The Surveyor-General v Frank Seychell & Michelle Seychell & Anor (No 2) No. Scciv-00-945

[2002] SASC 41

THE SURVEYOR-GENERAL v FRANK SEYCHELL &
MICHELLE SEYCHELL & ANOR (No 2)
[2002] SASC 41

Land & Valuation Division

1. DEBELLE J.          On 5 February 2002 I published reasons for judgment in this action. In those reasons I examined the extent to which there had been compliance with the process prescribed by s 308 and s 309 of the Local Government Act 1934 in relation to the alignment of Dahlia Farm Road. On p 15 of my reasons I referred to the fact that it had not been proved whether there had been a compliance with s 308(4) of the Act which requires consultation with the Commissioner of Highways.

2. Ms Murphy, who appears for the Surveyor-General, informs me that the Commissioner of Highways was not consulted. I must therefore determine whether the failure to do so invalidates the steps which have been taken for the purpose of aligning Dahlia Farm Road.

3. This road is not a major arterial road nor is it a highway. Ms Murphy has proved a Supplementary Gazette published on 11 September 2001 in which the Commissioner of Highways gives notice of roads under the care, control and management of the Commissioner. I have examined the gazette. Dahlia Farm Road is not a road in respect of which the Commissioner of Highways has the care, control or management. Indeed, as is evident from the plan in the reasons, Dahlia Farm Road is essentially a small country road linking other roads. It is not a road where it is likely that the Commissioner of Highways would seek to make representations.

4. In para 33 of the reasons published on 5 February I referred to the principle that a failure to comply with each step in the process required by s 308 and s 309 does not necessarily cause the process to be invalid. In the particular circumstances of this case, I do not think that Parliament intended that the process should be invalidated by a failure to consult the Commissioner of Highways in respect of a small road like Dahlia Farm Road. There are a number of reasons for that conclusion. First, for the reasons already given, this is not a road under the care, control and management of the Commissioner of Highways. It is, with all respect to those who live along it, a relatively insignificant road. Secondly, I note that in 1957 s 308 and s 309 were amended to include the Commissioner of Highways. It is apparent that the predominant purpose was to enable the Commissioner of Highways to initiate an alignment of roads pursuant to s 308. It was not to make consultation with the Commissioner a necessary prerequisite.  However, because consultation with the Commissioner is necessary in respect of roads under his management, the process of consultation was therefore included. The failure to conduct that consultation does not invalidate the steps taken in this matter for the reasons which I have given. It is not possible to identify any detriment which could be caused to the Commissioner. Thirdly, there would be a manifest public inconvenience by not making the alignment. That is evident from the reasons which I have given. In referring to public inconvenience I have regard to the observations of the High Court in para 97 of the reasons of the majority in Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355.

5. For these reasons, I am satisfied that the process should not be invalidated by the failure to consult with the Commissioner of Highways. I therefore propose to make the orders of which I gave notice to the parties on 5 February. The orders will therefore be:

   1.That the caveat dated 14 June 1999 lodged by Frank Seychell and Michelle Seychell with the Surveyor-General be discharged.

   2.That the Mid-Murray Council pay the total sum of $1600 to Frank Seychell and Michelle Seychell within 14 days of this order.

   3. No order as to costs.