Spagnolo v The Minister for Lands - [2000] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SPAGNOLO & ANOR -v- THE MINISTER FOR LANDS [2000] WASC 113

CORAM: TEMPLEMAN J

HEARD: 18 APRIL 2000

DELIVERED : 18 APRIL 2000

FILE NO/S: CIV 1382 of 2000

BETWEEN: ROSARIO SPAGNOLO
ROSALIA SPAGNOLO
Plaintiffs
AND
THE MINISTER FOR LANDS
Defendant

Catchwords:

Real property - Resumption or acquisition of land - Application for interlocutory injunction restraining defendant from entering plaintiffs' land - Whether a notice of entry issued by the defendant was valid under s 186 Land Administration Act 1997 - Notice of entry purported to be issued after attempts to agree a valuation of land failed - Objection to resumption limited to compensation offered - Consideration of whether there is a serious question to be tried and where the balance of convenience lies

Legislation:

Land Administration Act 1997, s 170, s 186

Result:

Application for interlocutory injunction dismissed

Representation:

Counsel:

Plaintiffs: Mr C H Edwards
Defendant: Mr M G Lundberg

Solicitors:

Plaintiffs: AC Thorpe
Defendant: State Crown Solicitor

Case(s) referred to in judgment(s):

R v Secretary of State for Transport; Ex parte De Rothschild [1989] 1 All ER 933

Case(s) also cited:

Buck v Bavone (1976) 135 CLR 110
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365
CFMEU v Guidice (1998) 159 ALR 1
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

TEMPLEMAN J: This is an application for an interlocutory injunction in which the plaintiffs seek to restrain the defendant and his servants or agents from entering on to a defined parcel of land. The summons is in an action in which the plaintiffs seek similar relief on a permanent basis pursuant to a declaration that a notice of entry purported to be issued by the defendant is invalid and of no force and effect.
The plaintiffs are the owners of the relevant land and the defendant is the Minister for Lands. The plaintiffs own a parcel of land which is some 600 metres by 100 metres in size. It is grazing land used for that purpose and there are no buildings on it other than perhaps a shed. The south-eastern boundary of that land, which is 117‑odd metres in length, fronts on to Lake Road in Westfield.
In April 1999, the City of Armadale, in which the land is situated, wrote to the plaintiffs to inform them that the Armadale council had commenced design work for the upgrade of Lake Road to dual carriageway and that it was expected that works would be commenced during September or October of that year.
The council went on to say that it wished to construct a dual carriageway along a particular section of Lake Road - that is, the section fronted by the plaintiffs' land - and that the existing road reserve boundaries would need to be widened to achieve the desired road width. It was said that an additional 6 to 8 metre strip of land would be required from the numerous owners along the section of Lake Road for road widening purposes.
The plaintiffs were put on notice that an 8 metre strip along the front of their property would be required in their case. They were invited to contact an officer of the council to discuss the matter further so that negotiations for the land resumption could commence.
On 1 June, the City of Armadale wrote again to the plaintiffs referring to earlier correspondence - that is said to be a letter of 1 April although there is no letter, I think, of that date in evidence - and saying that a report and valuation had been prepared by the Valuer General's office on the 6 metre strip of land along the front of the property which the council required as a road reserve. The value of that land had been assessed at $3500. Although the letter referred to a 6 metre strip, the area referred to was 937 square metres, which I think involved an 8 metre strip. There is no dispute that it is in fact 8 metres which it is now sought to acquire.
The letter of 1 June referred to the way in which the city would be funded for the acquisition and requested the plaintiffs to inform council, after they had considered the offer price, as to their acceptance or otherwise. The plaintiffs replied to that letter at the end of June 1999. The letter was signed by the first plaintiff who said he felt obliged to express his concern and disappointment about the offer made for a portion of his land required as a road reserve. He said:
"To be more direct, I feel that the offer is completely unreasonable. I have investigated recent sales of land in the area and also inspected land for sale in the region, which suggests that the portion of my land council requires has a substantially greater market value. I am not anti-development but I will pursue avenues to ensure my land is fairly compensated before it is obtained by council. You should also note that I am not a speculator and have held this land for over 20 years. I expect that you would treat any changes to this land with the utmost sensitivity and respect. In concluding, I regard the offer as unreasonable."
I pause to note that the letter contained no objection to the taking of the land. Indeed, the plaintiff expressed that he was "not anti-development". The objection was purely as to the amount offered. That amount was increased in a letter of 27 September 1999. The council wrote to the plaintiffs referring to more recent information regarding sales which meant that a higher price could be offered, that being $4700. The letter concluded:
"As with previous advice, council would ask you to consider this new offer and to advise in writing as to your acceptance or otherwise. In the interim if you have any queries regarding this new offer, please contact…."
and then the officer was named and his telephone number given. The letter clearly constituted an invitation to the plaintiffs to negotiate; but it appears that there was no response to it. The next step was in January of this year when a notice of entry to the land was served on the plaintiffs under the hand of Mr Murray Criddle MLC, the Acting Minister for Lands.
The notice was expressed to be given in accordance with s 186 of the Land Administration Act 1997. It gave notice that the Acting Minister had authorised the City of Armadale to enter upon the portion of the land in question, that being the 8 metre strip. The Acting Minister went on to say:
"The city required urgent entry to the land in order to commence work on the upgrading and widening of Lake Road, Westfield."
He said:
"The Department of Land Administration would proceed with formal acquisition of the land on behalf of the City of Armadale as soon as possible after service of the notice."
Following receipt of that letter the plaintiffs instructed their solicitors. They wrote to the Acting Minister on 24 January 2000. They contended that the notice was defective for reasons set out in the letter. It is not necessary to go into those matters. It is sufficient to say that although the Crown Solicitor's Office, which responded to the plaintiffs' solicitors' letter, took issue with the proposition that the notice was defective, the notice was effectively withdrawn in March of this year after the plaintiffs commenced proceedings.
It is not clear precisely when the notice was withdrawn. A consent order was made, as I understand it, by Heenan J, I think, some time before 10 March. I say that because on 10 March another notice of entry was served on the plaintiffs pursuant to s 186 of the Land Administration Act. This notice was served under the hand of Doug Shave MLA, the Minister for Lands. The notice said:
"The city requires urgent entry to the land in order to commence work on the upgrading and widening of Lake Road, Westfield. I am satisfied that the work is of such urgency that it is impractical and unreasonable to delay entry on to the land until the land has been taken in accordance with Part 9 of the LAA.
The decision is based on information provided to me by the city relative to the urgency of the situation and is summarised as follows:
·I am concerned with road safety issues that would arise should completion of the roadworks on the northern carriageway side of the new road be delayed. The city advise me, in all likelihood, that traffic movement over the new 'northern' road would be restricted to the southern portion of the dual carriageway, during its construction phase, if access to your land was denied it for construction purposes.
·Difficulties the City would encounter in constructing a road pavement in the wet months of the year, with resultant additional construction costs, if the roadworks are delayed."
The letter went on to refer to the anticipated entry to the land. Again it was said that the Department of Land Administration would proceed with formal acquisition of the land in due course. The plaintiffs contend that this March 2000 notice is also invalid. That contention is maintained despite the fact that the Minister expressed himself to be satisfied about the urgency of the work and the fact that it was impractical and unreasonable to delay entry.
It is submitted on behalf of the plaintiffs that notwithstanding those matters the Minister cannot rely on s 186 of the Land Administration Act in the present circumstances. Put shortly, the rival contentions are as follows: it is the plaintiffs' contention that the appropriate course for the taking of the land is pursuant to s 170 of the Land Administration Act to which I will refer as "the Act". That is because s 170(1) says:
"Subject to this section, if it is proposed to take interests in land without agreement under this part, the Minister must issue a notice of intention to take the interests, in accordance with this section." (My emphasis)
I should say that the s 170 procedure would be appropriate if, as has occurred in this case, there has been no agreement between the parties as to the acquisition of the land.
If a notice of intention is issued in accordance with s 170, then the statutory scheme must be followed. That includes a procedure for the person affected to object to the taking; and for objections to be considered by the Minister, who is also to consider any other representations by the objectors, those being persons whose interests are affected by the proposal.
Section 186 provides:
"(1) If the Minister is satisfied that -
(a)it is necessary to use any land for a proposed public work for which the Minister is authorized to take interests in land; and
(b)because of the urgency of the work or the difficulty in tracing the proprietors of the land it is unreasonable or impractical to delay entry on to the land until the land has been taken in accordance with this Part,
the Minister may authorize a person
(c)to enter on the land;
(d)to do anything necessary in order to study the feasibility of the proposed public work;
(e)to do anything necessary as preliminary or ancillary to the undertaking, constructing or providing of the public work; and
(f)to carry out the public work,
in all respects as if the necessary taking order had been made for the purposes of the public work."
It is not in dispute that the Minister is satisfied that it is necessary to use the plaintiffs' land for a proposed public work and that the Minister is authorised to take interest in that land. It is not in dispute that the Minister has satisfied himself about the urgency of the work and that he believes it is unreasonable or impractical to delay entry on to the land.
The point at issue is that the Minister, it is said on behalf of the plaintiffs, has made an error of law because the work to which the taking order has been directed does not have the degree of urgency which is required if there is to be resort to s 186.
It is submitted on behalf of the plaintiffs that s 186 is not an alternative procedure to s 170. It is a procedure which is draconian in nature which can be implemented only if there is in fact the necessary degree of urgency.
What is said in the present case is that the urgency here, if it exists at all - and that is disputed on the facts - is in a sense self-induced urgency resulting from the failure of the Minister to act promptly in initiating the s 170 procedure.
Against that, it is submitted on behalf of the Minister, that the work is urgent. That is because the road‑widening has been completed except for the 117‑odd metres which is constituted by the plaintiffs' land; that road safety considerations require the road to be opened fully as soon as possible and that any delay resulting from these proceedings will result in increased costs.
There is much force in the plaintiffs' submissions, but it is not necessary for me to decide that question today, and indeed I do not think I could decide the question of fact; that is to say, whether as a matter of fact the work is urgent, on the evidence as it now stands. One reason is that the defendant today provided me with an affidavit setting out the matters of urgency relied on: that affidavit being sworn by Mr William Andrew Bruce, who is the executive director of technical services employed by the City of Armadale. In his affidavit he sets out the practical considerations relating to the road-widening project.
This being an interlocutory injunction application, subject to a matter to which I will refer in a moment, I am required first to consider whether there is a serious question to be tried: and secondly, to consider, if so, where the balance of convenience lies. It seems to me, clearly, there is a serious question to be tried in the sense that the construction of s 186 is a matter which is open to argument, as is the factual issue about urgency.
I therefore turn to the question of the balance of convenience.
In so doing I acknowledge the plaintiffs' right to have their land taken by proper procedures. I have been referred to a passage in a decision of the Court of Appeal in R v Secretary of State for Transport; Ex parte De Rothschild[1989] 1 All ER 933 at 935 where Slade LJ said:
"It has to be recognised that the compulsory purchase of land involves a serious invasion of the private proprietary rights of citizens ... The powers of compulsory purchase of an acquiring authority are of a draconian nature. The power to dispossess a citizen of his land against his will is clearly not one to be exercised lightly and without good and sufficient cause. "
It is submitted that the situation is a fortiori in the present case, where there is not merely compulsory acquisition but enforced resumption, there being no opportunity for all practical purposes to reverse the acquisition once the works have been carried out.
It is to be noted, of course, that Slade LJ referred to the power to dispossess a citizen of his land against his will. In the present case, as I have already noted, the dispossession of the plaintiffs is not against their will in the sense that the plaintiffs have said they are not against development. What is of concern to them, their principal concern I think, is the amount of compensation on offer.
If I decline to grant an injunction, the plaintiffs' rights would effectively be defeated because the defendant would achieve the result he seeks to achieve without a trial. What that means in practice, I think, is that the plaintiffs would be denied the rights of objecting to the taking of the land which they would have had if the s 170 procedures were followed.
However, three things need to be said about that. The first is that, as I have already indicated twice, the plaintiffs have not objected to the land being taken: only to the amount of compensation offered. Counsel for the plaintiffs submits that the plaintiffs have not been obliged to state their objections: that there is no legal obligation on them to do so until the appropriate notice is served.
I accept that submission, but I bear in mind that the plaintiffs are asking the Court to exercise a discretion in their favour and it would be easier to exercise that discretion if it was apparent that there were valid objections on the part of the plaintiffs.
The second thing that needs to be said is that there is no evidence of any practical inconvenience to the plaintiffs if the work was to be carried out by the defendant under the s 186 procedure. The land which is affected is a relatively small strip of grazing land of about a quarter of an acre in size, whereas the overall block is something in the order of 15 acres.
The third matter is that there is before me a certificate issued by the Western Australian Planning Commission pursuant to cl 42 of the Metropolitan Regional Scheme. That certificate, which is dated 14 April 2000, shows that a 6.2 metre strip of the plaintiffs' land, which is part of the 8 metre strip, has already been reserved for the widening of Lake Road. It is not clear when that reservation became effective but I infer that the plaintiffs are aware of it. They certainly should be aware of it.
Those three considerations lead me to the view that probably - and I think it is a high probability - even if the s 170 procedures were followed the land would in due course be taken. The question of compensation arises in any event: but that is not a factor which it is necessary to take into account in determining the balance of convenience.
Against those considerations; on the defendant's side it is submitted that the Court should take into account the interests of third parties such as the interests of road users in the Westfield area and, more generally, the community interest in the proper and safe regulation of traffic. That is I think a legitimate matter for me to take into account.
I accept that if the road widening was delayed the result would be that the public would have to use the single carriageway for the time being, as they have always done. However, on each side of what is I think a 1.6 kilometre stretch of single carriageway there is now a new dual carriageway. That means that motorists and other road users must be diverted from the dual carriageway, by some funnelling process, onto a single carriageway when travelling in each direction. There is, I think, inevitably some hazard involved in that course.
I am also asked to have regard to the fact that if an injunction is granted, the City of Armadale would be required to close down this stage of the road widening and undertake additional works to minimise the hazards along that stretch of road. This would cost approximately $27,000. That is in summary Mr Bruce's evidence to which I referred earlier. It is said that if the work is ultimately undertaken in the wet months, construction costs would be higher.
There is an inference, of course, that this would involve additional public expense: although if the injunction were to be granted and the plaintiffs were unsuccessful at trial, there is the probability that they would be required to pay or make a substantial contribution to those costs under their cross-undertaking in damages. That could be a very expensive exercise for them.
I appreciate that where, as here, the refusal of an injunction would effectively decide the action, the Court must approach the matter with some caution. The principle is conveniently set out in Seaman in par 52.1.8 in the following terms:
"The practical impact of the grant of relief should be considered... The degree of likelihood that the plaintiff will succeed becomes a significant factor when the practical impact of the grant of an interlocutory injunction is that the litigation is, effectively, determined and should be brought into the balance in weighing the risk that injustice may be done in deciding the application one way rather than the other... It is then desirable to evaluate the strength of the plaintiffs' case for final relief... Unless the case is so strong that it would be a waste of time and expense to let the action go to trial, an injunction should be refused because to deprive the defendant of a trial is in general an injustice; Cayne v Global Natural Resources PLC 1 All ER 225 at 238."

In the present case the situation is the reverse. If an injunction were refused, it would in all probability deprive the plaintiffs of a trial. The headnote to Cayne's case to which I have referred contains the following passage:
"Where the grant or refusal or an interlocutory injunction will have the practical effect of putting an end to the action, the court should approach the case on the broad principle of what it can do in its best endeavour to avoid injustice and to balance the risk of doing an injustice to either party. In such a case, the court should bear in mind that to grant the injunction sought by the plaintiff would mean giving him judgment in the case against the defendant without permitting the defendant the right of trial. Accordingly, the established guidelines requiring the court to look at the balance of convenience when deciding whether to grant or refuse an interlocutory injunction do not apply in such a case since whatever the strengths of either side, the defendant should not be precluded by the grant of an interlocutory injunction from disputing the plaintiffs' claim at trial."
I have already indicated the case is the other way around here. I am mindful of the need for caution but I think the essential principle is that the Court should approach the case on the broad principle of what it can do in its best endeavours to avoid injustice.
In that context I should say that although, as I have indicated, I regard the plaintiffs' case as reasonably strong, it is not, in my view, so overwhelming, certainly on the evidence as it appears now, as to say that the plaintiff must succeed at trial. The point about self‑induced urgency is, I think, perhaps not as simple as it appears at face value.
Although it is true that the defendant has delayed in the sense that he has not served a s 170 notice, I think the blame for that cannot lie wholly with the defendant bearing in mind that there appears to be no response from the plaintiffs to the letter of late September in which the increased offer was made.
I do not think it would be right for me to assume that the failure of negotiations was attributable to either the plaintiffs or the defendant. That being so, I think I need to consider the balance of convenience to this extent. If the defendant is right, then to grant an injunction would be to work an injustice on him. It would inconvenience third parties and it might result in public money being wasted unnecessarily subject, of course, as I have already said to the plaintiffs' cross-undertaking in damages.
Against that, if the plaintiffs are right, to refuse an injunction would deny them a trial. More practically it would deny them the right to object to the taking of land but in circumstances in which they apparently have no basis for objecting. As I have said, there is nothing in the evidence from which any inference can be drawn about the basis on which they might object and they have not stated what their objection might be.
To refuse an injunction would, I think, deprive the plaintiffs of some bargaining power. But if they have that bargaining power, that would be a windfall which they would have acquired at the public expense. It occurred to me in the course of the submissions this morning that the plaintiffs might be motivated by a desire to take advantage of their bargaining position and thereby in effect hold the defendant to ransom.
I raise that with counsel for the plaintiffs who denied on the plaintiffs' behalf that that was their attitude. I accept that denial but the result is that the plaintiffs really set no store on their increased bargaining power.
Ultimately, as I have said, the matter seems to me to be a matter for compensation. But there is no denial of the plaintiffs' right to claim proper compensation and to have that issue ventilated in the Court if they are not satisfied with what is ultimately offered to them.
It seems to me, weighing up all these considerations, that the least injustice would be done by declining to grant an injunction in these somewhat unusual circumstances. For all those reasons I consider the appropriate course is now to dismiss the application.