REID & DARMODY AND ACT PLANNING & LAND AUTHORITY
[2008] ACTAAT 6
•14 March 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:REID & DARMODY AND ACT PLANNING & LAND AUTHORITY [2008] ACTAAT 6 (14 MARCH 2008)
AT07/32
Catchwords: Land and planning – review of decision refusing to grant a further lease to lessees of land used for livestock saleyards – leases holding over as periodic tenants at expiration of fixed term of lease required to be “the holder of a lease” – use of extrinsic aids to interpretation of statute – consistency of lease purpose with National Capital Plan – consistency of lease purpose with Territory Plan – determination of term of new lease.
Australian Capital Territory (Planning and Land Management) Act 1988 (Cth), ss 11, 13, 29
Land (Planning and Environment) Act 1991, ss 8, 171A, 172
Lands Acquisition Act 1994
Leases Ordinance 1918
Leases (Commercial and Retail) Act 2001
Legislation Act 2001, ss 7, 138, 139, 140, 141, 142
Elrington v Judd [1964] NSWR 493
Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation and Canberra Centre Investments Pty Ltd [2006] ACTA 9 (2 June 2006)
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Refrigerated Express Lines v Australian Meat and Livestock Corp (1980) 29 ALR 333
Tribunal:Mr M H Peedom, President
Date:14 March 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/32
LAND AND PLANNING DIVISION )
RE: DAVID JAMES REID
& GREGORY JAMES
DARMODY
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
DECISION
Tribunal : Mr M H Peedom, President
Date : 14 March 2008
Decision :
The decision under review is set aside and substituted by a decision that the applicants be granted a further lease of Block 187 Jerrabomberra for the same purposes specified in clause 1(k) of the existing Crown lease of that land for a term of 20 years to begin on the day after the day the existing Crown lease is surrendered.
…………………………
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT07/32
LAND AND PLANNING DIVISION )
RE: DAVID JAMES REID
& GREGORY JAMES
DARMODY
Applicants
AND: ACT PLANNING &
LAND AUTHORITY
Respondent
REASONS FOR DECISION
14 March 2008 Mr M H Peedom, President
The decision under review
This is an application to review a decision made by a delegate of the respondent on 15 June 2007 pursuant to section 172(2) of the Land (Planning and Environment) Act 1991 (“the Land Act”). The decision was to refuse the grant to the applicants of a Crown lease of Block 187 Jerrabomberra (“the subject land”).
Background
2. On 17 February 1981 a Crown lease of the subject land was granted by the Commonwealth of Australia to Stanley Francis Reid and Noel James Reid pursuant to the provisions of the Leases Ordinance 1918. The leasehold interest in the land was transferred to the applicants on about 7 October 1998.
3. The grant of the Crown lease was expressed in the following terms:
TO HOLD unto the Lessee for a term commencing on the seventh day of February One thousand nine hundred and eighty one and terminating on the twenty sixth day of July One thousand nine hundred and ninety nine and thereafter quarterly SUBJECT to the conditions that the rate at which rent shall be payable therefore in respect of each five yearly period of the lease on and after the twenty seventh day of July One thousand nine hundred and eighty four may be determined by the Minister and subject to the covenants hereinafter contained TO BE USED by the Lessee for the purpose set forth in sub-clause (k) of Clause 1 of this lease YIELDING AND PAYING THEREFORE subject to the provisions of sub-clause (d) and (e) of Clause 3 of this lease –
(1)until the twenty sixth day of July One thousand nine hundred and eighty four rent at the rate of four hundred and sixty five dollars per annum
(2)during the balance of the said term for each succeeding period of five consecutive years the first of which periods commences on the twenty seventh day of July One thousand nine hundred and eighty four rent at the rate determined by the Minister for those periods by virtue of the provisions of Section 3AA of the said Ordinance.
payable quarterly in advance on the first days of January April July and October in each year the first of such payments being due on the execution of this lease.
4. The Crown lease required the subject land to be used “only for livestock saleyard purposes” (clause 1(k)).
5. Clause 2(a) of the Crown lease provided:
That subject to sub-clause (c) of Clause 3 of this lease the Lessee paying the rent and observing and performing the covenants on the part of the Lessee to be observed and performed shall quietly enjoy the land without interruption by the Commonwealth.
6. Clause 3(c) permitted the Commonwealth to withdraw whole or part of the subject land from the Crown lease if it was required for a Commonwealth purpose.
7. Clause 3(a) of the Crown lease provided for the Commonwealth to determine the Crown lease in the following terms:
That if –
(i)any rent shall be ninety days in arrears (whether such rent shall be legally demanded or not); or
(ii)the Lessee shall fail to observe or perform any of the covenants herein contained and on the part of the Lessee to be observed or performed; or
(iii)the Lessee shall commit a breach of Regulation 19 of the Leases Regulations 1929
the Commonwealth may by notice in writing to the Lessee determine this lease but without prejudice to any claim which the Commonwealth may have against the Lessee in respect of any breach of the covenants on the part of the Lessee to be observed or performed.
8. At the expiration of the fixed term specified in the Crown lease on 26 July 1999, the applicants remained in occupation of the subject land and paid rent in accordance with the terms of the Crown lease.
9. On 29 September 2005 the applicants, Mr D Reid and Mr W Gibbs, requested the grant of a 20 year lease of the subject land.
10. As the result of doubts evidently held by the respondent as to whether a Crown lease of the subject land could be granted in response to the request, legal advice was sought from the Government Solicitor who advised that, although the matter was not free from doubt, the provisions (to which reference is later made) of section 172 of the Land Act would override section 8 of the Land Act and the respondent could issue a Crown lease of the subject land to the Crown lessees permitting the use of livestock saleyards only.
11. After further consideration of the issue, the Government Solicitor advised the respondent on 16 August 2006 that, on balance, the preferred view was that the applicants were not the holders of a Crown lease of the subject land as required by section 172 of the Land Act and not, in that event, able to apply for a further Crown lease. On the basis of the advice the applicants’ representative was advised that a Crown lease would not be issued to them.
12. Following the provision of contrary legal advice by the applicants’ solicitors, the Government Solicitor was requested to consider the matter further. By letter dated 19 February 2007 the Government Solicitor advised that it adhered to its original view that the applicants were not the holder of a Crown lease and not, therefore, eligible for the further grant of Crown lease pursuant to section 172 of the Land Act.
13. On 8 March 2007 an officer of the respondent’s Leasing Section wrote to the applicants’ solicitors advising that the respondent was prepared to accept an application by them for a further Crown lease of the subject land.
14. On 21 March 2007 the applicants lodged an application with the respondent for the grant of a Crown lease for a 99 year term in lieu of a 20 year term as had been suggested by the respondent. They relied upon their significant investment in the subject land and, what they said, was the practice of the respondent in granting Crown leases for 99 year terms, noting that the Crown lease of an adjoining block had a 99 year term.
15. On 20 April 2007 the Leasing Section advised the applicants’ solicitors that it was reconsidering its position regarding the applicants’ eligibility for the grant of a Crown lease under section 172 and that the application had been put on hold.
16. In response to a request by the Leasing Section for further legal advice the Government Solicitor advised on 6 June 2007 that it adhered to its previous advice that the applicants were not eligible to be granted a further lease pursuant to section 172 of the Land Act.
17. Following receipt of that advice, the Leasing Section advised the applicants that the respondent could not progress the application for the grant of a Crown lease because the applicants were no longer the “holder” of a Crown lease for the purpose of either section 171A or 172 of the Land Act.
18. At the hearing of the appeal the applicants were represented by Mr S Balafoutis, of counsel and the respondent was represented by Mr C Erskine, of counsel.
19. The issues for resolution by the Tribunal that were identified by counsel for the parties and the conclusions reached by it in relation to them are as follows.
Are the applicants the holders of a lease of Territory land?
20. The requirement that the applicants must be the holder of a lease of Territory land to be eligible to apply for the grant of a further lease arises from the terms of section 172 of the Land Act which provides:
172 Grant of further leases for purposes other than
residential or rural
(1) This section applies if—
(a)the holder of a lease of territory land other than a residential lease or a rural lease applies to the planning and land authority for the grant of a further lease of the land for the same purposes; and
(b)neither the Territory nor the Commonwealth needs the land for a public purpose; and
(c) all rent due under the existing lease is paid; and
(d)the lessee pays the fee worked out under the determination under subsection (3); and
(e) the lessee surrenders the existing lease.
(2)The planning and land authority must grant the lessee a further lease of the land for the same purposes for a term not longer than 99 years to begin on the day after the day the existing lease is surrendered.
(3)The Minister may make a determination, in writing, for subsection (1) (d).
(4)If the term of a further lease granted under subsection (2) is not longer than the term of the existing lease, the fee payable under subsection (1) (d) must not be more than the cost of granting the lease.
(5) A determination under subsection (3) is a disallowable instrument.
21. The reason given by the decision-maker for refusing the grant of a lease of the subject land to the applicants was that “during the holding over/continued occupancy period by a Crown lessee” after the expiration of its fixed term component, the applicants were no longer the “holder” of the Crown lease.
22. In support of his submission that the applicants were the holders of a lease of Territory land, Mr Balafoutis relied upon the absence of any distinction drawn by the Crown lease in the application of its terms to its fixed and periodic components and to the absence of any provision terminating the application of those terms at the end of the fixed component. He also relied upon the decision of the New South Wales Supreme Court in Elrington v Judd [1964] NSWR 493. In that case Herron CJ considered a lease which provided for a fixed term of three years followed by a weekly tenancy. At page 494, Herron CJ stated:
The proviso has been described as a holding over clause. This, although not wholly a correct description of its true nature, aptly enough describes its effect…… The true position is that the respondent was the occupier under the registered lease. The proviso says that the tenancy shall continue, not that a new agreement for a tenancy shall be created. In other words, the tenancy created by the indenture continues.
23. Mr Erskine did not dispute that the statement referred to above in Elrington v Judd was a correct statement of the general law. Indeed, the statement of facts and contentions filed and served by the respondent expressly acknowledged that the applicants were the holder of a Crown lease of Territory land. He submitted, however, that the statement needed to be qualified in the Australian Capital Territory because the grant of a Crown lease was subject to statutory requirements. In particular, section 29(3) of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (“the PALM Act”) prevented the grant of a lease for a period in excess of 99 years, although he accepted that a periodic holding over under a lease following a fixed term would not, even if unspecified in the lease, extend the original lease for a period beyond 99 years.
24. Mr Erskine also contended that in enacting section 172 it was not the intention of the legislature to confer an entitlement to apply for the grant of a further lease upon a tenant holding over under an original lease despite the fact that the entitlement to hold over was conferred by the original lease.
25. In support of his submission Mr Erskine relied upon section 138 and section 139 of the Legislation Act 2001 (“the Legislation Act”) and extrinsic aids to the interpretation of section 172. Reference should also be made to section 140, 141 and 142 of the Legislation Act.
26. Sections 138, 139, 140, 141 and 142 of the Legislation Act are contained in Chapter 14 of that Act. The purpose and scope of Chapter 14 is described in section 137 as follows:
137 Purpose and scope of ch 14
(1)The purpose of this chapter is to provide guidance about the interpretation of Acts.
(2)This chapter is not intended to be a comprehensive statement of the law of interpretation applying to Acts.
(3)In particular, this chapter assumes that common law presumptions operate in conjunction with this chapter.
(4)Subsection (3) also applies to common law presumptions that come into existence after the commencement of this chapter.
27. Sections 138, 139, 140 and 141 provide as follows:
138 Meaning of working out the meaning of an Act
In this part:
working out the meaning of an Act means—
(a) resolving an ambiguous or obscure provision of the Act; or
(b) confirming or displacing the apparent meaning of the Act; or
(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or
(d) finding the meaning of the Act in any other case.
139 Interpretation best achieving Act’s purpose
(1)In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2)This section applies whether or not the Act’s purpose is expressly stated in the Act.
140 legislative context
In working out the meaning of an Act, the provisions of the Act
must be read in the context of the Act as a whole.
141 Non-legislative context generally
(1)In working out the meaning of an Act, material not forming part of the Act may be considered.
(2)In deciding whether material not forming part of an Act should be considered in working out the meaning of the Act, and the weight to be given to the material, the following matters must be taken into account:
(a)the desirability of being able to rely on the ordinary meaning of the Act, having regard to the purpose of the Act and the provisions of the Act read in the context of the Act as a whole;
(b)the undesirability of prolonging proceedings without compensating advantage;
(c) the accessibility of the material to the public.
(3)Subsection (2) does not limit the matters that may be taken into account.
(4)For subsection (2) (c), material in the register is taken to be accessible to the public.
28. Section 142 of the Legislation Act further provides that in working out the meaning of an Act certain specified materials may be considered. Those materials include:
4any explanatory statement (however described) for the bill that became the Act, or any other relevant document, that was presented to the Legislative Assembly before the Act was passed.
5the presentation speech made to the Legislative Assembly during the passage of the bill that became the Act.
29. Section 7(3) of the Legislation Act provides that a reference to an Act includes a reference to a provision of an Act. To the extent to which it is necessary to work out the meaning of section 172 of the Land Act, sections 138 to 142 of the Legislation Act should be applied.
30. Prior to the enactment of section 172 of the Land Act in its present form provision was made for application to be made for new leases to be granted during the last 30 years of a lease. In introducing the bill for the amendment to that provision the responsible Minister stated:
Sections 171 and 172 of the Act have been amended, and a new section 172A inserted, to provide for a simple and certain process for the granting of further leases at any time, rather than requiring the lease to be within the last 30 years of its original term ……..
31. The respondent relied on the absence in the Explanatory Memorandum of any reference to a tenant holding over as an indication that it was never the intention of the legislature to allow such a tenant to apply for a further lease. To determine otherwise would, in the respondent’s submission, require termination of a periodic tenancy in accordance with the terms of the Crown lease (for example, for failing to pay rent or abide by the lease covenants) rather than giving notice within the period of the periodic tenancy, in this case, one quarter’s notice. It would also give the tenant the option of applying for a new lease even though notice of termination had been given. Such results, it was contended, would involve a radical transformation of the holding-over relationship that was never intended.
32. In support of the submissions made on behalf of the respondent, Mr Erskine relied upon the decision of the Court of Appeal in Kingsley’s Chicken Pty Ltd v Queensland Investment Corporation and Canberra Centre Investments Pty Ltd [2006] ACTA 9 (2 June 2006). The court in that case was concerned to determine the meaning of the words “offer” and “acceptance” in the context of the Leases (Commercial and Retail) Act 2001. It concluded that the words should be given their ordinary English language usage rather than be read in the formal contractual or technical legal sense.
33. In arriving at their decision in that case, their Honours observed that “whatever the common law of statutory interpretation, the ACT Legislative Assembly has made clear in the Legislation Act 2001 ……… that legislative intention must be given a primary role in working out the meaning of an Act”.
34. The Court of Appeal identified a clear purpose of the Act concerned in that case was to regulate and modify the common law of landlord and tenant in relation to retail and commercial leases, and that the modifications extended from the negotiating phase of the relations between lessor and lessee through to the form of final executed lease. It followed that if the words under consideration were to be read in the formal contractual sense the Act would have limited application. Their Honours also identified a provision of the Act that would be rendered entirely meaningless and otiose if the words were given their formal contractual meaning.
35. The Court of Appeal also relied upon parliamentary debates that occurred in the context which sought to address statutory modifications of the common law of landlord and tenant in the context of commercial and retail leases. They considered that the entire debate was conducted on the basis that a specific provision of the Act was intended to be operative during negotiations conducted prior to the conclusion of a formal contract. This made it clear in the view of the court that the Legislative Assembly intended the term “offer” to be understood in the context of an opening of negotiations. A contrary interpretation would, the court considered, substantially subvert the legislative intent.
36. The application of the provisions of the Legislation Act to which reference has been made above to section 172 of the Land Act leave the position, in my opinion, far less clear than was the case in Kingsley’s Chicken. In discerning the purpose of section 172 of the Land Act in the context of the history of its enactment, the respondent relied not on an expression in the Explanatory Memorandum of a positive objective of section 172 with which the interpretation for which the applicants contend would be inconsistent, as was the case in Kingsley’s Chicken, but upon the absence of any specific reference in the Explanatory Memorandum to a tenant holding over. It is to be noted, however, that the explanation given in the Explanatory Memorandum does not, by its terms, indicate an intention to confine the rights confined by section 172 to holders of leases for a fixed term. The language used is capable of reference to both. In my opinion, the language used in the Explanatory Memorandum is capable of being understood as referring to any Crown lease, whether it be for a fixed or periodic term and does not provide a strong basis for conclusion that it relates only to the former. The Explanatory Memorandum is also expressed in terms not only of removing an existing restriction but of conferring an entitlement without restriction.
37. Unlike Kingsley’s Chicken no clear purpose of the legislation has been identified which would be frustrated by the interpretation for which the applicants contend. Nor, subject to what follows in relation to the effect of the Territory Plan, was any other provision of the Land Act identified which would be in conflict with such an interpretation or rendered otiose.
38. Even were the Tribunal to accept that such an interpretation would give rise to the potential consequences referred to in paragraph 31 above, the alternative interpretation would also give rise to other consequences which were unlikely to have been intended. If section 172 was confined to the grant of a further lease to the lessee for a fixed term clause 1(g) of the Crown lease in this case would have required the applicants to remove all fixtures, erections and improvements from the subject land at the expiration of the fixed term of the Crown lease despite their continued lawful occupation and entitlement to quiet enjoyment of the subject land for a purpose that would require them to be retained. Clause 3(b) would, on that interpretation, not operate to permit the Commonwealth to enter and inspect the land during the periodic component. Such consequences would obviously not have been intended.
39. It is significant also, in my view, that unlike the situation in Kingsley’s Chicken where there were identified and accepted alternative interpretations of the terms in question, in this case there is no such suggestion. The words of section 172 that fall to be interpreted are quite clear in their meaning. There is, therefore, no ambiguity or obscurity that is required to be resolved. Nor is there difficulty in finding their meaning. Either interpretation may give rise to unintended results. In determining whether the apparent meaning of the expression should be displaced, it seems to me that the Explanatory Memorandum which is relied upon as justification for such an outcome provides an inadequate basis for doing so. Further, the impediment to commercial dealing created by the confusion and uncertainty of the correct interpretation of section 172 supports, in my view, the desirability of being able to rely upon the ordinary meaning of the provision.
The National Capital Plan
40. Section 11(2) of the PALM Act requires that the Territory and the Territory Executive not “do any act inconsistent with” the National Capital Plan. Section 11(2) therefore operates to prevent the Executive from granting a lease if the lease would authorise the use of the subject land for a purpose not permitted by the National Capital Plan.
41. Section 11(2) is subject to section 13 of the PALM Act. It provides:
Where, immediately before the Plan comes into effect, it would be lawful to use any land in a particular way in the exercise of a right derived from an estate in that land, the Plan does not prevent the use of that land in that way during the term of that estate.
42. While section 13 would operate to authorise the use of land in accordance with the existing Crown lease even were such use not authorised by the National Capital Plan, it would not operate to authorise such use pursuant to a new lease because a new lease would not be granted “immediately before the (National Capital) Plan comes into effect”.
43. Under the National Capital Plan the subject land is zoned as “Broadacre”. Chapter 5 of the National Capital Plan specifies a number of permitted uses for land so zoned. It was not disputed by the applicants that the use of the subject land permitted by the existing Crown lease, that is, a livestock saleyard, was not one of the uses permitted by Chapter 5. However, the applicants relied upon a provision of the National Capital Plan that authorises the National Capital Authority (“the NCA”) to agree in writing to other uses and an email communication received by the applicants’ solicitors which purported to signify such agreement.
44. At page 7 of the National Capital Plan it is stated that:
The Plan sets out a wide range of permitted land uses for each Land Use Category. The use of land for a purpose not included in the specified range may be permitted where the Authority has been consulted and, after satisfying itself that a particular proposal is not inconsistent with relevant Principles and Policies of the Plan, has given its agreement in writing.
45. In an email message dated 9 October 2007 addressed to a Principal Planner, Planning and Urban Design at the NCA advice was sought by the applicants’ solicitors as to the attitude of the NCA to the grant of a further lease over the subject land to permit the applicants to continue using it for livestock saleyard purposes. The email drew attention to the statement in the National Capital Plan set out in paragraph 44 above.
46. The principal planner responded by email dated 19 October 2007. She noted that it was her understanding that use of the land for a livestock saleyard was an existing use which had been operating on the land since 1981. She noted that the land was subject to the Broadacre Areas land use policy in the National Capital Plan and that the range of uses listed as permitted within Broadacre Areas did not include livestock saleyard. She acknowledged that the National Capital Plan allowed the NCA to permit the use of land for a purpose not included in the specified range of uses and stated further that, based on the information provided to her, the use of the land as a saleyard would appear to meet the relevant policies of the National Capital Plan.
47. In January the applicants’ solicitors contacted the NCA to seek further clarification of the advice as set out in the 19 October 2007 email. On 22 January 2008 the solicitors sent an email to Mr Harrison at the NCA providing him with a copy of the 9 and 19 October 2007 email correspondence. The solicitors requested that the NCA put its position in relation to the use of the land for a livestock saleyard in writing in a form that addressed the wording set out on page 7 of the National Capital Plan under the heading “Elements of the Plan”.
48. On 11 January 2008 the applicants’ solicitor received a telephone call from Todd Rohl, Managing Director, Planning & Urban Design at the NCA. Mr Rohl advised that Mr Harrison had passed on to him the email dated 22 January 2008. On 5 February 2008 Mr Rohl sent an email confirming that it was the NCA’s view that, “….the use of Block 187 Jerrabomberra for ‘livestock saleyard’ purposes, although not specified in the range of permitted land uses for the applicable Broadacre Areas, is permitted under the Plan on the basis that, the National Capital Authority is satisfied that the use of that land for that purpose is not inconsistent with the relevant Principles and Policies of the Plan. Accordingly, the NCA would support the use of the land for that purpose”.
49. Although the respondent did not dispute the authority of the NCA to provide the authorisation necessary to permit the subject land to be used for the purpose of a livestock saleyard, it was submitted that it had not been established that Mr Rohl was exercising the powers of the NCA as its delegate. It was submitted that Mr Rohl’s email was not in reality a formal written response to a formal application made to it and it was not clear that the email purported to be a formal exercise of statutory powers of the NCA.
50. Although the initial request from the applicants’ solicitors to the NCA was expressed merely as a request to indicate its preparedness to review a submission that its agreement be provided to the use of the subject land as a livestock saleyard, the response given by Mr Harrison dated 22 January 2008 is, in my view, sufficiently clearly expressed as the provision of written agreement to such a land use. Further, Mr Harrison’s email is expressed in terms which establish that the agreement provided had followed upon the NCA satisfying itself that there would be no inconsistency with the relevant principles and policies of the NCA.
51. In the circumstances, I consider that the Tribunal should rely upon the presumption of regularity as explained by McHugh JA in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 and assume that the agreement given by Mr Harrison on behalf of the NCA was duly authorised and that its agreement has been properly given.
The Territory Plan
52. Section 8 of the Land Act provides that a Territory authority must not do an act that would be inconsistent with the Territory Plan.
53. Under the Territory Plan the subject land is zoned as “Broadacre”. The applicants did not dispute the respondent’s contention that the uses specified as permitted within such a zone did not include use as a livestock saleyard.
54. In the circumstances of this case the grant of a lease only for the same purpose as that authorised by the existing lease would contravene section 8 of the Land Act. A question remains, therefore, as to how the apparent conflict between section 8, which would prevent the grant of a further lease to the applicants, and section 172 of the Land Act, which I have concluded would authorise such a grant is to be resolved.
55. It is a principle of interpretation of legislation that the provisions of general application give way to specific provisions. The principle applies where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter (see Refrigerated Express Lines v Australian Meat and Livestock Corp (1980) 29 ALR 333 at 347).
56. In the application of the principle there is sometimes difficulty in deciding which is the general and which is the specific provision. The applicant submitted that section 172 was the specific provision. The respondent submitted that although the matter was not free from doubt, it agreed and had taken the view in the past, based on legal advice, that section 172 prevails.
57. In my opinion, section 8 of the Land Act is a provision of general application which does not attempt to identify or anticipate every situation in which it might apply and section 172 establishes a particular regime for the grant of a further lease to the holder of an existing lease. Accordingly, section 8 does not operate to prevent the grant of a new lease to the applicant in the circumstances of this case.
The term of the lease
58. The applicants submitted that any lease granted in response to their application should be for a term of 99 years. In support of their submission they relied upon the evidence of Mr Reid that the applicants had expended significant time and money in the business operated from the subject land and on improvements and upkeep of it. The works included significant concreting, erecting steel cattle yards, erecting loading ramps and installing cattle weighing scales. The business was the full time occupation and livelihood of the applicants. The applicants also relied upon the fact that the respondent had granted a lease for 99 years commencing on 17 August 2004 to the lessees of a block adjoining the subject land.
59. Evidence was given on behalf of the respondent at the hearing of the appeal by Mr P Isaks, a transport specialist employed by the Territory. Mr Isaks said that an arterial road connection intended to link the Kings Highway with Canberra Avenue and Pialligo was proposed to meet the longterm transport needs of the Territory and to minimize traffic effects on internal roads in Queanbeyan. He said that because of existing land uses considerable negotiation would be required to establish the practicality of the link and there were significant environmental issues to be addressed.
60. The route alignment for the link which had been identified for a future northern arterial bypass of Queanbeyan bisected the subject land. The area of the subject land likely to be required was in the order of 70m but could be 100m which would probably result in withdrawal of between one half and two thirds of the subject land.
61. Mr Isaks said that the timing of the development of the Queanbeyan bypass was unclear but it was unlikely to be constructed in 20 years’ time, assuming the current population growth for the Territory and Queanbeyan remained at current levels. The future road may not be required for 30 years but much of the subject land was expected to be required for the future road works.
62. In response to Mr Isaks’ concerns the applicants submitted that the Lands Acquisition Act 1994 provided a mechanism for the acquisition of land in the ACT which could be used by the lessor to obtain control of the subject land. The applicants also proposed that any new lease of the subject land to the applicants contain a condition that allowed withdrawal of a specified part of the subject land after a period of 20 years from the commencement of the lease if required for a purpose of the Commonwealth or the respondent for an approved purpose.
63. I accept the submission made on behalf of the respondent that, having regard to Mr Isaks’ evidence the subject land, or a substantial part of it, is likely to be required for construction of a bypass road within the next 20 to 30 years and that the capacity of the Territory to resume the land when required for such a public purpose should be protected.
64. I consider that the term of the Crown lease should be 20 years. That period of duration would enable a more accurate assessment at or near its expiration of the requirement for the subject land to be available for a bypass to be provided. It is also similar to, but in excess of, the period of the fixed term of the existing lease and by reference to which term the applicants would have made their various investment decisions regarding improvements to the subject land. The land adjoining the subject land said to be the subject of a lease for 99 years does not appear to be subject to the arterial bypass proposal.
Conclusion
65. I conclude that section 172(2) of the Land Act requires the respondent to issue the applicants a further lease of the subject land for the same purposes as the existing lease and that the term of the lease should be for a period of 20 years to begin on the day after the day the existing lease is surrendered.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT07/32
APPLICANTS: DAVID JAMES REID & GREGORY JAMES DARMODY
RESPONDENT: ACT PLANNING & LAND AUTHORITY
PARTIES JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR S BALAFOUTIS
RESPONDENT: MR C ERSKINE
PARTIES JOINED:
SOLICITORS: APPLICANT: MALLESONS STEPHEN JAQUES
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 27 FEBRUARY 2008 PLACE: CANBERRA
DATE OF DECISION: 14 MARCH 2008 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0