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Hammercall Pty Ltd v Minister for Transport & Main Roads

 

[2016] QCA 95

 

SUPREME COURT OF QUEENSLAND

CITATION:

Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2016] QCA 95

PARTIES:

HAMMERCALL PTY LTDACN 002 663 587(appellant)
v
THE HON SCOTT EMERSON AS MINISTER FOR TRANSPORT & MAIN ROADS
(first respondent)
THE HON JARROD BLEIJIE AS ATTORNEY GENERAL AND MINISTER FOR JUSTICE FOR THE STATE OF QUEENSLAND
(second respondent)
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(third respondent)

FILE NO/S:

Appeal No 5595 of 2015

SC No 12318 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 114

DELIVERED ON:

15 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2015

JUDGES:

Margaret McMurdo P and Fraser JA and Mullins J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – GENERALLY – where the appellant contended that the Minister did not have the statutory power to acquire its land and “land lock” it - where the appellant failed to establish that the Minister was not adequately informed of the effect on vehicle access to its business by the compulsory acquisition – where the appellant failed to adduce evidence that the acquisition was for a purpose other than transport and road purposes – where the broad statutory power granted to the Minister under s 24(1), s 24(3) and s 25 Transport Planning and Coordination Act 1994 clearly and unequivocally modify common law powers – whether the Minister can compulsorily acquire land that will, as a result of the acquisition, become “land locked”

ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR – where the appellant contended the Minister’s decision was invalid as he failed to consider all materials attached to the application in accordance with s 9(5)(a) Transport Planning and Coordination Act – where the Minister’s decision was attached to a briefing memorandum he was given along with a large body of material relating to the application to acquire the land – where the appellant did not establish that the Minister did not consider the material accompanying the briefing memorandum – whether there was a jurisdictional error on the face of the record

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – OTHER MATTERS – where the appellant contended its objections were not heard by a validly appointed hearing officer under s 25(8) and s 25(12) Transport Planning and Coordination Act – where under s 7(3)(e)(iii) Acquisition of Land Act 1967 objections may be heard by the constructing authority or its delegate – whether the hearing officer had delegated power to conduct the objection hearings

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – RIGHT TO BE HEARD – where the appellant contended it did not have the opportunity to comment on the briefing memorandum given to the Minister or another Departmental memorandum about the acquisition – where the memoranda did not include any substantially new content about which the appellant had not already been heard – whether the appellant was denied procedural fairness

Acquisition of Land Act 1967 (Qld), s 7, s 7(3)(e)(ii), s 7(3)(e)(iii), s 8(2), s 8(2A), s 9(1), s 9(5), s 9(5)(a), s 20(1)(a), s 20(3), s 36B(2)

Acts Interpretation Act 1954 (Qld), s 27A(1), s 27A(9)(b)

Transport Planning and Coordination Act 1994 (Qld), s 24(1), s 24(3), s 24(4), s 25(1), s 25(2), s 25(3), s 25(8), s 25(12)

Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23, cited

Eggar v Commissioner of Main Roads [1979] Qd R 501, cited

Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120; [2006] QCA 226, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

Sita Queensland Pty Ltd v Beattie [2000] 2 Qd R 433; [1999] QSC 212, cited

COUNSEL:

A Abaza (sol) for the appellant

M Hinson QC for the respondent

SOLICITORS:

Andrew P Abaza for the appellant

McCullough Robertson for the respondent

[1] MARGARET McMURDO P:  The appellant was dissatisfied when, despite its objections, part of its land at Burleigh Heads was compulsorily acquired by a Taking of Land Notice made by the Governor in Council and published in the Queensland Government Gazette on 13 December 2013 for the purpose of transport, in particular, road purposes.  The scheme relied on for the acquisition of the appellant’s land was principally contained in the Acquisition of Land Act 1967 (Qld) and the Transport Planning and Coordination Act 1994 (Qld).  This appeal is from an order from the trial division of this Court refusing the appellant’s application for declarations challenging the validity of that land acquisition.

[2] The grounds of appeal are that the court erred in failing to hold:

  1. that the respondents had no power in taking the appellant’s land to “land lock” the appellant, nor any power to take the appellant’s land to connect an adjoining quarry to the outside world;
  2. there was jurisdictional error of law on the face of the record in the making of the decision under s 9(5)(a) Acquisition of Land Act as to whether the land may be taken and should be taken;
  3. there was no validly appointed or proper hearing officer acting within the jurisdiction conferred by s 25(8) and s 25(12) Transport Planning and Coordination Act for the hearings which occurred on objection;
  4. that the appellant was denied procedural fairness during that process in:
  • the purported appointment of Mr J F Donaghey by the first Notice and by the change from Mr Noonan, Regional Director (South Coast Region) as notified by the second Notice to Mr Donaghey;
  • the hearing process itself under s 7 and s 8 Acquisition of Land Act in terms of the making of the reports;
  • the requirement in s 9(1) Acquisition of Land Act of due consideration by the constructing authority;
  • the failure to give the appellant any opportunity to respond to the memoranda of 24 October 2013 and 29 October 2013;

and the Minister’s decision under s 9(5) and s 36B(2) Acquisition of Land Act was thereby affected; and

  1. that there was non-compliance with the mandatory provisions of s 8(2) and s 8(2A) Acquisition of Land Act in the making of the decision in respect of the amendment to Plan D and the Minister’s decision under s 9(5) and s 36B(2) Acquisition of Land Act was thereby effected.

[3] The appellant seeks orders allowing the appeal, setting aside the relevant Taking of Land Notice and removing the relevant administrative advices from its certificate of title, together with costs, including reserved costs.  Its contentions were broad-ranging and not always clearly articulated.  Sometimes submissions on one ground were repeated during or overlapped with submissions on another ground or grounds.  I will attempt to deal with each ground of appeal in sequence, in setting out my reasons for dismissing this appeal.

Ground 1: the power to take the land

[4] The appellant emphasised that its director, Mr Leslie Cowell, gave uncontested evidence before the primary judge that since 2005 it has conducted a waste recycling business and a sand processing business on the land the subject of this appeal.  Both businesses involved the movement of trucks and heavy machinery across its land and along the current approved access road.  The taking of the land will sever parts of its land from other parts and will land lock part of its north western portion of Lot 176,[1]  that is, will deny it vehicular access to a public road.  The briefing memorandum to the first respondent, the Minister for Transport and Main Roads, the appellant submitted, made no reference to this land locking.  The third respondent, the Chief Executive of the Department of Transport and Main Roads, did not inform the Minister of this land locking or that it would prevent the operation of the appellant’s two businesses which required vehicular access.  Whilst accepting the primary judge’s conclusion that the question of land locking the appellant’s businesses was a matter relevant to the amount of its entitlement to compensation,[2] the appellant argued that the Minister should have been informed of and considered these matters before recommending the acquisition of the land.

[5] At common law, the appellant contended, an owner of land adjoining a highway is entitled to access to the highway at any point on which the land touches the highway.  The respondents had no statutory power to take away the appellant’s common law rights: s 24(4) and s 25(12) Transport Planning and Coordination Act.  In support of that contention the appellant placed emphasis on Eggar v Commissioner of Main Roads.[3]  It was a well-recognised rule of construction, the appellant contended, that statutes cannot interfere with a common law right except by express words or necessary implication.  Any ambiguity about the extent of a statutory derogation of common law rights must be resolved in favour of maintaining such rights.[4]

[6] The appellant further argued that the real reason its land was being resumed was to facilitate access to a proposed quarry belonging to Boral Resources (Qld) Pty Ltd, an endeavour designated a state significant project, and that, when the Gold Coast City Council approves the quarry in the future, it will require Boral to pay for some of the connecting road to be built in part on the appellant’s resumed land.  The acquisition of its land, it argued, was the taking of private land for the benefit of a third party and was not authorised under the relevant statutory scheme; it was improper and unlawful.

Conclusion on this ground of appeal

[7] The appellant’s contention that the Minister was not informed of the effect on vehicle access to its businesses is disingenuous.  The Minister was briefed with a memorandum setting out the background to the acquisition of the land, the consultation which had occurred, including with the appellant, the reasons why the land needed to be taken, the benefits of the road work proposed for the land to be acquired, and the actions taken to comply with statutory requirements.  A number of written objections were noted including those from the appellant.[5]  Whilst the memorandum did not use the rather unhelpful term, “land-locking,” it clearly acknowledged and discussed the appellant’s critical ground of objection concerning road access to its businesses.  The contention that the Minister did not consider the appellant’s concern that the acquisition of the land would detrimentally impact on its businesses was not supported by the briefing memorandum.  Further, the appellant’s written detailed objections and the Department’s full response to them were included in the material provided to the Minister with the memorandum.

[8] The appellant also contended that the real purpose of taking its land was not for road purposes but either to favour Boral or to ensure Boral made some financial contribution to the Council for the road when it was built.

[9] The primary judge dealt with that contention as follows.  Boral was interested in developing a quarry in the vicinity of the new road for which the appellant’s land had been resumed.  There was favour for this project at State level but the Council had refused development approval, a refusal which was subject to appeal elsewhere.  The judge did not accept the appellant’s argument that the land was being resumed to construct a road to facilitate access to Boral’s proposed quarry and that when the Council approved Boral’s development application it would require Boral to pay for some of the connecting road.[6]  Nor did her Honour accept that the Chief Executive acquired the land so that Boral, under conditions of approval for the development of its quarry, would be required to make a large financial contribution to the cost of the planned road project connecting the Boral quarry to the Pacific Highway.[7]  These proposed roadworks to be built on the appellant’s resumed land had been publicly announced in general terms in March 2008, whereas Boral applied to have its quarry declared a significant project under the State Development and Public Works Organisation Act 1971 (Qld) almost two years later on 8 December 2009.[8]  It was understandable that the Department, the Council, the Co-ordinator General and Boral had been meeting and corresponding about the quarry over many years, including discussion and demands about the proposed road.  The proposed quarry was a large enterprise which would use heavy vehicles and a new road was being proposed in the area.[9]  Whilst her Honour found that, if the Boral quarry was established, any road built on the appellant’s resumed land would provide access to the quarry, this was not the main or predominant purpose of the road.[10]  The Council’s conditions for the development of the quarry, should it be approved, did not require a large financial contribution from Boral to the cost of the road.[11]  There was no evidence from which to infer that it was any purpose of the Minister or the Department to build a road, not for public purposes, but to access the proposed quarry so that Boral could pay some of the costs of the road.[12]

[10] The appellant has not referred this Court to any evidence requiring different conclusions to those reached by her Honour on these matters.  The appellant’s contention that the land was being taken to benefit a third party rather than for transport and road purposes is not made out.

[11] The appellant also contended that there was no statutory power to take its land because, as a result of the resumption, it can no longer access the highway.  It is trite but apparently necessary to note that the common law can be modified by clear and unequivocal statutory provisions.  Under s 24(1), s 24(3) and s 25 Transport Planning and Coordination Act, the Chief Executive has statutory power on behalf of Queensland to “acquire, hold, dispose 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”.[13]  The Chief Executive is a constructing authority under the Acquisition of Land Act, with power to take land for the purposes specified in s 25(1), (2) and (3) Transport Planning and Coordination Act.[14]  The Acquisition of Land Act sets out the process to be followed by a constructing authority in taking land other than by agreement.[15]  The primary judge found that the statement of purpose in acquiring the land (for transport, in particular road purposes) was express, particular and sufficiently detailed to fit the statutory requirements.[16]  Her Honour’s conclusion was entirely consistent with the statutory scheme.  Contrary to the appellant’s contention, its arguments are not assisted by s 24(4) Transport Planning and Coordination Act which does no more than preserve the Chief Executive’s statutory and common law powers; it does not prevent the modification of common law powers by clear and unequivocal legislation.

[12] The primary judge did not find it necessary to decide whether the resumption would, as the appellant argued, land lock the north-western part of its land for that was a matter relevant to the amount of compensation it should receive and did not make the resumption invalid.[17]  In this, too, her Honour was correct.  The broad terms of the statutory scheme allowed for the acquisition of land for transport purposes, including future transport purposes, even where it was not known when the land will be required.[18]  The power to acquire land was in no way circumscribed to prevent the acquisition of part of a parcel of land where the unacquired portion of the land is left without access to a public road.  As her Honour appreciated, this is a matter relevant to the amount of compensation; it was not a discrete ground of objection to the taking of the land: see Acquisition of Land Act s 7(3)(e)(ii) and s 20, especially s 20(3).  That conclusion is consistent with s 25(12) Transport Planning and Coordination Act which empowers the Chief Executive to acquire the whole or part of a severed area and confirms the broad powers given to the Chief Executive under the statutory scheme.  Nor is it undermined by Eggar which turned on quite different statutory provisions.  Unlike in Eggar, the statutory scheme in the present case unambiguously empowered the Chief Executive to acquire the land.

[13] As none of the contentions advanced in support of the first ground of appeal are made out, this ground of appeal fails.

Ground 2: jurisdictional error on the face of the record

[14] The appellant contended that there was jurisdictional error of law on the face of the record in the Minister’s decision under s 9(5)(a) Acquisition of Land Act which provides:

“(5)The 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; ….”

[15] The Minister’s decision, the appellant emphasised, was that he had considered this application and recommended that the Governor in Council may take the land.  This, the appellant contended, did not meet the statutory requirements of s 9(5)(a) in that it did not state in terms that the Minister had considered the application, “including all statements and documents, or copies of documents, accompanying” it, and that he had ensured “the land to be taken may…and should be taken for the purpose for which it is proposed to be taken”.  The appellant submitted that the Minister was personally required to consider the application, citing Sita Queensland Pty Ltd v Beattie,[19] but had not done so.

Conclusion on this ground of appeal

[16] The appellant raised a similar argument before the primary judge which was rejected, there being no evidence that the Minister’s decision was not in accordance with the statutory scheme.[20]

[17] The Minister’s decision[21] was attached to the five-page briefing memorandum proposed to the Minister and signed by members of his Department.[22]  Accompanying the memorandum was a large body of material relating to the application to acquire the land.[23]  The most obvious inference to be drawn from this material and the Minister’s decision was that he considered the application, together with the memorandum and the material accompanying it, and decided to recommend that the Governor in Council may take the land.  There was no competing evidence from which it could be reasonably inferred that the Minister did not consider the application as required by s 9(5).  The most rational conclusion from the evidence was that the Minister considered the land should be taken for the purpose for which it was proposed to be taken, namely “for the purpose of transport, in particular, road purposes.”[24]

[18] Contrary to the appellant’s contentions, it was not necessary, in order to comply with s 9(5) or the principle relied on in Sita, for the Minister in considering the application to repeat verbatim the words of s  9(5)(a) or to swear an affidavit that he had done so.  The primary judge rightly identified that this contention was unmeritorious.  There was no jurisdictional error on the face of the record under s 9(5)(a).  It follows that this ground of appeal is not made out.

Ground 3: there was no validly appointed hearing officer under s 25(8) and s 25(12) Transport Planning and Coordination Act for the hearings which occurred on objection

[19] In order to understand this and some subsequent grounds of appeal it is necessary to set out some more background facts.  The process for the acquisition of the appellant’s land commenced with a Land Resumption Request for the purpose of use, “Transport, in particular, road.”  The request was dated 2 October 2012 and signed by Mr Donaghey as “Manager, (Network Planning and Performance) as delegate of the Chief Executive.”  It was addressed to “Director (Property Services)” and requested that: “Once the land required has been gazetted…that…[t]he land be dedicated to road.”  It stated that “No agreements for the taking of land by any of the effected landholders have been obtained.  Therefore arrange for the service of Notices of Intention to Resume pursuant to section 7 of the Acquisition of Land Act 1967.”  It also noted: “Written objections if any, are to be served on…Paul Noonan, Regional Director (South Coast Region) and any objection will be heard by [Mr Donaghey] or [his] nominee a delegate of The Chief Executive”.[25]

[20] On 6 November 2012 the Department’s Director (Property Acquisition and Disposals) sent a letter to the appellant[26] attaching a Notice of Intention to Resume.[27]  The Notice indicated it was from the Director and that the Chief Executive intended to take the appellant’s land “for the purpose of transport, in particular, road purposes.”  It included the information that if the appellant wished to object, it “must send an objection in writing to Regional Director (South Coast Region)” and that the “Manager (Network Planning and Performance), South Coast Region, Department of Transport and Main Roads is the delegate of the Chief Executive appointed to hear objections to the proposed resumption.”

[21] The appellant objected and an objection hearing took place on 20 December 2012 before Mr Donaghey in which the appellant argued against the acquisition of its land.  The record of the objection hearing described Mr Donaghey as Acting Regional Director (South Coast).  The first page of the resulting objection hearing report dated 27 June 2013 also described Mr Donaghey as Deputy Regional Director (South Coast).  The appellant achieved some success in the hearing in that Mr Donaghey recommended that an amended Notice of Intention to Resume be given, reducing the area of the land to be taken.  The amended Notice was sent to the appellant on 17 July 2013 with a covering letter signed by the Director (Property Acquisitions and Disposals), who was also named on the amended Notice, which relevantly stated:

“The decision to commence the process for taking the land was made by the Manager (Network Planning and Performance), South Coast Region, Department of Transport and Main Roads, as the delegate of the Chief Executive.”[28]

[22] The appellant again objected and asked for another objection hearing which was conducted on 22 August 2013, again by Mr Donaghey who was the Acting Regional Director (South Coast).  The covering page of the resulting objection hearing report dated 18 September 2013 again described Mr Donaghey as Deputy Regional Director (South Coast).  The report recommended that, despite the appellant’s objections, the constructing authority ought to apply to the Minister to take the appellant’s land.  A number of letters to the appellant written between June and September 2013 were signed by Mr Donaghey “for Paul Noonan, Regional Director (South Coast)”.[29]

[23] In this appeal and at first instance, the appellant contended that Mr Donaghey was not a validly appointed officer for the objection hearings for the purposes of s 25(8) and s 25(12) Transport Planning and Coordination Act.  It referred to the instrument of delegation relied on by the Minister and the Chief Executive under the Transport Planning and Coordination Act [30] and Gibbs CJ’s comments in Dainford Ltd v Smith:[31]

“It is simpler to ask directly whether the power has been exercised by the person upon whom it has been conferred and whether it has been exercised in the manner and within the limits laid down by the statute conferring the power.”

[24] It submitted that there was no recorded delegation of power for Mr Donaghey to be the hearing officer for the purpose of s 8 Acquisition of Land Act.  As the land acquired comprised of three separate severances of land, the power of delegation should have specifically referred to s 25(12) Transport Planning and Coordination Act.  The second Notice of Intention to Resume nominated the Regional Director as the person both to receive the written objections and to conduct the objection hearing, but instead the second objection hearing was heard by Mr Donaghey, then described as the Acting Regional Director.  The appellant contended there was no delegation in favour of either Mr Donaghey or Mr Noonan.  It followed, the appellant contended, that the constructing authority did not consider the appellant’s grounds of objection as required by the statutory scheme.

[25] The appellant further emphasised that the letter of 6 November 2012[32] accompanying the first Notice of Intention to Resume was not an effective delegation to the Manager (Network Planning and Performance) as it was signed by “Robert Price” per Director, (Property Acquisition and Disposals).  It similarly emphasised that the letter of 17 July 2013[33] accompanying the second Notice of Intention to Resume was signed “Robert Price per Brad Chandler Director (Property Acquisitions and Disposals).”  It contended that there was no evidence that Robert Price was a delegate of the Chief Executive.  The respondents as model litigants, it submitted, were obliged to establish the lawfulness of the delegation.  The appellant contended it was entitled to have its objection hearings before Mr Noonan as Regional Director (South Coast) as the objections were matters of grave importance involving large sums of public money and complex road engineering.

[26] The appellant, somewhat guardedly, also submitted, both on appeal and at first instance, that Mr Donaghey was not independent.[34]

Conclusion on this ground of appeal

[27] As I have explained, under s 25 Transport Planning and Coordination Act, the Chief Executive was empowered to acquire, hold dispose of or otherwise deal with property for the purpose of transport or for an incidental purpose.  Under s 25(8), the Chief Executive was a constructing authority within the meaning of the Acquisition of Land Act and may take land for the purposes mentioned in s 25(1), (2) and (3).  Section 25(12) provided: “If an acquisition of land by the chief executive would sever land of the owner from other land of the owner, the chief executive may, with the  Minister’s approval, acquire by agreement or resumption the whole or a part of the severed area.”

[28] The Acquisition of Land Act s 9(1) empowered the Chief Executive to apply to the Minister to take the land if after considering all objections he was of the opinion that land was required for road purposes.[35]  Under s 7(3)(e)(iii) Acquisition of Land Act, objections to such taking of land may be heard by the Chief Executive’s delegate.  The Acquisition of Land Act s 8(2)(b) required the Chief Executive or his or her delegate to hear the objections; if the delegate heard the objections, the delegate must report to the Chief Executive who must consider the objections.

[29] The Transport Planning and Coordination Act s 37(1) allowed the Chief Executive to delegate a function or power under this or another Act.  The Acts Interpretation Act 1954 (Qld) s 27A(1) authorised the delegation of a function or power to a person either by name, or to the holder of a specified office by reference to the title of the office.  That Act’s s 27A(9)(b) provided that a delegated function or power may be exercised by the person from time to time occupying or acting in the specified office.  The delegation relied on in this case[36] relevantly delegated the powers in s 25(1), (2), (3), (8) and (12).[37]  Designated delegates who could exercise s 25(1), (2), (3), (8) and (12) powers included those who held the position of “Director”.  Both the original Notice of Intention to Resume and the amended Notice were signed by a Director and issued from the office of that Director who held the necessary delegation of s 25 powers.  Further, a Director applied to the Minister under s 9(1) Acquisition of Land Act requesting that the appellant’s land be taken under that provision.[38]

[30] The primary judge dealt with the appellant’s submissions as to delegation in some detail.[39]  Her Honour noted that Mr Donaghey was acting as Regional Director for much of the relevant period.[40]  The form completed by Mr Donaghey which initiated the resumption process was, her Honour considered, when he was Manager (Network Planning and Performance).  In doing so he was the delegate of the constructing authority (the Chief Executive) to hear objections at the time the first Notice of Intention to Resume was issued.  At that first objection hearing he was the Deputy Regional Director (South Coast) acting as Regional Director.  He remained in those positions at all material times until after the end of the second objection hearing.[41]  Acquisition of Land Act s 7(3)(e)(iii) provided that objections may be heard by the constructing authority or its delegate.  There was no limitation on that power of delegation.  Mr Donaghey clearly had the delegated power to conduct the objection hearings.[42]

[31] Her Honour also considered that even if Mr Donaghey was not properly delegated, such an irregularity would not render the resumption process invalid.  Applying the Project Blue Sky Inc v Australian Broadcasting Authority test,[43] as adopted in Module2 Pty Ltd v Brisbane City Council,[44] the legislative purpose was not to invalidate acts such as those done by Mr Donaghey in conducting objection hearings.  The degree of any departure from statutory requirements, her Honour found, was not substantial; Mr Donaghey was qualified at the time he heard both sets of objections and these hearings preceded any decision adverse to the appellant.[45]

[32] The appellant has not persuaded me there was any error in the primary judge’s conclusion that the relevant delegation power in respect of the objection hearings clearly arose under s 7(3)(e)(iii) Acquisition of Land Act.  It followed that the delegations made under the Transport Planning and Coordination Act, together with s 25(8) and s 25(12) of that Act, were unhelpful in considering the lawfulness of delegations relating to the objection hearings.

[33] Even accepting the appellant’s contention that “Robert Price” signed the letters to the appellant on 6 November 2012 and 17 July 2013 “per” a delegated Director, this does not diminish the lawfulness of the delegation to conduct the objection hearings.  The first Notice of Intention to Resume named Mr Donaghey, then Manager (Network Planning and Performance), as the Chief Executive’s delegate to hear the objections.  The second Notice of Intention to Resume nominated the Regional Director (South Coast Region) as the Chief Executive’s delegate to hear the objections.  Mr Donaghey was acting in that role at all times relevant to the second objection hearing.  These two Notices were adequate instruments of delegation for the purpose of s 7(3)(e)(iii).

[34] As to any suggestion that Mr Donaghey lacked independence, the appellant provided no evidence to support that contention and it cannot be sustained.

[35] As none of the appellant’s arguments in support of this ground of appeal are made out, this ground of appeal fails.

Ground 4: the appellant was denied procedural fairness

[36] The appellant’s first contention under this ground of appeal was that Mr Donaghey did not have the power to commence the process for the acquisition of land; nor did he have the power to nominate himself as the objection hearing officer.  The purported appointment of Mr Donaghey by the first Notice of Intention to Resume and the change from Mr Noonan to Mr Donaghey in the second Notice of Intention to Resume, it claimed, denied it procedural fairness.

[37] Its second contention under this ground of appeal was that it was denied procedural fairness in the hearing process itself under s 7 and s 8 Acquisition of Land Act.  It contended that s 8(2) Acquisition of Land Act, read together with s 25(12) Transport Planning and Coordination Act, entitled it to be further heard on the briefing memorandum to the Minister which made no reference to the severance areas or to s 25(12).  To not provide it with a copy of the memorandum and an opportunity to comment on it was to deny it natural justice.  It further contended that the memorandum was infected with an error of law.  The primary judge was wrong to conclude that any matter pertaining to the amount or payment of compensation was not a ground of objection.  Acquisition of Land Act s 20(1)(a) and (3) did not exclude s 25(12) Transport Planning and Coordination Act considerations from being relevant to objections made under s 7 and s 8 Acquisition of Land Act and the requirement for the Minister to make a non-delegable decision under s 36B(2) of that Act.  That provision, the appellant emphasised, stated that the Minister cannot delegate functions under s 9 (Ways in which land is to be taken) “in relation to an application for the taking of land if an objection was received in response to a Notice of Intention to Resume the land.”  The Minister, the appellant argued, did not give proper consideration to its objections before recommending that the Governor in Council may take the land.

[38] The appellant’s final contention under this ground of appeal was that it was denied procedural fairness in that s 9(1) Acquisition of Land Act required that due consideration be given by the Chief Executive to all objections.  The failure to give it any opportunity to respond to the Department’s memoranda of 24 October 2013 and 29 October 2013 denied it procedural fairness and by the Minister’s decision-making under s 9(5) and s 36B(2) Acquisition of Land Act.

Conclusion on this ground of appeal

[39] As to the appellant’s first contention, for the reasons given in respect of ground 3, the appellant’s attack on the authority of the Chief Executive’s delegation to Mr Donaghey to conduct objection hearings was not substantiated.  Further, both Notices of Intention to Resume were clearly issued by a Director who was the Chief Executive’s delegate under the instrument for delegation for powers including those in s 25(1), (2), (8) and (12).[46]  It cannot demonstrate any denial of procedural fairness in this respect.

[40] This contention also appeared to include that the Director who issued the Notices was unaware that the amended Notice had issued so that the Notice was invalid.  The appellant has not taken this Court to evidence sufficient to justify the drawing of such an inference.  In the absence of such evidence, I am satisfied that the Director as delegate for the Chief Executive considered all matters of objection raised by the appellant prior to issuing the amended Notice of Intention to Resume.  Contrary to the appellant’s contentions, it has not established that the amended Notice of Intention to Resume was tainted by the original Notice.  This contention is not made out.

[41] The appellant’s second contention in this ground of appeal attempted to revisit, by a slightly different route, aspects of its unsuccessful first ground of appeal.  There is no reason on the evidence to conclude that the Minister did not personally take into account the appellant’s objections which, as I have explained, were referred to in the briefing memorandum to the Minister’s decision.  Detailed information about the objections accompanied the memorandum.  Even accepting that the question of loss of road access to the appellant’s businesses resulting from the resumption was relevant to the Minister’s decision in making his recommendation to the Governor in Council, the Minister apparently concluded that the factors in favour of acquiring the land outweighed the disadvantage to the appellant’s businesses, and that the Department would work with the appellant to minimise access problems and other disruptions.  Of course, as the primary judge identified, any closure of road access to the appellant’s businesses remained highly relevant to any award of compensation under s 20 Acquisition of Land Act.  There was nothing in s 7 and s 8 Acquisition of Land Act and s 25(12) Transport Planning and Coordination Act which entitled the appellant to view and object to the briefing memorandum.  There was no evidence that the Minister did not lawfully exercise his discretion in recommending the Governor in Council may take the appellant’s land.  The appellant has not demonstrated any denial of procedural fairness in these respects.

[42] The appellant’s final contention in this ground of appeal was an attempt to reargue earlier unsuccessful contentions by way of a slightly different route.  As I have explained in discussing ground 2, s 9(5) Acquisition of Land Act required the Minister to consider every application for the acquisition of land, including all statements and documents or copies of documents accompanying the application, to ensure that the land to be taken may and should be taken for the purpose for which it is proposed to be taken; the Chief Executive must also take reasonable steps to comply with s 7 (Notice of intention to take land) and s 8 (Dealing with objections).  As noted when discussing the previous contention, s 36B(2) Acquisition of Land Act provided that the Minister cannot delegate functions under s 9 in relation to an application for the taking of land, if an objection was received in response to a Notice of Intention to Resume the land.  The appellant’s particular complaint is that it should have had an opportunity to respond both to the Department’s response, dated 24 October 2013,[47] to the appellant’s objections, and to the briefing memorandum dated 24 October 2013 upon which the Minister acted in recommending the Governor in Council take the land.[48]  The applicant has not pointed to any statutory or other entitlement allowing it to comment at that late stage, after it had objected and participated in the objection hearings to the amended Notice of Intention to Resume as it was entitled under s 7, s 8 and s 9.  As the primary judge noted when dealing with this contention, the appellant did not show there was anything in the Department’s response of 24 October 2013 or in the briefing memorandum which was substantially new to the appellant and about which it had not already been given an opportunity to be heard.[49]  There was no denial of procedural fairness in this respect.

[43] None of the appellant’s contentions concerning this ground of appeal establish that it was denied procedural fairness during the process for the acquisition of its land, thereby effecting the Minister’s decision.  The appellant’s fourth ground of appeal is not made out.

Ground 5: compliance with s 8(2) and s 8(2A) Acquisition of Land Act in the making of the decision in respect of the amendment to Plan D and the Minister’s decision.

[44] Section 8(2) required the Chief Executive to consider the grounds of objection to the taking of any land, including the matters put forward by the objector in support of such grounds and, if there has been an objection hearing before a delegate, the resulting report by the delegate.  Under s 8(2A), if upon such consideration the Chief Executive considered the resumption should be discontinued or that the Notice of Intention to Resume should be amended, it may discontinue the resumption or amend the Notice.

[45] The contentions in support of this ground of appeal appeared to overlap with earlier submissions.  I apprehend that the appellant again relied on a report dated 24 October 2013[50] prepared by SCR Property for the Department in response to the appellant’s submissions dated 2 October 2013 concerning the second objection hearing report of 18 September 2013.[51]  The appellant complained that it did not receive a copy of that report until it was produced during the primary court proceedings and as a result it did not have an opportunity to respond to it before the Minister recommended the acquiring of the land.  This, it argued, denied it natural justice.

[46] The appellant referred this Court to a revised Plan C[52] which it contended showed by overlay the land to be acquired as depicted in Plan D.[53]  This was relevant to the amended Notice of Intention to Resume[54] to demonstrate the deleterious impact of the land resumption on its unresumed land.[55]  The appellant contended that the changes to what was proposed in briefing material provided to the Minister at the time of his decision were very different to what the appellant had been led to believe was proposed.  In fact, the acquisition of its land would affect many other land owners and require major engineering works, impacting upon Energex and on existing water easements.  The appellant contended that it should have been entitled to respond by pointing out serious engineering questions which required considered expert attention.  Plan D was on A4 size paper and was difficult to read so that the Minister was unlikely to have appreciated its true effect, particularly regarding the severance areas on the appellant’s businesses.  The Minister did not have the benefit of objections from the appellant which would have raised matters such as the undesirable impact of heavy truck usage on the proposed road which was in extreme proximity to residential development.  As a result, the appellant argued that the Minister did not properly exercise his discretion in recommending that the Governor in Council may acquire the land.  The appellant also submitted that once the severance of its land was completed and the land acquired, it will be unable to register in the Titles Office remaining land which did not have road access.

Conclusion on this ground of appeal

[47] As to its first contention in this ground of appeal, the appellant was given a copy of the first objection hearing report; the report recommended a copy be given to the appellant with an invitation that it agree to the proposed amended Notice of Intention to Resume and because it attached an amended resumption plan.[56]  The appellant also received a copy of the second objection hearing report.[57]  It made responsive submissions to that report in October 2013.[58]  The document dated 24 October 2013 was prepared for the Department in response to those submissions.  As I have explained in discussing the previous ground of appeal, s 7 and s 8 Acquisition of Land Act anticipate finality to the objections process once those provisions are met, as they were in this case.  The appellant has not demonstrated that it had any entitlement, statutory or otherwise, to a copy of the Department’s report dated 24 October 2013.  As it was not entitled to a copy of that report, it had no right to respond to it.  This contention is baseless.  There has been no contravention of s 8(2) or (2A) in this respect.

[48] As to the appellant’s second contention in this ground of appeal, Plan D was referred to and attached to the amended Notice of Intention to Resume dated 17 July 2013 received by the appellant on 19 July 2013.[59]  Plan D was included in the material with the briefing memorandum to the Minister.[60]  For the reasons stated previously, in light of the material with which the Minister was briefed before recommending that the Governor in Council may acquire the land, there was no reason to conclude that the Minister did not appreciate the impact and effect of the proposed acquisition of the appellant’s land.

[49] The appellant seemed to contend, I think under this ground of appeal, that one purpose of acquiring the land was to allow Energex to place cables on it and that the appellant did not receive notice of this in sufficient time to object.  The primary judge found that no inference could safely be drawn that the land was being resumed for Energex’s purposes.[61]  But in any case, the appellant has not referred this Court to evidence as to the late notice of the positioning of Energex cables such as might form a legitimate basis under the statutory scheme for it to object, s 7 and s 8 having been complied with.  This contention is not made out.

[50] As none of the contentions raised in this ground of appeal are made out, this ground of appeal also fails.

Conclusion

[51] The appellant has not established any of its grounds of appeal.  It follows that the appeal must be dismissed with costs.

[52] Order: Appeal dismissed with costs.

[53] FRASER JA:  I agree with the reasons for judgment of McMurdo P and the order proposed by her Honour.

[54] MULLINS J:  I agree with the President.

Footnotes

[1] See the plans in the affidavit of Leslie John Cowell, sworn on 19 December 2013, Exhibit “LJC 6” at p 35, AB 215.

[2] Hammercall Pty Ltd v Minister for Transport and Main Roads & Ors [2015] QSC 114, [54].

[3] [1979] Qd R 501.

[4] Above, 503.

[5] Affidavit of Bradley Lewis Chandler, affirmed 27 March 2014, [4(i)] at p 3, AB 221-223, Exhibit “BLC 2” at pp 800-804, AB 1020-1024.

[6] Hammercall Pty Ltd v Minister for Transport and Main Roads & Ors [2015] QSC 114, [41].

[7] Above, [42].

[8] Above, [44].

[9] Above, [46].

[10] Above, [45].

[11] Above, [42].

[12] Above, [46].

[13] Transport Planning and Coordination Act s 25(1).

[14] See Transport Planning and Coordination Act s 25(8).

[15] See Acquisition of Land Act pt 2, div 2, ss 7-14.

[16] Hammercall Pty Ltd v Minister for Transport and Main Roads & Ors [2015] QSC 114, [33].

[17] Above, [54].

[18] See Transport Planning and Coordination Act s 26.

[19] [2000] 2 Qd R 433 (Williams J), 435 [5].

[20] Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114, [53].

[21] Above n 5, Exhibit “BLC 2” at p 805, AB 1025.

[22] Above, pp 800-804, AB 1020-1024.

[23] See above n 5, [4] at pp 2-3, AB 222-223 and Exhibit “BLC 1” at pp 6-798, AB 226-1018.

[24] See above n 1, Exhibit “LJC 2” at p 4, AB 183; See also above n 5, Exhibit “BLC 1” at p 14, AB 234.

[25] Above n 5, Exhibit “BLC 1” at pp 17-18, AB 237-238.

[26] See above n 1, Exhibit “LJC 3” at p 7, AB 186.

[27] Above at pp 8-9, AB 187-188.

[28] Above, Exhibit “LJC 4” at p 15, AB 194.

[29] See, eg, above n 5, Exhibit “BLC 1” at p 119, AB 339.

[30] Affidavit of Bradley Lewis Chandler, affirmed 10 June 2014, Exhibit “BLC 3” at pp 1-21, AB 1242-1262.

[31] (1985) 155 CLR 342, 349.

[32] Above n 26, AB 186.

[33] Above n 5, Exhibit “BLC 1” at p 19, AB 239.

[34] The appellant referred to above, Exhibit “BLC 1” at p 115 [7], AB 335; See also Exhibit “BLC 1” at p 146, AB 366.

[35] Acquisition of Land Act s 8(2)(b).

[36] Above n 30, Exhibit “BLC 3” at pp 1-21, AB 1242-1262.

[37] Although the delegations states “25(10)” the description of the delegated powers as the “power to acquire the whole or part of severed land” makes clear that this is a typographical error and should read “25(12)”. See above, p 14, AB 1255.

[38] Above n 5, Exhibit “BLC 2” at pp 800-804, AB 1020-1024.

[39] Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114, [12]-[25].

[40] Above, [20].

[41] Above, [21]-[22].

[42] Above, [23].

[43] (1998) 194 CLR 355, 389.

[44] [2006] QCA 226, [12].

[45] Hammercall Pty Ltd v Minister for Transport and Main Roads & Ors [2015] QSC 114, [25].

[46]See above n 1, Exhibit “LJC 3” at p 8, AB 187; above n 1, Exhibit “LJC 4” at p 15, AB 194; above n30, Exhibit “BLC 3” at pp 9-10, AB 1250-1251.

[47] Referred to in above n 5, Exhibit “BLC 2” at p 803, AB 1023; Exhibited at above n 5, Exhibit “BLC 1” at p59, AB 279.

[48] Above n 5, Exhibit “BLC 2” at pp 800-804, AB 1020-1024.

[49] Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2015] QSC 114, [51]-[52].

[50] Above n 5, Exhibit “BLC 1” at p 59, AB 279.

[51] Above, Exhibit “BLC 1” at pp 55-58, AB 275-278.

[52] Affidavit of Leslie John Cowell, sworn on 14 May 2014, Exhibit “LJC 15” at p 97, AB 1163.

[53] Above n 1, Exhibit “LJC 2” at p 6, AB 185.

[54] Above.

[55] Appeal hearing, T1-49, lines 10-24.

[56] Above n 5, Exhibit “BLC 1” at p 333, AB 553.

[57] Above, Exhibit “BLC 1” at pp 85-97, AB 305-317.

[58] Above, Exhibit “BLC 1” at pp 53-58, AB 273-278.

[59] See above n 1, [7] at p 2, AB 176; exhibited at Exhibit “LJC 2” at pp 4-6, AB 183-185.

[60] Above n 5, [4]-[5] at pp 2-3, AB 222-223.

[61] Hammercall Pty Ltd v Minister for Transport & Main Roads & Ors [2014] QSC 114, [47].

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:

    [2016] QCA 95

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fraser JA, Mullins J

  • Date:

    15 Apr 2016

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)