Re Noble

[1999] QSC 25

IN THE SUPREME COURT

OF QUEENSLAND  No. 8923 of 1998

Brisbane

[Re Noble]

IN THE MATTER of the Acquisition of Land Act of 1967

- and -

IN THE MATTER of the Southbank Corporation Act 1989

- and -

IN THE MATTER of the Transport Planning and Co-Ordination Act 1994

- and -

IN THE MATTER of an application by JOY ALISON NOBLE and GEOFFREY PAUL NOBLE as trustees pursuant to instrument no. 701454102 and THEO ELENIS and ANNA ELENIS

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 18 February 1999

CATCHWORDS:     RESUMPTION AND ACQUISITION OF LAND - STATUTORY CORPORATIONS - applicant sought declarations that the purported resumption of land was unlawful - whether the land can lawfully be used for the purpose for which it was resumed - whether the resuming authority (Crown) is bound by the Southbank Corporation Act.

Counsel:  Mr S. Doyle S.C. with him Ms D. Skennar for the applicant.

Mr G. Gibson Q.C. with him Mr S. McLeod for the respondent.

Solicitors:  James Walker for the applicant.

D.T. Dunphy for the respondent.

Hearing Date:              3 October 1998.
IN THE SUPREME COURT

OF QUEENSLAND  No. 8923 of 1998

Brisbane

IN THE MATTER of the Acquisition of Land Act of 1967

- and -

IN THE MATTER of the Southbank Corporation Act 1989

- and -

IN THE MATTER of the Transport Planning and Co-Ordination Act 1994

- and -

IN THE MATTER of an application by JOY ALISON NOBLE and GEOFFREY PAUL NOBLE as trustees pursuant to instrument no. 701454102 and THEO ELENIS and ANNA ELENIS

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 18 February 1999

1. The applicants seek declarations that the purported resumption of their land was unlawful.  The two applications can be disposed of without the need to distinguish between them;  the crucial issues are the same in each case.  The point in essence is that the land cannot lawfully be used for the purpose for which it was resumed, hence its resumption is unlawful.

2. The applicants’ land is situated in an area constituted as the Southbank Corporation Area pursuant to the provisions of the Southbank Corporation Act 1989. The Southbank Corporation is constituted by the Act. Its objects are “to promote, facilitate, carry out and control the development, disposal and management of land and other property within the ‘corporation area’ in order to ensure that such development accords with the highest possible standard and is in the best interests of the people of the City of Brisbane and of Queensland”; s.16. The corporation area is constituted by s.12 and the fourth schedule and roads are included in the corporation area.

3. By a proclamation gazetted on 12 June 1998, the Chief Executive, Department of Main Roads as constructing authority for the State of Queensland, purported to resume the applicants’ land “for transport purposes or for an incidental purpose”. 

4. The resumption relied on the provisions of the Transport Planning and Coordination Act 1994 and the Acquisition of Land Act 1967 . The Chief Executive may acquire land for transport and purposes incidental to that as agent of “the State”; ss.24 and 25 of the Transport Planning and Coordination Act.  The Chief Executive is a “constructing authority” under the Acquisition of Land Act; s.25(8) of the Transport Act.  The Acquisition of Land Act empowers a constructing authority to take land for an authorised or required purpose; s.5. The effect of the proclamation, if valid, was to vest the applicants’ land in the resuming entity and to convert their rights in respect of it to a right to claim compensation; the Acquisition of Land Act 1967, s.12.

5. The application proceeded before me on the basis that the resuming authority was bound by the Southbank Corporation Act and that the approved development plan precluded the resumed land being used for transport purposes so that a resumption for that purpose was not lawful;  Prentice v. Brisbane City Council[1]; MacDonald v. Railway Commissioners[2].  More specifically the case was argued on the basis that the Southbank Corporation Act bound the Crown with the consequence just stated.

   [1](1966) Qd.R. 394 at 405

   [2](1909) SALR 135

6. The Southbank Corporation’s functions include the production of such plans in relation to the corporation area as may be necessary to fulfil its objectives;  s.17(1) of its Act.  Sections 18 and 19 provide for the preparation and public exhibition of draft development plan, while s.20 provides for the preparation, approval and gazettal of development plans.  Once a plan is gazetted “all subsequent development of the corporation area shall be in accordance with the approved development plan”;  s.20(4). 

7. Section 22(1) of the Southbank Corporation Act is to the effect that the corporation is to plan, encourage, facilitate, carry out and regulate development within the corporation area in accordance with the approved development plan.  No development is to commence unless the provisions of s.22(2) have been complied with subject to an exception of no present relevance.  The provisions of s.22(2) include that the development has been approved in writing by the corporation to be in accordance with the approved development plan.  

8. For present purposes, broadly speaking, the approved development plan, both before and after an amendment of 16 January 1998, divides the corporation area into precincts.  The applicants’ land was and is in precinct 6.  The “preferred” and “other suitable” uses for the applicants’ land  includes the uses to which it is currently put but do not include transport or an incidental purpose; see the approved development plan cl.9.2.3.  Development may also include “other uses compatible with the intent of the precinct” cl.9.2.3.  The use for which the applicants’ land was resumed is not compatible with the intent expressed in cl.9.1 in respect of the land in precinct 6.

9. Clause 12 of the approved plan dealt with vehicular circulation and access and provides for a bus corridor.  An amendment effected on 16 January introduced a new precinct (essentially the former precinct 4, which previously was to be the subject of development to facilitate construction of a bus corridor to the satisfaction of the corporation).  There had been no determination by the corporation of the location of the proposed bus corridor so that the definition of “bus corridor” in the plan is not engaged; cl.13.3 read in conjunction with cl.12.3(d).  The amendment provided for the removal of the bus corridor and that public transport was an integral part of the “street spine” through the precinct essentially in the position of the original Grey Street.  The amendments did not affect the precinct in which the applicants’ land is situate and do not authorise development of any public transport corridor, transport or incidental purposes in or encroaching on that precinct. 

10. It is necessary to advert to some further provisions of the Southbank Corporation Act. The corporation, established by s.5 of the Act, represents the State (State is not defined), has all the privileges and immunities of the State and is an exempt public authority under the Corporations Law;  s.6.

11. Counsel for the respondent submitted that the term “the State” used in s.6 was intended to refer to a specific legal entity other than the Crown but acknowledged the difficulty in sustaining the submission in the light of the apparently indiscriminate use of terms such as the State, the Crown, the Crown in right of Queensland and Governor-in-Council scattered through the Southbank Corporation Act.  The point of the submissions was that the Southbank Corporation Act did not bind the Crown even if it caught the State and the Governor-in-Council.  The acknowledged difficulty is, in my view, compounded by the use of the State in the gazettal of the resumptions read in conjunction with the Transport Planning Act and the Acquisition of Land Act. 

12. In all probability “State” is to be regarded synonymous with the Crown in right of Queensland and is intended as a compendious reference comparable to a “general polity” of the kind referred to in s.75(iiii) of the Commonwealth Constitution c.f. State Bank of New South Wales v.  Commonwealth Savings Bank of Australia[3], Deputy Commissioner of Taxation v.  State Bank of New South Wales[4].  In any event it is unnecessary for present purposes to precisely delineate the contents of the phrase.

    [3] (1986) 161 CLR. 639 at 652

    [4] (1992) 174 CLR 219

13. Some of the other sections to which my attention was directed included the following.  By s.13 the Governor-in-Council is empowered to vest title or control of land in the corporation.  Sections 15E and 15F substitute the corporation for the State as party to the agreements there identified whether s.15G authorises the State to enter and occupy land owned by the corporation until the substitution is effected.

14. Pursuant to s.23 “in order to fulfil its objects and functions” the corporation may, with the prior approval of the Minister, deal with land in the corporation area including transfer or surrender to “the Crown right of Queensland” any land possessed by it within the corporation area; see also s.23(2). Section 24 allows the corporation to recommend to the Minister the permanent closure of a road subject to advertising and noticing provisions and the Minister may consider the recommendation and recommend it to the Governor-in-Council. The corporation is to pay the Crown compensation for the permanent closure of any road. Section 25 makes provision for the subdivision and amalgamation of land and opening of roads. The land dedicated to public use vests in the Crown. Section 29 provides that after publication of the approved development plan the corporation in consultation with the Brisbane City Council is to prepare a plan for traffic in the corporation area and negotiate an agreement with the Council for the necessary work. Finally it should be noted that s.39H of the Southbank Corporation Act provides to the effect that the Act prevails “to the greatest extent practicable” despite any inconsistency with any other Act. 

15. I mentioned earlier that the case was argued on the basis that the Southbank Corporation Act bound the Crown.  It is now recognised that a statute binds the Crown, if, construed in the context of permissible extrinsic aids, it discloses an intention to do so.  It is not necessary that the  intention be “manifest” from the terms of the statute or that its purpose be frustrated if the Crown is not bound.  Brophov. Western Australia[5] considering Bradken Consolidated Ltd v. Broken Hill Proprietary Co Ltd[6].  The application of the rule will vary according to circumstances and there seems little point in reviewing the cases exemplified by State Government Insurance Corporation v. Government Insurance Office of NSW[7].  That is not least because s.6 of the Southbank Corporation Act puts the corporation in the position of the State (Crown).

    [5](1990) 171 CLR 1

    [6](1966) 119 CLR 584

    [7](1991) 28 FCR 511

16. In the present case I have referred to sufficient of the features of the Southbank Corporation Act to illustrate it reflects a comprehensive scheme of control over land use, including for transport or incidental purposes, in the corporation area.  In this context ss.6 and 39H support the view that the corporation’s role is to the exclusion of any competing role including by other manifestations of the Crown or for other bodies with the benefits of Crown privileges or immunity.  For the reasons canvassed the applicants’ land cannot lawfully be used for the purposes for which it was resumed.  The applicants are entitled to the declarations they seek.