The Young Men's Christian Association of Brisbane v Chief Executive, Department of Main Roads and Chief Executive, Department of Transport
[2011] QLC 39
•23 June 2011
LAND COURT OF QUEENSLAND
CITATION: The Young Men’s Christian Association of Brisbane v Chief Executive, Department of Main Roads and Chief Executive, Department of Transport [2011] QLC 0039 PARTIES: The Young Men’s Christian Association of Brisbane
(Applicant)v. Chief Executive, Department of Main Roads and
Chief Executive, Department of Transport
(Respondents)FILE NO: AQL561-09 DIVISION: Land Court of Queensland PROCEEDINGS: Determination of preliminary point of law DELIVERED ON: 23 June 2011 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDER: 1. The trust, pursuant to the provisions of the Land Act has come to an end but the YMCA is not precluded from claiming compensation for the actual damage suffered by them as a consequence of the resumption.
2. The amount of actual damage caused to the YMCA as trustee can include the costs of reinstatement of their operations on other land.
3. It is open for the reinstatement method to be applied in determining the compensation in this case but that is not the only approach which might be adopted.
4. The determination of the entitlement to an assessment of compensation is to be made pursuant to the provisions of the Acquisition of Land Act 1967.
5. In this case where the land resumed was the whole of the land the subject of the deed in trust governed by the Land Act 1994 the compensation payable to the Applicant may, but will not necessarily, include any costs incurred by the Applicant to relocate or reinstate its operation to another site such as those claimed in the Applicant’s claim for compensation dated 27 November 2008.
CATCHWORDS: Resumption – Deed of Grant in Trust – statutory trust – limits on entitlement to compensation – meaning of ‘actual damage’ caused to the trust – alternative methods of assessment of compensation – reinstatement method open.
Statutory interpretation – entitlement to compensation for resumption of a Deed of Grant in Trust – meaning of ‘actual’ damage suffered in ALA s.18(5) – use of statutory history as an aid to construction.
Resumption – assessment of compensation – methods available – reinstatement approach – when permissible to use.
Acquisition of Land Act 1967, Land Acts (1962-1965), Land Act 1933, ALA (W.A.) s.12, 18 and 20.
State of Western Australia v Ward & Others (2002) 213 CLR 1, Western Australia v Ward, Diggon-Hibben Ltd v The Queen (1949) 4 D.L.R. 785, Nevis Pty Ltd v Chief Executive [2001] 22 QLCR 231, Department of Main Roads, Chapman v Brisbane City Council (A97-87) 3 June 1999 (unreported), Konowalow v Minister of Works (1960) 8 LGERA 75, Sisters of Charity of Rockingham v R (1922) 2 A.C. 315, Chang v Laidley Shire Council 2007 HCA 37, Sydney Sailors’ Home v Sydney Cove Redevelopment Authority, Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, Smith v ANL Ltd (2000) 204CLR 493, Dell Holdings Limited v Toronto Area Transit Operating Authority (1997) 1 S.C.R. 32 (SCC), Laidlaw v Municipality of Metropolitan Toronto, (1978) Can Lii 32 (S.C.C.), Project Blue Sky Incorporated v Australia Broadcasting Authority (1988) 194 CLR 355, Trustee of the Lang Park Trust v The Brisbane City Council Land Court (Mr R Wenck), unreported, 12 November 1990, Liverpool City Council v The Commonwealth(1993) 81 LGERA 45, Leichhardt Council v Roads and Traffic Authority (NSW) (2006) 149 LGERA 439 , Dobcol Pty Ltdv Law Institute of Victoria (1979) VR 393, Hill v William Hill(Park Lanes) Limited 1949 A.C. 530, MacDermott v Corrie & Another (Trustees of the Acclimatization Society of Queensland), Stebbing v Metropolitan Board of Works LR 6 QB 37, Spencer v The Commonwealth 5 CLR 418, Cedars Rapids Manufacturing and Power Co v Lacoste [1914] A.C. 569, Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 A.C. 111.
APPEARANCES: Mr G Allan for the Applicant, instructed by Anderssen Lawyers.
Mr D Gore QC and Mr J Horton for the Chief Executive instructed by Department of Main Roads and Department of Transport.
Background
On 15 October 1905, Letters Patent issued by command of the Lieutenant Governor Sir Hugh Muir Nelson creating The Young Men’s Christian Association of Brisbane as a body corporate.
On 31 March 1966, a Deed of Grant of land pursuant to the Land Acts (1962–1965) granted to The Young Men’s Christian Association of Brisbane (Inc.) land described as Portion 713 on Plan of Survey catalogue B.3.832 in the County of Stanley, Parish of Enoggera (“the land”) “Upon trust for recreation (Youth Community Centre) YCC purposes.”, subject to the proviso that “if the Trusts, Conditions, Reservation and Provisoes herein contained be not duly observed and performed by the said The Young Men’s Christian Association of Brisbane (Inc.) and its successors as Trustee, then the said Land shall revert to Us, Our Heirs and Successors and these presents and every matter and thing herein contained, shall cease and determine and become absolutely void to all intents and purposes: And it shall be lawful for Us, Our Heirs and Successors, by some person authorised by the Governor for the time being of Our said State, with the advice aforesaid to re-enter and take possession of the said land, or any part thereof, and all occupiers thereof therefrom wholly to remove.”
The Deed of Grant recites, in part,
“to hold unto the said the Young Men’s Christian Association of Brisbane (Inc.) and its successors, for ever, Yielding and Paying therefor Yearly unto Us, Our Heirs and Successors, the Quit-Rent of one peppercorn for ever, if demanded, upon Trust for recreation (Youth Community Centre) purposes.”
The land is, accordingly, subject to a statutory trust in accordance with the provisions of the Land Act 1994, to which provisions I shall refer later and is, consistent with the observations of the High Court in State of Western Australia v Ward & Others,[1] able to be described as a statutory Trust.
[1] (2002) 213 CLR 1 (especially at 144-145).
The High Court in that case, was considering the effect of s.3 of the Land Act 1933 (WA) which, to the extent necessary, on my reading of it, is consistent with the provisions of the Land Act 1994.
In Western Australia v Ward, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed as follows[2]:
“In these circumstances, s.33 must be understood as providing for the creation of a public Trust in cases where the purposes for which the person was to hold the land were charitable purposes. That is, if the purpose specified in the direction vesting the land was a charitable purpose, the effect of s.33 was to vest the legal estate of the land in the person or body named, to be held by that person or body as trustee of a public charitable trust, a trust which could, no doubt, be enforced in the same way as any other public charitable trust.”
[2] p.144 l240.
Of course, just as Trusts can be created they can be extinguished.
Acting upon the Deed of Grant, the YMCA carried out development, including a substantial building, on the subject land which came to be located between Lutwyche Road (previously Bowen Bridge Road) and Truro Street at Lutwyche.
The Applicant tendered an affidavit of John William Negline in which he deposes to the Applicant having conducted gymnastic and playgroup programs on the top floor of the building and a childcare centre on the ground floor.[3]
[3] See Ex. 6.
On 10 January 2008 the YMCA received from the Respondent a Notice of Intention to Resume in respect of the subject land for transport purposes, namely, road and road transport infrastructure for the Airport Link Project and busway and a busway transport infrastructure for the northern busway (Windsor to Kedron) project.
The resumption was formalised by proclamation in the Queensland Government Gazette on 11 April 2008 and, on 27 November 2008, the Applicant sought compensation in a total sum of $11,624,000 (plus GST).
That claim was comprised of the following items:
Replacement Land and Improvements:
(i) Replacement Vacant Land For Gymnasium & Childcare $5,700,000 (+GST)
(ii) Replacement New Improvements for Gymnasium &
Childcare (incl fees & contingency) $2,775,000 (+GST)(iii) Replacement Land & Improvements (Archive storage) $650,000 (+GST)
(iv) Statutory fees and charges (Gymnasium) $460,000
(v) Statutory fees and charges (Childcare) $305,000
Sub Total $9,890,000 (+GST)
Disturbance Items:
(i) Acquisition Costs $320,000 (+GST)
(ii) Temporary Accommodation $500,000 (+GST)
(iii) Temporary Accommodation statutory fees and charges $460,000
(iv) Relocation & Storage Costs $100,000 (+GST)
(v) Claimant’s loss of time spent in relation to preparing
claim for compensation $30,000(vi) Professional Costs
(legal, valuation, planning, engineering and other fees) $140,000 (+GST)(vii) Claimant’s loss of time spent to reinstate to
new premises – estimate $60,000
(viii) Loss of profits during the period of construction
of replacement premises $83,000(ix) Loss of profits prior to vacating premises $41,000
Sub-total $1,734,000 (+GST)
Total $11,624,000 (+GST)The consequence of the Deed of Grant was that, so long as the Trust continued the YMCA had an opportunity to occupy land effectively free of rent save for the reference to a Quit-Rent of one Peppercorn in the Deed of Grant. This is the determination of a preliminary point of law in an application to the Court for determination of compensation arising out of the resumption of that land.
The Acquisition of Land Act 1967 (hereafter “ALA”) contains a scheme for the determination of appropriate compensation in the event of a resumption of land by a constructing authority.
Part 2 of the ALA deals with the taking of land and in particular at s.12 sets out the effect of the gazettal of the resumption notice.
Section 12(5) of the ALA provides as follows:
“(5)On and from the date of the publication of the gazette resumption notice the land thereby taken shall be vested or become unallocated State land as provided by the foregoing provisions of this section absolutely freed and discharged from all trusts, obligations, mortgages, charges, rates, contracts, claims, estates, or interest of what kind soever, or if an easement only is taken, such easement shall be vested in the constructing authority or, where the gazette resumption notice prescribes, in the corporation requiring the easement, and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act and every person whose estate and interest in the land is injuriously affected by the easement shall have a right to claim compensation under this Act.”
Part 4 of the ALA sets out the scheme of compensation in respect of land resumed by any of the relevant constructing authorities.[4]
[4] See ALA s.2 definition – “Constructing Authority”.
In Part 4 section 18 identifies the parties by whom compensation may be claimed and in the present case it is not disputed that the Applicant has an entitlement to claim compensation in respect of the resumption.
In particular, s.18 relevantly provides at s.18(1), (2) and (3A) as follows:
“(1)Subject to subsections (2), (3), (4A) and (5) compensation whereto a right is had under section 12 may be claimed from the constructing authority under, subject to and in accordance with the provisions of this part.
(2)In the case of the inability or incapacity of any person entitled to claim, the claim may be made by the person’s guardian, trustee or committee or, if there is no guardian, trustee or committee, the Public Trustee of Queensland.
(3A)If a person’s investment property is taken under this Act, compensation for costs mentioned in the definition costs attributable to disturbance, paragraphs (a) and (b), under section 20(5) is claimable by, and payable to, the person for the purchase of land by the person to replace the investment property.”
However, the preliminary issue which has arisen is as a consequence of the effect of s.18(5) of the ALA which provides that:
“(5)The claim for compensation of a trustee or trustees of any land in respect of the taking thereof shall be limited to the amount of actual damage caused to the trust by reason of the taking, and no such trustee shall have any other right, remedy, or claim whatsoever in respect of such taking against the Crown or any other person whomsoever and this Act and every other relevant Act or law or rule, practice, or process of law, or judgment of any court of competent jurisdiction, shall be read, construed and applied subject to this subsection.”
Part 4 s.20 of the ALA deals with the assessment of compensation and relevantly provides as follows:
“(1)In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also—
(a) to the damage, if any, caused by any of the following—
(i) the severing of the land taken from other land of the claimant;
(ii)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant’s other land mentioned in subparagraph (i); and
(b) to the claimant’s costs attributable to disturbance.
(2)Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(2A)However, in assessing the compensation, a contract, licence, agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be taken into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.” (my underlining)
I pause to mention here that, of course, s.20 follows upon the provisions of s.18 and it might be thought, unless there is a clear statutory intention to contrary, to have been drafted in contemplation of the earlier provisions of the Act.
Section 20(5) deals with “costs attributable to disturbance” but it is not necessary to recite the provisions of that subsection here.
It is interesting to note that, on my reading of the Act the word “damage/damages” appears only twice.
It appears as indicated above in s.18(5) and it appears in s.20(1)(a).
The Supreme Court of Canada in Diggon-Hibben Ltd v The Queen[5] observed in the judgment of Rand J (with whom Estey J agreed) made the following observations:
“It is assumed, in the situation here, that he is to continue in business. In this we have no need of an imaginary market, purchase, or interest; we have the real interest of the owner, and its measurement in value is the task for the Court. The rule applies to cases such as this where the possibilities of the land for which the claim is made are actually realized by the owner in the use to which he has put it: Irving Oil Company v. The King supra. A compensation statute should not be approached with the attitude that Parliament intended an individual to be victimized in loss because of the accident that his land rather than his neighbour's should be required for public purposes; and this Court in the case mentioned was confirmed in its conception of the rule by the fact that in the definition of the word ‘land’ in the Expropriation Act, R.S.C. 1927, c. 64, the word ‘damages’ is included, a word which does not appear in the definition clause of the English Act. But all such subsidiary items involved in the disturbance of possession and the direct result of the forcible taking become embraced within the actual value of the land to the owner as fully as any other feature of it. I do not mean to imply that this rule is a formula for all cases. There are so many different situations to be met in the use of lands, that in some of them, as for example, those calling for reinstatement, or that dealt with in The Prince's Street Gardens Arbitration, reported in Cripps on Compensation, 8th Ed., at p. 916, in both of which values other than commercial or economic are present, its application would be difficult if not impossible.”
[5] (1949) 4 D.L.R. 785 (at 787).
Those observations seem apposite in the present case although it must be acknowledged that the Court was considering a different Act namely the Expropriation Act of Canada (1927).
Certainly it seems appropriate to observe that the Acquisition of Land Act has never been construed so as to produce a clear result that an individual has been victimised in loss because of the accident that his land rather than that of another has been resumed. I use individual here in its broadest sense to include corporations, charities and the like.
The claim for compensation which is set out in full above [12] comprised a claim for replacement land and improvements in the sum of $9,890,000 and disturbance items in a total of $1,734,000.
On 5 January 2010 the Court ordered that the following issue be determined by way of a preliminary hearing:
“Whether, on the proper interpretation of s.18(5) of the Acquisition of Land Act 1967, in particular, of the expression ‘the amount of actual damage caused to the trust by reason of the taking’, in a case where the trust is a trust of a lot of land, and the land resumed was the whole of that lot, the compensation payable to the claimant may or may not include any costs incurred by the claimant to relocate or reinstate its operation to another site.”
The articulation of that preliminary issue is reflective of the matters set out in the Originating Application to this Court wherein it is said that the grounds on which orders or relief are sought include:
“4Pursuant to s.12(5) of the Acquisition of Land Act 1967, the Applicant’s interest in the land has been converted to a right to claim compensation.
5.Pursuant to s.18(5) of the Acquisition of Land Act 1967, the Applicants claim for compensation is limited to the amount of actual damage caused to the trust by reason of the taking of the land.
6.The actual damage caused to the trust by reason of taking of the whole of the land from the Applicant is the cost to reinstate the Applicant to alternative premises. The amount of compensation as previously claimed by the Applicant is the estimated cost of the reinstatement.”
In the course of the hearing of the preliminary point, the Applicant contended that the following four findings should be made:-
1. That the Trust has not come to an end.
2. That “the amount of actual damage caused to the Trust” in s.18(5) of the ALA can include loss of land.
3. That it is open for the reinstatement method to be applied in determining the compensation in this case.
4. That the determination of the entitlement to, and assessment of, compensation is to be made pursuant to the provisions of the ALA only.
The Respondent’s submit in their outline of argument that the preliminary issue should be answered along the following lines:[6]
“In this case where the land resumed was the whole of the land the subject of the Deed of Grant in Trust governed by the Land Act 1994, the compensation payable to the Applicant may not include any costs incurred by the Applicant to relocate or reinstate its operation to another site, such as those claimed in the Applicant’s claim for compensation dated 27 November 2008.”
[6] p. 12 Ex. 3.
At the setting down of the preliminary point in January 2010, counsel for the Applicant explained the basis upon which he sought of the determination of the preliminary point in the following terms, “The purpose of the determination of that preliminary point is that the Applicants seek compensation to be assessed on a reinstatement basis and the constructing authority, the Respondent, agrees that this is a matter which would benefit all parties being determined as a preliminary matter.”
In making that submission learned counsel referred to the decision of the former President of this Court, Mr Trickett in Nevis Pty Ltd v Chief Executive, Department of Main Roads[7].
[7] [2001] 22 QLCR 231 at p.240.
In the Nevis case the learned President referred to Chapman v Brisbane City Council, a Land Appeal Court case, as having identified four categories of use of the term “reinstatement”.[8]
[8] Chapman v Brisbane City Council (A97-87) 3 June 1999 (unreported).
There is in the decision of the Land Appeal Court in Chapman v Brisbane City Council[9] a useful discussion of the issue of reinstatement.
[9] (unreported) 3 June 1999.
The following extract is lengthy but in my view it sets out as succinctly as possible some of the issues requiring consideration:
‘There is nothing in s.20 to expressly provide for reinstatement, however, it has been generally held that an approach to assessing compensation by employment of the reinstatement method is appropriate in assessment of ‘value to the owner’ of the land taken, subject, however, to certain qualifications. See for example, N.S.W. Lawn Tennis Association Limited v. The Public Transport Commission of New South Wales (1975) 33 LGRA 39 at 42.
The authority often cited as the pre-eminent source of expression of the reinstatement principle is the House of Lords decision of Birmingham City Corporation v. The West Midland Baptist Association (1969) 3 All ER 172.
The following quotation comes from p.175:‘Apart from severance and injurious affection there is only one subject for compensation – the value of the Land (see Inland Revenue Comrs v. Glasgow & South Western Ry. Co (1887) 12 App. Cas. 315). But it was convenient and it became customary to value separately the market value of the land and the other elements comprised in its value to the owner and then to add these together to obtain the total value to the owner. And it further became customary to add 10 per cent. in respect of the expropriation being compulsory. Rule (1) abolished this addition of 10 per cent.
But it came to be recognised that this method did not always produce a fair result and in certain classes of cases the cost of reinstatement was adopted as giving a better assessment of the value of the land to the owner who was being dispossessed. In Metropolitan Ry. Co. & Metropolitan District Ry. Co. v. Burrow (1883) Lord Coleridge, CJ said:
'… according to my recollection, in my very moderate experience of such things when I was at the bar, it was not at all an uncommon way of testing what sums of money you were to pay to a claimant to look at the position in which he was when the railway company turned him out and say what it would cost him to get into the same position, or a position equally advantageous to that from which he had been displaced by the company. If that is so, what will it cost to reinstate me in the position from which you have precluded me? It is perfectly true you are not bound to do that. You are only bound to pay damages; but if the sum he has to pay to get into the equally advantageous position is a sum forced upon him by the action of the company against him in invitum, then that is the measure of damages which they have occasioned him. It is merely a question, I say, of how you can describe it. Perhaps it is better to avoid the word reinstatement, for it is not in the Act; but the idea is substantially there, and may be used as a means of ascertaining what sum of money is to be paid.'
And in an arbitration arising out of the taking by the North British Railway Company of a part of West Princes Street Gardens, Edinburgh (1892) Lord Shand acting as arbiter said (Ibid., at pp.917, 918):
'Where a church or public building or business premises are taken or so seriously interfered with by a railway company that they can no longer be properly used for the purpose for which they were erected or occupied, the cost of reinstatement is, generally speaking, a fair mode of fixing the compensation due.'
It can be seen then that in determining to adopt the reinstatement method of valuation, (and setting aside the English statutory rules) that not only were their Lordships concerned with assessing the value to the owner, but in so doing, have turned to the reinstatement method only where a ‘fair result’ is not produced by the adoption of other more frequently employed methods. The place of reinstatement as a method to be employed in assessing compensation was considered by Mahoney, JA in Housing Commission of New South Wales v. Falconer (1981) 1 NSWLR 547 at 570 where he said:
‘Where there is no appropriate market or for some reason a market sale is not seen as the appropriate measure of compensation, other approaches may be adopted. The court may adopt the conventional capitalization formula: see Geita Sebea v. Territory of Papua (1941) 67 CLR 544, at pp.559, 560; Emerald Quarry Industries Pty Ltd v. Commissioner of Highways (1979) 24 ALR 37, at p.50, per Mason J at p.55, per Aicken J; or some other formula, more or less artificial: see, eg, Seatainer Terminals Ltd v. Valuer-General (Court of Appeal, 5 February 1976 unreported). See generally The Valuer Vol 22, p.82 et seq, and the cases there referred to.
But in some cases the ordinary formulae may be, of their nature, inapplicable. There may be no market. The property may not have been income-producing. Or the application of the more normal formulae may simply not 'produce a fair result': see the Birmingham Corporation case [1970] AC 874 at p.893, per Lord Reid. The reinstatement principle may, in an appropriate case, be used.’
The employment of the reinstatement principle is appropriate, therefore, only where other approaches to assessment of value have been shown to be inappropriate or as not producing a fair result. Reinstatement is not a method of first resort.
The following quotation is taken from Cripps Compulsory Acquisition of Land 11th Edition paragraph 4-203:
‘Before the Acquisition of Land Act, 1919, reinstatement value, instead of market value, was sometimes given so as to give proper effect to the principle of compensation on the basis of value to the owner. Generally it was only given in respect of property which was of such a nature (for example a school, church hospital, house of exceptional character, business premises in which the premises could only be carried on under special conditions or by means of a special licence) that there was no market or general demand for such property; and a market value deducted from the income derived would not constitute a fair basis in assessing the value to the owner.’
This source was cited with approval in the Queensland case of A.W.U. v. Townsville City Council (1982) 8 QLCR 195 at p.197.
It is to be noted that in Cripps there is no suggestion that one has regard to the fairness of assessment in a general sense, but only in the sense that traditional methods of valuation do not give proper effect to the principle of compensation on the basis of value to the owner. It is thus not a matter of simply having regard to all of the evidence, and based upon that, determining that a reinstatement method of valuation ought to be employed, for the essential question which must be asked in a case of this nature, is what is the value to the owner of the land acquired compulsorily.”[10]
[10] pp.5, 6, 7
Later in their decision the Land Appeal Court identified four categories of application of the concept for reinstatement they were[11]:
[11] Ibid p.9.
“1.Application in the classical sense as it applies to churches, schools and the like where reinstatement of the whole of the structure may be the subject of the award.
2.Reinstatement of business premises of a type where there is no general demand in the marketplace for the type of property under consideration.
3.Reinstatement applying where the reconstruction of part of an essential component within a single undertaking is appropriate.
4.In the case of the resumption of a lease, or of possession, for a limited period, of fee simple land.”
The land is, pursuant to s.34P(3) of the Land Act 1994 conveniently able to be referred to as “DOGIT land”.
It is correct, as Counsel for the Applicants point out at paragraph 9 of their detailed written submissions, that some English authorities suggest that compensation cases have been resolved on the basis of awarding compensation on the reinstatement basis in respect of charitable purpose trusts but it must be observed that such resolutions have depended entirely or largely upon the language of the underlying statute providing for compensation in the event of compulsory acquisition. As I read the legislation in The English Cases it contained specific acknowledgement of an entitlement to assess compensation on a reinstatement basis.
It is often useful in cases such as this to have regard to preceding legislation. That really only is of substantial use if enacting new legislation continues some of the themes in the previous legislation or, alternatively entirely supplants a pre-existing theme in circumstances where the reason for that supplanting is set out either in explanatory notes or in relevant reading speeches before the Legislature.
Counsel for the Applicant set out in great detail a range of previous Acts beginning with the Land Clauses Consolidation Act 1845 (England) and then traversing through the Public Works Act 1894 (New Zealand), Public Works Land Resumption Act 1906 (Queensland), Railways Act 1914 (Queensland), and the City of Brisbane Improvement Act 1916 (Queensland).
It is prudent to bear in mind the observation of Virtue J in Konowalow v Minister of Works[12] where, at [77] he observed that:
“The right to claim compensation and the heads under which it can be claimed depend exclusively upon the terms of the relevant statutory provisions - Sisters of Charity of Rockingham v R[13]. It is a purely a question of construction of the particular statute, and consequently judicial decisions on statutes in different terms are only of limited application”.
[12] (1960) 8 LGERA 75.
[13] (1922) 2 A.C. 315.
In the present case I have gained little assistance from the detailed review of the previous Acts in England and in New Zealand because the language of the Acts which have been promulgated in Queensland is in different terms and evidences a different approach to the question of calculating compensation.
Hyam, in his learned text The Law Affecting the Value of Land in Australia,[14] refers to the observation of Kirby J in Chang v Laidley Shire Council[15] where His Honour observed:
“State Constitutions in Australia do not contain guarantees according land owners entitlements to ‘just terms’ compensation in the event of compulsory acquisition of their property interests by or under State law (Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399). Still less do they contain guarantees of compensation in the event of supervening injurious affection occasioned by successive changes to planning law. Nevertheless, a provision for compensation, in specified circumstances, has appeared in Queensland law at least since the Local Government Act 1936 (Qld) …”
[14] Federation Press 2009, 4th ed p.295.
[15] 2007 HCA 37 (at 21).
Hyam also refers[16] to the observations of Callinan J who in the Chang decision observed
“Although the States are unfortunately not constitutionally bound to provide just terms on the compulsory acquisition of property, by long practice and convention, sensitivity to the disparity between State and subject, and historical respect for property and like rights, rarely do they fail so to provide. Indeed, since at least 1936 planning legislation has so provided in respect of the sorts of events which have happened here. It is on the basis of such rights, and the expectation of compensation for their destruction or impairment, that transactions take place, plans are made, money expended, and people order their lives. To destroy legislatively such a valuable right, here to subdivide, in some apprehended public interest is one thing, but to exonerate the public from paying the deprived landowner is entirely another, and unacceptable things. What the public acquires or enjoys the public should pay for.
It seems to me that to take away completely, by a few strokes of the legislative pen, the appellants’ right to seek to have, and undoubtedly in substance to have, their land subdivided, is to do much the same as was done by the Commonwealth Parliament by the Seafarers Rehabilitation and Compensation Act 1992 (Cth) considered by this Court in Smith v ANL Ltd (2000) 204CLR 493. Mr Smith however had the right to just terms as mandated by s.51(xxxi) of the Constitution. The appellants here unhappily do not. Increasingly prescriptive, restrictive, intrusive and even wrong-headed planning and heritage legislation and instruments, which go far beyond what a modern law of nuisance, taking account of denser populations, closer settlements, burgeoning industries, and other contemporary conditions could possibly insist upon, should not, as I fear they oppressively are, be used as a cloak to reduce, or extinguish valuable rights of, or attaching to, property.”
[16] Ibid.
In the Victorian case of Kozaris v. Roads Corporation,[17] Gobbo J observed:
“It is axiomatic that compensation for compulsory land acquisition is a matter of statutory entitlement and does not rest on the common law. At the same time, case law has provided considerable scope for development of the law where the statute sometimes uses concepts and not precise rules in addressing the question of compensation.”[18]
[17] (1991) 1 VR 237 at 239.
[18] Hyam p.296.
Notwithstanding the apparent outrage expressed by Callinan J to legislative intention to restrict or reduce an appellant’s rights to compensation it still remains a matter to construe the intended affect of s.18(5) which, on its face, clearly seems to contemplate some restriction on the rights of trustees seeking compensation to receive only what is expressed to be their “actual damage caused to the trust by reason of the taking.”
Of some use in the present cases is a review of the provisions of the Public Works Land Resumption Act 1906 (Qld), the Railways Act 1914 (Qld), and the City of Brisbane Improvement Act 1916 (Qld). Counsel for the Applicant places particular emphasis in the continuing theme which emerges from review of the provisions dealing with “by whom compensation may be claimed”. However, he mistakenly, in my opinion, places undue weight upon the capacity of a person’s guardian, trustee or committee to claim compensation on behalf of a person or body under a disability or incapacity.
Some guidance can, in my opinion can be gleaned from the New South Wales Court of Appeal decision in Sydney Sailors’ Home v Sydney Cove Redevelopment Authority.[19]
[19] (1977) 36 LGERA 106.
In that matter which was a case stated to the Court of Appeal the Sydney Cove Redevelopment Authority (“the authority”) had, pursuant to statutory powers, resumed land owned by Sydney Sailors’ Home. The Sydney Sailors’ Home had acquired the land pursuant to a dedication gazetted in 1920 as a “site for a sailors home” pursuant to the provisions of s.24 of the Crown Lands Consolidated Act 1913 (NSW) and, according to the judgment, prior to the grant, the Sydney Sailors’ Home had executed a declaration of trust which had been lodged with the Registrar-General and which was the subject of a caveat noted on the grant after its registration under the Real Property Act, 1900.
Accordingly, in my view, the manner in which the Sydney Sailors’ Home was held by trustees was similar to the way in which the subject property of the YMCA is held. In 1919 the Sydney Sailors’ Home had been incorporated under that name pursuant to the Companies Act 1899 and was a company formed “not for gain” and “limited by guarantee”.[20]
[20] Sydney Sailors’ Home p.108.
In the Sydney Sailors’ Home case the trust upon which the owner held the subject land contained a provision that:
“The said land and the hereditaments shall not be Sold, Exchanged, Leased, Mortgaged, Charged or otherwise dealt with without the approval of the Governor for the time being of the State of New South Wales with the advice of the Executive Council of the said State.”[21]
[21] Ibid, p.109.
The case stated asked the following question.
“(a) Was there any evidence or sufficient evidence to entitle me to conclude or infer that in granting consent to the sale of the resumed land, the Governor-in-Counsel would have attached a condition that the plaintiff retain only so much of the purchase price as would enable it to relocate elsewhere?[22]
(b) If so, would the Governor-in-Counsel have had the power to impose such a condition?
(c) (Irrelevant to this case)
(d) Should I, as a matter of law, have held that there was required by the fact of resumption an assumption of sale by the plaintiff of its legal interest in the land at the resumption date, without restriction on the disposition of the proceeds of sale?
(e) Should I, as a matter of law, have held that compensation must be assessed on the basis that an estate in fee simple, freed and discharged from all trusts and encumbrances whatsoever was acquired by the defendant and that the terms of the Declaration of Trust did not affect the value of the land?”
[22] Ibid, p.110.
The Deed of Grant of land for the YMCA land contained no provision whereby the consent of the Governor-in-Counsel or any other entity could permit the sale of the land. To that extent the questions confronted in the Sydney Sailors’ Home case differ from those which I must address. However, the observations about reinstatement, as I shall indicate below, are, in my opinion, relevant to the determination which I must make.
One of the issues identified by Hope JA in his decision was the issue of the exercise of discretion by the Governor-in-Counsel to permit the sale of the land. His Honour observed:
“In so exercising the discretion, the Governor-in-Counsel was entitled to ‘rethink’ the whole matter of the dedication of land for the purposes of a sailors’ home, and in particular to impose conditions limiting the amount of money receivable by the owner out of any sale price to that amount required by the owner to acquire and re-establish the premises in which to carry out the purposes of the trust.”[23]
[23] Ibid, p.111.
In one sense that might be thought to describe the “actual damage” suffered by the dispossessed Sailors’ Home and notably contemplated “reinstatement” of the facility.
In the Sydney Sailors Home’ decision it was accepted by Hope JA that upon the resumption the landowner was freed and discharged from all trusts and other obligations and interests.
Interestingly, His Honour observed:
“The interest of the owner in the land was an estate in fee simple, but one which was subject to the trusts set out in the Declaration of Trusts, and on one view of the law still subject to the dedication under s.24 of the Crown Lands Consolidation Act. Although there was vested in the authority by virtue of the resumption, an absolute estate in fee simple, it does not follow that it was this estate that was deemed to have been conveyed to it by the owner if the owners estate was subject to the dedication at the time of the resumption, then it was the estate so qualified that was deemed to have been conveyed, although in the authorities hands, the dedication was cancelled. The dedication of trust did not affect the owner’s notional power to convey the fee simple to the authority and in the authorities hands the fee simple was discharged from the trust. However the existence of those trusts could have an important effect on the value of the owner’s interest in the land.”
So much seems to aptly describe the present situation confronting this Court and the YMCA.
The inclusion of s.18(5)into the Acquisition of Land Act in 1967 was a completely new addition, there being no derivation from the older compensation statutes. Equally, s.18(5) was not substituted for a provision that had been interpreted by the court so as to produce an unsatisfactory result.
It appears from a review of the legislation and the second reading speech associated with the passing of the Acquisition of Land Act1967 that there is no explanatory note or observation in the second reading speech which provides any guidance as to how s.18(5) is intended to be applied. Accordingly, it falls to the usual rules of statutory interpretation to ascribe some meaning to the provisions of section 18(5) of the Acquisition of Land Act 1967, in particular, of the expression “the amount of actual damage caused to the Trust by reason of the taking in a case where the Trust is a Trust of a lot of land, and the land resumed was the whole of that lot, the compensation payable to the claimant may or may not include any costs incurred by the claimant to relocate or reinstate its operation to another site.”
The Applicant in its written submissions draws the Court’s attention to the proposition that the Acquisition of Land Act being an Act which, in part, relates to compensation for dispossessed owners and accordingly contains remedial or beneficial provisions which should be construed liberally (that is, in favour of the person sought to be benefited). Notwithstanding the exhortation to construe remedial or beneficial provisions liberally such provisions must, necessarily, continue to be interpreted in accordance with their statutory meaning and intent.
It would be a mistake to import into the construction of a statutory provision an entitlement to compensation which was not intended by the legislature.
Counsel for the Applicant refers to the dicta of Corey J in Dell Holdings Limited v Toronto Area Transit Operating Authority (1997) 1 S.C.R. 32 (SCC) where His Honour observed:
“21. Further, since the Expropriation Act is a remedial statute, it must be given a broad and liberal interpretation consistent with its purpose. Substance, not form, is the governing factor. …
In Laidlaw v Municipality of Metropolitan Toronto, (1978) Can Lii 32 (S.C.C.), (1978) 2 S.C.R. 736, at p.748, it was observed that “[a] remedial statute should not be interpreted in the event of ambiguity, to deprive one of common law rights unless that is the plain provision of the statute.
23. It follows that the Expropriation Act should be read in a broad and purposive manner in order to comply with the aim of the Act to fully compensate a landowner whose property has been taken.”
I accept that general proposition. The problem for the Applicants is that s.18(5) deals specifically, not with providing for compensation, but limiting the amount of compensation which a trustee or trustees of any land is entitled to claim to only “the amount of actual damage caused to the trust by reason of the taking”. It goes onto provide that “no such trustee shall have any other right, remedy or claim whatsoever in respect of such taking against the Crown or any other person whom so ever.”
It might be thought, although it is by no means clear, that the legislature was trying to implement a statutory regime which prevented parties holding land on trust from being compensated by way of payment for the value of land which they never owned or, possibly, preventing them from gathering windfall gains by recovering the current value of land for which they never paid. Adopting a purposive approach as commended by the High Court in Project Blue Sky Incorporated v Australia Broadcasting Authority (1988) 194 CLR 355, the Respondent takes particular comfort from the provisions of the Land Act 1994[24] all of which deny compensation in the circumstances where a “DOGIT” is either cancelled or surrendered or where a trustee lease is cancelled.
[24] S.38E, s.55(F) and ss.55(3).
That is not, however, what has happened in the present case. The land has been resumed. For whatever reason the Crown has not sought to either cancel or procure the surrender of the lease.
Unsurprisingly there was no evidence placed before the Court that demonstrated to any degree of satisfaction that it was likely that the government would have cancelled the “DOGIT”. It was however raised obliquely as a possibility by the Respondent.
Reference was also made to the possibility of the Governor-in-Council resuming land that is surplus to the needs of the “DOGIT” pursuant to s.37 of the Land Act. That provision however relates to a circumstance where the Minister has been able to satisfy the Court that the land the subject of the grant in trust is more than the area reasonably needed and relates only to the resumption of part of the land. Again that is not what has happened here.
However the other aspects of the submissions made by the Respondent’s about the manner in which the Land Act operates make it clear that, with respect to “DOGIT” land, the trustee is not entitled to dispose of the land in any manner which might be thought to evidence ownership of that land in fee simple.[25]
[25] See for example: s.61, s.68(2), s.72(a).
It is, of course, the ownership in fee-simple which entitles the registered proprietor of resumed land to recover compensation for that land generally calculated by reference to the highest and best use of the land at the date of the resumption.
The YMCA is an incorporated association and does not otherwise operate as a trustee in the sense in which that term is used pursuant to the Trust Act 1973. It holds the land as a statutory trustee.
The Respondent contends that the effect by operation of law of the resumption of the land was that the trust, the subject of the 1966 Deed of Grant of Trust (DGT) ended upon resumption.[26]
[26] Respondent submissions Ex. 3 p.2.
Even if that is true, the trustee itself, namely The YMCA, did not cease to exist by virtue of that resumption and, it seems to me, the legislation must have specifically contemplated the extinguishment of the holding of the land on trust in formulating s.18(5) which speaks of the “trustee or trustees”.
Section 18(5) clearly contemplates that some compensation is payable to a trustee but seeks to limit that payment to being compensation for the actual damage suffered by the trust.
In summary then the following factors appear, to me, to be determinative of the entitlement of the Applicant to compensation:-
(a)The Applicant holds the land pursuant to a statutory trust.
(b)The Applicant holds the land in fee simple subject to that trust.
(c)Pursuant to s.12(4) and (5) of the Acquisition of Land Act 1967 upon the gazettal of the resumption notice the trust is dissolved.
(d)The Acquisition of Land Act has a limiting provision which is clearly intended to limit the amount of compensation to which a trustee is entitled.
(e)The legislature, it might be assumed, has carefully chosen the words “actual damage” in ss.5.
The Acquisition of Land Act distinguishes between the “value of the land taken” and the “actual damage” suffered by a trustee in circumstances where land is resumed. Note ALA s.20(1) and s.18(5). Had the legislature intended that the phrase “actual damage” should be construed so as to include the “value” (used in its widest sense) of the land taken it might be thought that it would have said so.
The Respondent in its submissions begins by a review of the provisions of the Land Act 1994 (the “Land Act”). The Respondent points in particular to the provisions of ss.38E (Cancellation of a Deed of Grant in Trust) (DOGIT), s.55F (Surrender of a DOGIT) and s.65(3) (Cancellation of a Trustee Lease).
The Respondent also points to the consequences of the cancellation or surrender of the lease as well as to the provisions of the Land Act for mortgaging land subject of a DOGIT.
The Respondent also highlights the inability of a trustee of DOGIT land to sell that land.
The Respondent links the various aspects of the Land Act to the operation of s.18 of the ALA and makes the following three submissions:
“23.First, they are relevant to the operation of s.18(5), because the limits which they set on dealings with DOGIT land set limits on the scope of any damage to the trust. For example, the inability of a trustee to sell DOGIT land means that the damage to the trust cannot include, or be measured by reference to, an ability to sell the land.
24.Secondly, they are relevant to the interpretation of s.18(5), because they are part of the wider context in which s.18(5) is intended to be understood[27]. For example, the fact that the Land Act manifests an intention that there are no circumstances in which compensation is payable to any person for anything other than improvements[28] relating to DOGIT land, and that no person, other than the State, has or is able to obtain any share in the unimproved value of DOGIT land, is a powerful indicator that the expression ‘actual damage caused to the trust’ in s.18(5) of the ALA is to be construed as similarly constrained in a resumption involving DOGIT land[29].
25.So, if there is no compensation other than for improvements if a trust ends under the Land Act, equally, if the trust ends by operation of s.12(5) of the ALA, compensation payable to the trustee is restricted to any damage suffered by reason of any loss of interest that the trustee had in improvements.”[30]
[27]Cf R v Lavender 2005 222 CLR 67, 81-86; see also Hayes v Walker 2004 134 LGERA 290; it is also to be noted that the 1962 Land Act (in force when the ALA was passed) included a similar statutory scheme in Part XI (ss.334-361A).
[28] Or development work.
[29] s.18(5) also applies to an ordinary trust, and it will have different consequences in such a case.
[30] Ex. 3 p.9 paras 23-25.
It is useful to contrast the propositions contended for by the Applicant with the primary submissions of the Respondent set out in paragraph 2 of their submissions. Those submissions are quite concise and submit as follows:
“Respondent’s primary submissions
2.The Respondent submits that the preliminary issue should be determined in the negative, for the following primary reasons:
(a)the Applicant’s contention that is entitled to the costs incurred in reinstating its operation to another site (‘the reinstatement contention’) is contrary to the scheme of the Land Act 1994 (‘the Land Act’) which (amongst other things):
(i)restricts the power of a trustee of trust land;
(ii)denies a right to claim compensation when the trust ends;
(b)by operation of law, the trust the subject of the 1966 Deed of Grant of Trust ended when the whole of the land the subject of the Deed was resumed in 2008;
(c)in s.18(5) of the Acquisition of Land Act 1967 (‘ALA’), the expression –
‘the claim for compensation of a trustee of any land in respect of the taking thereof shall be limited to the amount of actual damage caused to the trust by reason of the taking’
-is of a particularly limiting character, and the nature and extent of the compensation embodied in the reinstatement contention falls well outside it;
(d)it is self-evident that the reinstatement contention is without merit, in circumstances where:
(i)the land resumed was not initially purchased by the Applicant, but was granted to it in trust;
(ii)the reinstatement contention would have the consequence that the Applicant would receive a sum of money which is calculated by reference to the purchase of unidentified other land and the development of new premises, but where –
·The Applicant would be under no obligation to spend the money in any particular way.
·Any land purchased by the Applicant would be free of any trust.
(e)in the result, the reinstatement contention would result in a windfall gain to a former trustee, rather than compensation for actual damage caused to a trust.”[31]
[31] Ex. 3 para 2.
While it may be correct to contend that the Trust was extinguished on resumption of the land that does not, of course, have the consequence that the Body Corporate which held the land on Trust is not entitled to compensation. So much is acknowledged by s.18(5) although it is expressed in terms speak of limiting the amount of compensation “to the amount of actual damage caused to the Trust by reason of the taking”.
By the insertion of that phrase in s.18(5) the legislature may be taken to be indicating that a trustee is not entitled to the broad ambit of compensation which may be available to the owner of a fee simple.
In making its argument for compensation on a reinstatement basis including the cost of acquiring comparable land the Applicant has referred to a number of cases including Trustee of the Lang Park Trust v The Brisbane City Council[32] Liverpool City Council v The Commonwealth[33] Leichhardt Council v Roads and Traffic Authority (NSW)[34]. I have reviewed each of those decisions in detail and have come to the view that they are of little assistance to me in determining the preliminary point.
[32] Land Court (Mr R Wenck), unreported, 12 November 1990.
[33] (1993) 81 LGERA 45.
[34] (2006) 149 LGERA 439.
The Applicant places substantial weight on the decision in Trustee of the Lang Park Trust v Brisbane City Council[35] which was a case in which the Court went on to award compensation by reference to the cost of reinstatement of part of Lang Park consequent upon resumption for traffic infrastructure.
[35] Land Court, unreported, 12 November 1990.
The Lang Park case involved an assessment of compensation for the taking of part of the land held by the trustees of the Lang Park Trust which land included toilet blocks, car park, and a liquor booth area. In that case, the trust was not extinguished and the question arose as to what compensation should be paid to permit the reestablishment of the improvements lost as a result of the road widening.
That was a case in which only part of the land was resumed and the reinstatement costs incurred related to restoring facilities such as turnstiles in order to enable the trustees to continue to operate the sporting venue. There was in that case, as the Respondent’s point out, no suggestion that the trust had come to an end, merely that the trustees were attempting to continue to carry on their operations on the land held in trust by reinstating facilities lost on the area which had been resumed. Nor were the Trustees put out of possession of the land.
The strip of land taken was described in the judgment as “consisting of a security masonry block fence, a structure containing 14 turnstiles with ancillary booths, being the main entrance to the Hale Street grandstand, together with entrances to the northern and southern ‘outers’, adjacent paved area recessed off the footpath, access paths, and a car parking area.”[36] That reinstatement involved the demolition of a toilet block.
[36] Ibid p.2. It also appears p.15 of the Judgment.
In the event the Court awarded zero for the loss of the land but did allow $683,299 for reinstatement of the property damage consequent upon the resumption.
The Lang Park case was not a case where the whole part of the land was taken and in any event the awarding of a “nil” figure reflected the learned Member’s finding:[37]
“I have concluded that under the provisions of the Land Act under which the land was granted in trust, then of s.18(5) of the ALA, the trustees are not entitled to be compensated for the land resumed on an unfettered basis of market value.”
That conclusion seems unencouraging for the Applicant in this case.
[37] p.20.
It is not immediately apparent from the judgment that there was any extensive argument about the appropriate interpretation of s.18(5) of the ALA and the learned Member below does not, in the judgment, make clear what he meant when he referred to the disentitlement of the landholder “to be compensated for the land resumed on an unfettered basis of market value.”
The Lang Park case however does exemplify a circumstance in which the Court has been inclined to allow for the costs of some reinstatement so that they could re-establish parts of their operation on the remnant trust land.
It is also noteworthy that in that case the trustees interest in the land resumed was the right to lease the land as provided for under the Land Act and the learned Member recognised that compensation payable should be related to the damage caused to the trust by the loss of that right. In the special circumstances of the case and having regard to the operation carried on the subject land the learned Member was satisfied that reinstatement would enable it to provide the same level of service as it did before and produce the same level of income or potential income from the purpose for which the land was granted so that no loss of rental value would accrue and accordingly no “damage” would be suffered.
Of course, the facts are substantially different in the present case.
The Leichhardt Council case[38] involved applying a value to land classified as “community land” under the Local Government Act 1993 (NSW) which land was subject to a restriction that only a local government could own land with such a classification. A local government was precluded by the Local Government Act from selling land so classified but in this case the land had been acquired by resumption and the Court was faced with the task of determining first of all the market value and then the value that could be paid to the local government. In the event they identified a value per m² and reduced it by 80% by reason of the statutory restrictions on the sale of the land.
[38] (2006) 149 LGERA 439.
In the Liverpool City Council case[39] the Federal Court, constituted by Wilcox J had to construe the effect of s.55 of the Lands Acquisition Act 1989 (Cth) which contained particular provisions as to the amount of compensation to which a person was entitled in respect of the acquisition of an interest in land acquired by the compulsory process (i.e. resumption).
[39] (1993) 81 LGERA 405.
Section 93 of the Lands Acquisition Act 1989 (Cth) contained a provision requiring the Federal Court and/or the High Court exercising jurisdiction under s.75 of the Constitution (Cth) to ensure the acquisition was on just terms. In that case the Liverpool City Council had land vested in it in fee-simple for the use as a public road. Such public roads were resumed and the Court ultimately held that the valuation approaches adopted by the parties were not acceptable because the land was not available on the date of resumption, the council had earned no income from the land and the loss of the land did not cause the council any immediate or certain financial disadvantage.
The Court did, however, allow some compensation on the basis that by the resumption the council had lost the possibility that one day a part or part of the road might be closed and sold and the council would then receive the proceeds of sale.
I do not find the Liverpool City Council case or the Leichhardt Council case of use to me in answering the question in this application.
One matter which must be addressed is to consider why the legislature in the ALA saw fit to preface the reference to damage with the adjective “actual”.
Some Victorian decisions have considered the import of the term “actual”.[40]
[40]See Dobcol Pty Ltd v Law Institute of Victoria (1979) VR 393 at 395 and 396; Ristevski v Kyriacou & Zard Constructions Pty Ltd v Law Institute of Victoria (unreported); Supreme Court of Victoria; Arthur J; 5 August 1997 at 17; Schofield v Consolidated Interest Fund (1988) 49 SASR 546 at 554-555.
In the Ristevski Harper J had to consider the provisions of Legal Profession Practice Act (1958) which provided that, in respect of statutory claims against solicitors, the solicitors guarantee fund was obliged to pay to successful plaintiffs a sum which equalled “the actual pecuniary loss” suffered by them.
His Honour observed[41]
“In my opinion, the word ‘actual’ where used in the relevant legislative provision – namely s.65(5) of the 1958 Act – was intended by parliament to restrict the availability of the Fund to compensation for pecuniary loss actually incurred. On this basis, Mr and Mrs Ristevski are not entitled to receive any amount for loss of use because they have been fortunate enough to find alternative accommodation with members of their family. They have not been charged for that accommodation.”
[41] p.17.
His Honour referred and gained support from the decision in Dobcol Pty Ltdv Law Institute of Victoria.[42]
[42] (1979) VR 393.
In the Dobcol decision Anderson J noted:[43]
“Speaking generally, a thing is not more itself because it is spoken of as ‘actual’.
[43] At p.395.
Anderson J quoted with approval the speech of Viscount Simon in Hill v William Hill (Park Lanes) Limited 1949 A.C. 530[44] where His Lordship said:
“It is to be observed that though a parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason for the contrary, the words add something which would not be fair if the words were left out.”
[44] Ibid (at 546).
In the Dobcol decision Anderson J found that the provisions containing the words “actual pecuniary loss” did not intend to give a solicitor’s client the same relief from and remedies against the fund as a client would have against a defaulting solicitor.
Having referred to the Dobcol decision in the Ristevski case Harper J went on to say:
“I also agree with His Honour that the addition of the word ‘actual’ limits the meaning of the words ‘pecuniary loss’; and, in my opinion, in the particular circumstances of this case, that limitation precludes any successful claim against the fund for that part of the loss which neither included loss of property such as land nor resulted in the plaintiff’s incurring identifiable expenditure such as rent.”
In 1913 the High Court of Australia, in appeal from the Supreme Court of Queensland had to consider the value of land being resumed for a public purpose where that land was held on trust by a society for a public purpose. Reading of the case reveals that it is the land presently occupied by the Brisbane Exhibition Ground which had been held by the Acclimatization Society of Queensland. The case is reported as MacDermott v Corrie & Another (Trustees of the Acclimatization Society of Queensland).[45]
[45] 1913 17 CLR 223.
It was held that the sum to be paid to the Society upon resumption was:
“the value to the Society of their interest in the land and not its value to the Crown or to those for whom the Crown was acquiring the land.”
In the course of his decision Barton ACJ with whom Isaacs, Duffy and Rich concurred observed:
“Upon consideration of the authorities, I come to the conclusion that the reasoning of the Judges in Stebbing v Metropolitan Board of Works LR 6 QB 37 establishes the principle that the value of the land, which value is here to be measured by the loss it has sustained in being deprived of its interest therein apart from any question of damage by severance or injurious effect of the taking upon other land of the owner or the like: for such questions do not arise in this case. That being so, neither the value to the Crown, as the authority taking the land, nor the value to the National Association, the body in whose interest it is said to have been taken, are director factors in this case.
Further, I am of the opinion that, in ascertaining the value of the land in the sense which belongs to the term in this case, the right principle for a valuer to follow is that he should consider every circumstance that directly and materially affects or may reasonably be expected to affect the price which, on the basis laid down in Spencer v The Commonwealth 5 CLR 418, any probable and capable purchaser would have to pay in order to obtain it. This is so obvious a proposition that it seems at first sight not to require statement. It involves, however, all the factors which arise out of the terms of the grant and the legislative provisions. But I wish to make it clear that, in examining these factors, what I have to say must be taken merely by way of elucidation of the principles I have endeavoured to explain.”
The High Court decision was taken on appeal to the Privy Council which upheld the decision of the High Court.
It would be noted that the High Court decision itself had reversed the decision of the Supreme Court of Queensland upon a special case stated by consent.
In the decision of the Privy Council the preamble contains a description which is eerily reminiscent of the present case.
Their Lordships observed:
“The appellants were the trustees of the Acclimatisation Society of Queensland, which was constituted under statute for the purpose of experimenting in the acclimatization of animals and plants. By a deed of grant dated June 17, 1892, certain land was vested by the Government of Queensland in the trustees of the society solely for the purposes of the society. The deed reserved a nominal quite rent payable to the Crown and all mines, and imposed conditions as to draining, with a forfeiture clause in the event of breach. It further contained a clause under which the Crown reserved the right to take possession of the land, or so much as might be required, for any public purpose, ‘the value of the land being paid to the party entitled thereto at a valuation to be fixed by arbitration.”
In the decision of their Lordships delivered by Lord Dunedin they observed:[46]
“If this case be viewed as an ordinary case of compensation their Lordships think that the law is not doubtful. The general principle was restated in the very recent case of Cedars Rapids Manufacturing and Power Co v Lacoste [1914] A.C. 569, before this Board, which approved of the general statement by Lord Moulton in the case of In re Lucas and Chesterfield Gas and Water Board[1909] 1 K.B.16. The value which has to be assessed is the value to the new owner who takes it over. If, therefore, the old owner holds the property subject to restrictions, it is a necessary point of inquiry how far these restrictions affect the value. It is evident that in this case, always under the assumption above stated, this view is destructive of the arbitrators’ finding for 7490l. being applicable; for that value is only upon the view that the ground is ‘unrestricted in any way’.”
[46] Corrie and Another v MacDermott (1914) A.C. 1056 at 1062.
It might be noted that while the YMCA was precluded from selling the land the effect of s.67 of the Land Act 1994 seems to me to be that they could, however, mortgage the deed of grant in trust (subject to other provisions of the Act).
So much flows from the provisions of s.67 of the Land Act 1994 which provides as follows:
“67 Power to mortgage trust land
(1) A trustee of a reserve must not mortgage the reserve.
(2)A trustee of a deed of grant in trust, issued before the commencement of this Act, may mortgage the deed of grant in trust.
(3)A trustee may also mortgage a deed of grant in trust issued after the commencement if the deed—
(a) was issued because of a surrender under section 35814 and the deed being surrendered was issued before the commencement; or
(b)was issued under section 493.15
(4)Despite subsections (2) and (3), a trustee may mortgage a deed of grant in trust only if the Minister has approved the mortgage.
(5)The Minister’s approval may be subject to conditions.
(6)Amounts raised by mortgaging trust land must be used on the trust land and for the purpose for which the trust was granted.”
It can be seen from s.67(4) that that power to mortgage the deed of mortgage in trust required ministerial approval. Nonetheless the consequence of that potential to mortgage the land is that pursuant to ss.68, 69 and 70 a mortgagee, having gone into possession of the land upon default by the mortgagor, had the capacity to sell the deed of grant in trust unencumbered. An issue may arise then as to the amount which might have been raised by way of mortgage over the subject land.
This demonstrates that, in some circumstances, land the subject of a deed of grant in trust can pass into private ownership. It also demonstrates that, with ministerial approval, land held on trust may be converted into a security for a debt and, potentially, converted into freehold land in the unfortunate circumstance that the mortgagee goes into possession and sells the land.
In that regard learned Queens Counsel for the Respondent submits that the reinstatement contention is without merit in circumstances where:
“i.The land resumed was not initially purchased by the Applicant but was granted to it in trust.
ii.The reinstatement contention would have the consequence that the Applicant would receive a sum of money which is calculated by reference to the purchase of unidentified other land and the development of new premises, but where:-
·The Applicant would be under no obligation to spend the money in any particular way.
·Any land purchased by the Applicant would be free of any trust.”[47]
[47] Ex 3 para 2.
In my opinion the Applicant in its submissions places undue weight upon the nature of the trust and insufficient weight upon the compensatory intentions of the Acquisition of Land Act.
The consequence of the resumption is the Applicant has been dispossessed of its buildings and forced to vacate the entirety of the land granted to it on trust on which to carry out its operations.
Similar consequences flow for private landowners who conduct businesses on land which is resumed in its entirety and, having received compensation both for the disruption to the business (including a requirement to either relocate or cease business) and the value of the land, are under no obligation to repurchase replacement land or indeed to resume or relocate the business previously conducted on the resumed land.
So long as the Applicant continues to carry on operations in accordance with its aims there seems to be no statutory requirement that it must purchase replacement land. However, for the reasons which follow an inability to demonstrate that it has or intends to purchase replacement land may inhibit a Court from contemplating reinstatement costs as part of or an appropriate methodology to determine compensation.
The decision in the Sailors’ Home case also contained the following observation from Hope JA (at page 121):
“Although it can be readily seen that a court may be unwilling to assess compensation on a reinstatement basis unless the new site has been identified, I can find no authority to support the proposition that it must be identified before the principle can be applied. If it were a condition of that application, great hardship cold result. In many cases in which it is appropriate to consider the application of the principle, the land is used for some public or charitable purpose, and the resumed owner is in no position to acquire a new site unless and until compensation has been paid to him for the resumed lands. If there is a dispute, this is not done until after the compensation claim has been concluded. Furthermore, the resumed owner may find it impossible to point to any specific alternative site which he proposes to buy, for the owner of any potential alternative site may be quite unwilling to commit himself to sell the land to the resumed owner unless a firm contract is signed.”
Similarly in Director of Buildings and Lands v Shun Fung Ironworks Ltd[48] Lord Nicholls of Birkenhead observed as follows:
“Compensation cannot be assessed on a relocation basis unless the claimant has moved his business or intends to do so. If he has already moved his business by the time of hearing, this particular point does not arise. If he has not done so, the tribunal needs to satisfy itself that the claimant will do so. But many a person who has to close down his business because his land is taken compulsorily does not have sufficient other means of his own and set up again at another place. He may be desperately anxious to resume his business at another site he has found, but unless he receives enough compensation, he is not financially able to do so. Such a claimant does not lack the necessary intention to relocate. If he receives adequate compensation for his loss, it will be duly applied in meeting the expenses for which it was awarded to him. The Court of Appeal was therefore correct in holding that, on the tribunal’s findings, the claimant company had the necessary intention to relocate.”
[48] [1995] 2 A.C. 111 at 130.
I can see nothing in the current provisions of the Acquisition of Land Act which precludes the adoption of the reinstatement principle in appropriate circumstances. Although, of course, it may not be the only method available to assess the appropriate compensation.
No evidence was placed before me which would presently satisfy me either that the YMCA has identified an alternative site or that it is determined to reinstate its operations on another site.
As to actual damage suffered by the YMCA it seems fairly clear that can adequately be described under three headings:
1.The loss of the buildings constructed on the subject land together with the fixtures therein.
2.The loss of an entitlement to occupy the land essentially rent-free in perpetuity.
3.Any properly identified disturbance items.
I do not understand the Respondent in the present case to be denying an entitlement to disturbance items and nor is there any assertion that the YMCA is not entitled to be compensated for the loss of the buildings constructed on the subject land.
I should make it clear that in setting out these reasons for this decision I have not used the term “damage” and “land value” as being synonymous. Indeed, in my view, the use of expression “actual damage” in s.18(5) makes it clear that something other than the value to the dispossessed landowner/occupier is intended.
However, in the present case, it is not possible to completely ignore the concept of market value.
The word “value” has been described as “not free from ambiguity”.[49]
[49]See Mahoney JA in Housing Commission of New South Wales v Falconer (1981) 1 NSWLR (547 at 570).
The widely accepted definition of “value” flow from the decision in Spencer.[50]
[50] Spencer v Commonwealth (1907) 5 CLR 418.
In Spencer[51] Griffith J observed:
"In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e. whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together."
[51] Ibid p. 432.
The Courts (including the High Court) have in determining compensation to be paid consequent upon resumption recognised other values to an owner in addition to the value of the land taken.
There are three particular types of value or impacts upon value which have been acknowledged in addition to disturbance items. They are the impact of severance upon the value of residual land, the injurious affection visited upon residual land by the implementation of the purposes for which land has been resumed and the special value which land may have for a dispossessed landowner.
It is not necessary to embark upon detailed analysis of how each of those aspects of compensation have been calculated.
They are however, in my opinion, important in the present case because the view I take of the expression “actual damage” seems to me to involve a restriction on the part of a trustee to claim any of those more ethereal aspects of compensation. That is because they do not constitute “actual damage” to the dispossessed trustee.
That is to say I have come to the view that the “actual damage” suffered by the YMCA is that damage which is described under the three headings above in [133]. In the present case no issue of injurious affection or severance arises.
The caveat in s.18(5) seems to me on any fair reading of the Act to preclude the YMCA from any claim for special value of the land to them.
Accordingly, I would restructure the contentions of the Applicant to find as follows:
1. The trust, pursuant to the provisions of the Land Act has come to an end but the YMCA is not precluded from claiming compensation for the actual damage suffered by them as a consequence of the resumption.
2. The amount of actual damage caused to the YMCA as trustee can include the costs of reinstatement of their operations on other land.
3. It is open for the reinstatement method to be applied in determining the compensation in this case but that is not the only approach which might be adopted.
4. The determination of the entitlement to an assessment of compensation is to be made pursuant to the provisions of the Acquisition of Land Act 1967.
As to the formulation of findings contended for by the Respondent I would express them this way:
1. In this case where the land resumed was the whole of the land the subject of the deed in trust governed by the Land Act 1994 the compensation payable to the Applicant may, but will not necessarily, include any costs incurred by the Applicant to relocate or reinstate its operation to another site such as those claimed in the Applicant’s claim for compensation dated 27 November 2008.
I therefore order in accordance with the findings in the previous two paragraphs.
Because of the nature of this preliminary point and because it was not a matter which had previously been determined so far as any other party could inform the Court I am of the view that subject to my willingness to accept submissions to the contrary the appropriate order with respect to costs is that each party’s costs be costs in that party’s cause.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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