Tavitian v Commissioner of Highways
[2015] SASC 108
•29 July 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
TAVITIAN v COMMISSIONER OF HIGHWAYS
[2015] SASC 108
Judgment of The Honourable Chief Justice Kourakis
29 July 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION - RIGHT TO COMPENSATION - GENERALLY
REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - POWERS OF ACQUISITION - GENERALLY
The plaintiff brought a claim relating to the compulsory acquisition of his land under the Land Acquisition Act 1969 (SA). In 2008 the defendant compulsorily acquired a portion of the plaintiffs land abutting the Sturt Highway. In the process of the work on the Sturt Highway a number of drainage pipes were installed to direct stormwater from the carriageway. The stormwater would flow into a dam on the plaintiff’s property. The plaintiff complains that this caused erosion and subsurface cavities on his land. The plaintiff claimed that the works necessarily involved the acquisition of an interest in his land, namely an easement. He further claims that the defendant did not comply with the procedure of the Land Acquisition Act 1969 (SA) and denied him relevant compensation.
The defendant applied to this court for summary judgment or summary dismissal of the claim.
Held:
1. The Commissioner was not obliged under the Land Acquisition Act 1969 (SA) to acquire an easement in the plaintiff’s land.
2. The first three declarations sought by the plaintiff are not justiciable by this court.
3. There is no reasonable prospect that the fourth declaration would be answered in the plaintiff’s favour.
4. Summary judgment is entered for the defendant in relation to the declarations sought concerning the relationship of the Land Acquisition Act 1969 (SA) and the Highways Act 1926 (SA).
5. The injunction sought by the plaintiff is mandatory and cannot be ordered against the defendant as an instrumentality of the Crown. Summary judgment is entered for the defendant.
6. The statement of claim is struck out. The plaintiff is granted permission to file a fresh statement of claim seeking damages in nuisance.
Crown Proceedings Act (SA) s 7; Highways Act 1926 (SA) s 20, s 26; Land Acquisition Act 1969 (SA) s 16, s 17; Local Government Act 1999 (SA) s 215, referred to.
Bankstown City Council v Almado Holdings Pty Ltd (2005) 223 CLR 660, applied.
Kleentex (Thailand) Co Ltd v Corproate IM Pty Ltd [2012] SASC 71; Spencer v Commonwealth (2010) 241 CLR 118; Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489; Singleton v Freehill Hollingdale & Page [2000] SASC 278; Plenty v Attorney-General (SA) [2013] SASC 35, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Acquisition of land", "easement", "powers of the Crown", "summary judgment", "Highways", "stormwater", "drainage"
TAVITIAN v COMMISSIONER OF HIGHWAYS
[2015] SASC 108
KOURAKIS CJ: This is an application by the defendant, the Commissioner of Highways, for summary judgment pursuant to Supreme Court Rules 2006 (SA) rule 232 or alternatively for summary dismissal of the claim brought by the plaintiff, Mr Tavitian, pursuant to rule 193.
Mr Tavitian’s claim arises out of the compulsory acquisition of a portion of his land abutting the Sturt Highway by the Commissioner of Highways in 2008. The land was acquired so that the original single carriageway of the Sturt Highway, with one lane in each direction, could be constructed into a dual carriageway comprising of two lanes in each direction (the duplication works).
Mr Tavitian brought these proceedings in October 2012 claiming that the duplication works drained the highway run-off onto his land through two cross pipes which ran under the Sturt Highway. Mr Tavitian complains that one of the cross pipes, which is one metre in diameter, flows into a dam on his land and that the flow of water has badly eroded his land causing subsurface cavities. Mr Tavitian pleads that the erosion has created a risk of personal injury and has diminished the productive capacity of his land. Mr Tavitian contends that the duplication works necessarily involved an acquisition of an interest, in the nature of an easement, in his land within the meaning of the Land Acquisition Act 1969 (SA) (the LAA). Mr Tavitian complains that the Commissioner did not comply with the procedure imposed by the LAA and has thereby denied him the compensation afforded by that Act.
Mr Tavitian seeks the following relief:
1.1.A declaration that the Highways Act 1926 is a special Act within the meaning of the Land Acquisition Act 1969;
1.2.A declaration that the Land Acquisition Act applies in relation to acquisitions effected under the Highways Act;
1.3.A declaration that, in the event of any inconsistency, the provisions of the Land Acquisition Act prevail over those of the Highways Act in relation to the acquisition of land;
1.4.A declaration that the drainage of highway run-off under s 215(2) of the Local Government Act 1999 in conjunction with s 26(6) of the Highways Act constitutes an acquisition of an interest in the adjoining land within the meaning of the Land Acquisition Act;
1.5.An injunction preventing the discharge or drainage of the highway run-off;
1.6.Remediation of damage caused by the discharge;
1.7.Payment for “past use” of the plaintiff’s land.
In his defence, the Commissioner admits that the duplication works were undertaken and that an existing cross pipe with a diameter of 375 mm was replaced with a pipe with a larger diameter of 1,050 mm. The Commissioner admits that some water is discharged from that pipe into a dam on Mr Tavitian’s land, but pleads that the dam lies on a natural drainage line which runs down to the Gawler River. The Commissioner denies that he thereby acquired an interest in Mr Tavitian’s land by undertaking the duplication works and denies that he failed to comply with the LAA.
The Commissioner also pleads that the Court should not exercise its discretion to grant declaratory relief because Mr Tavitian has unreasonably delayed the institution of these proceedings in that the duplication works were completed in about July 2009. The Commissioner claims that the delay has prejudiced his capacity to defend Mr Tavitian’s claim that the runoff has damaged the land, in that the physical attributes of the land have been affected by exposure to the elements and the growth of vegetation over time.
The Evidence
On the summary judgment application the Commissioner relies on the affidavits of Mark Harrison. Mr Harrison has been a Project Officer of the Department of Planning, Transport and Infrastructure since January 2002 and a Senior Project Officer since September 2005. Mr Harrison deposed that the Sturt Highway was upgraded to improve safety. It was originally a single carriageway with one traffic lane in each direction, with occasional overtaking lanes. The carriageways were separated by a white centre line. The upgrade duplicated the existing carriageway to make two lanes in each direction separated by a wide central median strip to eliminate head-on type crashes. As part of the duplication works, the vertical alignment of the Sturt Highway was modified to improve sight distance for drivers by smoothing the gradient of the road to prevent what is referred to as the “rollercoaster effect”. Mr Harrison deposed that only minor vertical alignment changes, in the order of approximately 300 mm, were made in the vicinity of Mr Tavitian’s land. An existing 375 mm diameter pipe was replaced by a 1,050 mm diameter pipe (the large cross pipe) to cater for the increased overland stormwater flow from the newly constructed carriageway. A collection point was installed halfway along the pipe in the central median strip between the two carriageways. Mr Harrison deposed that the paved area of the road represented approximately seven percent of the total natural catchment of stormwater. Mr Harris attached as an exhibit to his affidavit photographs of the duplication works.
In opposing summary judgment Mr Tavitian relied on his affidavit of 7 April 2015. Mr Tavitian deposed, on information received from officers of the Commissioner, that 17,000 m² of paved surface area drains into the cross pipe. That area does not include the unpaved area between the carriageways. However, Mr Tavitian did not take issue with Mr Harrison’s estimate that the duplication works comprised just seven percent of the run-off. Mr Tavitian deposed that a second cross pipe, with diameter 675 mm, was installed in the vicinity of his land. Mr Harrison does not refer to that cross pipe. Mr Tavitian deposed that the amount of water discharged through the large cross pipe was substantial. He deposed that the run-off from the large cross pipe filled the dam on his property for the first time since his purchase of the land in 1989. Mr Tavitian deposed that he observed erosion damage to the land between the cross pipe and the dam after the completion of the duplication works. He attached photographs and a video tape of the damage to his affidavit. Mr Tavitian deposed that there had not been any such erosion before the installation of the large cross pipe. Mr Tavitian also attached aerial photographs which show that the land was cropped to the edge of the dam in 1999 but that in November 2014 the same area close to the dam was not cropped. Mr Tavitian deposed that that area was not cropped because of erosion damage caused by the discharge from the Sturt Highway.
Mr Tavitian referred to correspondence with the Commissioner in which the Commissioner had considered undertaking some works to mitigate the effects of soil erosion caused by run-off from the large cross pipe. However, those communications did not include any admission that the discharge from the large cross pipe significantly contributed to the erosion of Mr Tavitian’s land.
The Legislation
The Highways Act 1926 (SA) (the Highways Act) empowers the Commissioner to acquire, by agreement or compulsory process, any land or interest in land.[1]
[1] Highways Act 1926 (SA) s 20(1)(a).
The LAA applies to the compulsory acquisition of land authorised by any other Act. The compulsory acquisition process commences with the giving of a notice of intention to acquire pursuant to s 10, which must identify the interest to be acquired with reasonable particularity. If the acquisition is to proceed, s 16 of the LAA requires the publication of a notice of acquisition in which the interest to be acquired is stated as accurately as is reasonably practicable. The Registrar-General must, pursuant to s 17 of the LAA, cause alterations or endorsements on the relevant instrument of title comprising the acquired land in accordance with that notice.
The provisions of the LAA are designed to effect a formal conveyance of land without the consent and co-operation of the registered proprietor, and provide for compensation in the event of a compulsory acquisition. The provisions of the LAA are, on their face, incapable of application to the mere occupation or use of property. They are dependent on the government agency which proposes to acquire the interest in land preparing and serving the documentation which is capable of effecting that conveyance in accordance with the provisions of the LAA. The LAA therefore has no application to the facts pleaded by the plaintiff. In particular, the provisions of Part 4 of the LAA are simply not engaged. Any non-consensual use of the land without first effecting an acquisition pursuant to the LAA does not in itself result in a de facto acquisition but is, subject to any special defence, actionable in trespass or nuisance.
It can be accepted that the Commissioner could have engaged the LAA for the purposes of acquiring an easement to accommodate the drainage of water from the duplication works. The acquisition of an easement would have protected the Commissioner from claims in nuisance, negligence or trespass arising out of the discharge of water over the plaintiff’s land, however the Commissioner was not obliged to do so. Indeed, as appears immediately below, the Highways Act confers on the Commissioner a conditional statutory immunity from such claims, and it is precisely for that reason that the Commissioner may decline to acquire, by agreement or compulsory process, an interest in land affected by road works falling within the scope of that immunity.
Section 26 of the Highways Act empowers the Commissioner to carry out road works and to assume the care and control of roads. Section 26(6) of the Highways Act applies Part 2 of Chapter 11, and in particular s 215, of the Local Government Act 1999 (SA) (the LGA) to roads vested or under the care, control and management of the Commissioner. Section 215(2) of the LGA, read together with the Highways Act, provides that the Commissioner may carry out road works to allow water from a road to drain into adjoining property if in the Commissioner’s opinion:
(a) there is no significant risk of damage to the adjoining property; or
(b) the roadwork does not significantly increase the risk of damage to adjoining property.
Section 215(3) prohibits a court from awarding damages for loss caused by the drainage of water into an adjoining property in consequence of road work unless it is satisfied that the Commissioner acted on an unreasonable basis.
A note to section 215 LGA provides:
The council may of course acquire a licence or easement to permit the drainage of water into the adjoining property.
That note does not support Mr Tavitian’s contention that the Commissioner has, by the mere construction of the duplication works, acquired an easement. Rather the note merely directs attention to the power, mentioned in [10] above, of the Commissioner and of Councils to acquire, by agreement or compulsory process, an easement if the road works will create a risk of damage which falls outside of the scope of the statutory immunity.
Section 215 of the LGA must be construed in the context of the general principle that a public authority, like a Council or the Commissioner, “is not, without negligence on its part, liable for nuisance attributable to the exercise of, or failure to exercise, its statutory powers”.[2] So understood, damages can only be awarded against the Commissioner if it is shown that the Commissioner did not actually hold one of the two opinions prescribed by s 215(2) LGA, or if it is shown that the Commissioner did not have a reasonable basis on which to form either of those opinions.
[2] Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 [16].
Summary Judgment and Summary Dismissal
Pursuant to rule 232 summary judgment may be given on the application of a defendant if the Court is satisfied that “there is no reasonable basis for the claim against” the defendant. Summary judgment is not to be entered lightly.[3]
[3] Kleentex (Thailand) Co Ltd v Corporate IM Pty Ltd [2012] SASC 71, [19]; Spencer v Commonwealth (2010) 241 CLR 118 [17] (French CJ and Gummow J), [52]-[53], 56] (Hayne, Crennan, Kiefel and Bell JJ).
A proceeding may be summarily dismissed pursuant to rule 193 if the claim is unsustainable such that the defect cannot be cured by amendment to the pleadings.[4] A dismissal is not a final adjudication of the legal controversy but proceedings should not be summarily dismissed if there is a real question of fact or law to be determined.[5] Pursuant to rule 104 Court may strike out a statement of claim, in a case in which it perceives there to be a real question of fact or law to be determined, if the statement of claim does not plead the circumstances of the underlying legal controversy in a way which discloses a reasonable cause of action.
[4] Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489, 496 (Chitty J); Singleton v Freehill Hollingdale & Page [2000] SASC 278 [68] (Olsson J); Plenty v Attorney-General (SA) [2013] SASC 35 [20] (Stanley J).
[5] Plenty v Attorney-General (SA) [2013] SASC 35 [20] (Stanley J).
Conclusion
The first three declarations sought are with regards to the proper construction of the Highways Act, without reference to any particular contested facts or circumstances. They ask for the determination of questions of statutory constructions divorced from any justiciable controversy. Be that as it may, the fourth declaration is sought in the context of the duplication works and their effect on Mr Tavitian’s land, and therefore raises a justiciable question. However, for the reasons given in [10]-[18] above, there is no reasonable prospect that that question would be answered in Mr Tavitian’s favour. There is no rational legal argument which can be put in favour of the application of the LAA to the facts and circumstances of the duplication works and their effect on Mr Tavitian’s land. Summary judgment should be entered for the Commissioner on Mr Tavitian’s application for declarations concerning the interrelationship between the LAA and the Highways Act and the application of the LAA to the drainage of water from the duplication works onto Mr Tavitian’s land. Insofar as Mr Tavitian’s claims for remediation and reparation are based on the LAA, summary judgment must also be given for the Commission.
Mr Tavitian’s application for an injunction preventing the discharge of drainage from the Sturt Highway must also be decided against him. The injunction sought, in effect, is a mandatory one and cannot be ordered against the Commissioner who is an instrumentality of the Crown.[6]
[6] Crown Proceedings Act 1990 (SA) s 7(2).
On the other hand the statement of claim does plead facts and circumstances which arguably support a claim in nuisance. That claim would, of course, face the obstacle of the immunity conferred by s 215 of the LGA. Mr Tavitian has not pleaded, nor adduced evidence on this application, that the Commissioner did not form the prescribed opinion that there was no significant risk of damage or, more particularly in the circumstances of this case that the duplication works would not significantly increase the risk of damage. Nor has Mr Tavitian pleaded, or adduced any evidence, that the Commissioner’s opinion, if formed, was not reasonably based. Having regard to the material in Mr Harrison’s affidavit, Mr Tavitian appears to face a huge task in doing so. However, I am not satisfied that Mr Tavitian could not plead a sustainable case for damages in nuisance, which includes an arguable case that overcomes the statutory immunity. Mr Harrison’s affidavit does not disclose whether the Commissioner formed one of the opinions prescribed by s 215 LGA, nor does it disclose any material put before the Commissioner on the issue of damage to Mr Tavitian’s land. It would not be appropriate to give summary judgment on a claim in nuisance which arises out of the facts alleged in the statement of claim but which is not yet expressly pleaded, and for that reason not shown to be without prospect in the evidence adduced by the Commissioner. However, if a claim in nuisance is to proceed it should be on fresh pleadings directed to that claim.
I would therefore dismiss the statement of claim, but give Mr Tavitian permission to file a further statement of claim alleging nuisance if he so decides.
Orders
I would enter summary judgment for the defendant on the claims for declarations concerning the application of the LAA to the duplication works, and the claims for remediation works and payment for past use which are premised on the application of the LAA. I would enter summary judgment for the defendant on the claim for injunction. I would strike out the statement of claim but give Mr Tavitian permission to file a fresh statement of claim seeking damages in nuisance. I would hear the parties as to the time within which the further statement of claim should be filed and on the question of costs.
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