Module2 Pty Ltd v Brisbane City Council
[2006] QCA 226
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Module2 Pty Ltd v Brisbane City Council[2006] QCA 226
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Module2 Pty Ltd v Brisbane City Council[2006] QCA 226
Module2 Pty Ltd v Brisbane City Council[2006] QCA 226
SUPREME COURT OF QUEENSLAND
CITATION: | Module2 P/L v Brisbane CC [2006] QCA 226 |
PARTIES: | MODULE2 PTY LTD ACN 010 936 553 |
FILE NO/S: | Appeal No 3732 of 2006 SC No 10851 of 2005 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED EX TEMPORE ON: | 19 July 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 July 2006 |
JUDGES: | Williams JA, Keane JA and Holmes JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. Appeal dismissed with costs |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the appellant is the registered owner of land currently used for sport and recreation purposes – the respondent gave notice to the appellant pursuant to s 7 of the Acquisition of Land Act 1967 (Qld) of its intention to resume the land – whether an error in the notices of intention to resume invalidated those notices – whether the land was being resumed for an improper purpose Acquisition of Land Act 1967 (Qld), s 5(1)(b), s 7, s 10(1) Judicial Review Act 1991 (Qld), s 20 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, applied |
COUNSEL: | K S Howe for the applicant/appellant R G Bain QC, with M A Williamson, for the respondent |
SOLICITORS: | Colwell Wright for the applicant/appellant Brisbane City Council Legal Practice for the respondent |
WILLIAMS JA:
(1)At first instance the appellant sought a statutory order of review pursuant to section 20 of the Judicial Review Act 1991 of the decision made by the respondent on 29 November 2005 under section 10(1) of the Acquisition of Land Act 1967, ("the Act"). The Court is concerned with the provisions of the Act as they applied as at 29 November 2005. The application was dismissed and the appellant now appeals to this Court.
(2)Section 5(1)(b) of the Act provides that a local government may take land under the Act for any purpose set out in the Schedule which the local government may lawfully carry out. The Schedule to the Act sets out numerous purposes for which land may be taken under and subject to the Act. Included in those purposes are "parks" and "recreation grounds". It is clear from a reading of the Schedule that each stated purpose is not mutually exclusive and a proposed user of the land may well fall under a number of the purposes stated therein. It is clear, however, that before a local government can lawfully take land under the Act, the proposed use of the land would have to be covered by at least one of the purposes stated in the Schedule. It should also be noted that section 5(2) provides that the power to take land for a purpose stated in the Schedule includes power to take land "for any purpose incidental to the carrying out" of that purpose.
(3)Section 7 then provides that the "constructing authority", in this case the respondent local government, proposing to take any land "shall serve as prescribed by this section the notice ... prescribed by this section". Subsection 3 thereof then prescribes what is required by the notice of intention to resume. It provides:
"A notice of intention to resume shall be in writing and shall:
(a)Specify the particular purpose for which the land to be taken is required; and
(b)State the description of the land to be taken ...
...
(d)State that the person to whom the notice is directed may, on or before the date specified in the notice serve upon the constructing authority...an... objection in writing to the taking of the land; and
(e)In relation to the objection mentioned in paragraph (d) set out:
(i)that the objection must state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds; and
(ii)that any matter pertaining to the amount or payment of compensation is not a ground of objection; and
(iii)that an objector who states in the objection that the objector desires to be heard in support of the grounds of the objection may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice; and
(f)State that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters."
(4)Then comes section 10(1) which is in the following terms:
"If within the time stated in the notice of intention to resume no objection is made or if, after due consideration of all objections, Brisbane City Council is of opinion that the land in question is required for the purpose for which it is proposed to be taken, Brisbane City Council may resolve accordingly and apply for the taking by it of the land."
(5)It has been assumed without argument that a resolution under section 10(1) of the Act is a decision reviewable pursuant to the Judicial Review Act.
(6)The appellant is the registered owner of land situated at 120 Lemke Road, Taigum ("the land"). The land is currently zoned and used for sport and recreation purposes. On 21 July 2005 the respondent gave notices pursuant to the Act of its intention to resume the land for park purposes.
(7)One of the appellant's principal contentions is that the notices to resume were invalid because they did not comply with the requirements of section 7 of the Act. In particular they did not comply with subsection 3(f) because instead of referring to "and all consequential matters", the notices said, "in all consequential matters". It was said that the typographical error of including the word "in" instead of the word "and" invalidated the notices and in consequence the respondent was not entitled to proceed to make a decision pursuant to section 10(1) of the Act.
(8)The notices of intention to resume stated that the respondent intended to take the land "for park purposes, more particularly described in the Statement of Reasons herewith". The accompanying Statement of Reasons provided a page and a half of detail as to the proposed user. It referred to the fact that the land was currently being used "for community sport activities" and went on to state: "Acquisition of the site by Council would enable the existing range of community uses to continue. The site operations at a district and sub-regional level providing for training, competition and social activities within the local and wider community." It went on to say that if the land in question was not acquired by the respondent it would be necessary for it to "acquire and develop another sporting park in the user catchment surrounding the site".
(9)The appellant, through its solicitor, formally objected to the notices of intention to resume. One ground of objection relevant for present purposes was that the notices stated that the land was being resumed "for park purposes" whereas that was not the respondent's "true intention and therefore the Council is purporting to use its power of resumption under the Act for an improper purpose". That objection was particularised as being that the respondent did not intend to use the land as a park but to use it for sport and recreational purposes. The objections raised by the appellant were duly considered by the respondent and it was decided on 29 November 2005 to proceed with the resumption. It was resolved that the respondent would make application to the Department of Natural Resources and Mines for approval to the proposed resumption. That decision was communicated to the appellant's solicitors by letter dated 1 December 2005.
(10)On the hearing of the application to review the respondent's decision the appellant raised for the first time the error in the notices of intention to resume and also relied on the objection taken that the land was being resumed for an improper purpose.
(11)Justice Muir in dismissing the application concluded that the literal error in the notices of intention to resume did not invalidate the notices and that the purpose for which the land was to be taken was the purpose specified in the notices of intention to resume. On appeal it is contended that his Honour erred in reaching each of those conclusions.
(12)There was agreement at first instance and on appeal that the appropriate test to apply in order to determine whether or not the notices were invalid was that formulated by Justices McHugh, Gummow, Kirby and Hayne in Project Blue Sky v. Australian Broadcasting Authority (1998) 194 Commonwealth Law Reports 355 at 389. Ultimately the question will always be one of statutory construction; whether the legislative purpose was to invalidate any act that failed to comply with the statutory requirements. As was said by their Honours:
"The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied."
(13)In my view it is usually of significance to evaluate the degree of departure from the statutory requirements. The conclusion will often be reached that substantial compliance with the statutory requirements is sufficient; provided that the recipient of the notice is made aware of all matters provided for by the statutory provision, departure from the form may not have the consequence of invalidating the notice. That would seem to be recognised by section 10(1C)(b) of the Act which obliges the Minister to ensure that the local authority has "taken reasonable steps to comply with section 7 and 8". Such a provision hypothesises that there has not been strict compliance with section 7. Further, section 7(5) of the Act would appear to deal with fundamental non-compliance and provides that is not necessarily sufficient to invalidate the process. Also the local authority may, by relying on section 8(2A), amend the notice. Those are further indications that failure to comply strictly with the requirements of section 7 will not invalidate the process.
(14)Here the departure was of the most trivial kind. The critical requirement was that the resuming authority give notice that it was willing to negotiate to acquire the land by agreement, and if there was no such agreement it was willing to "treat as to the compensation to be paid". In most cases that is all that would be of material relevance. It is only in exceptional cases that there would be "consequential matters" that would be the subject of "treating" between the parties. The use of the word "in" rather than the word "and" if anything made the last peripheral matter unintelligible. But if any recipient of a notice went to a solicitor, as the appellant did here, the purport of that peripheral notification would be made clear.
(15)It is sufficient to say for the reasons given by Justice Muir and the reasons stated above, the typographical error in the notices was not such as to invalidate them.
(16)As already noted, the notices merely had to specify one of the purposes in the Schedule to the Act as providing the lawful basis for the resumption. Bearing in mind the reference to incidental purposes in section 5(2) of the Act, it was not necessary for the purpose to be limited in a strict sense to what could be regarded as the principal purpose for which the land was to be used. Here, as Justice Muir pointed out, the notices expanded on the expression "park purposes" by referring to the Statement of Reasons. As Justice Muir has amply pointed out in his reasons, both dictionary definitions and common usage essentially equate park purposes with recreational purposes or sporting purposes. To the references included by Justice Muir in his reasons one could add another famous landmark; Cardiff Arms Park. Locally one could refer to many sporting facilities called parks; Lang Park, Albion Park, Bottomley Park, Crosby Park and Marchant Park.
(17)Justice Muir was clearly right in rejecting the submission that the resumption was for an improper purpose.
(18)Further, there is no basis for interfering with the exercise of discretion at first instance.
(19)The appeal should be dismissed.
KEANE JA: I agree. Fundamental to both arguments agitated by the appellant is the proposition that non-compliance with s 7 is intended by the statute to invalidate a decision to institute the process of acquisition under s 10. A clear indication that this proposition cannot be sustained is s 10(1C)(b). This provision plainly assumes that a notice which has not complied with s 7 may be a sufficient foundation for the process of acquisition which follows a decision under s 10(1). I agree with the orders proposed by the presiding Judge.
HOLMES JA: I agree with the reasons of the presiding Judge and Justice Keane and with the orders proposed.
...
WILLIAMS JA: The order of the Court will be appeal dismissed with costs.