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Hammercall Pty Ltd v Minister for Transport & Main Roads

 

[2015] QSC 114

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114

PARTIES:

HAMMERCALL PTY LTD ACN 002 663 587

(applicant)

v
THE HON SCOTT EMERSON AS MINISTER FOR TRANSPORT AND MAIN ROADS
(first respondent)
and
THE HON JARROD BLEIJIE AS ATTORNEY GENERAL AND MINISTER FOR JUSTICE FOR THE STATE OF QUEENSLAND
(second respondent)
and
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(third respondent)

FILE NO/S:

12318 of 2013

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 May 2015

DELIVERED AT:

Brisbane

HEARING DATES:

15 and 16 April 2015

JUDGE:

Dalton J

ORDER:

Dismiss the application

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – GENERALLY – where the applicant submitted that their objections were not heard by an authorised delegate – where there were two notices of intention to resume issued – where there were two objection hearings in relation to the notices – where there was a factual question as to the position held by the individual who heard the objections – where s 7(3)(e)(iii) of the Acquisition of Land Act 1967 provided that objections may be heard by the constructing authority or its delegate – whether the individual who heard the objections was an authorised delegate under the Transport Planning and Co-ordination Act 1994 and the Acquisition of Land Act 1967

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – REFERENCE TO CONTEXT – where the applicant submitted that there were departures from the requirements of the Acquisition of Land Act 1967 – whether there was a legislative purpose to invalidate an act which failed to comply with the requirements of the Acquisition of Land Act 1967

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – GENERALLY – where the applicant submitted that the Minister was not provided with the required information under s 9(3) of the Acquisition of Land Act 1967 – whether the application to the Minister met the requirements of s 9(3) of the Acquisition of Land Act 1967

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – WHOLE ACT TO BE CONSIDERED – whether the constructing authority under s 5(1)(a), (b) or (c) of the Acquisition of Land Act 1967

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – PURPOSE OF ACQUISITION – where the applicant relied upon the fact that the land to be resumed would be used for both State and local government controlled roads –  where the applicant relied upon the fact that part of the land to be resumed may have been used for the construction of a road that would provide access to a proposed quarry – where the applicant submitted that the land was being resumed for the purpose of an electricity provider laying cables on the land – where the applicant submitted that the resumption was for a ‘future’ purpose – taking of the land for the ‘purposes of transport’ –  whether the notice of resumption was issued for a proper purpose under the Acquisition of Land Act 1967

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – RIGHT TO BE HEARD – where the applicant relies upon the fact it did not have opportunity to reply to the written application to the Minister to take the land – whether the applicant was denied natural justice

Acquisition of Land Act 1967 (Qld) (current as at 1 July 2013)

Acts Interpretation Act 1954 (Qld) 

Transport Infrastructure Act 1994 (Qld) (current as at 2 November 2013)

Transport Planning and Co-ordination Act 1994 (Qld) (current as at 27 November 2013)

Baker v Minister for Employment Skills and Mining & Anor [2012] QSC 160

Estates Developments Co Pty Ltd v The State of Western Australia (1952) 87 CLR 126

Module2 Pty Ltd v Brisbane City Council [2006] QCA 226

Prentice v Brisbane City Council [1966] Qd R 394

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 

COUNSEL:

B Cronin for the applicant

M Hinson QC for the respondents

SOLICITORS:

Andrew Abaza for the applicant

McCullough Robertson Lawyers for the respondents

  

  1. This matter came before me on an originating application in the civil list.  The applicant sought declarations challenging the validity of the compulsory acquisition of parts of its land at Burleigh Heads (Lot 176 on RP 899491) by Taking of Land Notice 2668 made by the Governor in Council and published in the Gazette on 13 December 2013.
  2. Section 7(1) of the Acquisition of Land Act 1967 (Qld) provides that a constructing authority which proposes to take land shall serve a notice of intention to resume.  On 6 November 2012 such a notice was served on the applicant.  On its face it is shown to be issued by, “Director (Property Acquisitions and Disposals) Department of Transport and Main Roads”.  It was enclosed under a letter signed by Mark MacDonald as Director (Property Acquisition and Disposals) and said, inter alia, “… the Chief Executive, Department of Transport and Main Roads … as constructing authority for the State of Queensland, intends to take the land described in the attached schedule … for the purpose of transport, in particular, road purposes.”[1]
  3. The applicant objected to the resumption.  It made written objections and objections orally at a hearing conducted by a Mr J F Donaghey.  That objections hearing took place pursuant to s 7(3)(e)(iii) of the Acquisition of Land Act, which provides that an objector “… may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice …” (my underlining).
  4. Mr Donaghey recommended that the area of land resumed be slightly changed so as to avoid resuming an area of land on which the applicant had existing buildings.  That is, he proposed a change in the applicant’s favour, albeit the applicant sought much more.
  5. The constructing authority acted in accordance with Mr Donaghey’s recommendation and issued an amended notice of intention to resume – see s 7(4AA) of the Acquisition of Land Act. As a result, the applicant received the benefit of another period in which to object to the resumption in the amended notice of intention to resume – s 7(4AB) Acquisition of Land Act.
  6. The amended notice of intention to resume was served on 17 July 2013.  It was under cover of a letter from Brad Chandler, Director (Property Acquisitions and Disposals).  It gave notice that the Chief Executive, Department of Transport and Main Roads, as constructing authority, intended to take land described in the attached schedule for “the purpose of transport, in particular, road purposes”.  Once again, the applicant made a written notice of objection and asked for an oral hearing.  The oral hearing was conducted by Mr Donaghey on 22 August 2013.  He gave a hearing report, dated 18 September 2013.  He recommended that the constructing authority ought to apply to the Minister to take the land in question.
  7. Section 9(1) of the Acquisition of Land Act provides that, “… if, after due consideration of all objections, the constructing authority is of [the] opinion that the land in question is required for the purpose for which it is proposed to be taken, the constructing authority may apply to the relevant Minister that the land be taken …”.  Section 9(3) provides that such an application must be accompanied by, relevantly here: (a) a copy of the relevant notice of intention to resume and of any further notice amending that; (b) a copy of a plan sufficient to substantially identify the land, and (c) a list of names and addresses of all persons who to the knowledge of the constructing authority are entitled to claim compensation because of the resumption.
  8. Section 9(5) of the Acquisition of Land Act provides:

“The relevant Minister must consider every application made under this section, including all statements and documents, or copies of documents, accompanying the application to ensure that –

(a)the land to be taken may be taken and should be taken for the purpose for which it is proposed to be taken; and

(b)the constructing authority has taken reasonable steps to comply with sections 7 and 8; and

(c)…”

  1. Section 9(6) provides that the Governor in Council may, by gazette notice, declare that the land particularised in the notice is taken for the purpose mentioned in the notice.
  2. On 29 October 2013 the Director (Property Acquisitions and Disposals) signed an application to the Minister pursuant to s 9(3) of the Acquisition of Land Act.  On 19 November 2013 the Minister signed the last page of the application, which was in the following terms: “I have considered this application and I recommend that the Governor in Council may take the land by Gazette Notice”.  On 13 December 2013 the taking of the land was notified in the Government Gazette.  The gazette notice stated the land was taken “for the purpose of transport, in particular, road purposes”.
  3. The applicant raised various matters which were said to invalidate the process which I have described.  I will deal with each of them in turn.

J F Donaghey Not Authorised as Delegate to Hear Objections

  1. Section 37(1) of the Transport Planning and Co-ordination Act 1994 (Qld) allows the chief executive to delegate a function or power under “this or another Act”.
  2. Section 27A(1) of the Acts Interpretation Act 1954 (Qld) provides that, if an Act authorises a person to delegate a function or power, the function or power may be delegated to a person by name, or the delegation may be to the holder of a specified office by reference to the title of the office concerned.  Section 27A(9)(b) of the same Act provides that a delegated function or power may be performed or exercised by the person from time to time occupying or acting in the office concerned.
  3. Pages 1 to 21 of the exhibit bundle to Court Document 21 exhibit an instrument of delegation under the Transport Planning and Co-ordination Act 1994 dated 7 August 2012.  The delegation is of various powers under the Act to various officers within the Department of Transport and Main Roads.  The delegation is of powers and functions granted pursuant to various sections of the Transport Planning and Co-ordination Act 1994.  Relevantly to this case, that Act provides at s 25:

25 General powers regarding property

(1)The chief executive may, for the State, acquire, hold, dispose of or otherwise deal with property for the purposes of transport, for an incidental purpose, for the purpose of a transport associated development or for a combination of these purposes.

(2)The power conferred by subsection (1) includes power to acquire land by resumption in accordance with this part if the land is, in the chief executive’s opinion, required for the purposes of transport, for an incidental purpose, for the purpose of a transport associated development or for a combination of these purposes.

(8)For the Acquisition of Land Act 1967

(a)the chief executive is a constructing authority within the meaning of that Act; and

(b)without limiting the chief executive’s powers to take land under that Act, the chief executive, as a constructing authority under that Act, may take land for purposes mentioned in subsections (1), (2) and (3).”

  1. Bizarrely, having regard to the content of s 25(1) and (2), the instrument of delegation deals separately with the powers at s 25(1) and 25(2), delegating them separately to different positions within the Department.
  2. One construction would be that there is no independent s 25(2) power to delegate, because s 25(2) is only concerned with clarifying the extent of the powers under s 25(1).  Another construction would be that the person who drafted the instrument of delegation meant that all powers under s 25(1) except those to acquire land by resumption (s 25(2)) were to be delegated separately.  Supporting this latter idea is that s 25(2) and s 25(8) powers are delegated together, separately from s 25(1) powers.  Against that construction is the idea that the instrument of delegation places express limitations on powers, for example on page 8 of the instrument of delegation, “These delegates do not have the power to seal lease documents …”, so that a more consistent way of confining the powers of a group of s 25(1) delegates would have been to note a limitation to their powers along the lines that they did not have power to acquire land by resumption.  I am content to assume the answer to this construction problem in the applicant’s favour, without deciding it.
  3. This difficulty does not matter so far as the notice of intention to resume and the amended notice are concerned.  They were signed by directors and issued from the office of directors, and a director is a delegate of s 25(1), s 25(2) and s 25(8) powers.  Further, there is no question that a director made the application to the Minister pursuant to s 9(1) of the Acquisition of Land Act and was duly authorised as a delegate pursuant to s 25(1), (2) and (8).
  4. The applicant’s point was that Mr Donaghey, who conducted the two objections hearings, was not a director and thus not authorised pursuant to the instrument of delegation to exercise s 25(8) powers, and if it were a separate thing, s 25(2) power.  The first notice of intention to resume said that objection in writing was to be sent to Regional Director (South Coast Region) and that Manager (Network Planning and Performance) South Coast Region “is the delegate of the Chief Executive appointed to hear objections to the proposed resumption”.  The second notice to resume said that objections in writing were to be addressed to the Regional Director (South Coast Region) and that the Regional Director (South Coast Region) was the delegate of the chief executive appointed to hear objections. 
  5. The delegate to hear both the first and second objections was Mr Donaghey.  As described above, the first notice of intention to resume described him as Manager (Network Planning and Performance) South Coast Region, however the record of the objections hearing itself described him as Acting Regional Director (South Coast).[2]   The first objections hearing was on 20 December 2012, so that it may well be that by this stage Mr Donaghey had moved to a new position.  The front page of the Objections Hearing Report, which is dated 27 June 2013, describes him as the Deputy Regional Director (South Coast).
  6. The second objections hearing took place on 22 August 2013.  Mr Donaghey heard the objections and at that time he was Acting Regional Director (South Coast).[3]  Once again the cover of the Objections Hearing Report describes Mr Donaghey as Deputy Regional Director (South Coast).  It may well be that he was the Deputy, acting as the Director.  There are numerous letters written between June 2013 and September 2013 where Mr Donaghey signs “for Paul Noonan, Regional Director (South Coast)”, including the letters which send both the objection reports to the applicant.  When I look at these in light of the other evidence, they seem consistent with Mr Donaghey acting as Acting Regional Director (South Coast), and signing for Paul Noonan in that capacity.
  7. There was also a subsidiary point that the initiation for the whole resumption process seems to have been a form filled out by Mr Donaghey.  So much is acknowledged by the first notice of intention to resume, which says that the decision to commence the process for taking the land was made by Manager (Network Planning and Performance) South Coast Region as the delegate of the chief executive.  When the departmental form “Land Resumption Request” (Court Document 10, exhibit bundle page 17) is read, it supports that, showing that it was Mr Donaghey as Manager (Network Planning and Performance) who, on 2 October 2012, asked the Director (Property Services) to issue notices of intention to resume.
  8. I find that it was Mr Donaghey as Manager (Network Planning and Performance) who filled out the request form which initiated the resumption, and who was the delegate of the constructing authority to hear objections at the time the first notice of intention to resume was issued.  By the time that directions hearing occurred,  I find that Mr Donaghey was the Deputy Regional Director (South Coast) and acting as Regional Director.  Further, that he remained in those positions (Deputy and Acting) at all material times after the end of the second objections hearing. 
  9. I dismiss the application so far as it is based on this factual matter.  First, I am not convinced that Mr Donaghey needed to be a director, and thus authorised to exercise s 25(1) (as extended by s 25(2) powers) or s 25(8) powers.  The Transport Planning and Co-ordination Act provided that the chief executive could acquire land by resumption – s 25(1) and (2) – and further, that the chief executive was a constructing authority for the purpose of the Acquisition of Land Act and, in that capacity, had power to take land.  Those functions and powers were able to be delegated – s 37(1) of the Transport Planning and Co-ordination Act.  By the instrument of delegation those functions were delegated to a director and, in this case, the Director (Property Acquisitions and Disposals).  That director was the constructing authority for the purpose of the Acquisition of Land Act.  That director was entitled to delegate the task of hearing the objections: “… the grounds of the objection may … be heard by the constructing authority or its delegate …” – s 7(3)(e)(iii) Acquisition of Land Act.  There is no limitation on the s 7(3)(e)(iii) power of delegation – that is, that delegation did not have to be to a person holding any particular office or qualification.
  10. I think this point is sufficient to dispose of the applicant’s argument.  While the chief executive is himself, or herself, a delegate under the Transport Planning and Coordination Act, I think that s 7(3)(e)(iii) of the Acquisition of Land Act expressly contemplates that part of the function of the constructing authority may be delegated again.  Sections 7, 8 and 9 of the Acquisition of Land Act are very detailed in their provisions.  They require that the constructing authority exercise certain powers and functions.  However, in light of the express provision at s 7(3)(e)(iii), I do not think it can be contended that the Director (Property Acquisitions and Disposals) was required to personally exercise the power to hear objections or, for that matter, to complete the resumption request form.  The applicant could cite no authority in support of its argument.
  11. There is a second independent answer to the applicant’s point.  In this case the director delegated to Mr Donaghey who, at the time of the first delegation, but not at the time of the second delegation, and not at the time of either objections hearing, was a manager not a director.  Even if Mr Donaghey were required by legislation and the instrument of delegation to be a director, I cannot see that the irregularities relied upon by the applicant render the resumption process invalid.  Having regard to the test in Project Blue Sky Inc v Australian Broadcasting Authority,[4] the question is one of statutory construction – whether a legislative purpose to invalidate an act that failed to comply with statutory requirements can be discerned.  The question is to be approached having regard to the degree of departure from the statutory requirements in any particular case.  In this case I conclude that substantial compliance with the statutory requirements is sufficient.  There was substantial compliance here because Mr Donaghey was qualified at the times he heard both sets of objections and well before any decision adverse to the applicant was made.

Application to Minister Not Accompanied by s 9(3) Information

  1. It was contended that the original notice of intention to resume had not been included in the application to the Minister made pursuant to s 9(1) – see s 9(3)(a).  This factual point was abandoned at the hearing when counsel for the respondents pointed out that the affidavit material showed that both notices were included with the application to the Minister – Court Document 11, exhibit bundle pages 335-338.
  2. It was contended that the plan accompanying the application to the Minister was not “sufficient to substantially identify the land” within the meaning of s 9(3)(b).  I reject this as a matter of fact.  The plan was attached to the amended notice to resume – Court Document 10, exhibit bundle page 34.  It can be contrasted with the plan attached to the original notice – Court Document 11, exhibit bundle page 338.  When asked to identify the best point for the applicant in this regard, counsel said that the most significant uncertainty as to the land to be resumed attended whether the resumption affected the buildings on his client’s land – t 1-85.  These buildings can be seen on Court Document 16, exhibit bundle page 97.   There are 14 GPS points closely marked along the boundary of the land resumed, adjacent to the area of the existing buildings – points 12–25 on the plan attached to the amended notice to resume.  The applicant had no evidence that these GPS points did not adequately identify the boundary and had not engaged a surveyor to plot the points.  In my view there was nothing in this point.
  3. Last in this series of factual points was an allegation that the application to the Minister did not contain a list of the names and addresses of all persons who, to the knowledge of the constructing authority, were entitled to claim compensation because of the resumption.  The evidence did not support the contention that there were any such persons.  There was no evidence of any Optus infrastructure in Lot 176 – affidavit Gailey, Court Document 41, pages 238-239 and 240 of the exhibit bundle, and see t 1-92.  The situation was the same with respect to Energex infrastructure – page 236 of the same exhibit bundle and t 1-93.  Similarly with infrastructure owned by Nextgen – page 237 of the same exhibit bundle.  The same situation obtained so far as Telstra was concerned – page 243 of the same exhibit bundle and page 34 of the exhibit bundle to Court Document 10.  Page 234 of the exhibit bundle to Court Document 41 seems to negate any interest in any of these parties in the relevant part of Lot 176.   Seqwater was served with the notice of intention to resume – see Court Document 10, exhibit bundle page 37 and t 1-93. 

Purpose of Taking

  1. Section 5 and Schedule 1 of the Acquisition of Land Act determine the purposes for which land may be resumed.  That Act defines the term “constructing authority” to mean: (a) the State; (b) a local government, or (c) a person authorised by an Act to take land for any purpose – see Schedule 2The purposes for which land may be taken vary depending upon who the constructing authority is: s 5(1)(a) applies when the constructing authority is the Crown; s 5(1)(b) when the constructing authority is a local government, and s 5(1)(c) when the constructing authority is someone else.
  2. The respondent contended that the constructing authority was the chief executive under the Transport Planning and Co-ordination Act and s 5(1)(c) of the Acquisition of Land Act.  I think that is correct.  What will constitute the Crown in any given case depends somewhat on context, and in some contexts a chief executive authorised to perform a statutory function under an Act of Parliament might be the Crown.  However here, where the three parts of s 5 of the Act so closely match the definition in Schedule 2 of the Act, it seems plain to me that the expression “the Crown” in s 5(1)(a) is a reference to the State itself and that s 5(1)(c) is a reference to someone like the chief executive carrying out a statutory purpose, particularly when the words of s 5(1)(c)(ii) are considered – that is, the constructing authority is contemplated to be something or someone who carries out functions under an Act of Parliament.  That interpretation sits with the provisions of the Transport Planning and Co-ordination Act at s 24(1), that the chief executive has “as agent of the State”, all the powers of the State that are necessary or desirable for performing the chief executive’s functions, and at s 24(2), that anything done in the name of the State by the chief executive is taken to have been done for, and binds, the State.  That is, those provisions show that the chief executive is separate to the State.  The interpretation is also consistent with s 36A of the Acquisition of Land Act, which provides that it is the Minister who is authorised and required to take land on behalf of the Crown as constructing authority.
  3. Under s 5(1)(c) of the Acquisition of Land Act, a constructing authority other than the Crown or a local government may take land: (i) for any purpose set out in Schedule 1 which the constructing authority may lawfully carry out, or (ii) for any purpose which that constructing authority is authorised or required by provision of an Act to carry out.
  4. Section 25(8)(a) of the Transport Planning and Co-ordination Act provides that the chief executive is a constructing authority within the meaning of the Acquisition of Land Act.  Section 25(1) of the Transport Planning and Co-ordination Act provides that the chief executive may acquire property “for the purposes of transport”, inter alia, and s 25(2) provides, additionally, that the power conferred by subsection (1) includes power to acquire land by resumption if the land is, in the chief executive’s opinion, required for the purposes of transport.  If any further clarification was needed, s 25(8)(b) provides that, without limiting the chief executive’s power to take land, the chief executive, as constructing authority under the Acquisition of Land Act, may take land for the purposes mentioned at s 25(1), (2) or (3). 
  5. The purpose of the taking in this case was expressed consistently in the notice of intention to resume, the amended notice, the taking of land notice and the application to the Minister: “the purpose of transport, in particular road purposes”.  It will be recalled that s 25(1) of the Transport Planning and Co-ordination Act speaks of “the purposes of transport”, as does s 25(2) of that Act.  Further, that Part 1 of Schedule 1 to the Acquisition of Land Act is headed “Purposes relating to transportation” and includes as a dot point, “roads”.  Thus the statement of purpose is express, particular, and sufficiently detailed to fit, almost to the letter, within the statutory descriptions.[5]

Gold Coast City Council

  1. The applicant made submissions based on the fact that some of the land resumed will be used for State-controlled roads, but some of it will be used for roads under control of local government – Gold Coast City Council.  This was said to show that the taking was not for the stated purpose, but on behalf of the Council.  It was not contended that the Council would do anything other than construct roads on the land said to be taken on its behalf – t 2-12.  I reject the proposition that this means that the purpose stated on the notice of intention to resume (and elsewhere) was inaccurate. 
  2. Section 25(1) and (2) of the Transport Planning and Co-ordination Act allows resumption of land required “for the purposes of transport”.  Section 3 of that Act defines “transport purpose” as including “any purpose for which the Minister is responsible”.  Section 3 of that Act also defines a “transport Act” as meaning “an Act administered by the Minister, and [including] this Act”.  The Transport Planning and Co-ordination Act gives the Minister responsibility for approving a transport co-ordination plan formulated from time to time by the chief executive – s 4(1) Transport Planning and Co-ordination Act.  The transport co-ordination plan provides, inter alia, for “an adequate framework for the coordinated planning for transport; and a way of achieving effective and efficient use of land for transport purposes” – s 5(2).  It is something which takes into account the government’s “overall strategic planning for Queensland” and national transport strategies, regional transport and development strategies, local government interests and land use planning – s 6.
  3. Furthermore, under the Transport Infrastructure Act 1994 (Qld) the Minister has responsibility for approving “roads implementation programs” – s 11(1).  These programs must include, “a program of projects, and policies and financial provisions, for implementing the transport infrastructure strategies in relation to road transport infrastructure, including roads that are not State-controlled roads …”.  In developing a roads implementation program for the Minister’s approval the chief executive is charged with consulting with local governments – s 11(4) Transport Infrastructure Act.  It is an objective of  the Transport Infrastructure Act that the government have strategic overview of all transport infrastructure, including national and State roads, so that influence can be exercised over “the total road network in a way that contributes to overall transport efficiency”.
  4. Under the Transport Planning and Co-ordination Act, the chief executive has functions to co-ordinate the strategic planning and operation of integrated transport systems in the State – s 22(1)(a); to ensure more effective integration of land use and transport planning by, inter alia, developing and implementing integrated regional transport plans that complement the objectives of regional and land use plans in the State – s 22(2)(a)(ii), and ensure the effective planning and development of transport infrastructure – s 22(2)(b).
  5. The evidence was that the resumption of the applicant’s land was in train of a roads implementation program which was identified by the number 160/12A/9 – see Court Document 11, exhibit bundle pages 473ff.  The material showed that this road implementation program was longstanding, having funding approved at least from 2009 – Court Document 11, exhibit bundle page 479.  The documents show that funding has been received from both the State and Commonwealth Governments for the roadworks, including up to the 2013-2014 year – same exhibit bundle page 602.  The number 160/12A/9 appears on the documents relating to the resumption, including the plans attached to the notice of resumption and amended notice of resumption. 
  6. There was a body of written evidence which clearly showed that the Gold Coast City Council was co-ordinating with the Department of Transport in an effort to plan for the roadworks on the resumed land.  Indeed, the background information accompanying the original notice of intention to resume stated that, “In partnership with the Gold Coast City Council, the department is planning road improvements which would assist traffic flow west of the Pacific Motorway at Reedy Creek … This link would help manage traffic growth on the western side of the motorway and enable some local traffic to avoid the motorway altogether.”  There were meetings between the Council and the Department.  In one of the documents the Department is described as “the lead agency” for the acquisition of the land – Court Document 23, exhibit bundle page 397.  There are indications that the Council sought advice as to road design from the Department of Transport and that the Council and the Department of Transport worked closely together, including as to the Council’s planning approaches to the land in the vicinity of the proposed new roadway, including the applicant’s land. 
  7. There was nothing in any of the documents which suggested any improper or ulterior purpose on the part of the constructing authority in resuming the land.  The land resumed will be used for roads and, having regard to the provisions of the Acts which I have discussed, the resumption was clearly enough for a transport purpose within the meaning of the Transport Planning and Co-ordination Act – to implement a project for which the Minister is responsible: road implementation program numbered 160/12A/9.

Boral Quarry

  1. Boral is interested in developing a quarry in the vicinity of the new road for which the applicant’s land has been resumed; it owns Lot 105, marked on various plans, eg., Court Document 16, exhibit bundle page 53 and see page 97.  The Co-ordinator General favoured the project, but the Gold Coast City Council refused development approval.  I understand that that decision is now the subject of an appeal by Boral in the Planning and Environment Court.  The applicant ran an argument based on Prentice v Brisbane City Council,[6] that its land was being resumed to construct a road to facilitate access to the Boral quarry and, for good measure, that when the Council approved the development application it could be anticipated that the Council would require Boral to pay for some of the connecting road. 
  2. As to this latter point, in July 2014[7] Council officers prepared conditions for the development of the Boral quarry, should it be approved.  Condition 30 is difficult to accurately interpret, but I do understand that the officers were recommending to Council that it require a large financial contribution to the cost of the road project to be built (partly) on the applicant’s land.  The condition was formulated well after the notice of intent to resume.  I cannot infer that there was any thought by the constructing authority that part of the road might be paid for by Boral pursuant to Council conditions of approval.  In any event, Council did not approve the quarry. 
  3. Prentice concerned an agreement between Council and a developer whereby Council was to resume land so that a bridge could be built across the Brisbane River to a developer’s subdivision.  The developer was to pay the cost of the resumption and build the bridge.  The developer was to pay the costs of legal actions (if any) in connection with the resumption.  The Council was to construct an approach road to the bridge in consideration of the developer’s paying Council £150,000.  On the facts of that case, it appeared that the Council’s main purpose was to assist a private developer in making a profit from a very large subdivision, “notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the subdivision and the opening up of the lands …”.  On the evidence there it appeared that the Council had entered into an agreement in effect as the developer’s agent, rather than acting for public purposes in acquiring land on which to build roads and bridges.  The resumption was enjoined on that basis.
  4. There was no evidence in this case anywhere approaching the type of evidence which was led in Prentice.  The material shows that both the quarry and the scheme to upgrade roadworks in the locality of the applicant’s land had both been discussed extensively, for many years.  Boral applied to the Queensland Government to declare its quarry a significant project under the State Development and Public Works Organisation Act 1971 (Qld) on 8 December 2009 – Court Document 23, exhibit bundle page 26.  The proposed roadworks, albeit at a level of generality, had been publicly announced at least since March 2008 – exhibit 1.  There was evidence that there had been general traffic demand in the area for some years – Court Document 23, page 400, for example.
  5. There is no doubt that if a quarry is established by Boral, the road built on the plaintiff’s land will provide access to it.  When the plan of the proposed road is viewed, it can be seen that access to the Boral quarry (if it is ever built) will be via the proposed road.  However, it could not be said to be the main or predominant purpose of the road – see for example page 53 of the exhibit bundle to Court Document 16, noting that Lot 105 is the site of the proposed Boral quarry.
  6. Over a period of years, the Department has met and corresponded with the Council, the Co-ordinator General and with Boral as to the Boral quarry and the likely demands it would make on the proposed road, and the documents show this.  Planning could not proceed without taking account of the likelihood of such a large enterprise requiring heavy vehicles in the vicinity of a new road development.  There is no evidence from which I could safely draw any inference that it was any purpose of the constructing authority, or anyone else, to build a road, not for public purposes, but to access the Boral quarry, or to build a road in the vicinity of the Boral quarry so that Boral could pay some of the cost of that.  The applicant made much of an email dated 14 June 2012 from an engineer acting on behalf of Boral, which referred in a hearsay way to an engineer (Sleep) from the Department apparently saying that the Department had not consulted with Boral, thus giving the lie, he thought, to the idea that the Department was proposing the new roadworks to serve the Boral quarry (contrary to someone’s idea of community perception).  This email is hearsay and opinion, not evidence of any ulterior purpose.

Energex

  1. Lastly, it was contended that the purpose for which the applicant’s land was being resumed was partly for the purpose of allowing Energex to place cables on the land.  The evidence for this was so slight that no inference could safely be drawn from it.  The applicant relied upon a document prepared by engineers for Boral, dated “FEB 2013” – Court Document 10, page 172ff.  The report says that it is prepared as part of the environmental impact assessment for the Boral quarry.  It concerns itself with connecting electrical and telecommunications infrastructure to the site.  At the ninth page of the report the authors summarise a proposal by Energex to provide temporary electricity supply.  It lists four options apparently proposed for this temporary supply, and the fourth of them appears, by a plan at page 181 of the exhibit bundle, to require easements through Lot 176.  Apart from that, the applicant relied upon a document obtained under the Right to Information Act from the Transport Department which, in a series of dot points under the heading “Presentation of Traffic Modelling and Road Planning Investigations – Preferred Option” said, “M1 master planning making space for rail and Energex”.  Nothing can be drawn from this to impugn the purposes stated for this resumption.

Future Purposes

  1. The applicant relied upon the fact that the road development for which its land was resumed is not yet fully funded.  There was evidence of some funding – see Court Document 11, exhibit bundle page 479.  But even if all the funding is not yet available, and indeed if the road project cannot proceed immediately for some other reason, that does not invalidate the purpose for which the resumption was made.  Section 26 of the Transport Planning and Co-ordination Act provides that an acquisition of land which will be required at some future time, for an authorised purpose, is an acquisition for the purposes of the Act, even if, at the time when the land is taken, the time when the land will be required is indefinite.[8]  In any case, that the roadway is not yet funded does not mean that it is not required.

Denial of Natural Justice

  1. When the scheme of Part 2 Division 2 of the Acquisition of Land Act is considered, it appears that ss 7 and 8 are concerned with notifying an owner of land which may be resumed, and according the owner the right to object.  Section 9 is concerned with how land is to be taken notwithstanding objection.  That is to occur by the constructing authority applying to the Minister – s 9(1).  The application may only be made within 12 months after the date of the notice of intention to resume – s 9(2).  The application must be accompanied by certain information – s 9(3).  The Minister has power to ask for more details from the constructing authority – s 9(4).  Section 9(5) provides that the Minister must consider: (a) whether the land may be taken and should be taken for the purpose it is proposed to be taken; and (b) whether the constructing authority has taken reasonable steps to comply with ss 7 and 8 – the sections which give the land-owner notice and the opportunity to object. 
  2. The applicant complained that the material which the constructing authority gave to the Minister in this case included a memorandum, dated 29 October 2013 – Court Document 11, exhibit bundle pages 800-805.  While this document was headed “memorandum” on the first page, it is apparent that it is the application to the Minister contemplated by s 9(1) of the Acquisition of Land Act – see on its penultimate page the recommendation to the Minister is, “Please consider this application for the land to be taken”.  The memorandum of application sets out on its second page the reasons why the constructing authority says the land needs to be taken and the benefits which the constructing authority says will flow from the proposed roadworks on the land taken.  The application goes on over the next two-and-a-half pages to describe compliance with the Acquisition of Land Act and, in particular, describes the objections hearings.  It lists documents given to the Minister and then formally applies for the Minister to recommend the taking by the Governor in Council. 
  3. The applicant complains that it never received a chance to reply to this document.  In my view the Act does not envisage that a land-owner has a chance to comment on, or reply to, the application to the Minister.  The land-owner has a chance to be heard pursuant to ss 7 and 8 of the Act, but thereafter the Act contemplates that it is the constructing authority who applies to the Minister.  The circumstances of such an application will necessarily entail that, notwithstanding it has heard the objections of the land-owner, the constructing authority requires the land to be taken.  In my opinion, the application in this case does no more than briefly state the grounds for the taking and summarise those matters which have occurred so that the Minister can be satisfied pursuant to s 9(5)(a) and (b) of the Act.  It would be different if the memorandum contained matters which were new in substance and about which the land-owner had not been given a chance to be heard.[9] 
  4. In this case, I cannot see that the Act requires that anything in this memorandum of application be brought specifically to the applicant’s attention, or that the applicant had any right to be heard on the matters contained in it.

Miscellaneous

  1. It was contended by the applicant that because the only record of the Minister’s decision is that he has signed against the typewritten words, “I have considered this application and I recommend that the Governor in Council may take the land by Gazette Notice”, the decision was somehow void because the Minister did not record reasons for the decision and, in particular, reasons for the decision which corresponded with s 9(5) of the Acquisition of Land Act.  There is nothing in this argument.  The applicant never asked for reasons for the decision.  There is no evidence at all that the Minister made a decision otherwise than in accordance with the Act.
  2. Lastly, the applicant submitted that the resumption would land-lock the north-west part of its land, at least in practical terms – tt 1-59-60.  I do not need to determine whether or not this is so.  But if it is so, it will go to the amount of compensation to be paid for the resumption.  It cannot mean that the resumption itself is invalid. 
  3. I dismiss the application.  I will hear the parties as to costs.

 

Footnotes

[1] A notice to resume dated 27 November 2012 was served on a company related to the applicant, Elesanar Constructions Pty Ltd.  That company was not a party to this proceeding, although it participated with the applicant in the objections process, etc.  There was no separate interest or point advanced on behalf of Elesanar Constructions, so I need not separately address it in this judgment.

[2] Court Document 10, exhibit bundle p 122 and respondent’s written submissions, Court Document 46, paragraph 9.

[3] Court Document 10, exhibit bundle p 90.

[4] (1998) 194 CLR 355, 389 adopted in a land acquisition case, Module2 Pty Ltd v Brisbane City Council [2006] QCA 226, [12]ff.

[5] Cf Estates Development Co Pty Ltd v The State of Western Australia (1952) 87 CLR 126, 135.

[6] [1966] Qd R 394.

[7] Minutes from Gold Coast Committee 8 July 2014 – Court Document 38, exhibit bundle p 137.

[8] This was probably the position at common law in any event – Estate Developments, (above), p 127.

[9] Cf Baker v Minister for Employment Skills and Mining & Anor [2012] QSC 160.

Close

Editorial Notes

  • Published Case Name:

    Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors

  • Shortened Case Name:

    Hammercall Pty Ltd v Minister for Transport & Main Roads

  • MNC:

    [2015] QSC 114

  • Court:

    QSC

  • Judge(s):

    Dalton J

  • Date:

    12 May 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QSC 114 12 May 2015 -
Notice of Appeal Filed File Number: 5595/15 09 Jun 2015 SC12318/13
Appeal Determined (QCA) [2016] QCA 95 15 Apr 2016 -
Special Leave Refused [2016] HCASL 206 01 Sep 2016 -

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)