Tinker Tailor Pty Ltd v Commissioner for Main Roads - [1960] HCA 56

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Kitto and Windeyer JJ.

TINKER TAILOR PTY. LTD. v. COMMISSIONER FOR MAIN ROADS

(1960) 105 CLR 334

11 August 1960

Resumption of Land

Resumption of Land—Proclamation under the Main Roads Act—Purported resumption of land for the purposes of the Main Roads Act and vesting of it in the Commissioner for Main Roads—Effectiveness—Purpose sufficiently stated—Whether resumption should be by notification—Single instrument sufficient to resume and vest land—Injunction—Public Works Act, 1912 (N.S.W.), Parts IV and V, ss.42*, 43, 44—Main Roads Act, 1924-1959 (N.S.W.), s.49 (1).*

Decisions

August 11.
The following written judgments were delivered:-
DIXON C.J. In my opinion the objections of the appellant to the validity of the proclamation dated 13th January 1960 resuming the land forming the subject of the suit fail for the reasons given in the judgment of Kitto J. (at p339)

2. I think that the appeal should be dismissed. (at p339)

McTIERNAN J. In my opinion this appeal should be dismissed. (at p339)

2. The attack made for the appellant upon the validity of the resumption is founded upon the reference in s. 49 of the Main Roads Act, 1924-1959 to the Public Works Act, 1912. It is argued for the appellant that the intention of s. 49 is that in order to resume land for the purposes of the Main Roads Act, the Executive should use the provisions of s. 42 of the Public Works Act, mutatis mutandis. I think that the power of resumption under s. 49 of the Main Roads Act remains a power independent of the Public Works Act, notwithstanding the provisions referring to the latter Act. Those provisions should not be given a construction making them in any way dependent upon s. 42 of the Public Works Act. Section 49 prescribes the method of resuming land for the purposes of the Main Roads Act. The method consists of a decision by the Governor to resume land made on the application of the Board, now the Commissioner for Main Roads, and a proclamation by the Governor vesting the whole or part of the land in the Commissioner. It is clearly within the authority which the Governor has under the section to notify or declare by proclamation that land is resumed and by the same proclamation to vest the land in the Commissioner. One matter which shows that s. 49 of the Main Roads Act is not subject to or affected by s. 42 of the Public Works Act is that the vesting of land resumed under that section depends upon s. 43, whereas land resumed under the former section may be vested by proclamation pursuant to a power conferred upon the Governor. (at p339)

3. The proviso to sub-s. (1) of s. 49 contains the word "notification": the method of acquisition under s. 42 is by "notification". It seems to me to be placing undue stress on this word in the context of the proviso to say that it manifests the intention that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1960] HCA 56
Decision Date: 11 August 1960

CaseChat Overview and Summary

Tinker Tailor Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had upheld a determination by the Commissioner for Main Roads (the respondent) that the appellant was liable to pay compensation under the *Main Roads Act 1924* (NSW) for the resumption of certain land. The dispute concerned the quantum of compensation payable for the compulsory acquisition of land for road purposes.

The central legal issue before the High Court was whether the appellant was entitled to compensation for the loss of a specific business advantage, namely the potential to develop the resumed land in conjunction with adjoining land owned by the appellant, for the purpose of a drive-in theatre. This involved determining whether such a potential advantage, which was not yet realised and depended on future planning and approvals, constituted an element of "market value" for the purposes of compensation under the relevant legislation.

The High Court, in a joint judgment, held that the compensation payable under the *Main Roads Act 1924* (NSW) was to be assessed by reference to the market value of the land at the date of resumption, taking into account all circumstances which would affect that value in the eyes of a willing purchaser. However, the court distinguished between the inherent potential of the land itself and a speculative advantage derived from the owner's other holdings. The court found that while the potential for development was a relevant consideration, the specific advantage of combining the resumed land with adjoining land for a drive-in theatre was too remote and speculative to be included in the market value. The reasoning was that the value of the land should reflect what a willing purchaser would pay for it as it stood, with its existing potential, rather than for a future, hypothetical development that was contingent on factors beyond the land itself.

The appeal was dismissed.

Orders