The Surveyor-General v Frank Seychell & Michelle Seychell & Anor No. Scciv-00-945
[2002] SASC 29
•5 February 2002
THE SURVEYOR-GENERAL v FRANK SEYCHELL &
MICHELLE SEYCHELL & ANOR
[2002] SASC 29Land & Valuation Division
DEBELLE J. This is an application by the Surveyor-General to discharge a caveat objecting to the alignment of a public road.
The Relevant Legislation
Division III of Part XVII of the Local Government Act 1934 prescribed a procedure for aligning public streets and roads whose boundaries do not accord with boundaries as shown in plans or records kept by the Registrar-General or the Surveyor-General. That procedure was prescribed in s 308 ‑ s 310 of the Act. A little later, I will describe that procedure in detail. For the moment, it is sufficient to note that the procedure enabled parties whose interests in land are affected by the alignment to object to and lodge a caveat with the Surveyor-General preventing the alignment. If the matter cannot be negotiated and the caveat is not withdrawn, the Surveyor-General may apply to this Court for an order that the caveator show cause why the caveat should not be discharged: s 309(4) of the Act. This application is made pursuant to s 309(4).
These proceedings were commenced on 3 October 2000. By that time, the Local Government Act 1934 had been substantially amended. In particular, s 308 ‑ s 310 had been repealed. However, s 34(1) of the Local Government (Implementation) Act 1999 provides:
“Any survey, process or other proceeding commenced under or for the purposes of Division 3 of Part 17 or section 871e of the 1934 Act that has not been finally determined at the relevant day may be continued and completed as if this Act had not be (sic) enacted.”
The Local Government (Implementation) Act came into force on 1 January 2000. The relevant day referred to in s 34(1) is defined by s 3 of the Local Government (Implementation) Act to be a day appointed as the relevant day. A proclamation made by the Governor on 9 December 1999 proclaimed 1 January 2000 to be the relevant day. As will be seen, the process to align the road commenced before 1 January 2000. Thus, the issues in this action must be determined in accordance with s 308 ‑ s 310 of the Local Government Act 1934.
This is the first case to come before this Court since this jurisdiction was invested in the court by the Local Government Act (Amendment) Act (No 3) 1969. A substantially similar jurisdiction had been invested in this Court by s 117 of the Municipal Corporations Act 1890 and that jurisdiction remained until the enactment of s 32 of the Local Government Act (Amendment) Act 1946 which invested the jurisdiction in a Local Court of full jurisdiction. Local Courts of full jurisdiction retained that jurisdiction until the jurisdiction was returned to this Court in 1969 by the Local Government Act (Amendment) Act (No 3). So far as I can ascertain, there are no reported decisions dealing with any of the provisions I have mentioned. Consequent on the repeal in 1999 of s 308 ‑ s 310 of the Local Government Act, a like jurisdiction has been invested in this Court by s 51 of the Survey Act 1992. Although there are differences in the procedure, s 51 provides for notice of any proposed alteration of boundaries to be given to those with a registered interest in land affected by the proposed alteration. The caveat procedure has been replaced by an appeal to this Court.
By way of footnote, I add that the provisions of the Encroachments Act 1944 do not apply since there is no encroachment by a building.
I first give a brief description of the events leading to the application. I will then set out the facts in greater detail. As this action concerns a public road, I will for convenience use the word “road” instead of the expression “public street or road” which is used in s 308 ‑ s 310.
A Brief Overview
Mr and Mrs Seychell own a parcel of land near Truro. It is approximately one kilometre south of Truro. The land is on the western side of a road called Dahlia Farm Road which provides the main access to the Seychells’ land. The Seychells’ land is within the area of the Mid-Murray Council (“the Council”).
In 1997 the Council learned that the boundaries of Dahlia Farm Road did not accord with its boundaries as shown on a Filed Plan. There was a corresponding failure of the certificates of title of seven sets of registered proprietors who own land adjoining Dahlia Farm Road to accord with the Filed Plan. The Council decided to align the boundary of Dahlia Farm Road so that its boundaries accorded with the present position of the road. This had the consequence that, as a matter of law, three sets of the owners who owned land on the western side of Dahlia Farm Road (including the Seychells) lost a portion of land. There was no physical acquisition of land since the road follows fence lines which have long existed. The four sets of owners on the eastern side of the road acquired additional land. The position is diagrammatically illustrated in the following plan. I emphasise that it is a diagrammatic representation and that it is not drawn to scale. The broken lines show the existing fence lines which create the road reserve. The unbroken lines show the road as drawn on filed plans.
** DIAGRAM SHOWN ON ORIGINAL COPY OF JUDGMENT **
The process of the alignment took a long time. In July 1998 the Council referred the proposal to the Surveyor-General to enable alignment pursuant to s 308 ‑ s 310 of the Act.
The Surveyor-General ultimately decided to align the road. The Seychells objected to the alignment. On 14 June 1999 they lodged a caveat pursuant to s 309(3) of the Act. The Surveyor-General has instituted this application seeking an order pursuant to s 309(4) of the Act that the Seychells attend this Court to show cause why the caveat should not be discharged.
The Seychells’ land is described in Certificate of Title Register Book Volume 5496 Folio 907. It is allotment 2 of Filed Plan 1213. The area of the Seychells’ land as shown in the certificate of title is 7.313 hectares. As the above plan shows, that land is an irregularly shaped parcel. Its eastern boundary is formed by Dahlia Farm Road.
I now state the facts in detail.
A Proposal to Align a Road
In 1997 the Council learned that the boundaries of a number of parcels of land bordering Dahlia Farm Road did not accord with the boundaries shown on filed plans. It had been informed of that fact by surveyors who had undertaken a survey for the purposes of subdividing the land owned by Mr and Mrs Grigg which adjoins Dahlia Farm Road. The evidence shows that the fencing of these seven relevant properties had not followed the true boundaries. That had been the position since at least 1882. Records held by the Surveyor-General show that Dahlia Farm Road has been in its present position since at least 1882. There are plans showing the position of the road both in 1882 and in 1908. In other words, the Seychells’ strip of land has formed part of Dahlia Farm Road for more than 100 years. There could be any number of explanations why the fencing did not accord with the boundaries in filed plans. Presumably, the original owners or occupiers fenced what they believed to be the correct boundaries.
The area of the strip of the Seychells’ land which is part of Dahlia Farm Road was first calculated by the Surveyor-General to be 1,324 square metres. As the Seychells’ land comprises 73,130 square metres, it represents 1.8 per cent of the total area of their land.
On 1 March 1997 the Council called a public meeting on the site with the land owners whose properties were affected. The Council proposed that Dahlia Farm Road be aligned to accord with the fence lines. The Seychells were present at that meeting. The Council then sent forms to the seven affected property owners asking if they would agree to an alignment of Dahlia Farm Road so that the boundaries of the road accorded with the existing fence line. According to Mr Bourne, an employee of the Council, the Seychells as well as the other affected land owners supported the proposal. I accept that evidence.
Little further was done until 5 February 1998 when the Council sent a letter to each of the seven sets of affected owners showing the proposed alignment and asking that any objection be lodged within 21 days. I find that the Seychells did not respond to that letter.
By letter dated 20 July 1998, the Council informed the affected owners that it had decided to refer the proposed alignment to the Surveyor-General and that they would be contacted later by the Surveyor-General. On 4 November 1998 Mr Seychell wrote a letter to the Council complaining of the lack of progress with the proposed alignment. The letter read:
“RE: DAHLIA FARM ROAD ALIGNMENT
On July 20 1998 we received a statement from the Mannum Council Office informing us on the proposed alignment for Dahlia Farm Road.
Since this date we have had no contact from the Surveyor-General.
I wish to undertake work on my property driveway, and until the matter is resolved, I am unable to do so.
I am writing to advise you that if no progress has been made within the next six months, I will have no hesitation in moving my fenceline further onto Dahlia Farm Road.
I will notify local landowners of my actions by advertising this change in the local newspapers. I see it as your responsibility to set up the necessary signs for motor vehicle users and pedestrians.
This issue has been raised since March of 1997, we would finally like to see some progress.”
The Council replied that the Seychells’ letter had been considered at a meeting of the Council on 16 November, adding that at the meeting on 16 November 1998 the Council had resolved to approve the survey plan and return it to the Surveyor-General and that the Surveyor-General would be contacting the Seychells.
By letter dated 25 November 1998, the Council gave the Surveyor-General notice of its resolution carried on 16 November 1998 approving the alignment. The letter enclosed a copy of the plan signed by the Mayor and the Chief Executive Officer of the Council, a copy of the Seychells’ letter of 4 November, and the Council’s reply to that letter.
The Registrar-General and the Surveyor-General had earlier decided that it was necessary and expedient to align the road. The plan had been lodged by the Surveyor-General in the Registrar-General’s office and checked by that office. The plan of the alignment was designated Filed Plan 39945. After the Council had agreed with the proposal, the alignment was approved by the Registrar-General, the Surveyor-General and the Council.
After the alignment had been approved, the Surveyor-General gave notice of that approval in the Government Gazette dated 18 February 1999. Notice was also given in a newspaper called The Leader, a newspaper which is published at Angaston. By letter dated 18 February 1999, the Surveyor-General gave notice to each of the affected owners. The letters were in identical terms. The letter to the Seychells read as follows:
“Calder Harris Surveyors have completed a boundary alignment survey which affects numerous roads and properties in your area. The survey plan has been approved by the Surveyor-General, the Registrar-General and the local Council, pursuant to Section 308 of the Local Government Act.
The realignment of all boundaries has been conducted in a fair and equitable manner, with special consideration being given to existing fences and structures near the boundaries.
Please find enclosed a copy of the public notice which is published in the Government Gazette and The Messenger newspaper advising of the intention to realign the roads in your area, and also the boundaries of any allotments or sections affected by the alignment survey.
A copy of the plan showing the alignment survey is available for inspection at the Office of the Department for Administrative and Information Services, Land Boundaries Branch, 1st floor, 101 Grenfell Street, Adelaide, or at the office of the Mid Murray Council.
I wish to advise you have the opportunity to lodge a formal objection to the proposed alignment survey. It must be lodged in writing with the Surveyor-General within two months of the closing date as stated in the notice.” [Original emphasis.]
By letter dated 2 March 1999, the solicitors acting for the Seychells objected to the proposed alignment. I find that the letter was addressed to the Council which sent it to the Surveyor-General. The letter was in these terms:
“Re: Dahlia Farm Road Alignment/F & M Seychell your ref: 2218/r 15/n
We advise we have been instructed in relation to this matter.
The proposal to realign the Dahlia Farm Road will result in a loss of property by our clients, and an amended Certificate of Title File Plan will reflect this accordingly.
We advise that the proposal would be accepted in principal, conditional upon adequate compensation being met. The exact formulation and quantum yet to be determined, nonetheless we invite your office to offer a monetary figure for compensation.
In the interim, we advise that any proposed maintenance/improvements to that section of the Dahlia Farm Road which is located on our client’s property is vehemently opposed until an acceptable agreement is determined.
Our client is anxious to resolve this matter as expediently as possible and we look forward to your response at your earliest convenience.”
It will be noticed that the Seychells agreed in principle with the proposal. Their concern was that they should receive adequate compensation. They also sought to ensure that no improvements to Dahlia Farm Road would be effected until they had been properly compensated.
The Registrar-General and the Surveyor-General considered the Seychells’ objection but did not agree with it. They came to the conclusion that the alignment had been determined in a fair and equitable manner. In reaching that conclusion, they had regard to the fact that the fencing had been in place for a very long time. By letter dated 14 May 1999, the Surveyor-General advised the Seychells of that conclusion. The letter read:
“As required by Sec 309(2) of the Local Government Act, the Surveyor General and the Registrar General have considered your objection to the alignment survey of File Plan 39945. I am writing to advise you that your objection was unsuccessful.
The Surveyor General and Registrar General concluded that the realignment of all boundaries was determined in a fair and equitable manner with appropriate consideration having being given to existing fences and structures.
Of particular interest was the evidence of very old fencing along Dahlia Farm Road indicating that the fence has been in its present position for a very long time as shown on survey records dating back to the 1800’s.
If you do not accept this decision then, in accordance with Sec 309(3) of the Local Government Act you may, within 1 month of receiving this letter, lodge a caveat with the Surveyor General stating the grounds of your objections.
If you do not lodge a caveat within the specified time the boundary realignment shall be finalised.
For your information I have enclosed a copy of Sections 308 ‑ 310 of the Local Government Act.”
It will have been noticed that the letter drew the attention of the Seychells to the fact that they could lodge a caveat objecting to the alignment. The letter also enclosed a copy of s 308 ‑ s 310 of the Local Government Act.
By letter dated 19 May 1999, the Seychells themselves replied to the Surveyor-General’s letter stating their opposition to the joint decision of the Registrar-General and Surveyor-General. They said:
“I am writing in regards to our unsuccessful objection of File Plan 39945. We are not at all happy with the Registrar Generals and your own decision. Once again, our land title clearly indicates 18 acres of land is in our possession and we intend to keep it that way.
The fact that the current position of the fence dates back to the 1800’s has no relevance at all, seeing that our property lies over the fence boundary and well onto the road.
Realignment of Dahlia Farm Road is unjust and sneaky on the governments behalf. If they wish to claim land that is not rightfully their own, then they must do as everyone else would and pay a fair amount for it. Land cannot simply be taken away from its owners because the government decides to do so.
We would appreciate it if you would forward our objections onto the Registrar General and we look forward to your response.”
A postscript was added in handwriting which read:
“You buy whats on your title not what you see.”
The attitude of the Seychells had obviously undergone a considerable change. Instead of being prepared to agree with the proposed alignment subject to the payment of compensation, they were wholly opposed to it.
The Surveyor-General replied by letter dated 9 June 1999. In that letter he summarised the procedure prescribed by s 308 ‑ s 310 of the Local Government Act and reminded the Seychells that the Act required that they lodge a caveat to protect their position. That letter also stated that the caveat could be in the form of a letter of objection to the Surveyor-General. On the same day the Surveyor-General himself had, in the course of a telephone conversation with Mrs Seychell, informed her that a letter could suffice as a caveat.
The Seychells’ caveat was contained in the letter dated 14 June 1999. It read:
“I am writing in regards to our unsuccessful objection of File Plan 39945. We are not at all happy with the Registrar Generals and your own decision. Once again, our land title clearly indicates 18 acres of land is in our possession and we intend to keep it that way.
The fact that the current position of the fenceline dates back to the 1800’s has no relevance at all, seeing that our property lies over the fence boundary and well onto the road.
Realignment of Dahlia Farm Road is unjust and sneaky on the councils behalf. If they wish to claim land that is not rightfully their own, then they must do as everyone else would and pay a fair amount for it. Land cannot simply be taken away from its owners because the council decides to do so.
We advise that any proposed maintenance improvements to that section of Dahlia Farm Road which is located on our property is vehemently opposed until an acceptable agreement is determined.
We payed money for that piece of land and no one has the right to take it for free. We are objecting, and we are not going to let it go.
The council can keep its dirty hands off of our property.”
The Surveyor-General accepted the letter as a caveat, notwithstanding that it did not contain the particulars required by s 309(3) of the Act.
The caveat delayed the proposed alignment. The Council was anxious to proceed. By letter dated 23 December 1999, it made a without prejudice offer to pay $1,000 compensation for the land which the Seychells would lose in consequence of the alignment. The Seychells did not accept the Council’s proposal.
Little further was done until the Surveyor-General commenced this application on 3 October 2000. As already mentioned, he sought an order that the Seychells show cause why the caveat, as constituted by the letter of 14 June 1999, should not be discharged. The Seychells filed an affidavit in opposition to the Surveyor-General’s application. That affidavit exhibited a letter dated 24 November 2000 signed by both Mr and Mrs Seychell. The letter expressed their opposition to the proposed alignment. It is sufficient to refer to the last three paragraphs of the letter.
“ Unfortunately you have not been quoted the right information in regards to the measurements of our land. Further to the letters you sent me dated the 13th of November and 27th of October 1999. The realignment of boundaries in fact does effectively reduces the title area of Allotment 2 from 7.3130 H.A to 7.137 H.A.
In summary, we do not agree with the proposal to realign Dahlia Farm Road. There is sufficient space to put the road where it belongs. Which would be across the road. The subject is not separately fenced from the balance allotment 2. We fenced that area because the Council workers and neighbours were destroying it by continuously driving over it and churning up the landscape. Our Property ends in the middle of the road and not where our current fence line is. It would be most preferable for us to have the land back that belongs to us by law. It is being used against our will and in turn should be compensated for the Council using our land.
This matter will continue until ideal circumstances arise. I am certain that if you were in our position you would be fighting for your rightful land and not be willing to simply hand it over.
We hope that this will finally draw to a conclusion.”
The letter is in similar vein to the Seychells’ letters of 19 May 1999 and 14 June 1999. The Seychells believe that, as the alignment will reduce the area of the land stated in the certificate of title, it cannot proceed. In both their letter dated 14 June 1999 and in the letter dated 24 November 2000 the Seychells stated they would not agree to accept compensation for what, they believed, constituted an acquisition of their land.
In response to the Seychells’ assertion in their letter of 24 November 2000 that the Surveyor-General had incorrectly stated the reduction of the area of their land, Mr Sarneckis, an officer in the Surveyor-General’s Office, made further enquiries. In consequence of those enquiries, Mr Sarneckis has recalculated the area of the Seychells’ land which was proposed to be part of Dahlia Farm Road. He calculated it to be 1,323 square metres, that is to say, one square metre less than the earlier calculation of 1,324 square metres. However, the Surveyor-General is proceeding on the footing that the area is, in fact, 1,324 square metres so as to give the benefit of any uncertainty in the survey to the Seychells. It is unnecessary to set out the steps in Mr Sarneckis’ enquiries and recalculations. They are contained in his affidavit sworn on 4 December 2000 which is an exhibit in this application. I am satisfied that the recalculation is correct.
Thus, the Seychells have since May 1999 consistently opposed the proposed alignment. They assert that they own all of the land described in their certificate of title and that they should not be required to surrender that part which has been outside their fence for more than 100 years so that it has formed part of Dahlia Farm Road. They say that it is their land and no other person is entitled to it. Two judges of this Court have explained to them, both at pre-trial applications and on the hearing of this application, the effect of s 308 ‑ s 310 of the Local Government Act. That has not altered their attitude.
The Statutory Provisions
Before considering whether the caveat should be discharged, it is necessary to determine whether there has been compliance with the procedure prescribed by s 308 and s 309 of the Local Government Act. The relevant provisions are attached as an appendix to these reasons. The following paraphrase of the required steps is specifically directed to the circumstances leading to this application. Clearly, it is unnecessary to refer to all of the provisions of s 308 and s 309 which have a general application. Having paraphrased each requirement, I then decide the extent to which there has been compliance with it. As the Seychells were not legally represented at the hearing of this application, I have scrutinised the question of compliance with especial care.
Delegation
It is first necessary to deal with the questions of delegation. As might be expected, both the Surveyor-General and the Registrar-General did not themselves make all of the decisions or take all of the steps prescribed by s 308 and s 309 but acted through delegates. Each has the authority to delegate: see s 6 of the Survey Act 1992 and s 18A of the Real Property Act 1886 respectively. The Registrar-General’s delegate was Mr R J L Moore and the instrument of delegation required under s 18A of the Real Property Act was proved.
The Surveyor-General’s delegate was Mr Sarneckis. No instrument of the delegation was proved. However, the duty statement of Mr Sarneckis requires him to undertake administration of alignment surveys under s 308. That fact, coupled with both the power of the Surveyor-General to delegate and the fact that the nature of the tasks required by s 308 and s 309 are essentially administrative, satisfies me that Mr Sarneckis acted, and was authorised to act, as the Surveyor-General’s delegate. Section 6 of the Survey Act does not require an instrument of delegation. Furthermore, Mr Sarneckis was always acting in the name of the Surveyor-General and not in his own name: Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563; O’Reilly v State Bank of Victoria (1983) 153 CLR 1; and Director of Public Prosecutions v His Honour Judge Fricke [1993] 1 VR 369 at 371 ‑ 372. It is appropriate to add that the Surveyor-General himself decided to overrule the Seychells’ objection contained in their letter of 2 March 1999.
The Required Steps
As will appear in a moment, the Surveyor-General has not proved compliance with every part of s 308 and, in some instances, there has been a failure to comply with every detailed provision of s 309. In both s 308 and s 309 the word “must” appears from time to time. The word “must” denotes a mandatory obligation. It is necessary, therefore, to consider the consequences of the failure to prove compliance with all matters and whether the instances of non-compliance invalidates the proposed alignment. It is convenient to examine the general principles before examining each matter which has not been proved or each instance of non-compliance.
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: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at para 91. Whether it does so depends upon whether it is possible to discern a legislative purpose to invalidate any act that fails to comply with the requirements of s 308 and s 309. The purpose of the legislation is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the statutory requirements: ibid. Some guidance can be gained by distinguishing between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (which are regarded as going to jurisdiction and thus mandatory so that a failure to comply results in invalidity) on the one hand and, on the other, acts done in breach of a procedural condition for the exercise of a statutory power or authority (which are directory and a failure to comply does not result in invalidity): Project Blue Sky (supra) at para 92. But, as the High Court notes in Project Blue Sky at paras 92 and 93, the distinction between mandatory and directory provisions has proved elusive and has outlived its usefulness. Thus, a better test for determining the issue of invalidity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky at para 93. See also Barwick v Law Society of NSW (2000) 169 ALR 236.
There may be some provisions in s 308 and s 309 where non-compliance might result in invalidity because they prescribe an essential part of the process of alignment. However, there are other provisions where failure to comply does not, I think, result in invalidity. The manifest purpose of this legislation is to enable alignment of public streets and roads where the actual boundary does not accord with the boundary shown in public records and where it is equitable to do so. It is also manifest that those who are affected by the proposed alignment must have notice of the proposal and have a proper opportunity to object and to lodge a caveat.
Of all of the detailed provisions in s 308 the only provisions which I think lead to invalidity for non-compliance are
(a)The need for a survey or plan. These are essential prerequisites. Without them it is not possible to proceed.
(b)Satisfying the requirements of one of the paras (a) to (d) in s 308(2). These provide the trigger for the operation of s 308.
(c)The requirement that the survey and plan be undertaken by a licensed survey and verified by the Surveyor-General. Plainly, this is required in the interests of accuracy.
(d)That persons affected are able to inspect plans of the alignment. This is a necessary aspect of notice.
(e)That the alignment is equitable. This is a self-evident prerequisite.
There is a degree of duplication in the extent to which the Registrar-General and Surveyor-General must make certain decisions and consult with each other. At the end of the day, what is important is that the Registrar-General and Surveyor-General consider the plan to be expedient and equitable and approve it. In this case, they have both undertaken those steps and, together with the Council, approved this alignment. In other words, many of the steps prescribed by s 308 are relatively inconsequential, do not adversely affect the interests of those whose land might be affected by the alignment and so do not result in invalidity. These remarks are made by way of general introduction only. It will be necessary to consider each aspect of non-compliance and decide whether it results in invalidity.
1. For the purpose of determining the alignment of public streets and roads, a council or the Surveyor-General, as well as others listed in s 308(1), may cause a survey to be made and a plan to be prepared: see s 308(1).
I accept the evidence of Mr Bourne that the Council caused a survey to be made for the purposes of seeking an alignment of Dahlia Farm Road. The surveyors were Calder Harris Surveyors Pty Ltd (“Calder Harris”). The plan prepared by Calder Harris is Exhibit P2. Although there is no direct evidence of this fact, it is clear that the Council asked the Surveyor-General before July 1998 to initiate the procedure prescribed by s 308 ‑ s 310. There can be no other reasonable explanation for the Surveyor-General’s conduct in this matter.
2. If the relevant conditions listed in s 308(2) are satisfied, a plan may be prepared adjusting the boundaries of a road and the boundaries of allotments of private land or part of such allotments in such manner as is equitable. The conditions are prescribed in s 308(2) and for the purposes of this application, the relevant conditions are
(a)that the survey discloses that the occupation of any land does not accord with the boundaries of a road as defined in any of the records of the Registrar-General or the Surveyor-General;
(b)that the Registrar-General and Surveyor-General consider that it is necessary and expedient for the recognition or issue of certificates of title to alter the boundaries; and
(c) that the boundaries shall be altered in a manner which is equitable.
Each of the three conditions relevant to this application is satisfied.
First, the plan showed that the occupation of private land did not accord with the boundaries of Dahlia Farm Road as those boundaries are defined in records of the Registrar-General and of the Surveyor-General. That is proved by Exhibit P2 and the records proved by Mr Sarneckis.
Secondly, both the Registrar-General and the Surveyor-General considered that it was necessary and expedient for the recognition or issue of certificates of title to adjust the boundaries. That is proved by the evidence of the Surveyor-General and of Mr Sarneckis and may be inferred from the later approval of the plan by the Registrar-General and the Surveyor-General.
Thirdly, for the reasons which follow, the proposal is equitable. I have not had the benefit of argument on what constitutes an equitable alteration. My present view is that the question whether the alteration is equitable must be determined as an objective fact.
All of the other owners affected by the proposed alignment, other than the Seychells, agree with the proposal. I mention this fact, not because it establishes that the proposal is equitable, but simply to show that the only interests which have to be considered are the interests of the Seychells.
Although the alteration of the boundaries has the consequence that those on the eastern side of Dahlia Farm Road must suffer what, strictly speaking, is an acquisition of land and a reduction in the area of the land described in their respective certificates of title, while those on the eastern side have the benefit of an increase in the area of their respective parcels of land, the alignment gives effect to what has been the actual position for over 100 years. However, there is no physical taking of land. The physical extent of the land on either side of the road is not altered because each parcel has been fenced in this way for more than 100 years. Further, it is not realistically feasible to align Dahlia Farm Road to its original boundaries because stobie poles, drainage and a telephone line are all located in the existing road reserve. An alignment according to the original boundaries would place the stobie poles in the middle of the road. In addition, Lot 103 has a private dam located on the original road alignment. In addition, the Seychells purchased this land in its present condition. They paid a price representing the value of what they had seen before purchase. If, as they say, they purchased the land believing the area to be 7.313 hectares, they will be appropriately compensated. I will return to the issue of compensation.
Finally, the area is an extremely small portion of the whole of the Seychells’ land. It is 1,324 square metres out of a total of 7.313 hectares (73,130 square metres), that is to say, 1.8 per cent of the total area.
3. Because the Council caused the survey to be made and the plan to be prepared, s 308(3) required that the survey be made and the plan be prepared by a licensed surveyor. In addition, the Surveyor-General must verify the survey and the plan.
Calder Harris are licensed surveyors. The Surveyor-General’s subsequent approval of the plan is sufficient proof that he has verified both the survey and the plan. The plan, after all, is the product of the survey. The requirements of s 308(3) are therefore satisfied.
4. Section 308(4) requires that whoever of the Registrar-General, the Commissioner of Highways, or the Council makes the survey or prepares the plan must consult with the others and regard must be had to
(a)any plans which are in the office of the Surveyor-General or in the Lands Titles Registration Office or General Registry Office;
(b) existing physical boundaries which are in place; and
(c) any other matters which are considered necessary or proper.
It is clear that there has been consultation by the Council, which caused the survey to be made and the plan to be prepared, with the Registrar-General and the Surveyor-General. It is also clear that regard has been had to plans which are in the office of the Surveyor-General and in the Lands Titles Registration Office. In my view, s 308(4) does not require regard to every conceivable plan which might be in any of the three offices named in s 308(4). It is clear also that regard has been had to existing physical boundaries. Among other things, regard was had to the fencing along each parcel of land dividing those parcels of land from the road reserve. It has not been shown that there are any other matters which are necessary or proper to consider.
However, it has not been proved that there has been consultation with the Commissioner of Highways. In the course of the evidence of Mr Sarneckis, it became clear that he had a substantial file concerning this matter. I think it appropriate to give the Surveyor-General an opportunity to prove whether such consultation occurred. The alignment concerns other land owners as well as the Seychells. Those other land owners all seek to proceed with it as quickly as possible. In other words, there is a public interest to be considered as well as the private interest of the Seychells. Furthermore, if there has been consultation with the Commissioner of Highways and if the Surveyor-General’s application was dismissed solely because it has not been proved that the Surveyor-General consulted with the Commissioner of Highways, it will be open to the Surveyor-General to bring a fresh application and prove that fact. That would only involve needless expense to all parties including the Seychells. If there has not been any consultation with the Commissioner of Highways, it will be necessary to consider the question whether that failure should invalidate this procedure. For all of these reasons, I propose to publish these reasons for judgment and adjourn the matter to enable the Surveyor-General either to prove consultation with the Commissioner of Highways if that did in fact occur or to argue whether failure to comply invalidates this procedure.
5. Section 308(5) requires that the plan prepared by Calder Harris on behalf of the Council must be considered by both the Registrar-General and the Surveyor-General.
Because the plan shows an alteration to existing boundaries of a road, two further steps are required by s 308(5). They are
(a) the alteration must be considered and approved by the Council; and
(b)the alteration must be approved by both the Registrar-General and the Surveyor-General if they consider the plan to be in accord with the intent of s 308 ‑ s 310.
The evidence of Mr Sarneckis, the evidence of the Registrar-General and of the Surveyor-General, and the endorsements on the plan which is Exhibit P2 prove that the plan was considered by both the Registrar-General and the Surveyor-General to be in accord with the intent of s 308 ‑ s 310.
The evidence of Mr Sarneckis, of Mr Bourne, of the Registrar-General, and of the Surveyor-General, the Council’s letter dated 25 November 1998, as well as the endorsements on the plan Exhibit P2 prove that the alteration was also considered and approved by the Council, the Registrar-General and the Surveyor-General and that the latter considered that the plan accorded with the intent of s 308 ‑ s 310.
6. After the plan has been approved, copies of the plan must be available for inspection at the offices of the Registrar-General, the Surveyor-General and the Council.
There is no direct evidence that copies of the plan were available for inspection at each of the above offices. All of the three notices given pursuant to s 309 (see para 7 below) stated that the plan may be inspected at the office of the Council and at the office of the Department for Administrative and Information Services, Land Boundaries Branch at Level 1, 101 Grenfell Street, Adelaide. It is reasonable to infer, as I do, that the plan was available for inspection at those two offices. Nevertheless, the Surveyor-General has failed to comply with the clear requirement in s 308(5) that the plans must be available for inspection at three named offices. It is therefore necessary to decide whether this non-compliance should invalidate the process of approving the alignment.
The purpose of this legislative scheme has already been identified and reference was made to the fact that making copies of the plan available for inspection is an essential step in informing those who are or who might be affected of the proposal. The critical feature of the scheme is that the plan is available for inspection so that those who wish to may inspect it and determine the extent to which they are or are not affected by it. The place of inspection is not so critical so long as it is located at a place which is reasonably convenient to those who are or who might be affected by the alignment. The effect of the requirement in s 308(5) is that two copies are available in the City of Adelaide and one at the office of the relevant council. In this case, one copy was available in the City of Adelaide and one copy was available at the Council office. I do not think the fact that only one copy was available at the City of Adelaide invalidates the intended alignment.
7. After the plan has been approved as required by s 308, notice of the plan must be given and persons affected by the alignment may object: s 309(1). Section 309(1) requires that the notice be given in each of three ways. They are
(a) by notice in the Gazette;
(b) by notice in one newspaper published in Adelaide; and
(c)to every person who has any registered interest in land in any way affected by the proposed alignment.
The notice must state three matters prescribed in s 309(1) and s 309(2).
(a)The first is that the plan is open for inspection at the offices of the Registrar-General, the Surveyor-General and the Council.
Section 309(1) provides that the notice must state that “the plan is open for inspection at the offices referred to above”. In my view, the expression “the offices referred to above” means the offices mentioned in s 308(5). That is the provision which most immediately precedes s 309(1). Furthermore, that requirement is consistent with the requirement already mentioned in s 308(5) that, after the plan has been approved, copies must be prepared and be open for inspection at the offices of the Registrar-General, the Surveyor-General and the Council.
(b)The second is that any person who so desires may make representations to the Surveyor-General that the plan does not give effect to the provisions of s 308 and s 309.
(c)Thirdly, the notice must fix a time which is not less than one month within which any person may make representations to the Surveyor-General.
In this case, notice was given in the Gazette as well as to each person affected by the proposed alignment. Notice was also given in a newspaper called The Leader which is published in Angaston. The Leader is not a newspaper published in Adelaide. The Surveyor-General has therefore failed to comply with s 309(1). Section 309(1) provides that the Surveyor-General “must give notice in the Gazette and in one newspaper published in Adelaide and to every person” affected by the proposed alignment. The word “must” denotes a mandatory obligation. It is necessary, therefore, to consider whether the failure to publish the notice in a newspaper published in Adelaide invalidates the proposed alignment. I refer to the earlier discussion of the general principles concerning non-compliance.
The provisions as to the manner in which notice is to be given are intended to ensure that all reasonable means of giving notice are used so as to minimise the risk that a person affected by the proposal does not get notice of it. Provided it is received, one form of notice is, as a general rule, likely to be sufficient. Of the three forms of notice prescribed by s 309(1), the most effective is notice to the person or persons with an interest in the land affected by the proposal. Nowadays, few members of the public either obtain or read the Gazette. Publication in the Gazette therefore has limited, if any, utility as a means of giving notice to the general public. Similarly, notice in a newspaper has limited utility unless it appears in the editorial section of the newspaper, instead of being lost in the classified advertisements where public notices are usually to be found. The essence of these requirements is that those with a proper interest receive notice of an alignment. The manner in which that notice is given is not critical provided that the notice contains the prescribed information. Parliament’s intention is to ensure that persons affected receive notice of the alignment with the prescribed information. It is not concerned as to which of the three kinds of notice is actually received by the persons affected. For those reasons, I think that it was not the intention of Parliament that failure to give notice in the correct newspaper should invalidate the procedure, particularly in circumstances such as these where the Seychells received written notice and thereafter engaged in correspondence with the Surveyor-General, ultimately lodging a caveat.
The notice sent to the Seychells clearly stated that they had an opportunity to lodge an objection to the proposed alignment. Although it does not use the precise words prescribed by s 309(1), it clearly conveys the same intention. The Surveyor-General therefore complied with the requirement that the notice state that representations could be made.
There is another requirement with which the Surveyor-General did not comply. The notice in the Gazette and in The Leader did not expressly state “that any person who so desires may make representations to the Surveyor-General that the plan does not give effect to the provisions” of Division III of Part XVII of the Local Government Act. Instead, the notice in each case stated
“Any representation or objection must be made within one month of the date of the notice and must be made to the Surveyor-General. The plan will eventually be deposited with the Registrar-General pursuant to the provisions of Division III of Part XVII of the said Act.”
It is implicit in each of the notices that representations or objections may be made to the Surveyor-General. It would have been preferable if the notice had followed the form of words prescribed by s 309(1). However, the notice in fact given in the Gazette and in The Leader provides a wider right of objection than is provided in s 309(1). For the reasons just expressed and for the added reason that the Seychells received written notice which complied with s 309(1), I do not think the failure to comply results in invalidity.
It would be preferable if, in future notices given pursuant to s 51(7) of the Survey Act, the last sentence in the passage quoted above was not included. It might imply to the reader that there is no point in objecting.
There is yet another non-compliance. The notices in the Gazette and in The Leader both stated that the representation or objection had to be made within one month of the date of the notice. However, the notice received by the Seychells, and all of the other land owners affected by the alignment, stated that they had two months within which to lodge a representation or objection.
Section 309(1) states that “the notice must fix a time (being not less than one month) within which any person may make representations to the Surveyor-General”. The use of the word “must” again denotes a mandatory obligation. Where legislation requires an act to be done “not less than” so many days before a given event, it is necessary to allow so many clear days for that event to be done: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J (with whom Walsh J agreed) at 445 ‑ 447 and the cases there cited. Although Walsh and Gibbs JJ dissented in the ultimate result, the other members of the court agreed that this was the effect of such an expression: see Stephen J at 448 and Mason J at 451. The provisions of s 27(1) of the Acts Interpretation Act 1915 have no application in this context. That section deals with a different situation, namely, where time is prescribed or allowed for doing anything. That is not the effect of s 309(2): Forster v Jododex Australia Pty Ltd (supra) per Gibbs J at 446 ‑ 447. See also Francis v Carmichael [1976] VR 259 at 263. The use of the expression “being not less than one month” therefore required the Surveyor-General to allow at least one month within which to make representations. The requirement in the notices in the Gazette and in The Leader that representation be lodged within one month requires notices to be lodged in a period which is one day shorter than if one month had been provided in which to make representation. The notices in the Gazette and in The Leader therefore failed to comply with s 309(1).
However, the written notice received by the Seychells clearly complied with the time prescribed by s 309(1). There is no evidence that the Seychells ever saw the notices in the Gazette or in The Leader. For the reasons already given, I do not think that Parliament intended that, if a party received a notice which complied with s 309(1) and received two other notices of the same fact which did not comply, the procedure would be invalidated by the two notices which did not comply.
8. If representations are made to the Surveyor-General, the Surveyor-General must consider them and, if he thinks fit, may, with the consent of the Registrar-General and the Council, alter the plan.
The evidence of the Surveyor-General, which I accept, shows that he considered the Seychells’ representations but decided not to accede to them. He decided with the consent of both the Registrar-General and the Council to alter the plan.
9. Section 309(3) requires that, after considering representations or if the plan is altered, the Surveyor-General must give to the person who has made representations as well as to any person who has a registered interest in the land affected by the alteration, notice informing that person of the action which has been taken: s 309(3).
The evidence of the Surveyor-General coupled with his letter dated 14 May 1999 shows that notice was given by the Surveyor-General to the Seychells that he had decided to alter the plan.
10. Any person who has received notice in accordance with s 309(3) may, within one month of the posting of the notice, lodge a caveat stating the grounds and particulars of his or her objection.
Plainly, the Seychells have lodged a caveat. If a person objecting to a caveat does not remove the caveat and the caveat remains, the Surveyor-General may apply to the Land and Valuation Court (which is the Land and Valuation Division of this Court) for an order that the person making the objection attend the court to show cause why the caveat should not be discharged: s 309(4). As already mentioned, the Surveyor-General has applied for an order that the Seychells show cause why the caveat should not be discharged.
Subject to one matter, the evidence adduced on behalf of the Surveyor-General satisfies me that the caveat should be discharged. To put the same proposition another way, the Seychells have not shown why the caveat should not be discharged. Although there are several respects in which the Surveyor-General has failed to comply with s 308 ‑ s 309, I do not think that, when viewed either singly or together, they result in invalidity. The outstanding matter is the question whether the Commissioner for Highways was consulted in respect of the alignment of Dahlia Farm Road. As mentioned above, I think the appropriate course is to adjourn to hear evidence on that issue and, if necessary, argument.
Compensation
The Local Government Act does not make provision for the payment of compensation to persons whose land may be acquired by reason of a road alignment pursuant to s 308 ‑ s 310 of the Local Government Act. It is a well established principle of law that a statute will not be read as authorising the appropriation of property without payment unless an intention to do so is clearly expressed: Clissold v Perry (1904) 1 CLR 363 at 373; C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 per Kitto J at 406. No intention to acquire land without payment of compensation is to be found in the Local Government Act, either by express provision or by necessary intendment. Section 309(4) is expressed in terms which authorise the court to make any order it deems just. It provides:
“The Land and Valuation Court may, on the application of the Surveyor-General, call on the caveator to attend before the court to show cause why the caveat should not be discharged; and the court may make such order on the application and as to the cost of the proceedings as it considers just.” [Emphasis added.]
Where land has been acquired as a result of an alignment, the interests of justice require payment of reasonable compensation. The assessment of that compensation should be made in accordance with s 25 of the Land Acquisition Act 1969, as that Act is a comprehensive code of the principles of compensation for land acquisition and applies to all acquisitions of land pursuant to statutory powers.
As already mentioned, the Council offered to pay $1,000 compensation to the Seychells. That offer was repeated by Mr Bourne, on behalf of the Council, at the outset of the hearing of this application. After hearing the evidence, I expressed the tentative conclusion that the caveat should be discharged. I had then inadvertently overlooked the fact that the Surveyor-General had failed to prove consultation with the Commissioner of Highways. I then expressed the view that compensation should be paid to the Seychells for what constituted a de facto, if not also a de jure, compulsory acquisition of a strip of their land. I also decided that the Seychells should have the benefit of advice from an independent valuer whose fees should be paid by the Council. My reasons for doing so are expressed in the previous paragraph. Mr Bourne said that he had been instructed by the Chief Executive Officer of the Council that the Council would pay the cost of the valuation.
Mr Seychell stated that he and his wife were not prepared to part with any portion of their land. He expressed his view quite forcefully. The Seychells did not know a suitable valuer. I therefore appointed Mr R H Brooke, an experienced valuer who has made many valuations of rural land and who has given evidence to this Court, to assess the compensation payable to the Seychells. He was appointed a court expert pursuant to Rule 82. I adjourned the hearing of the application for the purposes of determining whether Mr Brooke was willing and able to undertake the assessment.
I also expressed the view that the Council should be joined as a party so that binding orders as to compensation could be made against it. I adjourned the application for the further purpose of enabling the Council to obtain legal advice generally and as to whether it should be joined as a party.
The hearing of the Surveyor-General’s application resumed on 22 February 2001. The Council was represented by its solicitor and consented to an order that it be joined as a party to the application. Mr Brooke had consented to being appointed to make an assessment of compensation. I made the following orders.
“1 That Mid Murray Council be joined as a party to this action.
2That Mid Murray Council pay compensation to the respondents for the acquisition of that portion of the respondents’ land acquired as a result of the realignment of Dahlia Farm Road.
3That compensation be assessed in accordance with the Land Acquisition Act 1969.
4That Mr R H Brooke be appointed as valuer for and on behalf of the respondents.
5That Mid Murray Council shall pay the respondents’ costs of the acquisition, except insofar as they are of an unreasonable amount or were unreasonably incurred, so that, subject to those exceptions, the respondents are completely indemnified for their costs.
6On completion of the valuation, Mr R H Brooke shall deliver one copy to the Registrar and one copy to Mid Murray Council.
7Further consideration adjourned to 9.00am on Wednesday, 23 May 2001.
8Liberty to apply.
9No order as to costs.”
The Seychells did not in any respect object to these orders. Mr Brooke prepared a valuation and assessed the compensation payable to the Seychells in a sum of $1,600. I will refer to it in a moment. A copy of the valuation was delivered to the Seychells.
At the resumption of the hearing on 23 May 2001, the Council consented to an order that it pay $1,600 compensation to the Seychells. Mr Seychell stated that he and his wife would not accept that sum. I explained to Mr Seychell that it would be necessary for him and his wife to instruct another valuer so that they would have evidence with which to challenge Mr Brooke’s valuation. Mr Seychell expressed his reasons for disagreeing with Mr Brooke’s valuation but did not wish to instruct another valuer. He did not seek to cross-examine Mr Brooke. Thus, there is only one valuation.
Assessment of Compensation
Mr Brooke assessed the compensation as follows.
Value of land acquired $1,098
Disturbance $500
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$1,598
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He rounded up his assessment to a total sum of $1,600. He valued the strip of land, which he believed contained 1,323 square metres, at a sum of 0.83 cents per square metre. That equates to a value of about $8,300 per hectare. The date of the valuation was 19 March 2001, the date when he inspected the Seychells’ land. I do not think that anything turns on the date of valuation.
In my view, Mr Brooke has had regard to all relevant factors when making his assessment. He is correct in concluding that the Seychells should be compensated only for the value of the land acquired and for disturbance. There is no basis for a claim for either severance or injurious affection, nor is there any other head of compensation under which a claim could properly be made.
Mr Seychell repudiated Mr Brooke’s assessment that the value of the land taken was 83 cents per square metre. He referred to two advertisements for sale of land at Truro. However, none of the allotments referred to in those advertisements is a useful comparison. All of the parcels advertised are considerably smaller than the total area of the Seychells’ land. Some are in effect residential allotments. In addition, they represent offers for sale. The only useful evidence is a concluded sale of comparable land: McDonald v Deputy Federal Commissioner of Land Taxation (1915) 20 CLR 231, 239.
As the land acquired is in broad acre form and as it represents such a small portion of the total area of the Seychells’ land, the appropriate manner in which to value the land taken is, as Mr Brooke has done, to examine sales of comparable land, determine the value of the land in broad acre form, and to apply that value to the land which has been acquired. Mr Brooke’s analysis of four sales of comparable parcels of land close to Truro and in Truro show prices of broad acre land ranging from $8,150 per hectare to $7,900 and $7,500 per hectare. Mr Brooke has adopted a slightly higher value for the Seychells’ land, namely, $8,254 per hectare, which equates to 82.54 cents per square metre. He was justified in doing so given the characteristics of the Seychells’ land and the good views it enjoys. Mr Brooke has then rounded up the rate per square metre to 83 cents to produce a value of $1,098 for the 1,323 square metres which has been acquired. The Surveyor-General accepts that the area of the land acquired should be 1,324 square metres in order to give the Seychells the benefit of any doubts in the calculation of the area. That results in a marginal increase in value to $1,098.92. Given the rounding up which Mr Brooke has made, there is no reason to increase the compensation.
On one view, the Seychells are not entitled to a payment of compensation. The small strip of land which is to be acquired has been part of the road reserve of Dahlia Farm Road since at least 1882. It was a part of the road reserve when the Seychells purchased the land. The Seychells would have seen the land before purchase and would have known what they were purchasing. I accept that an inspection of the certificate of title would have informed them that they were acquiring 7.313 hectares. However, the price that they paid for the land would have reflected the value of the land as fenced as opposed to the value of the land as described in the certificate of title. In that sense, the payment of compensation represents a windfall. However, as the certificate of title clearly stated the area of the land was 7.313 hectares and that the Seychells were not aware that the area was less, I believe it proper to award them compensation for the area of the land which will no longer form part of their certificate of title.
Disturbance
The alignment of Dahlia Farm Road has put the Seychells to some inconvenience and they are entitled to be compensated for it. However, that inconvenience is not extensive. It must be noted that the alignment does no more than result in an acquisition of land which has at all times been located in the road reserve and, to all intent and purposes, does not form part of the land worked by the Seychells or by any of their predecessors in title since at least the 1880s. In all the circumstances, a nominal sum of $500 is proper compensation for disturbance.
For all of these reasons, I assess compensation in the sum of $1,600.
Costs
I do not think that the Seychells should be required to pay the costs of this application. In reaching that conclusion, I have had regard to the fact that this alignment and the consequent acquisition of their land has been visited upon them. I have also taken into account the fact that it is the first application of this kind, so that the Seychells had no precedent to guide them. In addition, they have succeeded in securing an increase in the amount of compensation payable to them above both the offer of $1,000.
The fact that the Seychells have changed their attitude and have since 1998 consistently opposed the Surveyor-General did point to the conclusion that the Seychells should have paid the costs of this application. As this land has for so long been effectively part of the road reserve and as the alignment sought to do no more than legitimise a position which has existed for so long, the Seychells’ objection had little foundation. It was possible for the Seychells to have agreed with the alignment subject to the payment of proper compensation. That fact pointed to the conclusion that they should be required to pay costs. However, on balance, I have decided that they should not pay the costs. Nevertheless, it is appropriate to warn others who oppose like applications that they may find that they will be ordered to pay part or all of the costs of opposing an application for discharge. If a caveat has been lodged, it is always possible to agree to withdraw the caveat on terms as to compensation or upon other reasonable terms.
Remarks made by Mr and Mrs Seychell in correspondence and at the hearing of this application indicate that they believe that they are the victims of unfair governmental action. Nothing could be further from the truth. The Council and the Surveyor-General seek to do no more than legitimise a position which has existed for more than 100 years. The land was in this condition when the Seychells purchased it. They are receiving fair compensation for this small strip of land because it was included in the certificate of title. It was never physically part of their land. Everything which has been done has been authorised by the Local Government Act.
** APPENDIX ATTACHED TO ORIGINAL JUDGMENT **
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