Western Power Corporation v Black

[2007] WASCA 185

WESTERN POWER CORPORATION -v- BLACK & ORS [2007] WASCA 185

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 185
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:154/2005	Heard:	2 APRIL 2007
Coram:	WHEELER JA McLURE JA BUSS JA	Delivered:	7/09/07
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	WESTERN POWER CORPORATION ALAN KEITH BLACK KEVIN JOHN DILLEY LANCE GRAHAM PITTER ROSEMARY JOSEPHINE PITTER LEIGH DUNCAN McLARTY GEOFFREY DONALD McLARTY RONALD CHARLES MILES STEPHANIE AMY MILES WARREN CHARLES EDWARDS MARY ROSE EDWARDS MALCOLM CHARLES EDWARDS BARRY WILLIAM GARVEY KEVIN THOMAS WARBURTON LYNETTE WARBURTON
Catchwords:	Acquisition of land Valuation 'Date of first entry' Turns on own facts
Legislation:	Energy Operators (Powers) Act 1979 (WA), s 28(3)(c), s 43(1), s 45, s 46, s 49 Land Administration Act 1997 (WA), s 151(1), s 177, s 178, s 241(2)(c) Public Works Act 1902 (WA) State Energy Commission Act 1979 (WA), s 27, s 28, s 43(1), s 45, s 46, s 49
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WESTERN POWER CORPORATION -v- BLACK & ORS [2007] WASCA 185 CORAM : WHEELER JA

McLURE JA
BUSS JA

HEARD : 2 APRIL 2007 DELIVERED : 7 SEPTEMBER 2007 FILE NO/S : CACV 154 of 2005 BETWEEN : WESTERN POWER CORPORATION

Appellant

AND

ALAN KEITH BLACK
KEVIN JOHN DILLEY
LANCE GRAHAM PITTER
ROSEMARY JOSEPHINE PITTER
LEIGH DUNCAN McLARTY
GEOFFREY DONALD McLARTY
RONALD CHARLES MILES
STEPHANIE AMY MILES
WARREN CHARLES EDWARDS
MARY ROSE EDWARDS
MALCOLM CHARLES EDWARDS
BARRY WILLIAM GARVEY
KEVIN THOMAS WARBURTON
LYNETTE WARBURTON
Respondents

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : TEMPLEMAN J

Citation : BLACK & ORS -v- WESTERN POWER CORPORATION

File No : CIV 1972 of 2005

Catchwords:

Acquisition of land - Valuation - 'Date of first entry' - Turns on own facts

Legislation:

Energy Operators (Powers) Act 1979 (WA), s 28(3)(c), s 43(1), s 45, s 46, s 49

Land Administration Act 1997 (WA), s 151(1), s 177, s 178, s 241(2)(c)
Public Works Act 1902 (WA)
State Energy Commission Act 1979 (WA), s 27, s 28, s 43(1), s 45, s 46, s 49

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr S J Penglis & Mr R N Barsden
Respondents : Mr R I Viner QC & Ms L E Rowley

Solicitors:

Appellant : Williams Ellison
Respondents : Deacons

(Page 3)

Case(s) referred to in judgment(s):

Nil

(Page 4)

1 WHEELER JA: The respondents are the owners of land along the route of a 300,000 volt power transmission line from Muja to Kwinana (the transmission line). That portion of the line traversing the respondents' land has been constructed. The appellant is the successor in title to the State Energy Commission of Western Australia (SECWA or the Commission) which constructed the transmission line. Given the materials that have been provided to the court, the following discussion will focus on the facts relating to the first-named respondent. The facts in relation to the other respondents, are, as we understand the position, similar.

2 This appeal concerns the appropriate time for the assessment of compensation for acquisition of an estate or interest in land under the former State Energy Commission Act 1979 (WA) (the SEC Act). Although that Act has since been superseded by the Energy Operators (Powers) Act 1979 (WA) (Powers Act), the relevant provisions are substantially the same. Similarly, although the relevant provisions of the Public Works Act 1902 (WA) have been superseded by the Land Administration Act 1997 (WA) (LA Act), there is no difference of significance to this case. It is accepted that the relevant time is the 'date of first entry', but what is meant by that term is in dispute.

3 The appellant appeals against the trial judge's decision that the date of first entry on the land is the date on which the appellant interfered with the respondents' enjoyment of their land by entering upon it for the purpose of physically constructing the transmission line (grounds 1 and 2). Instead, it is submitted that the trial judge ought to have held that the date of first entry was the date when the appellant's predecessor:

(a) first entered the land in question 'to carry out the undertaking' for which the land was to be acquired;

(b) entered upon the respondents' land for the purpose of carrying out the survey which was 'for, and to have been followed by, the physical construction of the … transmission line' (ground 3).

The meaning of the expression 'carry out the undertaking' remains obscure.

4 The remaining two grounds of appeal assert that the trial judge erred in finding that nothing in the SEC Act provided for compensation to be paid in the event of a survey being carried out (ground 4) and in finding that the purpose of the SEC Act was to compensate owners for a physical blight on the land (ground 5).

(Page 5)

5 SECWA was established by and derived its powers from the SEC Act. Section 27(2) (since repealed) provided that it was the duty of the Commission 'to provide, maintain and extend throughout the State an efficient, co-ordinated and economical supply of energy' which, by virtue of s 27(7) included:

(b) generally to co-ordinate the development, distribution, and use of energy so as to ensure that so far as is practicable supplies of energy … are at all times available for all purposes and at all places in the State in the manner and form best calculated to serve the public interest;

(c) to secure, so far as is practicable, the ready availability, interconnection and interchange of sources and supplies of energy.

6 At the time the appellant submits that the duty to compensate arose, the relevant provisions of the SEC Act relating to compensation were as follows:

43. (1) Where any works or other things are or have been placed upon, in, over or under any land by the Commission in the exercise or purported exercise of a power conferred by this Act or any Act repealed by this Act, those works or other things shall be taken to have been lawfully so placed and are, and shall at all times continue to be, the property of the Commission, unless the Commission has otherwise specified or may otherwise determine, and the Commission shall be deemed to have a right of access thereto for the purposes of this Act and any other Act administered by the Commission.

…

45. (1) Subject to subsection (3), the Commission shall not be liable to pay compensation for, or in respect of any damage attributable to, the placing of any works or other things to which subsection (1) of section 43 applies or by virtue of the grant of the right of access deemed by that subsection to be vested in the Commission …


(2) No claim lies against the Commission by reason only of any loss of enjoyment or amenity value, or by reason of any change in the aesthetic environment, alleged to be occasioned by the placing of works of the Commission on any land.

(3) No claim lies against the Commission by reason only of the placing of any works of the Commission upon, in, over or under any land, other than a claim -

(Page 6)

(a) …

(b) under the Public Works Act, 1902 [now Pt 10 of the LA Act], as read with this section, where the Commission -


(i) is by this or any other Act required; or

(ii) by reason of the nature of the works there placed, the nature of the locality in which the works are placed, the safeguarding of particular works, public safety, future development proposals, or otherwise, elects,

to acquire the land or an estate or interest in the land.

(4) Notwithstanding the powers conferred on the Commission by paragraph (c) of subsection (3) of section 28 and section 46, the Commission is required to acquire, where practicable by agreement but otherwise pursuant to the Public Works Act, 1902 [now Pt 9 of the LA Act], as read with this section, such land, estate, or interest as may in the opinion of the Commission be appropriate to its needs in respect of -

…

(b) all electricity transmission works operating at 200 000 volts or above;

…


(5) Where for the purposes of this Act the Commission determines that any land, or any estate or interest in land, is required to be acquired by the Commission otherwise than by agreement the power to do so shall be exercised under and in accordance with, and any compensation payable by the Commission in pursuance of such powers shall be assessed, determined and recovered under, the Public Works Act, 1902 [now Pt 9 and Pt 10 of the LA Act], as read with this section.

(6) A claim for compensation made under this section of this Act may only be made once, and where any land, estate, or interest is acquired by the Commission no further claim in respect thereof shall lie against the Commission notwithstanding any subsequent works of the Commission affecting that land, estate or interest unless it is shown that

(Page 7)

the original claim paid did not take into account the nature of the damage subsequently occurring.

(7) Any entry upon, or acquisition of, land authorised by or under this Act and any works carried out pursuant to this Act shall be deemed to be for the purposes of a public work within the meaning of the Public Works Act, 1902, the Commission shall be deemed to be a local authority within the meaning of that Act authorised to effect that acquisition or undertake that public work, the date of first entry under this Act shall be regarded as the date of the gazetting of the notice of the acquisition of the land for the purposes of section sixty-three of that Act in order to ascertain the value of the land, and that Act shall apply to and in respect thereto accordingly in so far as that Act is not inconsistent with this Act.

…

(13) Where any land is compulsorily acquired pursuant to the Public Works Act, 1902 [now Pt 9 of the LA Act], for the purposes of the Commission under this Act or any other Act that land shall, upon publication in the Government Gazette of the notice referred to in subsection (1) of section seventeen of the Public Works Act, 1902, be vested in the Commission for the public work specified in that notice, by force of section eighteen of that Act as read with this subsection.

The foregoing sections were relevantly identical at the time the respondents allege that the duty to compensate arose and are equivalent to s 43(1), s 45(1) - (7) and (13) of the current Powers Act.

7 On 16 April 1987, SECWA issued the father of the first-named respondent with a 'notice of entry' (the April notice) in connection with the then proposed transmission. The power to conduct surveys derived from s 28(3)(a) (repealed by Act No 89 of 1994) of the SEC Act, and the power to lawfully enter land for the purposes of conducting a survey once due notice had been served on the owner or occupier, was found in s 46 (now s 46 of the Powers Act which is in materially identical terms). It relevantly provided:

(1) In this section, a reference to 'a power of entry', and cognate expressions, includes a reference to the power of the Commission to carry out the works or perform the duties and exercise the powers necessary to achieve the purpose for which entry on the land, premises or thing affected is sought, and to occupy that land for those purposes.

(Page 8)

(2) Where due notice has been served upon the owner or occupier of that land, premises or thing the Commission may for the purposes of this Act … including the purposes referred to in subsection (10), lawfully enter on to any land, premises or thing not under the control or management of the Commission notwithstanding that the Commission has not obtained the consent of the owner or occupier, but except as is otherwise provided in this Act such an entry shall not be lawful unless notice has been served or such consent has been obtained.

(3) The power of entry conferred by this section does not authorise or require the Commission to acquire any interest in any land except such as -


(a) the Commission elects to acquire by agreement;

(b) the Commission elects to lawfully take or resume under and in accordance with the Public Works Act, 1902 [now Pt 9 of the LA Act], as read with section 45; or

(c) the Commission is required to acquire pursuant to section twenty-five of the Public Works Act, 1902 [now s 176 of the LA Act].


(4) A notice required by this Act to be given in relation to any entry shall specify the purpose for which entry is required and shall continue to have effect for so long as that requirement subsists, and successive entries for that purpose shall be taken to be entries to which the notice relates.

…

(10) Where in the opinion of the Commission entry upon any land is necessary for the purposes of inspecting or examining any land to determine the feasibility of the use of that land for the purposes of this Act, or as preliminary to any prospective or intended acquisition of that land or any estate or interest in that land, and the Commission does not elect to exercise the powers conferred by section seventeen, section eighty-two, section one hundred and twelve, or section one hundred and twelve A of the Public Works Act, 1902 [now Subdivision 2 of Div 3, or Div 4, of Pt 9 of the LA Act or s 82 of the Public Works Act], the Commission may make entry for such purposes.

8 Section 49 spelt out the powers of entry in more detail. In particular, s 49(a) dealt with entry for 'the investigation or demarcation' of land
(Page 9)

which might be required to be used, while s 49(c) dealt with entry in order to 'set up ... and operate any supply system or any undertaking' (now s 49(a) and (c) of the Powers Act).

9 The April notice read as follows:

NOTICE IS HEREBY GIVENTHAT on the first day of May, 1987 or as soon thereafter as is reasonably practicable, THE STATE ENERGY COMMISSION OF WESTERN AUSTRALIA of 365 Wellington Street, Perth in The State of Western Australia intends, pursuant to the provisions of Section 46 of the State Energy Commission Act, 1979 (as Amended) ('the Act') TO ENTER upon the land premises or thing more particularly described in PART ONE of the SCHEDULE below for the purpose of carrying out the undertakings, performing the duties or exercising the powers contained in the Act which are set out in PART TWO of the SCHEDULE in connection with the proposed or existing undertaking described in PART THREE of the SCHEDULE.

THE SCHEDULE

PART ONE: - (Description & particulars of land premises or thing)

Coolup Agriculture Area Lot 283 and being the whole of the land contained in Crown Lease No. 106/1955.

PART TWO: - (Purpose of entry)

To survey and carry out investigations on the land described in Part One of this schedule in accordance with the provisions of Sections 28 and 49 of the State Energy Commission Act 1979 (as amended).

PART THREE: - (Description of Undertaking)

Muja-Kwinana 330kV Transmission Line.

10 On 3 November 1988, SECWA wrote to the first named respondent and advised that, in accordance with the April notice, the survey would commence within days. The survey in fact did take place shortly after the first named respondent received the letter, although I have been unable to locate any evidence as to the precise date of the initial survey.

11 The appellant's contention at trial was that the initial survey was the first entry for the purpose of s 45(7). The trial judge held that '[i]f it is accepted that the purpose [of the section] is to provide compensation, then it follows that no right to compensation would arise until some event occurred which required the landowner to be compensated' (at 8). The appellant does not appear to take exception to his Honour's formulation. At trial, it was conceded that the date of first entry is not necessarily 'the

(Page 10)

date of the first footfall by somebody on behalf of the energy operator on the land' (at 6). The concession is repeated in the appellant's submissions (at par 5).

12 However, the appellant contends that the trial judge erred in concluding that the initial survey was 'an activity which would have only a minimal effect on the landowner' and that compensation should be assessed at the date of entry on the land for the purpose of constructing the transmission line (at 8). The appellant makes much of the trial judge's finding that 'it is common ground and it is indeed the fact that the construction followed on from the survey' (at 4). According to the appellant, this temporal connection was indicative of a causal connection, in the sense that it was an entry which facilitated the Commission's decision to acquire the land (ts 30 - 31).

13 The respondents' submission, by contrast, is that there was no such causal connection. On the respondents' case, the relevant 'first entry' was the entry to construct the works and not some earlier entry for possible or future works.

14 It is unfortunate that, at the hearing, both counsel steadfastly resisted invitations from the court to explain the statutory context, and to provide a detailed description of the relevant facts which might enable the court to consider whether the two events (namely, November 1988 survey and subsequent construction) were so linked. The court has done the best it can with its own researches into the legislation and with inferences drawn from the documents placed before it.

15 The critical question is what is meant by 'first entry' for the purpose of s 45(7). Both the appellant and the respondents seem to agree that the 'first entry' took place some time before the amendments to that section in 1997. Prior to the 1997 amendments, s 45(7) performed four distinct functions. The first two - deeming entry upon and acquisition of works under the SEC Act to be 'for the purposes of a public work', and deeming SECWA to be a local authority - appear to be irrelevant. The last two, applying the Public Works Act, would, in the absence of statutory modification, have had the effect that the date of gazettal of the notice of taking would be the relevant date for ascertaining the value of the land (s 63(a) Public Works Act 1902, now repealed). However, because of the specific provision in the SEC Act that the 'date of first entry under this Act' shall be regarded as the date of gazetting, it is the 'first entry' which fixes the date for valuation.

(Page 11)

16 Logically, there appear to be five ways in which the 'date of first entry under this Act' may be understood. They are:

(1) Literally: any entry by SECWA, for any purpose, even if unrelated to that for which the interest in land was acquired could, years later, be regarded as the relevant date. The example given at the appeal was entry for the purpose of reading a meter. This construction potentially leads to absurd results and was not contended for by any party.

(2) The first entry which, in hindsight, can be seen to have been causally related to the activity which results in the requirement or decision to acquire an interest in the land: this was the appellant's primary submission, although it was not phrased as I have put it. In advancing this interpretation, the appellant submitted that his Honour's finding that 'the construction followed on from the survey' should have been decisive. A reading which means that the relevant date cannot be determined until sometime after commencement of construction is not entirely satisfactory. Additionally, this reading leads to potentially difficult issues of causation and remoteness (as in this case).

(3) The date upon which the appellant first enters the land 'to carry out the undertaking for which the land is to be acquired': this was the contention in the appellant's grounds of appeal (ground 3(a)). I think it is correct although it does not lead to the result for which the appellant contends. That is because this construction requires that there be an 'undertaking' which is able to be defined with some precision, at least as to the route, and perhaps also as to the type of construction to take place along that route. A determination that a transmission line should be constructed somewhere in a general area, or somewhere along a broad corridor, after survey and consultations which have yet to take place, is in my view in the nature of a proposal, or possibility only.

(4) The date upon which entry first results in interference with the enjoyment of the land: this was the respondents' contention. It was accepted by his Honour below. For reasons which I shortly develop, there is little (if any) practical difference between this formulation and that set out at (3) above, and much of his Honour's reasoning is applicable to either formulation. In my view, however, it would be wrong in principle to adopt the view that the purpose of the acquisition provisions is to compensate for a 'blight on the land', as his Honour's extempore reasons put it.

(Page 12)

Section 45(2) and (3) make it clear that many 'blights' are to go uncompensated. Only where there is a particular type of work does s 45(4) require the acquisition of an interest in land. Logically, the legislature would appear to be concerned with some relationship between the entry and the work, rather than the entry and the interference or blight.

(5) The date of first entry following a decision pursuant to s 45(4) that some estate or interest in the land is required to be acquired: neither the appellant nor the respondents contended for this view. It does not appear to me to be consistent with the deliberate adoption of a date different from the gazettal date under s 63(a) of the Public Works Act 1902 (which one would normally expect to be relatively close to the date of the decision to acquire).

17 There are, in my view, a number of reasons why the construction referred to at (3) above is to be preferred. The alternatives are all, to a greater or lesser extent, either practically unsatisfactory or not consistent with the statutory context. The view I prefer is consistent with the distinction drawn in the SEC Act itself between entry for investigation and entry for construction (s 49(a) and (c)). It is consistent, in the case of works of this kind, with the apparent statutory intention that it is the physical existence of certain types of works which gives rise to the need to acquire an interest in land (s 45(4)). This last consideration is reinforced by the Second Reading Speech of the SEC Act by the Minister for Fuel and Energy, who said that:

The commission is obliged to acquire an interest in land upon, over, or under which certain specified commission works have been placed, in order to protect these works. Specified works … [include] larger sized electric transmission lines: Mensaros, Second Reading Speech, Legislative Assembly, 30 October 1979, 4112 (emphasis supplied).

18 Turning to the facts of the present case, the appellant submitted that the precise manner (ie, detail, type of interest, geographical scope) in which the obligation to acquire an interest was carried out were 'matters of detail within [the appellant's organisation]' (ts 25). Some insight into the internal process can be ascertained from the contents of and annexures to an affidavit sworn in October 2005 by Mr Rudy Teh, who was employed as a transmission engineer for SECWA at the material time. The affidavit and its annexures were before the learned trial judge and were filed in this court following a request from the bench at the hearing.

19 It seems that the transmission line proposal originated in 1985 in response to power system studies which indicated the need to build a new

(Page 13)

330kV line between Muja, Collie, Kemerton and Kwinana to interconnect the first stage of the Collie power station (Teh Affidavit, par 11; Annexure RT-6).

20 In March 1985, three transmission line corridors were selected by the Commission for technical, economic and environmental evaluation and one of the options (Option 1(a)) was presented to the Environmental Protection Authority (EPA) in the form of a Public Environmental Report (PER). However, the proposal to build an alumina smelter in Kemerton did not ultimately proceed and, as a result, it seems that the transmission line path outlined in the 1985 PER was abandoned.

21 Sometime between 1985 and early 1988, SECWA recognised that a transmission line would still be needed to interconnect Muja Power Station and the proposed Collie Power Station with Kwinana Power Station to reinforce the network and to meet anticipated load growth (Teh Affidavit, par 13). Once again, a number of corridor routes for the proposed transmission line were considered and a preferred corridor route was selected (Annexure RT-4 at 9). It is not clear how precisely that 'preferred route' was established.

22 In February 1988, the Commission referred its proposal to the EPA presumably pursuant to s 38 of the Environmental Protection Act 1986 (WA). In exercise of its powers under s 40, the EPA required a PER to be produced by the Commission in accordance with certain guidelines. The PER identified the various environmental impacts on resources and land use along the preferred corridor route. The term 'corridor' was defined in the report to mean '[a] width of land within which the transmission line route will be located - 500 m wide for the Harvey-Kwinana section' (Annexure RT-4 at 32).

23 According to the minutes of a Commission meeting held on 17 February 1988, Mr Harvey, the Deputy Commissioner (Engineering)

advised that the Environmental Report on the proposed 330 kV transmission line from Kwinana to Muja had been released for public comment. The line would service the new Collie Power Station when it was constructed. It was not intended to build the line in the immediate future, but merely to obtain the necessary clearances for the line (RT-5 at 7, emphasis supplied).

24 These minutes make it clear that, as late as February 1988, the Commission had no present intention to construct the transmission line.

(Page 14)

25 It is clear from the introduction to the PER that the precise route selection had not been finalised by the Commission as at July 1988. The PER noted:

Determination of the precise alignment of the transmission line within the corridor will be based on the results of a detailed centre line survey and design studies yet to be undertaken. The results of environmental studies undertaken to date, and ongoing environmental input, will be taken into account during alignment optimisation along the selected route (Annexure RT-4 at 1).

26 It seems that the precise route for the transmission line was selected sometime between 1988 and 1991 (Annexure RT-6 at 1). On 18 September 1991, the Commission approved expenditure to acquire 'the line easement between Muja, Collie, Kemerton and Kwinana at a total cost of $2.73m' (Annexure RT-6 at 4).

27 The Commission did not give approval to proceed with the construction of the transmission line until 20 July 1994 (Annexure RT-11 at 6). It would seem that the decision to formally approve the project arose in the following context:

The Board is aware of SECWA's commitment to the commissioning of Collie Power Station Unit 1 by 31 December 1998.

Transmission works associated with generating stations are normally approved with the Power Station Approval. As the commitment in this case is only for the Power Station this submission formalises the approval for the associated Transmission Works.

The Transmission System has been examined and reinforcement options studied to deliver the extra generation to the load centres (Annexure RT-11 at 1).

28 However, it appears that the project which the Commission approved at the July 1994 meeting was different from the proposal which was allowed by the EPA in 1988. The Submission, which the Commission approved, stated:

[A]n additional 330kV line is required to transfer the power from Muja/Collie to Perth, this can be achieved by either building a single circuit line or a double circuit line in the approved corridor.

…

The existing corridor has approval for only one line to be constructed in it. If a single circuit line was built now, when a further single circuit line was

(Page 15)

to be constructed it would have to be within a new line corridor requiring approval from outside authorities including the EPA ...

The construction of a double circuit line is recommended now to ensure future generation options are not restricted by transmission capacity (Annexure RT-11 at 3).

29 It is assumed that approval for the double circuit line was obtained from the relevant authorities, although this is not clear from the documents currently before the court.

30 In a letter dated 29 September 1994, SECWA wrote to the first-named respondent in the following terms:

Further to SECWA's letter to you earlier this year regarding its intention to construct the … transmission line, you are now advised that construction will commence soon.

SECWA requires to enter your land … to carry out the construction of the abovementioned transmission line.

The first construction activity will be the installation of gates where these are required (RT-13).

On 10 January 1995, the appellant began installing gates on the first respondent's property (Annexure RT-14). The purpose of the gates was outlined in the 1988 PER as follows:

The SECWA's policy is to discourage public access along its transmission lines. This policy reflects the need to protect the transmission line installations from such actions as:

• Removal of angle iron from the tower structures,

• Shooting at insulators,

• Passage of overheight vehicles beneath conductors, and

• Damage to the access track.

Gates will be established where transmission lines cross existing fences. Under normal circumstances, these gates will be kept locked (RT-4 at 28).

31 By letter dated 3 June 1998, Western Power notified Mr Black and others that the construction of the transmission line was complete (Annexure RT-21).

(Page 16)

32 A Taking Order to resume the easements on Mr Black's land was made pursuant to s 177 and s 178 of the LA Act and registered on 8 October 2003.

33 It would appear that the date upon which the appellant first entered the first-named respondent's land to carry out the 'particular undertaking', being construction of the transmission line upon a particular defined route (as opposed to the investigation of a proposed route) was on or about 10 January 1995. That 'undertaking' had been finally determined only by either the date (between 1988 and 1991) when a precise route, as opposed to a 'corridor', had been determined or by the date upon which the type of transmission line had been determined (about July 1994). It is not necessary to decide which of those dates allows the 'undertaking' for which entry was made to be identified with precision, since it appears that the entry for gate construction took place after both events.

34 Since my conclusion is consistent with that reached by the learned trial judge, albeit by different reasoning, it follows that the appeal ought to be dismissed.

35 McLURE JA: I agree with Wheeler JA.

36 BUSS JA: The material facts, the reasoning of the learned Judge and the grounds of appeal are summarised in the reasons of Wheeler JA. I agree with her Honour that the appeal should be dismissed. My reasons are as follows.

The relevant statutory framework

37 I will refer to the relevant statutory framework as in force at the date of the notice of intention to take, namely, 9 April 2003.

38 Section 28(3)(c) of the Energy Operators (Powers) Act 1979 (WA) (the Powers Act) provided:

An energy operator may -

…

(c) enter upon and occupy any land or other premises and there, without being bound to acquire the same or any estate or interest

(Page 17)

therein (except where otherwise provided by this Act or such as may be required by a claimant to be taken under Part 9 of the Land Administration Act1997) by the best available route and in a practicable manner, construct, extend, or improve works, maintain and conduct undertakings and facilities, and carry on undertakings or works requisite, advantageous, or convenient to the exercise and performance of the functions of the energy operator or any such function;

…

39 Section 46 of the Powers Act contained various provisions with respect to an energy operator's powers to enter onto any land, premises or thing. Section 46(1) provided:

In this section, a reference to 'a power of entry', and cognate expressions, includes a reference to the power of an energy operator to carry out the works or perform the duties and exercise the powers necessary to achieve the purpose for which entry on the land, premises or thing affected is sought, and to occupy that land for those purposes.

40 By s 46(2), relevantly, where due notice had been served upon the owner or occupier of that land, premises or thing, an energy operator was empowered, for the purposes of the Powers Act or any other Act that conferred powers on the energy operator, lawfully to enter onto any land, premises or thing not under the control or management of the energy operator, notwithstanding that the energy operator had not obtained the consent of the owner or occupier. Section 46(3) provided:

The power of entry conferred by this section does not authorise or require an energy operator to acquire any interest in any land except such as -

(a) the energy operator elects to acquire by agreement;

(b) the energy operator elects to lawfully take under Part 9 of the Land Administration Act 1997, as read with section 45; or

(c) the energy operator is required to acquire pursuant to section 176 of the Land Administration Act 1997.

41 Section 49 of the Powers Act conferred on an energy operator various powers in relation to the carrying out of works. The section provided, relevantly:

For the purposes of, and subject to this Act, an energy operator may exercise the power -

(Page 18)

(a) to enter upon any land which may be required to be used for the purposes of the energy operator and there make surveys, clear lines of sight, take levels, make or set up beacons, trenches or other marks, sink bores, take soil or other samples and do any other acts or things whatsoever necessary for the investigation or demarcation of such lands;

(b) to enter upon any land, and dig, fell, remove, store, or utilise any earth, stone, gravel, sand or other soil, timber or trees, or other material required for the purpose of the construction or maintenance of any part of any undertaking or works of the energy operator;

(c) to enter upon any land, premises, or thing and set up, lay down, establish, maintain, utilise, and operate, any supply system, or any undertaking or other related things necessary for the establishment or maintenance of any supply system, in, over, under, or through any such land, (including any shore of the sea or any stream or water) premises or thing, and at any time to inspect, service, maintain, replace, repair, or alter, or remove, any such system, undertaking or things; and for that purpose to -


(i) break, excavate and remove any soil to the extent and depth required;

(ii) utilise water;

(iii) make or alter watercourses drainage, means of access and transit;

(iv) remove, reconstruct, or provide buildings, wharves, and other structures; and

(v) remove or carry out any works;


…

(f) to do all such other things as may be necessary or convenient for constructing, maintaining, altering, repairing, or using any supply system, undertaking, or related works,

and for any such purpose the energy operator may occupy any land or premises, and may remove, or erect a gate in, any fence (taking all reasonable steps to notify the owner and occupier of the land on which, or on the boundary of which, the fence is erected).

42 Section 45 of the Powers Act contained provisions, relevantly, with respect to the acquisition of land, or any estate or interest in land, by an energy operator. Section 45(4), (5), (6) and (7) provided:
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(4) Notwithstanding the powers conferred by sections 28(3)(c) and 46, an energy operator is, except where the land is land to which subsection (15) applies, required to acquire, where practicable by agreement but otherwise pursuant to Part 9 of the Land Administration Act1997, as read with this section, such land, estate, or interest as may in the opinion of the energy operator be appropriate to its needs in respect of -

(a) generating works;

(b) in the case of the Western Power Corporation, all electricity transmission works operating at 200,000 volts or above;

(c) all gas transmission works operating at 2 Megapascals or above; and

(d) such other transmission works as may be prescribed by regulation under this Act as works to which this subsection shall apply.


(5) Where in the performance of its functions an energy operator determines that any land, or any estate or interest in land, is required to be acquired by the energy operator otherwise than by agreement the power to do so shall be exercised under and in accordance with, and any compensation payable by the energy operator in pursuance of such powers shall be assessed, determined and recovered under, Parts 9 and 10 of the Land Administration Act 1997, as read with this section.

(6) A claim for compensation made under this section may only be made once, and where any land, estate, or interest is acquired by an energy operator no further claim in respect thereof shall lie against the energy operator notwithstanding any subsequent works of the energy operator affecting that land, estate or interest unless it is shown that the original claim paid did not take into account the nature of the damage subsequently occurring.

(7) Any entry upon, or acquisition of, land authorised by or under this Act and any works carried out by an energy operator in the performance of its functions shall be deemed to be for the purposes of a public work within the meaning of the Public Works Act 1902, the energy operator shall be deemed to be a local authority within the meaning of that Act authorised to effect that acquisition under Part 9 of the Land Administration Act 1997 or undertake that public work under the Public Works Act 1902, the date of first entry under this Act shall be regarded as the date of the taking of the land for the purposes of section 241(2) of the Land Administration Act 1997 in order to ascertain the value of the land, and that Act shall apply

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to and in respect thereto accordingly in so far as that Act is not inconsistent with this Act.

Section 45(15), which was referred to in s 45(4), is not relevant for the purposes of this appeal.

The acquisition in the present case

43 A 300,000 volt electricity transmission line from Muja to Kwinana passes through land owned by the respondents. The appellant acquired easements over the respondents' land. Like Wheeler JA, my reasons will focus on the facts relating to the first-named respondent in that it appears the facts relating to each of the respondents are not materially different.

The issue in the appeal

44 The appeal requires this Court to determine the date as at which compensation for the acquisition should be assessed.

The proper construction of the critical statutory provisions

45 For convenience, I will refer to the appellant and its predecessor, The State Energy Commission of Western Australia, as 'the Commission'. At all material times, the Commission was an 'energy operator', within the meaning of the Powers Act.

46 The Commission's right of entry under the Powers Act included the power to carry out electricity transmission works and other works. The right of entry was exercisable, however, whether or not the Commission intended to carry out or actually carried out any works. Also, the Commission was entitled to enter upon any land, in accordance with s 46, and construct any works authorised or permitted under the Powers Act or any other Act that conferred powers on it, without becoming obliged to acquire the land or any estate or interest in the land, unless, relevantly, s 45(4) applied.

47 Where, as in the present case, the Commission was obliged, by s 45(4), to acquire any land, or any estate or interest in land, the Commission must have formed the opinion that the acquisition may be appropriate to its needs in respect of works of the kind generally described in par (a), (b), (c) or (d) of that subsection.

48 Section 45(7) comprised four elements. First, any entry upon, or acquisition of, land authorised by or under the Powers Act, and any works carried out by the Commission in the performance of its functions, were

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deemed to be for the purposes of a public work, within the meaning of the Public Works Act 1902 (WA). Secondly, the Commission was deemed to be a local authority, within the meaning of the Public Works Act, authorised to effect that acquisition or undertake that public work. Thirdly, the date of first entry under the Powers Act was to be regarded as the date of the taking of the land for the purposes of s 241(2)(c) of the Land Administration Act 1997 (WA), in order to ascertain the value of the land. Fourthly, the Land Administration Act applied to and in respect thereto accordingly insofar as that Act was not inconsistent with the Powers Act.

49 For the purposes of s 45(7), an acquisition of land, or an estate or interest in land, authorised by or under the Powers Act, might occur before or after the Commission entered upon, and before or after the Commission commenced to carry out any works on, the relevant land. Also, land could be acquired even though the Commission did not intend to carry out, and did not actually carry out, any works on the relevant land; for example, if the land in question was required as a buffer in relation to, or as a right of way to facilitate access to, works to be constructed on adjoining land.

50 Where the Commission acquired land, or an estate or interest in land, pursuant to s 45(4), the particular purpose of the acquisition was the accommodation of the Commission's needs in respect of works of the kind generally described in par (a), (b), (c) or (d) of that subsection, as the case may be. In the present case, the particular purpose of the acquisition was to accommodate the Commission's needs in respect of the 300,000 volt electricity transmission line from Muja to Kwinana; that is, the Commission's present and future needs in respect of the construction, operation, inspection, service, maintenance, replacement, repair, alteration or removal of those works.

51 The apparent intention of Parliament, in enacting the third element of s 45(7), was to require the relevant land, or estate or interest in land, to be valued as at the date on which the Commission first entered upon the land in question in connection with the particular purpose of the acquisition, where such an entry occurred before the acquisition.

52 In my opinion, if the Commission acquired land, or an estate or interest in land, pursuant to s 45(4), the date of first entry, within the third element of s 45(7), was as follows:

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(a) if the Commission entered upon the relevant land in connection with specific and definite works of the kind generally described in par (a), (b), (c) or (d) of s 45(4), as the case may be, before the Commission acquired the relevant land or estate or interest in land, the date of the first entry was the date on which the Commission first entered upon the land being acquired (or the land, an estate or interest in which was being acquired) in connection with those specific and definite works; or

(b) if the Commission did not enter upon the relevant land in connection with specific and definite works of the kind generally described in par (a), (b), (c) or (d) of s 45(4), as the case may be, before the Commission acquired the relevant land or estate or interest in land, the date of first entry was the date of the taking of the land for the purposes of s 241(2)(c) of the Land Administration Act: see the definition of "date of taking" in s 151(1) of that Act.

53 In the present case, it is apparent that:

(a) the Commission commenced implementing specific and definite works of the kind generally described in par (b) of s 45(4), namely, the particular transmission line for which the easements were acquired, before it acquired the easement over the first-named respondent's land; and

(b) the Commission first entered upon the first-named respondent's land, in connection with the specific and definite works in question, on or about 10 January 1995.

54 I would dismiss the appeal.