Spars Pty Ltd v Brisbane City Council
[2007] QLC 23
•12 April 2007
LAND COURT OF QUEENSLAND
CITATION: Spars Pty Ltd v Brisbane City Council [2007] QLC 0023 PARTIES: Spars Pty Ltd (ACN: 113 327 905) as trustee
(applicant)v. Brisbane City Council
(respondent)FILE NO: A2007/0024 DIVISION: Land Court of Queensland PROCEEDING: An application for declarations and other relief. DELIVERED ON: 12 April 2007 HEARD AT: Brisbane DELIVERED AT: Brisbane MEMBER: Mr RS Jones ORDERS: The application is dismissed.
CATCHWORDS: Land Court Act 2000 – jurisdiction of the Land Court – statutory construction – Acquisition of Land Act 1967. APPEARANCES: Mr G Allan with Mr P Walker of counsel instructed by Conomos Lawyers, for the applicant.
Mr M Hinson SC with Mr S McLeod of counsel instructed by D L A Phillips Fox for the respondent.
Spars Pty Ltd, the applicant, seeks declarations and orders from this Court concerning steps taken by the respondent, the Brisbane City Council, to resume land from it under the Acquisition of Land Act 1967. The land intended to be resumed is required to accommodate a part of the major road works project known as the "Hale Street Link". As I understand it, there is a degree of urgency associated with the dealing of this application as at least some of the works associated with this project are scheduled to commence on 1 June 2007.
Background
On or about 17 November 2006 the respondent served on the applicant a notice of intention to resume pursuant to the Acquisition of Land Act 1967 (ALA). This notice notified the applicant that the whole of its land described as lots 1 and 2 on Registered Plan 903012 Parish of South Brisbane, comprising a total area of 8825m² was to be resumed for "Road Purposes". This was objected to by the applicant and on 21 December 2006 the respondent served on the applicant a notice pursuant to s.16 of the ALA discontinuing the resumption.
Also, on 21 December 2006 the respondent served on the applicant a second notice of intention to resume. This document notified the applicant that lots 1 and 2 were to be resumed for "road purposes and a purpose (construction area) Incidental to road purposes."
The applicant objected to the second notice of intention to resume and on 2 February 2007 an objection hearing was held. Following this hearing and the preparation of a report prepared by the respondent's delegate, Dr N G Divett, dealing with the applicant's points of objection, on 9 March 2007 the respondent served on the applicant a further document stated to be a "Notice of Intention to Resume".
The notice of 9 March 2007 relevantly provides:
"Whereas by a Notice of Intention to Resume under the Acquisition of Land Act 1967 and dated the 21st day of December 2006, it was notified that it was intended to take the land described in schedule 1 thereto for road purposes and a purpose (construction area) incidental to road purposes, and whereas the Brisbane City Council now considers that the Notice of Intention to Resume should be amended, it is hereby NOTIFIED that in pursuance of Section 8 of the Acquisition of Land Act 1967 the said Notice of Intention to Resume is amended in that Council now intends to take the land described in Schedule 2 hereto, for road purposes." (emphasis added)
The material differences between the notice of intention to resume dated 21 December 2006 and the notice of 9 March 2007, are; first, in the latter notice the purpose of the resumption is limited to road purposes. Second, as a consequence of the respondent abandoning the intention to resume land for the incidental construction purpose, while the whole of lot 1 was and is still intended to be resumed the resumption affecting lot 2 now leaves a balance area of 3181m² in the ownership of the applicant. The third material difference is that the notice dated 9 March 2007 does not provide to the applicant the same opportunity to object to and be heard about the proposed resumption as provided for in ss.7 and 8 of the ALA.
By reference to the plans attached to the notices of 21 December 2006[1] and 9 March 2007[2] it can be seen that the balance area of 3181m² coincides with the area originally intended to be resumed for the incidental construction purpose. It seems tolerably clear that the decision of the respondent not to pursue the resumption of the additional area was based, at least in part, on the objections of the applicant and the response to those objections by Dr Divett.
[1] Exhibit 1, Attachment 9.
[2] Exhibit 1, Attachment 12.
The Application
It is against this background that the applicant comes to this Court seeking relief. As recognised at page 16 of the written submissions of the applicant the relief sought is materially declaratory in nature. Essentially the applicant wants the notice of intention to resume served 21 December 2006 declared to be of no effect and the notice of 9 March 2007 declared to be unlawful and invalid and that the respondent to be ordered to comply with s.7(3) and s.8 of the ALA.
At the heart of the applicant's challenge is that the notice does not afford the opportunity to object to what is, according to it, in reality a fresh resumption. The position of the applicant is neatly summarised in its application in the following terms:
"The Applicant has a statutory right under the Acquisition of Land Act 1967 to object to the amended Notice of Intention to Resume in accordance with the process prescribed under s.7(3) of the Act and to have the objection dealt with in accordance with s.8(1)-(2A) of the Act."
The application is resisted on essentially three grounds, namely:
i. The Land Court does not have the jurisdiction to grant the relief sought.
ii.On a proper construction of the ALA the respondent was not required to treat the notice of 9 March 2007 as if it were a new or original notice of intention to resume thereby requiring the respondent to offer and repeat the objection process prescribed in sections 7 and 8 of the ALA.
iii.In any event, if it was found that compliance with sections 7 and 8 of the ALA was required, in the circumstances of this case, non compliance does not render the notice of intention to resume of 9 March 2007 invalid or otherwise unlawful.
The Jurisdiction Issue
As was identified by the learned Member in the unreported decision of the Land Court in Maroochydore Central Holdings v Maroochy Shire Council,[3] this Court is not a court of general jurisdiction and has only limited powers to grant declaratory relief. In this context in Stranfield v Brisbane City Council[4] the Land Appeal Court at page 396 said:
"The Land Court and the Land Appeal Court are courts of statutory creation and their jurisdiction depends entirely upon the conferral of power by statute. These courts cannot assume a jurisdiction which they do not possess, convenient though it may sometimes seems to be."
[3] [2002] QLC 77 at [6].
[4] (1990) 70 LGRA 392 at 396.
In this matter it seems to be common ground that the powers to make declarations are to be found in s.33 of the Land Court Act 2000 (LCA) which relevantly provides:
"33.(1) Any person may bring proceedings in the Land Court for a declaration about -
(a) a matter done, to be done, or that should have been done under this Act or another Act giving jurisdiction to the court; and
(b)the construction of any legislation for the purpose of proceedings in which the court has exclusive jurisdiction.
…
(5) The Court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1)."
It is also common ground that the power of the Land Court to make declarations should not be construed as being subject to limitations not appearing in the actual words used to confer or grant the power.[5] However, in Maroochy Shire Council v Maroochydore Central Holdings Pty Ltd[6] the Land Appeal Court had this to say about the operation and effect of s.33 of the LCA:
"[32]Section 33 of the LCA provides the Land Court with a useful adjunct to its jurisdiction under the Act, enabling a decision about the construction or the application of the Act to be made in advance of the determination of the entire dispute between the parties. In some cases using this additional jurisdiction may facilitate the resolution of the larger dispute between the parties.
[33]There is nothing in the language of s 33 of the LCA to suggest that it is concerned with other than the application or construction of legislation in respect of which the Land Court has jurisdiction. It is not intended to confer on the Land Court a jurisdiction similar to that which involves the review of administrative decision making, as conferred by the Judicial Review Act 1991."
[5]Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185, 202-203, 205: Owners of "The Ship Shin Kobe Maru" v Empire Shipping Co. Inc. (1994) 181 CLR 404 at 421.
[6] [2003] QLAC 0024 at [32] – [33].
In my opinion, any power that I might have to grant the relief sought must come from s.33(1)(a) of the LCA. Relevantly, for the purposes of s.33(1)(b) I am prepared to accept that the subject application is a "proceeding". However, in my opinion, the Land Court does not have exclusive jurisdiction over the ALA or in respect of the type of proceedings now before the Court. As I have already said, the purpose of these proceedings is essentially to have the notices of intention to resume declared unlawful and set aside and to otherwise require the respondent to comply with sections 7 and 8 of the ALA. As was pointed out by Mr Hinson SC, senior counsel for the respondent, in substance the relief sought by the applicant here would be available in the Supreme Court of Queensland under s.128 of the Supreme Court Act 1995 or the Judicial Review Act 1991. Insofar as the judicial review legislation is concerned Mr Hinson SC drew to my attention the recent decision of the Court of Appeal in Module 2 Pty Ltd v Brisbane City Council [2006] QCA 226. In that case, the Court of Appeal and the Court below were concerned with an application pursuant to the Judicial Review Act 1991 where it was argued that the notices of intention to resume were invalid because, among other things, they failed to comply with s.7 of the ALA. Sections 7 and 8 of the ALA and the rules of natural justice were also considered by the Supreme Court of Queensland and the Court of Appeal in Little v Minister of Land Management.[7] It could not be reasonably suggested in my opinion that, since the introduction of s.33 of the LCA, the jurisdiction to deal with such matters passed from the Supreme Court to the Land Court.
[7] (1995) 1 Qdr 190.
During argument Mr Allan, leading counsel for the applicant, sought to distinguish the relief sought here from that which might be available by way of judicial review. In this context Mr Allan submitted that the relief sought here was a declaration concerning the proper construction of the ALA. In my opinion these arguments fail because; first, no meaningful distinction can be drawn between the relief sought in this Court and that which would be available in the Supreme Court under the Judicial Review Act 1991. Second, in any event, declarations concerning the operation and effect of ss.7 and 8 of the ALA would otherwise be available in the Supreme Court. This Court does not have exclusive jurisdiction over the ALA, save for proceedings relating to compensation under that Act.[8]
[8] s.26(1) ALA and s.5(2) Land Court Act 2000.
Mr Allan also drew my attention to the wording of s.26(1) of the ALA. I agree that this Court has exclusive jurisdiction to determine all matters relating to compensation under that Act and that the words "all matters relating to" should be interpreted widely. I also agree that the assessment of compensation is not limited to only those cases where land has in fact been resumed thereby creating, pursuant to s.12(5) of that Act, a right to claim compensation in the hands of the dispossessed owner.[9] However, s.26 of the ALA cannot, in my opinion, in these proceedings assist the applicant as the Court is not here concerned with a matter relating to compensation.
[9] See for example ss.16, 17 and 37 of the ALA.
Turning now to s.33(1)(a) of the LCA, Mr Hinson SC was prepared to concede that the relief sought concerned matters done, to be done or should have been done under the ALA and that that Act did give jurisdiction to the Land Court. However, Mr Hinson SC argued to the effect that the jurisdiction of the Land Court under the ALA was limited and did not extend to the granting of the relief sought.
Section 5 of the LCA provides:
"Jurisdiction of Land Court
(1) The Land Court has the jurisdiction given to it under any Act.
(2) If jurisdiction for a proceeding is expressly conferred on the court under any Act, the jurisdiction is exclusive."
In Project Blue Sky Inc v Australian Broadcasting Authority[10] at paragraph 69, McHugh, Gummow, Kirby and Hayne JJ, in their joint judgment relevantly said:
"… In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed (48)."
[10] (1998) 194 CLR 355 at 381.
In my opinion, the phrase "… (an) Act giving jurisdiction to the Court." as it appears in s.33(1)(a) of the LCA, when read with s.5 of that Act, should be construed to mean that the jurisdiction conferred on the Land Court to grant declaratory relief does not, relevant to this application, extend beyond those matters over which the Land Court has had jurisdiction conferred pursuant to the ALA. It is necessary to fairly determine the extent of the jurisdiction conferred by the Act. It is not enough, in my opinion, that the Act is one which confers jurisdiction (even exclusive jurisdiction) but only in respect of some of the matters about which the Act is concerned. The ALA does not, in my opinion, either expressly or by implication confer upon the Land Court the jurisdiction to grant the relief sought.
Such a construction, in my opinion, is consistent with reasoning expressed in the passage from Project Blue Sky referred to above and with the observations of the Land Appeal Court in Maroochydore Central Holdings at paragraph 34 and is not, in my view, inconsistent with the rules concerning the construction of legislation conferring jurisdiction referred to above in paragraph 13.
For the reasons expressed above I have reached the conclusion, and so find that I do not have the jurisdiction to grant the relief sought. Accordingly, the application fails.
The Construction of the ALA
My decision concerning the jurisdiction of this Court might ordinarily be the end of the matter. However, for reasons of efficiency both the jurisdictional and merits arguments were dealt with by the parties on 29 March 2007. In the event that my decision concerning jurisdiction is appealed it is possible, in the event of a successful appeal, that the Land Appeal Court might refer the proceedings back to me for determination on the merits of the statutory construction point. In circumstances where I have heard the argument and reached a firm view about it this would be undesirable in my opinion. Accordingly, I will now proceed to deal with that matter.
Central to the case for the applicant[11] is that for the notice of intention to resume of 9 March 2007 to be valid it must comply with all of the requirements of s.7(3) of the ALA.
[11]refer to paras 1, 19 – 21, 31 and 40 of the applicants written submissions and at 131 at page 6.5 of the Transcript of the proceedings.
Sections 7 and 8 of the ALA relevantly provides:
"7 Notice of Intention to take land
(1)A constructing authority which proposes to take any land shall serve as prescribed by this section the notice (a notice of intention to resume) prescribed by this section. (emphasis added)
(2)A notice of intention to resume shall be served upon any and every person who to the knowledge of the constructing authority –
(a) will be entitled to claim compensation under this Act in respect of the taking of the land concerned; or
(b)is a mortgagee of the land.
(3)A notice of intention to resume shall in writing and shall –
(a)specify the particular purpose for which the land to be taken is required; and
(b)state the description of the land to be taken which description –
(i)if the land is described as a separate lot or parcel in a plan of survey registered in the land registry or deposited in the office of the chief executive (surveys) – shall be that description; or
(ii)if the land is not described as mentioned in subparagraph (i) – may be made in any manner sufficient to substantially identify the land; and
(c)in the case of an easement – also state the rights and obligations to be conferred and imposed by the easement; and
(d) state that the person to whom the notice is directed may, on or before the date specified in the notice (being a date not less than 30 days after the date of the notice), serve upon the constructing authority at the address set out in the notice an objection in writing to the taking of the land; and
(e)in relation to the objection mentioned in paragraph (d) set out –
(i)that the objection must state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds; and
(ii)that any matter pertaining to the amount or payment of compensation is not a ground of objection; and
(iii)that an objector who states in the objection that the objector desires to be heard in support of the grounds of the objection may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice; and
(f) state that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters.
(4)…
(4A)If the constructing authority amends or discontinues the resumption it shall forthwith file with the land registry a notice of the amendment or discontinuance.
8 Dealing with objections
(1)A person entitled to be served with a notice of intention to resume land who has objected as prescribed to the taking shall not be entitled to be heard in support of the grounds of the objection unless the person stated in the objection that the person desired to be so heard and appears, in person or by counsel, solicitor or agent, at the time and place specified in the notice.
(2)The constructing authority shall consider the grounds of objection to the taking of any land and –
(a) if the objector has been heard by the constructing authority – the matters put forward by the objector in support of such grounds; or
(b) if the objector has been heard by the delegate of the constructing authority – the report thereon of such delegate.
(2A)If upon such consideration, the constructing authority is of opinion that the resumption should be discontinued or that the notice of intention to resume should be amended, the constructing authority may discontinue the resumption or amend the notice of intention to resume.
(2B)However, a notice of intention to resume shall not be amended so as to include therein land additional to the land the subject thereof."
I agree with the following propositions raised by Mr Allan in support of the application. First, that s.7 and s.8 of the ALA should be seen as bestowing benefits and/or remedies in favour of dispossessed landowners and, accordingly, should be construed liberally to ensure the fullest relief legitimately available under the legislation. Second, that a notice of intention to resume for the purposes of s.7(1) and s.7(3) of the ALA must comply with the subsections 3(d), (e) and (f) of s.7. Third, it is not too difficult to imagine that an amendment of a notice of intention to resume pursuant to s.8(2A) of the ALA may raise matters not raised by the original notice and about which the landowner has legitimate objections. I also agree that the ALA does not expressly provide that a landowner served with the notice of amendment contemplated by s.8(2A) is not entitled to lodge a formal objection.
On balance however, I have reached the conclusion that the construction of the relevant sections of the ALA contended for on behalf of the applicant is wrong.
As identified by Mr Hinson SC there are three potential outcomes of the objection process provided for in ss.7 and 8 of the ALA:
(i) Continuation of the resumption as originally particularised in the notice of intention to resume.
(ii) Discontinuance of the resumption. (This could result in an abandonment of the resumption or the process being started afresh)
(iii) the resumption as originally proposed being amended (s.8(2A)) provided that any such amendment does not result in additional land being included (s.8(2B)).
In the event that the constructing authority decides to discontinue the resumption process, notice of that is required pursuant to s.16 of the ALA. However, both Mr Hinson SC and Mr Allan drew my attention to the fact that there was no express requirement to serve any amendment to the notice of intention to resume on the landowner. Mr Hinson SC however did not in any way suggest that the landowner was not required to be notified in respect of any such amendment.
Mr Allan argued in paragraphs 30 and 31 of his (and Mr Walker's) written submissions that the effect of s.9(4)(a) of the ALA is to require any amendment to a notice of intention to resume pursuant to s.8(2A) to be served on the landowner. And, that as s.9(4)(a) requires service to be "under section 7" the notice of amendment must comply with all the provisions of s.7(3).
On balance I consider that when s.9(4)(a) of the ALA speaks about service "under section 7" it is probably speaking about the original notice of intention to resume and any amending notice under s.8(2A). However, even if that is so it does not follow that the amending notice must comply with all of the requirements specified in s.7(3) of the Act.
Section 7(1) requires the constructing authority to serve "as prescribed by this section" the notice of intention to resume "prescribed by this section". Section 7(2) then identifies those persons who are required to be served with the notice. Subsection 3 of s.7 is materially concerned with what information is required to be contained in the notice of intention to resume. If that information is not present in the notice of intention to resume then it would not satisfy the requirement that the notice be as "prescribed" by s.7(1). In my opinion, the requirement in s.9(4)(a) that service be "under section 7" is satisfied provided that s.7(2) is satisfied. Section 9(4)(a) should not be construed as requiring the amending notice to satisfy both the obligation that it be served as prescribed in s.7 and be in the form and contain all the matters as also prescribed in s.7.
When the relevant provisions of the ALA are read in context I am unable to discern any requirement that the notice amending (as is contemplated in s.8(2A)) a notice of intention to resume must satisfy all of the requirements prescribed in s.7(3) of the Act. If that is what Parliament intended it could have been quite readily provided for in s.8(2A) or by the introduction of a new subsection to s.7 or s.8 of the ALA.
This of course does not mean that the notice amending the original notice of intention to resume could be a meaningless and uninformative document. At the very least the rules of natural justice or procedural fairness would require the amendment under s.8(2A) to contain sufficient information to allow the landowner to be fully informed as to the nature and extent of any changes from the original notice of intention to resume.
For the reasons set out I do not consider the notice of 9 March 2007 to be invalid or otherwise unlawful because of any contravention of the ALA.
The other arguments
Also for the reasons set out above, I do not consider it necessary to consider the further alternative argument of the respondent summarised in paragraph 10(iii) above.
It was also argued on behalf of the applicant that under "the general law" it was entitled to procedural fairness and, in the circumstances, procedural fairness would require that the applicant should have essentially the same rights of objection as those prescribed in ss.(7) and 8 of the ALA. The respondent does not dispute that the applicant is entitled to procedural fairness but says that the doctrine does not require the respondent to effectively start the resumption process from the beginning.
Having regard to my conclusions concerning jurisdiction and the construction of the relevant sections of the ALA I do not consider it necessary for me to also consider and determine this issue.
Under correspondence dated 5 April 2007 (received in the Registry of this Court on 10 April 2007) I received a copy of certain documents described as a "Form 14 – General Request". No explanation or submissions were made concerning these documents but I was asked to "take them into account when making my decision". I have looked at the documents and do not consider that they affect my opinions and conclusions as expressed above.
I publish my reasons and will hear from the parties as to costs.
Order
The application is dismissed.
RS JONES
MEMBER OF THE LAND COURT
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