Roads and Maritime Services v Desane Properties Pty Ltd

[2018] NSWCA 196

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196

Hearing dates:

28 and 29 June, 3 July 2018

Date of orders:

06 September 2018

Decision date:

06 September 2018

Before:

Bathurst CJ, Ward JA, Payne JA

Decision:

(1)   Appeal allowed.
(2)   Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders:
(a)   Summons and Further Amended Commercial List Statement be dismissed.
(b)   The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed.
(3)   The respondent to pay the costs of the appellant of the appeal as agreed or assessed.

Catchwords:

PUBLIC LAW – compulsory acquisition of property – issue of proposed acquisition notice – whether proposed acquisition notice complied with legislative requirements – Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – whether compliance with procedural requirements an essential pre-condition to the validity of acquisition – whether proposed acquisition notice was non-compliant with form approved by Minister – whether substantial compliance with approved form was sufficient – Interpretation Act 1987 (NSW), s 80(1) – whether approved form was consistent with empowering Act – whether Act required proposed acquisition notice to state the public purpose of acquisition

 

PUBLIC LAW – compulsory acquisition of property – whether land was sought to be acquired for an improper purpose – Roads Act 1993 (NSW), s 177(1) – whether purpose assessed at time of acquisition or time of notice

 

STATUTORY INTERPRETATION – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 11, 15, 33, 39, 69

  CIVIL PROCEDURE – court of appeal – cross-appeals – whether to grant injunction restraining issue of proposed acquisition notice in circumstances where notice not invalid

Legislation Cited:

Constitution (Cth), s 51(xxxi)
Interpretation Act 1987 (NSW), ss 5(2), 80(1)
Lands Acquisition Act 1955 (Cth)
Lands Acquisition Act 1989 (Cth)
Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3, 4, 5, 7, 7B, 10A, 11, 12, 13, 14, 15, 16, 19, 20, 31, 33, 36, 37, 39, 41, 42, 47, 54, 55, 56, 60, 69
Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW)
Local Government Act 1993 (NSW)
Mining Act 1978 (WA), ss 74, 74A, 75, 116
Mining Amendment Act 2012 (WA)
Public Works Act 1912 (NSW), s 42
Roads Act 1993 (NSW), s 177
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7
Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Campbell v Municipal Council of Sydney (1923) 24 SR (NSW) 179
CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365; [1965] HCA 55
Clunies-Ross v Commonwealth (1984) 155 CLR 193; [1984] HCA 65
Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520
Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23
Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32
Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43
Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39
Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep)
Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38
Montreal Street Railway Co v Normandin [1917] AC 170
Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37
Municipal Council of Sydney v Campbell [1925] AC 338
Nicholas v Western Australia [1972] WAR 168
Ousley v The Queen (1997) 192 CLR 69; [1997] HCA 49
Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; [2012] HCA 46
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Toohey (1981) 151 CLR 170
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678
Simpson v Attorney-General [1955] NZLR 271
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
The Baptist Union of NSW v Georges River Council [2017] NSWSC 347
Tolson v RMS [2014] NSWCA 161
Truth About Motorways Pty Ltd v Macquarie Infrastructure investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11
X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57

Texts Cited:

Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (6th ed, 2016, LawBook Co)

Category:

Principal judgment

Parties:

Roads and Maritime Services (Appellant/Cross-Respondent)
Desane Properties Pty Ltd (Respondent/Cross-Appellant)

Representation:

Counsel:

 

Mr N Hutley SC / Mr S Kanagaratnam / Mr S Hartford Davis (Appellant/Cross-Respondent)
Mr R Merkel QC / Mr D Pritchard SC / Mr D Krochmalik (Respondent/Cross-Appellant)

 

Solicitors:

  Crown Solicitor’s Office (Appellant/Cross-Respondent)
Levitt Robinson Solicitors (Respondent/Cross-Appellant)

File Number(s):

2018/161676 (Appeal) / 2018/174176 (Cross-Appeal)

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 553

Date of Decision:

01 May 2018

Before:

Hammerschlag J

File Number(s):

2017/243774

Headnote

[This headnote is not to be read as part of the judgment]

In 2012 the NSW Government announced the WestConnex project, one of the largest integrated transport and urban revitalisation projects in Australia. WestConnex was divided into various stages including, relevantly, Stage 3B. Stage 3B involves the construction of an underground interchange at Rozelle (known as the Rozelle Interchange) and a connection to a future harbour crossing (known as the Western Harbour Tunnel).

Since at least 2015, Roads and Maritime Services, the appellant, had identified that acquisition of privately-owned properties covering the area of the proposed Rozelle Interchange project, including a property owned by Desane Properties Pty Ltd, the respondent, would be required for the construction of the Rozelle Interchange and Western Harbour Tunnel.

On 21 July 2016, the NSW Government publicly announced that following the completion of the construction work for the underground Rozelle Interchange, the area over the Interchange would provide up to 10 hectares of new parkland and open space. The area proposed to be transformed into parkland and open space included the area occupied by the respondent’s property.

On 26 May 2017, following a negotiation period, the appellant issued the respondent a Proposed Acquisition Notice (‘PAN’) in order to begin the compulsory acquisition process under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). While the PAN and accompanying compensation form reflected the information in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW), they departed in some respects from the form for such notices which had been approved by the Minister pursuant to s 15(a) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (‘Approved Form’).

The respondent challenged the PAN, claiming that it was invalid for failure to comply with the Approved Form. The respondent also claimed that the appellant was actuated by an improper purpose in issuing the PAN because it sought to acquire the property for meeting the NSW Government’s commitment to parkland and open space irrespective of whether the Rozelle Interchange project proceeded. The respondent also sought an injunction preventing the appellant from acting on the PAN.

The primary judge found that the PAN was invalid because it departed from the Approved Form in material respects, in circumstances where the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) required strict compliance with its procedural requirements. Further, the primary judge found that compliance with the procedural requirements of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) was a necessary precondition to the exercise of the appellant’s power compulsorily to acquire property.

The primary judge found that the Approved Form departed from the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (which had been amended in 2016) to the extent that it was inconsistent with the Act, and thereby could not validly invoke the machinery of the Act. The primary judge further found that, by means of statutory implication, s 15 of the Act requires that a valid PAN state the particular public purpose for which the subject land is proposed to be acquired, and that the PAN issued by the appellant failed to meet this requirement.

Finally, the primary judge found that the appellant was actuated by an improper purpose at the time it issued the PAN because it would not have issued the PAN but for the desire to provide open space and parkland.

The primary judge thus found for the respondent but refused to grant the injunctive relief sought by the respondent (that being put in issue by the appellant’s cross-appeal).

On appeal the issues were:

(i) Whether the primary judge erred in finding that the PAN was invalid for lack of compliance with the Approved Form and that compliance was a necessary precondition for a lawful acquisition;

(ii) Whether the primary judge erred in finding that the Approved Form could no longer invoke the machinery of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the 2016 amendment to the Act;

(iii)   Whether the primary judge erred in finding that the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) required that the PAN strictly comply with the Approved Form;

(iv) Whether the primary judge erred in finding that the PAN did not substantially comply with the Approved Form;

(v)   Whether the primary judge erred in finding that there was a requirement that the PAN state the public purpose for which the acquisition was sought;

(vi)   Whether the primary judge erred in finding that the appellant was actuated by an improper purpose in issuing the PAN.

The respondent cross-appealed. The issue on the cross-appeal was:

(vii)   Whether injunctive relief restraining the appellant from acting on the PAN should be granted in the event that the PAN was not invalid but still unlawful.   

The Court (Bathurst CJ, Ward JA, Payne JA) held, allowing the appeal and dismissing the cross-appeal:

In relation to issue (i),

The PAN was not invalid. As a matter of construction, the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) as a whole evinces an intention that failure to comply with the provisions of Part 2 of the Act does not go to the validity of a PAN: [206]-[224]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 10A, 11, 12, 13(1), 14(3), 15, 16(1), (3), 17, 19, 31, 33, 42, 69; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38; ASIC v DB Management Pty Ltd (2000) 199 CLR 321; [2000] HCA 7; Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39; Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep); Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 applied.

Clunies-Ross v Commonwealth (1984) 155 CLR 193; [1984] HCA 65; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12; Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; [1995] HCA 23; Federal Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 distinguished.

In relation to issue (ii),

The Approved Form did not cease to be able validly to invoke the machinery of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the 2016 amendment to the Act. On its proper construction, s 15(a) of the Land Acquisition (Just Terms Compensation Act 1991 (NSW) does not require that any Approved Form precisely adopt the language of the Act at the date of the issue of a PAN or lead to the conclusion that any difference between the language in an Approved Form and the Act give rise to invalidity of the Approved Form: [249]-[254]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 15(a) applied.

In relation to issue (iii),

The PAN was not required strictly to comply with the Approved Form. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (in particular see ss 16(1), 33 and 69), does not evince an intention that strict compliance is necessary. It follows that s 80(1) of the Interpretation Act 1987 (NSW) applies to make it sufficient that the PAN substantially complied with the Approved Form: [225]-[230]

Interpretation Act 1987 (NSW), ss 5(2), 80(1); Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 16(1), 33, 69; Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 applied.

In relation to issue (iv),

The PAN substantially complied with the Approved Form. The reference to “the disadvantage resulting from relocation” in the PAN was an accurate statement about a statutory entitlement which entitlement was materially the same as the repealed concept of “solatium” referred to in the Approved Form. One was merely the Latin cognate of the English phrase: [233]-[243]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 37, 55, 60; Tolson v RMS [2014] NSWCA 161 applied.

The identification of a period of “within 45 days” for the giving of a compensation offer referred to in the PAN was a legally correct statement about the obligation imposed on an authority of the State by s 42(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and encompassed the period identified in the Approved Form of “generally within” 30 days: [244]-[248]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 42(1), (4) applied.

In relation to issue (v),

There was no requirement for a valid PAN to state the public purpose for which acquisition was sought. There is nothing in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) requiring the implication of such a requirement because the legislative scheme facilitates the provision to the owner of land to whom a PAN is issued of much more information than a bare statement of the public purpose: [255]-[277]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 3(1)(c), 10A, 47, 54, 55, 56; Public Works Act 1912 (NSW), s 42; Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 applied.

Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 considered.

Municipal Council of Sydney v Campbell [1925] AC 338; Campbell v Municipal Council of Sydney (1923) 24 SR (NSW) 179; Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43 distinguished.

In any event, the covering letter accompanying the PAN clearly identified the public purpose of the proposed acquisition: [278]-[280]

Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 applied.

In relation to issue (vi),

The appellant was not actuated by an improper purpose. The critical time for assessing purpose is not at the time the PAN is issued but at the time the power to acquire is exercised, being at the time of acquisition: [299]-[300]

Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 5, 7; Roads Act 1993 (NSW), s 177(1) applied.

The appellant was not actuated by an improper purpose at the time the PAN was issued. The totality of the evidence, including the documentary evidence of the “guiding minds” of the appellant, was that the respondent’s property would be used as a site for the construction of the Rozelle Interchange, including the Western Harbour Tunnel enabling works. While there remained uncertainty as to how the land would be used within the envelope of a construction site, there was no uncertainty that it would be used as part of a construction site and no need to identify the specific use with precision at the time the PAN was issued. The legitimacy of this purpose was not invalidated because there was a risk, inherent in every large-scale construction project, that the purpose may not at some future point be realised. To the extent that the appellant contemplated use of the property for open space and parkland, this was not until after the construction would be concluded and did not mean that the appellant was actuated by an improper purpose: [301]-[311]

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 applied.

In relation to issue (vii),

The issue of the grant of injunctive relief does not arise in circumstances where the PAN substantially complied with the Approved Form and was thus not unlawful: [291]

In any event, the court would exercise its discretion to refuse injunctive relief in circumstances where the PAN provided legally accurate information about the respondent’s rights under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW): [292]-[295]

Judgment

1. THE COURT: This case involves an application for declaratory relief and relief under s 69 of the Supreme Court Act 1970 (NSW) challenging the validity of a Proposed Acquisition Notice (“PAN”) issued under s 11 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) in relation to the proposed compulsory acquisition, for the purposes of the WestConnex project, of commercial property held by the respondent at 68-72 Lilyfield Road, Rozelle (“the Desane property”).

2. WestConnex is the name given to six motorway projects that together are proposed to link Sydney’s West and South-West with the Sydney Airport and Port Botany precincts. WestConnex comprises three stages. Stages 1 and 2 are not presently relevant. Stage 3 of WestConnex is sometimes referred to as the M4-M5 Link Project. It comprises two sub-stages. Stage 3A involves the construction of a “mainline” tunnel connecting the new part of the M4 motorway at Haberfield (part of Stage 1) to the proposed interchange at St Peters (part of Stage 2). Stage 3B, critical to these proceedings, is the proposed Rozelle Interchange.

3. Stage 3B involves the construction of an interchange of underground tunnels and the construction of road connections allowing traffic, including that passing through the mainline tunnel, to connect with Victoria Road, the City West Link, the Anzac Bridge and the M4 and M5 motorways as extended under Stages 1 and 2. It is also intended to provide a point of connection to a proposed future harbour crossing described as the Western Harbour Tunnel (“WHT”), which will provide a link to the northern beaches, the Western Harbour Tunnel Beaches Link (“WHTBL”). The proposed Rozelle Interchange will be an engineering endeavour of exceptional complexity.

4. At the time of the hearing before the primary judge, planning approval was being sought for Stage 3. There was no final design for Stage 3. A Concept Design for Stage 3 was issued in May 2017. The proposed structure of WestConnex is shown in the following figure which forms part of the May 2017 Concept Design.

Figure 1 – Proposed structure of WestConnex project

5. To understand this case and the arguments advanced on this appeal it is necessary to set out in some detail the development of the WestConnex project.

6. In 2012, Infrastructure NSW, a NSW Government body tasked with assisting the NSW Government in identifying and prioritising the delivery of critical public infrastructure for NSW, published a document entitled “‘First things First’, State Infrastructure Strategy 2012 to 2032”. Relevantly, that document provided (at p 77):

“New road capacity is urgently required to meet the challenge of population growth and substantial increases in freight volumes. In addition, new roads will relieve legacy arterial roads such as Parramatta Road, Pennant Hills Road and the Princes Highway, and permit urban regeneration in these areas.

The most pressing investment needs occur on the M4 and M5 corridors because of their importance for the freight and business transport task; connecting Global Sydney and the international gateways with the industries and residential areas in the West and South-West.

Infrastructure NSW has developed a scheme called WestConnex, which it proposes as Sydney’s next motorway project. WestConnex integrates the M4 extension towards the Airport with an expansion of the M5 East. This new tollroad is proposed to be delivered in stages over the next ten years.”

7. In September 2013, the “WestConnex Business Case Executive Summary” document stated that “WestConnex is the largest integrated transport and urban revitalisation project in Australia”.

8. In November 2015, the “WestConnex Updated Strategic Business Case” document explained that:

“WestConnex was a recommendation of Infrastructure NSW in October 2012, with Government adopting the concept in the 2012 State Infrastructure Strategy and the NSW Long Term Transport Master Plan.

This was followed by the development of a business case, which was approved by Government in August 2013. An Executive Summary of that business case was publicly released.

This Updated Strategic Business Case consolidates the work undertaken in the original business case, with the significant modelling, analysis and scope enhancements completed in the past 24 months.”

9. The November 2015 document provides the following description of Stage 3:

“Tunnels connecting to the M4 East and New M5 via Rozelle and Camperdown. Includes ramps connecting to the St Peters Interchange and an interchange at Rozelle with provision for a future connection to the Western Harbour Tunnel and Beaches Link.”

10. The November 2015 document also contained a reference design for the Rozelle Interchange. It was explained that:

“[t]he reference design shows the Rozelle Interchange will be within the disused freight yard beside the City West Link. The design of the interchange is intended to facilitate future urban renewal of the Rozelle Goods Yard as part of the broader Bays Precinct Transformation and has been developed in consultation with UrbanGrowth NSW. The Rozelle Interchange also allows the future connection of a Western Harbour Tunnel and Beaches Link directly to WestConnex.”

11. The reference design for the Rozelle Interchange contained in the Updated Strategic Business Case indicated that the Rozelle Interchange would occupy the land of the Desane property.

12. The November 2015 document recorded that, in delivering a project the scale of WestConnex:

“there is an inevitable need for the acquisition of property. The extensive use of tunnelling means that property requirements are significantly reduced when compared to ... largely above ground infrastructure project. However, land for tunnel portals and ramps, interchanges, and construction facilities [is] required.”

13. Pausing there, it is to be noted that although the precise usage has changed over time, as and from at least November 2015, the Desane property has been part of the footprint of land required for acquisition for tunnel portals and ramps, interchanges, and construction facilities as part of the proposed Rozelle Interchange.

14. In January 2016, the “WestConnex M4-M5 Link State Significant Infrastructure Application Report” prepared by the appellant, Roads and Maritime Services (“RMS”), identified, relevantly, that there was to be a “new road interchange at Rozelle at the disused Rozelle Rail yard, to provide connections to and from the M4-M5 Link with City West Link, Victoria Road and the Anzac Bridge intersection”. The report also identified the need for “[t]emporary construction ancillary facilities and temporary works to facilitate the construction of the project”.

15. The January 2016 report also made clear that the project would require ancillary facilities during construction, including but not limited to: construction compounds, sedimentation basins, concrete batching plant, pre-cast yards and stockpiles. In determining the size and location of the construction ancillary facilities, existing land use activities, potential environmental impacts and amenity impacts on the surrounding community would be taken into account. At a minimum, construction ancillary facilities would be required close to the portals to provide tunnelling support. The location and size of the ancillary construction facilities would be developed as part of determining the preferred project design and would be assessed in the environmental impact statement for the project.

16. A map contained in the January 2016 report identified the Desane property as part of the Rozelle Rail Yards necessary for the Rozelle Interchange. The Rozelle Rail Yards (including the Desane property) are shaded in orange:

Figure 2 – Map depicting Rozelle Rail Yards

17. On 23 March 2016, a Memorandum of Understanding was signed between RMS and Sydney Motorway Corporation (“SMC”), the entity then responsible for development of WestConnex. The Memorandum of Understanding provided (at p 4) that RMS and SMC would:

“…work together to identify any land requirements that are ‘strategic’ in nature – that is, will be required under any plausible scenario for the delivery of Stage 3. RMS may seek Government approval to commence the acquisition process for ‘strategic’ land in 2016/17.”

18. As and from this time the term “strategic” was used by RMS and SMC to refer to land required for acquisition under any plausible scenario for the delivery of Stage 3 of WestConnex. Although the precise proposed use changed over time, the Desane property was identified by RMS at all relevant times as being a “strategic” land acquisition.

19. On 24 March 2016, a briefing note prepared by Mr Peter Jones of SMC, the Project Director of the M4-M5 Link Project, identified the Rozelle Goods Yard as a strategic land acquisition. The Rozelle Goods Yard proposal comprised, amongst other elements, the acquisition of private commercial properties including the Desane property. Attachment A to the briefing note contained a Property Acquisition Map which clearly includes the Desane property.

20. On 1 April 2016, Mr Ken Kanofski, the Chief Executive Officer of RMS, sent a briefing note to the Minister for Roads, Maritime and Freight. The topic of the briefing note was:

“Endorsement of the WestConnex M4-M5 Link – Strategic Property requirements at Rozelle for the 27 April Expenditure Review Committee (ERC) meeting.”

21. The briefing note identified an acceleration of Stage 3 of WestConnex, which brought forward proposed property acquisitions in Rozelle by approximately 18 months. The submission sought approval for the transfer of freehold title of lands required for the Rozelle Interchange from NSW Government agencies to RMS, including the Rozelle Goods Yard, and the acquisition of commercial and industrial properties on the south side of Lilyfield Road. The Desane property was specifically identified as a property proposed to be acquired as it was “required for the Rozelle interchange”.

22. On 18 April 2016, the Minister for Roads, Maritime and Freight made a submission to the NSW Cabinet seeking approval and funding to acquire, inter alia, the Desane property. The submission stated that acquisition of the Desane property was recommended by RMS on the following grounds:

“[d]esign development by RMS indicates that there is no feasible scenario for providing connectivity for the Western Harbour Tunnel other than by use of this land.

Experience at the St Peters Interchange indicates the desirability of integrated construction of the interchange in order to minimise community disruption and optimise value for money.

It is expected that the land will be fully utilised for construction purposes as one means of minimising impacts on other land (eg Glebe Island/White Bay).”

23. Cabinet was told that “RMS and SMC agree that these properties are required for the efficient construction of the interchange, including provision for the Western Harbour Tunnel”.

24. On 25 May 2016, a memorandum from Mr Doug Parris of RMS, Director of Motorway Development Projects, to the RMS property acquisition team stated that on 27 April 2016, the Expenditure Review Committee of the NSW Cabinet had approved a number of initiatives including funding for property acquisitions required for works that needed to be undertaken as part of WestConnex Stage 3 at Rozelle. The Desane property was specifically identified as one of the “M4-M5 link Property Requirements”. The negotiation of the transfer of freehold title of land required for the Rozelle Interchange included land to be acquired by RMS from various NSW Government agencies, including Sydney Harbour Foreshore Authority, Newcastle Port Corporation and Rail Corporation New South Wales.

25. On 31 May 2016, a letter was sent by RMS to Mr Jones of SMC identifying properties to be acquired “for the core site of the proposed Rozelle interchange”, which included the Desane property. The letter explained that RMS wished to maintain flexibility for the construction of the WHT, either in parallel with or subsequent to the M4-M5 Link. Accordingly, RMS envisaged that a “Permanent Access Arrangement” would make allowance for the WHT contractor to have suitable land access at any point after 1 January 2019. Appendix A included a map of the relevant properties. The Desane property is shown in yellow (next to the blue block) in the top right hand corner of the Rozelle Goods Yard, which is the area bordered in red.

Figure 3 – Map of properties to be acquired for the Rozelle Interchange

26. On 21 July 2016, a public announcement was made by the NSW Government which was of some importance in the proceedings before the primary judge. The essence of the announcement was that the Rozelle Interchange would largely be built underground and that, following completion of the road works, “the majority of the interchange [would] be grassed over with a new large park and returned to the community”. The announcement began by providing that:

“[a] large stretch of new parkland will provide significant green space for Sydney’s inner west and an underground connection will be built to take traffic off congested Victoria Road, under the new details of the concept design for the WestConnex interchange at Rozelle.”

27. The then-Premier, Mr Baird, and Minister for Roads, Maritime and Freight, Mr Gay, were quoted as saying that:

“…the interchange…will be built largely under the disused former Rozelle Rail Yards. This will allow for the majority of the interchange to be grassed over with a new large park and returned to the community.”

28. Mr Baird was also quoted as saying that:

“[u]p to 10 hectares of new parkland will connect Annandale and Rozelle via pedestrian and cycle links and also provide a green link between Easton Park and Bicentennial Park.”

29. Importantly, an artist’s impression of the parkland was included in the press release. The Desane property formed part of the proposed parkland shown in the artist’s sketch as shown below.

Figure 4 – Artist’s impression of parkland

30. The precise meaning and effect of this public announcement was at the heart of the proceedings below. It is a subject which must be examined on appeal, particularly in relation to the question of whether RMS was motivated by an improper purpose in seeking to acquire the Desane property.

31. On 26 July 2016, an email from Ms Jane Drummond of RMS provided that the NSW Cabinet had:

“approved the M4-M5 Link tunnel realignment and revised underground Rozelle Interchange that will deliver around 10 hectares in a ‘park ready’ solution over the top of the road infrastructure at the western half of the Rozelle site…”.

32. On 27 July 2016, a meeting was held between representatives of Desane and RMS. Desane’s note of the meeting records that RMS told those present that “the site would be used for truck access, warehousing, office or concrete batch plant during construction”.

33. On 16 August 2016, Mr Tony Dixon of RMS, Property Interface Manager, sent an email to Ms Beverly Magpayo of RMS, Project Manager for the WestConnex Delivery Interface. That email recorded a conversation with Mr Matthew Brooke of WestConnex concerning the Desane property, confirming that “the property is required for the Project. The requirement, while not yet fully detailed, is expected to be for permanent infrastructure”. The email concluded by “[n]oting again that design is not yet finalised, the expectation is that the land will be used to site access ramps as well as a connection between the M4-M5 Link and the planned HarbourLink project”.

34. On 23 August 2016, RMS wrote to Desane outlining a proposal to commence negotiations to acquire the Desane property. RMS offered to arrange a qualified valuer to inspect the property to prepare a valuation report. RMS offered to reimburse Desane $7,000 (or a larger amount “if you think your valuation fees may be more than $7,000”) to obtain its own report from a qualified valuer.

35. On 25 August 2016, Desane Group Holdings Limited, Desane’s holding company, made an ASX announcement that said, relevantly:

“On 21 July 2016, the NSW State Government announced changes through the media to the WestConnex M4-M5 Link with a proposed new 1.1km tunnel under Victoria Road and a new motorway interchange at Rozelle, planned to allow motorists to connect to and from the new toll-road to the Anzac Bridge and Victoria Road to be built underground to allow surface parkland on top.”

36. The artist’s impression of the parkland contained in the NSW Government Announcement (Figure 4) was attached to the ASX release.

37. On 15 December 2016, SMC made a presentation to RMS which contained “Rozelle Interchange Interim Reference Design” maps showing tunnelling running underneath the Desane property.

38. To summarise the evidence to this point, and as senior counsel for Desane accepted in oral argument in this Court, in all relevant iterations of the Rozelle Interchange project the Desane property was proposed to be used, at least in part, for a proper purpose, being a purpose authorised by the Roads Act 1993 (NSW) (“Roads Act”).

39. Desane’s complaint was rather that the proposed use of the Desane property changed over time. Desane submitted that the changing nature of the proposed use, when compared to what Desane described as the NSW Government’s fixed intention to build 10 hectares of new parkland, gave rise to an inference that RMS would not have sought to acquire the Desane property except for the purpose of building that parkland.

40. In March 2017, RMS published an addendum to the State Significant Infrastructure Application Report. Figure 2 of the addendum depicted the Desane property as being on the surface of the M4-M5 Link area of interest.

41. On 31 March 2017, RMS sent a briefing paper, signed by Mr Kanofski, to the Minister for Roads, Maritime and Freight addressing the topic of the “upcoming compulsory acquisition of properties required for the WestConnex M4-M5 Link Project Western Harbour Tunnel Beaches Link (“WHTBL”) and Rozelle Rail Yard site management”. The briefing paper informed the Minister that the Desane property was “required” for the M4-M5 Link and that RMS was complying with its statutory obligations under the Just Terms Act by making genuine attempts for at least six months to obtain the land by agreement. The briefing paper also stated that:

“…[t]o ensure timely completion of property acquisitions to facilitate the start of construction works immediately after receipt of planning approval, Roads and Maritime has commenced the acquisition process (in late 2016), advising owners and tenants about Roads and Maritime’s intention to acquire their property.”

42. On 3 April 2017, an internal RMS memorandum from Mr Ismet Huseyin, Technical Lead for the WHTBL, to Mr Doug Parris, the WHTBL Deputy Project Director, reported that:

“[e]stablishment of a major construction site in the RRY [Rozelle Rail Yard] is critical to the construction strategy and programme for the WHT and has several key advantages, including reduction in private property impacts and construction programme benefits. A suitably sized site at this location will also provide flexibility for alternate tunnelling methodologies should these be presented by tenders.”

43. On 13 April 2017, RMS informed Desane that if a binding agreement was not reached within 21 days RMS would recommend that Desane be given a PAN, thereby beginning the compulsory acquisition process under the Just Terms Act.

44. On 3 May 2017, a Minute Paper for the Executive Council signed by the Minister for Roads, Maritime and Freight stated that:

“I recommend for the approval of His Excellency the Governor, with the advice of the Executive Council, that the land described in the schedule to the attached notice intended to be published in the Gazette be declared by Roads and Maritime Services to be acquired by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Roads Act 1993.”

45. An Explanatory Note was attached to the Minute Paper. The note is a critical document in these proceedings. The joint co-author of the note was Ms Karen Durie, Manager of Compulsory Acquisition and Road Dedication within RMS. The explanatory note stated:

“In connection with the programmed construction of the WestConnex Stage 3 M4-M5 Motorway Link at Rozelle, it is necessary to acquire Lot 1 Deposited Plan 746891 shown coloured pink on the attached copy of that plan.

Lot 1 comprises a tenanted commercial complex with parking, known as 68-72 Lilyfield Road, Rozelle, owned by Desane Properties Pty Limited.

Roads and Maritime Services (RMS) commenced purchase negotiations with the owner in August 2016 and the tenants in February 2017, and gave an offer to the owner in February 2017. The owner has not submitted an asking price. RMS has not given offers to any of the 11 tenants and intends to exclude their interests from this compulsory acquisition whilst negotiations to acquire their interests by agreement continue.

RMS’ road works program requires possession of the land by March 2018. Accordingly, to ensure that the land is available when required, RMS told the owner on 13 April 2017 that, if a binding agreement was not reached within 21 days, RMS would recommend that it be given a proposed acquisition notice. A binding agreement has not been reached and, although negotiations are continuing, there is no assurance that timely agreement will be reached.

In these circumstances, the process for compulsory acquisition of land requires the Minister to sign an Executive Council minute for referral to the Governor for approval to compulsorily acquire the land. When approved, the landowner is notified that the land will be compulsorily acquired after 90 days if negotiated settlement is not reached. On completion of the 90 day period, the notice of acquisition of the land is published in the Government Gazette if compulsory acquisition is still required.”

46. The Minute Paper was approved by the Governor and the Executive Council.

47. Pausing there, senior counsel for Desane, Mr Pritchard SC, accepted on the hearing of the appeal that the content of these documents, including the statements that it was “necessary to acquire” the Desane property for the purposes of the construction of WestConnex and that “RMS’ road works program requires possession of the land by March 2018”, reflected the genuine beliefs of Ms Durie on behalf of RMS at that time.

46. On 26 May 2017, the PAN the subject of these proceedings was served on Desane in respect of the Desane property. The PAN was signed by Ms Durie of RMS. The precise content of that PAN raises a series of critical issues in this appeal and it is convenient to set out its terms when it comes to describing those issues.

47. On 1 June 2017, an internal RMS email from Mr Jazper Blizzard to Ms Magpayo with the subject heading “re M4-M5 Link EIS property assumptions” stated that current planning showed the Desane property being used during construction for “Light Vehicle Parking”. The email also states:

“[s]uggest if this is seen by [redacted] Desane it may cause consternation. I would ask for this to be updated, or for notes to be added showing that there is cut and cover tunnel construction and utility works occurring in this area”.

50. We interpolate that this excerpt provides no basis for a finding, if it in fact be a finding by the primary judge, that the email was “arguably sinister”. There is no evidence that suggests that RMS intended to add falsities or to embellish any detail in their correspondence with Desane. It is to be noted that Desane did not allege any subjective impropriety against any of the officers of RMS.

51. In August 2017, the M4-M5 Link Environmental Impact Statement (“EIS”) was published by the NSW Government. This was the most recent document at the time of the trial identifying the proposed use of the Desane property as part of the Rozelle Interchange. The EIS identified a new interchange at Lilyfield and Rozelle (the Rozelle Interchange) that would connect the M4-M5 Link mainline tunnels with the City West Link, the Anzac Bridge, the Iron Cove Link and the proposed future WHTBL.

52. A map of the indicative Rozelle civil and tunnel site in the EIS depicted the Desane property as designated for use as a car park for the building site.

Figure 5 – Indicative Rozelle civil and tunnel site

53. On 22 September 2017, Mr Kanofski sent a briefing note concerning WestConnex to the Minister for Roads, Maritime and Freight. The briefing note explained that:

“Roads and Maritime will make relevant arrangements to designate Urban Growth as the entity that will have responsibility for the New Rozelle Park post M4-M5 Rozelle Interchange completion (potential staged handover).”

54. It was also explained that:

“there will be a funded park design [encompassing the Rozelle Rail Yards] that will be delivered within the scope and cost of WestConnex M4-M5 Link and the provisioning works for future projects. This will need to meet the minimum expectations and the public commitments that Government has made to the parkland.”

The primary judgment

55. On 1 May 2018, the primary judge delivered judgment in favour of Desane. Desane succeeded on several bases. The primary judge began by considering whether the PAN was invalid because it departed from the form approved by the Minister pursuant to s 15(a) of the Just Terms Act (“Approved Form”). He framed the relevant question as whether compliance with s 11(1) of the Just Terms Act, which is given content by ss 15 and 39(2), was a necessary precondition to the exercise of the compulsory acquisition power in s 19(1), by reference to the decision of the High Court in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 91 ALJR 833 at [62] (“Forrest & Forrest”).

56. His Honour answered this question in the affirmative on the basis that “there can be discerned a clear legislative purpose that a PAN is invalid unless it complied with each of the requirements of ss 15 and 39(2)” (at [151]). In reaching this conclusion his Honour relied on four key points:

1. First, the language of the statutory provisions. In particular, the use of the mandatory “must” in ss 15 and 39(2) and the “rule-like” quality of those provisions indicated that strict compliance was necessary (at [156]-[158]).

2. Secondly, the principle of legality. Citing French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at 618, his Honour found that because the Just Terms Act and Roads Act are Acts which affect private property rights they should be interpreted in a way that is protective of those rights unless the contrary intention is manifest. As his Honour found that the unambiguous effect of the language of ss 15 and 39(2) of the Just Terms Act is consistent with protection of private property rights, this principle applied (at [159]-[162]).

3. Thirdly, his Honour drew an analogy with Forrest & Forrest. Namely, because the statutory power to grant exclusive rights to exploit resources of a State under consideration in Forrest & Forrest is similar to the statutory power granted by the Just Terms Act compulsorily to acquire exclusive rights to private property, the same approach as that adopted in Forrest& Forrest should be taken (at [154], [164]-[165]).

4. Fourthly, the terms of s 33(a) of the Just Terms Act. Namely, the fact that s 33(a) operates to cure an acquisition from any defect relating to notice requirements indicates that, prior to acquisition, compliance with those requirements is necessary for validity (at [166]).

57. Having found that compliance with the procedural requirements in ss 15 and 39(2) was necessary for the validity of the PAN, his Honour then considered whether the PAN met those requirements. In essence this question depended on whether the PAN complied with s 15(a), which relevantly turned on whether it met the Approved Form. The primary judge concluded that the PAN departed from the Approved Form and was therefore invalid (at [179], [181]).

58. The primary judge approached this question by identifying discrepancies between the PAN and the Approved Form and then assessing whether the discrepancies were “trivial”. Of seven discrepancies found by his Honour, five were “trivial” and therefore did “not involve a real departure from the Approved Form” (at [167]-[169]). The two “non-trivial” departures were a reference to “the disadvantage resulting from relocation” instead of “solatium” as one of the heads of compensation, and a reference to an offer of compensation being generally provided within 45 days, instead of the 30 day period in the Approved Form.

59. In concluding that the reference to “the disadvantage resulting from relocation” was a “real departure” from “solatium”, his Honour first noted that the former head of compensation replaced “solatium” as a head of compensation in the Just Terms Act following the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW). His Honour then found that the terms were different in two significant respects:

1. First, “solatium” had an “arguably” broader scope than “disadvantage resulting from relocation”. This was because the definition of “solatium” in s 60(1) of the pre-amendment Just Terms Act referred to “compensation to a person resulting from the necessity to relocate his or her principal place of residence” (emphasis added), leaving it “undoubtedly arguably open” that compensation could account for the disadvantage caused to people other than just the “person entitled”. By contrast, “disadvantage resulting from relocation” is not open to that construction because it is presently defined in s 60(1) by reference to “the necessity of the person entitled to compensation to relocate the person’s principal place of residence” (emphasis added).

2. Secondly, “solatium” had a different mechanism for determining the maximum amount of compensation than “disadvantage resulting from relocation”. In s 60(2) of the pre-amendment Just Terms Act, the compensation cap of $15,000 could be altered by the Minister through notice published in the Gazette. At the time of amendment the cap was $75,000. By contrast, in the current s 60(2), the compensation cap of $75,000 may be increased by regulations and is automatically adjusted for inflation.

60. His Honour found that “the recipient of a PAN which referred to a solatium would be in a substantially different position to a recipient of the present PAN” (at [178]).

61. In concluding that the reference to 45 days for the giving of a compensation notice was a “real departure” from the 30 day period referred to in the Approved Form, his Honour noted that the current s 42(1) of the Just Terms Act now provides for 45 days. Nevertheless, his Honour concluded that the recipient of a PAN stating that a compensation notice will generally be given within 30 days was “clearly in a significantly different position to being told that this will be within 45 days” (at [181]).

62. Having found that the PAN did not comply with the Approved Form, the primary judge also rejected an argument that s 80(1) of the Interpretation Act 1987 (NSW) rendered the PAN compliant. His Honour framed the relevant question as whether s 5(2) of the Interpretation Act displaced the application of s 80(1) to the Just Terms Act. Section 80(1) provides:

“80 Compliance with forms

(1)    If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.”

63. Section 5(2) provides:

“5 Application of Act

(2)    This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.”

64. His Honour found that the relevant contrary intention, namely that strict compliance is necessary, appears in the Just Terms Act for two reasons:

1. First, his Honour relied on his earlier reasoning as to the language of “must” in the relevant provisions of the Just Terms Act.

2. Secondly, his Honour referred to s 16 of the Just Terms Act, which makes provision for the withdrawal of a PAN (s 16(1)) and the correction of clerical errors and obvious mistakes (s 16(3)).

65. In reaching this conclusion, his Honour noted that even if he were wrong and s 80(1) did apply it would not remedy the discrepancies in the PAN because the earlier conclusion regarding the “non-trivial” discrepancies between the PAN and the Approved Form meant that the PAN was not substantially compliant with the Approved Form.

66. Having concluded that the PAN was invalid for lack of compliance with the Approved Form, his Honour then addressed whether the Approved Form itself was invalid. His Honour framed the issue as being whether the power conferred on the Minister to designate an Approved Form in s 15(a) had been exercised in a manner consistent with the Just Terms Act (at [189]): Just Terms Act, s 74(1); Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 at 71-72.

67. In essence, this question turned on whether the discrepancies between the Approved Form and the Just Terms Act, being the same discrepancies as those between the Approved Form and the PAN, rendered the Approved Form inconsistent with the Act. In respect of the reference to 30 days in the Approved Form, his Honour found no inconsistency because 30 days is merely a more stringent requirement than the 45 days stated in s 42(1) of the Just Terms Act.

68. In respect of the reference to “solatium”, however, his Honour found that the Approved Form was inconsistent with the Act because “solatium” differed from “disadvantage resulting from relocation” in a “material respect” (at [185]), presumably referable to the same two differences identified in his Honour’s earlier analysis of the two terms.

69. The primary judge therefore found that, following the 2016 amendments to the Just Terms Act, the Approved Form “ceased to be a form which, if used, would validly invoke the machinery of the Act” (at [190]); a PAN issued using the Approved Form would accordingly be invalid.

70. His Honour then considered whether there was, by statutory implication, a requirement in s 15 of the Just Terms Act that a valid PAN state the particular public purpose for which the subject land is proposed to be acquired.

71. His Honour found that the statutory intention was for there to be such a requirement on the following grounds:

1. First, the guidance to interpretation provided by Dixon CJ’s aphorism in Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43. Namely, “that the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose”.

2. Secondly, the purpose of the Just Terms Act. His Honour found that the Just Terms Act is directed not only to ensuring efficient acquisition and just compensation, but also to protecting from interference the private property rights of land owners by restraining the ability of the State compulsorily to acquire property. His Honour cited s 3(1)(b) of the Just Terms Act, which identifies one of the objects of the Act as ensuring compensation on just terms, and reasoned that informing the owner of land subject to compulsory acquisition of the purpose of the proposed acquisition was essential to achieving that objective because of the significant disadvantage that would be occasioned to the owner in sale negotiations and compensation contests without that knowledge.

3. Thirdly, the provisions of the Just Terms Act. Here his Honour drew a distinction with the Land Acquisition Act 1955 (Cth) under consideration in Jones, where the implied requirement to state the public purpose was held to arise at the point of acquisition. Unlike the Land Acquisition Act, the acquisition power in s 19(1) of the Just Terms Act (and similarly s 177(1) of the Roads Act) does not require a declaration that acquisition is for the public purpose approved by the Governor, indicating that it was not intended for the public purpose to be stated at the point s 19(1) is exercised but rather at an earlier point in time. Further, in contradistinction to the narrow curing provision in the Land Acquisition Act, the curing provision in s 33 of the Just Terms Act was broad enough to render any requirement to state the public purpose at the point of acquisition meaningless because it also operated at the point of acquisition and would therefore always operate to cure any failure.

72. His Honour found that the provisions of the Just Terms Act indicated that the requirement to state the public purpose must arise at the time a PAN is issued because it is the only formal occasion where information must be given.

73. In support of this conclusion his Honour cited the requirement in s 39 of the Just Terms Act for a PAN to be accompanied by a form for a claim for compensation. The matters relevant in determining a claim for compensation, set out in s 55, include two heads of compensation that make some reference to the public purpose: ss 55(a), (f), and 56(1)(a), (b). The primary judge concluded that there is a “clear implication that the recipient will know the public purpose for which the land is to be acquired”. His Honour also referred to the terms of the form for compensation issued to the respondent, which in paragraph 6(f) made provision for the respondent to claim compensation by a means that his Honour concluded required knowledge of the public purpose.

74. Having found that s 15 of the Just Terms Act implicitly required the PAN to state the public purpose for which the property was proposed to be acquired, his Honour then considered whether that requirement was satisfied.

75. The primary judge found that the reference to “a public purpose” in the Approved Form and repeated in the PAN “clearly” did not meet the requirement. The phrase could refer to any number of purposes.

76. Without reaching a conclusion on the level of specificity that would have been required in this case, his Honour noted that (at [260]):

“…a significant question arises as to whether a description which refers merely to the purposes of the Roads Act is specific enough to be considered as disclosing a public purpose and approved as such”.

77. The primary judge then addressed Desane’s improper purpose claim. His Honour approached this issue by asking whether, at the date the PAN was issued, the appellant was actuated by an improper purpose, being a purpose beyond that for which the power of acquisition was authorised in s 177(1) of the Roads Act. His Honour framed the relevant test as being whether “no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose” (at [282]): Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679.

78. In order to determine this issue, his Honour considered two competing purposes for the acquisition of the Desane property. First, the purpose of use as a general construction site for the Rozelle Interchange. Second, the purpose of providing open space and green parkland. While his Honour accepted that the former was a purpose authorised under the Roads Act, the latter was an improper purpose.

79. The primary judge ultimately found that, but for the improper purpose of providing open space and parkland, the PAN would not have been issued. Accordingly, the PAN was invalid because it was not issued for an authorised purpose under s 177(1) of the Roads Act.

80. In reaching this conclusion his Honour made various findings of fact based on the evidence before him. Key amongst these were inferences that at the date the PAN was issued: (i) the appellant intended to acquire the Desane property even if the Rozelle Interchange did not go ahead and the Desane property was therefore not needed for use as a general construction site (at [316]); and (ii) the appellant’s dominant purpose for acquiring the Desane property, without which it would not have issued the PAN, was the provision of open space and green parkland (at [331]). His Honour’s ultimate conclusion was (at [333]):

“RMS’ contemplation that the Property will be used as a construction site is connected, as things stand, with its purpose to provide open space and green parkland. But the provision of open space is not inextricably bound with the road component as RMS would suggest. If the Rozelle Interchange goes ahead, the Property might well first be used as a construction site in some way and then converted into parkland. But if the Rozelle Interchange does not go ahead, RMS will acquire the Property for the Bays Precinct Transformation Plan anyway.”

81. The primary judge drew support for this conclusion from the failure of RMS to call evidence from “any relevant guiding mind of RMS as to its purposes” (at [335]).

82. The primary judge dismissed the respondent’s cross-claim on the basis that the injunctive relief sought was unnecessary. In the circumstances of the case, his Honour found that a declaration that the PAN was of no effect would be sufficient.

Grounds of appeal

83. On 1 June 2018, RMS filed a notice of appeal. The notice of appeal contained several grounds of appeal, which can be summarised as follows:

1. First, his Honour erred in finding that a PAN which did not strictly comply with ss 15 and 39(2) of the Just Terms Act was invalid and that a strictly compliant PAN was a necessary precondition for a lawful acquisition;

2. Secondly, his Honour erred in finding that the Approved Form ceased to apply to the Just Terms Act following the passage of the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW);

3. Thirdly, his Honour erred in finding that s 80(1) of the Interpretation Act did not apply to remedy any deficiencies in the PAN;

4. Fourthly, his Honour erred in finding that the PAN was invalid because:

1. the PAN did not substantially comply with the Approved Form; and

2. the PAN did not state the purpose for which the property was being acquired; and

5. Fifthly, his Honour erred in finding that RMS was actuated by an improper purpose in issuing the PAN.

84. In its written submissions RMS reframed these grounds into five questions to be answered on the appeal. These were:

“(a) First, is a valid PAN a precondition to a valid acquisition under s 19 of the Act, and does non-compliance with ss 15 or 39(2) of the Act result in the invalidity of the PAN (‘Project Blue Sky issue’)?

(b) Secondly, did the Approved Form “validly invoke the machinery” of the Act (‘Approved Form issue’)?

(c) Thirdly, does s 80(1) of the Interpretation Act 1987 (NSW) apply in the circumstances of this case (‘section 80(1) issue’)?

(d) Fourthly, was the PAN invalid for non-compliance with the Approved Form and the Act, or otherwise for failure to state the public purpose for which the land is to be acquired, predicated upon an implication in section 11(1) and 15 of the Act (‘public purpose issue’)?

(e)   Fifthly, did Hammerschlag J err in finding that the Appellant was actuated by an improper purpose in issuing the PAN (‘improper purpose issue’)?”

Notice of cross-appeal

85. On 6 June 2018, Desane filed a notice of cross-appeal. The substance of the cross-appeal was essentially that, irrespective of whether or not the finding that the PAN was invalid was upheld on this appeal, his Honour erred in failing to grant an injunction to restrain RMS from acting on the PAN.

Submissions of the parties

86. In relation to the validity of the PAN, RMS challenged two related findings. First, the finding that there was a “clear legislative purpose that a PAN is invalid unless it complies with each of the requirements of ss 15 and 39(2)” [of the Just Terms Act]. Secondly, the finding that a valid PAN was “a necessary precondition” to exercising the compulsory acquisition power in s 19(1) of the Just Terms Act.

87. RMS submitted that the primary judge made two errors in making the impugned findings.

88. First, the primary judge erred in construing s 33 of the Just Terms Act. Section 33 provides that:

“33 Validity of compulsory acquisition

Once land has been acquired by compulsory process under this Act, the validity of the acquisition is not affected by:

(a)    a failure to comply with any requirement of this Part relating to the giving of notice of the proposed acquisition, or

(b)    a subsequent failure to comply with a requirement of this Act relating to the acquisition.”

89. The primary judge found that s 33(a) supports the conclusion that there was a clear legislative intention that a PAN was invalid if it did not comply with ss 15 and 39(2) because (at [166]):

“It is significant that s 33(a) provides that, once land has been acquired by compulsory process, the validity of the acquisition is not affected by a failure to comply with any requirement in relation to a proposed acquisition notice. This supports the conclusion that it is necessary for those requirements fully to be met.”

90. RMS relied on Manson v Roads and Traffic Authority (Supreme Court (NSW), Bryson J, 6 May 1996, unrep) at p 4 per Bryson J where his Honour stated that:

“the terms of s 33 make it difficult to conceive of an acquisition by compulsory process after delivery of a deficient [PAN] as an irreparable injury appropriate to be protected by injunction.”

91. This Court subsequently dismissed an application for leave to appeal the decision in Manson v Roads and Traffic Authority of New South Wales [1996] NSWCA 339 where Mahoney P (Sheller JA agreeing) stated (at 4) that those who drafted s 33 intended “to ensure that failure to comply with the provisions [of Part 2 of the Just Terms Act] should not go to validity”.

92. RMS submitted that if s 33(a) vitiates any defect in the PAN, it cannot be said that a compliant PAN is an essential precondition to acquisition, contrary to the primary judge’s findings.

93. The second error identified by RMS was that the primary judge erred in his treatment of prior authority. RMS submitted that the primary judge did not follow relevant authority. Namely, the primary judge did not refer to the decision in this Court of Manson and indicated during the course of the trial that he did not consider a Court of Appeal decision dismissing an application for leave to appeal to constitute binding authority. RMS submitted that, by analogy to a special leave application, Manson constitutes “guidance”: X7 v R [2014] NSWCCA 273; (2014) 292 FLR 57 at [97] per Bathurst CJ. RMS submitted that the primary judge also erred in failing to follow The Baptist Union of NSW v Georges River Council [2017] NSWSC 347 at [82] per Lonergan J, where her Honour held that the “notice requirement in the context of the [Just Terms Act was] procedural rather than substantive”.

94. Further, RMS submitted that the primary judge relied on distinguishable authority. Forrest & Forrest was distinguishable because it concerned materially different legislation, the Mining Act 1978 (WA), s 75(6) of which did not “allow the Minister to make a grant where the warden had failed to comply with the Act”: Forrest & Forrest at [75]. Further, the Court in Forrest & Forrest found (at [76]) that the failure to comply in that case “cannot fairly be described as an informality or irregularity” triggering s 116(2) of the Mining Act, which immunises the grant of a mining tenement from the effect of any informality or irregularity. By contrast, RMS submitted that s 33 of the Just Terms Act operates differently from ss 75(6) and 116(2) of the Mining Act because it is not limited by reference to the identity of the non-conforming party or by reference to concepts of “informality” or “irregularity”.

95. RMS submitted that Forrest & Forrest is also distinguishable because the policy of the Mining Act, on which the majority placed some reliance (at [85]-[89]), is different from the purpose underlying the Just Terms Act of simplifying and expediting the acquisition process (as provided in s 3(1)(c)).

96. RMS submitted that, to the extent that the provisions in Division 1 of Part 2 of the Just Terms Act use mandatory language (ss 11(1), 13(1), 14, 15, 16 and 17), Division 2 does not require that the procedure in Division 1 has been complied with. Rather, s 33(a) manifests a flexible approach to non-compliance. Accordingly, RMS submitted that the primary judge erred in finding that non-compliance with s 15 of the Just Terms Act renders invalid an exercise of power under s 19(1).

97. In relation to the Approved Form, RMS challenged the finding that the Approved Form was out of accord and inconsistent with the provisions of the Just Terms Act in a material respect and that there was no form approved by the Minister or by regulations that could “validly invoke the machinery of the Act”.

98. RMS submitted that in making this finding, his Honour erred in three respects.

99. First, RMS submitted that the primary judge’s reasoning was “juridically unsound”. RMS submitted that the primary judge assumed that the Approved Form ceases to be “approved by the Minister”, contrary to s 15(a) of the Just Terms Act, if there is some amendment to the legislation. This reasoning was submitted to be unsound because it would require s 15(a) to be “read as requiring that a form be approved and that the approved form comply with all requirements of the Act from time to time”. RMS submitted that the correct construction of s 15(a) is that a PAN should be substantially consistent with a form approved by the Minister, a requirement satisfied in the present case.

100. Secondly, RMS submitted that the primary judge erred by proceeding on an incorrect premise, namely that the Just Terms Act required a PAN to contain information on “solatium”, and thereby concluding that the Approved Form was inconsistent with the Act. RMS submitted that neither s 15 nor s 39 require a PAN to contain particulars of compensation referable to the heads under s 55 of the Just Terms Act.

101. Thirdly, RMS submitted that the primary judge erred in finding there to be a material difference between “solatium” and “disadvantage resulting from relocation”, the phrase that replaced “solatium” as a head of compensation under s 55. RMS submitted that “solatium”, before being removed from the Just Terms Act, was defined in s 60 to mean:

“…compensation to a person for non-financial disadvantage resulting from the necessity of the person to relocate his or her principal place of residence as a result of the acquisition.”

102. In comparison, “disadvantage resulting from relocation” is defined in s 60 as:

“…non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person’s principal place of residence as a result of the acquisition.”

103. RMS submitted that the former is merely the Latin cognate of the latter English phrase.

104. To the extent that the primary judge found that there existed a material difference, being that “solatium” contained an “undoubtedly arguably open” possibility that it could be claimed by a person other than the “person entitled”, RMS submitted that this construction of “solatium” is not open and has never been the subject of an affirmative finding in the authorities. RMS relied on Tolson v RMS [2014] NSWCA 161 at [113] per Preston CJ LEC where his Honour stated that:

“…solatium involves compensation for the non-financial disadvantage suffered by the person whose land has been acquired of having to relocate his or her principal place of residence.”

105. To the extent that the primary judge relied on the differing amounts of maximum compensation for “solatium” and its post-amendment conception as a material difference, RMS submitted that at the time of the amendment the gazetted maximum was already the same as the maximum following the amendment ($75,000) and that there was nothing in the Approved Form that was inconsistent with a cap on the “solatium” head of compensation.

106. In relation to s 80(1) of the Interpretation Act, RMS challenged the finding that this section did not cure any non-conformity between the PAN and the Approved Form. It will be recalled that s 80(1) provides that:

“80 Compliance with forms

(1)    If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.”

107. On this issue the primary judge found in favour of Desane on the basis that: first, s 80(1) was displaced by a clear legislative intention to the contrary in the Just Terms Act (Interpretation Act, s 5(2)); secondly, there was no valid Approved Form for s 80(1) to apply to in any event; and thirdly, s 80(1) would not cure the PAN because the PAN did not substantially comply with the Approved Form.

108. RMS submitted that it was inconsistent for the primary judge to find that s 80(1) was inoperative while also finding that five of the seven identified discrepancies between the PAN and the Approved Form were “trivial”.

109. RMS submitted that the primary judge erred in finding that there was a clear legislative intention in the Just Terms Act that a PAN must strictly comply with the terms of ss 15 and 39(2) for three reasons:

1. First, the primary judge incorrectly relied on the words “must” in ss 15 and 39(2) which, RMS submitted, do not displace s 80(1) but rather activate it. Section 80(1) operates where a form is “prescribed by” an Act and, on RMS’ submissions, “prescribed” in this context means “require to follow”, commensurate with the mandatory language of “must” in ss 15 and 39(2).

2. Secondly, the primary judge incorrectly relied on the fact that s 16 of the Just Terms Act allows for the PAN to be withdrawn and for clerical errors to be corrected. RMS submitted that this does not justify the displacement of s 80(1), but rather indicates its applicability because the Just Terms Act makes provision for the rectification of the issues to which s 80(1) is directed.

3. Thirdly, the primary judge incorrectly found that a s 11(1) notice was an essential precondition to the exercise of the acquisition power in s 19.

110. Of the seven discrepancies between the PAN and the Approved Form identified by the primary judge, only two were found to be material: the reference to “solatium” and the timeframe for a compensation notice (45 instead of 30 days). RMS submitted that the primary judge erred in finding these discrepancies to be substantial, thus rendering s 80(1) inapplicable.

111. RMS submitted that “the disadvantage resulting from relocation”, used in the PAN, was not materially different from its Latin cognate “solatium”, used in the Approved Form, for the same reasons given in its submissions in respect of the Approved Form above.

112. RMS submitted that the reference to 45 days in the PAN brought it into line with the relevant timeframe in the Just Terms Act (post-amendment), and in such circumstances the discrepancy ought not be regarded as substantial.

113. RMS challenged the finding that the PAN was invalid because it did not state the public purpose for which the Desane property was to be acquired. RMS also challenged the basis of this finding, which was an implication drawn from ss 11(1) and 15 of the Just Terms Act to the effect that a PAN must inform the recipient of the public purpose for which the land is to be acquired.

114. RMS submitted that there is no basis to imply a public purpose requirement into s 15. RMS submitted that there is a high threshold for statutory implication: Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 37; Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38]-[39]. RMS relied on the principle of expressio unius because the predecessor to the Just Terms Act, the Public Works Act 1912 (NSW), expressly required a statement of the public purpose in s 42. That requirement does not appear in the Just Terms Act: Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 at [34].

115. RMS submitted that the primary judge erred in following Jones v The Commonwealth (1963) 109 CLR 475; [1963] HCA 43. That case was distinguishable. The relevant legislative provision in Jones, the Lands Acquisition Act 1955 (Cth), made explicit reference to “the purpose approved by the Governor-General”. Secondly, the three reasons for implication in Jones do not apply here: the first related to s 51(xxxi) of the Constitution (Cth), which does not govern a State’s power to acquire land; and the second related to a provision under the relevant Act requiring notice of acquisition to be tabled in Parliament, which finds no comparable provision in the Just Terms Act. The third reason in Jones was an “aphorism” that “the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose”. RMS submitted that the primary judge erred by assuming this “aphorism” to apply in the present case because his Honour thereby commenced construction with an interpretive consideration sourced outside the text of the Just Terms Act: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

116. While the primary judge reasoned that there is no statutory occasion for notification of a purpose other than through a PAN, RMS submitted that s 10A of the Just Terms Act allows for a negotiation period during which the purpose of the acquisition “would beyond any practical doubt be communicated”. This is so notwithstanding s 10A(7), which provides that nothing in the section can be taken into account in any civil cause of action.

117. In any event, RMS submitted that the PAN was compliant with any public purpose requirement. The PAN stated that “Roads and Maritime Services requires the whole of your interest in the land located at Rozelle, for a public purpose”. The covering letter to the PAN, similar to the accompanying letter considered relevant in Manson (at p 3), stated “[p]roposed acquisition…for WestConnex Stage 3 M4-M5 Motorway Link”. RMS submitted that this communication constituted substantial compliance attracting the application of s 80(1) of the Interpretation Act.

118. RMS challenged the finding that the PAN was “invalid as having been given for an improper purpose” being a purpose not under the Roads Act 1993 (NSW). That purpose was “to acquire the Property to provide 10 hectares of open space and green parkland as publicly committed to by the Government” instead of a purpose under the Roads Act.

119. The essence of RMS’ contention was that the evidence clearly and unambiguously showed that the Desane property was, at all relevant times, proposed to be acquired and used for Roads Act purposes. These purposes included use of the Desane property as a construction site for the Rozelle Interchange and for permanent sub-surface tunnel infrastructure built by cut and cover construction.

120. RMS submitted that the correct conclusion from this evidence was that at the time the PAN was issued, the Desane property was to be part of land contemplated for use as a construction site, whereby part of the actual infrastructure of the Rozelle Interchange would be on the property.

121. To the extent that the land was ultimately intended to be used as parkland after the construction of the Rozelle Interchange, this was not inconsistent with the proper purpose. Likewise, an inference of improper purpose does not arise merely because there was no planning approval or a finalised design for the Rozelle Interchange at the time of the issue of the PAN.

122. RMS submitted that the evidence disclosed that the ultimate purpose of the acquisition was the construction of Stage 3 of the WestConnex project, and the commitment to parkland was ancillary to this purpose.

123. RMS submitted that his Honour’s finding as to purpose can be set aside by this Court because, in light of the evidence, his Honour’s finding was inconsistent with incontrovertible facts, glaringly improbable, and contrary to compelling inferences: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43].

124. As for the primary judge’s conclusion that the PAN would not have been issued but for the improper purpose, RMS submitted that, in declining to find whether the Rozelle Interchange would proceed, the primary judge failed to answer the critical question of whether RMS thought the project would proceed. RMS cited a range of evidence which, on its submission, supported the conclusion that RMS had the purpose of acquiring the Desane property for use in construction of the WestConnex project at all material times.

125. RMS submitted that the primary judge’s conclusion that the PAN would not have been issued but for the improper purpose was based on a logical fallacy. Namely, the conclusion was not available from the findings upon which it was premised, being findings that:

1. RMS believed and was optimistic that the Rozelle Interchange would proceed; and

2. RMS held the intention of using the Desane property for general use as a construction site in the event the Rozelle Interchange did proceed.

126. RMS submitted that the ultimate conclusion of the primary judge failed to appreciate the distinction between finding that the Desane property would be acquired notwithstanding that the Rozelle Interchange may not go ahead and finding that the Desane property would be acquired even if the Rozelle Interchange did not proceed. The former finding is an uncertainty inherent in every acquisition made in advance of a project and thus cannot render otherwise actuating Roads Act purposes insubstantial: CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365; [1965] HCA 55 at 381. RMS submitted that it is the former conclusion which follows from his Honour’s reasoning, and to find the latter conclusion was erroneous.

127. RMS also challenged the inference the primary judge drew from the failure of RMS to “call any person who, on its behalf, or functioning as its executive organ” was in a position to provide direct evidence “that without the presence of the purpose of providing open space and green parkland, the acquisition of the Property would nevertheless proceed”.

128. To the contrary, RMS submitted that three senior witnesses were called who attested to the purposes of the acquisition from an engineering perspective. Moreover, there was ample documentary evidence from senior position holders at RMS, including Mr Kanofski and Ms Durie, as to purpose.

129. Desane premised its submissions about the validity of the PAN on the reasoning of French CJ in R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12 at 618-620 to the effect that the principle of legality favours Desane’s construction based on strict compliance by the executive government which interferes least with private property rights.

263. There remains, however, a question about the reference to public purpose in s 55(f) of the Just Terms Act. The first point to notice is that s 55(f) involves a valuation exercise initially to be undertaken by the Valuer-General and not the landowner: s 47. Secondly, s 55(f) recognises that the carrying out of the public purpose may either increase or decrease the value of other land. An increase in value is irrelevant. Where the effect of the public purpose is to decrease the value of the land that adjoined or was to be severed, an amount is recoverable for the detriment: see generally Tolson at [8]-[11]; [30] and [112].

264. Whilst s 55(f) has no direct role to play in the circumstances of this case as Desane did not own any land that adjoined or was to be severed from the Desane property, the assumption that the section was relevant needs to be made to test whether or not there is a statutory implication of a requirement to identify a public purpose in a PAN.

265. It may be accepted, for the purposes of a landowner to whom s 55(f) was relevant, that the landowner may wish to obtain his or her own valuation as part of the good faith negotiations being conducted with the acquiring authority, to guide those negotiations. It may also be accepted that properly to consider the question of the value to be attributed to land adjoining or severed from the proposed acquired land, a putative landowner would need to know the public purpose for which the land was to be acquired in order to brief a valuer to identify the amount of compensation to which the landowner would be entitled under s 55(f).

266. It is also clear, however, that properly to consider the question of the value to be attributed to land adjoining or severed from the proposed acquired land, a putative landowner would need to know much more than the bare “public purpose”. In identifying the amount of compensation to which a landowner is entitled under s 55(f), detail about matters such as noise and amenity may need to be taken into account in addressing a valuation of the effect on the value of land adjoining or severed from the acquired land: see for example Roads & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [17] which addressed the relevance for s 55(f) purposes of “prognostic” acoustic evidence about noise created by a roadway yet to be built. That “prognostic” acoustic evidence was based on assumptions about traffic volumes, speed limits and lane configurations, which are all matters travelling well beyond any bare statement of public purpose. An incident of the negotiation in good faith required by the Just Terms Act is the provision of information by the acquiring authority about such matters as are within its knowledge about the effect on the value of land adjoining or severed from the acquired land.

267. In order for there to be “a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice” within the meaning of s 10A of the Just Terms Act, a public authority would need to co-operate in good faith to provide such relevant information and material to the landowner as was available. As noted above, that relevant information and material, as was apparently provided by the acquiring authority in Peak, is likely to go far beyond the mere description of the “public purpose” of the acquisition. This is no “gap in the legislation” requiring the implication of a requirement to identify the public purpose in the PAN.

268. There is a further reason why the suggested implication should not be made. In the present case the primary judge found that Desane conceded that it would have been a sufficient description of the public purpose for the PAN to have said “for the purposes of the Roads Act 1993 no. 33”: at [259]. Whilst Desane denied that it had made any such concession its formulation, on the appeal, of what the PAN required, namely, “It is needed for the construction of the WestConnex Stage 3A for the purposes of the Road Act” was equally uninformative in the context of the exercise here under consideration, a valuation for the purposes of s 55(f) of the Just Terms Act.

269. It is against that background that the primary judge’s finding that there was an implied statutory requirement for a PAN to identify a particular public purpose needs to be addressed.

270. In Taylor v The Owners – Strata Plan No 11564 at [38], French CJ, Crennan and Bell JJ said:

“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’”.

273. The principal reasoning underlying the primary judge’s conclusion that a landowner must know of the purpose of acquisition at the point the PAN is issued is that otherwise he or she would be at a disadvantage in sale negotiations with the acquiring authority.

274. In order for any meaningful valuation exercise under s 55(f) to be conducted there usually would need to be much more information provided by an acquiring authority than a bare statement of the public purpose. The legislative scheme provides that this information is, at the instance of the landowner, the subject matter of good faith negotiations prior to the issue of a PAN. The implication of the requirement to identify the public purpose in the PAN thus does not fill any “gaps disclosed in legislation”.

275. Further, the suggested implication makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”. The requirements of the Just Terms Act are significantly different to those in earlier legislation where identification of the public purpose was required. There is no reason to imply into the Just Terms Act a requirement to identify the public purpose in the PAN. The legislative scheme is complete without any such implication which, as we have explained, would not in any event provide information which was useful for any statutory purpose. The implication of such a requirement elevates a formal requirement drawn from legislation which was repealed long ago over the substance of the requirements of the Just Terms Act.

276. We do not regard the cases relied upon by Desane as leading to any different conclusion. In Municipal Council of Sydney v Campbell [1925] AC 338 and Campbell v Municipal Council of Sydney (1923) 24 SR (NSW) 179, at 209 it was held that a landowner needed the means to be satisfied that the public purpose was a permitted purpose. As we have said, the relevant scheme here contains its own mechanisms to ensure relevant information is exchanged between the landowner and the acquiring authority and the implication of a requirement to identify the public purpose as part of the PAN is unwarranted.

277. We would also reject the reliance by the primary judge upon Jones v The Commonwealth (1963) 109 CLR 475 at 483 per Dixon CJ as inapposite. The relevant legislative provision in Jones, the Lands Acquisition Act 1955 (Cth), made explicit reference to “the public purpose approved by the Governor-General”. The relevant issue was not whether the public purpose had to be stated, but rather the level of generality at which that statement could be expressed. The relevant context was also quite different. Section 51(xxxi) of the Constitution does not govern a State’s power to acquire land; the relevant Act does not, unlike the Act in Jones, require notice of acquisition to be tabled in Parliament, and the aphorism that “the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose” flows from the statutory context in which the specific public purpose had to be identified in the notice.

278. Even if there was a requirement to identify the public purpose in a PAN, we would conclude that it was complied with in this case. Mahoney P dealt with this precise issue in Manson, where, as here, the public purpose was identified in a covering letter served with the PAN. It was submitted in that case that regard could not be had to the terms of the covering letter. Mahoney P said:

“It would be artificial indeed to restrict the terms of the notice given within the legislation simply to the terms of the document ‘proposed acquisition notice.’”

279. We agree with Mahoney P. In the present case, the covering letter to the PAN made clear that acquisition was “for WestConnex Stage 3 M4-M5 Motorway Link”.

280. Even if there is an implication in the legislation that the public purpose should be identified, and the covering letter could not be taken into account, we would nevertheless not hold that the PAN was “void, invalid and of no effect”, for essentially the same reasons of statutory construction addressed at [189] – [223].

The notice of contention

281. On the third day of the appeal Desane was granted leave to file a notice of contention alleging that in addition to identifying the Roads Act purpose, it was necessary to identify the “basis of the power” in the PAN. Leave was not granted to argue that there was no public purpose sanctioned by the Roads Act. The notice of contention was in these terms:

“1.   The proposed acquisition notice issued by the Appellant/Cross-Respondent (RMS) on 26 May 2017 (PAN) was invalid as:

a. It was a requirement of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) that a PAN state the purpose of the proposed acquisition with sufficient particularity to enable the recipient to form a view as to whether the proposed acquisition was a purpose authorised by section 177 of the Roads Act.

b. Further and alternatively, even if it was not a requirement of the Just Terms Act that a PAN state the purpose as set out in a. above, the “public purpose”, stated in a PAN must be a purpose sanctioned or authorised by the Roads Act or the Just Terms Act.

c.   The PAN stated that the property at 68-72 Lilyfield Road, Rozelle was required for a “Public Purpose”.

d.   By reason of a., b., and c., above, the PAN:

i. purported to make a statement of a purpose being a “public purpose” which was not a purpose authorised or sanctioned by the Roads Act or the Just Terms Act.

ii. failed to state a purpose that enabled the recipient to form a view as to whether the proposed acquisition was, or was within, a purpose authorised by section 177 of the Roads Act, being the Act which empowered the RMS to issue the PAN.

2.   In the premises, the PAN is void, invalid and of no effect.”

282. The putative implied requirement for a PAN to identify the purpose of the proposed acquisition with sufficient particularity to enable the recipient to form a view as to whether the proposed acquisition was within power finds no support in the Just Terms Act. Sections 55(f) and 56 of the Just Terms Act, which are said to provide the context for the suggested implication, do not assist Desane. It forms no part of the legislative scheme that an explanation must be given about the basis of the statutory power to acquire the land. The source of the suggested implication, Dixon CJ’s observation in Jones that “the landowner who is compulsorily dispossessed of his land would seem to have a right in point of justice to know precisely for what it was needed as a public purpose”, flowed from the statutory context in which the specific public purpose had to be identified in the notice. That is not the case in this scheme.

283. The notice of contention should be rejected. There was no implied requirement to identify the “basis of the power” of acquisition in a PAN.

The cross-appeal

284. The cross-appeal occupied two paragraphs of the cross-appellant’s written submissions and was barely mentioned in oral address. We have set out above at [176]-[181] Desane’s pleaded case. The application for an injunction before the primary judge was made in circumstances where the primary judge had been persuaded that Desane’s case that the PAN was invalid and of no statutory effect was correct.

285. His Honour did not make an order sought quashing the PAN or issuing an injunction as “such orders are surplusage”. His Honour was correct, as upon making the declaration that the PAN was “invalid and of no statutory effect” there was no PAN to quash and no threatened conduct of giving effect to the PAN. His Honour had declared that there was no PAN. To adopt Mr Hutley’s colourful phrase, the purported PAN was in law no more than “a piece of paper”.

286. Desane’s attempt in this Court to move away from the pleaded case and seek an injunction on the basis that the PAN was not invalid, is a different case to the one pleaded and conducted in the Court below. What is now sought is a permanent injunction forbidding acquisition of the Desane property based on the PAN on the hypothesis that the PAN was valid but nevertheless unlawful.

287. The injunction is sought on the hypothesis, which we do not accept, that the PAN contained material discrepancies from terms of the Just Terms Act, which did not invalidate the PAN but which demonstrated circumstances where the Court could nevertheless grant injunctive relief. Despite the absence of a pleading of the issue, as the appellant did not submit that any prejudice was suffered, we will assume that this case is open to Desane.

288. In Project Blue Sky at [100] the High Court said:

“[100] In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision "may in particular cases be punishable" [Simpson v Attorney-General [1955] NZLR 271 at 281; Montreal Street Railway Co v Normandin [1917] AC 170 at 175.]. That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.”

289. The precise limits of the principle identified by the High Court in Project Blue Sky are not clear. Although both of the cases referred to by the Court, Simpson and Montreal Street Railway Co, dealt with statutory provisions which made conduct done in breach of the statute “punishable” in the sense of a breach of an offence provision, we do not accept that the High Court was intending to limit the occasions where an injunction may be granted to prevent conduct consequent upon a breach of an Act to occasions where the relevant breach constituted an offence. Such a conclusion would be inconsistent with the current understanding of the engagement of the equity jurisdiction with matters of public law: see Truth About Motorways Pty Ltd v Macquarie Infrastructure investment Management Ltd (2000) 200 CLR 591; [2000] HCA 11 per Gummow J at 628; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 at 232 per Gaudron J and 241 per Gummow and Hayne JJ; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action (6th ed, 2016, LawBook Co) at [16.110].

290. We have earlier accepted that the description given by Mahoney P in Manson was an accurate statement about the Just Terms Act that remains relevant in the form the Act now takes:

“If statutory powers are to be exercised, it is, of course, important that those who are exercising them do so strictly in accordance with the terms of the power granted to them. But the nature of what has been done or omitted may be relevant in considering other matters, for example matters going to discretion.”

291. We have found that the PAN and the Claim Form issued to Desane were substantially in compliance with the Approved Form and the Approved Claim Form and thus not unlawful.

292. Even if we had reached a different conclusion, and found that the PAN and Claim Form issued to Desane were materially different from the Approved Form and the Approved Claim Form, we would in the exercise of discretion have refused to grant an injunction.

293. This is because it was accepted by Desane that the PAN and the claim form served upon it provided legally accurate information about its rights under the Just Terms Act. There is no credible suggestion that anyone was, or could have been, misled by the PAN or the Claim Form. There is no suggestion that the absence of information in the PAN affected Desane’s rights in any way.

294. Also relevant to this question is Desane’s misleading conduct case. Desane complained that it had relied to its detriment upon the same conduct of RMS which was said to invalidate the PAN and the Claim Form, and that the conduct was misleading. The primary judge found that this case “although not formally abandoned, was very faintly argued”. The primary judge rejected that claim. It was not the subject of the cross-appeal.

295. In these circumstances, in the exercise of discretion, even if we had concluded that the PAN and the Claim Form were unlawful, we would have refused to grant a permanent injunction.

The improper purpose issue

296. The relevant legal test was not in contest. In Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678 at 679, the High Court held:

“The critical question in the present case is whether the purposes for which the Board proposes to acquire the land are purposes of the Act. If the Board is seeking to acquire the land for an ulterior purpose, there will be an ostensible but not a real exercise of the power granted by the Act. The attempted exercise of power will be vitiated even if the ulterior purpose was not the sole purpose of the acquisition; it will be an abuse of the Board’s powers if the ulterior purpose is a substantial purpose in the sense that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose: see Thompson v Randwick Corporation (1950) 81 CLR 87 at 106 and Minister for Public Works v Duggan (1951) 83 CLR 424.”

297. Nor was it in contest that RMS was not entitled to acquire the Desane property for the purpose of building a park. It was accepted that if the evidence showed that RMS’ actuating purpose in acquiring the Desane property was to build a park, rather than build a road, that would be an improper purpose.

298. In the present case the relevant legislative standard for purpose is not drawn from the Just Terms Act but from the Roads Act. The Roads Act contains the power to acquire for the purposes of the Roads Act in s 177(1). Sections 5 and 7 of the Just Terms Act demonstrate that the relevant power is not sourced from the Just Terms Act itself.

299. Given that it is a power to acquire land, we accept RMS’ submission that the logical focus is on the purpose at the time of acquisition, when the power is exercised. While acts preparatory to the acquisition are evidentially relevant to whether or not that purpose would exist, the critical time for assessing purpose is at the point of acquisition. Desane’s submission that this way of approaching the case was foreclosed to RMS should be rejected.

300. The issue was adverted to by RMS in its Commercial List Response. In answer to paragraph 74 (and in particular paragraph 74(ba)) of the Amended Commercial List Statement, which contained the allegation that RMS was actuated by a purpose of acquiring the Desane property to “meet the Rozelle Parkland Commitment”, RMS denied the allegation and averred, inter alia, that: RMS required and continues to require the Desane property for the purpose of constructing Stage 3 of WestConnex (68E); that RMS is empowered to acquire land pursuant to its powers under the Roads Act (68G) and that the validity of any acquisition (future tense) would not be affected by any failure to comply with the Act, which was denied (68I). In any event, the question of when the relevant time is to identify the purpose of an acquisition is a question of law and no prejudice is occasioned to Desane by focussing on the correct legal question.

297. We are unable to agree with the primary judge that RMS was actuated by an improper purpose at the time the PAN was issued. At the time the PAN was issued, RMS was actuated by the purpose that the property, when acquired compulsorily, would be used as a site for the construction of the Rozelle Interchange, including the WHT enabling works. The substratum of the Desane property was to be used, in part, for road infrastructure. We would draw the following conclusions from the evidence referred to at [4] – [54] above:

1. Although the precise usage has changed over time, as and from at least the November 2015 Updated Strategic Business Case, the Desane property has been part of the footprint of land required by RMS for construction of the proposed Rozelle Interchange.

2. In January 2016, the WestConnex M4-M5 Link State Significant Infrastructure Application Report confirmed that the WestConnex project would require construction facilities close to the Rozelle Interchange portal to provide tunnelling support. RMS believed that the Desane property was necessary to construct the Rozelle Interchange.

3. As and from the 23 March 2016 Memorandum of Understanding between RMS and SMC, the Desane property was identified as a “strategic” land acquisition, being land required under any plausible scenario for the delivery of Stage 3 of WestConnex.

4. On 1 April 2016, Mr Ken Kanofski, the Chief Executive Officer of the RMS, specifically identified the Desane property as a property proposed to be acquired by RMS as it was “required for the Rozelle Interchange”. Acquisition for use in constructing the Rozelle Interchange was Mr Kanofski’s purpose at that time.

5. On 18 April 2016, RMS informed the NSW Cabinet that the Desane property was required for the efficient construction of the Rozelle Interchange, including provision for the WHT. This submission reflected RMS’ purposes at the relevant time.

6. On 27 April 2016, the Expenditure Review Committee of NSW Cabinet approved funding for property acquisitions required for works that needed to be undertaken as part of the WestConnex Stage 3 at Rozelle, including the Desane property.

7. On 31 May 2016, in a letter RMS identified properties to be acquired “for the core site of the proposed Rozelle Interchange”, which included the Desane property. We would infer that this letter reflected RMS’ purposes being to acquire the Desane property for construction of the Rozelle Interchange at the relevant time.

8. The 21 July 2016 NSW Government announcement was at the centre of Desane’s case. As the announcement itself recorded, “the majority of the interchange [is] to be grassed over with a new large park and returned to the community”. The announcement, in its terms, was about a park to be created after the building of the Rozelle Interchange. We would not infer that RMS’ purposes at the relevant time were to obtain the Desane property to build a park, regardless of whether the Desane property was needed for the Rozelle Interchange.

9. On 26 July 2016, the NSW Cabinet “approved the M4-M5 Link tunnel realignment and revised underground Rozelle Interchange that will deliver around 10 hectares in a ‘park ready’ solution over the top of the road infrastructure at the west half of the Rozelle site”. Again, in its terms, it was integral to the NSW Cabinet’s decision that the park was to be created after the building of the Rozelle Interchange. Assuming, in favour of Desane, that the NSW Cabinet’s purpose was RMS’ purpose, we would not infer that RMS’ purpose at the relevant time was to obtain the Desane property to build a park regardless of whether the Desane property was needed for the Rozelle Interchange.

10. On 15 December 2016, SMC made a presentation to RMS which provided Rozelle Interchange Interim Reference Design maps showing tunnelling running underneath the Desane property. We would conclude that this engineering requirement, that the Desane property be used for tunnelling for the purposes of the Rozelle Interchange, never changed. That, in and of itself, was a proper Roads Act purpose for the proposed acquisition.

11. On 31 March 2017, Mr Kanofski’s briefing stated that the Desane property was required for the M4-M5 link and that RMS was applying the statutory obligations under the Just Terms Act by making genuine attempts for at least six months to obtain the land by agreement. We would infer that this briefing paper reflected RMS’ purposes and Mr Kanofski’s purposes at the relevant time.

12. On 3 May 2017, a Minute Paper for the Executive Council signed by the Minister for Roads, Maritime and Freight stated, “I recommend for the approval of His Excellency the Governor, with the advice of the Executive Council, that the land described in the schedule to the attached notice intended to be published in the Gazette be declared by Roads and Maritime Services to be acquired by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 for the purposes of the Roads Act 1993”. We have set out at [45] the content of the Explanatory Note prepared by, inter alia, Ms Karen Durie from RMS. We would infer that this Minute Paper reflected RMS’ purposes at the relevant time and that the statements that it was “necessary to acquire” the Desane property for the purposes of the construction of WestConnex and that “RMS’ road works program requires possession of the land by March 2018”, reflected the genuine beliefs of Ms Durie on behalf of the RMS at that time.

13. On 1 June 2017, an internal RMS email from Mr Jazper Blizzard to Ms Beverly Magpayo “re M4-M5 Link EIS property assumptions” stated that current planning shows the Desane property being used during construction as “Light Vehicle Parking”. We do not draw an inference of the existence of an improper purpose from this document. It will be recalled that the notes sought to be added were accepted by Desane’s counsel in argument as an accurate summary of the proposed engineering use of the Desane property; i.e. in part for tunnel construction.

14. In August 2017, the M4-M5 Link Environmental Impact Statement was published by the NSW Government. This was the most recent document at the time of the trial identifying the use of the Desane property as part of the Rozelle Interchange. The Environmental Impact Statement identified the Rozelle interchange as connecting the M4-M5 Link mainline tunnels with the City West Link, the Anzac Bridge, the Iron Cove Link and the proposed future WHTBL. We would conclude based on this document that RMS’ purpose remained to obtain the Desane property for use in the construction of the Rozelle Interchange.

15. On 22 September 2017, a briefing note was sent to the Minister by Mr Kanofski about WestConnex. The note explained that “Roads and Maritime will make relevant arrangements to designate Urban Growth as the entity that will have responsibility for the New Rozelle Park post M4-M5 Rozelle Interchange completion (potential staged handover)”. The essence of this document is that the funded park design encompassing the Rozelle Rail Yards be delivered as an integral part of the WestConnex M4-M5 Link. That does not demonstrate the existence of an improper purpose, let alone an actuating improper purpose.

302. Samrein was a case where the best evidence of the purpose of a public authority was how the authority expressed itself orally and in writing. We accord significant weight to the documentary evidence from RMS. There was amongst that evidence no suggestion of any concept or plan that RMS would acquire the land even if the land would not be used in construction of the WestConnex project. We have concluded that RMS’ purpose was to acquire the Desane property for use in construction of the WestConnex project. While there remained uncertainty in how the land would be used within the envelope of a construction site, there was no uncertainty that it would be used as part of the construction site.

303. To the extent that the primary judge drew an adverse inference from the apparent failure of RMS to call certain witnesses, it was unclear exactly who those witnesses were or why they were necessary in the face of the formal documentary evidence. In oral argument, the relevant witnesses were identified by Mr Pritchard SC as Mr Kanofski and Ms Durie. We do not think the inference is open on the uncontroversial documentary evidence that either Mr Kanofski or Ms Durie were actuated by the alleged improper purpose

304. In any event, as the High Court explained about the drawing of inferences of this kind in Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [100]:

“[100] This Court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver's dependants. The plaintiff's case depended upon demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held ‘that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence’". (footnotes omitted)

305. Our conclusion based on the documentary evidence is that it was the clearly expressed purpose of RMS (and if it matters, was the clearly expressed purpose of the NSW Government) that a Rozelle Interchange would be constructed as part of the WestConnex project. At all relevant times RMS had a plan to build that Rozelle Interchange. At all relevant times RMS planned to acquire the Desane property for the purpose of constructing that interchange.

306. We are respectfully unable to agree with the finding of the primary judge that “RMS contemplated that the property might not be in the final motorway and utilities footprint because of the necessity to use it to provide open space”. In all of the plans and announcements the land at the Rozelle Rail Yards was not planned to be used to provide open space until after the construction had concluded and utilities footprint had cleared.

307. There was no evidence that anyone at RMS had contemplated that before acquisition of the Desane property there could be a situation where the NSW Government had simply given up on the WestConnex project. There was no evidence to suggest that RMS was actuated by a desire to acquire the property irrespective of whether it was required as a construction site for the WestConnex project.

308. It was sufficient to decide this aspect of the case that the actuating purpose of RMS in proposing to acquire the Desane property was to use it as a construction site and that there would be a tunnel under part of the property. The precise use of the Desane property for the purposes of constructing the Rozelle Interchange would naturally evolve over time and did not need to be identified with precision at the time the PAN was issued.

309. It bears emphasising that Desane accepted in oral argument in this Court that on all relevant iterations of the Rozelle Interchange project, the Desane property was shown as being used for a Roads Act purpose. Desane’s complaint was rather that the specific proposed use of the Desane property changed over time and that these changes, when compared to what they described as the NSW Government’s fixed intention to build the 10 hectares of new parkland, gave rise to an inference that RMS would not have sought to acquire the Desane property except for the purpose of building that parkland. We do not think that inference fairly arises on the evidence.

310. On the basis of the evidence as a whole, the inference we draw is that RMS sought to acquire the Desane property for Roads Act purposes. The Rozelle Interchange was likely to proceed, for which land would be needed for construction. Under all plausible scenarios, the Desane property was required by RMS as a construction site. That purpose was sufficient to meet the threshold of being an actuating purpose. The legitimacy of this purpose is not invalidated because there was a risk that the purpose may not at some future point be realised. There is a degree of uncertainty inherent in every large-scale construction project. The mere fact that it was certain that the land would ultimately be used as a park does not mean that the Roads Act purpose was not an actuating purpose.

311. It follows that we respectfully disagree with the primary judge that RMS was actuated by an improper purpose in issuing the PAN. Desane’s improper purpose claim should have been dismissed.

Conclusion and orders

312. For the foregoing reasons the appeal should be allowed.

313. The following orders should be made:

1. Appeal allowed.

2. Set aside orders 1-4 (inclusive) made by the primary judge on 22 May 2018 and in lieu thereof make the following orders:

1. Summons and Further Amended Commercial List Statement be dismissed.

2. The plaintiff to pay the costs of the second defendant of the trial as agreed or assessed.

3. The respondent to pay the costs of the appellant of the appeal as agreed or assessed.

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Amendments

07 September 2018 - Typographical amendments made to paragraphs [96], [115], [172], [185(4)], [195], [210], [225], [233], [277], [300], [304].

Added the words "and submitted" to [144], line 2.

06 August 2019 - Typographical amendments made to paragraphs [12], [42], [80], [202], [211], [279], [301].

Changed date from 2016 to 2017 in paragraph [53].

Changed reference from section 1(a) to 1(ca) in paragraph[199] .

Deleted words “s 11 and” in paragraph [227].

Decision last updated: 06 August 2019