Gold Coast City Council v Halcyon Waters Community Pty Ltd
[2011] QLAC 3
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- Unreported Judgment
- Gold Coast City Council v Halcyon Waters Community Pty Ltd[2011] QLAC 3
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Gold Coast City Council v Halcyon Waters Community Pty Ltd[2011] QLAC 3
Gold Coast City Council v Halcyon Waters Community Pty Ltd[2011] QLAC 3
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Gold Coast City Council v Halcyon Waters Community Pty Ltd [2011] QLAC 3 |
PARTIES: | Gold Coast City Council (appellant) v Halcyon Waters Community Pty Ltd ACN 010 212 647 (respondent) |
FILE NO: | LAC012-10 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Appeal against a decision of the Land Court |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 30 May 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 March 2011 |
THE COURT: | Peter Lyons J Mr P A Smith Mr W L Cochrane |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – ADJOINING LAND – resumption – enhancement – where resumed land and retained land separated by a road – whether the word “adjoining” in s 20(3) of the Acquisition of Land Act 1967 (Qld) should be given a wide meaning – natural meaning of the term to be preferred REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – SEVERANCE – resumption – enhancement – resumed land and retained land separated by a road – meaning to be attributed to the word “severed” – whether resumed land must be physically contiguous to retained land to be severed from it – whether common ownership alone will suffice to establish severance – additional connecting factor necessary Acquisition of Land Act 1967 (Qld), s 20(1), s 20(3) Cowper Essex v Local Board for Acton (1889) 14 App Cas 153, considered Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538, considered |
COUNSEL: | M Hinson SC, with B G Cronin, for the appellant D R Gore QC for the respondent |
SOLICITORS: | Gall Standfield & Smith Solicitors for the appellant Anderssen Lawyers for the respondent |
- [1]THE COURT: Land owned by the respondent (Halcyon Waters) was “taken”, in the sense that it was compulsory acquired, under the provisions of the Acquisition of Land Act 1967 (Qld) (AL Act) on behalf of the appellant (Council) on 24 April 2008. In the consequent proceedings for compensation in the Land Court, the Council asserted that it was entitled to set off against the compensation payable, enhancement to the value of other land (Flebus Land), resulting from the carrying out of the works or purpose for which the resumed land was taken (enhancement allegation). The Council’s assertion has been the subject of a separate, preliminary determination in the Land Court, which was determined adverse to it. Hence this appeal.
Background
- [2]Prior to the resumption, Halcyon Waters owned Lot 11 on SP204098.[1] Lot 11 was irregular in shape, with what might be described as a northern extrusion, to the north of which was Broadwater Avenue. A road reserve for Halcyon Way generally separated the northern extrusion from the balance of Lot 11. That part of Lot 11 to the north of Halcyon Way (resumed land) had an area of 4.35 hectares; and the balance of Lot 11 had an area of 14.76 hectares (retained land).
- [3]For the purposes of the resumption, a new plan, SP214275, was created. The resumed land became Lot 101; and the retained land became Lot 1.[2]
- [4]Generally to the east of the northern extrusion, and to the north of the retained land, are four lots, being lots 128-131 on RP79932. Lot 131 adjoins Lot 1 and lies to its north. Lot 131 is to the east of the northern extrusion, including the resumed land. Prior to the resumption, the road reserve for Halcyon Way terminated on the western boundary of Lot 131.
- [5]Lots 130, 129 and 128 are located sequentially to the east of Lot 131. Lots 130 and 129 adjoin the northern boundary of Lot 1. There is a common boundary point at the north eastern corner of Lot 1 and the south western corner of Lot 128.
- [6]Other land taken on 24 April 2008 included Lot 131, and part of Lot 130.
- [7]Lots 128 and 129 are referred to as the Flebus land. There was evidence that the registered proprietor of this land was Vanda Bruna Flebus. Ultimately, if otherwise available, the enhancement allegation may require factual investigation of the nature of the relationship between Halcyon Waters and Ms Flebus; and accordingly, the point of present concern has been determined without reference to any potential issue about whether Halcyon Waters has a relevant interest in the Flebus land.
- [8]The enhancement allegation was more fully set out in a document referred to in the proceedings in the Land Court, and described, in part, as a summary of facts and contentions.
- [9]In the proceedings in the Land Court, the Council relied upon a particular basis for the enhancement allegation, more readily understood after reference to the provision of the AL Act governing the determination of compensation.
Statutory provision for assessment of compensation
- [10]The statutory provision relied upon by the Council is found at s 20 of the AL Act, which is as follows:
“20 Assessment of compensation
- (1)In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely—
- (a)the severing of the land taken from other land of the claimant;
- (b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
- (2)Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
- (3)In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
- (4)But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”
- [11]Enhancement of the value of other land is made relevant in the assessment of compensation by s 20(3) of the AL Act. The other land to which regard is to be had for that purpose is identified in s 20(3) as “any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken”. This expression is apt to identify two classes of land which may, for convenience, be referred to as “adjoining land” and “severed land”. At the hearing in the Land Court, the Council asserted only that the Flebus land was “adjoining land”; it did not assert that it was “severed land”, as a basis for the enhancement allegation.
Decision of the Land Court
- [12]The learned President noted that the proceedings before her were conducted on the basis that the retained land (Lot 1) would not be enhanced in value as a result of the resumption. On the assumption that the retained land might be said to adjoin the resumed land, and the Flebus land might be said to adjoin the retained land, her Honour considered whether the absence of any enhancement to the retained land precluded any reliance on enhancement of value of the Flebus land. Her Honour concluded, in favour of the Council, that it did not.
- [13]Her Honour considered whether the Flebus land could be said to adjoin the resumed land. She noted that there was authority for construing the word “adjoining” both narrowly and widely, the narrow meaning involving “physical contiguity”. Her Honour adopted the narrow meaning, relying on a number of earlier authorities.[3]
- [14]In light of the limited basis relied upon by the Council for the enhancement allegation, her Honour ruled that the relevant paragraphs of the summary of facts and contentions should be stuck out.
Contentions of the parties
- [15]The Council submits that the word “adjoining” in s 20(3) should be given a wider meaning, extending to land which “is or lies close to or neighbours on” the land taken. Its submissions note the two categories of land referred to in s 20(3), earlier in these reasons referred to as adjoining land and severed land. It was submitted that they could not be of identical content, for otherwise one category would be superfluous. It was then submitted that ordinarily, land which is severed from the resumed land is land which is physically contiguous with or which immediately adjoins the resumed land. It was then submitted that it was necessary to give a wide meaning to the word “adjoining” in s 20(3), in order to give it any effective operation.
Flebus land does not adjoin resumed land
- [16]It will be apparent that the Council’s submissions depend entirely on the construction of the language of s 20(3) of the AL Act.
- [17]The submissions made on behalf of the Council depend upon the meaning to be attributed to the expression “land… severed (from the land taken)”. References to severance in the context of legislation dealing with compensation for the compulsory taking of land are not uncommon. An example appears in s 20(1) of the AL Act, which extends compensation to include damage caused by “the severing of the land taken from other land of the claimant”.
- [18]In Cowper Essex v Local Board for Acton,[4] a question arose as to whether compensation extended to injury done to other land of the claimant. Section 49 of the Land Clauses Consolidation Act 1845 provided for the assessment of compensation under a number of heads, including “compensation for the damage, if any, sustained by the owner of the lands by reason of the severing of lands taken from other lands of such owner…”. The land owner sought compensation for such damage to some of his land, that land being separated from the resumed land in part by other property of his, and in part by a railway. It was held that compensation was payable. Lord Watson said:[5]
“I cannot assent to the argument that there can be no severance within the meaning of the Act unless the part taken and the parts left were in actual contiguity. I think the expression ‘the severing’ as it occurs [in the relevant statutory provisions], read in the light of the context, merely signifies that what [those acquiring the land] have acquired is separated from, in the sense that it can no longer be treated by the landowner as part of, the subjects which, until its purchase, he held along with it. … The fact that lands are held under the same title is not enough to establish that they are held ‘with’ each other, in the sense of the Act; and the fact that a line of railway runs through them is, in my opinion, as little conclusive that they are not. I shall not attempt to lay down any general rule upon this matter. But I am prepared to hold that, where several pieces of land, owned by the same person, are so near to each other, and so situated that the possession and control of each gives an enhanced value to all of them, they are lands held together within the meaning of the Act; so that if one piece is compulsorily taken, and converted to uses which depreciate the value of the rest, the owner has a right to compensation.”
- [19]A somewhat similar approach was taken in Crisp & Gunn Co-operative Ltd v Hobart Corporation.[6] A landowner owned three separate parcels of land, which were not contiguous, but were separated by two streets. They were, however, used by the landowner in its general business as a timber merchant. One of them, that which was located at the south-eastern end of the holding, was the subject of a resumption. The landowner made a claim for compensation, including for damages sustained by reason of severance of the resumed land from the land comprising the other two parcels. Of that claim, the High Court said “[w]e have no doubt that this was a case of severance although the three parcels were not contiguous”.[7]
- [20]Both of these cases establish authoritatively that a claim for compensation for damage resulting from the severance of resumed land from other land of a claimant, is not confined to damage suffered in respect of land which is contiguous with the resumed land. It is apparent, however, that something more than common ownership is required to establish that the resumed land has been severed from the retained land. It will be convenient to refer to this additional requirement as a “connecting factor”.
- [21]These cases plainly govern the operation of the provisions of s 20(1) of the AL Act relating to the assessment of compensation by reference to damage caused by the severing of the land taken from other land of the claimant. In s 20(3), enhancement of the value of retained land is available, by way of set-off or abatement, where that enhancement relates to land severed from the retained land, caused “by the carrying out of the works or purpose for which the land is taken.” While an additional qualification is added, namely, the identification of that which causes the severance, which may restrict the circumstances in which enhancement of value might be relied upon, it is difficult to think that the legislature in s 20(3) otherwise intended to adopt a different concept of severance to that which underpins the relevant part of s 20(1) of the AL Act.
- [22]It follows that enhancement of value might be relied upon in relation to land of the claimant from which the resumed land might be said to have been severed, even if the retained land and the resumed land are not contiguous; provided that there is present a “connecting factor”, previously referred to. Indeed, it is conceivable that a landowner might own two parcels of land which are contiguous, where the resumption of one may not result in severance, there being no “connecting factor”. That might be a consequence of a number of factors, such as topography, difference in physical characteristics, or differences in planning controls, such that the ownership of one parcel provides no advantage to the owner of the other parcel.
- [23]Consequently, a basic premise of the submissions for the Council is incorrect, namely, that land severed from the resumed land must be land which previously was physically contiguous with it, or immediately adjoined it.
- [24]Supplementary written submissions for the Council provide what might be thought to be an example of a case where a landowner might have some land resumed, and some of the landowner’s retained land is benefited by the project for which that land is resumed, but any resultant enhancement in the value of some of the retained land would not be available by way of set-off or abatement, unless a wide meaning is given to the word “adjoining” s 20(3).
- [25]It should be noted that there is a degree of arbitrariness in the statutory provisions relating to compensation. A landowner, none of whose land is resumed, and who is adversely affected by the project for which the resumption is carried out, has no right of compensation; whereas a landowner who suffers the loss of a very small portion of land may be awarded a large amount of compensation, principally for injurious affection. Equally, a landowner whose land is resumed, and who has other land which could in no sense be said to be adjoining the resumed land, or severed from it, may enjoy a great enhancement of the value of that other land by reason of the project for which the land is resumed. Again, the statute does not provide for that to be taken into account in the assessment. The provision of an example where, on one construction of the section, some enhancement is not taken into account, is not particularly persuasive. It is of considerably less weight than an examination of the statutory language in context, in the light of long-standing authorities dealing with a closely related topic.
- [26]The natural meaning of the expression “adjoining” in respect of land is that it describes land which touches other land, in the sense that it either has a common boundary, or at least a common boundary point. Usually, the adoption of the natural meaning of a term used, without definition, in the statute is to be preferred.
- [27]In addition, the authorities referred to by the learned President in considering this matter in the Land Court support a narrower view of the meaning of this term.
- [28]It follows that the learned President was correct to conclude that the Flebus land does not come within the description “land adjoining the land taken” found in s 20(3) of the AL Act, and that the Council was not entitled, on this basis, to assert that any enhancement of the value of the Flebus land could be relied upon by way of set-off or abatement, in the assessment of compensation for the taking of the resumed land.
Notice of contention
- [29]Halcyon Waters filed a Notice of Contention, alleging, in essence, that the Council could not rely on the enhancement allegation, when it was not part of its case that the retained land was enhanced in value as a consequence of the resumption. In view of the conclusion that the Flebus land was not land adjoining the land taken, it is unnecessary to consider this issue.
Conclusion
- [30]The appeal should be dismissed.
Footnotes
[1] Much of what follows is based on the appellant’s written submissions. SP204098 was not in the record, but, at the hearing, Lot 11 was identified by reference to SP191072, found in the appeal book (AB) at 110.
[2] See AB at 102.
[3]New Plymouth Borough Council v Taranaki Electric-Power Board [1933] AC 680 at 682; Spillers, Ld v Cardiff (Borough) Assessment Committee [1931] 2 KB 21 at 43; Minister of Works v Antonio [1965] SASR 54; Harding v The Board of Land and Works (1882) 8 VLR(L) 402.
[4] (1889) 14 App Cas 153.
[5] Ibid at 167.
[6] (1963) 110 CLR 538.
[7] Ibid at 548.