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

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.
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.
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”.
The resumption relied on the provisions of the Transport Planning and Coordination Act 1994 and the Acquisition of Land Act 1967 . The Chief…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Noble

Details

AGLC: Re Noble [1999] QSC 25
Case: [1999] QSC 25
Decision Date: 18 February 1999

CaseChat Overview and Summary

The applicants, Joy Alison Noble and Geoffrey Paul Noble, as trustees, along with Theo Elenis and Anna Elenis, sought declarations that the resumption of their land by the Crown was unlawful. The land in question was situated within the Southbank Corporation Area, as defined by the Southbank Corporation Act 1989. The Chief Executive of the Department of Main Roads, acting on behalf of the State of Queensland, purported to resume the land for transport purposes under the Transport Planning and Coordination Act 1994 and the Acquisition of Land Act 1967. The applicants argued that the resumption was unlawful because the land could not be lawfully used for the specified purpose, given the constraints imposed by the Southbank Corporation Act.

The primary legal issues revolved around whether the Southbank Corporation Act bound the Crown and, if so, whether it precluded the use of the applicants' land for transport purposes. The applicants contended that the approved development plan within the Southbank Corporation Act did not permit the use of the land for transport purposes, rendering the resumption unlawful. The court had to determine if the Southbank Corporation Act imposed restrictions on the Crown's ability to resume the land for transport purposes and if these restrictions were enforceable against the Crown.

The court examined the language and provisions of the Southbank Corporation Act, including sections that established the corporation's comprehensive control over land use within the corporation area. The court noted that the corporation, acting as the State, had the exclusive authority to regulate development in the area. The approved development plan specifically excluded transport purposes for the applicants' land, further reinforcing the argument that the land could not be used for the purpose of the resumption. The court found that the Southbank Corporation Act did indeed bind the Crown, and the provisions of the Act precluded the use of the applicants' land for the purpose of the resumption. Consequently, the court held that the resumption of the applicants' land was unlawful.

The court granted the declarations sought by the applicants, confirming that the resumption of their land was unlawful. The court found that the Southbank Corporation Act's comprehensive scheme for land use control within the corporation area effectively bound the Crown, and the approved development plan did not permit the use of the applicants' land for transport purposes.

Orders