39. Exhibit A is a letter from the Applicants' solicitor to the General Manager of the Council dated 12 March 2003. It notes the determination of compensation by the VG and the requirements of ss 42 and 43 of the Just Terms Act. It states the Applicants accept the amount of compensation determined by the VG. The letter in exhibit A is a clear indication of a claim made for compensation. As the Applicants have accepted the amount of compensation s 24(1)(a) of the Court Act is satisfied. As there is no agreement to pay compensation s 24(1)(b) is also met.

40. Nor does it matter that these are Class 4 proceedings rather than Class 3 proceedings. Section 32 of the Court Act provides:

Any step taken, order made, judgment given or other thing done in any proceedings in any Division shall be as valid in every way as if taken, made, given or done in the Division to which the proceedings are assigned by this Act.

Section 32 of the Court Act means that matters can be dealt with in more than one class.

41. The Applicants' counsel also referred the Court to s 31 of the Court Act to support this submission. Section 31 of the Court Act provides:

(1) The Court in a Division, on application by a party or of its own motion, may, on terms, order that the whole or any part of any proceedings in that Division be transferred to another Division.

(2) Proceedings may be retained in a Division whether or not the proceedings are assigned to that Division by this Act.

Council’s submissions

42. Section 16 of the Court Act provides that the Court has the jurisdiction the Court Act gives to it. Section 19 of the Court Act does more than assign certain matters to different classes of cases. Under s 19(e) of the Court Act the Court has jurisdiction in Class 3 to hear and dispose of “claims for compensation by reason of the acquisition of land, referred to in Division 2” (i.e. ss 24 and 25). The power under s 24 of the Court Act is restricted by the wording in s 24(2) to “…the assessment of compensation”. That is, if the claim is one for money the Court must assess it on the basis of relevant provisions in any Act. Section 25 refers to the Court having power to “determine the nature of the estate or interest … and the amount of compensation …”. The legislature has created the rights in ss 24 and 25 in Class 3, but it cannot be said to follow that these rights include the enforcement of obligations in reaching the point of compensation.

43. Section 32 of the Court Act is a provision which facilitates the making of orders where the proceedings are in the wrong division. Section 32 cannot be used as a separate jurisdictional basis for finding Class 4 proceedings arise out of s 24 of the Court Act. That is clear from the wording of s 32.

Valuer General’s submissions

44. For the Court to obtain jurisdiction under s 24 of the Court Act there must be firstly, a claim to be heard and disposed of by the Court, secondly, the claim must be for compensation and, thirdly, it must be under the Just Terms Act. The Applicants’ claim is not of that character, it is a claim for the Council to deliver a document, namely a s 42 notice under the Just Terms Act. It is a claim in the nature of mandamus, it is not a claim for compensation.

45. Furthermore, s 24(2) of the Court Act refers to “ … any such claim …”. Section 24(2) is not read if jurisdiction is not invoked under s 24(1). Furthermore, s 42 of the Just Terms Act is not a “relevant provisio[n] of any Acts that prescribe a basis for, or matters to be considered in, the assessment of compensation” as required by s 24(2). Those are dealt with in s 55 of the Just Terms Act and they are the only heads of compensation in the Just Terms Act: see McBaron v Roads and Traffic Authority of New South Wales (1995) 87 LGERA 238. Section 24 is therefore irrelevant.

46. In relation to ss 31 and 32 of the Court Act the VG submitted that those sections have as their objective and purpose the removal of the possibility of invalidity of steps taken in proceedings on the basis of an argument that those steps should have been taken in another class of matters in the Court. The provisions are in a division headed “organisation generally”.

Finding

47. It is important to consider the nature of the matter before the Court. The Applicant is seeking in its Class 4 Application an order that the Council deliver a compensation notice under s 42 of the Just Terms Act. As the Council and the VG submitted, the Applicant's Class 4 Application is not a claim for compensation. The purpose of the jurisdiction given to the Court by s 24 of the Court Act is clearly, when the section is read as a whole, to allow the Court to assess a monetary amount to be placed on a claim for compensation where no agreement is reached between the claimant and the authority. It does not extend, as the Applicants have submitted, to found jurisdiction for proceedings seeking the delivery of a compensation notice under s 42 of the Just Terms Act. I do not accept that the letter from the Applicants to the General Manager of the Council (exhibit A) is a "claim for compensation" within the meaning of s 24 of the Court Act.

48. Nor do I accept the Applicants' submission that s 32 of the Court Act can found jurisdiction in the Court for a Class 4 application such as in this case. I agree with the Council and VG's submissions on the scope of s 32 at par 43 and 46.

49. The Applicants must fail on this ground.

3. Does the Court have jurisdiction under s 16(1A) of the Court Act?
Applicant’s submissions

50. Section 16(1A) of the Court Act provides for the Court to have jurisdiction over ancillary matters (see par 22). The enforcement of the Council’s duty to respond to a request for acquisition is within the Court’s jurisdiction. Enforcement of the Council’s obligation to perform the whole of its duties in relation to compensation is a matter ancillary to the matter within the Court's jurisdiction. The payment of compensation is inseverable from acquisition. When the Court declares the Council bound to acquire, it declares the Council bound to compensate, even if it does not expressly do so. The right to compensation has no separate existence from the obligation to acquire: see N Stephenson Pty Ltd v Roads and Traffic Authority of New South Wales (1994) 83 LGERA 248 at 266.

51. Can the ancillary jurisdiction alone be relied on to take proceedings, or does there need to be a claim within jurisdiction to rely on s 16(1A) of the Court Act? The Applicants’ counsel conceded that there were authorities that suggest s 16(1A) affords jurisdiction in ancillary matters only where the Court is simultaneously and in the same proceeding determining a matter within its primary jurisdiction. In N Stephenson Talbot J stated at 265:

I agree with what Bannon J said in Mitchell v Waugh (1993) 82 LGERA 44 that before the Court may exercise jurisdiction pursuant to s 16(1A) it must be satisfied that there is a proceeding or matter before the Court which falls within jurisdiction.

52. The Applicants' counsel submitted that Talbot J may have moved slightly from that position in Duncan v Moore (1999) 103 LGERA 312 in recognition of the Gleeson CJ’s view in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 that s 16(1A) expands the Court's jurisdiction.

53. The Applicants’ counsel further submitted that most of the dicta to this effect were largely obiter and that the discussion of s 16(1A) to date has occurred in the context of a single set of proceedings. Section 16(1A) does not contain any words which import that kind of a constraint on jurisdiction and there is no reason to read them into the section. The test is simply whether the issue is ancillary to a matter within jurisdiction. “Matter” does not have the meaning it enjoys in the Federal context: Nelson v Ballina Shire Council (1993) 80 LGERA 271; Pittwater Municipal Council v Nix and Dunn (1993) 80 LGERA 385 at 387; Nix and Dunn v Pittwater Council. The Applicants submitted that in s 16(1A) “matter” means “thing” or “circumstances” giving rise to an issue between parties. It does not mean “claim” or “proceeding”.

54. The Applicant submitted that the Court therefore has jurisdiction in separate proceedings to make orders in relation to matters which are ancillary to matters within jurisdiction, even if the matter within jurisdiction was the subject of other proceedings which have been formally concluded without the ancillary matter being raised during their pendency. The Applicants’ counsel conceded that he could not find a decision to support this view and further that there are authorities to the contrary: see Mitchell v Waugh (1993) 82 LGERA 44. The Applicants’ counsel submitted these cases were not made in the context of provisions of the Court Act and not on the literal wording of s 16(1A) which does not require proceedings within jurisdiction to be before the Court.

Council’s submissions

55. In order to invoke the Court’s ancillary jurisdiction under s 16(1A) of the Court Act there must be some matter falling within the Court’s jurisdiction before the Court to which some other part of the case is ancillary. That is, there must be a matter within jurisdiction before the Court in this case. The obligation under s 42 of the Just Terms Act is not ancillary to anything under the LEP, it is an obligation under the Just Terms Act and the Land and Environment Court has no jurisdiction to determine the matter. The jurisdiction lies in the Supreme Court of New South Wales.

56. While the Applicant argued that if this Court did not have jurisdiction there could be three different sets of proceedings, one relating to acquisition, one relating to the issuing of a notice under s 42 of the Just Terms Act and one relating to the amount of compensation, each of these proceedings is independent. The fact that one proceeding may need to be taken in the Supreme Court rather than this Court does not change the necessity for the multiplicity of proceedings.

57. The VG referred the Court to a number of cases on the scope of s 16(1A). In Nix and Dunn v Pittwater Council Gleeson CJ (Priestly and Powell JJA agreeing) stated at 203:

…because the Land and Environment Court was set up as a specialist tribunal to exercise a limited statutory jurisdiction, it is inevitable that cases will arise from time to time in which a matter that falls within the jurisdiction of the court will be part only of a wider dispute or series of disputes. This may, on occasion, result in multiplicity of proceedings, but there is nothing unusual about it. It is the price to be paid for what are seen as the advantages of having such tribunals.

58. His Honour stated at 205:

In his Second Reading Speech, the minister introducing the amending legislation spoke of removing the necessity for “genuinely ancillary proceedings” to be removed to another court: (NSW, Legislative Assembly, Hansard , 11 March 1993, at 725).

The relationship between two matters referred to in s 16(1A) is clearly intended to be a narrower one than that of association. The relevant dictionary meanings given to “ancillary” are incidental, accessory, or auxiliary: Macquarie Dictionary …

59. In Scharer v State of New South Wales (2001) 53 NSWLR 299 the Court held that the equitable easement at issue in that case was one which was conferred by the National Parks and Wildlife Act 1974 and therefore s 20(2)(a) and (c) of the Court Act applied as the National Parks and Wildlife Act 1974 was defined as a planning or environmental law by s 20(3) for the purposes of s 20(2). The Appellant also sought damages for obstructing the right of way. Stein JA stated at 308:

Assuming for the moment that the Land and Environment Court does not have the power in these proceedings to award damages as part of the relief available to enforce the right, it seems to me that s 16(1A) fills the void. Damages are plainly ancillary to the matters which fall within jurisdiction; the existence of the right and its enforcement by injunctive orders or declaratory relief.

60. In N Stephenson Talbot J stated at 265:

Section 16(1A) was introduced to avoid multiplicity of proceedings in different courts to resolve issues between the same parties which are subordinate or subservient to a matter which falls within jurisdiction. The reference to a matter that is ancillary is intended to make it plain that the matter which is within jurisdiction relates to the primary dispute between the parties. In other words the jurisdiction conferred by s 16(1A) is in respect of matters which are subordinate to but arise in conjunction with the primary matter before the Court.

61. In Neighbourhood Association DP 285121 v Murray Shire Council (2001) 117 LGERA 95 Pearlman J held that in that case a claim for damages for negligence arising out of the installation of a sewerage system was framed as a general claim for damages in tort and was not ancillary to the applicant’s claim relating to breaches of a development contract, which was within the Court’s jurisdiction.

62. The VG relied on these cases to argue that there must first be a matter within jurisdiction before any reliance can be placed on s 16(1A) of the Court Act. The section refers to "jurisdiction to hear and dispose of any matter … being a matter that is ancillary to a matter …" and this colours the meaning of the word “matter”. It is referring to pending litigation in the Court. The VG submitted that in this case the Applicants’ claim is divorced from the Court Act, it is only founded on the Just Terms Act. The proceedings are therefore without jurisdiction.

Finding

63. I am unable to accept the Applicants’ submissions as to the proper interpretation of s 16(1A) of the Court Act. It may be true that the literal wording of s 16(1A) does not require a matter within jurisdiction to be before the Court, but to accept the argument the Applicants have put forward would be to ignore the very purpose which s 16(1A) is arguably intended to serve. Nor is the Applicants' interpretation supported by the case law. It is worth repeating what Talbot J stated in N Stephenson at 265, namely that “[s]ection 16(1A) was introduced to avoid multiplicity of proceedings in different courts to resolve issues between the same parties which are subordinate or subservient to a matter which falls within jurisdiction.” Before s 16(1A) can be invoked it is imperative that there must be a matter within jurisdiction in proceedings pending before the Court to which another matter in those same proceedings can be said to be ancillary. It must be remembered that this Court is a specialist tribunal of limited jurisdiction and to accept the Applicants’ argument would be to widen the jurisdiction of the Court beyond that intended by s 16(1A).

64. This view is supported by the case law relied on by the VG and set out at par 57 - 61. Further, in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 Pearlman J reviewed the relevant cases and set out four propositions at 412 - 413 which I adopt, particularly:

(c) Although s 16(1A) amplifies to some extent the jurisdiction of this Court (Nix v Pittwater Council), it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary (Nix v Pittwater Council). I respectfully adopt, in this connection, the statement of Talbot J in Duncan v Moore (at 319) that " … the matters brought within the Court's jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction".

(I note that although this decision was overturned on appeal to the Court of Appeal, no criticism was made of the above paragraph, it not being necessary to deal with the issue regarding s 16(1A): see Minister for Land and Water Conservation v NTL Australia Pty Ltd (2002) 122 LGERA 53).

65. Furthermore, in this case it cannot be said that there is any multiplicity of proceedings which could be saved if s 16(1A) were invoked. The acquisition proceedings are at an end and new proceedings must be taken in relation to this new issue which has arisen. It is simply a question of which court those proceedings must be commenced in, and the correct court is clearly the Supreme Court of New South Wales.

66. Accordingly, the Applicants also fail on this ground.

Final Comment

67. A final question to ask, unrelated to the above arguments, is have there been cases of this nature before the Supreme Court? In Davey v North Sydney Council Master McLaughlin appears to be dealing with circumstances very similar to those before me. The details of the Applicant's claim are not made clear in the judgment however, so that it is difficult to be conclusive based on that case. I note the plaintiff in Davey first commenced proceedings in this Court but then discontinued and commenced Supreme Court proceedings. No decision has been referred to me nor have I been able to find a case in which the jurisdiction of the Supreme Court of New South Wales to entertain an application of this nature has been challenged.

Dismissal of the proceedings

68. As the Applicants have failed on all three grounds they have been unable to show that this Court has jurisdiction to hear and dispose of their application. Accordingly, I am satisfied that the proceedings should be dismissed under Pt 13 r 5(1) of the SCR, which has been adopted by this Court pursuant to Pt 6 r 1(2) of the Court Rules.

The remaining Notices of Motion

69. There is no need to consider the remaining two Notices of Motion, namely the Council’s Notice of Motion for joinder of the VG and the Applicants’ Notice of Motion for expedition and strike out of the Council’s defence. I will formally dismiss those Notices of Motion but, recognising that in Class 4 proceedings costs usually follow the event, I note that no adverse conclusions should necessarily be drawn in relation to costs simply by the fact that the Notices of Motion have been dismissed.

70. As I have heard no submissions from the parties on costs, I will reserve the question of costs.

71. Accordingly, the Court orders that:

1. The Applicants’ Class 4 Application is dismissed pursuant to Pt 13 r 5(1) of the Supreme Court Rules 1970 as adopted by Pt 6 r 1(2) of the Land and Environment Court Rules 1996.

2. The Applicants’ Notice of Motion dated 14 April 2003 is dismissed.

3. The Respondent’s Notice of Motion dated 7 April 2003 is dismissed.

4. The question of costs is reserved.

5. The exhibits may be returned.