Land acquisition : an examination of the principles of law governing the compulsory acquisition or resumption of land in Australia [Seventh edition.] 9780409345971, 0409345970, 9780409347647, 0409347647

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LAND ACQUISITION Seventh edition

LAND ACQUISITION An examination of the principles of law governing the compulsory acquisition or resumption of land in Australia Seventh edition

GARY NEWTON LLB (Sydney), Accredited Specialist Property Law Solicitor, Supreme Court of New South Wales

CHRISTOPHER CONOLLY BA LLB (Sydney), Accredited Specialist Property Law Solicitor, Supreme Court of New South Wales

LexisNexis Butterworths Australia 2017

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Newton, Gary, author Land acquisition/Gary Newton, Christopher Conolly. 7th edition. 9780409345971 (hbk). 9780409345988 (ebk). Includes index. Eminent domain — Australia. Acquisition of property — Australia. Conolly, Christopher John, author.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 1972; second edition 1983; third edition 1991; fourth edition 1996; fifth edition 2004 (reprinted 2008); sixth edition 2009. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Minion and Rotis Semi Sans. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

PREFACE The current push by a number of State Governments and the Commonwealth to provide substantial infrastructure projects has brought the law of compulsory acquisition to public attention. This has resulted in recent criticism of the compulsory acquisition process, changes in the relevant legislation and a number of significant cases considering the application of the legislation. This book, originally written by Douglas Brown, Barrister (who also edited the previous editions), provides a detailed analysis of the law of compulsory acquisition throughout Australia. The book does not attempt to reproduce the compulsory acquisition statutes and regulations as these are readily available on the legislation websites provided by the State and Commonwealth Governments. The primary source of the law to take land compulsorily is the relevant legislation in each of the nine jurisdictions in Australia. The secondary source of the law is the body of judicial precedent on the construction and application of the statutory provisions. The relevant statutes are particularly long and detailed. Additionally, there are approximately over 500 reported judicial decisions of consequence on the nine different resumption statutes referred to in this text. This book is a basic text outlining the principles of one of the more difficult and complex branches of property law. It aims to digest the lengthy legislation and judicial decisions regarding land acquisition and summarise the essential elements of the law in a manner that is simple and concise. This seventh edition of the book includes significant updates to the area of

land acquisition with updated statutory law, contemporary cases and new commentary. Specifically, this edition includes: commentary regarding the recent Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW); a new subsection providing commentary on pre-acquisition losses; and the addition of over 50 new cases across all Australian states and territories. This book should only be used in conjunction with the relevant land acquisition statute of the particular jurisdiction. The critical statutory provisions are summarised and abbreviated in this book. Likewise, many of the judicial decisions on those statutes concentrate on presenting the essential principles as succinctly as the subject permits. We thank Khushaal Vyas for his assistance in preparing the seventh edition of this book. Gary Newton and Christopher Conolly June 2017

TABLE OF CASES REFERENCES ARE TO PARAGRAPHS Abbey Orchard Property Investments Pty Ltd v Sydney City Council (1978) 37 LGRA 230 …. 4.21 Adams v Valuer General [2014] NSWLEC 1005 …. 4.11 Adelaide Fruit & Exchange Co Ltd v Adelaide Corporation (1961) 106 CLR 85 …. 3.32 Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19 …. 1.50, 4.25 Aik Hoe & Co Ltd v Superintendent of Lands & Surveys, First Division [1969] 1 AC 1 …. 4.11 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 …. 1.11 Albany v Commonwealth (1976) 60 LGRA 287 …. 3.43, 4.17 Almona Pty Ltd v Roads and Traffic Authority (NSW) (2008) 160 LGERA 375 …. 4.24 Amstad v Brisbane City Council (No 1) [1968] Qd R 334 …. 1.46 Anthony v Commonwealth [1972–73] ALR 769 …. 1.24 APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2) [2007] FCA 1561 …. 4.25 Arbuckle v Boroondara Shire (1896) 22 VLR 513 …. 2.28 Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 …. 4.11 Ardoch Pty Ltd v Valuer-General (No 2) (2006) 148 LGERA 408 …. 4.7

Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99 …. 3.28 Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94 …. 3.15 Arrow v Electricity Commission of New South Wales (1994) 87 LGERA 363 …. 3.39 Ashfield Municipal Council v Roads and Traffic Authority (NSW) (2001) 112 LGERA 203 …. 1.18 Astway Pty Ltd v Gold Coast City Council (2008) 159 LGERA 335 …. 2.26 Attorney-General v Horton [1999] 2 NZLR 257 …. 2.26 — v Morrison [2002] 3 NZLR 763 …. 2.26 Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1956) 97 CLR 146 …. 1.24 Attorney-General (Vic) (Ex rel Australasian Realty Corporation Pty Ltd) v Housing Commission (1979) 44 LGRA 258 …. 1.43 Auckland Meat Co Ltd v Ministry of Works [1963] NZLR 120 …. 2.8 Auckland Regional Services Trust v Palmer [1996] 3 NZLR 763 …. 2.26 Aufferber v Commonwealth [1980] Qd R 269 …. 2.29 Auld v Dampier to Bunbury Natural Gas Pipeline Land Access Minister (2005) 139 LGERA 52 …. 1.21 Aurukun Shire Council v CEO Office of Liquor and Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1 …. 1.21 Austin v Sheldon [1974] 2 NSWLR 661 …. 3.36 Australian United Navigation Co Ltd v Shipping Control Board (1945) 71 CLR 508 …. 1.11 Australian Water Holdings Pty Ltd, Re [2016] NSWSC 254 …. 4.5 Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 …. 1.27 Balquhidder Pty Ltd v Minister for Environment and Planning (1986) 40 SASR 63 …. 3.17, 3.24, 4.9 Banno v Commonwealth (1993) 81 LGERA 34 …. 3.23

Baringa Enterprises Pty Ltd v Manly Municipal Council (1965) 15 LGRA 201 …. 4.14, 4.26 Barns v Director-General, Department of Transport (1997) 16 QLCR 101 …. 4.15 Basheer & De Conno Pty Ltd v Corani (2005) 92 SASR 468 …. 3.14 Beard v Director of Housing [1961] Tas SR 141 …. 4.13 Bell v Maritime Services Board (1988) 65 LGRA 82 …. 2.8 Bennett v Fitzroy Shire Council [2004] 1 Qd R 494 …. 4.11 Benton v Road Construction Authority (No 1) [1992] 2 VR 489 …. 3.23 — v — (No 2) [1992] 2 VR 495 …. 3.31 Bennett v Fitzroy Shire Council [2004] 1 Qd R 494 …. 4.11 Bergman v Holroyd Municipal Council (1988) 66 LGRA 68 …. 3.17, 3.24, 4.24 Bezjak v Blacktown Municipal Council (1969) 18 LGRA 281 …. 3.19 Beutel v Commissioner of Irrigation and Water Supplies (1975) 2 QLCR 327 …. 4.13 Bickle v Commissioner of Main Roads (1961) 7 LGRA 155 …. 3.28 Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 …. 1.26 Bingham v Cumberland County Council (1954) 20 LGR (NSW) 1 …. 4.1 Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 …. 1.28 Birmingham City Corporation v West Midland Baptist (Trust) Association [1970] AC 874 …. 2.27, 3.26 Blacktown City Council v Roads and Traffic Authority (NSW) (2006) 144 LGERA 265 …. 3.21 Blakes Estates Ltd v Government of Montserrat [2006] 1 WLR 297 …. 3.47 Blefari v Minister (1962) 8 LGRA 1 …. 4.11 Bligh v Minister Administering Environmental Planning and Assessment Act

[2011] NSWLEC 220 …. 3.27 Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75 …. 3.39 Block Buildings Ringwood Pty v Ringwood City (1969) The Valuer 765 …. 4.21 Blocksidge v Queensland [1990] 2 Qd R 1 …. 3.17 Bloss v Brisbane Exposition and South Bank Development Authority (1984) 54 LGRA 405 …. 1.36 Blue Mountains City Council v Mulcahy (1998) 45 NSWLR 577 …. 3.19 Bock v West Tamar Council (2003) 12 Tas R 187 …. 2.15 Boland v Canadian National Railway Co [1927] AC 198 …. 1.44 — v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 …. 3.14, 3.15, 3.17, 4.4, 4.10, 4.26 Brell v Penrith City Council (1965) 11 LGRA 156 …. 3.32 Brettingham-Moore v Federal Commissioner of Taxation (1981) 38 ALR 340 …. 3.51 Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 …. 3.14, 4.9, 4.18 Brisbane City Council and White, Re (1972) 50 LGRA 225 …. 3.8 Brisbane City Council v Amstad (No 3) [1968] Qd R 371 …. 3.39 — v Group Projects Pty Ltd (1979) 145 CLR 143 …. 3.36 — v Mio Art Pty Ltd [2011] QCA 234 …. 3.31 — v Valuer-General (Qld) (1978) 140 CLR 41 …. 4.6, 4.16 Brock, Re [1922] SASR 51 …. 4.15 Broken Hill Proprietary Block 14 Co Ltd v Municipal District of Broken Hill (1901) 1 SR (NSW) Eq 178 …. 4.2 Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 …. 4.3, 4.8, 4.9, 4.19 Bronzel v State Planning Authority (1979) 21 SASR 513; 44 LGRA 34 …. 3.14, 4.10, 4.23

Broughton, Re (1904) 4 SR (NSW) 662 …. 2.29 Brown Bros (Marine) Holdings Pty Ltd v New South Wales Land and Housing Corporation (1991) 72 LGRA 50 …. 3.14, 3.23, 3.29 Brown Bros Pty Ltd v Commonwealth [1948] SASR 61 …. 3.14 Bunney v South Australia (2000) 112 LGERA 213, affirming (2000) 77 SASR 319 …. 3.19 Burns v Eurobodalla Shire Council (2006) 149 LGERA 227 …. 3.15, 3.52 Cairns City Council v CMB No 1 Pty Ltd (1997) 96 LGERA 306 …. 3.17, 3.33, 4.12 Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 …. 1.41 Caloundra City Council v Minister for Natural Resources (1999) 106 LGERA 233 …. 1.18 Cameron v Noosa Shire Council (2006) 145 LGERA 316 …. 1.13 Campbell v Dent (1864) 3 SCR (NSW) 58 …. 1.16 Canberra Freeholds Ltd v Queanbeyan Municipal Council (1973) 27 LGRA 134 …. 4.19 Carson v Minister for Environment and Planning (1990) 70 LGRA 215 …. 3.17, 4.23 Carter v Roads and Traffic Authority (NSW) (2006) 144 LGERA 375 …. 4.24 Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109 …. 3.26, 3.30 Castle Hill Brick, Tile & Pottery Works Pty Ltd v Baulkham Hills Shire Council (1961) 7 LGRA 139 …. 1.25 Cattanach v Water Conservation and Irrigation Commission [1963] NSWR 304 …. 4.1, 4.22 C C Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 …. 1.40 Celtic Agencies Pty Ltd v South Australian Land Commission (1978) 20 SASR 176 …. 4.11, 4.13

Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184 …. 3.17 Chambers v Lane Cove Municipal Council (1971) 21 LGRA 298 …. 2.29 Chapman v Minister [1966] 2 NSWR 65 …. 4.14 Chaudry v Liverpool City Council [2008] NSWLEC 251 …. 1.26 Cheyne v Landsborough Shire Council (1944) QCLLR 42 …. 3.15 Chircop v Transport for New South Wales [2014] NSWLEC 63 …. 4.11 Chang v Laidley Shire Council (2007) 154 LGERA 297 …. 1.8 Christies Stone Quarries Pty Ltd v Corporation of City of Tea Tree Gully (1979) 22 SASR 224 …. 2.7 Cienda Pty Ltd v South Australian Urban Land Trust (1988) 65 LGRA 419, affirmed (1988) 66 LGRA 360 …. 3.17, 4.2, 4.9 Cieslinski v Minister of Works (1978) 20 SASR 55 …. 3.17 Citic Pacific Mining Management Pty Ltd v Valuer General [2016] WASAT 23 …. 4.11 City Hill Pty Ltd v ACT Planning and Land Authority [2015] ACTSC 40 …. 4.28 City of Adelaide v Cinema Place Pty Ltd (2006) 94 SASR 165 …. 3.43 C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 …. 1.13 Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 20 LGRA 1 …. 3.37 Clissold, Re (1907) 7 SR (NSW) 638 …. 2.28 Closer Settlement Ltd v Minister (1942) 17 LGR (NSW) 62 …. 4.19 Clune v Brisbane City Council (1974) 1 QLCR 37 …. 4.16 Clunies-Ross v Commonwealth (1984) 155 CLR 193 …. 1.41 Coastal Estates Pty Ltd v Bass Shire Council (1993) 79 LGERA 188 …. 3.34, 4.20 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 …. 4.4

Collins v Livingstone Shire Council (1972) 127 CLR 477 …. 3.19 Commercial Banking Co of Sydney Ltd v Penrith City Council (1970) 19 LGRA 366 …. 3.35 Commissioner for Main Roads (NSW) v North Shore Gas Co Ltd (1967) 120 CLR 118 …. 1.24, 3.39 Commissioner for Railways v Andreas (1955) 72 WN (NSW) 209 …. 4.16 — v Buckler (1994) 84 LGERA 8 …. 3.47 Commissioner of Highways v Farmer No 2 Pty Ltd [2015] SASCFC 121 …. 3.43 Commissioner of Highways v Shipp Bros Pty Ltd (1978) 19 SASR 215 …. 3.27 Commissioner of Highways (SA) v Tynan (1982) 53 LGRA 1 …. 3.15, 4.2 Commissioner of Railways and Tramways v Attorney-General (NSW) (1909) 9 CLR 547 …. 3.39 Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co (SA) Ltd (1947) 74 CLR 358 …. 3.18 Commonwealth v Arklay (1952) 87 CLR 159 …. 3.14, 4.10, 4.12 — v Hazeldene Ltd (1980) 29 CLR 448 …. 1.25 — v Huon Transport Pty Ltd (1945) 70 CLR 293 …. 1.11 — v Maddalozzo (1980) 29 ALR 161, affirming Maddalozzo v Commonwealth (1979) 25 ALR 437 …. 1.25 — v Milledge (1953) 90 CLR 157 …. 3.23, 3.48 — v Morison (1972) 127 CLR 32 …. 3.33 — v New South Wales (1915) 20 CLR 54 …. 1.13, 1.25 — v — (1923) 33 CLR 1 …. 1.11, 1.21, 1.25 — v Reeve (1949) 78 CLR 410 …. 2.28, 3.15, 3.28, 3.48 — v Tasmania (1983) 158 CLR 1 …. 1.11 — v WMC Resources Ltd (1998) 194 CLR 1 …. 1.11, 1.13 — v Western Australia (1999) 196 CLR 392 …. 1.11

Commonwealth Custodial Services Ltd v Valuer-General (2007) 156 LGERA 186 …. 1.15, 4.15, 4.16 Connor v Bachus Marsh Sewerage Authority (1967) 22 LGRA 123 …. 1.8 Constantino v Roads and Traffic Authority (NSW) (No 2) (2005) 144 LGERA 224 …. 3.47 Corben v Commissioner for Main Roads (NSW) (1983) 52 LGRA 388 …. 1.28 Corisand Investments Ltd v Druce & Co (1978) 248 EG 315 …. 4.25 Corrie v McDermot [1914] AC 1056 …. 1.16, 4.17 Counties Manakau Health Ltd v Dilworth Trust Board [1999] 3 NZLR 537 …. 2.26 Cranbrook Playing Fields Ltd v Valuer-General (1936) 13 LGR (NSW) 62 …. 4.14 Crisp & Gunn Co-operative Ltd v Hobart City Corporation (1963) 110 CLR 538 …. 3.17, 3.23 Criterion Theatres Ltd v Sydney Municipal Council (1925) 35 CLR 355 …. 1.40 Croghan v Hawkesbury City Council (1998) 99 LGERA 375 …. 3.20 Cromer Golf Club Ltd v Downs [1972–73] ALR 1295 …. 1.33 Crompton v Commissioner of Highways (1973) 5 SASR 301; 32 LGRA 8 …. 4.2, 4.11, 4.18 Crouch v Minister of Works (1976) 13 SASR 553 …. 4.18 Cunningham v Commonwealth [2016] HCA 39 …. 1.11 Daly v Manly Municipal Council (1983) 50 LGRA 301 …. 4.24 Dangerfield v Town of St Peters (1972) 129 CLR 586 …. 3.15, 4.2 Dannevirke Borough Council v Governor-General [1981] 1 NZLR 129 …. 1.27 De Battista v Transport for New South Wales [2014] NSWLEC 39 …. 4.9

De Ieso v Commissioner of Highways (SA) (1981) 27 SASR 248 …. 4.18 Deckana Pty Ltd v Northern Territory (1998) 98 LGERA 271 …. 3.48 Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561 …. 3.48 Denning v Ipswich County Council (1989) 69 LGRA 9 …. 1.24 Di Giuseppe v Commonwealth (1983) 51 LGRA 9 …. 4.23 Dillon v Gosford City Council [2011] NSWCA 328 …. 3.47 Director Building and Lands v Shun Fung Ironworks Ltd [1995] 1 All ER 846 …. 3.1, 3.15, 3.23, 3.27, 3.29, 3.30 Director of Public Prosecutions v Le (2007) 15 VR 352 …. 1.8 Dobinson v Lake Macquarie City Council (1994) 82 LGERA 16 …. 3.5 Doherty v Commissioner of Highways (No 2) (1974) 7 SASR 57 …. 3.18, 3.48, 4.9, 4.21 Dolby Australia Pty Ltd v Catto [2004] NSWSC 1196 …. 4.5 Doolan Properties Pty Ltd v Pine Rivers Shire Council [2001] 1 Qd R 585 …. 3.48 Doomben Park Recreation Grounds Pty Ltd v Commonwealth (1954) 13 The Valuer 426 …. 3.15 Dorn v Minister of Public Works (1924) 42 WN (NSW) 8 …. 1.34, 1.40 Doueihi v Roads and Traffic Authority (NSW) [2005] NSWCA 201 …. 3.25 Drake v Brisbane City Council (1973) 40 QCLLR 208 …. 3.37 Duffy v Minister for Planning (2003) 129 LGERA 271 …. 4.6, 4.9 Duncan v Minister of Education [1969] VR 362 …. 2.17, 3.41 Durham Holdings Pty Ltd v New South Wales (2001) 177 ALR 436 …. 1.13 Eckford v Walker (1902) 2 SR (NSW) 369 …. 1.46 Edwards v Chief Commissioner for Railways (1912) 12 SR (NSW) 117 …. 3.9 — v Minister [1964] 2 QB 134 …. 3.33

Electricity Commission of New South Wales (t/as Pacific Power) v Arrow (1994) 85 LGERA 418 …. 4.7 Elense No 15 Pty Ltd v Minister for Public Works (1990) 77 LGRA 418 …. 3.51 Elliott v Bankstown City Council (1986) 59 LGRA 170 …. 4.18 Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1976) 14 SASR 486, appeal dismissed (1979) 142 CLR 351 …. 1.25, 3.18, 3.20, 3.27, 4.1 Enerver v Minister (1933) 3 The Valuer 29 …. 3.15 English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 All ER 726 …. 4.8 Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126 …. 1.37, 1.39, 1.40 Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79 …. 1.5 Federal Commissioner of Taxation v Williamson (1943) 67 CLR 561 …. 3.28, 3.48 Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation (1930) 44 CLR 24 …. 3.51 Feldmayr v Housing Commission (NSW) (1969) 17 LGRA 307 …. 3.28 F Hannan Pty Ltd v Electricity Commission (NSW) [1983] 3 NSWR 282 …. 1.36 Fifteen Lorimer Street Pty Ltd v Secretary, Department of Infrastructure (1977) 97 LGERA 306 …. 3.17 Fisher v Minister (1980) 38 LGRA 412 …. 3.36 Fitzgerald v Fahey (2000) 61 ALD 145 …. 2.23 Fitzpatrick Investments Pty Ltd v Blacktown City Council (No 2) (2000) 108 LGERA 417 …. 3.26 Flannery v Cohuna Sewerage Authority (1976) 51 ALJR 135 …. 3.23, 3.48 Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 129

LGERA 65 …. 3.16 French v Gray, Special Minister of State (Cth) (2013) 301 ALR 679 …. 2.8 Ford v Minister of Housing (NSW) (1964) 18 The Valuer 579 …. 4.18 Gabbay v Minister for Education (1985) 56 LGRA 82 …. 4.10 Gallagher v Brisbane City Council (1975) 2 QCLR 368 …. 3.17 Gallen v Strathfield Municipal Council [1971] 1 NSWLR 122 …. 1.46 Garrett v Lackey (1882) 3 LR (NSW) 237 …. 4.14 Geita Sebea v Territory of Papua (1941) 67 CLR 554 …. 3.19 George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212 …. 3.23 George v R (1979) 6 QLCR 89 …. 3.23 G K Fetterplace Pty Ltd v State Planning and Environment Commission (NSW) (1977) 35 LGRA 164 …. 4.19 G M Damsteegt Ltd v Balclutha Borough [1970] NZLR 877 …. 3.9 Gold Coast City Council v Dobson [2014] QLAC 6 …. 4.23 Gollan v Randwick Municipal Council [1961] AC 82 …. 4.16 Goodwin, Re (1904) 4 SR (NSW) 682 …. 2.29 Googong v Commonwealth (1977) 13 ALR 449 …. 4.12, 4.17 Goold v Commonwealth (1993) 79 LGERA 407 …. 4.15 Gorman, Re (1912) 29 WN (NSW) 195 …. 4.13 Gosford City Council v Green (1980) 48 LGRA 201 …. 4.10 — v Valuer-General (1996) 90 LGERA 413 …. 4.3 Greco v Swinburne Ltd [1991] 1 VR 304 …. 2.28 Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547 …. 3.18, 4.15 Griffiths v Municipal Tramways Trust [1924] SASR 270 …. 3.15 — v Minister for Lands, Planning and Environment (2008) 246 ALR 218 ….

1.15, 1.23, 1.41 — v Northern Territory (No 3) (2016) 337 ALR 362 …. 1.24 G R Willis & Co Ltd v Adelaide Corporation (1962) 108 CLR 1 …. 3.32 Gugusheff v South Australian Urban Land Trust (1990) 55 SASR 268 …. 3.17, 3.18 Hague v Lake Macquarie City Council (1994) 83 LGERA 40 …. 2.21 Haig v Minister Administering National Parks and Wildlife Act 1974 (1994) 85 LGERA 143 …. 3.48 — v — (No 3) (1996) 90 LGERA 408 …. 3.42 Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545 …. 1.21 Halloran & Sealark Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (1999) 105 LGERA 405 …. 1.21 Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28 …. 4.5 Halwood Corporation Ltd v Roads Corporation (1995) 89 LGERA 280 …. 3.23 Harada v Registrar of Titles [1981] VR 743 …. 2.14 Harding v Board of Land and Works (Vic) (1886) 11 App Cas 208 …. 3.33 Harris v Minister for Public Works (NSW) (1912) 14 CLR 721 …. 4.14, 4.16 Harvey v Crawley Development Corporation [1957] 1 All ER 504 …. 3.41 Hayes v Minister for Works (1913) 15 WALR 106 …. 3.28 Health Insurance Commission v Peverill (1994) 179 CLR 226 …. 1.11 Heppingstone v Commissioner of Railways (1901) 3 WALR 63 …. 2.28 Herman v Albury-Wodonga (NSW) Corporation (1982) 27 The Valuer 568 …. 3.16 Hill v Commissioner of Highways [1966] SASR 316 …. 4.21 — v R (1960) 7 QCLR 128 …. 3.17

— v Western Australian Planning Commission (2000) 107 LGERA 229 …. 1.10 Holcim (Australia) Pty Ltd v Valuer-General [2009] NSWLEC 225 …. 4.11 Holland v Goltrass Pty Ltd [1984] 1 Qd R 18 …. 3.36 Home Care Services (NSW) v Albury City Council (2004) 136 LGERA 117 …. 3.37 Horn v Sunderland Corporation [1941] 1 All ER 480; [1941] 2 KB 26 …. 3.1, 3.23, 3.24, 3.41, 4.6 Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151 …. 1.21 Hornsby Shire Council v Roads and Traffic Authority (NSW) (1998) 100 LGERA 105 …. 3.40 Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45 …. 3.27 Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 …. 4.12 — v San Sebastian Pty Ltd (1978) 140 CLR 196, sub nom Housing Commission (NSW) v Broughtam Investments Pty Ltd (1978) 52 ALJR 611 …. 3.20, 3.21, 3.35, 3.37 — v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325, affirmed Tatmar Pastoral Co Pty Ltd v Housing Commission (NSW) (1984) 54 ALR 155 …. 4.10 Howarth v McMahon (1951) 82 CLR 442 …. 1.33 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 …. 4.5 — v — [2016] NSWCA 257 …. 3.34 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 …. 4.25 Hua v Hurstville City Council [2010] NSWLEC 61 …. 3.2, 3.26, 3.40 Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1995) 88 LGERA 297 …. 3.43 Hughes v Doncaster Metropolitan Borough Council [1991] 1 All ER 295 ….

3.25 Hurdis v Minister (1957) 2 LGRA 132 …. 4.11 Hustlers Pty Ltd v Valuer-General [1967] 2 NSWR 567 …. 4.15 Ibos Pty Ltd v DHSH (Australia) Travel Pty Ltd (2007) 152 LGERA 348 …. 1.10 Ironhill Pty Ltd v Transgrid (2004) 139 LGERA 398 …. 1.21 James v Swan Hill Sewerage Authority [1978] VR 519 …. 3.14, 4.1 Jameson v Rail Corporation New South Wales [2014] NSWLEC 83 …. 3.25 Jones v Blue Mountains City Council (1978) 25 The Valuer 502 …. 3.32 — v Commonwealth (No 1) (1963) 109 CLR 475 …. 1.41, 2.8 — v — (No 2) (1965) 112 CLR 206 …. 1.41 — v Gosford Shire Council (1975) 33 LGRA 368 …. 4.1, 4.19 Jovist Pty Ltd v Campbelltown City Council (1970) 19 LGRA 134 …. 3.19, 4.13 JT International SA v Commonwealth [2012] HCA 43 …. 1.9 Kaljo v Minister [1963] NSWR 67137 …. 4.18 Kanak v Commonwealth Pipeline Authority (1997) 73 FCR 198 …. 1.21 Kemp v Gosford City Council (1980) 39 LGRA 266 …. 3.35 Kennedy v Minister for Works [1970] WAR 102 …. 1.46 Kennedy Street Pty Ltd v Minister [1963] NSWR 1252 …. 3.15, 4.14, 4.26 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 …. 4.25 Kerr-Taylor v Attorney-General [2004] 3 NZLR 104 …. 2.26 Kettering v Noosa Shire Council (2004) 134 LGERA 99 …. 1.13, 3.33 Kiely v Minister of Water Resources (1981) 27 SASR 274 …. 3.21 Kilpatrick v Board of Land and Works (1879) 5 VLR (L) 122 …. 4.15

King v Minister for Planning and Housing [1993] 1 VR 159 …. 3.12, 3.23, 3.30, 3.41 Kirela Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (NSW) (2005) 141 LGERA …. 3.41 Lake Macquarie City Council v Luka (1999) 106 LGERA 95 …. 3.10 Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 …. 1.44 Latimer v North Coast National Agricultural and Industrial Society (1938) 17 LVR (NSW) 67 …. 3.18 Laycock v Victorian Railway Commissioners [1917] VLR 556 …. 2.7 Leaf Bros Numurkah v Numurkah and Nathalia Shires (1958) 15 The Valuer 197 …. 4.22 Lee v Director of Public Prosecutions (2009) 75 NSWLR 581 …. 1.8 Leichhardt Municipal Council v Roads and Traffic Authority (NSW) (2006) 149 LGERA 439 …. 1.15, 1.21, 3.15, 4.5 — v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 …. 4.11 Lensworth Finance Ltd v Commissioner of Main Roads (1978) 5 QLCR 261 …. 3.10 Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6 …. 3.31 Leppington Pastoral Co and Department of Administrative Services, Re (1993) 79 LGERA 374 …. 1.31, 1.44 Lion Brewing & Malting Co Ltd v Commissioner of Highways (SA) (1966) 12 LGRA 413 …. 3.29 Lipovsek v Brisbane City Council [2013] QSC 185 …. 2.10 Little v Minister for Land Management (Qld) (1993) 79 LGERA 374 …. 1.31, 1.44 Lodge v Water Conservation and Irrigation Commission (1967) 14 LGRA 88 …. 4.22

London Borough of Newham v Benjamin [1968] 1 All ER 1195 …. 3.37 Longeranong Pty Ltd v Electricity Trust of South Australia (1990) 55 SASR 493 …. 3.39, 4.24 Lord v Sydney City Commissioners (1859) 14 ER 991 …. 1.16 Mabo v Queensland (No 2) (1992) 175 CLR 1 …. 1.13, 1.23 Macarbell Pty Ltd v Roads and Traffic Authority (NSW) (2006) 149 LGERA 217 …. 3.23 MacDermott v Corrie (1913) 17 CLR 223 …. 3.21 MacDonald v SA Railway Commissioners [1909] SALR 135 …. 1.33, 1.43 McBarron v Roads and Traffic Authority (NSW) (1995) 87 LGERA 238 …. 3.26 McDonald v Deputy Federal Commissioner of Land Tax (1915) 20 CLR 344 …. 4.14, 4.15, 4.18 McDonald v Roads and Traffic Authority (NSW) [2009] NSWLEC 105 …. 4.24 McKenzie v Minister for Lands [2011] WASC 335 …. 1.32 McMahon v Sydney City Council (1940) 40 SR (NSW) 427 …. 3.36 — v Minister of Public Works (1995) 86 LGERA 344 …. 3.45 McNamara v Consumer, Trader & Tenancy Tribunal (2005) 221 ALR 285 …. 1.15 Mac’s Pty Ltd v Minister Administering Local Government Act 1993 (NSW) (2007) 155 LGERA 362 …. 1.19 MacTiernan, Minister for Planning and Infrastructure, Re; Ex parte McKay (2007) 151 LGERA 290 …. 1.18 Maidment v Roads and Traffic Authority (NSW) (2006) 153 LGERA 249 …. 4.10 Maori Trustee v Ministry of Works (NZ) [1958] 3 All ER 336 …. 3.16, 4.18 Manly Municipal Council v Lenarker Pty Ltd (1986) 4 BPR 9222 …. 3.37

March v Frankston City (No 1) [1969] VR 350 …. 3.6, 3.34, 4.11, 4.13 Marcus Clark & Co Pty Ltd v Commissioner for Railways (1940) 29 LVR (NSW) 98 …. 4.21 Mario Piraino Pty Ltd v Roads Corporation (No 2) (1990) LGRA 394 …. 3.47 Marriott, Re [1968] VR 260 …. 2.28 Marroun v Roads and Maritime Services [2012] NSWLEC 199 …. 4.2, 4.11 Marshall v Commissioner of Irrigation and Water Supply (Qld) (1973) 29 The Valuer 237 …. 3.18 — v Director-General, Department of Transport (1999) 106 LGERA 349 …. 3.33, 3.48 — v — (2001) 205 CLR 603 …. 1.5, 3.33 Matcam Pty Ltd v Kogarah Municipal Council (1995) 195 LGERA 266 …. 3.23 Mead Johnson Pty Ltd v Minister for Public Works [1967] 2 NSWR 118 …. 3.9 Melbourne Oyster Supply Pty Ltd v Sutherland Shire Council [1967] 1 NSWR 643 …. 1.46 Melbourne Saw Manufacturing Co Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 394 …. 3.51 Melwood Units Pty Ltd v Commissioner of Main Roads (Qld) (1976) 3 QLCR 209 …. 3.14 — v — (1978) 19 ALR 453, further proceedings (1979) 6 QLCR 251 …. 1.15, 3.6, 3.14, 3.20, 4.12 Merivale Hotel Investments Pty Ltd v Brisbane Exposition (1987) 1 QLCR 235 …. 4.13 Merriman v Valuer-General (1931) 11 LGR (NSW) 119 …. 4.22 Meyering v Northern Territory (1987) 47 NTR 21 …. 3.48 Michelotti v Roads Corporation (2009) 26 VR 609 …. 2.17 Midland Railway Co (WA) Ltd v Western Australia [1956] 3 All ER 272 ….

1.25 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 …. 1.23 Mills and Minister for Finance and Administration (2002) 70 ALD 780 …. 3.26 Minister v Florence (1979) 21 SASR 108 …. 3.47, 4.18 — v New South Wales Aerated Water & Confectionery Co Ltd (1916) 22 CLR 56 …. 3.37 — v Stocks & Parkes Investments Pty Ltd (1973) 129 CLR 385 …. 3.32, 4.20 Minister Administering Environment, Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331 …. 4.5 Minister Administering Heritage Act 1977 v Haddad (1988) 67 LGRA 438 …. 3.1 Minister for Army v Pacific Hotel Pty Ltd (1944) 68 CLR 310n …. 3.41 — v Parbury, Henty & Co Pty Ltd (1945) 70 CLR 459 …. 1.10 Minister for Education, Ex parte; Re Henry Lawson Developments Pty Ltd (1970) 91 WN (NSW) 624 …. 2.29 Minister for Environment v Florence (1979) 21 SASR 108 …. 3.47, 4.19 — v Petroccia (1982) 30 SASR 333 …. 3.29, 4.13 Minister for Home and Territories v Lazarus (1919) 26 CLR 159 …. 3.28 Minister for Lands, Planning and Environment v Griffiths (2004) 14 NTLR 188 …. 1.23 Minister for Public Works v Thistlethwayte [1954] 2 All ER 843 …. 3.15, 4.16 Minister for Public Works (NSW) v Duggan (1951) 83 CLR 424 …. 1.37 Minister of State for Army v Dalziel (1944) 68 CLR 261 …. 1.37 Minister of State for Home Affairs v Rostron (1914) 18 CLR 634 …. 3.16 Minister of Works (SA) v Robinson (1965) 13 LGRA 390 …. 3.15 MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 164 …. 4.15 Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120 …. 1.32

Momcilovic v R (2011) 245 CLR 1 …. 1.13 Mood v Cowra Shire Council (1999) 103 LGERA 260 …. 3.19 Mooliang Pty Ltd v Shoalhaven City Council (2001) 114 LGERA 45 …. 1.21, 3.15 Moreton Club v Commonwealth (1948) 77 CLR 253 …. 3.12 Morison v Commonwealth (1971) 34 LGRA 273 …. 3.33 Morrison v Commissioner of Main Roads (NSW) (1964) 10 LGRA 314 …. 4.11 Morrow v Minister for Public Works (1985) 59 LGRA 29 …. 3.31 Mosca v Roads and Traffic Authority (NSW) (2004) 139 LGERA 28 …. 3.33 Mount Lawley Pty Ltd v Western Australian Planning Commission (2007) 34 WAR 499 …. 3.33 Muller v Department of Main Roads (1985) 29 The Valuer 237 …. 3.18 Murdesk Investments Pty Ltd v Roads Corporation (Vic) (2007) 155 LGERA 13 …. 3.47 — v Secretary to the Department of Business and Innovation [2011] VSC 436 …. 1.37 Murlam Pty Ltd v Roads and Traffic Authority (NSW) [2009] NSWLEC 1365 …. 3.28, 3.30 Murphy v R (1989) 68 LGRA 268 …. 3.21 Murray, Re (1934) 13 LVR (NSW) 25 …. 4.11 Murrurundi Electric Supply Co Ltd v Murrurundi Shire Council (1951) 68 WN (NSW) 118 …. 1.43 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 119 ALR 577 …. 1.8 N Stephenson Pty Ltd v Roads and Traffic Authority (NSW) (1994) 83 LGERA 248 …. 3.30 Nardone v South Australian Land Commission (1978) 20 SASR 168 …. 4.17 Nasser v Roads and Traffic Authority (NSW) (2006) 149 LGERA 417 …. 3.23,

3.47 Nedoni Pty Ltd v Minister for Roads (NSW) (2004) 19 LGERA 127 …. 3.47 Nelson v Housing Commission (NSW) (1962) 8 LGRA 408 …. 3.16 Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 …. 3.1, 4.12 Niall v Lacepede District Council (1987) 66 LGRA 32 …. 3.12, 3.20 Nicholls v Victoria University of Wellington [2002] 1 NZLR 659 …. 2.26 Niezabitowski v Roads and Traffic Authority (NSW) (2006) 147 LGERA 417 …. 3.47 Noble, Re (1999) 103 LGERA 156 …. 1.33 Nuland Developments Pty Ltd v Parramatta City Council (1979) 37 LGRA 127 …. 3.47, 4.18 Oppenheim v Ministry of Transport [1942] 1 KB 242 …. 1.21 Overton Investments Pty Ltd v Minister Administering Environment Planning and Assessment Act 1979 (NSW) (2001) 113 LGERA 439 …. 3.47 Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission (2004) 137 LGERA 7 …. 1.21 Palais Parking Station Pty Ltd v Shea (1977) 13 SASR 240 …. 1.18 Paling, Re (1886) 3 WN (NSW) 41 …. 2.28 Pamalco Pty Ltd v Minister (1990) 69 LGRA 244 …. 1.32 Parramatta City Council v Gestetner Pty Ltd (1978) 37 LGRA 246 …. 4.24 Parkes Developments Pty Ltd v Burwood Municipal Council (1969) 17 LGRA 257 …. 3.20, 3.32 Pastoral Finance Association Ltd v Minister [1914] AC 1083 …. 3.14, 3.15 Pengley v Commissioner for Railways (1952) 68 WN (NSW) 25 …. 3.37 Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW) (1997) 96 LGERA 164 …. 3.39

Penrith City Council v Sydney Water Corporation [2009] NSWLEC 2 …. 4.7 Perpetual Trustee Co Ltd v Valuer-General (2006) 95 SASR 338 …. 3.14 Perry v Clissold [1907] AC 73 …. 2.4 Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW) (1998) 101 LGERA 30 …. 1.21 Phillipou v Housing Commission of Victoria (1969) 18 LGRA 254 …. 4.15 Phoenix Assurance Co v Spooner [1905] 2 KB 753 …. 2.27 Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565 …. 1.5, 3.20, 3.29, 3.31, 3.33, 4.16, 4.24 Polegato v Griffith City Council (1988) 64 LGRA 265 …. 3.14, 3.15 Port Gisborne Ltd v Smiler [1999] 2 NZLR 695 …. 2.26 Port Macquarie West Bowling Club Ltd v Minister (1972) 28 LGRA 23 …. 4.16 Port Stephens Council v Fidler (1999) 103 LGERA 335 …. 4.10 Porter v Hunters Hill Council (2003) 131 LGERA 144 …. 1.32 Poverty Bay Catchment Board v Forge [1956] NZLR 811 …. 4.12 Prentice v Brisbane City Council [1966] Qd R 394 …. 1.33 Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75 …. 1.21, 3.40 Pringle v Minister (1967) 14 LGRA 280 …. 4.18 Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 …. 3.37 Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Ltd [2012] FCAFC 31 …. 4.25 Public Trustee v Inland Revenue Commissioner (NZ) (1959) 8 AITR 333 …. 3.51 — v Penrith City Council [1976] 1 NSWLR 165 …. 3.5 Purchen v Minister for Lands (1966) 19 The Valuer 729 …. 3.15

Pye v Renshaw (1951) 84 CLR 58 …. 1.13 Queensland v Murphy (1990) 95 ALR 493 …. 3.21 Queensland Railways v Somerville Funerals Pty Ltd (1995) 15 QCLR 403 …. 3.47 R v Compensation Court of Western Australia (1990) 2 WAR 242 …. 3.35 — v Courbold (1986) 11 QCLR 59 …. 3.13 — v Rigby (1956) 100 CLR 146 …. 3.48 — v Salisbury City Corporation (1981) 27 SASR 500 …. 1.19 Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9 …. 1.13 Raja (Sri) Vyricherla Narayana Gajapatiraju Bahadur Garu v Revenue Divisional Officer, Vizagapatam [1939] 2 All ER 317 …. 1.5, 3.19, 3.20, 4.16 Rakus v Energy Australia (2004) 138 LGERA 373 …. 1.21 Ramsdale Pty Ltd v Roads Corporation (Vic) (1992) 76 LGRA 411 …. 3.37 Randolph Pty Ltd v Woollahra Municipal Council (1975) 32 LGRA 263 …. 4.16 Rashleigh v Environment Protection Authority (2005) 27 LGRA 63 …. 1.14 Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) 157 LGERA 100 …. 4.6 Reading v Valuer-General (1923) 6 LGR (NSW) 132 …. 4.12 Redeam Pty Ltd v South Australian Land Commission (1977) 17 SASR 508 …. 4.9, 4.13 Rees v Minister for Planning and Housing (1991) 76 LGRA 167 …. 3.20 Reith v Town and Country Planning Board (1969) 27 LGRA 63 …. 1.18 Reysson Pty Ltd v Roads and Maritime Services (No 3) [2016] NSWLEC 69 …. 3.17 Richardson v Roads and Traffic Authority (NSW) (1996) 90 LGERA 294 ….

1.24 River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651 …. 4.10, 4.11, 4.22 Rivers v Minister of Education (1975) 12 SASR 321 …. 3.10, 3.36, 4.14 Roads Corporation v Costa (1997) 93 LGERA 317 …. 3.5 — v Love (No 2) (2005) 23 VAR 304 …. 3.41 — v Love (2010) 31 VR 451 …. 3.34, 4.8 — v Murdesk Investments Pty Ltd (2008) 18 VR 327 …. 3.16 Roads and Traffic Authority (NSW) v Blacktown City Council [2007] NSWCA 20 …. 3.21 — v Damjanovic (2006) 146 LGERA 403 …. 4.03, 4.24 — v Hurstville City Council (2001) 112 LGERA 223 …. 4.7, 4.11 — v Mosca (2006) 146 LGERA 335 …. 3.33, 4.4 — v Muir Properties Pty Ltd (2005) 143 LGERA 192 …. 4.24 — v Murdesk Investments Pty Ltd (2008) 18 VR 327 …. 3.47 — v Peak [2007] NSWCA 66 …. 3.23 — v Perry (2001) 52 NSWLR 222 …. 3.20 Robert Reid & Co v Minister for Public Works (1902) 2 SR (NSW) 405 …. 2.29, 3.37 Roberts v Board of Land and Works [1965] VR 265 …. 2.20 Robinson & Co Ltd v Collector of Land Revenue, Singapore [1980] 1 WLR 1614 …. 3.18 Robson v Minister for Education [1964] SASR 308 …. 4.16 Rodgerson v Attorney General [1944] VLR 55 …. 1.41 Rosenbaum v Minister for Public Works (1965) 114 CLR 424 …. 3.2, 3.10, 3.39 Rowan v Minister for Works (WA) (1986) 62 LGRA 389 …. 3.21 Rowley v Minister (1924) 7 LGR (NSW) 42 …. 4.16 Royal Sydney Golf Club v Federal Commissioner of Taxation (1957) 97 CLR

379 …. 4.17 Rugby Joint Water Board v Footitt [1972] 1 All ER 1057 …. 3.37 Russellan Pty Ltd v Roads and Traffic Authority (NSW) (1992) 75 LGRA 263 …. 3.15, 3.52 Salia Property Pty Ltd v Commissioner of Highways [2011] SASC 106 …. 1.35 Samrein Pty Ltd v Metropolitan Water, Sewerage & Drainage Board (NSW) (1982) 41 ALR 467; 52 ALJR 678 …. 1.40 Sandhurst Trustees Ltd v Roads and Traffic Authority (NSW) [2006] NSWLEC 243 …. 4.10 Saunders v Railway Commissioners (NSW) (1920) 21 SR (NSW) 7 …. 1.18 Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC373 …. 4.9 Secretary to the Department of Economic Development, Jobs, Transport and Resources v Manor Lakes (Werribee) Pty Ltd [2016] VSC 358 …. 3.23 — v Stella [2016] VSC 260 …. 3.23 Seed v Claremont Municipality (1958) 60 WALR 26 …. 3.4 Segal v Osborne [2016] NSWSC 941 …. 1.24 Service Design Pty Ltd v Commissioner of Highways (SA) (1984) 54 LGRA 208 …. 1.28 Shaw v State Planning Authority (NSW) (No 2) (1972) 27 LGRA 94 …. 1.33 Shoalhaven City Council v Director-General of National Parks and Wildlife Service (2003) 127 LGERA 280 …. 2.32 Simpson Motor Sales (London) Ltd v Hendon Corporation [1964] AC 1088 …. 2.17, 3.5, 3.46 Sisters of Charity of Rockingham v R [1922] 2 AC 315 …. 3.33 SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211 …. 3.10, 3.36, 3.43

Sleeman v SPI Electricity Pty Ltd [2014] VSCA 243 …. 1.13 Smith v Dandenong Valley Authority (No 2) [1974] VR 276 …. 3.8 — v Eltham Shire [1977] VR 133 …. 3.6, 3.9, 3.43 — v Minister of Education (1978) 19 SASR 411 …. 2.23 — v Walsh (1995) 90 LGERA 122 …. 4.8 Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373 …. 1.21 South Australia v Slipper [2004] FCAFC 164 …. 2.12 South Australian Land Commission v Perry (1977) 15 SASR 315 …. 3.43 Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 …. 3.39 Spencer v Commonwealth (1907) 5 CLR 418 …. 1.15, 3.14, 3.15, 3.16, 3.19, 3.37, 3.38, 4.2, 4.7, 4.8, 4.9, 4.10, 4.11, 4.16 — v — (2016) 328 ALR 16 …. 1.8 Stanfield v Brisbane City Council (1990) 70 LGRA 392 …. 3.35 St John Ambulance Association of Western Australia Inc v East Perth Redevelopment Authority (2001) 114 LGERA 112 …. 3.15, 3.23 State Electricity Commission (Vic) v McWilliams (1953) 90 CLR 552 …. 1.18 Sterling Finances Ltd v Minister of Water Resources (1984) 35 SASR 208 …. 3.15 Stocks & Parkes Investments Pty Ltd v Minister (No 3) (1969) 72 SR (NSW) 104 …. 4.20 — v — [1971] 1 NSWLR 932 …. 4.20 Surveyor-General v Seychell (2002) 118 LGERA 412 …. 1.10 Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407 …. 3.20 Sydney Municipal Council v Campbell [1925] AC 338 …. 1.33 Sydney Water Corporation v Besmaw Pty Ltd [2002] NSWCA 147 …. 3.23, 3.39

Tanner v Minister for Education and Training (2002) 119 LGERA 321 …. 1.21 Tasmania v Effingham Pty Ltd [2005] TASSC 55 …. 3.39 Tatmar Pastoral Co Pty Ltd v Housing Commission (NSW) (1984) 54 ALR 155 …. 3.17, 4.10 Taylor v Minister for Lands (NSW) (1975) 132 CLR 235, affirming [1973] 1 NSWLR 352 …. 3.37 Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 113 …. 3.17 Taylor v Roads and Maritime Services [2016] NSWLEC 138 …. 3.1, 3.23 TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 …. 1.24 Te Runanga o Ngati Awa v Attorney-General [2004] 2 NZLR 252 …. 2.26 Tempe Recreation (D500215 & D1000502) Reserve Trust v Sydney Water Corporation [2013] NSWLEC 221 …. 3.39 Thomas v Sherwood (1883) 9 App Cas 142 …. 1.16 Thompson v Randwick Corporation (1950) 81 CLR 87 …. 1.37, 1.40 Tinker Tailor Pty Ltd v Commissioner for Main Roads (NSW) (1960) 105 CLR 334 …. 1.43 Tomago Aluminium Co Pty Ltd v Valuer General [2010] NSWLEC 4 …. 4.11 Toohey’s Ltd v Valuer-General [1925] AC 439 …. 4.16 Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77 …. 3.44 Tsekos v Finance Corporation of Australia Ltd [1982] 2 NSWLR 347 …. 3.36 Turner v Minister of Public Instruction (1956) 95 CLR 245 …. 3.16, 3.17, 3.19, 4.18, 4.19 Ubank v Housing Commission (Qld) (1954) 25 QCLLR 5 …. 3.4 Unimin Pty Ltd v Commonwealth (1977) 45 LGRA 338 …. 2.28 Universal Sands & Minerals Ltd v Commonwealth (1980) 30 ALR 637 ….

3.23 Upper Hunter County District Council v Cowan [1971] 1 NSWLR 515 …. 1.46 Vains v Gosford Shire Council (1976) 24 The Valuer 756 …. 4.23 Valuer-General v Dobrel Pty Ltd (1993) 79 LGERA 334 …. 4.4 — v Fenton Nominees Pty Ltd (1982) 42 ALR 371 …. 4.16 Verebes Investments Pty Ltd v Commissioner for Main Roads (NSW) (1972) 25 LGRA 391 …. 4.9, 4.15 Waalt Homes Pty Ltd v Road Construction Authority (1987) 64 LGRA 346 …. 4.11 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 …. 1.5, 1.15, 3.14, 3.20, 3.29, 4.5, 4.27 Waters v Welsh Develoment Agency [2004] 2 All ER 915 …. 1.5, 3.20 Watson’s Bay & South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268 …. 1.27 Wattle Park Pty Ltd v Commissioner of Highways (1973) 6 SASR 69 …. 4.17 Wellington City Corporation v Berger Paints NZ Ltd [1975] 1 NZLR 184 …. 3.36 Werribee Shire Council v Kerr (1928) 42 CLR 1 …. 1.34 West v Roads and Traffic Authority (NSW) (1995) 88 LGERA 266 …. 3.23 West Suffolk County Council v W Rought Ltd [1967] AC 403 …. 3.51 Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 …. 4.11, 4.28 Western Australia/Roberta Vera Thomas (Waljen)/Austwhim Resources Nl; Aurora Gold (WA) Ltd [1996] NNTTA 30 …. 1.8 W H Blakeley & Co Pty Ltd v Commonwealth (1953) 87 CLR 501 …. 1.41 Wik Peoples v Queensland (1996) 187 CLR 1 …. 1.13, 1.23

Willoughby City Council v Roads and Maritime Services [2014] NSWLEC 6 …. 3.40, 4.7 Wilson v Liverpool City Council [1971] 1 All ER 628 …. 3.20 Wilson v Secretary of State for the Environment [1974] 1 All ER 428 …. 2.5 Wilson Bros Pty Ltd v Commonwealth [1948] SASR 61 …. 3.14 Wm Collin & Sons Pty Ltd v Co-ordinator General of Public Works (1974) 1 QLCR 1 …. 2.28, 3.43, 4.23 Wong v Minister of Water Resources (1985) 55 LGRA 431 …. 4.11 Woollams v Minister (1957) 75 WN (NSW) 103 …. 4.12, 4.13 Wollong Pty Ltd v Shoalhaven City Council (2002) LGERA 331 …. 3.42, 3.44 Wright v Sydney Municipal Council (1916) 16 SR (NSW) 348 …. 4.8 Wurridjal v Commonwealth [2009] HCA 2 …. 1.11 Yakas v Roads and Traffic Authority (NSW) (2004) 139 LGERA 116 …. 3.47 Yarn Traders Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 427 …. 3.29, 4.17 Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169 …. 4.26 — v Darling Harbour Authority (1988) 64 LGRA 331 …. 3.15 Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 157 ALR 30 …. 4.26 Zoeller v Brisbane City Council (1973) 40 QCLLR 198 …. 3.20

TABLE OF STATUTES REFERENCES ARE TO PARAGRAPHS

Commonwealth Acquisition of Property for Public Purposes Act 1901 …. 3.14 Acts Interpretation Act 1901 s 22(1) …. 1.20 Administrative Appeals Tribunal Act 1975 s 35 …. 3.46 s 69A(1)(a) …. 3.47 Civil Aviation Act 1988 …. 1.11 Coastal Waters (State Powers) Act 1980 …. 1.20 Constitution …. 1.11, 1.13 s 51 …. 1.11 s 51(xxxi) …. 1.4, 1.11, 1.12, 1.13, 1.14, 3.43 Environment Protection and Biodiversity Conservation Act 1999 …. 1.18 Freedom of Information Act 1982 …. 1.43 Income Tax Assessment Act 1936 s 26AAA …. 3.51 Lands Acquisition Act 1906 …. 1.10, 1.12, 1.41 Lands Acquisition Act 1955 …. 1.3, 1.12, 1.41 s 5(1) …. 1.23 s 12 …. 1.49 Lands Acquisition Act 1989 …. 1.2, 1.4, 1.12, 1.14, 1.15, 1.23, 1.29, 1.31, 1.41,

1.49, 1.51, 2.7, 2.16, 3.5, 3.44, 3.48 Pt V …. 2.2 s 4 …. 2.30 s 6 …. 1.20, 1.21, 1.23 s 6(1) …. 1.41, 3.39 s 12 …. 1.47 s 16 …. 1.11, 1.26 s 17(2)(b) …. 1.22 s 19 …. 1.26, 1.41 s 22 …. 2.1 ss 22–51 …. 2.2 s 22(2) …. 1.41, 2.8 s 22(3)(b)(ii) …. 1.30 s 22(6) …. 1.31 s 22(7) …. 2.1, 2.3, 2.5 s 23 …. 2.1, 2.3 s 24 …. 2.11, 2.12 s 26 …. 1.31, 2.1 s 26(3) …. 1.31 s 27(1) …. 2.7 s 29 …. 1.31 s 30 …. 1.35 s 31 …. 1.31, 1.41 s 31(1)(e) …. 1.31 s 31(1)(e)(iv) …. 1.31 s 31(1)(f) …. 1.35 s 31(3) …. 1.31 s 31(3)(a) …. 1.31

s 35 …. 2.6 s 38 …. 2.14 s 40 …. 1.12, 1.26, 2.19 s 40(1) …. 1.41 s 40(3) …. 1.26 s 41 …. 1.12 s 41(2)(b) …. 1.41 s 41(4)(a) …. 2.13 s 42 …. 2.31 s 42(1)(b) …. 1.49 s 43(2) …. 2.7 s 44(2) …. 2.17 s 45 …. 3.48 s 46 …. 1.49 s 47 …. 2.22, 3.23 s 47(1) …. 2.20, 2.22 s 47(2) …. 2.20 s 47(4) …. 2.21 s 50 …. 2.16 s 50(1)(b) …. 2.19 s 50(2) …. 2.19 s 51 …. 2.14 s 52 …. 3.2 s 53 …. 3.38 s 54(1) …. 2.22 s 55 …. 3.1, 3.11, 3.12, 3.43 s 55(1) …. 1.12

s 55(2) …. 2.15, 3.11 s 55(2)(a)(ii) …. 3.15 s 55(2)(a)(iii) …. 3.31 s 55(2)(a)(iv) …. 3.31, 3.32 s 55(2)(c) …. 3.12, 3.13, 3.23 s 55(2)(d) …. 3.37 s 55(2)(e) …. 3.41 s 56 …. 3.14 ss 56–63 …. 3.11 s 57 …. 3.22 s 58 …. 3.19 s 58(1)(e) …. 3.26 s 60 …. 3.34 s 60(b) …. 3.25 s 60(c) …. 3.20 s 61(2)(b) …. 3.26 s 62 …. 3.38 s 63(1) …. 2.19 s 63(2) …. 2.19 ss 64–69 …. 3.38 s 64(1) …. 3.38 s 64(2) …. 3.38 s 65(1)(b) …. 3.38 s 66 …. 3.38 ss 67–77 …. 3.9 s 67(1) …. 3.8 s 67(2)(a) …. 3.4 s 67(3) …. 3.6

s 68 …. 3.38 s 69 …. 3.38 s 70 …. 3.9, 3.38 s 70(3) …. 3.9 s 72 …. 3.38 s 74A …. 1.51, 3.7 s 75 …. 3.9 s 76 …. 3.9 s 77 …. 3.9 s 79 …. 1.51 s 84 …. 3.38 s 85 …. 1.12, 3.42 s 85(1) …. 3.42 s 85(2) …. 3.42 s 85(3) …. 3.42 s 85(4) …. 3.42 s 86(2) …. 2.25 s 86(3) …. 2.25 s 87(1) …. 2.28 s 90 …. 2.4 s 91 …. 3.43 s 91(1) …. 3.43 s 91(2) …. 3.43 s 91(3) …. 3.43 s 91(4) …. 3.43 s 92 …. 3.38, 3.43 s 93 …. 1.11

s 96 …. 2.7 s 99 …. 3.44 s 100 …. 3.44 s 106 …. 3.44, 3.45 s 107 …. 3.44 s 107(3) …. 3.45 s 108 …. 3.44 s 108(2) …. 3.45 s 109 …. 3.44 s 114 …. 3.50 s 116 …. 3.49 s 121(1) …. 2.26 s 121(2) …. 2.26 s 121(3) …. 2.26 s 125(5) …. 1.49 s 127 …. 1.21, 2.29 s 132 …. 2.23 s 132(2) …. 2.23 s 132(3) …. 2.23 s 137 …. 2.24 s 139 …. 2.32 s 140 …. 2.33 Lands Acquisition Regulations 1989 …. 2.33 National Security Act 1939 …. 1.10, 1.11 Native Title Act 1993 …. 1.10, 1.23 s 3 …. 1.23 s 11(1) …. 1.23 s 22E …. 1.23

Northern Territory (Self-Government) Act 1978 s 6 …. 1.14 s 50(1) …. 1.14 s 50(2) …. 1.14 s 69(2) …. 1.14 s 70 …. 1.14 Property for Public Purposes Act 1901 …. 1.12 Swimming Pools Tax Refund Act 1992 …. 1.8 Trade Practices Act 1974 s 52 …. 4.25

New South Wales Coal Acquisition Act 1981 s 5 …. 1.13 s 6 …. 1.13 Crown Land Management Act 2016 s 2.24 …. 3.21 Crown Lands Act 1989 …. 3.21 s 106A …. 3.21 Environmental Planning and Assessment Act 1979 s 112 …. 1.36 Freedom of Information Act 1989 …. 1.43 Home Care Services Act 1988 …. 3.37 Interpretation Act 1987 s 21(1) …. 1.20 Land Acquisition (Just Terms Compensation) Act 1991 …. 1.2, 1.4, 1.5, 1.13, 1.15, 1.19, 1.31, 1.42, 2.3, 2.25, 2.28, 2.30, 2.32, 3.9, 3.11, 3.20, 3.21, 3.26, 3.27, 3.34, 4.3, 4.5

Pt 2 Div 1 …. 2.2 s 3(1) …. 1.11, 3.1 s 3(1)(a) …. 3.1 s 3(1)(c) …. 2.11 s 3(1)(e) …. 1.29, 4.2 s 4 …. 1.21 s 4(1) …. 1.20, 1.21, 1.41 s 5(1) …. 1.26, 1.43 s 5(2) …. 1.26 s 6(d) …. 2.31 s 7 …. 1.10 s 7(2) …. 1.10 s 7A …. 1.10, 1.23 s 7B …. 1.10 s 8 …. 1.10 s 9 …. 2.30 s 9(2) …. 2.11 s 10A …. 1.26 s 10A(2) …. 3.3 ss 11–18 …. 2.2 s 11(1) …. 2.1 s 11(2) …. 2.1 s 12 …. 2.28 s 13(1) …. 2.11, 2.20 s 13(2)(b) …. 2.20 s 14(2)(a) …. 2.17 s 14(3) …. 2.7 s 15 …. 1.29, 2.5

s 15(b) …. 2.8 s 15(d) …. 2.20 s 16(1) …. 2.7 s 16(3) …. 2.6 s 17 …. 2.14 s 18 …. 4.3 s 19 …. 2.9 s 20(1)(a) …. 2.13 s 20(1)(b) …. 3.40 s 21 …. 1.41, 2.8 ss 21–28 …. 1.50 s 23 …. 1.50 s 24 …. 1.50 s 26 …. 1.50, 3.34 s 29(1) …. 2.30 s 31(1) …. 2.16 s 31(4) …. 2.16 s 31(5) …. 2.16 s 32 …. 1.22 s 34(1) …. 2.22 s 34(2) …. 2.20, 2.22 s 34(3) …. 2.21 s 34(3A) …. 2.21 s 35(1) …. 2.23 s 35(2) …. 2.23 s 37 …. 2.28, 3.2, 3.10 s 39 …. 3.5, 3.8

s 39(1) …. 4.3 s 39(2) …. 3.4 s 39(4) …. 3.6 s 41 …. 4.3 s 41(1) …. 4.3 s 41(3) …. 4.3 s 42 …. 3.9, 4.3 s 42(1) …. 1.32, 3.5 s 42(6) …. 3.5 s 43 …. 3.8 s 44 …. 3.9 s 45 …. 3.7 s 45(1) …. 3.5, 3.9 s 45(2) …. 3.9 s 45(3) …. 3.9 s 48 …. 3.42 s 48(1) …. 3.42 s 48(2) …. 3.42 s 48(3) …. 3.42 s 48(4) …. 3.42 s 49(1) …. 3.43 s 51 …. 2.4, 3.50 s 54 …. 3.1, 3.15 s 54(1) …. 3.30 s 55 …. 3.11, 3.12, 3.17, 3.26, 4.6, 4.28 s 55(a) …. 2.15 s 55(c) …. 3.31 s 55(d) …. 3.23

s 55(f) …. 3.20 s 56 …. 3.17, 4.5 ss 56–59 …. 3.26 ss 56–65 …. 3.11 s 56(1) …. 3.14, 4.5, 4.27 s 56(1)(a) …. 3.20, 3.33 s 56(1)(b) …. 3.19 s 56(1)(c) …. 3.25 s 57 …. 3.15, 3.17, 3.27 s 58 …. 3.31 s 59 …. 3.23, 4.6 s 59(a) …. 3.41 s 59(b) …. 3.41 s 59(c) …. 3.26, 3.37 s 59(d) …. 3.23 s 59(f) …. 3.23, 3.26, 3.27, 3.30 s 60(1) …. 3.34 s 60(2) …. 3.27, 3.34 s 61 …. 3.22 s 62 …. 3.39 s 62(1) …. 3.39 s 65 …. 3.38 s 66 …. 3.9, 3.44 s 66(1) …. 3.45 s 66(2) …. 3.42, 4.5 s 66(3) …. 3.44 s 67 …. 3.44

s 68(1) …. 1.26 s 71A …. 2.26 s 72 …. 2.24 s 74 …. 2.33 Land and Environment Court Act 1979 s 25(1) …. 3.46 s 38(1) …. 3.46 s 38(2) …. 3.46 s 69(2)(a) …. 3.47 Land and Environment Court Rules 1996 …. 4.6 Local Government Act 1919 s 536C …. 4.6 Local Government Act 1993 …. 3.21 s 30 …. 3.21 s 45 …. 3.15 s 45(1) …. 3.21 s 48 …. 1.21, 3.40 s 186 …. 1.19 s 187(1) …. 1.19 s 187(2) …. 1.19 s 188 …. 1.19, 2.26 s 189 …. 1.19 Main Roads Act 1924 …. 1.43 Native Title (NSW) Act 1994 …. 1.23 Public Works Act 1912 …. 1.3, 1.18, 3.5, 3.10 s 80 …. 1.46 s 101(1) …. 3.10 s 124 …. 3.15, 3.21

Public Works and Procurement Act 1912 …. 1.4 s 80 …. 1.47 Roads Act 1993 …. 1.10 Supreme Court Act 1970 …. 3.42 Uniform Civil Procedure Rules 2005 …. 4.6 Valuation of Land Act 1916 …. 4.16 s 70 …. 4.16 Valuers Act 2003 …. 4.2

Victoria Confiscation Act 1997 …. 1.8 Freedom of Information Act 1982 …. 1.43 Interpretation of Legislation Act 1986 s 38 …. 1.20 Land Acquisition and Compensation Act 1986 …. 1.2, 1.4, 1.6, 1.19, 1.20, 1.29, 1.31, 1.41, 2.16, 2.17, 2.25, 2.32, 3.6, 3.34, 3.47 Pt 2 …. 1.26, 1.43 Pt 10 …. 3.41 s 3(1) …. 1.21, 1.26, 1.43, 3.39, 4.3 s 3(3) …. 1.10 s 4 …. 1.10, 1.43 ss 4–29 …. 1.26, 1.43 s 5 …. 2.1 s 5(1) …. 1.36 s 6 …. 2.1, 2.3 s 7(6) …. 1.50 s 8(1) …. 2.5 s 8(1)(c) …. 1.43, 2.8

s 8(1)(d) …. 1.30 s 8(2) …. 2.5 s 9 …. 2.3 s 10 …. 2.14 s 12 …. 2.2 s 14(1) …. 2.6 s 15(1) …. 2.7 s 16 …. 2.17 s 17 …. 2.17 s 18 …. 1.26 s 20 …. 2.11 s 23 …. 2.9 s 24(1)(a) …. 2.13 s 25 …. 1.22 s 26(1) …. 2.20 s 26(2) …. 2.20, 2.22 s 26(4) …. 2.20 s 26(7) …. 2.21, 2.22 s 26(8) …. 2.21 s 28(1) …. 2.23 s 28(2) …. 2.23 s 30 …. 3.2 s 31 …. 3.7, 3.8, 3.9 s 31(1) …. 3.3 s 31(2)(a) …. 3.3 s 31(3) …. 3.3 s 31(5) …. 4.3 s 31(8) …. 3.6

s 33 …. 3.5, 3.8 s 33(1) …. 3.5, 3.9 s 33(2) …. 3.5, 3.7, 3.9 s 35 …. 3.8, 3.9 s 35(1)(a) …. 3.4 s 36 …. 3.9 s 37 …. 3.9 s 38(3) …. 1.6 s 40 …. 3.14, 3.15, 3.23, 3.31 ss 40–45 …. 3.11 s 41 …. 3.1 s 41(1) …. 3.11, 3.12 s 41(1)(a) …. 2.15 s 41(1)(c) …. 3.31 s 41(1)(d) …. 3.23 s 41(1)(e) …. 3.20 s 41(1)(f) …. 3.30, 3.41 s 41(2) …. 3.22 s 41(2)(b) …. 3.12 s 41(4) …. 3.41 s 41(6) …. 3.37 s 42 …. 3.26 s 43(1)(a) …. 3.19 s 43(1)(c) …. 3.25 s 44 …. 3.34 s 44(1) …. 3.34 s 45 …. 2.31

s 50 …. 2.28 s 51(1) …. 3.42 s 51(2) …. 3.42 s 51(3) …. 3.42 s 51(4) …. 3.42 s 51(5) …. 3.42 s 51(7) …. 3.42 s 51(9) …. 3.42 ss 52–57 …. 3.43 s 53(1) …. 3.43 s 56 …. 3.43 s 58 …. 2.4 ss 58–61 …. 3.50 ss 68–73 …. 3.38 s 75 …. 1.47 s 80 …. 3.7, 3.44 ss 80–84 …. 3.45 ss 80–98 …. 3.41 s 81 …. 3.44 s 91 …. 3.47 s 91(1) …. 3.47 s 104 …. 2.24 s 106 …. 2.17 s 107 …. 3.5 s 107(1) …. 3.5 s 109(1) …. 2.26 s 109(2) …. 2.26 s 109(3) …. 2.26

s 110 …. 2.33 Land Acquisition and Compensation Regulations 2010 …. 2.33 Land Compensation Act 1958 …. 1.3 Local Government Act 1989 s 176 …. 1.19 s 177 …. 1.19 Native Titles Validation Act 1994 …. 1.23 Valuation of Land Act 1960 s 5A …. 3.17 Victorian Civil and Administrative Tribunal Act 1998 s 97 …. 3.46 s 98(1)(b) …. 3.46 s 98(1)(d) …. 3.46 s 109(1) …. 3.47 s 109(2) …. 3.47 s 109(3) …. 3.47

Queensland Acquisition of Land Act 1967 …. 1.2, 1.4, 1.10, 1.21, 1.41, 1.43, 1.44, 2.2, 2.20, 2.21, 3.7, 3.14, 3.22, 3.23, 3.26, 3.34, 3.50 s 2 …. 1.20, 1.21 s 5(1)(c)(ii) …. 1.43 s 6 …. 3.39 s 6(3) …. 1.21 s 7 …. 2.1 ss 7–8 …. 1.31 s 7(2) …. 2.3 s 7(2A)–(2B) …. 2.3

s 7(2D) …. 2.3 s 7(3) …. 2.5 s 7(3)(a) …. 1.30, 2.8 s 7(3)(d) …. 1.31, 2.11 s 7(4) …. 2.14 s 7(4A) …. 2.6 s 7(5) …. 2.3 s 8 …. 1.31 s 8(3) …. 2.5 s 9 …. 2.10 s 9(7) …. 2.9 s 10(1) …. 1.19 s 10(1A) …. 1.19 s 10(1D) …. 1.19 s 10(2) …. 2.9 s 10(5) …. 1.19 s 12(1)(a) …. 2.13 s 12(5) …. 3.2 s 12B …. 2.13 s 13 …. 2.18 s 13(1) …. 1.38, 2.18 s 13(2) …. 2.18 s 13(3) …. 2.18 s 14 …. 2.14 s 14(1) …. 2.28 s 15 …. 1.26 s 15(2A) …. 2.21 s 16 …. 2.7

s 16(1A) …. 2.7 s 17(1) …. 2.16 s 17(1A) …. 2.16 s 17(3) …. 2.16 s 17(4) …. 2.16 s 18(1) …. 3.2 s 19 …. 3.5, 3.6 s 19(1) …. 3.4, 3.8 s 20 …. 3.12, 3.31 s 20(1) …. 3.11, 3.13, 3.33, 4.1 s 20(1)(a) …. 3.31 s 20(1)(b) …. 3.13, 3.23, 3.33 s 20(2) …. 2.15 s 20(3) …. 3.20, 3.32 s 20(4) …. 3.11, 3.20 s 20(5) …. 3.23 s 22 …. 2.19 s 23(1) …. 3.42 s 23(3)(a) …. 3.42 s 23(3)(b) …. 3.42 s 23(4) …. 3.42 s 23(5) …. 2.25 s 23(5)–(7) …. 3.42 s 24 …. 3.44, 3.45 s 24(1) …. 3.7, 3.9, 3.44 s 24(3) …. 3.6 s 24(5)(b) …. 3.9

s 25 …. 3.45 s 25(4) …. 3.7 s 27(1) …. 3.47 s 27(2) …. 3.47 s 28 …. 3.43 s 29 …. 2.4 s 29(1)(a) …. 2.29 s 29(1A) …. 3.50 s 29(3) …. 3.50 s 31 …. 2.31 s 31A …. 2.31 s 32 …. 3.38 s 35 …. 2.25 s 36B …. 2.32 s 37 …. 1.47 s 38 …. 2.22 s 38(1) …. 2.23 s 39 …. 2.24 s 39(1) …. 2.3 s 41(1) …. 2.26 s 41(1A) …. 2.26 s 42 …. 2.33 Acquisition of Land Regulations 2014 …. 2.33 Acts Interpretation Act 1954 s 36 …. 1.20, 1.21 Freedom of Information Act 1992 …. 1.43 Land Act 1962 …. 3.48 Land Act 1994 …. 1.20, 1.21

Land Court Act 2000 s 7 …. 3.44 Mineral Resources Act 1989 …. 1.8 s 281 …. 1.8 s 422 …. 1.8 Native Title (Qld) Act 1993 …. 1.23 Public Works Land Resumption Act 1906 …. 1.3, 3.20 South Bank Corporation Act 1989 …. 1.33 Transport Planning and Co-ordination Act 1994 …. 1.33 Valuers Registration Act 1992 …. 4.2

Western Australia Freedom of Information Act 1992 …. 1.43 Interpretation Act 1984 s 5 …. 1.20 Land Administration Act 1997 …. 1.2, 1.4, 1.10, 1.41, 1.42, 2.5, 2.20, 2.21, 3.14, 3.22, 3.23 Pt 9 …. 1.26 s 3(1) …. 1.20 s 4 …. 2.30 s 9 …. 2.32 ss 151–201 …. 1.26 s 151(1) …. 1.21 ss 152–158 …. 1.23 s 161 …. 1.18, 1.19, 1.42 s 161(1) …. 1.43 s 162 …. 2.31 s 163 …. 1.47

s 170(1) …. 2.1 s 170(3) …. 2.14 s 170(5) …. 2.3, 2.9 s 170(6) …. 2.6, 2.7 s 170(7) …. 2.17 s 170(8) …. 2.17 s 171(1) …. 2.5 s 171(1)(b)(i) …. 2.8 s 171(1)(d)(ii) …. 1.30 s 171(1)(d)(iii) …. 2.20 s 172 …. 2.2 s 175 …. 1.31 s 175(2) …. 1.31 s 176 …. 1.38, 2.18 s 176(2)(b) …. 2.18 s 177(1) …. 2.11 s 178(7) …. 2.21 s 179 …. 2.14 s 179(b) …. 2.13 s 180(1) …. 2.16 s 181 …. 2.16 ss 182–186 …. 2.20 s 186 …. 2.12 s 190 …. 2.26 s 190(1)(d) …. 2.26 s 190(7) …. 2.26 s 195 …. 1.22, 3.39 s 196 …. 3.39

s 197 …. 2.23 s 197(1) …. 2.22 s 202(1) …. 3.2 s 207(1) …. 3.5 s 207(2) …. 3.5 s 207(3) …. 3.5 s 209 …. 3.49 s 210 …. 3.7 s 211 …. 3.4, 3.8 s 211(2) …. 2.28 s 212(1) …. 2.19 s 212(2) …. 2.19 s 216 …. 2.29 s 217 …. 3.9 s 217(3) …. 3.8 s 218 …. 3.6 s 219(1) …. 3.9 s 219(2) …. 3.9 ss 220–225 …. 3.44 s 221 …. 3.9 s 223 …. 3.44 s 223(2) …. 3.45 s 224 …. 3.45 ss 226–240 …. 3.44 s 241 …. 3.11, 3.12 s 241(1) …. 3.11 s 241(2) …. 3.19, 4.1

s 241(2)(c) …. 2.15 s 241(6) …. 3.23 s 241(6)(b) …. 3.26, 3.27 s 241(6)(e) …. 3.41 s 241(7) …. 3.31, 3.32 s 241(8) …. 3.11 s 241(9) …. 3.11, 3.34 s 241(10)–(13) …. 3.43 s 241(11) …. 3.43 s 242 …. 2.25 s 246 …. 3.47 s 248(1)(a) …. 3.42 s 248(2) …. 3.42 s 249 …. 2.4, 3.7, 3.50 s 251 …. 3.38 s 274 …. 2.24 s 274(1) …. 2.3, 2.24 s 275 …. 2.33 Sch 2 cl 7(2) …. 1.16 Land Administration Regulations 1998 …. 2.33 Land Valuers Licensing Act 1978 …. 4.2 Local Government Act 1995 s 3.55 …. 1.19 Metropolitan Region Town Planning Scheme Act 1959 …. 1.10 s 36 …. 3.33 Mining Act 1978 s 123(4) …. 1.8 Native Title (State Provisions) Act 1999 …. 1.23

Planning and Development Act 2005 ss 173–178 …. 3.33 Public Works Act 1902 …. 1.43 s 63(aa)(v) …. 3.41 Public Works and Land Acquisition Act 1902 …. 1.3 Town Planning and Development Act 1928 s 11 …. 3.33

South Australia Acts Interpretation Act 1915 s 4(1) …. 1.20 Adelaide to Narne Railway Act 1878 …. 1.33 Compulsory Acquisition of Land Act 1925 …. 1.3 Crown Lands Act 1929 …. 1.16 Freedom of Information Act 1991 …. 1.43 Land Acquisition Act 1969 …. 1.2, 1.4, 1.19, 1.26, 2.16, 2.32, 3.14, 3.22, 3.42, 3.43 s 3 …. 1.11 s 6(1) …. 1.20, 1.21 s 7(1) …. 1.43 s 9 …. 1.16, 1.21 s 10 …. 2.8 s 10(1) …. 2.1, 2.3 s 10(3) …. 2.5 s 10(4) …. 2.6 s 10(5) …. 2.7 s 11(1) …. 2.5, 2.8 s 11(1)(a) …. 1.30

s 12 …. 1.31 s 12(1) …. 1.31 s 12(1)(b) …. 2.18 s 12(1)(c) …. 1.38 s 12(2) …. 1.31 s 12(2)(a) …. 1.31 s 12(2)(c) …. 1.31 s 12A …. 1.31 s 13(2) …. 2.2 s 13(4) …. 2.14, 2.28 s 14(2) …. 2.14 s 15 …. 2.7 s 15(2) …. 2.7 s 15(4) …. 2.17 s 15(5) …. 3.2 s 15(7) …. 2.7 s 16(1) …. 2.9, 2.11 s 16(2) …. 2.13 s 17(1) …. 2.14 ss 18–26 …. 1.23 s 23 …. 3.9 s 23(6) …. 3.43 s 23A …. 3.4 s 23A(1) …. 3.3, 3.5, 3.7 s 23A(2) …. 3.3, 3.5 s 23A(3) …. 3.3, 3.5, 3.7, 3.50 s 23A(4) …. 3.50 s 23B …. 3.9

s 23B(2) …. 3.8 s 23C …. 3.9, 3.44 s 24 …. 2.20 s 24(1) …. 2.22 s 24(2) …. 2.22, 2.23 s 24(5) …. 2.20, 2.21 s 25(1)(a) …. 3.11, 3.12 s 25(1)(b) …. 2.15, 3.11, 3.31 s 25(1)(b)(i) …. 4.1 s 25(1)(b)(ii) …. 3.23, 3.33 s 25(1)(c) …. 2.15 s 25(1)(d) …. 3.37 s 25(1)(e) …. 4.15 s 25(1)(f) …. 3.25 s 25(1)(g) …. 3.11, 3.34 s 25(1)(h) …. 3.20 s 25(1)(h)(c) …. 3.21 s 25(1)(i) …. 3.26 s 25(1)(j) …. 3.20, 3.32 s 26 …. 3.38, 3.43 s 26(a) …. 2.25 s 28 …. 1.47 s 29 …. 2.4 s 31 …. 2.24 s 31(1) …. 2.3 s 32 …. 3.49 s 33 …. 3.43

s 35 …. 2.26 s 36 …. 3.47 s 38 …. 2.33 Land Acquisition Regulations 2004 …. 2.33 Land Valuers Act 1994 …. 4.2 Local Government Act 1999 s 191 …. 1.19 s 191(1) …. 1.19 s 191(2) …. 1.19 s 191(3) …. 1.19 Native Title (SA) Act 1994 …. 1.23 Pastoral Act 1936 …. 1.16

Tasmania Acts Interpretation Act 1931 s 46 …. 1.20 Freedom of Information Act 1991 …. 1.43 Land Acquisition Act 1993 …. 1.2, 1.4, 1.19, 1.31, 2.20, 2.25, 3.14, 3.22, 3.42 s 3(1) …. 1.20, 1.21, 1.26, 1.41 s 4(3) …. 1.41 s 5(1) …. 1.43 s 5A …. 1.23 ss 7A–7J …. 2.31 s 7I …. 2.6 ss 8–10 …. 1.26 s 10 …. 1.37 s 11 …. 1.30 s 11(1) …. 2.1, 2.3

s 11(2) …. 2.5 s 11(2)(c) …. 2.8 s 11(2)(h) …. 2.2 s 11(3) …. 2.5 s 12(1) …. 2.7 s 13(1) …. 2.14 s 17 …. 2.22 s 18 …. 2.9 s 18(2) …. 2.11 s 19(1) …. 2.13 s 19(2) …. 2.22 s 19(4) …. 2.22 s 20 …. 2.14 s 22(1) …. 2.16 s 24(1) …. 3.2 s 24(3) …. 2.16 s 27(1) …. 3.11 s 27(1)(b) …. 3.15 s 27(1)(c) …. 3.13, 3.31 s 27(1)(d) …. 3.32 s 27(1)(e) …. 3.33 s 27(1)(f) …. 3.12, 3.23 s 27(1)(g) …. 3.41 s 30 …. 3.26 s 30(3) …. 3.34 s 31 …. 3.19 s 33(1)(b) …. 3.20 s 33(1)(d) …. 3.37

s 34 …. 3.38 s 35(a) …. 2.15 s 36 …. 3.8 s 36(2)(a) …. 3.4 s 36(2)(b) …. 2.28 s 37(a) …. 3.5 s 38 …. 3.5, 3.7 s 39 …. 3.9 s 40 …. 3.9 s 40(1) …. 3.8 s 42 …. 2.29, 3.44 s 47(1) …. 3.43 s 52 …. 3.50 s 53 …. 2.4 s 54(3) …. 1.46 s 54(5)(d) …. 1.46 s 57 …. 2.21 s 60 …. 3.47 ss 63–64 …. 3.49 s 71 …. 2.23 s 73 …. 2.26 s 74 …. 1.16 s 77(1) …. 3.45 s 79 …. 2.32 s 81 …. 2.24 s 83 …. 2.33 Land Acquisition Regulations 1993 …. 2.33

Land Valuers Act 2001 …. 4.2 Lands Resumption Act 1957 …. 1.3 Local Government Act 1993 s 176 …. 1.19 Native Title (Tas) Act 1994 …. 1.23

Northern Territory Interpretation Act 1978 s 19 …. 1.20 Lands Acquisition Act 1978 …. 1.2, 1.4, 1.23, 1.41, 1.43, 2.11, 2.16, 2.25 Pt IV Div 1 …. 2.2 s 4(1) …. 1.21 s 5 …. 1.11 s 5A …. 1.23 s 5A(1) …. 1.23 s 22(2) …. 2.5 s 22(3) …. 2.5 s 28A …. 1.23 s 29 …. 1.47 s 31A …. 1.26 s 31B …. 2.31 s 32 …. 1.30 ss 32–35 …. 2.2 s 32(1)(b) …. 2.1, 2.3 s 32(1)(d) …. 2.14 s 33 …. 2.5, 2.8 s 33(1)(b) …. 2.8 s 35 …. 2.6

s 35(1) …. 2.7 s 36 …. 1.31 s 40(3) …. 1.31 s 41 …. 2.10 s 41(3) …. 2.10 s 43(1) …. 1.15, 1.23, 1.41 s 43(1)(b) …. 2.9 s 44 …. 2.12 s 46 …. 2.13 s 48 …. 2.26 s 49 …. 2.14 s 50 …. 3.26 s 50(1)(a) …. 3.3, 3.8 s 50A …. 2.19 s 52 …. 3.8 s 52(1) …. 3.2, 3.4, 3.5 s 52(3) …. 3.7 s 53(1) …. 2.28 s 54 …. 2.20 s 54(1) …. 2.21 s 55 …. 2.23 s 62(1) …. 3.42 s 62(2) …. 3.42 s 63 …. 3.26 s 64(1)(a) …. 3.43 s 66 …. 2.15 s 68 …. 3.45 s 70 …. 3.45

s 74 …. 3.9 s 75 …. 3.9 s 81 …. 3.44 ss 83A–83C …. 3.50 s 90 …. 2.24 s 94A …. 2.32 s 95 …. 2.4, 2.33 Schedule 2 …. 2.15, 3.11 r 1 …. 3.11, 4.28 r 2 …. 3.23 r 2(a) …. 3.14 r 2(b) …. 3.15 r 2(c) …. 3.31 r 2(d) …. 3.23, 3.41 r 3 …. 3.22 r 6 …. 3.11, 3.37 r 7 …. 3.11, 3.26 r 8(c) …. 3.20 r 8(b) …. 3.25 r 9 …. 3.34 r 10 …. 3.38 Lands Acquisition Regulations …. 2.33 Lands and Mining Tribunal Act 1998 s 11(1) …. 3.46 s 11(2) …. 3.46 s 14 …. 3.46 s 18 …. 3.47

Local Government Act 1993 s 130(1) …. 1.19 Valuation (Native Title) Act 1994 …. 1.23

Australian Capital Territory Administrative Appeals Tribunal Act 1989 s 32(1) …. 3.46 s 32(1)(c) …. 3.46 Freedom of Information Act 1989 …. 1.43 Lands Acquisition Act 1994 …. 1.2, 1.4, 1.14, 1.43, 2.7, 2.11, 2.16, 3.5 Pt IV Div 1 …. 2.2 s 3 …. 1.20, 1.21, 1.41 s 6(2)(b) …. 1.30 s 9 …. 1.47 s 14(2)(b) …. 1.22 s 16 …. 1.26 s 19 …. 2.1, 2.5 ss 19–22 …. 2.2 s 19(2) …. 2.8 s 19(6) …. 2.3 s 20(1) …. 2.9 s 21 …. 2.12 s 23 …. 1.31, 2.9 s 23(3) …. 1.31 s 30 …. 2.14 s 33(4)(a) …. 2.13 s 37 …. 2.22 s 37(1) …. 2.20

s 37(4) …. 2.21 s 40 …. 2.6, 2.16 s 41 …. 2.14 s 42 …. 2.12, 3.2 s 45 …. 3.31 s 45(2)(a) …. 2.15 s 45(2)(a)(ii) …. 3.15 s 45(2)(a)(iv) …. 3.32 s 45(2)(c) …. 3.23 s 45(2)(d) …. 3.37 s 45(2)(e)(i) …. 3.41 s 46 …. 3.14 s 47 …. 3.22 s 48 …. 3.26 s 50 …. 3.34 ss 50–62 …. 3.9 s 50(1)(b) …. 3.25 s 50(1)(c) …. 3.20 s 51 …. 3.26 s 54 …. 3.11 s 56 …. 3.4 s 56(1) …. 3.8 s 70 …. 3.42 s 71(2) …. 2.25 s 72(1)(c) …. 2.28 s 75 …. 2.4 s 76 …. 3.43 s 78 …. 1.14

s 89 …. 3.44 s 91 …. 3.42 s 95 …. 3.50 s 96 …. 3.43 s 97 …. 3.49 s 102 …. 2.26 s 106 …. 2.29 s 109 …. 3.41 s 110 …. 2.23 s 114 …. 2.24 s 116 …. 2.32 s 117 …. 2.33 Native Title Act 1994 …. 1.23 Water Resources Act 1998 …. 1.14

England Lands Clauses Consolidation Act 1845 …. 1.3, 1.5 s 63 …. 3.33 s 68 …. 3.33

India Land Acquisition Act 1894 …. 4.9 s 23(1) …. 3.19

New Zealand Public Works Act 1981 s 40 …. 2.26

s 40(1) …. 2.26 Settlement Act 1863 …. 2.26

United Kingdom Acquisition of Land Act 1981 s 25 …. 1.32 Compulsory Purchase Act 1965 s 10 …. 3.33

CONTENTS Preface Table of Cases Table of Statutes

Chapter 1

ACQUIRING

Executive power Resumption statutes Earlier legislation Uniform legislation English law Terminology Basic features Other activities affecting land Powers of resumption Exclusion of general resumption provisions Constitutional limitation — just terms Commonwealth legislation State legislation Territory legislation Judicial decisions Crown grants Prerogative powers

Acquiring authorities Local governments Land Interests in land Creating new interests Native title Fixtures Minerals Purchase by agreement Agreements not to resume Agreements to resume Preliminary warnings Reasons for resumption Statutory right to object to proposal Judicial review of proposal Exceeding statutory powers Bad faith Alternatives to resumption Planning considerations Resuming excess land Resuming portions of land Immediate use of resumed land Purposes Public purpose Public works Purposes of empowering Act Discovery of documents Temporary entry

Trespass Taking materials Complaints to ombudsman Parliamentary scrutiny Compelling resumption The claimant

Chapter 2

PROCEDURE

Intention to resume Purpose and effect of notice of intention Service of notice of intention Absent owner Contents of notice of intention Amendment or variation of notice Cancellation of notice of intention Stating purpose of resumption Publication of notice Determining objections Expediting or slowing process Urgency Vesting resumed land in authority Registration Date of valuing resumed land Revocation or rescinding notice Lapse of time Remainders of land Exchange or resettlement Occupation after vesting

Rent during occupation Taking possession Ejectment Service of notices Rates and taxes Disposal of resumed land by authority Damage to the land Establishing title Disputed ownership The Crown Special provisions Delegation of powers Regulations

Chapter 3

COMPENSATION

Introduction Entitlement Offer or claim Notice of claim Time limit for making claim Withdrawal or amendment of claim Absence of claim Contents of claim Acceptance or rejection of offer or claim Separate valuation of interests Assessment provisions Loss Damage

Market value Special value One or more purchasers Highest and best use Liberal estimate Absence of buyers Enhancement Restrictions prior to resumption Valuing potential Disturbance Double recovery Unlawful use Reinstatement Extinguishment of business Business loss: goodwill Loss from threat of resumption Pre-acquisition losses Severance: loss to retained land Severance: enhancement to retained land Injurious affection Solatium Outstanding pre-existing claims Contract of sale Leases Mortgages Easements Lesser interests Legal and valuation expenses

Advance payment Payment of interest Disputed claims Time limitations Hearings Court costs Appeals Incapacity of claimant Compensation held in trust Federal income tax Capital gains tax

Chapter 4

VALUATION

Value Valuers Valuer-general Facts, law, inferences, opinions, reasons Valuation principles Valuation report Opinionative activity Hearsay evidence Differing valuations Method of valuation Comparable sales Sales after resumption Sales to resuming authority Earlier sales of resumed land Earlier offers to buy resumed land

Other valuations of resumed land Possible changes in land use Land ripe for subdivision Profit and risk factor Part of land ripe for subdivision Capitalisation Productive capacity Summation Before and after Valuers’ liability Lawyers’ liability Judicial responsibility Just laws? Index

[page 1]

1 ACQUIRING EXECUTIVE POWER [1.1] Australia consists of nine separate and distinct territorial jurisdictions: the Commonwealth, New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the Northern Territory and the Australian Capital Territory. Each jurisdiction has enacted legislation granting power to their executive arm of government to acquire land by compulsory means. In broad terms, the respective legislatures have granted power to the executive to acquire privately owned land for government projects and purposes. The taking of such land does not require the consent of the landowner. The landowner is deprived of the land but is entitled to be paid compensation for that loss. There may be occasional exceptions but they are rare occurrences. A landowner who can claim to be the fifth generation to own the land has no better a claim for compensation than the owner who has only recently acquired the land. The compulsory acquisition of land comprises the procedure to be followed by the acquiring authority; the rights of the landowner; and the award and assessment of compensation to the owner who becomes dispossessed. The citizens of the nation accept that a landowner who is deprived of the land may be unfortunate or unlucky but the taking of their land, for the good of the community as a whole, is necessary. It may be regarded by the community as a regrettable but necessary episode. The legislation aims to ensure that the owner does not suffer a loss from a financial point of view.

RESUMPTION STATUTES [1.2] The law of compulsory acquisition is frequently termed ‘resumption’. It is a term of convenience. The principal statutes governing the procedure and the taking of land currently in force are: (i)

Lands Acquisition Act 1989 (Cth);

(ii) Land Acquisition (Just Terms Compensation) Act 1991 (NSW); (iii) Land Acquisition and Compensation Act 1986 (Vic); (iv) Acquisition of Land Act 1967 (Qld); (v)

Land Administration Act 1997 (WA);

(vi) Land Acquisition Act 1969 (SA); (vii) Land Acquisition Act 1993 (Tas); [page 2] (viii) Lands Acquisition Act 1978 (NT); (ix) Lands Acquisition Act 1994 (ACT). Each of these statutes comprises a comprehensive code governing the procedure to be followed where the authority, vested with powers of compulsory acquisition, initiates the process of taking land. In addition, each of the statutes lays down the factors or matters to be considered when determining the amount of compensation to be paid to the dispossessed owner. Each statute must be interpreted and applied independently and separately from any other statute.

EARLIER LEGISLATION [1.3] Earlier legislation stretches back to the 19th century. The legislation enacted in the Australian colonies adopted many of the provisions contained in the Lands Clauses Consolidation Act 1845 (England). Occasionally the

courts in Australia may see fit to trace back a particular aspect to the Act of 1845 and to earlier state legislation but none of the repealed legislation is relevant today. The current statutes replaced the following legislation: Lands Acquisition Act 1955 (Cth); Public Works Act 1912 (NSW); Land Compensation Act 1958 (Vic); Public Works Land Resumption Act 1906 (Qld); Public Works and Land Acquisition Act 1902 (WA); Compulsory Acquisition of Land Act 1925 (SA); and Lands Resumption Act 1957 (Tas). Some of the provisions in these Acts have been re-enacted in the current statutes. It follows that the case law construing a provision in the repealed legislation, which is identical or similar to that in the current legislation, may be relevant.

UNIFORM LEGISLATION [1.4] To those who would prefer the federal, state and territory legislatures to enact uniform legislation when attempting to achieve the same object, resumption law must be a disappointment. The nine resumption statutes are different in detail from each other. Both territories, however, were strongly influenced by the Commonwealth legislation. The New South Wales Act may have examined the Commonwealth and Victorian Acts but it also took into account the provisions of the Public Works and Procurement Act 1912 (NSW) and did not make many radical changes from that Act. The New South Wales Act adopted the concept of a pre-acquisition declaration from the Commonwealth Act instead of a notice of intention to resume. This was a cosmetic change and not one of substance. It was a change that has not found favour elsewhere. None of the changes contained in the Commonwealth and New South Wales Acts appear to have had any influence in the Tasmanian or Western Australian legislatures when they enacted new legislation in 1993 and 1999 respectively. Both the Tasmanian and Western Australian Acts were essentially tidying up operations of earlier legislation. Neither legislature sought to introduce fresh ideas or concepts into their established practice under the replaced legislation.

[page 3] Despite the considerable differences in the nine enactments, they share common ground. When finally compensated, a dispossessed landowner would be unlikely to maintain that he or she would have received a significantly larger award of compensation in a different jurisdiction. Each of the statutes focuses on finding the market value of the land taken. The supplementary provisions may differ slightly, for example, in respect of the award of a solatium and, if so, by how much. The inclusion of the expression ‘just terms’ in four Acts does not mean that the omission of the term in other Acts results in a claimant for compensation being treated unjustly. Even without the statute having specific reference to ‘just terms’, s 51(xxxi) of the Constitution imputes this requirement. However, the statutes share common ground in ensuring that the dispossessed owners receive fair and reasonable compensation in exchange for their eviction from the land. None of the nine Acts is a model of excellence. Most of them are tediously and unnecessarily lengthy. Yet it is not defects in the legislation that create the main difficulties in resumption. Even if there were a 10-page masterpiece of drafting containing all the essential provisions which each of the nine jurisdictions voluntarily and willingly adopted, it would make little difference to the primary difficulty in valuing the land and awarding fair and reasonable compensation. It is the factual complexities in determining compensation that result in such formidable tasks for claimants, administrators, valuers and the courts. Uniform legislation, expertly drafted, would have little impact on solving these problems. The current legislation is adequate despite its faults, even though some of the legislation appears to make the subject more difficult than it should be.

ENGLISH LAW [1.5]

The origins of the Australian resumption statutes can be traced back

to the Lands Clauses Consolidation Act 1845 (England). In due course the colonial legislatures in the six states replaced their colonial legislation and framed new legislation which was later repealed and replaced by the current statutes. Nonetheless the English judicial decisions, including decisions of the Judicial Committee of the Privy Council emanating from Australia and from other parts of the British Empire, retained a strong influence in the construction and application of the Australian legislation. That influence has waned if only because of the differences in English and Australian statutory provisions. It is no longer the practice for the Australian courts to seek guidance from recent English judicial decisions. They do, however, continue to refer to earlier judicial authorities which may be conveniently described as having become part of Australian law. The Raja and Pointe Gourde decisions of the Privy Council in 1939 and 1947, discussed in Chapter 3, continue to be regarded as strongly influential and reliable authorities. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 the High Court observed that caution must be exercised in seeking to apply judicial decisions turning on ‘principles’ derived from early English [page 4] resumption statutes expressed in terse or spare language. The machinery of modern land use regulation has become complex, its procedures protracted and the range of participating bodies is extensive. Today the legislation in most of the Australian resumption statutes is more comprehensively drawn than in the past. The earlier Australian legislation may have taken into account many of the earlier English statutory provisions and judicial decisions but the current Australian legislation is appreciably different from current English legislation. In Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79 at 96, citing Walker Corporation and Marshall v Director General, Department of Transport (2001) 205 CLR 603 at [62], it was highlighted that though the decisions of courts of other jurisdictions which

deal with similar legal issues should not be blindly followed, such cases may still provide a useful guide for the court. Today little assistance can be derived from the current English decisions construing and applying their compulsory purchase legislation. There may still, however, be occasions when assistance can be derived from earlier English judicial decisions. Pointe Gourde was discussed by the House of Lords in Waters v Welsh Development Agency [2004] 2 All ER 915 with a warning that its principles should not be pressed too far. Lord Nicholls described the Privy Council case of Pointe Gourde as an ‘intractable problem’ and the current English law as ‘fraught with complexity and obscurity’. The point was made in Waters that Pointe Gourde was decided when the statutory provisions in Trinidad were not exhaustive as to what was to be considered in valuing land for the purposes of assessing compensation and were to be supplemented by principles from case law. Lord Brown described Pointe Gourde as a ‘misconceived accretion’ to the legislative scheme and speculated whether it had survived English legislation. In Walker, above, it was made clear by the High Court that the compensation provisions in the Land Acquisition (Just Terms Compensation) Act (NSW) no longer relied directly on Pointe Gourde.

TERMINOLOGY [1.6] In the early days of settlement in the 19th century, grants of land often contained a clause permitting the Crown to ‘resume’ a portion of that land for public works. When legislation was introduced to acquire land by compulsory means the subject retained the term ‘resumption’. Although most of the land acquisition statutes no longer use the term ‘resumption’, it remains a convenient word to describe the compulsory acquisition of land. All the superior courts use the term, including the Justices of the High Court. The clauses in the grants of land whereby the Crown could take back a portion for specific purposes, for example, construction of a road, are no longer exercised by the Crown. The term ‘resumption’ has survived. It relates

to a specific kind of acquisition bearing in mind that a state or territory can acquire land by agreement. Even though the Land Acquisition and Compensation Act (Vic) expressly removed the word ‘resumption’ from all statutes relating to land, that removal did not deter the Victorian [page 5] courts from using the term ‘resumption’ as a means of describing the taking of land by compulsion. Indeed, s 38(3) of the Victorian Act itself maintains the word ‘resume’. The term ‘resumption’ avoids ambiguity. It is well understood in the law as relating to the compulsory taking of land only. The ordinary meaning of the word ‘resume’ means to begin again something that has been interrupted. In the law it is merely a convenient word to describe the compulsory taking of land by the government or by some other authority. The subject is often described in English law as ‘compulsory purchase’. The taking of land was regarded as a compulsory contract of sale. All that needed to be done was to establish the market price of the land and for the purchaser (the authority) to pay the vendor (the dispossessed owner) that sum. The expression ‘compulsory purchase’ is seldom, if ever, used today to describe resumption in Australia. The term ‘compulsory acquisition’ is common and the short titles of almost all the current resumption statutes contain the word ‘acquisition’ in preference to ‘resumption’. In Canada and South Africa the subject is labelled ‘expropriation’. In the United States the subject is often known as ‘eminent domain’. New Zealand uses the term ‘compulsory acquisition’ while Hong Kong uses the term ‘resumption’. The law reports, digests and journals index the subject under differing heads: volume 28, Laws of Australia indexes the subject under ‘Real Property’; volume 22, Halsbury’s Laws of Australia, 4th edition indexes the subject under ‘Real Property’; Australian Current Law and Australian Digest (3rd

edition) index the subject under ‘Real estate’. The Australian Digest uses the subheading ‘Resumption or Acquisition of Land’. Volume 18, Halsbury’s Laws of England, 4th edition, classifies the subject under its own title, ‘Compulsory Acquisition of Land’. In the law reports the subject is usually to be found under the headings — ‘Acquisition’, ‘Land acquisition’, ‘Compulsory acquisition’, ‘Resumption’, ‘Valuation’ or as one of these subheadings under ‘Real estate’. Similar headings can be found in online versions of Halsbury’s Laws of Australia and Halsbury’s Laws of England.

BASIC FEATURES [1.7] (i)

The basic features of resumption are: The process commences when an authority, with the relevant powers, makes a unilateral decision to resume land and communicates that decision to its owner.

(ii) The owner ceases to be the title holder of the land and becomes a claimant for compensation for the loss of the land. (iii) The dispossession is permanent, although immediate transfer of possession is unusual. (iv) Either the landowner makes a claim for compensation, or, the authority makes an offer of compensation. [page 6] (v)

Where the authority and the claimant are unable to agree on the amount of compensation, the claimant has a right to institute proceedings in a court of law to determine the amount of compensation to be paid.

OTHER ACTIVITIES AFFECTING LAND

[1.8] There are other activities that bear some resemblance to resumption. An authority may have powers of entry on to a person’s land and remain there to use it for a specific purpose. For example, a road authority may have power to enter upon land and take gravel for the purpose of road construction or maintenance. It may enter upon the land to survey it. The authority does not resume the land. The owner remains in possession during the temporary entry. There is an interference with the possession but that interference does not amount to resumption. For example, in Spencer v Commonwealth (2016) 328 ALR 16, the Commonwealth and state’s natural resource management laws prohibited the clearance of native vegetation. The appellant argued that because of the clearance laws, the rights he could exercise over the property were sterilised and constituted an acquisition by the government. Though the court found that there was a ‘taking’ of land and the proprietary rights of the appellant had been substantially altered, it held that proprietary rights may be taken and/or extinguished without being acquired. Only where an authority has a level of control which equates to a deprivation of the ‘reality of proprietorship’ may it be sufficient to amount to acquisition. The court emphasised that acquisition is distinct from deprivation and that the modification or deprivation of proprietary rights does not itself constitute acquisition. The margin between control by regulation and acquisition will depend on the subject matter of the laws in question. In Spencer’s case, the court held that the vegetation laws did not create a legal relationship of proprietary character between the Commonwealth and the land in question. Similarly, the tobacco plain packaging case of JT International SA v Commonwealth [2012] HCA 43 also considered the characterisation of ‘control’ in relation to property acquisition. Hayne and Bell JJ concluded that compliance with federal law did not establish a proprietary relationship between the Commonwealth and the packaging. In Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 119 ALR 577, the plaintiff sought a full refund of a sales tax on swimming pools as the Act

implementing the tax was later found to be invalid. However, the Commonwealth refused to refund the entire amount paid in tax as it claimed it was only liable to pay the amount provided for under the subsequent tax refund Act. The court explored the issue of property acquisition and held that the extinguishment of a right of an owner does not amount to an acquisition of property. It also ruled that in order for there to be an acquisition, there must be an identifiable benefit or advantage relating to the use and/or ownership of the property. [page 7] A federal or state government may have power to requisition land in times of emergency. In this situation the government may take temporary possession and exclude the owner from possession. The fire brigade may have power to act in an emergency and evict an owner temporarily to prevent a fire destroying the owner’s property or other property. There is no permanent taking of the land. There is a wide range of government activities and rules which impinge upon the use and enjoyment of privately owner land. There are environmental, planning and building rules that directly and indirectly affect the use of land. A local authority or electricity commission may have power to order a landowner to lower the height and extent of trees growing on the property close to power lines. Both in urban and rural areas a landowner is required to comply with an increasing body of regulations. These regulations and activities are not part of resumption law. Resumption is concerned with one principal activity: the compulsory eviction of a landowner and others from the property in return for the payment of compensation for the loss that land. A change in planning controls may adversely affect an owner’s land to the extent of adversely affecting some of the owner’s rights in the land. A right to subdivide may be taken away in consequence but in some instances

there may be a statutory right to compensation: Chang v Laidley Shire Council (2007) 154 LGERA 297. But it does not amount to resumption. An activity similar to resumption may arise under mining law whereby a miner is given a statutory right to prospect, explore or mine on privately owned land. For example, the Mineral Resources Act 1989 (Qld) may grant a mining tenement, which by s 422 means a prospecting permit, mining claim, exploration permit, mineral development licence or mining lease. The holder of a mining tenement is granted a right of access over privately owned land subject to the owner being compensated. If the compensation is not agreed between the miner and the landowner, the Land and Resources Tribunal may determine the appropriate compensation. The matters which the Tribunal takes into account, by s 281 of the Mineral Resources Act, are: (i)

deprivation of possession of the surface of the land;

(ii) diminution of the value of the land; (iii) diminution of the use made of the land; (iv) severance; (v)

any surface right of access; and

(vi) any loss or expense that may arise. Similarly, s 123(4) of the Mining Act 1978 (WA) has a comparable list of factors which the Warden’s Court must consider where a mining tenement is granted to a miner. However, as noted in Western Australia/Roberta Vera Thomas (Waljen)/Austwhim Resources Nl; Aurora Gold (WA) Ltd [1996] NNTTA 30, the list of factors provided is likely to be non-exhaustive. The subsection also includes ‘social disruption’ as one of the factors to be taken into account that is not included in the Queensland provisions. [page 8] The subsection also includes any reasonable expense properly arising from

the need to reduce or control the damage arising from the mining. These compensation provisions are different from the compensation provisions for resumption. The critical difference is that the owner is not wholly dispossessed and the access is, in most instances, not permanent. The procedure does not normally involve eviction. In English law where there is statutory power to take mere possession of land without acquisition of any estate or interest in it apart from possession, it is described as having been requisitioned. The terms of this statutory power will determine whether compensation is payable or not. There are other ways in which an authority may acquire land. It may be the lessor of land and instead of resuming it, waits until the lease expires when it becomes the sole person with an interest in the land. Its decision to wait until the lease runs out rather than resume the lessee’s interest in the land is not part of the law of resumption. A wide range of powers may be exercised by statutory authorities that come close to resumption. For example, in Connor v Bacchus Marsh Sewerage Authority (1967) 22 LGRA 123 the relevant statute gave power to the authority to construct a sewer upon privately owned land. It was held that the exercise of that power was not a resumption. The vesting of the sewer in the authority did not amount to a compulsory acquisition. The statute contained its own compensation provisions providing the owner with recompense for all damage caused by the construction of the sewer. The owner remained in possession. There was interference with the land but there was no taking of all the interests in the land. Privately owned land may be forfeited to the government where a landowner is convicted of a trafficking offence. In Director of Public Prosecutions v Le (2007) 15 VR 352 the offender’s apartment, which was used to store and prepare heroin, was forfeited under the provisions of the Confiscation Act 1997 (Vic). Notably, Lee v Director of Public Prosecutions (2009) 75 NSWLR 581 at 586 highlights that confiscation is an exception to the constitutional requirement of compensation on just terms. In another

instance land may result in forfeiture to a government instrumentality as a result of an unpaid debt. In both cases the Crown is not obliged to use the land for any specific purpose but may sell it to any person willing to buy it.

POWERS OF RESUMPTION [1.9] The statutory power to resume land may be found in the general acquisition statutes, listed in 1.2 or in a separate Act. For example, the power of a local authority to resume land may lie in the resumption statute, in local government legislation or in other legislation. In nearly all situations, the procedure to be followed lies in the resumption statute. The power of resumption in New South Wales, Victoria and South Australia lies outside the resumption statutes in other legislation. The resumption statutes of the Commonwealth, Queensland, Western Australia [page 9] and Tasmania contain powers of resumption. This does not preclude other legislation from containing powers of resumption. In the Northern Territory and the Australian Capital Territory, broadly speaking, the legislation enables resumption to be carried out for purposes which are within the scope of a territory’s power to make laws.

EXCLUSION OF GENERAL RESUMPTION PROVISIONS [1.10] In the past a number of statutes contained not only a power of resumption but also contained their own procedural and compensation provisions. Those statutes may have expressly excluded the operation of the general, procedural provisions of the resumption statute. Alternatively, the general resumption statute may have been excluded by implication. The trend today is to bring all resumption under the umbrella of the general procedural

statutes. Section 4 of the Land Acquisition and Compensation Act (Vic) goes so far as to provide that an authority which is empowered under a special Act to acquire land by compulsory means must not acquire that land except in accordance with the 1986 procedural statute. In other jurisdictions it may remain possible for the general resumption statute to be excluded. The exclusion provision may be expressed in unequivocal terms. In Hill v Western Australian Planning Commission (2000) 107 LGERA 229, an application to extend a piggery business was rejected by the commission. The business claimed for injurious affection. Under the provisions of the Metropolitan Region Town Planning Scheme Act 1959 (WA) (since repealed), the commission elected not to pay compensation for injurious affection but to acquire the land, whereby that Act provided the commission was obliged to pay the market value of the land. The claimants contended that the compensation should have been assessed under the provisions of the Land Administration Act (WA). It was held that the provisions of the latter Act did not apply. The 1959 Act contained its own compensation provisions and restricted the compensation to the resumed land’s market value and excluded special value. In the absence of express provisions either in the general resumption statute or in the special statute including or excluding the general resumption statute, the issue has arisen whether the procedure laid down in the general resumption statute is incorporated by implication. That issue arose in Minister for Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 where it was argued that the Lands Acquisition Act 1906 (Cth) (now repealed) was incorporated by implication into a resumption of land made under the National Security Act 1939 (Cth) (now repealed). The High Court held that the regulations made under the Act of 1939 created a new and complete procedure for the recovery of compensation and that the value of the property taken must be ascertained in accordance with the rule of assessment lawfully set up by the legislation authorising the taking of the property. Today it is unusual to find the general resumption statutes excluded from

resumptions authorised under special statutes. But it does occur [page 10] occasionally. In Surveyor-General v Seychell (2002) 118 LGERA 412 the council proposed to alter the boundary of certain land in order to realign a road. The existing road did not accord with the plans kept by the surveyorgeneral. The parties affected by the proposal lodged a caveat to prevent realignment. The surveyor-general applied for an order to remove the caveat. Granting the application, it was observed by the court that the local government statute did not make provision for payment of compensation. The provisions of the Acquisition of Land Act (Qld) were not incorporated. Nevertheless, it was held that under the principle that a statute will not be read as authorising appropriation of property unless an intention to do so is clearly expressed in the statute, the persons whose land might be acquired were entitled to compensation. In Ibos Pty Ltd v DHSH (Australia) Travel Pty Ltd (2007) 152 LGERA 348 not only was the power to acquire land contained in the Roads Act 1993 (NSW), but so also were the procedure and compensation provisions contained in that Act. The Land Acquisition (Just Terms Compensation) Act (NSW) s 8 provides that the Act is to prevail over other Acts relating to the acquisition of land. Section 7 was also amended in 2009 to include s 7(2) which stipulates that the power of an authority of the state to acquire land under another Act is qualified by ss 7A and 7B. Section 7A empowers the authority of the state to comply with any relevant procedures under the Native Title Act 1993 (Cth) for a valid acquisition of Native Title rights and interests. Section 7B empowers the authority to acquire land vested in the authority itself. Land Acquisition and Compensation Act (Vic) s 3(3) provides that where a special Act is inconsistent with a provision of this Act, the provision of this Act prevails.

CONSTITUTIONAL LIMITATION — JUST TERMS [1.11] Background. The Commonwealth Government was created by the Australian states at the beginning of the 20th century. In framing a constitution, the states sought to bestow adequate but not unfettered powers on the Commonwealth Parliament and Government. In particular, the states wished to ensure that the Commonwealth had power to acquire land but insisted that it did so on ‘just terms’. Section 51 of the Australian Constitution provides that the Commonwealth Parliament ‘shall subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to …’ a list of named subjects. Among the list is placitum (para (xxxi)) which refers to the ‘acquisition of property on just terms from any state or person for any purpose in respect of which the parliament has power to make laws’. The Australian Constitution sought to define the respective responsibilities and powers of the Commonwealth Parliament and the state parliaments. Section 51(xxxi) expressly grants power to the Commonwealth Parliament to enact legislation to resume not only privately owned land but also land owned by a state. Two limitations restrict this power. First, the land must be for a purpose in respect of which the Commonwealth had a [page 11] constitutional right to make laws. Defence, for example, is a subject that is the Commonwealth’s responsibility. Thus it can resume land for defence purposes. Second, such a law must make provision for ‘just terms’. In simple terms, if the Commonwealth wishes to resume land it must make provision for the taking to be made on ‘just terms’ which includes the payment of fair compensation. Property. Section 51(xxxi) refers to ‘property’. This term refers to both real and personal property. Many of the reported decisions examining the

operation of s 51(xxxi) concern personal property and are outside the scope of this book. Yet some of the cases relating to personal property may be relevant as they may also apply to real property. In Australasian United Navigation Co Ltd v Shipping Control Board (1945) 71 CLR 508 the High Court held that the requisitioning of a ship did not amount to an ‘an acquisition of property’ for the purposes of placitum (para (xxxi)). When it comes to consider a ‘requisition’ of land the decision may well be of assistance in determining the meaning of that term and whether it amounts to a resumption of land. Again, in Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 the Civil Aviation Act 1988 (Cth) allowed the aviation authority to charge air lines for air traffic, rescue, firefighting and meteorological services. The Act also permitted the authority to put a lien over any aircraft as security for any amount owing. The High Court held that this was not an acquisition of property under s 51(xxxi). If the lien had been over land, presumably the High Court would give the same answer. The term ‘property’ in s 51(xxxi) is generally given a wide meaning. The question asked in Commonwealth v New South Wales (1923) 33 CLR 1 was whether the Commonwealth had power to acquire royal metals in land. The High Court held that no limitation is placed by the constitution on the property in respect of which the Commonwealth may legislate. The only requirement is the limitation of ‘just terms’ and for any purpose in respect of which the Commonwealth Parliament has power to make laws. In examining the approach of the High Court to s 51(xxxi) it has been argued that the court gives the placitum a purposive interpretation as distinct from a literal or originalist interpretation. In particular the court has given the term ‘property’ a broad interpretation. It is impossible to define with precision the extent or boundaries of the term ‘property’ in s 51(xxxi). In Minister of State for Army v Dalziel (1944) 68 CLR 261, the claimant operated a parking lot on land that he held under a weekly tenancy. Regulations made under the National Security Act 1939

(Cth) (since repealed) authorised the Army to take exclusive possession of land for an indefinite period. The claimant was offered compensation to cover the cost of his rental payments but was refused compensation for the loss of profit from his parking business. The claimant remained the lessee of the land and the landlord remained the lessor. The Army became the possessor of the land. The High Court was divided on whether the Army was acquiring ‘property’. There was an interference with property rights [page 12] which could only be taken on ‘just terms’. In this instance the Army was taking one of the interests in the land, but not all of them. There are occasions when legislation placing restrictions on land can, arguably, come within the term ‘property’ in s 51(xxxi). In Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam case) the Commonwealth legislation restricted development on certain land in the island when done without the consent of the Commonwealth Government. The state challenged the legislation on the ground, inter alia, that the restrictions amounted to acquisition of land on terms that were not just. While there was not unanimity among the Justices on the point, it was held that the prohibition of the use of the property to construct a reservoir was not an acquisition of property for the purposes of s 51(xxxi). It was not enough that the legislation adversely affected or terminated a pre-existing right that the state enjoyed in relation to its property. An interest in property, however slight or insubstantial, had to be acquired (at 145). The Commonwealth had not gained some property from the state (at 181). As the Commonwealth had acquired no property the question of just terms did not arise (at 248). Mere extinguishment of rights in relation to property did not involve acquisition (at 283). Another illustration of the task the courts face in determining the extent of

the term ‘property’ arose in Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 where the mining company held exploration permits in certain areas of the sea between Australia and East Timor at a time when the sovereignty over the area was disputed by Australia and Indonesia. As a result of a treaty made between the two nations in 1989 some of the area was excised from the permits. The company claimed that the excision of the area previously covered by the permits resulted in an acquisition of property other than on just terms. In a majority decision, the High Court held that the excision under the relevant legislation was not an acquisition of property under s 51(xxxi). The construction of the term ‘property’ was again revisited in Cunningham v Commonwealth [2016] HCA 39. In the joint judgment of French CJ, Kiefel and Bell JJ, it was noted that ‘property’ had generally been construed liberally in the High Court. Importantly, the judgment suggested that there was a useful distinction between rights recognised by general law and rights which did not exist outside of statute and relied on statute for their continued existence. In the latter scenario, it was held that the character and context of some statutory rights ‘can be regarded as inherently variable’ (at [43]). Statutory remuneration and retiring allowances were deemed to fall into such a category. Just terms. Section 51(xxxi) of the Constitution has two main purposes. First, it provides the Commonwealth Parliament with a legislative power of acquiring property. Second, it imposes a condition that the Commonwealth legislation provides for just recompense. The term ‘just terms’ is included to prevent the arbitrary exercise of the power at the expense of a state or a subject: Health Insurance Commission v Peverill (1994) 179 CLR 226. [page 13] In Cunningham v Commonwealth [2016] HCA 39, four retired members of parliament appealed amendments which resulted in their loss of entitlement

to certain travel allowances. The plaintiffs argued that they were entitled to compensation by characterising the loss of their travel entitlements as compulsorily acquired property by the Commonwealth. In responding to these submissions, the court applied a number of cases which noted that the ‘just terms’ condition prevented arbitrary exercises of power and provided a means to ensure fair standards of compensation. The plaintiffs were unsuccessful in their claim given, amongst other issues, that s 51(xxxi) did not operate to protect payments made available under a Commonwealth statute from changing. The expression ‘just terms’ is, perhaps, not an ideal term to use in respect of an activity which may be regarded by a dispossessed owner as inherently unjust. Owners may regard the unilateral decision to deprive them of their land as outrageous. Regardless of how ‘generous’ the compensation may be, the grievance of the loss of the particular land may linger for many years. Whether the use of words ‘just compensation’ means anything more than ‘compensation’, ‘full compensation’, ‘fair compensation’ or ‘reasonable compensation’ is unlikely. In Commonwealth v Western Australia (1999) 196 CLR 392 the relevant defence regulations gave the Commonwealth the right to use land belonging to Western Australia and others for defence practice. The regulations provided for ‘reasonable compensation’ to be paid to anyone who suffers loss or damage as a result. It was held that the regulations could stand because of the provision of ‘reasonable compensation’. The term ‘just terms’ extends beyond the limited scope of the payment of a sum of money for the expropriation. It also covers undue delay and in consequence justifies a claim for interest where the compensation has not been paid promptly: Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293. The term ‘just terms’ has been incorporated in some of the resumption statutes in addition to Lands Acquisition Act (Cth) s 93. The Land Acquisition Act (SA) s 3 states that the object of the Act is to provide for the acquisition of land on ‘just terms’. The Land Acquisition (Just Terms

Compensation) Act (NSW) s 3(1) provides that an object of the Act is to ensure compensation on just terms for the owners of land that is acquired by an authority of the state when the land is not available for public sale. The Lands Acquisition Act (NT) s 5 provides that the Act shall be read so as to provide for the acquisition of land on ‘just terms’. The Lands Acquisition Act (ACT) s 78 provides that the court is to ensure ‘just terms’. The resumption legislation in the four states not mentioned — Victoria, Queensland, Western Australia and Tasmania — avoids the use of the expression ‘just terms’. Section 51(xxxi) enables the Commonwealth to take land compulsorily from a state on just terms. It does not enable a state to take land compulsorily from the Commonwealth either on just or unjust terms. [page 14] ‘Just terms’ was a central issue in Wurridjal v Commonwealth [2009] HCA 2. In August 2007 the Commonwealth enacted legislation to deal with alleged general abuse of Aboriginal children in the Northern Territory and associated problems relating to alcohol and drug abuse, pornography and gambling. For this purpose, a five-year lease on certain land was granted to the Commonwealth. This land was held by an Aboriginal trust. Members of a local desert group claimed that the Commonwealth was acquiring land but was not acquiring it on just terms as required by s 51(xxxi) of the Constitution. In separate judgments from five Justices and one joint judgment from two Justices, running to more than half the length of this book, the High Court held that the relevant legislation afforded ‘just terms’ to the acquisition largely because it allowed for reasonable compensation even if an agreement wasn’t made between the Aboriginal trust and the Commonwealth. An attempt to extend s 51(xxxi) to apply to state legislation was defeated in a referendum in 1988.

Acquisition by agreement. Section 51(xxxi) refers simply to acquisition of property. It extends beyond compulsory acquisition of property to acquisition by agreement. The Lands Acquisition Act (Cth) s 16 covers both compulsory acquisition of land and acquisition of land by agreement.

COMMONWEALTH LEGISLATION [1.12] The Commonwealth legislation governing the resumption of land began with the Acquisition of Property for Public Purposes Act 1901. It had a short life before it was replaced by the Lands Acquisition Act 1906. That Act remained on the statute books for nearly half a century until it was replaced by the Lands Acquisition Act 1955. The fourth and current statute is the Lands Acquisition Act 1989. It has never been contended successfully in a court of law that any of the four Acts mentioned in the previous paragraph does not or did not comply with the requirements laid down in s 51(xxxi) of the Constitution. By the Lands Acquisition Act 1989 ss 40 and 41, a minister may compulsorily acquire land for a ‘public purpose’ as meaning a purpose in respect of which the parliament has power to make laws. The Act does not refer to its constitutional obligation to provide ‘just terms’ but s 55(1) does specify that the amount of compensation ‘will justly compensate’ the claimant. The constitutionality of the Act has not been doubted. Whatever shortcomings the earlier legislation may or may not have had, there is no argument about the detail and complexity of the 1989 Act. A significant change was made by s 85 which enables the minister to pay 90 per cent of the amount offered to the dispossessed owner as an advance payment. Whether the provisions governing the assessment of compensation result in a larger amount of compensation payable to the owner of land than under the earlier legislation is a hypothetical question and no attempt is made to answer it. Certainly the compensation provisions are more detailed. On each occasion where a particular issue has been determined

[page 15] by a superior court of law in respect of earlier legislation, the question immediately arises whether the decision applies to the current legislation if the latter is framed in different words. By and large the primary task of the court is to interpret the current provisions afresh. The judicial decision interpreting an earlier provision may assist in interpreting the meaning and application of the new provision but, inevitably, judicial decisions arising from the construction of repealed statutes tend to fade away in importance and authority.

STATE LEGISLATION [1.13] State parliaments have an unchallenged right to enact legislation to expropriate real property. It is a right that flows from the sovereignty of each parliament. Section 51(xxxi) of the Constitution has no application to state legislation. Each of the six state parliaments may enact legislation to take land by compulsory means with or without payment of compensation or with reduced compensation: Commonwealth v New South Wales (1915) 20 CLR 54; Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 149; Pye v Renshaw (1951) 84 CLR 58. The issue arose in Durham Holdings Pty Ltd v New South Wales (2001) 177 ALR 436. By operation of the Coal Acquisition Act 1981 (NSW) s 5, coal in certain lands in New South Wales became vested in the Crown in the right of that state. Under s 6, an instrument was made by the governor providing for payment of compensation described as interim payments. Section 6 was amended in 1990. The instrument limited the interim payments to $60m that might be paid to certain mining companies, of which Durham Holdings was one. The effect was to cap compensation payable to Durham to $23.5m. Durham claimed compensation of over $93m less the interim payments already received. Durham contended that the governor’s instrument was

invalid because the New South Wales Parliament lacked powers to enact laws for the acquisition of property without compensation. The High Court had no hesitation in confirming that the New South Wales Parliament did not lack power to enact laws for the acquisition of property without payment of compensation. That power was not susceptible to judicial review. Normally, in Australia, where property is compulsorily acquired in accordance with law, the property owner is compensated justly for the property: Durham, above, at [17]. Australian society expects its state legislatures to protect ownership rights in property. Public opinion might accept the particular situation that arose in Durham but it would be unlikely to approve a general situation whereby property could be resumed without or with reduced compensation. A similar issue was explored in Rafailidis v Roads and Maritime Services (No 2) [2014] NSWLEC 9 where the Roads and Maritime Services sought to acquire a strip of the applicant’s land for the purpose of widening the Camden Valley Way road. The applicant contended that s 51(xxxi) of the Constitution inferred that compulsory acquisition of land was unlawful. [page 16] In responding to this argument, the court emphasised that para (xxxi) only requires that a disposed owner of property acquired from the exercise of Commonwealth power by an entity of the Commonwealth be provided with just compensation. The applicant further contended that s 51(xxxi) was in conflict with the applicable New South Wales Act. Here, Craig J highlighted that reference to ‘the Parliament’ in the Constitution refers to the Commonwealth Parliament. Therefore para (xxxi) was not a provision which controlled the New South Wales Parliament’s ability to legislate on compulsory acquisition. Further, the provision did not limit the state

parliament’s ability to control the means by which compensation, if any, is to be determined. Within the legal system, the courts will presume that legislation — federal, state or territory, or subordinate legislation rules or regulations made under parliamentary legislation — does not amend the common law to derogate from important rights enjoyed under the law, except by provisions expressed in clear, unequivocal language: Durham 177 ALR at [28]. The High Court has stated this principle on numerous occasions, for example, in C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 at 406 Kitto J highlighted that statutes will not be interpreted as enabling the requisition of a person’s goods without payment unless the ‘intention to do so is clearly expressed’. In Mabo v Queensland (No 2) (1992) 175 CLR 1 at 111, in the context of native title, the court highlighted that the extinguishing of title was not beyond reach of legislative power. However, in order to extinguish such title without fair compensation would have to be made clear using ‘clear and unambiguous words’: Wik Peoples v Queensland (1996) 187 CLR 1 at 155 and 247. The principle, often described as the ‘principle of legality’, was aptly summarised by French CJ in Momcilovic v R (2011) 245 CLR 1 at 46–7. His Honour highlighted that the principle of legality itself was not a constraint on legislative power. However, it was noted that the principle presumes ‘that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’. The reason for such a requirement is to ensure the parliament remains accountable to the electorate for any such encroachment of rights. It is also well established that legislation should not be construed to deprive a person of land or its beneficial enjoyment without compensation unless a state legislature has expressed that clear intention: Kettering v Noosa Shire Council (2004) 134 LGERA 99 at [31]; Cameron v Noosa Shire Council (2006) 145 LGERA 316. However, Sleeman v SPI Electricity Pty Ltd [2014] VSCA 243 at [99] provides a distinction between deprivation of compensation for resumed land and mere ‘injurious affection’ as a result of the resumption of land. In Sleeman, the respondent relocated

various electricity poles which subsequently affected the appellant’s plans of a proposed aerodrome. The court found that though in Kettering the court upheld that compensation was not limited by the legislation as it was not sufficiently clear, a similar principle could not be applied to applicants who suffered injurious affection. The court emphasised that no Australian case had awarded compensation [page 17] for injurious affection where the applicant’s land had not been partially acquired or had works undertaken upon their land.

TERRITORY LEGISLATION [1.14] By the Northern Territory (Self-Government) Act 1978 (Cth) s 50(1), the power of the Legislative Assembly (NT) conferred by s 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms. There is no reason to doubt the validity of the Lands Acquisition Act (NT). By the Northern Territory (Self-Government) Act s 50(2), subject to s 70, the acquisition of any property in the territory which, if the property were in a state, would be an acquisition to which s 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms. By s 70, the minister may, from time to time, recommend to the governor-general that any interest in land vested or to be vested in the territory by s 69(2) (relating to the transfer of property), be acquired from the territory by the Federal Government. Likewise there is no reason to doubt the validity of the Lands Acquisition Act (ACT) which is closely modelled on the Lands Acquisition Act (Cth). Section 78 requires that the courts must ensure that the acquisition is made on just terms.

The principle that an interest in land cannot be taken by a state or territory government without express legislation and without payment of just compensation applied in Rashleigh v Environmental Protection Authority (2005) 138 LGERA 310 where the lessees of a property engaged landscape architects to design a new garden. This involved, among other things, the planting of trees and shrubs and drilling a bore at a cost of approximately $200,000. Five years after drilling and using the borehole for irrigation purposes, the lessees were told by officers of the authority that they needed a licence. The lessees were unaware that they needed a licence. An application for a licence was refused and an appeal made to the Administrative Appeals Tribunal was dismissed. On further appeal to the Supreme Court (ACT) it was held that the lessees had a legitimate right to expect a licence. The Water Resources Act 1998 (ACT) (since repealed) would not be construed as taking away an existing common law right to access the water beneath the surface.

JUDICIAL DECISIONS [1.15] The law governing the compulsory acquisition of land is the creation of statute. The power to resume land must be found in a specific Act or in the relevant acquisition statute. The procedural and compensation provisions are contained in the general land acquisition Acts listed at 1.2. There is no common law of resumption. That is to say, there is no foundation of judicial decisions on which the first statutes to be enacted were built. [page 18] Judicial decisions of the superior courts interpreting the statutory provisions are a secondary source of resumption law. In resumption law judicial decisions of the superior courts are of different kinds. Some judicial decisions are binding and must be followed in subsequent cases. Others are of a persuasive nature. A decision of a superior court of law on the meaning and

application of the statute under which the land has been or is being resumed is binding on successive courts in accordance with the doctrine of judicial precedence. A decision of a superior court on a similar provision in a resumption statute of another Australian jurisdiction is no more than persuasive. It may be strongly persuasive if the relevant statutory provisions are similar. Bearing in mind that the compensation provisions in each of the nine Australian jurisdictions have a similar object, judicial decisions on another resumption enactment may assist a court in determining a particular issue. This is particularly true of a decision of the High Court. A decision by the High Court on, for example, disturbance in respect of the legislation of one state may be strongly persuasive in another jurisdiction. It would need to be distinguished if it were not to be followed. In Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 19 ALR 453, the Privy Council observed that the principles governing the valuation of land are recognised as being part of the common law. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489, the High Court modified this observation. It held that the reference in Melwood was better understood as a reference to a body of case law which may be built up in various jurisdictions where there are in force statutes in the same terms, or, at least, in relevantly similar terms. No court should ‘slavishly’ follow judicial decisions of another jurisdiction in respect of similar or even identical legislation. It was not to be assumed that statutes, such as the Land Acquisition (Just Terms Compensation) Act (NSW), reproduce an understanding of ‘principles’ delivered by way of gloss upon the terms of earlier legislation. There is no common law principle which is engaged in resumption cases because acquisition and compensation are entirely the creation of statute. In the Court of Appeal (NSW) Spiegelman CJ observed in Commonwealth Custodial Services Ltd v Valuer-General (2007) 156 LGERA 186 at [5], citing his own words in Leichhardt Municipal Council v Roads and Traffic Authority (2006) 149 LGERA 439 at [36]:

An assumption that there is in existence some abstract body of ‘valuation principles’ applicable in all contexts, irrespective of the statutory scheme or contractual provision, is liable to lead to error. Judgments in one context may prove instructive by way of analogy when dealing with another context. Nevertheless, statutory differences must be borne in mind. The ultimate task must always come back to the application of the principles in the particular context … The starting point is always to commence with the precise words of the statute.

[page 19] Each of the current resumption Acts in the Commonwealth and the six states was enacted between the years 1967 (Qld) and 1997 (WA). Each of these seven resumption Acts repealed and replaced earlier legislation. None of these seven replacement Acts made radical changes to the law but changes were made. This fact calls into question the applicability and authority of judicial decisions made in respect of repealed legislation. Indeed, within this chapter alone, this book has noted on several occasions reference to legislation that has since been repealed. Some of the provisions in the repealed Acts were reenacted in the current statutes using the identical wording or with minimal changes to wording. It would be fair to say that in many instances the provisions in the current Acts continued the provisions in the repealed legislation. Even decisions such as Spencer (see 3.14) decided by the High Court in 1907, generally regarded as being the most significant judicial contribution to resumption law, raises the question whether it is consistent with the statutory provisions in the Lands Acquisition Act (Cth) and in each of the other six state resumption Acts. Likewise a judicial decision on a repealed statutory provision which is similar, even identical, to a current statutory provision in the other six resumption statutes, must be closely examined to determine whether it is applicable or continues to be applicable. In McNamara v Consumer, Trader and Tenancy Tribunal (2005) 221 ALR 285 at [40] the High Court observed that it would be an error to treat what was said in construing one statute as

necessarily controlling the construction of another. The judicial task in statutory construction differs from that in distilling the law from past decisions. It is a characteristic of most judicial decisions construing provisions of the resumption statutes to be long and lengthy. Determining the facts alone is often a difficult task when the court is faced with conflicting valuations in determining the award of compensation. Even a simple expression in a statute like ‘any purpose whatsoever’ in Lands Acquisition Act (NT) s 43(1) can attract four separate judgments in the High Court in Griffiths v Minister for Lands, Planning and Environment (2008) 246 ALR 218 from seven Justices totalling 20,000 words. The central issue was whether to give this expression an unrestricted meaning or to restrict it to a governmental purpose. The majority held that it should be given an unrestricted, literal meaning. As to whether each of the members of the territory’s legislature realised it was giving such wide power to its government is an unanswerable question. The majority of the Justices adhered to the plain words of the subsection. The separate judgments of Kirby J and Kiefel J in dissenting from the majority decision that the statutory words entitled the minister to move privately owned land to other private owners, finds little or no space in this text. The book would double in length if one attempted to include the gist of dissenting judgments in the High Court and in the courts of appeal of the states and territories. The focus is on summarising the majority decision rather than the arguments of the respective parties. Some primary judges also have the capacity to devote many words to the law applicable as distinct from the facts. [page 20] In the century that has followed Spencer the High Court has delivered a multitude of reported cases on the subject of resumption and compensation. Each of these cases has had a major impact on the development and

understanding of the law. Although many of these decisions have involved the construction and application of different statutory provisions, it remains a sustainable proposition that the High Court has exercised a unifying effect on the courts of the nation in respect of resumption. Obviously a High Court decision on one state’s resumption statute may not be applicable to another state’s resumption statute but it often is.

CROWN GRANTS [1.16] From the time of European settlement in the Australian colonies, grants of land were made to settlers. Formal title to land depended upon a grant being made by the Crown to owners and occupiers. The relationship between the Crown and holders of land made under the relevant land laws was that of contract. The grant was in essence a contractual document. It was an express or implied term of the contract that the grantee was entitled to peaceful enjoyment. In making grants to settlers, the Crown generally included a clause reserving to itself a right to resume a portion of the land for public purposes or public works. Until the Crown exercised its right to resume a portion of the land granted, the holder was entitled to ‘absolute enjoyment’: Campbell v Dent (1864) 3 SCR (NSW) 58 at 63. The terms of reservation clauses giving the Crown the right to resume part of the land granted varied. In construing the meanings of these clauses, the rules of common sense and justice prevailed, whether the subject matter of construction be a grant from the Crown or from a subject: ‘it is always a question of intention to be collected from the language used with reference to surrounding circumstances’: Lord v Sydney City Commissioners (1859) 14 ER 991 at 1001. In some grants a specific acreage might be specified; in others a specific percentage of the total area granted might be specified. It was not usual to identify a particular part of the land granted to be resumed. The principal question which arose in respect of resumption made under

the terms of a Crown grant was whether the grantee was entitled to compensation. The Privy Council established in Thomas v Sherwood (1883) 9 App Cas 142 that in the absence of express words in the Crown grant there was no implied term that the grantee was entitled to compensation. In general, it was the intention of the Crown that at some later stage it could take back a portion without any payment being made to the landowner. Some Crown grants did, however, make provision for the payment of compensation where the Crown resumed a portion of land under the terms of the grant. The Privy Council held in Corrie v McDermott [1914] AC 1056 that where the grant makes specific provision for the payment of compensation in the event of resumption, the compensation should be assessed on the same basis as if the land had been resumed under statutory powers. [page 21] The reservation clause entitling the Crown to resume land under the terms of a Crown grant may have been affected by later legislation. Under the Land Administration Act (WA) Sch 2 cl 7(2) if a Crown grant confers on the Crown a right to resume land without payment of compensation, that right is extinguished. The Land Acquisition Act (SA) s 9 provides that this Act does not apply to resumption under the Crown Lands Act 1929 (SA) or the Pastoral Act 1936 (SA). The Land Acquisition Act (Tas) s 74 provides for resumption under a Crown grant to be carried out as if the land were being acquired under this Act and the Crown was an acquiring authority. The practical importance of resumptions made under the terms of Crown grants is diminishing and has become part of legal history. A variety of different factors has rendered it impractical in many instances to exercise the power. Continual subdivision of the original grant made it difficult or impossible to exercise its power efficiently. A reservation clause may specify the purposes for which a portion of the land may be resumed. A clause might

enable the Crown to resume land for the purposes of, say, a road or railway. It may be arguable whether the power could be exercised for a tramway or a bus park. Suffice to say that in the 21st century it is unusual for a state government to exercise any of its remaining powers under reservation clauses in Crown grants.

PREROGATIVE POWERS [1.17] Any prerogative powers of resumption of land that the Crown in right of a state may in time of emergency possess, are currently of little consequence in Australia. All taking of land in private ownership by the Crown or other authorities is undertaken in pursuance of statutory powers. In times of extreme national emergency, it is possible that the Crown might need to justify a taking of land under such residual prerogative power as it may have. The question is normally only one of academic importance in times of peace.

ACQUIRING AUTHORITIES [1.18] The resumption statutes generally describe the executive government with power to take land by compulsory means as the ‘acquiring authority’. The person authorised to resume land may be a governor, a minister, a head of a department or some other agent or instrumentality of the Commonwealth, state or territory. That authority is the person who is authorised by statute to carry out the procedure of taking land compulsorily from start to finish. In the 19th century a colony, or subsequently a state, was conveniently described as the Crown in the right of the colony or the state, say, New South Wales. The Crown was one and invisible. The governor was its head. Today the Crown, now usually called the state, is broken up into ministries or departments, instrumentalities, commissions, agencies, boards and local governments, each with its own legal capacity as if it were an independent

[page 22] corporation. Some of these entities are part of the Crown, others are independent of the Crown, for example, a city council. In resumption the person who exercises the power on behalf of, say, the minister is termed the acquiring authority. One consequence of the division of government into ministries and departments is that disputes occasionally occur between the different arms of the Crown that require resolution by the courts: Ashfield Municipal Council v Roads and Traffic Authority (NSW) (2001) 117 LGERA 203 at 205. An acquiring authority may have the sole power to decide whether or not to resume land. That is to say, the relevant statutory provisions do not require the authority to seek approval of any other organ within the government. Alternatively, the decision to resume may be subject to the approval of a higher authority. For example, the decision of a local government in its role as an acquiring authority may need the approval or consent of the minister responsible for local government matters. The power to resume may be subject to certain matters of procedure being carried out before the decision to resume can be implemented. In some statutes approval or consent may need to be obtained prior to the decision being made. In other statutes the acquiring authority may be entitled to announce its decision but state that the decisions are subject to approval or consent of a higher authority. The manner in which a special statute containing the power of resumption is incorporated or linked with the general resumption statute may vary but the question of approval or consent is generally to be found in the special statute. The question of whether the acquiring authority’s decision to resume is subject to approval or consent is one to be examined by the landowner on whom a notice of intention to resume is served at an early stage in the process.

The identity of the acquiring authority needs to be established clearly. The landowner must be informed which department or organ of government is the acquirer. In Saunders v Railway Commissioners (NSW) (1920) 21 SR (NSW) 7 the relevant statute gave power to the commissioners to undertake and carry out certain works and had ‘the powers of a constructing authority within the meaning of the Public Works Act 1912 (NSW)’. Certain land was resumed and the question arose whether the acquiring authority was either the commissioners or the Crown. At that time the Act of 1912 required that the governor should first direct that the land required for the authorised work should be resumed and the map or plan and book of reference should be confirmed by the governor. It was held that the commissioners were the constructing authority and were in all cases the fiduciary agent of the Crown. In State Electricity Commission (Vic) v McWilliams (1953) 90 CLR 552 the relevant statute empowered the commission to acquire land compulsorily in a specified township or within a radius of 20 miles from the township ‘as the governor-in-council from time to time by order directs’. The High Court [page 23] held that the purposes referred to were those which actuated the governor-incouncil and not the commission; it was not a question of approval, it was a direction of the governor-in-council. In this instance the commission was resuming land for the Crown, its duty to do so being gathered from the nature of the direction. Again in Reith v Town and Country Planning Board (Vic) (1969) 27 LGRA 63 the board prepared a planning scheme which included provision for the compulsory acquisition of land. The board took steps to acquire certain land in its capacity as the ‘responsible authority’ as defined in the relevant legislation. It was held that the board was not the responsible authority. The authority was the council of the local authority. The board had no power of acquisition. Its role was confined to preparing the

planning scheme; the enforcement and the carrying out of the scheme were the responsibility of the council. Difficulty in identifying the acquiring authority may arise where changes occur in legislation during the process. For example, in Palais Parking Station Pty Ltd v Shea (1977) 13 SASR 240 the relevant legislation made the directorgeneral of medical services the promoter of the undertaking of acquiring land for building and premises for hospitals. Subsequently the legislation was amended to make the minister the promoter. The director-general gave notice of intention to resume certain land. It was held that he was not the promoter, that is, the acquiring authority, at the time of giving the notice of intention to resume. Where the authority with power to acquire land is vested in a body as distinct from an office holder, it follows that the officer acting for the body must have been properly appointed by that body to act on its behalf. Where, for example, a city council decides to exercise a power of resumption, the officer appointed to carry out that decision on the council’s behalf must be properly authorised. In Caloundra City Council v Minister for Natural Resources (1999) 106 LGERA 233 the council proposed to resume certain land for car parking. A former owner of the land objected. The objection was heard by the mayor, the chief executive officer and the council’s solicitor. After the hearing the council resolved to make application for the proclamation of the proposed resumption. The objector requested the minister not to sign the proclamation. It argued that the council had not properly delegated its authority to hear the objection to the mayor and two other persons. It was held that the council had not delegated its duty to conduct the hearing. The hearing was fundamentally flawed. Some of the difficulties that may arise in testing the authorisation to resume land became apparent in Re MacTiernan, Minister for Planning and Infrastructure; Ex parte McKay (2007) 151 LGERA 290 where it was argued that the state minister was not authorised for the purposes of the Land Administration Act (WA) s 161 because the relevant Commonwealth

minister had not granted approval as required by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). It was held that the state minister did not require the existence of an unqualified and unconditional lawful right to carry out the work on a new highway before [page 24] the power to acquire the land could be exercised. The term ‘authorised’ in s 161 meant nothing more than ‘sanctioned’ and did not carry the additional connotation of an unqualified and unconditional enforceable right to undertake the work.

LOCAL GOVERNMENTS [1.19] Local governments are vested with statutory power to purchase or resume land. In some jurisdictions, the approval of the minister responsible for local government is required. In others the sole responsibility for the decision to resume lies with the council. By the Local Government Act 1993 (NSW) s 187(1), land that a council is authorised to acquire may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act (NSW). By s 187(2) the approval of the minister is required. By s 188 the owner’s consent is required for re-sale. By s 189 there is no restriction as to the area that may be resumed. By the Local Government Act 1989 (Vic) s 176, a council may acquire land for prescribed purposes in accordance with the Land Acquisition and Compensation Act (Vic). Section 177 governs the sale or disposal of the land resumed. By the Acquisition of Land Act (Qld) s 10(1), the Brisbane City Council may issue a notice of intention to resume land. After considering objections it

may apply by s 10(1A) to the minister for approval of the resumption. By s 10(1D), the governor-in-council may, by gazette notice, approve that the land be taken. By s 10(5) the governor-in-council may approve that a local council other than the Brisbane City Council may take land. By the Local Government Act 1995 (WA) s 3.55 and Land Administration Act (WA) s 161, a local council may resume land. By the Local Government Act 1999 (SA) s 191(1), a council may acquire land for prescribed purposes with the minister’s approval. By s 191(2) the minister’s approval is not required where the land to be resumed is classified by regulation as an approved purpose. By s 191(3) the Land Acquisition Act (SA) applies to the acquisition of land under s 191. By the Local Government Act 1993 (Tas) s 176, a council may acquire land for prescribed purposes in accordance with the Land Acquisition Act (Tas). By the Local Government Act 1993 (NT) s 130(1), a council may apply to the minister to compulsorily acquire land. The seven jurisdictions (the Commonwealth and the ACT do not have local councils) share common ground in that each uses the procedure to take land and pay compensation under the relevant resumption statute. Where a council is required by the relevant statute to obtain consent to resume land, the normal rule is that the council may not make an order for [page 25] resumption until such consent is obtained: R v Salisbury City Corporation (1981) 27 SASR 500. The limits of a council’s power to resume land was tested in Mac’s Pty Ltd v Minister Administering Local Government Act 1993 (NSW) (2007) 155 LGERA 362. The council owned about 50 per cent of a site known as Civic Place. It adopted a plan to redevelop the site. The plan was to resume the part of the site it did not already own and transfer the whole of the site to a

property developer. The developer was to develop the site. The minister approved the plan. One of the owners of land within the site applied for a declaration that the council would be in breach of the Local Government Act 1993 (NSW) s 186 as the land was not resumed for the purpose of exercising a ‘function’ of the council. Rather, it was for the purpose of providing a benefit to a third party. Moreover it would be in breach of s 188 as it would be a resale of the resumed land to the property developer. Granting the declaration, it was held that the land was not intended to be used for any local government purpose and was invalid. While this decision was set aside by the New South Wales Court of Appeal in Parramatta City Council v R & R Fazzolari Pty Ltd (2008) 162 LGERA 1, it was largely reinstated on appeal to the High Court in R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 254 ALR 1. The High Court held that the primary judge was correct in his determination that the purpose of the acquisition was to transfer the land to other parties for the purpose of resale.

LAND [1.20] The resumption statutes are concerned with the compulsory taking of land or interests in land. None of the resumption statutes attempts a comprehensive definition of ‘land’ in the sense of its physical characteristics or features. Resumption law is largely concerned with the relation of persons to the land that is being taken. It is that relationship that is being severed. The interpretation statutes contain a definition of land. In the absence of a different definition of the term ‘land’ in the resumption statute, the definition in the interpretation statute applies. The Acts Interpretation Act 1901 (Cth) s 22(1) defines land to include messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure and description, and whatever may be the estate or interest therein. Lands Acquisition Act (Cth) s 6 provides that land means land in Australia. The Interpretation Act 1987 (NSW) s 21(1) defines land to include

messuages, tenements and hereditaments, corporeal or incorporeal, of any tenure or description, and whatever may be the estate or interest therein. The term ‘estate’ includes interest, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity. Land Acquisition (Just Terms Compensation) Act (NSW) s 4(1) provides that land includes any interest in land. The Interpretation of Legislation Act 1986 (Vic) s 38 defines land to include buildings and other structures permanently affixed to land, and [page 26] covered with water, and any estate or interest, easement, servitude, privilege or right in or over land. The term ‘land’ is not defined in the Land Acquisition and Compensation Act (Vic). The Acts Interpretation Act 1954 (Qld) s 36 defines the term ‘estate’ to include easement, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity. Acquisition of Land Act (Qld) s 2 defines land as meaning land, or any estate or interest in land, that is held in fee simple, but does not include a freeholding lease under the Land Act 1994 (Qld). The Interpretation Act 1984 (WA) s 5 defines land as including buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land. An estate in relation to land is defined to include any legal or equitable estate or interest, easement, right, title, claim, demand, charge, lien or encumbrance in, over, to or in respect of the land. Land Administration Act (WA) s 3(1) defines land to mean: (a) all land within the limits of the state; (b) all marine and other waters within the limits of the estate; (c) all coastal waters of the state as defined by s 3(1), Coastal Waters (State Powers) Act 1980 (Cth); and (d) the sea-bed and subsoil beneath, and all islands and structures within, the waters referred to in paragraphs (b) and (c).

The Acts Interpretation Act 1915 (SA) s 4(1) defines land to include: (a) a building or structure affixed to land; (b) waters and airspace over land; (c) the bed or any body of waters; (d) subsoil and subterranean waters. An estate in relation to land includes any estate or interest, easement, right, title, claim, charge, lien or encumbrance in, over, to, or in respect of, the land. Land Acquisition Act (SA) s 6(1) defines land to include an interest in land. The Acts Interpretation Act 1931 (Tas) s 46 defines land to include messuages, tenements, and hereditaments, houses and buildings of any tenure and any estate or interest therein. Land Acquisition Act (Tas) s 3(1) defines land to include messuages, hereditaments, buildings attached to the land and any estate in the land. ‘Estate’ in relation to land includes an estate or interest, charge, right, title, claim, demand, lien or encumbrance at law or in equity. The Interpretation Act 1978 (NT) s 19 defines land to include buildings and other structures, land covered with water, any estate, interest, easement, servitude or right in or over land. ‘Estate’ in relation to land includes any estate, interest, charge, right, title, claim, demand, lien or encumbrance at law or in equity. The Lands Acquisition Act (ACT) s 3 defines land as meaning territory land. The references to messuages, tenements, hereditaments and demand are relics from real property terminology in the 19th century and are seldom used in the 21st century. The definitions focus primarily on the term ‘estate’. The definitions go on to name some of the particular interests, for example, an easement, which comes within the term ‘interest’. Resumption law seldom has any problem in respect of the physical identification of the [page 27] land which is being taken. It does, however, have an occasional problem in determining whether a claim relates to an interest in the land. The statutory

definitions do not exhaust the variety of interests that can exist in land. Few of the definitions refer to a leasehold interest. Nor is there any direct reference to a tenant at will. Both are interests in land at common law.

INTERESTS IN LAND [1.21] Statutory definitions. In simple terms, the compulsory acquisition of land is changing the ownership of land from a landowner to the acquiring authority and paying compensation to the owner for that loss. In law, it is better described as the expropriation of interests in the land. The focus is on the taking of the one or more interests in the land that are privately owned. The Lands Acquisition Act (Cth) s 6 defines interest, in relation to land (including overseas land), as meaning: ‘(a) any legal or equitable estate or interest in the land; (b) a restriction on the use of the land, whether or not annexed to other land; or (c) any other right (including a right under an option and a right of redemption), charge, power or privilege over or in connection with the land or an interest in the land’. The term includes the interest of the Commonwealth, a state or a territory in Crown land. The Land Acquisition (Just Terms Compensation) Act NSW) s 4(1) defines interest as meaning: ‘(a) a legal or equitable estate or interest in the land, or (b) an easement, right, charge, power or privilege over, or in connection with the land’. The Land Acquisition and Compensation Act (Vic) s 3(1) defines interest in relation to land as meaning: ‘(a) a legal or equitable estate or interest in the land; or (b) an easement, right, charge, power or privilege in, under, affecting or in connexion with land’. The Acquisition of Land Act (Qld) does not define the term ‘interest’ but s 2 defines land as meaning ‘land, or any estate or interest in land, that is held in fee simple, but does not include a freeholding lease under the Land Act 1994’. Acts Interpretation Act (Qld) s 36 defines an ‘interest’, in relation to land, as meaning: (a) a legal or equitable estate in land, or (b) a right, power

or privilege over, or in relation to land. Section 6(3) provides that the taking of an easement over land does not in fact extinguish any interest in the land that existed immediately prior to the taking of the easement. The Land Administration Act (WA) s 151(1) defines interest as meaning ‘any legal or equitable estate or interest in land, including (a) native title rights and interests; (b) interests or rights created under any written law; and (c) the rights of a management body under a management order’. The Land Acquisition Act (SA) s 6(1) defines interest as meaning: ‘(a) a legal or equitable estate or interest in the land; or (b) an easement, right, power, or privilege in, under, over, affecting, or in connection with, the land; or (c) native title in the land’. [page 28] The Land Acquisition Act (Tas) s 3(1) defines estate in relation to land as including ‘any estate, interest, easement, right, title, claim, demand, charge, lien or encumbrance in, over, to or in respect of that land’. The Lands Acquisition Act (NT) s 4(1) defines interest in relation to land as meaning: ‘(a) a legal or equitable estate or interest in the land; or (b) an easement, right, power or privilege in, under, over, affecting or in connection with land, and includes native title rights and interests’. The Lands Acquisition Act (ACT) s 3 defines interest, in relation to land as: ‘(a) any legal or equitable estate or interest in the land; (b) a restriction on the use of the land, whether annexed to other land; or (c) any other right (including a right under an option and a right of redemption), charge, power or privilege over or in connection with the land or an interest in the land; and including the interest of the territory, a state or another territory in land’. This provision is similar but not identical to s 6 of the Commonwealth Act. None of the definitions is helpful in determining what is or is not an interest in land being resumed and justifying a claim for compensation. The

term ‘interest’ defies exact definition. Real property lawyers know what it means but would be hard pressed to define it. Suffice to say that it represents the connection between landowners and others of their right to use the land for a purpose which has a value. There are a wide variety of possible interests in land, each of which may be compensable. Indeed, as was affirmed in the case of Aurukun Shire Council v CEO Office of Liquor and Gaming and Racing in the Department of Treasury [2012] 1 Qd R 1, there is no one test that is capable of determining whether there is an interest in property. Despite the variations in the definitions, there is probably no significant difference between them. What is regarded as being an interest in one jurisdiction is likely to be regarded as an interest in another. Variety of interests. There is a wide variety of different interests in land. In many cases there is but a single owner in fee simple and there are no other interests in the land. Where there is a single owner of the land and there are no other interests in the land, the acquiring authority takes the land and the landowner’s interest in the land is extinguished. In Commonwealth v New South Wales (1923) 33 CLR 1 at 23 it was held that the normal effect of a notice of acquisition which ‘contains a description of a piece of land, without more, then that piece of land usque ad coelum et an inferos (above and below the surface) and all its constituent parts and all interests and rights over it’ vest in the acquiring authority. At the outset, when commencing the process, the acquiring authority needs to determine what interests there are in the land and decide whether it wishes to take all the interests in the land or whether it wishes to take a particular interest. An acquiring authority intending to resume land for a wildlife park may be willing not to disturb an existing right of way over the land. In this situation it intends to take the major, dominant interest in the [page 29]

land but leave intact the interest in the right of way in the land resumed. Having decided whether it intends to resume all or some of the interests in the land, the acquiring authority needs to ascertain the owners of those interests. There are occasions where an authority only wishes to acquire a limited interest in the land. It may, for example, wish to resume a right of way but leave the owner in fee simple with his or her title to the land. An acquiring authority’s right to take a limited interest in the land may lie in the statute authorising resumption or it may depend on the definition of an interest in the land. Estate. The term ‘estate’ appears in the statutory definitions of interest. In resumption law the term ‘estate’ is synonymous with interest. The expression ‘legal or equitable estate or interest’ appears frequently. It is no different from the term ‘interest’ used alone. It is submitted that the expression is used to emphasise that the term ‘interest’ is given a wide meaning in this context. In the law of real property the term ‘estate’ is used to describe the legal and equitable right which a landowner has in respect of land. The term ‘estate in fee simple’ is used to describe the highest form of land holding that a subject may hold from the Crown or state. It is a term that is frequently used to describe all the real and personal property which a person leaves for disposal following his or her death. Leases. Although the statutory definitions of interest in land do not mention leases, there is not any doubt that both a lessor and a lessee hold separate interests in land. In Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75 it was contended that the lessee did not have an interest in the land as it was not included in the relevant definition of interest in Land Acquisition (Just Terms Compensation) Act (NSW) s 4. It was held that the lessee was entitled to compensation for the remaining term of the lease. Uncertain ownership. Where the ownership of an interest in land is disputed either by the acquiring authority or by another party, the issue arises as to

whether the issue can be determined in the same proceedings as in a claim for compensation where the ownership of the land is not disputed. The Land and Environment Court (NSW) has held that it has jurisdiction to hear and dispose of claims for compensation where ownership of an interest is in dispute: Halloran & Sealark Pty Ltd v Minister Administering National Parks and Wildlife Act 1974 (1999) 105 LGERA 405. The onus is on a claimant to establish that he or she owns a valid interest in the land. A court could not be expected to award a claimant compensation unless the court is satisfied that the claimant owns an undisputed interest in the land. The dispute may need to be an issue to be determined before the claim of compensation begins. The issue of whether the strata title company could claim compensation in respect of 74 apartments which were resumed to provide public access to the Swan River foreshore in Perth arose in Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission (2004) 137 LGERA 7. [page 30] No separate applications were made in respect of the individual lots owned by the individual proprietors in the strata scheme. It was held that the strata company had no estate or interest in any of the lots, or in common property, despite its authority to manage and control the 74 apartments. The compensation received for the common property should be distributed to the co-proprietors. There is no closed, precise list of what is or is not an interest in resumed land. The disputes may arise either in the nature of the interest that the acquiring authority is taking or whether the claimant does or does not have a compensable interest in the land. The question of the nature of the interest the acquiring authority was taking arose, for example, in Auld v Dampier to Bunbury Natural Gas Pipeline Land Access Minister (2005) 139 LGERA 52. The authority took an interest in the land to construct a gas pipeline under

the claimant’s land. The claimant’s title to the freehold of the land was not resumed. The claimant contended that the authority was resuming the freehold interest. The legislation imposed a restriction to the effect that the land was not to be used in a way that was not inconsistent with the use of the pipeline. It was held that the authority was not resuming the freehold in the land. While the interest taken was described as a corridor right, it was not an estate in fee simple. In Ironhill Pty Ltd v Transgrid (2004) 139 LGERA 398 an easement across a golf course was compulsorily acquired. Ironhill owned the land and a management company ran the golf course. It was held that Ironhill was entitled to compensation but the management company was not. It did not have an interest in the land. An option to purchase land is an interest in land: Oppenheim v Ministry of Transport [1942] 1 KB 242. In Hornsby Council v Roads and Traffic Authority (NSW) (1997) 41 NSWLR 151, s 48 of the Local Government Act 1993 (NSW) conferred on a council ‘control’ of certain public reserves. The reserved land was resumed by the Roads and Traffic Authority. The council claimed compensation for its ‘interest’ in the resumed land. The Court of Appeal held that the council had no compensable interest in the resumed land. Its controlling authority was not an interest in land. By contrast it was held that the manager of a reserve trust of Crown land did have an interest in land in Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75. In that case the City of Sydney Council was the manager of the reserve trust for Prince Alfred Park in Sydney. The acquiring authority argued that the council had no more than a managerial responsibility, but Pearlman J noted that the manager of the trust had a ‘panoply of powers’ to deal with the land including leasing, sale and mortgaging with the consent of the minister. In Rakus v Energy Australia (2004) 138 LGERA 373 a permissive occupancy in adjoining land to that resumed was held not to amount to a leasehold interest and was not an interest in the land. In Mooliang Pty Ltd v

Shoalhaven City Council (2001) 114 LGERA 45 nine caravan owners in a caravan park formed a company to hold their interests in the park in trust. [page 31] There was no formal declaration and the owners remained in occupation until the council resumed the land. It was held that the declaration of the trust was ineffective and the company had no separate claim for compensation. Each of the caravan owners held a tenancy at will and a right to exclusive possession which amounted to an interest in land. In Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW) (1998) 101 LGERA 30 land used for a mobile home display and sale business was resumed for road purposes. Claims for compensation were made by the registered proprietor and the lessee company in occupation. The lessee had been in occupation for 20 years but there was no written agreement and the registered proprietor held a majority of shares in the lessee. It was held that the lessee held an interest in the land and could claim for its loss attributable to disturbance. In Tanner v Minister for Education and Training (2002) 119 LGERA 321 land was resumed over which there was a right of access which functioned as if it were a public road. It was held that this road had been created a public road at common law and relevantly constituted an interest in the land. In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] 2 Qd R 373 a doctor had a contract with the medical practice company for the exclusive use of a car parking space. The road authority acquired part of the land for road purposes as a result of which the parking space vanished. The doctor claimed compensation for the loss of the use of the car parking space. It was held that he had a licence to occupy the car parking space conferred by contract. It was a contractual right of a proprietary nature of which he was being deprived and he was entitled to compensation. Lands Acquisition Act (Cth) s 127 gives power to the Federal Court to

adjust rights and determine the nature of an interest in land. In Kanak v Commonwealth Pipeline Authority (1997) 73 FCR 198 a person considering himself entitled to act as custodian of lands in which other Aboriginal people had physical, cultural or spiritual associations was held not to be an interested person within s 127. A person who is an associated member of an Aboriginal tribe, but who has no interest in the subject land as a native or traditional title holder, does not have an interest for the purposes of s 127. A problem may arise where there are transactions in hand involving the ownership of the land at the time when the land is resumed. In Halloran v Minister Administering National Parks and Wildlife Act 1974 (2006) 229 CLR 545 the owners of a number of lots in land, which was expected to be resumed, took steps to agglomerate the lots into large parcels in the belief that a greater amount of compensation would be paid for larger parcels than for separate parcels. Steps were taken to achieve a change in the beneficial ownership but the scheme was not completed before the date of resumption. In particular the stamp duty had not been paid. It was held that the scheme failed because the stamp duty on the transfer had not been paid, a necessary step to establish a change in the beneficial ownership. There was no change effected in the interests in the land at the time of resumption. [page 32]

CREATING NEW INTERESTS [1.22] A number of the resumption statutes grant an express power to an acquiring authority to acquire an interest in land that did not previously exist: Lands Acquisition Act (Cth) s 17(2)(b); Land Acquisition (Just Terms Compensation) Act (NSW) s 32; Land Acquisition and Compensation Act 1986 (Vic) s 25; Land Administration Act (WA) s 195; Lands Acquisition Act (ACT) s 14(2)(b). An electricity authority may wish to install overhead power lines over certain land. It may wish to acquire an easement (or a right in the

nature of an easement) that did not previously exist. These particular provisions remove any doubt as to the power of an authority to acquire such rights. If there is no such express power it might be argued that by defining the term ‘interest’, the relevant statute is referring only to existing interests, not to future or new interests.

NATIVE TITLE [1.23] Background. One of the difficulties facing the descendants of the Indigenous people living in Australia prior to European settlement has been the absence of a ‘title’ in respect of land which they either occupy or had in the past occupied. This absence of title made it difficult, if not impossible, to claim compensation for resumption. The difficulty was highlighted in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. The claimants contended that they had a communal native title which came within the expression ‘right, power or privilege over, or in connection with land’ in Lands Acquisition Act 1955 (Cth) s 5(1) (similar to the words in Lands Acquisition Act 1989 s 6). The claim foundered because the claimants could not establish as a matter of fact that they held continuous and uninterrupted possession to bring the land within the term ‘interest’ in s 5(1). The situation was that due to European settlement many Indigenous people and their descendants had not been able to retain continuous possession and occupation of land. In Mabo v Queensland (No 2) (1992) 175 CLR 1 the factual situation was different. The occupiers were able to establish that they had not lost the occupation of their land. They had been in occupation continuously since before European settlement. The High Court held that they had an interest in the land. The decision was seen by many as a change in the law. There had been a view that all land at the time of European settlement was terra nullius, meaning that no one had a title to any land except the Crown which granted rights to settlers but not to the Indigenous people. The difficulty in Milirrpum for the claimants remained. It remained necessary to establish continuous, uninterrupted possession to be able to establish a claim for compensation. It

was one of the reasons the Native Title Act 1993 (Cth) was enacted. The Act does not impinge directly on the law of resumption. It enables Aboriginal people to claim and be granted a native title to land in appropriate circumstances. Nature of native title. Native title is not a common law tenure and is not alienable by the common law: Mabo, above. It does not derive from a Crown grant. Effective exercise of a power to extinguish native title must reveal [page 33] a clear intention to do so. Clear and unambiguous words are needed to extinguish native title rights: Wik Peoples v Queensland (1996) 187 CLR 1. Circumstances in which native title can be, or has been extinguished, and the compensation provided in relation to ‘any loss, diminution, impairment or other effect’ are now dealt with in the Native Title Act 1993 (Cth) and in state legislation complementary to it: Native Title (NSW) Act 1994 (NSW); Native Titles Validation Act 1994 (Vic); Native Title (Qld) Act 1993 (Qld); Native Title (State Provisions) Act 1999 (WA); Native Title (SA) Act 1994 (SA); Native Title (Tas) Act 1994 (Tas); Valuation (Native Title) Act 1994 (NT); and Native Title Act 1994 (ACT). Resuming native land. Two questions arise in respect of native title. First, is an acquiring authority wishing to resume land entitled to compulsorily acquire land which is owned under a native title? Second, if land under native title can be resumed, is the holder of that title entitled to compensation? Some of the resumption statutes make direct reference to the Native Title Act 1993 (Cth). Section 3 of that Act provides that the main objects of the Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for these dealings; and

(c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

Section 22E requires, in substance, an acquisition of property to be made on just terms, including the payment of compensation. The term ‘acquisition’ in this context presumably includes resumption. Land Acquisition (Just Terms Compensation) Act (NSW) s 7A provides that an authority is empowered to acquire native title in the same way as other interests in the land may be acquired. Land Administration Act (WA) ss 152–158 make express provision for the acquisition of native title and the procedure to be followed. Land Acquisition Act (SA) ss 18–26 also make provision for the acquisition of native title. Land Acquisition Act (Tas) s 5A provides that Aboriginal land may not be acquired under the Act. The relevant provisions of the Lands Acquisition Act (NT) were considered in Minister for Lands, Planning and Environment v Griffiths (2004) 14 NTLR 188, appeal dismissed Griffiths v Minister for Lands, Planning and Environment (2008) 246 ALR 218. The notices of acquisition intended to acquire all the land that was not Crown land for a small town, Timber Creek. The validity of the notices was challenged. It was held that by s 5A(1), the Act applied in relation to an acquisition of an interest in land that comprises native title rights and interests. By s 28A certain land could not be acquired. But nothing in s 5A precluded an acquisition that acquires only the native title interests. Section 43(1) enabled the minister to acquire land for ‘any purpose whatsoever’ and this remained applicable [page 34] notwithstanding that the Native Title Act 1993 (Cth) s 11(1) provided that native title could not be extinguished contrary to the Native Title Act. In Griffiths v Northern Territory (No 3) (2016) 337 ALR 362 the court

considered, amongst other things, the nature of native title rights along with the entitlement and level of compensation for those rights. The compensation sought was for the acquisition of non-exclusive native title rights held by the Ngaliwurru and Nungali peoples. The court first characterised the nature of native title rights in order to assess the level of compensation the applicants were entitled to. It was highlighted that native title exists as a communal bundle of rights as opposed to an individual proprietary right. It was also noted that it would be inappropriate to treat the original interests in land by Indigenous Australians as anything other than the equivalent of freehold interests. In determining the amount of compensation native title holders are entitled to, the court noted that the freehold value of the land being acquired is the appropriate starting point as it sets the upper limit of the compensable amount. However, in the case at hand, the rights held by the applicants were non-exclusive in nature. Hence, determining the freehold, economic value of the land was not an appropriate endpoint in determining the compensable amount. As the native title rights in question were non-exclusive, some reduction from the freehold value of the land was necessary. Not doing so would mean non-exclusive native title rights would have the same value as exclusive native title rights. Importantly, the court also noted that even though the disposal of native title rights was generally not possible on the open market, this did not necessarily mean that it was a significant discounting factor in reducing the amount of compensation the applicants were entitled to.

FIXTURES [1.24] Land is sometimes classified into land which has been improved and land which has remained unimproved. The term ‘improvement’ refers to such things as buildings and structures. It also includes such things as timber which is planted. These improvements become fixtures. At common law fixtures become part of the land and come within the definition of land. Chattels that are so affixed to the land or to a building become part of the

land. When land is resumed the fixtures are included in the term ‘land’. The acquiring authority, for example, takes the trees on the land irrespective of whether they grew naturally or whether the owner planted them. The notice of acquisition does not need to specify that the authority is taking the fixtures in addition to the natural land on which they are affixed. When land is taken compulsorily and there is doubt as to whether certain chattels are part of the land, the common law principle applies in determining the degree of annexation of the chattels on the land and whether they have become part of the land and in consequence assessable for compensation. For example, in TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 the court affirmed the well-established principle [page 35] that classifying an item as a fixture will depend on the objective intention with which it was put in place. The most common ways of determining such an intention is to explore the degree of annexation and the object of annexation. In Segal v Osborne [2016] NSWSC 941, a question arose regarding damage to land between the signing of the contract of purchase and completion of the contract. As fixtures are regarded as part of the land, it therefore became vital to determine whether certain damaged or missing items should be categorised as fixtures or mere chattels. Commenting on the principles of determining whether an item was a fixture, the court highlighted that while the degree of annexation was an important consideration, ultimately whether an object can be classified as a fixture will be determined on a case by case basis. The court also noted the rules for the making of certain presumptions. In the event an item was not merely resting on its own weight, the onus moved onto the defendant to prove the item was not a fixture. On the other

hand, the onus to prove an item is a fixture will be on the plaintiff if the item is simply resting on its own weight. The application of the common law principles to the resumption of land may be illustrated by Attorney-General (Cth) v R T Co Pty Ltd (No 2) (1956) 97 CLR 146 where the issue was whether two printing presses, each weighing approximately 45 tons, secured by nuts and bolts to a concrete foundation in the basement of a building, were fixtures and thus part of the land resumed. The High Court applied common law principles and held that the two presses were not fixtures for the reason that the annexation to the foundation was merely for the purpose of holding the presses steady for their more efficient use as presses. The issue of whether fixtures are part of the land is determined by reference to the situation at the date of the notice of acquisition. A tree which is felled before that date is no longer a fixture. A tree which is felled after that date is no longer a fixture. In Richardson v Roads and Traffic Authority (NSW) (1996) 90 LGERA 294 the owner of the resumed land used the land to conduct a wholesale palm tree nursery and indoor plant business. Various palm trees remained on the land after the date of resumption for further growth. It was held that they were part of the land at the date of resumption and any interest in them was an interest in the land. Where growing timber is to pass to a purchaser before severance from the soil but is to remain in the land for further growth, an agreement for sale of the timber is a contract for the sale of an interest in land. On the other hand, if the timber were to pass immediately following severance, the sale would be for a sale of goods. The question of whether certain fixtures form part of the land resumed has arisen in respect of pipes, pipelines, cables, power lines and telegraph lines which have been installed or constructed by a variety of public utility authorities or companies over, in, on or below the surface of the land. A claimant for compensation may contend that the pipes, etc, are part of his [page 36]

or her land and therefore he or she is entitled to be compensated for them. Alternatively, the resuming authority may contend that they are not part of the land resumed and have no value to the owner. The public utility may contend that the pipes, etc, are owned by it, the utility, and are not part of the land resumed. It may wish to retain their use and exclude them from the resumption. Alternatively, it may contend that the pipes, etc, are a separate interest in the land owned by it and therefore entitled to make a separate claim for compensation. The issue in R T Co, above, was which party was responsible for moving the presses — the dispossessed owner or the resuming authority. They were not fixtures and the resuming authority was not under an obligation to move them. In Commissioner for Main Roads (NSW) v North Shore Gas Co Ltd (1967) 120 CLR 118 the issue was whether certain gas mains and service pipes lying beneath certain public streets and parks were land or an interest in land for the purposes of compensation. The High Court held that in this case it was ‘futile really to classify and describe [the gas company’s] rights in respect of mains and pipes under streets and roads according to the traditional categories and terminology of the law of real property’ for the reason that the gas company had no true easement but ‘had something more than a revocable licence’ (at 131–4). In Anthony v Commonwealth [1972–73] ALR 769 the land acquired contained a highway, telephone line, electric power line and two water mains. It was common ground that the road had previously been vested in the acquiring authority by virtue of other legislation and it was held that the owner was not entitled to the value of the road. It was also held that prior to the date of acquisition the telephone line was vested in the postmaster- general in accordance with the posts and telegraph legislation and the telephone, lines and wires did not become fixtures. In respect of the electric power line it was held that the presumption that whatever is fixed to the freehold becomes part of it may be rebutted by the circumstances and neither the power line itself, nor the lines and their supports and insulators had become part of the land over which the line crossed. However, in respect of the two water mains, it was held that they

had both become part of the land. Most of the pipes were underground. It would be difficult to remove them. They became fixtures. It may be added that state legislation governing power lines and water mains, below, on or above the surface of the soil, would, in ordinary circumstances, determine ownership and other rights in respect of such installations. For example, in Denning v Ipswich County Council (1989) 69 LGRA 9 in the early 1950s water pipes were constructed across a parcel of land used for grazing purposes. In 1985 the council resumed an easement for water supply purposes. In the intervening period legislation had been enacted vesting the property in the pipes in the council. It was held that the court had to determine the value on the footing that at the date of resumption the pipes were the property of the council. [page 37]

MINERALS [1.25] The issue here is whether dispossessed owners of fee simple land, claiming compensation for the resumption of their land, can claim the value of the minerals, or other like substances, which lie beneath the surface of the land. An obvious practical difficulty arises because the quantity of, say, gold, beneath the surface is uncertain. The question of who owns the minerals below the surface is determined today by legislation. The terms of a Crown grant may be silent on the matter. Alternatively, the grant may expressly include or exclude minerals. At common law gold and silver were traditionally regarded as being owned by the Crown under its prerogative powers. In the absence of an express term to the contrary in the Crown grant, there is likely to be express statutory provision to the effect that the Crown in the right of the state owns all minerals or certain kinds of minerals. In short, the owner of land in fee simple does not own the minerals lying beneath the surface of the land.

In normal circumstances, the Crown, if it is the acquiring authority, takes all that is below the surface, including minerals. Where the Crown resumes land it is of no significance whether it is taking the minerals beneath the surface for the reason that it already owns the minerals. There may, however, be doubt as to whether a particular substance beneath the surface is a mineral. It may be arguable whether coal, oil, gas, diamonds or uranium come within a definition of minerals, or within an extended definition of that term. Where the Crown grant does or does not include minerals, the question may arise whether a particular substance is or is not a mineral, as defined in the relevant legislation. In Castle Hill Brick, Tile & Pottery Works Pty Ltd v Baulkham Hills Shire Council (1961) 7 LGRA 139, for example, the issue was whether clay came within the term ‘minerals’ in the relevant reservation clause in the Crown grant. It was held that in the absence of statutory definition the question whether a particular substance is or is not a mineral is a question of fact to be determined by the evidence. In this instance the clay, which was suitable for making earthenware pipes but was not suitable for making agricultural pipes, was held not to be a mineral but was a constituent part of the land resumed. Again in Commonwealth v Hazeldene Ltd (1922) 29 CLR 448 the relevant grant of the land resumed reserved all minerals to the Crown. The landowner claimed compensation for the limestone contained in the land on the ground that it was part of the land and was not a mineral for the purposes of the grant. The Privy Council held that the limestone did not come within the reservation clause excluding minerals from the grant. The terms of the grant showed no intention of reserving limestone, even though there was a reservation for all sand, clay, stone, gravel and timber which might be required for public purposes. Where the Commonwealth is the acquiring authority it takes the metals contained in the land irrespective of the terms of any grant made under New South Wales legislation: Commonwealth v New South Wales (1923) 33 CLR 1. [page 38]

During the currency of a Crown grant, legislation governing the ownership of minerals and other substances which lie beneath the surface of the land may be enacted which changes or alters the ownership of those substances and thus affects any rights which landowners may have had in respect of these substances. Resumption is concerned with the landowner’s ownership of minerals or valuable substances at the date of resumption and not at the date when the grant was issued or when any changes came into effect prior to resumption. In Midland Railway Co (WA) Ltd v Western Australia [1956] 3 All ER 272 the issue involved a right of exploration not resumption. The relevant Crown grant reserved gold, silver and other precious metals to the Crown. Petroleum was not so reserved. After the grant was made, legislation was passed providing for the reservation to the Crown of all petroleum in all lands of the state. The Privy Council held that the grants made before the legislation came into effect did not exempt those grants from the operation of the legislation. In Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1976) 14 SASR 486, appeal dismissed (1979) 142 CLR 351, the certificate of title of the resumed land contained no reservation of minerals. Prior to the resumption the owner had granted a lease to a quarrying company in return for payment of a royalty on minerals quarried and sold. During the currency of the lease, the land was resumed. Prior to the date of resumption mining legislation was enacted by which the property in all the minerals was vested in the Crown. It was held that whatever the true juristic nature of the lessee company’s interest in the land was after the mining legislation came into force during the currency of the lease, the lessee had been divested of that interest by publication of the notice of resumption. The lessee had no right to any minerals removed from the land after the date of resumption, and hence no claim against the resuming authority for conversion of them, but instead the lessee had a right to compensation. To summarise, it is well settled that a notice of resumption which purports to acquire simply ‘land’ operates to acquire all the estates, interests and rights in or over the land other than those already held by the acquiring authority.

In Commonwealth v Maddalozzo (1980) 29 ALR 161, affirming (1979) 25 ALR 437, the claimant was granted two mining leases for a term of 21 years. Some months later a notice of resumption was published. The High Court held that the words used in the notice indicated that it was land which was being acquired as distinct from some limited interest in the land. The claimant’s rights under the mining leases were therefore acquired by the Commonwealth and converted into a right to compensation. In this case the issue was not who owned the minerals but what was the effect of a notice of resumption upon a right to mine certain minerals or substances. The resuming authority could not take the land without taking that particular interest, namely, the lessee’s right to mine.

PURCHASE BY AGREEMENT [1.26] At common law the Crown in the right of a state has the power to enter into contracts to purchase land. The various Crown proceedings [page 39] statutes provide a procedure whereby the Crown can sue and be sued for breach of contract. An acquiring authority can obtain land in one of two ways. First, it may obtain the land by means of negotiating its purchase leading to a binding contract with the vendor. Second, it may obtain the land by means of compulsory process. The distinction is obvious: the first is a voluntary agreement entered into by two parties, the vendor and the purchaser, with equal rights and bargaining power. The second is a unilateral decision made solely by the acquiring authority. There may, however, be one unequal aspect of a voluntary agreement. The Crown may have the right of resuming the land if a voluntary purchase cannot be negotiated. Negotiations may be

conducted with both parties aware that if agreement is not reached, the acquiring authority is able to use its compulsory powers. In the earlier resumption statutes purchase by agreement was regarded as wholly distinct and separate from the process of resumption. Today some of the current resumption statutes expressly recognise that the land may be acquired in either way. The vendor may prefer the Crown to adopt the resumption procedure for the reason that the vendor may think that he or she will get more by way of compensation than the price of land negotiated in a voluntary sale. The vendor might, under the resumption procedure, hope to be compensated for other matters, such as disturbance, in addition to the market value of the land. On the other hand a vendor may think that the Crown might be prepared to pay more than the market value to avoid the time and trouble of putting the resumption procedure into effect. Lands Acquisition Act (Cth) s 16 provides that the land may be acquired by the Commonwealth in one of two ways: by agreement or by compulsory process. Section 19 specifies the steps which the Commonwealth must take to acquire by agreement. Section 40 specifies other matters which the Commonwealth must observe to complete the agreement. Among the matters which s 40(3) requires to be carried out is to inform each House of Parliament of the details of the agreement. Land Acquisition (Just Terms Compensation) Act (NSW) s 5(1) provides that the Act applies to acquisition by agreement and acquisition by compulsory process. Section 5(2) provides that the Act does not apply if the land is available by public sale and the land is acquired by agreement. Recent amendments to the Act passed in 2016 provide an added procedural requirement to encourage an agreement between the acquiring authority and the landowner. The amendments insert s 10A which requires the authority of the state to make a genuine attempt to acquire the land by agreement for a period of at least six months before an acquisition notice is served. A shorter negotiation period may also be approved by the authority of the state, but only if the minister is satisfied that the urgency of the matter would make it

impracticable to have any longer period of negotiation. However, negotiation will not be required in instances where the owner notifies the authority that they are not prepared to negotiate, where the owner cannot be located, where the land is Crown land, an easement, [page 40] a right to use land for the construction or maintenance of works and a stratum under the surface for the construction of a tunnel. Land Acquisition and Compensation Act (Vic) s 3(1) provides that the Act applies to acquiring an interest in land by compulsory process or by agreement. The provisions governing acquisition of interests in Pt 2 (ss 4–29) of the Act apply to both means of acquiring land. In particular, s 18 makes special provision for an acquisition by agreement. Acquisition of Land Act (Qld) s 15 provides for land to be taken by agreement. Land Acquisition Act (Tas) s 3(1) defines the term ‘acquire’ to mean purchase or take. Sections 8–10 make provision for the authority to purchase land by agreement. Lands Acquisition Act (NT) s 31A provides for acquisition of land by agreement as does Lands Acquisition Act (ACT) s 16. The Land Administration Act (WA) Pt 9 (ss 151–201) and the Land Acquisition Act (SA) are solely concerned with the resumption of land. In the absence of any statutory provision, nothing precludes an authority from purchasing an interest in land by agreement without recourse to the compulsory process: Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 at 473. An acquisition of land by agreement must meet certain criteria which may sometimes overlap into basic contractual principles. In Chaudry v Liverpool City Council [2008] NSWLEC 251, the court applied Land Acquisition (Just

Terms Compensation) Act (NSW) s 68(1) whereby the quantum of compensation is to be determined by agreement or by the court. The council claimed that an agreement with the plaintiff had been reached with regard to an agreeable compensation sum. The settlement agreement stated ‘compensation for the compulsory acquisition … together with statutory interest … is agreed at $1,790,000’. The court held that agreements to acquire must not be vague or insolubly ambiguous. In the case at hand, it was ruled that no agreement was reached between the parties as there was insoluble ambiguity regarding whether the amount offered in the settlement agreement included the statutory interest which had already been paid to the appellant in advance.

AGREEMENTS NOT TO RESUME [1.27] The issue here is whether an authority, with statutory powers to acquire land by agreement or by compulsory process, may bind itself by formal declaration or by agreement not to take the land by either means. The issue may arise where the undertaking not to acquire the land is given by the Crown or by some other authority. At common law the principle which applies is that the Crown or an authority vested with statutory powers cannot fetter its future discretion by saying that it will not exercise that discretion. The issue may, for example, arise where a landowner wishes [page 41] to develop the land but wants a firm assurance from the relevant authority that his or her land will not subsequently be resumed by that authority. In Watson’s Bay & South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268 land was resumed in 1912 and dedicated as a public park. In 1916 the company owner of the land informed the minister that it was willing to forgo its claim for compensation provided the land was vested in the company. The

minister gave notice to revoke the dedication and purported to enter into an agreement with the company that when the dedication of the land should be revoked it should be offered for sale by public auction and that the amount of the purchase money should be accepted by the company in full satisfaction of its claim for compensation. The High Court held that the agreement was illegal and invalid on the ground, inter alia, that the relevant legislation did not authorise the making by the minister of an agreement attempting to fetter in advance the discretion and the public duty of the minister and his or her successors, after the revocation of the dedication, as to retaining or disposing of the land. The essence of the agreement was that the minister was bound by the contract to exercise his statutory power, not as the expediency of doing so presented itself to him at the moment of exercise, but as premeditated by the contract. On the true construction of the legislation that was not a mode of exercising his discretion that came within his authority. ‘From every aspect the agreement was an unauthorised attempt to bind the minister for the time being in the exercise of his statutory functions’ (at 278). In this instance the agreement held to be invalid related to the general manner in which the land would be disposed of and how the compensation would be determined. The same principle applies where an authority with statutory powers of compulsory acquisition enters into an agreement purporting not to use those powers: Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623. If an authority is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, the authority cannot divest itself of those powers and duties and it cannot enter into any contract or take any action incompatible with the due exercise of its powers or the discharge of its duties: Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 at 364. Broad statements of policy indicating that certain classes of land or landholding will not be compulsorily acquired are of no relevance. In Dannevirke Borough Council v Governor-General [1981] 1 NZLR 129 the council sought the approval of the governor-general to the taking of certain

land. The governor-general declined to approve the taking on the ground that it was contrary to policy. If an authority states that certain types of land will not be compulsorily acquired, that statement does not preclude it from exercising its statutory powers of resumption at some future date. Where an authority represents to a landowner that it will not resume his or her land, whether by contract or otherwise, and the landowner acts on that representation, it is not suggested that the landowner is without any remedy in law. If the landowner suffers loss, he or she may be able to [page 42] claim damages for breach of contract or for negligent misrepresentation even though it is not possible to prevent the resumption proceeding to a conclusion. An ancillary issue arises whether an authority, with statutory powers of resumption, can fetter its discretion with regard to the payment of compensation. For example, a local authority might enter into an agreement with a developer of certain land that if in future it decides to resume a portion of the land for a school it will pay a certain sum for doing so. The question to be answered is whether that part of the agreement is binding on both parties. If the agreed sum for the particular part of the land earmarked for the possible future resumption is less than the amount which would be assessed under the statutory compensation provisions, the claimant may wish to argue that he or she is entitled to the amount of compensation provided for in the resumption statute and not that provided for in the agreement. No clear and unequivocal principle emerges from the reported resumption cases on such an issue.

AGREEMENTS TO RESUME

[1.28] A less likely possibility to occur is where for some reason or other the authority undertakes to resume certain land if a particular event takes place. Is an authority bound by that agreement to resume the land when the event takes place? In Service Design Pty Ltd v Commissioner of Highways (SA) (1984) 54 LGRA 208 the highways authority negotiated to obtain land for a freeway and agreed not to proceed by compulsory process. The authority agreed that the landowner would claim compensation as if a statutory notice of acquisition had been served on it and the parties executed an indenture accordingly. The indenture released the authority from all actions, proceedings, claims and demands in respect of compensation. The validity of the indenture was not in issue when the parties could not agree on the quantum of compensation. It was held that on the proper construction of the indenture that the authority was not released from all claims in respect of ‘the actual value’ (the statutory term applying in respect of compensation) of the land. It would seem that if the parties do proceed by way of agreement in preference to the compulsory process, such an agreement would be binding. On the other hand, in certain circumstances there may be a possible argument to the effect that a land acquisition statute does not permit such a procedure. In Corben v Commissioner for Main Roads (NSW) (1983) 52 LGRA 388, 1.93 hectares of grazing land was resumed for road-widening purposes in 1980. The land had been leased to the road authority by the claimant in 1970 on condition that the land would be resumed within two years, after which it would be restored to its original condition. The authority did not resume within two years and did not restore the land to its original condition. It was held that there was an oral agreement suspending the lease agreement up to and including the date of resumption but the agreement [page 43]

was subject to an implied condition that the cost of the roadworks should not be included as part of the value of the land for compensation purposes.

PRELIMINARY WARNINGS [1.29] At some point of time before an authority publicly decides to exercise its power of resumption, within that authority there may be considerable discussion prior to making that decision and putting it into effect. A landowner may become aware by one means or another that an acquiring authority may possibly, or is likely to, resume the land. The discussions may inadvertently leak from the authority. There may be public discussion or speculation about the matter. In many instances a landowner may have good reason to suspect that it is probable that the land will be resumed. In other instances the decision to resume may come as a complete and unexpected surprise. As a general proposition the land acquisition statutes do not impose any duty on the authority to give any warning of a possible resumption. It is required to issue a notice of intention to resume. The notice serves as a formal warning. The resumption statutes do not impose a general duty to negotiate with a landowner prior to the issue of a notice of intention. Prior to the issue of that notice there is, in general, no express or implied duty imposed on the authority to invite the owner to treat or to make the owner an offer for the purchase of the land. Some of the resumption statutes (see 1.26) provide for purchase by agreement as an alternative to the compulsory process. The statutes do not prevent an authority from indicating to a landowner that the authority is contemplating the resumption of the land. But the landowner has no statutory right to be consulted prior to the authority issuing its notice of intention. Arguably, the effect of the Lands Acquisition Act (Cth) and the Land Acquisition and Compensation Act (Vic) is to discourage any informal approach to a landowner prior to the issue of a notice of intention. In contrast, Land Acquisition (Just Terms Compensation) Act (NSW) s 3(1)(e) states that an object of the Act is ‘to encourage the acquisition of land by

agreement instead of compulsory process’. None of the resumption statutes sets out to discourage acquisition by agreement.

REASONS FOR RESUMPTION [1.30] The principal purpose of the notice of intention, or of the proposal, to resume land is to inform the landowner of that decision. The notice contains the essential information of the particular land to be taken, the relevant legislation and the purpose of the resumption. The resumption statutes differ in detail on the need to specify the reasons for the resumption in the notice of intention. Lands Acquisition Act (Cth) s 22(3)(b)(ii) requires the pre-acquisition declaration to include a statement setting out the ‘reasons’ why the land ‘appears’ to be suitable for use for a public purpose. [page 44] Land Acquisition (Just Terms Compensation) Act (NSW) s 15 specifies the ‘particulars’ to be included in a proposed acquisition notice. It requires the notice to specify the authority proposing to acquire the land but it does not require the reasons for the taking to be stated. Land Acquisition and Compensation Act (Vic) s 8(1)(d) requires the notice of intention to acquire an interest in the land to specify the ‘reasons’ why the land is ‘thought’ to be suitable for the purpose of the taking. Acquisition of Land Act (Qld) s 7(3)(a) requires a notice of intention to specify the ‘particular purpose’ for which the land is to be taken. The authority is not required to explain the reasons for the taking. Land Administration Act (WA) s 171(1)(d)(ii) requires the notice of intention to take an interest in land to include ‘particulars of the reasons’ why

the land is suitable for, or is needed for, the public work. The provision makes a distinction between suitability and necessity. Land Acquisition Act (SA) s 11(1)(a) affords an opportunity to the recipient of a notice of intention to acquire land, to require the authority to give ‘an explanation of the reasons’ for the acquisition of the land. Neither Land Acquisition Act (Tas) s 11 nor Lands Acquisition Act (NT) s 32 expressly requires the authority to provide the reasons for the taking in their notices of intention to take land. Lands Acquisition Act (ACT) s 6(2)(b) requires the notice of intention to acquire to give ‘reasons’ for the exercise of the power. Where the notice of intention to resume explains the purpose of the taking, the reasons for the decision may be self-evident. Where, for example, the notice states that a strip of land adjacent to a road is required for road widening purposes, the reasons for the decision may be obvious: the authority considers it necessary or desirable to widen the road. On the other hand, if the reason for road-widening is not obvious, it may be necessary to explain why, say, the road is being widened on one side of the carriageway and not on the other. It may suffice to explain that the widening is required to convert, say, the road from two lanes to four because of the volume of traffic. The statutory provisions requiring reasons or particulars to be given are expressed in different terms. Some of the provisions focus on the suitability of the land for the public purpose underlying the resumption. The advantage to the landowner is that an explanation is provided as to why the land is being taken. Having to explain why the land is being resumed means that at the outset the acquiring authority affords an opportunity to both the landowner and others to know the reason for the taking. Where there is an opportunity to object to the proposed resumption, the landowner and the court or tribunal or other forum, considering the objection, has the advantage of understanding and examining the authority’s reasons for resuming the land.

[page 45]

STATUTORY RIGHT TO OBJECT TO PROPOSAL [1.31] In the earlier resumption statutes the landowner was not given any statutory right to object to the proposal to take the land. Today, some of the resumption statutes give a right to the landowner to object. The Lands Acquisition Act (Cth) gives a choice to landowners. By s 26 they can seek ‘reconsideration’ by the minister. The application must be in writing. By s 29 they can seek ‘review’ by the Administrative Appeals Tribunal. However, by s 22(6) the minister can preclude such a review by declaring that the pre-acquisition declaration is ‘not subject to review’. The minister is not required to give reasons for that decision. Acquisition of Land Act (Qld) s 8 permits landowners to object to the constructing authority to the notice of intention to resume. Landowners are given a right to be heard in support of their objection. Land Administration Act (WA) s 175 gives landowners a right to object in writing to a proposal to take their land when a notice of intention has been issued. Land Acquisition Act (SA) s 12 permits landowners to seek a variation or amendment in writing to the notice of intention to acquire. Section 12A gives landowners a right to apply for review of a decision made by the authority under s 12. Lands Acquisition Act (ACT) s 23 gives a right to landowners to seek ‘reconsideration’ by the acquiring authority. The Land Acquisition (Just Terms Compensation) Act (NSW), the Land Acquisition and Compensation Act (Vic) and the Land Acquisition Act (Tas) do not provide a statutory right of objection or review to the acquiring authority in respect of the notice of intention to resume. In the six jurisdictions where there is a right to object or seek reconsideration of the proposal to resume, the scope allowed to landowners

may be restricted or limited. Land Acquisition Act (SA) s 12 provides a limited right of review. Section 12(2)(a) entitles landowners to object where they contend that the resumption and the undertaking to be carried out would seriously impair an area of scenic beauty. Section 12 does not permit a review of the merits of the proposal to resume the land. It does not, for example, allow an objection on the ground that the purpose of the proposed resumption to build a new freeway is environmentally unsound. However, landowners might be able to argue under s 12(2)(c) that such a freeway would create conditions inimical to the conservation of flora and fauna that should, in the public interest, be conserved. Lands Acquisition Act (Cth) s 31(1)(e) (iv) may permit objecting landowners to argue that a freeway would impair the amenity of the neighbourhood. But s 31(3)(a) precludes landowners arguing the merits of building a freeway on other grounds in the first place. Acquisition of Land Act (Qld) s 8 does not specify or limit the grounds of objection but it is doubtful if it is so wide as to permit landowners to argue that the building of a freeway is inimical to the community at large and to the landowner in particular. [page 46] Re Leppington Pastoral Co and Department of Administrative Services (1989) 11 AAR 138 illustrates the limitations of an objection made by Lands Acquisition Act (Cth) s 31. The applicant sought to question the policy of a decision selecting his land at Badgery’s Creek for an airport in Sydney. It was held that the tribunal was prohibited by s 31(3) from inquiring into any matter touching upon the statement in the pre-acquisition declaration that the proposed use of the land was connected with the implementation of the policy. The review would be bound to exclude the inquiry considering whether the proposed development could be built without the need for acquiring the applicant’s land.

Where there is a statutory right of review or objection, the next question to arise is whether the authority, body or person, is under a duty to give reasons for its decision or recommendation. In the absence of judicial authority this may be arguable but there must be an expectation that reasons will be given. Landowners need to be satisfied that the applications for review have been given careful scrutiny. This aim may be achieved if reasons are given for rejection of the application. If the application is successful the acquiring authority needs to understand why their decision has not been approved. Where there is no statutory right of review or objection, the resumption statutes do not expressly preclude landowners in receipt of a notice of intention to resume from objecting to the acquiring authority. The authority may have statutory power to amend or withdraw its notice of intention to resume the land. In doing so it may have been assisted by the representations made by the landowner. In the absence of express power to cancel a decision to resume, the authority may have an implied right to abandon its decision to resume. Unlike a judicial decision, an administrative decision is not irrevocable, provided rights have not been altered since the original decision to resume was made. Where there is a statutory right to object to the resumption, there is a time limit within which the right must be exercised. By Lands Acquisition Act (Cth) s 26(3) it is 28 days; by Acquisition of Land Act (Qld) s 7(3)(d) it is 30 days; by Land Administration Act (WA) s 175(2) it is 60 days; by Land Acquisition Act (SA) s 12(1) it is 30 days; by Lands Acquisition Act (NT) s 36 it is 28 days; and by Lands Acquisition Act (ACT) s 23(3) it is within 28 days. The time usually runs from the date on which the notice of intention to resume is served and not from the date on which the notice is signed. The right to object is normally restricted to a person with an interest in the land. Third parties, even neighbours, have no right of objection. The statutes do not usually include provision for the acquiring authority or other body or person as the case may be to extend time. On the other hand, the statutes do not preclude the authority from considering an out-of-time objection.

Acquisition of Land Act (Qld) ss 7–8 are different from the other statutory provisions in that they expressly allow a hearing of the objection. In broad terms the objector is entitled to procedural fairness by the [page 47] constructing authority. It is not an adversarial proceeding. It gives an objector a right to elaborate upon and explain the basis of the objection. There is no requirement that the issues be presented by evidence susceptible to crossexamination: Little v Minister for Land Management (Qld) (1993) 79 LGERA 374. By Lands Acquisition Act (Cth) s 31(1)(e), Land Acquisition Act (SA) s 12(2) and Lands Acquisition Act (NT) s 40(3) the landowner has a right to object on the ground that the proposed resumption will be detrimental to the environment. Some guidance may be afforded as to what may be included in the concept of ‘detrimental’, for example, if the scenic beauty is impaired.

JUDICIAL REVIEW OF PROPOSAL [1.32] Faced with a unilateral decision on the part of the acquiring authority that it intends to expropriate an owner’s land, that owner has two alternatives: first, acquiesce and claim compensation; or, second, object where there is a statutory right to object (see 1.31). In normal circumstances, a landowner would be expected to exhaust that avenue before contemplating any form of judicial review. Where there is no statutory right of objection, or that right has been exercised without success, it is possible that the landowner may be able to seek an administrative law remedy. For example, the landowner might be able to argue that the authority has exceeded its statutory powers and is taking the land for a purpose which is not authorised by the relevant statute. The landowner may be able to establish in a court of law that there has been a significant breach of the procedure that has been laid down

by statute. The initial task of the landowner is to find a fault of consequence on the part of the acquiring authority and then consider whether there might be a remedy in a court of law. The land resumption statutes make no provision for a direct challenge to the notice of intention to take land on the ground that the notice, or its contents, is unlawful. There is, however, no direct attempt to exclude the jurisdiction of the superior courts to review a decision by an acquiring authority to take land by compulsory means. There is no provision similar to s 25 of the Acquisition of Land Act 1981 (UK) which provides that a compulsory purchase order shall not be questioned in any legal proceedings whatsoever. An aggrieved landowner in Australia who wishes to challenge the legality of a resumption notice has recourse to the traditional administrative law remedies which apply in the relevant state or territory. These remedies may be available even where there is a statutory right of review or not, particularly if that avenue of objection is limited in scope. Irrespective of whether there is a statutory right of review or not, an aggrieved landowner who wishes to challenge the resumption by means of the prerogative writs of certiorari, prohibition or mandamus, by declaration or by injunction, will need strong or compelling reasons to persuade a court of law to consider an objection, let alone grant the remedy applied for. If there is a statutory right of review, the landowner also needs to show why that remedy is not suitable in the particular circumstances. [page 48] There is no closed list of the kinds of matters that would justify a challenge to a resumption notice but the following is a possible list of grounds on which an aggrieved landowner might base his or her submission: (a)

A material requirement of the special Act or the resumption Act has not been complied with.

(b)

The authority has wrongly interpreted the relevant statutory provisions in some material respect.

(c)

The authority has taken into account matters or factors which are irrelevant and which ought not to have been taken into account.

(d) The authority has failed to take into account matters or factors which are relevant and which ought to have been taken into account. (e)

The authority has acted in bad faith.

(f)

The authority has acted unreasonably and has made the order on grounds which cannot be supported on the evidence.

From a practical point of view an applicant for judicial review of a resumption order needs evidence on which to ground the application. That evidence, or part of it, may well be in the hands of the acquisition authority. The onus of proof lies with the applicant landowner. The challenge needs to be specific. It is not enough, for example, to say that the authority may have taken into account irrelevant matters. These alleged irrelevant matters (or the relevant matters alleged not to have been taken into consideration) need to be specified or identified. Only when the landowner brings evidence to support the allegation does the burden of proof move to the authority to justify its decision on the merits and reveal what factors it did or did not take into account. The onus is upon the landowner to displace the presumption of regularity. It is not an easy presumption to displace. Relevant and persuasive evidence is required to support an allegation that the resumption order is wrong and move the onus to the authority that the resumption is proper and lawful. The choice of the particular law remedy to challenge a resumption order is frequently difficult. An application for judicial review may be seeking to quash the order. Alternatively, an application for a declaration may seek to establish that there is a significant error in the order which needs correction without necessarily preventing the authority from continuing with the resumption process. In some circumstances it may be difficult to decide

whether an order in the nature of certiorari to quash the order is preferable to a declaration. The action may founder at the outset if the wrong remedy is sought. In Pamalco Pty Ltd v Minister (1990) 69 LGRA 244 the landowner sought a declaration challenging the validity of the resumption. The action was dismissed. In Pamalco Pty Ltd v Minister (No 2) (1990) 69 LGRA 382 the landowner sought an order in the nature of mandamus to compel the New South Wales Land and Environment Court to hear and determine the whole of its claim that the resumption was invalid. It was held that the application for mandamus was premature and should be dismissed. Mandamus was confined to a case where [page 49] it is clear that the authority had failed or refused to exercise jurisdiction. That was not the position in this case. In McKenzie v Minister for Lands [2011] WASC 335, the minister questioned whether the applicants had standing to pursue a question in court of whether a notice of intention to resume land was valid. The applicants were members of a tribe claiming to hold native title rights over land which was to be acquired. The applicants argued they had standing to bring such a case in court because they had a special interest above the ordinary member of the public by way of their identification with the tribe and their role as a ‘law boss’ in the area in question. The minister argued that because the native title claim had not been resolved, the applicants did not have a sufficient interest. The court ruled that an unresolved claim of interest which could be adversely affected may be able to be characterised as a special interest that is above that of an ordinary member of the public. In addition to challenging some aspect of the procedure, the landowner needs to choose the correct court in which to initiate proceedings. In Porter v Hunters Hill Council (2003) 131 LGERA 144 the valuer-general provided a

document to the council purporting to be a determination of the amount of compensation to be offered to the claimant whose land was being resumed. The council did not give notice of the valuation to the claimant as required by Land Acquisition (Just Terms Compensation) Act (NSW) s 42(1). The claimant applied to the New South Wales Land and Environment Court for an order for the council to deliver the valuation to him. It was held that the jurisdiction given to this court did not extend to hear and dispose of the application. An attempt to argue that errors in the notice to resume invalidated the resumption failed in Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120. It was held that there was substantial compliance with the statutory requirements in the notice of intention to resume and the departures from the procedure were of a trivial kind.

EXCEEDING STATUTORY POWERS [1.33] The power of an acquiring authority to take land by compulsory means is derived from statute. The power must be expressly stated in the statute and must be exercised in accordance with the provisions of the statute. The power must be exercised for the purpose stated in the statute. An acquiring authority which purports to resume land for a purpose outside the purpose specified in the statute exceeds its jurisdiction and the acquisition is voidable. The authority has exceeded its power and the doctrine of ultra vires applies. Statutory powers in respect of resumption are of two kinds: the first is expressed in broad terms as being for the general purposes of the government; the second is expressed in narrow terms for specific purposes. It follows that where the authority is vested with wide powers of resumption it is more difficult for a landowner to challenge the validity of the taking on the ground that the authority has exceeded its powers.

[page 50] The convenient starting point on the doctrine of ultra vires is Sydney Municipal Council v Campbell [1925] AC 338. In this case the council had the statutory power to acquire compulsorily land required for the purpose of making or extending streets and also land required for ‘carrying out improvements in or remodelling any portion of the city’. In connection with extension of a street the council resolved to acquire certain land. The council had previously been restrained from acquiring the land for the extension, on the ground that it was not really required for that purpose, but that its purchase was desired because of its probable increase in value. There was evidence that the council was endeavouring to give a new form to the transaction previously decided upon, rather than considering that the particular land was required for improving or remodelling. It was held that evidence sustained a conclusion of fact that the council was exercising its powers for a purpose differing from those specified by the statute and it was rightly being restrained from acquiring the land. The Privy Council observed (at 343): A body such as the municipal council of Sydney authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere.

The question whether an acquiring authority exceeds its statutory power or not commences as a question of fact but is ultimately a question of law. The onus is on the landowner to prove that the acquiring authority ‘though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object’ (at 343). The resumption statutes do not provide a special form of procedure whereby the landowner can apply to have a resumption notice set aside on the ground that the authority is exceeding its statutory powers. The landowner must rely upon the remedies available in administrative law whether it is by means of the prerogative writs, a declaration or an injunction.

The evidence that an acquiring authority is exceeding its powers may be apparent from the terms of the resumption notice. In MacDonald v Railway Commissioners (SA) [1909] SALR 135 the commissioners served a notice to treat on a landowner under the provisions of the Adelaide to Narne Railway Act 1878 (SA). The land was required for the purposes of the South Australian railway system and not exclusively for the Adelaide to Narne railway. It was held that the commissioners could not acquire the land under this particular statute for the general purposes of the railways. The power must be exercised for the purposes intended by the statute and not for any other purpose. The case may be contrasted with Campbell, above, where the notice appeared to be within the scope of the relevant statute but the reality was different. The landowner had to go behind the notice and bring evidence to show that the council was acting beyond the limits intended by the relevant legislation. In Howarth v McMahon (1951) 82 CLR 442 a council was empowered to provide, control and manage or subsidise associations, institutes and [page 51] clubs for returned soldiers and sailors. It was also empowered to acquire land for any purpose of the relevant local government statute. The council purported to resume certain land for the purpose of providing a club for returned soldiers and sailors from World War II. The High Court held the purported resumption to be ultra vires because on the evidence the council never intended to build and provide a club, over which it would exercise control and management. The council intended to convey the land to trustees in consideration of a sum of money. In essence, the council was acquiring a piece of land in order to sell it to trustees. In Prentice v Brisbane City Council [1966] Qd R 394 the council resolved to take land compulsorily to provide a road to a bridge which was proposed to

be constructed across the Brisbane River by a land development company to provide access to an area of land on the other side to be developed by that company. It was held that the wide power of compulsory acquisition must be exercised in good faith and that the council had acted ultra vires since it had no power to acquire the land compulsorily of a private person for the purpose of assisting in the carrying out of such a project. The taking could not be classed as road purposes or even public purposes. As in Howarth v McMahon, above, the court was prepared to examine the true reasons that lay behind the notice issued by a local authority. It is more likely to be prepared to do this when the resuming authority is a local government council than when the authority is the Crown. There may, however, be limits to the depth of judicial scrutiny. In Shaw v State Planning Authority (NSW) (No 2) (1972) 27 LGRA 94, affirming (1970) 21 LGRA 192, it was held that in determining the purpose of the planning authority’s resumption, the court was not entitled to look at the terms of the recommendation for resumption placed before the state’s executive council. The council was not entitled to examine the minute on which the executive council acted to determine the ‘basic intent’ of the resumption. But in Cromer Golf Club Ltd v Downs [1972–73] ALR 1295 the minute to the executive council recommending a resumption was in evidence in determining whether a national fitness camp was predominantly a school for the purposes of the resumption. An attempt to resume land for transport purposes by the department of transport under the Transport Planning and Co-ordination Act 1994 (Qld) failed in Re Noble (1999) 103 LGERA 156 because the South Bank Corporation Act 1989 (Qld) put the corporation in the position of the state and thus precluded the department from resuming the corporation’s land. The Act of 1989 reflected a comprehensive scheme of control over the use of the land. In short, the transport department had exceeded its powers.

BAD FAITH

[1.34] An acquiring authority that resumes land for a purpose which is not authorised by the statute is acting ultra vires and the resumption is voidable where it is challenged by the landowner. In addition, an acquiring authority that resumes land which is not authorised by statute may, in some [page 52] instances, be said to have acted in bad faith (mala fides). An acquiring authority that takes land for a purpose which is ostensibly authorised by statute but which in truth is motivated by dishonesty or impropriety may be said to have acted in bad faith and, in consequence, to have acted ultra vires. Bad faith is not normally attributed to the Crown, to a governor or to a minister acting on behalf of the Crown. But faith can be attributed to a local government. In Werribee Shire Council v Kerr (1928) 42 CLR 1 a company sought permission to run a line of pipes along land which previously had been a government road but which was now held in private ownership. The company laid the pipes and the landowner sought an injunction to compel the company to remove the pipes. Subsequently the council proposed to acquire the land compulsorily along which the pipes had been laid for the purpose of providing a public road. The landowner opposed such action on the ground that the real purpose of the council in acquiring the land was not to provide a road but to enable the company to continue in the situation in which it had been placed. The High Court held the resumption to be invalid. In other words, a superior court was prepared to look behind the stated purpose to ascertain what was the real purpose of the resumption. In Dorn v Minister of Public Works (NSW) (1924) 42 WN (NSW) 8 the court was prepared to interfere with the exercise of a minister’s discretion to resume land when it was not exercised bona fide (good faith) or was a decision that no reasonable person could have come to. The parameters of bad faith are elusive and it would need unusual circumstances supported by convincing

evidence and argument to persuade a court to interfere with a minister’s discretion in resumption law.

ALTERNATIVES TO RESUMPTION [1.35] The issue here is whether landowners in receipt of a notice of intention to take their land may seek to prevent the resumption from proceeding on the ground that the authority has alternative courses of action that would achieve the same purpose without resorting to the compulsory process. In the absence of statutory power to enable landowners to contest the merits of the decision to resume on such grounds, the rule is that the court will not inquire into the possibilities whether some other means within the authority’s power could have been employed. If, for example, a landowner was able to show that the decision to resume the land to build a road between A and B was more expensive than building the road along a different route, can the landowner argue that, all other factors being equal, the resumption should not proceed? Such a question involves an examination of the merits of the whole scheme and prima facie the courts would not interfere. In Bloss v Brisbane Exposition and South Bank Development Authority (1984) 54 LGRA 405 the authority had statutory power to develop and improve land within the site chosen for Expo 1988. A landowner owned an historic house within the site and sought an interlocutory injunction to prevent the authority from acting on a notice of intention to acquire the [page 53] land compulsorily. The landowner offered to lease the land and the historic house to the authority. The authority stated that it was its policy to resume all the land within the site. Refusing the application for an injunction, the court observed that the fact that the authority could have taken a leasehold interest instead of acquiring the freehold was not to the point. It was not for the court

to inquire as to whether some other means within the authority’s power could have achieved the same purpose. Bloss was more recently affirmed in the South Australian case of Salia Property Pty Ltd v Commissioner of Highways [2011] SASC 106. Here the court emphasised that as long as the acquisition is in good faith, the court was not in a position to inquire whether the same object or purpose of the acquisition could have been achieved through some other means. It was further highlighted that the question of whether the purpose or objective of the acquisition could have been achieved through alternative means was not necessarily appropriate for the courts to answer as it pertained to a separation of powers issue and was a matter that ought to be considered by the legislature. In the hypothetical situation today of the Commonwealth being the resuming authority in Bloss, above, by the Lands Acquisition Act (Cth) s 31(1)(f), the landowner would have been entitled to seek a review by the Administrative Appeals Tribunal on the ground that there was ‘some other means of accommodating the relevant authority’s needs’. The tribunal would have been able to examine the issue on its merits and by s 30 would have been entitled to make a recommendation to the minister. If the tribunal had recommended that the authority should take a leasehold interest instead of a freehold interest, it is possible that other landowners would have preferred to have had the same option, that is, a choice between becoming lessors or having their freehold interest extinguished.

PLANNING CONSIDERATIONS [1.36] The issue here is whether an acquiring authority can ignore planning considerations when it makes a decision to resume land. If, for example, an area of land owned by a city council is zoned by the planning authority as open space, can an authority with power to resume land for railway purposes, resume the council’s land for the purpose of building a

railway station? In this situation the city council, the railway authority and the planning authority have an interest in the outcome of this question. It is impossible to provide any answer to the question as it is likely to involve at least three different statutes. Suffice to say that planning considerations may be a relevant and important factor in determining an authority’s power to resume. The Land Acquisition and Compensation Act (Vic) s 5(1) introduced a significant change to its resumption law. The subsection provides that the acquiring authority must not commence to acquire an interest in land under the special Act containing the source of the power of resumption, unless the land has been first reserved by or under a planning instrument [page 54] for a public purpose. While there are exceptions to this requirement, it is nonetheless a broad, general precondition to resumption, which in normal circumstances must be established. The need on the part of the acquiring authority to comply with planning or zoning requirements prior to resumption may be illustrated by F Hannan Pty Ltd v Electricity Commission (NSW) [1983] 3 NSWLR 282 where the commission made a decision to resume an easement over land for the purposes of a transmission line which had already been taken to the boundaries of the subject land. The land was zoned rural. The Environmental Planning and Assessment Act (NSW) s 112 required the authority to obtain an environmental impact study before it took its relevant final decision to resume the interest in the land. An injunction was granted to restrain the commission from proceeding further until it obtained the impact study. In short, environmental and planning legislation may need to be complied with by the acquiring authority before it makes any decision to resume land.

RESUMING EXCESS LAND [1.37] It is a general principle of resumption law that an acquiring authority must not take more than is necessary to accomplish the stated purpose. If a road authority needs two metres of frontage to widen a highway, it would exceed its power if it attempted to resume four metres. In Minister for Public Works (NSW) v Duggan (1951) 83 CLR 424 a local authority proposed to construct a park and new road on the site of certain mangrove swamps to be reclaimed and on the foreshore of a bay to be acquired principally by resumption. The land to be resumed was known to be in excess of the actual requirement. The authority intended to subdivide and resell the excess land resumed for building lots and use the proceeds towards the cost of the scheme. The High Court held that the local authority was not empowered under the relevant legislation to acquire land in excess of the requirement. It was not disputed that a substantial purpose of the resumption of the residual land was to make a profit out of resale, and no attempt would have been made to resume these lands if it had not been the desire of the council to reduce the cost of construction of the new road. The legislation did not authorise such a purpose and it did not confer a right to acquire land for the purpose of recoupment as incidental to the express purpose. In Thompson v Randwick Corporation (1950) 81 CLR 87 the council had power to resume land and also other land adjoining or in the vicinity. It was held that if the council attempts to resume more land than is required for the stated purpose the council is not acting in good faith. If, in deciding upon the proposed resumption, it is actuated substantially by the purpose of profit making by sale of the land so required, the council may be restrained from proceeding further. It is an abuse of a council’s power to take land that is not needed for the purpose of the undertaking by the council. [page 55]

The Land Acquisition Act (Tas) s 10 permits an acquiring authority to enter into an agreement for the purchase of land notwithstanding that the land that is the subject of agreement contains an area in excess of that required for the authorised purpose for which the land is being purchased. In the Victorian case of Murdesk Investments Pty Ltd v Secretary to the Department of Business and Innovation [2011] VSC 436, the acquiring authority acquired land where it did not need the entirety of the resumed land. The acquiring authority was further seeking to sell off the surplus land. The applicant argued that such a sale would be beyond power. The acquiring authority argued that the relevant legislation contemplated that an acquiring authority may sell land which it has acquired. Second, it argued that irrespective of an express power, an acquiring authority could acquire land on the basis it may not need all of that land and sell off any surplus. The court applied Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126 which highlighted that the decision to acquire a larger amount of land than required can spring from a desire to avoid increases in land values and perform statutory duties with minimum outlays. Such a purpose was very different to reselling land for a profit to offset cost. Unless the applicant can prove a vitiating collateral purpose, which the court will not infer lightly, it will be difficult for an applicant to succeed in such cases.

RESUMING PORTIONS OF LAND [1.38] The resumption statutes authorise an acquiring authority to take an interest in land. It is not compelled to resume the whole of the owner’s land. The authority can take a portion of the freehold interest. It obviously does this when it takes a strip of land bordering on the highway. The principle that the authority only takes as much land as it needs to fulfil the purpose for which the land is being resumed may give rise to difficulty if the retained portion of the land becomes uneconomic and cannot be used for its previous purpose. This act of severance is recognised in the compensation provisions.

The resumption statutes do not restrain the acquiring authority from taking a portion of an owner’s land that leaves the owner with a small portion which is regarded as being of little or no use to the owner. Some of the statutes contain provisions dealing with this particular problem. The Acquisition of Land Act (Qld) s 13(1) requires the authority to take the additional land if the land is agreed in writing by the authority and owner to be of no practical use or value to the owner. Land Administration Act (WA) s 176 contains a similar provision where the retained portion has an area of less than 1,000 square metres. Land Acquisition Act (SA) s 12(1)(c) gives a landowner a right to object and request that his or her retained land be acquired. In the absence of such statutory provision the landowner’s only remedy, where he or she is left with a portion of his or her former land that cannot be used for any useful purpose, is compensation. [page 56]

IMMEDIATE USE OF RESUMED LAND [1.39] As a general proposition the resumption statutes do not require the acquiring authority to use the land for the purpose for which it was taken, immediately after the resumption. The statutes do not impose an obligation upon the authority to use the resumed land for the purpose for which it was acquired within a reasonable time or within a specified time. An acquiring authority may resume land for a long-term purpose or develop it in stages. No distinction is made between the power to resume land for an immediate purpose and the power to resume land in advance of requirements. In Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126 land was resumed for a housing scheme. The former owner challenged the validity of the resumption on the ground, inter alia, that the housing commission had not formulated any definite housing scheme but was

planning for the uncertain needs of a 15-year period, and was making immediate acquisitions simply in order to avoid future rises in prices, recognising that when a scheme of development should be ultimately worked out it would be found that not all the resumed land would be needed, and that some would be sold back to former owners. The High Court held that the fact the commission had acquired more land than it needed for its immediate purposes, and that it might dispose of some in the future, did not disclose any purpose other than that for which the power of acquisition was conferred. There was nothing in the evidence to justify a conclusion that the power of acquisition was being exercised for unauthorised purposes. It was clear that the commission recognised that some part of the land would not be needed and could be returned to former owners. That recognition was quite consistent with there being no purpose actuating the commission other than the purpose of planning and developing the whole area as a housing scheme in accordance with the relevant legislation. The fact that the commission’s decision to acquire at once a larger area than was needed for immediate use sprang from a desire to forestall anticipated increases in prices and showed only that its purpose was to perform its statutory duty with a minimum outlay. That was quite different from a purpose of reselling at a profit so as to offset the cost of resumption.

PURPOSES [1.40] An acquiring authority may have a number of different purposes in deciding to resume land. An authority may wish to resume land, for example, for two purposes: to build a car park and to remove an ugly structure. It may have statutory power to resume land to build a car park but it may not have power to resume land in order to remove the ugly structure. Provided the principal purpose is to build the car park the resumption is valid. If the dominant purpose is to remove the ugly structure the resumption may not be valid. The issue is which is the principal and which the subsidiary purpose. As long as the principal purpose comes

[page 57] within the statutory power, the subsidiary purpose that is not within the statutory power will not invalidate the resumption. The issue may be illustrated by CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365 where a council resumed land for street widening and other purposes. The High Court held that the notice showed not all the land was required for street widening, but the widening was the initiating and abiding purpose of the resumption. The relevant statute permitted the council to resume land additional to that which was required for the purpose of street widening. In Estates Development Co Pty Ltd v Western Australia (1952) 87 CLR 126, discussed at 1.39, the authority resumed land for a housing scheme; it also intended to sell off land which might be surplus to its requirements. The latter was clearly outside the authority’s statutory power. The resumption was, however, lawful. The possibility that some of the surplus land might be sold did not invalidate the resumption. The collateral purpose was not dominant as it was in Thompson v Randwick Corporation (1950) 81 CLR 87, discussed in 1.37, where the authority resumed more land than it required so that it could sell that extra land to fund the resumption. Again in Criterion Theatres Ltd v Sydney Municipal Council (1925) 35 CLR 555 the council resuming land stated in the notification that part of the land was required for improving and remodelling a portion of the city. In fact the land was required for street widening only. The High Court held that the validity of the resumption of the whole land was not affected by the statement in the notification that the remainder of the land was required for improving and remodelling that portion of the city. An acquiring authority which takes land for two purposes, both of which are within its statutory power, but there is evidence to show that the taking is for one only of those legitimate purposes, is acting within its powers and the taking is valid. Yet there must be some doubt whether this principle is applicable to each and every instance. Perhaps

a higher standard is required of an acquiring authority in the 21st century not to mislead a landowner in any respect. Where a resumption is challenged on the ground that one of two purposes is outside the statutory power, the immediate task is to identify which of the two is the principal purpose. In Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (NSW) (1982) 41 ALR 467 the board proposed to acquire by resumption privately owned land for the purpose of erecting a new office building as a joint venture with the Government Insurance Office (NSW) (GIO). The High Court held that on the evidence given in the proceedings, the purpose of engaging in the joint venture with the GIO was not an ulterior purpose for acquiring the land, but was entirely subsidiary to the true purpose, and the dominant purpose of the acquisition, namely, the provision of office accommodation, both for the present and the future, being the initiating and abiding purpose of the acquisition. The joint venture with the GIO was simply a means to an end — providing accommodation for its employees. The landowner was not entitled to say that the resuming authority could get by with a smaller building or a building of a different construction. [page 58] The issue may arise whether collateral or incidental purposes come within the scope of the principal purpose for the resumption. For example, the authority may have clear and unequivocal statutory power to build a railway line. Does this power entitle the authority to use the land resumed for stations, signal boxes, car parks, bus parks, road crossings, access paths, bicycle tracks and realigning roads to accommodate the railway line? These are collateral purposes linked to the principal purpose of building a railway line. They do not stand separately or distinct from the principal purpose. However, an acquiring authority may not use the purpose of the taking as an excuse for taking land for secondary purposes, even though such purposes are

matters of convenience and even necessary to the carrying out of the project. In Dorn v Minister of Public Works (1924) 42 WN (NSW) 8 land was resumed for the construction of the Sydney Harbour Bridge. It appeared from the evidence that land was being taken for improving access to a new railway terminus which was required to replace the old terminus which had been closed to provide a site for one of the piers of the bridge and to accommodate the contractors’ workshop. It was held that the works were incidental to the principal purpose of building the bridge and the resumption was valid. The incidental works were necessary for the construction of the principal works.

PUBLIC PURPOSE [1.41] Some of the resumption statutes use the term ‘public purpose’ to define the power of an authority to acquire land. By Lands Acquisition Act (Cth) s 40(1) the Commonwealth may acquire land for a ‘public purpose’. If it becomes necessary to acquire the land by compulsory process, by s 41(2)(b) the declaration shall specify the ‘public purpose’ for which the land is being acquired. Section 6(1) defines the term ‘public purpose’ to mean a purpose in respect of which the Commonwealth Parliament has power to make laws and includes in relation to land in a territory, any purpose in relation to the territory. The term ‘public purpose’ has the same definition as it had in the Lands Acquisition Acts of 1906 and 1955, now repealed. Section 22(2) requires the minister to identify the ‘public purpose’. When considering the scheme of acquisition in the Lands Acquisition Act 1906 (Cth) in W H Blakeley & Co Pty Ltd v Commonwealth (1953) 87 CLR 501 the High Court held that a declaration by the governor-general that the land was required for a ‘public purpose’ was in essence conclusive and the courts would not go behind the declaration to determine if there was another purpose. Bearing in mind that the declaration is now made by the minister and not by the governor-general and that there were different procedural provisions, particularly by s 31 of the current Act to seek a review of a preacquisition declaration, it would seem, nevertheless, that Blakeley retains its

authority. The Act of 1989 makes no provision for landowners to challenge the merits of the minister’s determination of what the minister considers to be the relevant ‘public purpose’. [page 59] In Blakeley it was held that the ‘public purpose’ should be specified. Section 22(2) requires that it be ‘identified’. If no purpose is identified it would follow that a pre-acquisition declaration would be voidable. In Jones v Commonwealth (No 1) (1963) 109 CLR 475 the declaration merely stated that the land was required for ‘the following purpose approved by the governorgeneral — the Australian Broadcasting Commission at Ripponlea, Victoria’. It was held that the commission was not a purpose within the meaning of ‘public purpose’. The declaration did not specify or state unequivocally that it was for a public purpose and failure to do so resulted in a fundamental and fatal defect. In Jones v Commonwealth (No 2) (1965) 112 CLR 206 the defect in the declaration was cured by the inclusion of the words ‘the provision of broadcasting and television studios for the Australian Broadcasting Commission in accordance with the Broadcasting and Television Act’. The declaration identifying the ‘public purpose’ would normally relate to the legislation on which the Commonwealth Parliament has power to make laws. The term clearly has a wide meaning but it does have its limits. In Clunies-Ross v Commonwealth (1984) 155 CLR 193 the owner of most of the land in the Cocos Islands sold that land to the Federal Government but retained ownership of the land on which his house was situated. Subsequently the Federal Government sought to resume the land on which the house was situated. In the relevant declaration it gave no specific reason as to why it required the land but when challenged it explained that the land was required for the political, social and economic advancement of the people of the islands. In essence, the government wanted the particular landowner off the

islands for good. It had no particular need for the land in question, apart from these social and political ambitions. The High Court held that the power of acquisition did not extend to the taking of the land for the sole purpose of depriving the owner of it. The principle emerging from this decision has application beyond the interpretation of the Commonwealth Act. An acquiring authority can take land by compulsory means when it requires that land for a lawful purpose. It cannot resume land to remove an owner of land because it is considered by the authority desirable in the public interest that the particular owner should not be entitled to live there or own the land. Land Acquisition (Just Terms Compensation) Act (NSW) s 4(1) defines ‘public purpose’ to mean any purpose for which the land may be acquired by compulsory process under the Act. Section 21 provides for the designation of land that may be acquired for a ‘public purpose’. Land Acquisition Act (Tas) s 3(1) defines ‘public purpose’ to mean a purpose related to the administration of the government of Tasmania. Section 4(3) provides that the governor may, by order, authorise a minister to acquire land for a ‘public purpose’ or public work if there is no statutory authorisation to acquire the land. The subsection serves as a residuary power of resumption if there is no direct power to resume land under a particular statute. [page 60] Lands Acquisition Act (ACT) s 3 defines ‘public purpose’ as meaning a purpose in respect of which the legislative assembly or the parliament of the Commonwealth has power to make laws. When making a declaration under s 19 that land is suitable for acquisition, the declaration must identify, inter alia, the ‘public purpose’ of the acquisition. The Land Acquisition and Compensation Act (Vic), the Acquisition of

Land Act (Qld), the Land Administration Act (WA) and the Lands Acquisition Act (NT) do not use the term ‘public purpose’. The term may appear in other statutes and have a different meaning from the term in the four resumption Acts in which it appears. In Rodgerson v Attorney General (Vic) [1944] VLR 55 the relevant statute permitted land to be resumed for the ‘the erection thereon of any buildings or works to be used for public works’. The purpose of the resumption was to erect a hospital to be funded by the state government, by certain municipalities and by public subscription. It was held that in this context, on the proper construction of the statute, the term ‘public purpose’ had a narrow restricted meaning limited to activities directed or controlled by the state government. A restricted meaning was also given to the term ‘public purpose’ in Caldwell v Rural Bank of New South Wales (1951) 53 SR (NSW) 415 where land was resumed for public offices of the bank. It was held that the relevant statute did not include buildings that were ‘public’ only in the sense of being owned or held by the state government. Lands Acquisition Act (NT) s 43(1) grants power to the minister to acquire land for ‘any purpose whatsoever’. The subsection did not refer to ‘public purpose’. In Griffiths v Minister for Lands, Planning and Environment (2008) 246 ALR 218 the High Court held that s 43(1) conferred power on the minister to acquire land solely to enable it to be sold or leased by the territory for private use to another person. In other jurisdictions, there are no such wide powers.

PUBLIC WORKS [1.42] In the 19th and the beginning of the 20th century resumption law was regarded as an adjunct to the construction of public works. The provisions governing resumption were often contained in Public Works Acts which created public works authorities and gave them power to construct roads, government buildings and a host of other constructions. As a matter of

convenience other government authorities used the public works procedural legislation when they resumed land. New South Wales and Western Australia retained this procedure until they enacted the Land Acquisition (Just Terms Compensation) Act (NSW) and the Land Administration Act (WA). Apart from Western Australia in the other jurisdictions the term ‘public works’ has ceased to be of consequence in resumption law. The Western Australian Land Administration Act s 161 provides that interests in land may be taken for ‘public work’. [page 61]

PURPOSES OF EMPOWERING ACT [1.43] Each of the resumption statutes in the states and territories contains the procedure that is to be followed when an authority seeks to acquire land by compulsory means. Some contain a power of resumption without direct reference to other legislation. For the most part the power of resumption is to be found in another statute governing the powers and duties of a particular authority. An obvious illustration is a local government council which finds its powers of resumption in local government legislation (see 1.19). Land Acquisition (Just Terms Compensation) Act (NSW) s 5(1) provides that the Act applies to the acquisition of land by an authority which ‘is authorised to acquire the land by compulsory process’. Land Acquisition and Compensation Act (Vic) s 3(1) refers to ‘the special Act’ and s 4 provides that an authority which is empowered under a special Act to acquire an interest in land by compulsory process ‘must not acquire that interest’ except in accordance with Pt 2 (ss 4–29) of the Act. Acquisition of Land Act (Qld) s 5(1)(c)(ii) provides that land may be taken under the Act for any purpose for which the constructing authority is authorised or required, ‘by a provision of an Act other than this Act, to carry out’.

Land Administration Act (WA) s 161(1) refers to authorisation to take land which is authorised by the Act, the Public Works Act 1902 (WA) ‘or any other Act’ to undertake, construct or provide any public work. Land Acquisition Act (SA) s 7(1) provides that the Act applies to ‘every acquisition of land authorised by a special Act’. Land Acquisition Act (Tas) s 5(1) refers to an acquiring authority ‘authorized by a special Act’ to acquire any land required for the purposes of the authority. Neither the Lands Acquisition Act (NT) nor the Lands Acquisition Act (ACT) refers directly to the power of acquisition in other Acts. Where an Act, other than the resumption statute, determines the power and scope of the acquiring authority to resume land, it follows that the land may only be taken for the purposes that come within the scope of that Act. Macdonald v Railway Commissioners (SA) (see 1.33) illustrates the point. The land could only be taken for a particular railway line covered by the statute, not for other railway lines. In Boland v Canadian National Railway Co [1927] AC 198 the Privy Council held that a subway was not part of a railway undertaking and not within the scope of the relevant legislation. It is primarily a question of fact whether the purpose of resumption falls within the scope of the empowering statute. In Murrurundi Electric Supply Co Pty Ltd v Murrurundi Shire Council (1951) 68 WN (NSW) 118 the relevant local government statute permitted the council to resume land ‘for any purpose of the Act’. The council resumed land for the purpose of council offices and a council works depot. It was held that it was a purpose of the [page 62] Act that the council must provide itself with offices for the transaction of its business, and it was a purpose of the Act that the council could provide itself with a works depot.

A statement by the acquiring authority that the taking is ‘for the purposes of the Act’ may be sufficient to conclude the matter. In Tinker Tailor Pty Ltd v Commissioner for Main Roads (NSW) (1960) 105 CLR 334 the relevant notice simply described the taking as being for the ‘purpose of the Act’, namely the Main Roads Act 1924 (NSW). The High Court held that the instrument exercising that power need do no more than refer to the purpose of the Act. In this case it was implied that the land was being resumed for the making or improvement of main roads. There must, however, be a connection between the declared purpose of the resumption and the purposes of the Act. In Attorney-General (Vic) (Ex rel Australasian Realty Corporation Pty Ltd) v Housing Commission (1979) 44 LGRA 258 it was held that a resumption for the purposes of urban expansion and development was ultra vires the purposes of the relevant housing statute. Where the empowering Act is of a general nature, such as a local government statute, it may be incumbent upon the acquiring authority to spell out with more precision what particular purpose the land is required for. The general resumption statute may require this to be done. For example, Land Acquisition and Compensation Act (Vic) s 8(1)(c) specifically requires the authority ‘to give details of the purpose for which the interest is to be acquired’. It may not suffice merely to state in the notice of intention to acquire that the land is required for the ‘purposes of the Act’. There is, of course, nothing to prevent a landowner seeking further information from an inquiring authority in the absence of an express power preventing the owner from doing so. A landowner may be able to obtain further information by means of freedom of information legislation (Freedom of Information Act 1982 (Cth); 1989 (NSW); 1982 (Vic); 1992 (Qld); 1992 (WA); 1991 (SA); 1991 (Tas); 1989 (ACT)).

DISCOVERY OF DOCUMENTS [1.44] In ordinary civil proceedings a party has a right to seek discovery of documents from the other party prior to the actual hearing of the dispute in

the court. The issue here is whether a landowner seeking judicial review at common law or seeking to exercise a statutory right of objection can seek discovery of documents from the acquiring authority. The resumption statutes are silent on the matter. In civil proceedings any right to discovery of documents does not arise until the action is commenced. As soon as the plaintiff serves a writ on the defendant the appropriate rules of court determine the procedure to be followed in respect of discovery. Landowners in receipt of a notice of intention to resume are in a different position from litigants in a civil action. They may know nothing about the proposal to take their land before receiving the initial notice. Without the same information that the authority possesses they may have difficulty in finding grounds for making [page 63] an objection. It is probable that none of the relevant documents upon which the authority’s decision was based are available to the landowners. Even if detailed reasons are given by the authority in the notice of intention (see 2.5), the authority may claim that the documents are privileged and refuse to produce them. This might, for example, be the case where the land is being acquired for defence purposes. In Lanyon Pty Ltd v Commonwealth (1974) 129 CLR 650 a landowner received a notice to treat in respect of its land and it sought discovery of certain documents that preceded the issue of the notice, including minutes of the cabinet, its committee and its subcommittee. Each minister claimed privilege. The High Court upheld that claim for privilege, without examination of the documents referred to, on the ground that it was not in the public interest for the documents to be disclosed. Even if this had been an ordinary civil action it is probable that the application for discovery would not have been granted. In respect of objections under the Acquisition of Land Act (Qld) the

Supreme Court of Queensland has made it clear that an objector is entitled to procedural fairness: Little v Minister of Land Management (Qld) (1993) 79 LGERA 374. It follows that the constructing authority would be expected to make available the relevant documents in its possession.

TEMPORARY ENTRY [1.45] In the process of making a decision whether or not to acquire particular land, the authority may wish to inspect the land to determine its suitability for the purpose for which it may be acquired. The resumption statutes contain general powers of entry to inspect the land and, in some instances, to effect temporary occupation. The statutes may require notice to be given before entry takes place. The authority may be entitled to carry out certain works to assist the authority to determine whether the land is suitable for the purpose of the possible acquisition. The statutes may enable the authority to remain on the land for such period as is reasonably necessary. The temporary entry or occupation of the land is separate and distinct from the process of resumption. Even if the authority decides after entering and occupying the land to resume it, any claim that the authority exceeded its powers and caused damage or loss to the landowner does not form part of the claim for compensation for resumption. The date on which the entry took place does not become the date of resumption on which the amount of compensation must be determined. The temporary entry is usually an incident that occurs before resumption.

TRESPASS [1.46] Where an authority has a power of entry to determine the suitability of land prior to making a decision to resume that land, the authority will commit trespass if those powers are exceeded. The statutory powers differ in specifying the activities that the authority can carry out when it has entered the land. For example, Land Acquisition Act (Tas) s 54(3) expressly states

[page 64] that a person authorised to enter and remain on land may be accompanied by assistants, vehicles, machinery and equipment as the person thinks fit. Section 54(5)(d) requires the authority to estimate the probable duration of the entry. The right of entry does not amount to a right to interfere with the use and enjoyment of the land. In Eckford v Walker (1902) 2 SR (NSW) 369 the Crown sent men onto privately owned land to test a quarry on the route planned for the construction of a railway. The work done was of a permanent nature. It was held to be a trespass. Where the power of entry relates to land which it is intended to resume for public works, the power of entry may be exceeded if the power of entry is used for a different purpose. In Kennedy v Minister for Works [1970] WAR 102 the Crown decided to sink six boreholes, for the purpose of supplying a nearby town with water, on and under the terms of a pastoral lease. It was held that the work on the water supply was unlawful as the Crown did not intend to take the land for a public work. The power of entry related only to an intention to resume the land. There are numerous ways in which an authority with a power of resumption and a right to enter land relating to resumption may exceed its statutory powers. It may cause unnecessary damage. In Melbourne Oyster Supply Pty Ltd v Sutherland Shire Council [1967] 1 NSWR 643 the council commenced the construction of a causeway to reclaim land through land which was the subject of an oyster lease. It was held that while the council had power to enter the land and take temporary possession, it remained liable for any unnecessary damage caused to the holder of the oyster lease. There is authority for the proposition that where an authority has statutory powers of entry onto land, those powers will be strictly construed. In Amstad v Brisbane City Council (No 1) [1968] Qd R 334 the council had a statutory power of entry upon land for the purpose of making drains. The council commenced building a drain outside a residential property. Employees of the

council entered the property to ask the occupier to move a car which was impeding the construction work. At common law they would have had a right to enter land for such a reasonable purpose. Earlier the owner of the property had informed the council that it could not enter his land for such a purpose. It was held that the entry effected by the council was not within the statutory power of entry. The entry had to be in relation to some activity carried out on the land entered. It was observed that in their dealings with citizens over whom they exercised so much authority, the council should ‘be held strictly to the powers with which the government had seen fit to clothe them’ (at 341). Each of the statutory provisions differs in the details and each defines its own limits. The Public Works Act 1912 (NSW) s 80 contains a power to enter land and to carry out certain works on the land. In Gallen v Strathfield Municipal Council [1971] 1 NSWLR 122 the council sought to enter upon a suburban allotment, upon which a dwelling house had been erected, in order to construct sewerage and drainage pipes without resuming an easement but subject to the payment of compensation. On the proper [page 65] construction of s 80 it was held it had such power. But in Upper Hunter County District Council v Cowan [1971] 1 NSWLR 515 the council wished to erect an electricity line across certain land. Negotiations failed but the council went ahead. It was held that s 80 was not an appropriate source of power for constructing the line. It could not be construed so widely as to authorise the invasion of private rights. Where damage is caused by an authority exercising its powers of entry and occupation to ascertain the suitability of land for resumption, the owner is entitled to compensation for damage or loss which the owner suffers. A claim for compensation may extend not only to visible damage caused to the land

but also may embrace other kinds of loss suffered by the entry, for example, loss of profits of a business conducted on the land attributed to the temporary entry.

TAKING MATERIALS [1.47] Land acquisition and road maintenance statutes have traditionally allowed an authority to take gravel, sand and stone for the purpose of building or maintaining roads. The power to take materials is to be found in Lands Acquisition Act (Cth) s 12; Public Works and Procurement Act 1912 (NSW) s 80; Land Acquisition and Compensation Act (Vic) s 75; Acquisition of Land Act (Qld) s 37; Land Administration Act (WA) s 163; Land Acquisition Act (SA) s 28; Lands Acquisition Act (NT) s 29; and Lands Acquisition Act (ACT) s 9. The power of entry for this purpose may be specified in the provisions allowing temporary entry and occupation. The materials taken may be restricted to stone, gravel, sand and like substances. The right to take such materials may be prohibited in respect of land that is close to a dwelling house. The statutory provisions generally provide for the payment of compensation, not for the materials taken, but for any damage caused to the land. Underlying these provisions is a requirement for the authority to behave reasonably. The provisions do not extend to the authority entering the land and, in effect, operating a quarry of stone. It is a different thing for a modest quantity of stone to be taken to resurface a road from taking thousands of tonnes of stone for the construction of a major highway.

COMPLAINTS TO OMBUDSMAN [1.48] An ombudsman has a duty to investigate complaints which relate to matters of administration. Landowners who are aggrieved by some aspect of procedure leading up to the decision to resume their land have a right to submit their complaints to the ombudsman who is under a duty to investigate them. The ombudsman’s powers lie primarily in an examination of how the

decision was made and not in reviewing the merits of the decision. The ombudsman’s jurisdiction does not usually extend to the investigation of a decision made by a minister to resume the land but the ombudsman may be able to investigate the recommendations of departmental officers leading to the making of the decision. The ombudsman’s task is to investigate if the [page 66] administrative aspect of the resumption is being or has been carried out efficiently and fairly. It does not extend to investigating matters of policy. A complaint about delay in carrying out the procedure would be within the ombudsman’s jurisdiction. A complaint may be effective where there have been irregularities in the procedure. A complaint may be effective where landowners have not been kept properly informed or where the authority has not explained matters of procedure. A complaint may reveal that despite adherence to the statutory requirements, the acquiring authority has acted without proper courtesy to a landowner. An investigation might reveal some factor of which the landowner was unaware. The ombudsman might discover that there was a valuation which the authority decided not to use and which values the land at a significantly higher value than the amount which is being offered by the authority. A complaint needs to be factually accurate and to make clear what the complainant wishes the ombudsman to do. A general request asking the ombudsman to see if there were any mistakes made by officers of the department is pointless. The ombudsman needs to have enough information provided by the complainant to decide whether the matter requires investigation. Aggrieved landowners need to specify exactly what their complaint is and how the ombudsman may be able to remedy their grievance.

PARLIAMENTARY SCRUTINY

[1.49] Resumption is an administrative process. It is carried out by a government authority. Disputes arising out of the procedure and from the determination of compensation become a judicial process. Apart from enacting legislation neither the federal nor state parliaments are involved. There is nothing to prevent an aggrieved landowner complaining to a member of parliament who may be able to ask a question about the matter in the appropriate parliament. Alternatively, the member may submit details of the problem on the minister’s behalf to a government department. There is, however, no statutory procedure which requires a parliament to scrutinise a proposed resumption. No parliament is restrained from examining a proposed resumption project but there is no statutory requirement requiring it to do so. The Lands Acquisition Act 1955 (Cth) s 12 enabled either the House of Representatives or the Senate to pass a resolution avoiding an acquisition. That avenue of challenge was omitted from the Lands Acquisition Act (Cth). There was, it is submitted, considerable merit in the provision. It was exercised in 1973 when 32 square miles of land was acquired compulsorily for the future expansion of Darwin. At the time this was a controversial issue and of sufficient importance to engage the attention of the democratically elected Federal Government. Some vestiges of parliamentary involvement are currently contained in the Act of 1989. Sections 42(1)(b) and 46 permit either House of Parliament to disallow the acquisition of an interest in land in a public park and s 125(5) requires each House to be informed of an acquisition of land overseas. [page 67]

COMPELLING RESUMPTION [1.50] Resumption law is concerned with the compulsory taking of land initiated by an acquiring authority. However, there are certain circumstances

that may arise where landowners become entitled to compel an authority to acquire their land. It may arise where part of the landowner’s land is taken leaving the small portion retained uneconomic (see 1.38). Two states contain provisions for a landowner to compel an authority to resume their land. The Land Acquisition (Just Terms Compensation) Act (NSW) ss 21–28 contain a general procedure in respect of ‘owner-initiated acquisition’ in cases where land is designated for acquisition for a public purpose or where the owners suffer hardship. Section 26 limits the assessment of compensation by providing that certain matters, such as special value, are not to be taken into account. Section 23 is an unusual provision. It provides for an owner who suffers hardship to require an authority of the state to acquire land designated for acquisition by that authority. Section 24 defines hardship. Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19 is an example where the owner applied unsuccessfully for a declaration that the council resume the land due to zoning changes. It was held that in this instance, on the facts the owner did not suffer hardship. The Land Acquisition and Compensation Act (Vic) s 7(6) provides that if an authority has commenced negotiations to acquire an interest in land, a person with an interest in the land may require the authority to determine (a) to serve a notice of intention to acquire the interest, or (b) to serve statements that it does not intend to acquire the interest by compulsory process. The effect of the provision is that if an authority opens negotiations for the possible purchase of land, the owner can effectively compel the authority to acquire the land or to abandon its desire to buy the land by voluntary sale.

THE CLAIMANT [1.51] The central figure in resumption is the landowner who, during the process, becomes the claimant for compensation. A minority of the 24 million citizens living in Australia own land. A large number of those who claim to own land do so subject to a mortgage. Landowners are, in a sense, more

privileged than those who do not live in a residence in which they hold an estate in fee simple. A decision to resume land normally only affects a member of this ‘privileged’ class of landowners. They are not usually victims in the sense of being indigent, poor, ill-educated and unable to cope with an aggressive acquiring authority. There may be sympathy for landowners having their land seized by an acquiring authority but that is all it is — sympathy. It rarely features as an item to be compensated. The three great evils in the law are costs, delay and complexity. These evils affect resumption less than do many other subjects dealt with in the courts. At least the claimant usually receives a substantial portion of the compensation before deciding whether or not to institute litigation. [page 68] The costs involved in taking proceedings to determine the amount of compensation may be manageable and payable out of the compensation awarded. This is not a process in which delay causes injustice when compared to, say, a claim for compensation for personal injuries sustained in a motor vehicle accident which may take years to resolve. Significant delay in such a case often causes hardship to the plaintiff. Despite the mediocre quality of some of the resumption legislation, the degree of complexity of the legislation is tolerable. It may have taken 48 sections and four schedules to make minor amendments to the Lands Acquisition Act (Cth) in 2008 but at least these amendments did not add appreciably to the difficulty of the subject. Even the new s 79, which provides a post-acquisition agreement on compensation made between the minister and the landowner to be effective, is not unduly complicated while the necessity of such a provision may be uncertain. Likewise the new s 74A allowing a minister to make an offer of compensation where no claim is made is easily understood. Detailed legislation, such as the Commonwealth Act, often needs this kind of attention. Resumption

legislation is not immune from legislative amendments. The principal problem that claimants encounter is claiming compensation that covers all the loss they suffer when their land is expropriated.

[page 69]

2 PROCEDURE INTENTION TO RESUME [2.1] The genesis of an idea that the Crown or other authority needs to acquire land for a particular purpose will be born within a government department or other authority with the power to resume land. In due course a firm decision may be made to commence the procedure to acquire land. From the point of view of the landowner the process begins when the authority issues a notice of its intention to acquire the land. As previously noted (see 1.26), there may be a choice for the landowner: negotiate a voluntary agreement for the authority to purchase the land or accept that the resumption procedure may go forward. The terms used to commence the procedure in the resumption statutes differ. In the 19th century the term ‘invitation to treat’ was used when resumption was regarded as a compulsory contract to purchase the land. It is a term retained in Tasmania but it has gone out of fashion elsewhere. By Lands Acquisition Act 1989 (Cth) s 22, the procedure commences with what is termed a ‘pre-acquisition declaration’ that certain land is suitable for acquisition. By s 22(7) the landowner is entitled to receive a copy of the declaration. By s 23 the declaration must be published. By s 26 the landowner may apply for reconsideration of the pre-acquisition declaration. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) also uses the term ‘pre-acquisition procedure’ but by s 11(1) the procedure

commences with a notice of intention to acquire the land by compulsory process. By s 11(2) the authority is not prevented from acquiring the land by agreement after giving the proposed acquisition notice. By Land Acquisition and Compensation Act 1986 (Vic) s 5, prior to issuing a notice of intention to acquire land, the authority must reserve the land by or under a planning instrument. When that has been done, the authority may issue a notice of intention to acquire the land by s 6. By Acquisition of Land Act 1967 (Qld) s 7, a constructing authority which proposes to take land may issue a notice of intention to resume. By Land Administration Act 1997 (WA) s 170(1), if it is proposed to take land without agreement, the minister must issue a notice of intention to take the land. [page 70] By Land Acquisition Act 1969 (SA) s 10(1), if the authority proposes to acquire land it must give a notice of intention to acquire the land to a landowner. By Land Acquisition Act 1993 (Tas) s 11(1), where the authority proposes to take land it must cause a notice to treat to be served on every owner. By Lands Acquisition Act 1978 (NT) s 32(1)(b), the minister issues a notice of proposal to acquire land compulsorily. By Lands Acquisition Act 1994 (ACT) s 19, the acquiring authority issues a pre-acquisition declaration. The issue of the notice of intention to resume signals the first step in the process of transferring the ownership of the land from the landowner to the authority.

PURPOSE AND EFFECT OF NOTICE OF INTENTION

[2.2] The primary purpose of the notice of intention to acquire land is to inform the landowner and others with interests in the land (see 1.16) that the authority is embarking on the process to acquire the land by compulsory means. It is more than a mere statement that the authority would like to acquire the land. The intention is more than an exploratory exercise on the part of the authority. The authority is signalling that it needs the land as distinct from merely wanting it. The notice is not a casual letter indicating that the authority is interested in buying the land. The notice is a formal document indicating that the authority intends to acquire the land. Bearing in mind that the statutory provisions are not the same, in general, the significance of the notice is: (a)

It gives both parties, the authority and the landowner, a right to negotiate a voluntary agreement of the sale of the land from the landowner to the authority. It gives the two parties an opportunity to determine the purchase price, the compensation and any other terms of the agreement, such as the surrender of occupation. In negotiating a sale of the land the landowner will wish to ensure that the price is not less than would result from the statutory compensation for resumption.

(b)

It regulates the exercise of the power of the authority to acquire privately owned land. It commits the authority to follow the statutory procedure.

(c)

It identifies the subject land and informs the landowner of the procedure which both the landowner and the authority are required to follow.

(d) It may indicate a date on which compensation must be assessed. (e)

It may prevent the landowner from dealing with the land, from creating new interests in it or from carrying out any improvements or works on it. It may freeze any developments taking place or about to take place on the land.

[page 71] (f)

If the notice is required to be published, it serves to inform other persons with an interest in the land that the authority intends to acquire the land.

(g)

It may indicate the date on which the authority wishes to take possession.

The notice of intention is not a notice that the landowner will be evicted immediately or on a specific date. The landowner is not immediately dispossessed. In practical terms the landowner realises that he or she will become a claimant for compensation as distinct from being the owner. The notice of intention informs the owner that his or her right of peaceful and uninterrupted occupation is destined to end. The resumption statutes differ in the effect the notice of intention has in respect of freezing any dealings in respect of the land. The pre-acquisition declarations in the Lands Acquisition Act (Cth) Pt V (ss 22–51), the Land Acquisition (Just Terms Compensation) Act (NSW) Pt 2 Div 1 (ss 11–18), the Lands Acquisition Act (ACT) Pt IV Div 1 (ss 19–22) and the Lands Acquisition Act (NT) Pt IV Div 1 (ss 32–35) serve a similar purpose to a notice of intention but it is not until the pre-acquisition declaration becomes absolute that the land becomes vested in the acquiring authority. These Acts do not expressly impose restrictions on transactions prior to the preacquisition declaration becoming absolute. The Land Acquisition and Compensation Act (Vic) s 12 specifies the restrictions on dealings with land where a notice of intention has been served. The section effectively curtails any dealings without the consent of the authority. The Acquisition of Land Act (Qld) does not expressly specify restrictions on dealings with the land. The Land Administration Act (WA) s 172 specifies that there shall be no transactions affecting the land without the minister’s approval. The Land Acquisition Act (SA) s 13(2) forbids the recipient of a notice of intention from entering into any transaction without first disclosing the fact that the

notice of intention has been served upon him or her. Land Acquisition Act (Tas) s 11(2)(h) specifies that the owner is prohibited from carrying out works on, or doing any other act or thing in, or in relation to, the land that will materially vary the nature or value of the land unless the authority has consented to those works or that act or thing.

SERVICE OF NOTICE OF INTENTION [2.3] Having issued the notice of intention or the pre-acquisition declaration to resume the land the second step for the authority is to serve the notice or declaration on the landowner and others who have an interest in the land. The land may be subject to a lease, to a mortgage, to an easement or to some other kind of interest. The lessee, the mortgagee, the holder of the easement and the other owners of interests in the land will be affected by the resumption and they need to be served with a copy of the notice or declaration. The resumption statutes generally require all those with an interest in the land to be served with the notice or declaration. If the land is freehold land and is held by joint owners then both of the owners should [page 72] be served with the documents, particularly if they are living apart or are not related. No general duty is imposed by the resumption statutes upon a freehold owner to inform others with an interest in the land. A mortgagor, for example, is not usually under a statutory duty to inform the mortgagee of the intention of the acquiring authority to resume the land. That duty lies on the acquiring authority. The wording of the provisions governing service varies but as a general rule the authority is entitled to rely on the relevant register of titles to ascertain who has an interest in the land. By Lands Acquisition Act (Cth) s 22(7), a pre-acquisition declaration must be ‘given’ to the person affected by the acquisition, together with a sketch

showing the location of the land identified in the declaration and a statement setting out a summary of the principal rights of the persons whose interests are affected by the declaration. By s 23, the declaration must be published in the government gazette and if practicable in a newspaper circulating in the district. By the Land Acquisition (Just Terms Compensation) Act (NSW) s 12, a proposed acquisition notice must be ‘given’ to the owners of the land having a registered interest or who are in lawful occupation. By the Land Acquisition and Compensation Act (Vic) s 6, a notice of intention to acquire must be ‘served’ on each person who has an interest in the land. By s 9 the notice must be served on the relevant planning authority, relevant council and regional authority. By the Acquisition of Land Act (Qld) s 7(2), a notice must be ‘served’ on any person who is known to be entitled to claim compensation or is a mortgagee of the land. Notwithstanding this, s 7(2A)–(2B) provides that a notice of intention to resume common property need only be served on the body corporate and any other entity which, to the constructing authority’s knowledge, has an interest in the common property. Section 7(2D) obligates the body corporate to include the pre-acquisition declaration with the notice of the first general meeting following the receipt of the pre-acquisition declaration. By s 7(5) a failure to serve due to circumstances beyond the control of the authority does not invalidate the resumption. By s 39(1) a notice may be served personally or by post. By the Land Administration Act (WA) s 170(5), the minister must cause a copy of the notice to be published in a daily newspaper and be ‘served’ on the principal proprietor of any land affected by the notice. By s 274(1), service may be made by personal delivery or by post. By the Land Acquisition Act (SA) s 10(1), a notice must be ‘served’ on each person who has an interest in the land. By s 31(1) a notice may be served personally or by post. However, if the person or their whereabouts is unknown, a notice may be served by publication in a newspaper circulating

throughout the state or placing the notice in a prominent position on the land the notice relates to. By the Land Acquisition Act (Tas) s 11(1), the authority must cause the notice to be served on every ascertained owner. [page 73] By the Lands Acquisition Act (NT) s 32(1)(b), a notice must be served on each person with an interest in the land. By the Lands Acquisition Act (ACT) s 19(6), a copy of the pre-acquisition declaration must be ‘given’ to each registered owner.

ABSENT OWNER [2.4] Where the owner cannot be found and the land is resumed in his or her absence, the resumption statutes make provision for the payment of compensation to be held on deposit. By the Lands Acquisition Act (Cth) s 90, the compensation may be held in a trust fund. By the Land Acquisition (Just Terms Compensation) Act (NSW) s 51, compensation may be held in a trust account. By the Land Acquisition and Compensation Act (Vic) s 58, compensation may be held in a trust fund. By Acquisition of Land Act (Qld) s 29, Land Administration Act (WA) s 249, Land Acquisition Act (SA) s 29, and Land Acquisition Act (Tas) s 53, compensation is paid into their Supreme Courts. By the Lands Acquisition Act (NT) s 95, and the Lands Acquisition Act (ACT) s 75, compensation is paid into trust funds. There is no reason to doubt that where, for example, an owner dies before a claim for compensation is made, that his or her claim becomes a claim to be made by the estate of the deceased. In Perry v Clissold [1907] AC 73 land was resumed in July 1891 and the notice was served on the owner who died

shortly afterwards. His will was proved in May 1892 and in May 1902 his trustees claimed compensation. The Privy Council held that a prima facie case for the payment of compensation had been disclosed, the relevant statute contemplating payment of compensation into court to be dealt with by a court of equity.

CONTENTS OF NOTICE OF INTENTION [2.5] Lands Acquisition Act (Cth) s 22(2) specifies a number of matters which must be included in the pre-acquisition declaration, namely the identity of the acquiring authority, the land, the interest in the land and the public purpose. Section 22(3) requires the minister to include a statement that the land is suitable for use, or for development for use, for a public purpose. The statement must set out the use to which the land will be put or for which it will be developed and the reasons why the land appears to be suitable for that use or for development for that use. Section 22(7) requires a sketch showing the location of the land and a summary of the principal rights conferred on persons whose interests are affected by a pre-acquisition declaration to be given to a person affected by the declaration. Land Acquisition (Just Terms Compensation) Act (NSW) s 15 requires that a proposed acquisition notice must: (a) be in the proper form; (b) specify the authority proposing to acquire the land; (c) contain a sufficient description to identify the land; (d) specify the period within which the land will be compulsorily acquired; (e) request a claim for compensation to [page 74] be lodged within a specified period; and (f) be accompanied by a form for a claim for compensation to be made. Land Acquisition and Compensation Act (Vic) s 8(1) provides that the

notice of intention must: (a) be in the prescribed form; (b) identify the interest to be acquired and the location of the land; (c) give details of the purpose for which the interest is to be acquired; (d) specify the reasons why the land is thought to be suitable for that purpose; (e) specify the details of reservation required by s 5; (f) if appropriate, state the approximate date on which the authority wishes to take possession of the land; and (g) request the recipient to inform the authority of other persons who have an interest in the land, planning matters, transactions and any other information relevant to the proposal. Section 8(2) requires a further document to accompany the notice setting out the principal rights and obligations of persons interested in the land. Acquisition of Land Act (Qld) s 7(3) requires that the notice of intention to resume shall be in writing and shall: (a) specify the purpose for which the land to be taken is required; (b) describe the land; (c) in the case of an easement, also state the rights and obligations to be conferred and imposed by the easement; (d) and (e) specify details and rights of objection; 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. Section 8(3) provides that if the construction authority amends the notice of intention to resume, the objector cannot again object to the taking of the land as provided under the amended notice if the owner of the land has agreed to the amendment. Land Administration Act (WA) s 171(1) requires a notice of intention to include: (a) a description of the land; (b) particulars of the purpose of the public work and the nature of the interests to be taken; (c) if it is proposed to make a disposition or grant to any person out of the interests proposed to be taken; (d) particulars of where a plan of the land may be inspected; the reasons for the land’s suitability for, or why it is needed, for the public work; the date from which the land is likely to be required; the name of a contact officer; and an address for lodging objections; (e) notice curtailing

transactions affecting the land; and (f) notice curtailing improvements being made on the land. Land Acquisition Act (SA) s 10(3) provides that the notice of intention must define the land with reasonable particularity. Section 11(1) entitles an owner to be given an explanation for the reasons for acquisition. Land Acquisition Act (Tas) s 11(2) requires the notice to treat to: (a) be in an approved form; (b) identify the land to be taken; (c) contain particulars of the purpose of the taking; (d) contain other prescribed particulars; (e) specify the authority’s willingness to negotiate; (f) specify the owner’s entitlement to compensation; (g) require the owner to inform the authority of other estates in the land; and (h) specify restrictions on carrying out improvements on the land. Section 11(3) requires the notice to treat to include a plan of the land to be taken. [page 75] Lands Acquisition Act (NT) s 33 and Lands Acquisition Act (ACT) s 19 specify the matters which must be contained in the relevant documents. Regardless of the precise requirements of the relevant statute a landowner would expect a notice of intention to contain the following information: (a)

the relevant statutes which authorise the taking;

(b)

a description of the land to be taken;

(c)

the name of the registered owner;

(d) the purpose of the proposed resumption; (e)

the reasons for the proposed resumption;

(f)

the signature, name and designation of the person issuing the notice;

(g)

the date of the notice;

(h) a right of objection, if any;

(i)

the action which the landowner is required to take on receipt of the notice;

(j)

relevant time limits; and

(k)

the date on which the authority wishes to take possession.

None of the resumption statutes expressly requires the notice to be signed but where there is a prescribed form it will be clear that a notice should be signed by the person named as the authority. If a minister is named as the authority in the statute it follows that it is the minister who must sign the notice. Prima facie, an unsigned notice would be voidable. The notice is directed to those with interests in the subject land. When it is published it is done so with a view to ensuring that anyone who has an interest in the land has an opportunity to claim compensation for the taking of that interest. It is also published to inform the public in general of the taking. This point emerges from Wilson v Secretary of State for the Environment [1974] 1 All ER 428 where it was held that a compulsory purchase notice must be in such terms as are fairly and reasonably necessary to enable members of the public in the area of the land affected to appreciate that they are interested. In Australia the term ‘compulsory purchase’ is not ideal to describe the process (see 1.6). Resumption is a compulsory taking, not a direction or order to the landowner that he or she is compelled to make a contract for the sale of the subject land. The notice of intention affords the principal opportunity for the authority to explain what it proposes and why the taking is necessary. The authority is the agent of the community that the relevant legislature has entrusted with power to take land. It is incumbent upon the authority to provide full details of the taking, its purpose and the reasons for the taking. The notice affords an opportunity to the authority to explain how laudable the project is for which the land is required and to persuade a landowner that it has no rational alternative but to resume the subject land. The notice needs to stress that the landowner will be adequately compensated. The notice is not to be likened to a writ as if it were the commencement of adversarial

[page 76] litigation. In drafting a notice of intention the authority needs to avoid the impression that it is behaving like an invading army ready to blast any opposition into smithereens and take no prisoners! As in Western Australia, the notice should identify an officer of the authority who is willing and ready to negotiate, discuss and explain any matters relating to the notice and listen to the landowner who may have formidable problems which are unknown to the authority. The authority may be able to assist with a solution. The importance of a notice and the detail within its contents was examined in McKenzie v Minister for Lands [2011] WASC 335. In this case, the acquiring authority attempted to resume land under the Land Administration Act (WA) over which the traditional owners of the land claimed to hold native title. The minister issued three notices of intention to acquire. Each notice identified the location of a large area of land from which a smaller area would be acquired. Importantly, none of the notices identified the boundaries of the smaller area. It was held that a valid notice must contain ‘a description of the land acquired’. In order to contain a sufficient description of the land it was ruled that the notice must include the boundaries of the land being resumed. It was also noted that without identifiable boundaries, the court’s ability to ascertain the intention of the acquiring authority would be particularly difficult. Martin CJ highlighted that without such a requirement, the legal consequences would be profound as a result of the uncertainty surrounding the extent of land acquired. Additionally, it was highlighted that several provisions of the Act would be difficult to uphold without certainty regarding the boundaries of the land being acquired. For instance, the Act requires an objector of the acquisition to specify their reasons for objection. It would be difficult to do so without knowing the boundaries of the land that is to be acquired. The court concluded that the notices were invalid as they did not provide an adequate description of the land being acquired. None of the resumption statutes requires the acquiring authority to state in

the notice of acquisition that it has sufficient funds to pay compensation. This may be superfluous where it is a minister of a state government who is resuming the land. But it may be a different situation where a local government is resuming land. The resumption statutes do not authorise an acquiring authority to make the taking subject to finance, that is, to pay adequate compensation.

AMENDMENT OR VARIATION OF NOTICE [2.6] The issue here is whether the acquiring authority has power to amend its notice of intention to resume or its pre-declaration notice. The amendment sought may be of two kinds: first, the amendment may be the correction of a small error that causes no prejudice to the landowner; or, second, the amendment may be a matter of substance. An amendment seeking to alter the spelling of the landowner’s name is more likely to fall into the first category than into the second. But a notice which states [page 77] that the area of land to be taken is 10 hectares when it is intended to be 100 hectares is clearly one of substance. By Lands Acquisition Act (Cth) s 35 the minister may vary an authorising document for the purpose of correcting a clerical error or an obvious mistake in the document. By Land Acquisition (Just Terms Compensation) Act (NSW) s 16(3) a clerical error or an obvious mistake may be corrected. By Land Acquisition and Compensation Act (Vic) s 14(1) the authority and the landowner may agree to amend the notice to alter the description of the interest to be acquired or the land to which the notice relates or any other matter contained in the notice. This provision is different from those in the other jurisdictions as it requires an agreement between the parties. By Acquisition of Land Act (Qld) s 7(4A) an amendment to the notice should be

filed with the land registry. By Land Administration Act (WA) s 170(6) the minister may amend the notice of intention. Land Acquisition Act (SA) s 10(4) provides that if the authority changes the boundaries of the land to be acquired, a notice of amendment should be served on those with an interest in the land. Land Acquisition Act (Tas) s 7I contains provision for an amendment to be made. Lands Acquisition Act (NT) s 35 provides for a modification of the proposal to be made. Lands Acquisition Act (ACT) s 40 provides for a declaration to be corrected. No time limit is contained in the provisions within which an amendment may be made but the authority would be expected to correct a mistake without delay. The principal question to be answered when the authority seeks to amend a notice of intention is whether the landowner is likely to be prejudiced if the amendment is made.

CANCELLATION OF NOTICE OF INTENTION [2.7] By Lands Acquisition Act (Cth) s 27(1), where the minister receives an application for consideration, the minister may confirm, vary or revoke the pre-acquisition declaration. By s 43(2), where there is no application for reconsideration, the pre-acquisition declaration becomes absolute at the end of 28 days after the last day on which such an application could have been made. The minister does not have an express power to cancel the preacquisition declaration in the absence of an application for reconsideration. Section 96 provides for payment of compensation where the landowner suffers loss as a direct, natural and reasonable consequence of the making of the pre-acquisition declaration. By Land Acquisition (Just Terms Compensation) Act (NSW) s 16(1), the authority may withdraw a proposed acquisition notice before the land is compulsorily acquired. By s 14(3) a further proposed acquisition notice may not be issued within 12 months after the date of withdrawal. By Land Acquisition and Compensation Act (Vic) s 15(1), the authority

may determine not to proceed between the times of service of the notice of intention and the publication of the notice of acquisition. [page 78] By Acquisition of Land Act (Qld) s 16, the constructing authority may discontinue the resumption at any time before the proclamation or notification of the gazette resumption notice. By s 16(1A), the landowner may be entitled to claim for compensation and expenses incurred and for any actual damage done to the land by the authority. By Land Administration Act (WA) s 170(6), the minister may cancel a notice of intention, or cancel the notice and substitute another notice of intention. By Land Acquisition Act (SA) s 10(5), a notice of intention to acquire land does not bind the authority to acquire the subject land. Section 15(2) entitles the authority to decline to proceed with the acquisition. By Land Acquisition Act (Tas) s 12(1), an acquiring authority may withdraw a notice to treat if the notice to treat has not been gazetted and agreement for the acquisition has not been made. By Lands Acquisition Act (NT) s 35(1), the minister may at any time before the date of acquisition abandon a proposal. The Lands Acquisition Act (ACT) contains similar provisions to the Commonwealth Act. In anticipation of a notice of intention to resume land being followed by a notice of acquisition, a landowner may incur considerable expense. He or she may, for example, have engaged a valuer to value the land and a lawyer to advise on preparing a claim for compensation. Clearly in Queensland the landowner may claim for such loss. Does the fact that the Queensland legislature considered it appropriate to give a right to a landowner faced with a cancellation to claim for such loss, mean that the absence of express

statutory provision of such right in other jurisdictions results in the owner having no right to claim for such loss? A landowner is not expected to do nothing on receipt of a notice of intention. The emphasis in some of the statutes is to ensure that delays are kept to a minimum. The notice of intention is something more than an invitation to treat in the law of contract (see 2.2). Service of the notice implies that the landowner should take the appropriate steps to prepare a claim for compensation and to be prepared to vacate the land. Prima facie, the landowner would have reasonable grounds for making a claim for losses that are foreseeable and reasonable resulting from the cancellation. Section 15 of the South Australian Act was considered in Christies Stone Quarries Pty Ltd v Corporation of City of Tea Tree Gully (1979) 22 SASR 224 where, in consequence of receiving the notice of intention to resume, and in expectation that the land would be resumed, the owner incurred loss and expenses by drilling and testing of new sites for quarrying. In this case it was found that there had been ‘exasperating delays’ but the owner had no real reason to believe that the resumption was not to proceed. While s 15(7) referred to a ‘proposed acquisition’, this term embraced both the proposed acquisition and its abandonment. The compensation provisions in s 15 [page 79] comprehended conduct ‘viewed commercially’ and represented a natural and reasonable response to the circumstances in which the owner found itself. In respect of earlier legislation it was held in Laycock v Victorian Railway Commissioners [1917] VLR 556 that where a notice to treat is withdrawn and a second notice to treat is issued in its stead, the date of acquisition is the date of the second notice, not the date of the first notice. Cancellation of a notice of intention does not usually preclude the authority from commencing afresh

with a new notice of intention. An amendment should not affect the date of the unamended notice of intention. While the notice of intention may be expected to state the purpose of the resumption and the reasons for the decision to take the subject land, there is no statutory duty imposed on the authority to give reasons for the cancellation of the notice. Even if it were to issue a new notice of intention, it would seem that there is no duty imposed on the authority to explain why it withdrew the first notice and issued a second notice. The landowner has no right to compel the authority to proceed with the resumption where the authority has cancelled the notice of intention.

STATING PURPOSE OF RESUMPTION [2.8] Lands Acquisition Act (Cth) s 22(2) requires the pre-acquisition declaration to identify, inter alia, the public purpose (see 1.30). In respect of earlier legislation, the High Court held in Jones v Commonwealth (No 1) (1963) 109 CLR 475 that it was essential to express the public purpose in the notice and that it was not enough to leave it to inference. The landowner who is completely dispossessed would seem to have a right in point of justice to know for what reason the land is needed as a public purpose (at 483). Land Acquisition (Just Terms Compensation) Act (NSW) s 15(b) requires the notice to specify the authority of the state proposing to acquire the land. This provision needs to be read with s 21 which links the proposed acquisition with environmental planning provisions. Land Acquisition and Compensation Act (Vic) s 8(1)(c) requires the notice of intention to give details of the purpose for which the interest in land is to be acquired. Acquisition of Land Act (Qld) s 7(3)(a) requires the notice of intention to specify the particular purpose for which the land is to be taken. Land Administration Act (WA) s 171(1)(b)(i) requires the notice to

include particulars of the purpose of the public work for which the land is proposed to be designated. Land Acquisition Act (SA) s 10 does not require the notice of intention to specify the purpose of the taking, but s 11(1) gives the landowner a right to require the authority to give an explanation of the reasons for acquisition and to provide reasonable details of any statutory scheme in accordance with which the land is required. [page 80] Land Acquisition Act (Tas) s 11(2)(c) requires the notice to treat to contain particulars of the authorised purpose for which the land is being taken. Lands Acquisition Act (NT) s 33 does not expressly require the notice of proposal to specify the purpose for which the land is required. Section 33(1) (b) does, however, require the notice to contain details of the manner in which it is proposed that the land, if acquired, will be dealt with. Lands Acquisition Act (ACT) s 19(2) is in similar terms to s 22(2) of the Commonwealth Act, above. The requirement to state the purpose of the resumption in the notice of intention requires the authority to give a rational explanation of what the authority proposes to do with the land when the resumption is complete. The notice gives the authority an opportunity to explain its action. In Bell v Maritime Services Board (1988) 65 LGRA 82 the notice merely stated that the land was required ‘for the purposes of the land and housing corporation’. It was held that the notice did not sufficiently state the public purpose for which the land was required and was accordingly void. The expression ‘for the purposes of the land and housing corporation’ told one nothing in regard to the purpose of the resumption except that it had do with what the corporation might do under housing legislation. The notice had to be

informative for the benefit of all those having an interest in the resumption. The notice could only be informative if it was of reasonable particularity. The purpose needs to be expressed in precise and not vague terms: Auckland Meat Co Ltd v Ministry of Works [1963] NZLR 120. More recently, in French v Gray, Special Minister of State (Cth) (2013) 301 ALR 679, the Commonwealth sought to acquire the applicant’s land as consideration under an Indigenous Land Use Agreement. The court determined that ‘use for a public purpose’ must be an actual physical use of the land. Besanko J stated (at [109]): ‘To my mind, that section strongly suggests that the public purpose does not involve a use of the land by way of disposing of it under an agreement. … [I]t appears to be based on the premise that the acquiring authority acquires land to make physical use of it whether it be an active or passive use.’ The court held that the pre-acquisition declaration was invalid.

PUBLICATION OF NOTICE [2.9] At some stage the resumption statutes usually require publication of the resumption in the relevant government gazette or in a newspaper or in both. Some statutes require publication of the pre-acquisition declaration or the notice of intention. Others require publication of the notice of acquisition. Publication has the effect of bringing the resumption process out into the open instead of being solely a matter in which only the authority and the landowner are concerned. Lands Acquisition Act (Cth) s 23, Land Acquisition (Just Terms Compensation) Act (NSW) s 19 and Land Acquisition and Compensation Act (Vic) s 23 require the pre-acquisition or notice of intention to be published in both the relevant gazette and a newspaper. Acquisition of [page 81]

Land Act (Qld) ss 9(7) and 10(2), Land Administration Act (WA) s 170(5), Land Acquisition Act (SA) s 16(1), Land Acquisition Act (Tas) s 18 and Lands Acquisition Act (NT) s 43(1)(b) require the notice to be published in the relevant gazette. The Lands Acquisition Act (ACT) s 20(1) requires the notice to be published on an ACT government website or daily newspaper circulating in the ACT in addition to providing the notice to the registrargeneral. In the absence of an express statutory duty there is nothing to prevent an acquiring authority publishing a notice of intention to resume land in the newspaper(s). Many do so.

DETERMINING OBJECTIONS [2.10] Where a landowner, upon whom a notice of intention has been served, has a right to object (see 1.31) it follows that the authority cannot proceed further to the next stage until the objection has been considered and determined. It is only when the review has been completed, resulting in a decision that is favourable to the authority, that the process can continue. The authority is then in a position to proceed to the issue of a formal notice of taking that, in effect, confirms the notice of intention to resume the subject land. Lands Acquisition Act (Cth) s 41 refers to the pre-acquisition declaration becoming absolute, and by s 41(3) the declaration is published in the government gazette and in a newspaper circulating in the district in which the land is situated. Likewise, in other jurisdictions where there is a right of objection, the objection must be determined in favour of the authority before the latter can proceed to the issue of a notice of acquisition. In the three jurisdictions that do not provide for objections to be made, the authority can proceed to carry out its intention and resume the land. Allowing for differences in terminology, the notice of intention is confirmed and replaced by a notice of acquisition. It is the significant step before the assessment of compensation begins.

Where the statute provides for an objection to be made, the objection must be shown to have been considered by the acquiring authority. In Lipovsek v Brisbane City Council [2013] QSC 185 the council was seeking to acquire the applicant’s lot of land for ‘environmental purposes’. The applicant’s brother, on behalf of the applicant, raised a written objection to the acquisition and was heard in person by a council delegate. The applicant’s solicitor also lodged a written submission to the council. The council received the council delegate’s report and ultimately resolved that the objections had been ‘duly considered’, but was of the opinion that the land would be necessary to take. Importantly, the delegate’s report only stipulated that an objection was made and heard. No further detail regarding the objection was presented to council in the report. By the Acquisition of Land Act (Qld) s 9, the council is obligated to give ‘due consideration’ to all objections. The court ruled that the council had not properly considered the objection and hence failed the statutory requirements. Consequently, the council’s application to the minister for the land to be acquired was invalid. [page 82] Interestingly, it was highlighted that even if there had been no reference to a discussion of the objection at the meeting, had the objection been communicated to the councilors before the meeting the objection may well have satisfied the s 9 requirement. However, because there was no evidence available that the grounds of objection had been communicated to council, let alone considered, the applicant was able to succeed in this case.

EXPEDITING OR SLOWING PROCESS [2.11] The Land Acquisition (Just Terms Compensation) Act (NSW) s 3(1) (c) is the only resumption statute to state that one of the objects of the Act is to ‘expedite’ the acquisition process. Where there is no statutory right to

object to the notice of intention to resume or where there is a right to object but that right is not exercised, some of the resumption statutes specify time periods within which the authority should act or within which the authority is prevented from acting. In some instances the statutes require the authority to act ‘as soon as practicable’. Section 13(1) of the New South Wales Act provides that a proposed acquisition notice must be given at least 90 days before the land is compulsorily acquired. The Land Acquisition and Compensation Act (Vic) s 20 provides that the authority must not acquire any interest in land in respect of which a notice of intention has been served before the expiration of two months after the service of that notice. The Acquisition of Land Act (Qld) s 7(3)(d) allows an objection to be made within the time specified in the notice of intention (being a date not less than 30 days after the date of the notice). Section 9(2) allows the authority to seek approval from the minister within 12 months after the date of the notice to resume. The Land Administration Act (WA) s 177(1) provides that the minister can make a taking order within 60 days of the registration of a notice of intention to resume. The Land Acquisition Act (SA) s 16(1) provides that when three months have elapsed, but 12 months have not yet elapsed, from the last occasion on which a notice of intention was given to a person, the authority may publish a notice of acquisition. The Land Acquisition Act (Tas) s 18(2) provides that a notice of acquisition is to be gazetted after the expiration of 30 days and before the expiration of 18 months after the date on which the notice to treat was served. The Lands Acquisition Act (NT) and the Lands Acquisition Act (ACT) do not specify a period within which the pre-acquisition declaration must become absolute.

URGENCY [2.12] Some of the resumption statutes make provision where the authority needs to take urgent action to acquire land. The Lands Acquisition Act (Cth) s 24 contains a special procedure where the land is required urgently. A

similar provision is contained in the Lands Acquisition Act (ACT) s 21. The Land Administration Act (WA) s 186 allows work to be commenced without a taking order in certain circumstances. The Lands [page 83] Acquisition Act (NT) s 44 permits land to be acquired urgently where the minister certifies that it is not practicable to delay the acquisition. The Lands Acquisition Act (Cth) s 24 came under scrutiny in South Australia v Slipper [2004] FCAFC 164. The Commonwealth wished to establish a nuclear waste facility on a site near Woomera in South Australia. The interests in the site included a native title claim, a pastoral lease and mineral rights. The South Australian Government opposed the establishment of a nuclear waste facility in Woomera or elsewhere. In an attempt to defeat or forestall the acquisition, the South Australian Government drafted the Public Parks Bill 2003 to create a public park at that location. This was because the Lands Acquisition Act (Cth) s 42 prevented the minister from making a declaration to acquire land in a public park if it does not have the consent of the government of the state or territory within which the public park is situated. The Commonwealth then issued a certificate under s 24 enabling the Commonwealth to proceed to acquire the interests in the site independently of the pre-acquisition procedure. In the Federal Court, the South Australian Government challenged the validity of the procedure adopted by the Commonwealth. It was noted that the basis for the s 24 urgency declaration was to proceed with the acquisition prior to the establishment of a public park by South Australia. The Full Federal Court considered that the declaration was not in accordance with s 24 as it sought to avoid the operation of s 42 which was part of the statutory scheme of acquisition. In other words, the exercise of the power to issue a s 24

urgency declaration was for an improper purpose. The court quashed the certificate of urgency.

VESTING RESUMED LAND IN AUTHORITY [2.13] The notice of intention to resume land has the effect of holding up any transactions or developments on the land on the part of the landowner or any other person. The notice of acquisition confirms the intention. It has the effect of vesting the land in the authority. The Lands Acquisition Act (Cth) s 41(4)(a) provides that on the publication of the pre-acquisition declaration becoming absolute the interests in the land are vested in the acquiring authority. The Land Acquisition (Just Terms Compensation) Act (NSW) s 20(1)(a) provides that on the date of the publication in the gazette of the acquisition notice, the land is vested in the acquiring authority. The Land Acquisition and Compensation Act (Vic) s 24(1)(a) provides that upon publication in the gazette of a notice of acquisition, the land is vested in the acquiring authority. The Acquisition of Land Act (Qld) s 12(1)(a) provides that land taken by proclamation vests in the authority on and from the date of publication of the proclamation in the gazette. Section 12B provides that particular land may be dedicated as a road. [page 84] The Land Administration Act (WA) s 179(b) refers to the effect of a taking order extinguishing interests in the land and converting them into a claim for compensation. The term ‘vest’ is not used in the Act. The Land Acquisition Act (SA) s 16(2) provides that upon the publication of the notice of acquisition in the gazette the land shall vest in the authority.

The Land Acquisition Act (Tas) s 19(1) provides that on the gazettal of a notice of acquisition the land vests in the authority. The Lands Acquisition Act (NT) s 46 provides that the effect of the notice of acquisition is to vest the land in the territory. The Lands Acquisition Act (ACT) s 33(4)(a) provides that on the publication of the pre-acquisition notice becoming absolute in the gazette the interest in the land is vested in the acquiring authority.

REGISTRATION [2.14] By the Lands Acquisition Act (Cth) ss 38 and 51, Land Acquisition (Just Terms Compensation) Act (NSW) s 17, Land Acquisition and Compensation Act (Vic) s 10, Acquisition of Land Act (Qld) ss 7(4) and 14, Land Administration Act (WA) ss 170(3) and 179, Land Acquisition Act (SA) ss 13(4), 14(2) and 17(1), Land Acquisition Act (Tas) ss 13(1) and 20, Lands Acquisition Act (NT) ss 32(1)(d) and 49 and Lands Acquisition Act (ACT) ss 30 and 41, it is the duty of the acquiring authority to register the resumption of the land in the appropriate titles office. The resumption process normally requires both the notice of intention to resume and the notice of acquisition confirming that intention to be registered. No express duty is placed on the owner of an interest in the land to effect registration. When the notice of acquisition has been registered the name of the acquiring authority replaces the name of the owner. There may be provisions requiring the title holder to surrender all documents relevant to the resumption to be lodged with the authority or with the titles office. A claimant for compensation is normally required to establish his or her interest in the resumed land. This is normally done by the tendering of the title documents. Title to the land on the part of the authority does not depend upon compliance with the registration provisions. The title or interest in the resumed land is vested in the authority by the exercise of the relevant procedural steps culminating in the issue of the notice of acquisition. The

principal purpose of the registration process is to warn or advise third parties that the land has been resumed and is now vested in the acquiring authority. The principle that the acquiring authority’s title to resumed land depends upon the exercise of statutory powers and not upon registration in the titles office arose in Harada v Registrar of Titles [1981] VR 743. In July 1971 the plaintiff bought industrial land without knowledge that the Electricity Commission had served a notice to treat on a predecessor in title in January 1961, stating its intention to acquire an ‘easement’ over the [page 85] subject land. In January 1961 the commission had lodged notification of its intention with the Registrar of Titles by the relevant transfer of land statute, referring to the acquisition as an ‘easement’ but giving no particulars of the rights which the acquisition would give to it. An overhead power line crossed the land, although no pylons were situated on the plaintiff’s land. The plaintiff’s land was far removed from any land owned by the commission. The notice to treat stated that the proposed easement was required in connection with the transmission line above the subject land. It set out the terms of the proposed ‘easement’ but made no reference to any dominant tenement, nor did it state any intention to make the rights sought appurtenant to any land or other proprietary rights. At the time of the purchase the plaintiff knew that two other ‘easements’ endorsed on the certificate of title gave substantial rights to the commission, but the notice to treat was not endorsed on the title certificate. In May 1972 an endorsement referring to the notice to treat was made on the certificate. The plaintiff alleged that the registrar had failed to carry out his statutory duty to make an appropriate endorsement on her certificate of title, and that in consequence she had paid an excessive price for her land. Alternatively, she contended that the registrar had made an error in endorsing her certificate of title, thereby

reducing the market value of the land. Dismissing the action, it was held that the rights sought to be acquired under the notice to treat were not proprietary in nature and hence were not ‘land’ within the meaning of the relevant transfer of land statute and the registrar was under no duty to make an appropriate endorsement on the certificate of title relating to the plaintiff’s land. It was observed: An object of the [Transfer of Land] Act is to give notice to the public of just how the acquiring authority’s proposal, if carried through, would affect the land and its value. This does not mean that the endorsement on the certificate of title should contain all information to give such notice, but it should be possible by referring to material in the titles office to ascertain it. It is unsatisfactory to oblige the public to go to an acquiring authority to ascertain what is the encumbrance which the titles office has endorsed on the title … The titles office does not control the acquiring authority and the endorsement on the certificate of title should not be subject to whatever the acquiring authority chooses to tell the public (at 755).

It was said that the acquiring authority should give an adequate description of the nature of the ‘easement’ which it was acquiring. With that sentiment there can be no argument but the result of this case may be regarded as exceptional. The rights sought to be acquired probably came within the authority’s statutory powers and the titles office was arguably under a duty to register the notice to treat whatever its inadequacies. The resumption statutes do not empower a registrar to seek fuller and better particulars from the acquiring authority, even if the statutes do not preclude the registrar from doing so in appropriate circumstances for purposes of clarification. In short, the responsibility for registering the taking of the land is that of the acquiring authority and the titles office, not the landowner. [page 86]

DATE OF VALUING RESUMED LAND [2.15] In the years before the states enacted legislation bringing the procedure governing resumptions under a single procedural statute, there

were variable provisions fixing the date on which the resumed land was to be valued. They were listed at pp 61–63 of the 4th edition of this book but they are of no consequence today. The resumption statutes generally fix the date on which the notice of acquisition is made as the date on which the resumed land is to be valued. The Lands Acquisition Act (Cth) s 55(2) requires the market value of the land to be assessed on the day of the acquisition. The Land Acquisition (Just Terms Compensation) Act (NSW) s 55(a) requires the market value of the land to be assessed on the date of its acquisition. The Land Acquisition and Compensation Act (Vic) s 41(1)(a) requires the market value of the land to be assessed on the date of its acquisition. The Acquisition of Land Act (Qld) s 20(2) requires compensation to be assessed according to the value of the estate or interest in the land taken on the date on which it is taken. The Land Administration Act (WA) s 241(2)(c) requires the land taken to be valued on the date of the taking. The Land Acquisition Act (SA) s 25(1)(b) and (c) requires that compensation for the actual value of the land shall be fixed as at the date of acquisition of the land. The Land Acquisition Act (Tas) s 35(a) requires compensation in respect of the loss of an estate in land taken to be determined as at the day on which the notice to treat was served. In Bock v West Tamar Council (2003) 12 Tas R 187 the first notice to treat was served on 29 April 1997. A second notice was served on 30 October 1998. On the evidence it was held that the first notice had lapsed or been withdrawn and the date to assess compensation was 30 October 1998. The Lands Acquisition Act (NT) Sch 2, which sets out the rules for the assessment of compensation, does not expressly state that the market value of

land is to be assessed as at the date of acquisition. No date is specified in s 66 (assessment of compensation). The Lands Acquisition Act (ACT) s 45(2)(a) requires the market value of the land to be assessed on the day of the acquisition. The notice of acquisition (see 2.10) serves two crucial purposes: The notice vests the resumed land in the acquiring authority. The notice also fixes the date on which the market value of the land is to be assessed. [page 87]

REVOCATION OR RESCINDING NOTICE [2.16] Once the notice of acquisition has been published and served on the landowner, the acquiring authority has usually reached the point of no return. The notice of intention has been confirmed and the outstanding matters of consequence are to settle the matter of compensation and arrange to take possession. The Lands Acquisition Act (Cth), the Land Acquisition and Compensation Act (Vic), the Land Acquisition Act (SA), the Lands Acquisition Act (NT) and the Lands Acquisition Act (ACT) contain no provision permitting the authority to revoke or rescind the notice of acquisition at this stage. The authority is under a duty to complete the remaining matters specified in the resumption statute. Section 50 of the Commonwealth Act and s 40 of the ACT Act do permit the authority to make corrections to the notice but do not expressly envisage the authority cancelling the notice. However, in the remaining four jurisdictions (New South Wales, Queensland, Western Australia and Tasmania) the resumption statutes permit the authority to change its mind and abandon the resumption. The Land Acquisition (Just Terms Compensation) Act (NSW) s 31(1) authorises the governor to rescind in whole or in part any acquisition notice.

By s 31(4) the land revests in the owner. By s 31(5) the owner is entitled to compensation. The Acquisition of Land Act (Qld) s 17(1) permits the authority to revoke the gazette notice of resumption before the determination of compensation. By s 17(1A) the agreement of the landowner is required. By s 17(3) the land is revested in the owner. By s 17(4) the owner is entitled to compensation. The Land Administration Act (WA) s 180(1) provides that a taking order may, at any time within 90 days after its registration, be annulled or amended by the registration of an order to that effect. Section 181 provides for payment of compensation on annulment or amendment of a taking order. The Land Acquisition Act (Tas) s 22(1) provides that an acquiring authority may, within the period of six months after a notice of acquisition is gazetted, amend or revoke that notice if compensation has not been paid in respect of land to which the notice relates. By s 24(3) the former owner is entitled to compensation.

LAPSE OF TIME [2.17] The issue here is whether a notice of intention to resume or a notice of resumption may cease to have effect due to the passage of time and a failure on the part of the acquiring authority to complete the procedure. Some of the resumption statutes prescribe periods within which certain steps must be taken by the acquiring authority. The relevant statute may go further and indicate what the consequences are if the prescribed time limit has not been complied with. [page 88] The Land Acquisition Act (SA) s 15(4) provides that if the authority does not acquire land in respect of which a notice of intention to acquire has been

served within 12 months after the service of that notice, it shall be presumed to have determined not to proceed. In other words, the notice of intention lapses. By the Land Acquisition and Compensation Act (Vic) s 16, if the authority has not acquired an interest in land to which a notice of intention to acquire applies at the expiration of six months after the service of that notice or at the expiration of the further period or periods agreed upon under s 17 (extension of notice by agreement), the notice lapses. The Lands Acquisition Act (Cth) s 44(2) provides that if the interest is not acquired by the acquiring authority within three months after giving the notice of acquisition, the declaration will have expired and cease to have effect. The Land Acquisition (Just Terms Compensation) Act (NSW) s 14(2)(a) provides that a proposed acquisition notice will be interpreted as withdrawn if the authority has not acquired the land within 120 days or within a longer period agreed to by the authority and owner of the land. The Land Administration Act (WA) s 170(7) provides that a notice of intention will be valid for 12 months, unless the minister under s 170(8) determines that a longer period will apply to the notice. The resumption statutes do not lay down a time limit within which each and every step in the procedure must be completed. Delays may occur. The delay may be caused by the authority, by the landowner, by a third party or by a combination of these or other factors. The question arises whether a landowner can apply to a court of law to have a notice of intention or a notice of acquisition set aside for the reason that there has been an unconscionable delay on the part of the authority and by its inaction has led the landowner to believe that the resumption had been abandoned. If the procedure has reached the compensation stage the authority’s response might be that payment of interest on the amount awarded or to be awarded as compensation will afford an adequate remedy. It would be unusual for a court to order that there be a revesting of the land in the name of the former owner.

The resumption statutes do not contain any such provision enabling the court to make such an order. The effect of a lapse of time upon a compulsory purchase order was examined in the UK by the House of Lords in Simpson Motor Sales (London) Ltd v Hendon Corporation [1964] AC 1088 where a notice to treat was issued in August 1952 but the acquisition was not completed until seven years later. The owner contended that the notice to treat and the notice of entry were no longer effective. The House held that though delay on the part of the acquiring authority might disentitle it to proceed upon a notice to treat, the authority was not, in the particular circumstances, guilty of such inaction or procrastination as would disentitle it from proceeding to consider the notice of entry. There was nothing in the facts of the case, despite the length of time, which could fairly amount to an abandonment by the authority of its rights under the compulsory purchase order. The House did, however, observe that the court might in its equitable jurisdiction interfere with the [page 89] enforcement by an acquiring authority of its legal rights if it were against conscience. To interfere it would have to be shown that there was bad faith on the part of the authority (see 1.34) or some misconduct or abuse of powers as to put the owner in an unfair position because of the long period that had elapsed. An application to set aside a notice of resumption would almost certainly need to be made to a superior court of record with jurisdiction in equity. A court or tribunal of limited jurisdiction to determine compensation might not have the necessary jurisdiction in equity. Such an application would be unlikely to succeed if it merely pleads lapse of time. The applicant landowner would need to show that he or she had been seriously prejudiced by the delay. In Duncan v Minister of Education [1969]

VR 362 a notice to treat was served in 1962 but no steps were taken by the landowner or the authority to initiate compensation proceedings until 1968. It was held that the fact that six years had passed did not alter the rule that compensation fell to be determined on the date of acquisition. In the case of Michelotti v Roads Corporation (2009) 26 VR 609, the court explored the issue of the lapse in time of a notice and examined the function of s 106 of the Land Acquisition and Compensation Act (Vic). Section 106 provided that time limits expressed by the Act could be extended by the relevant minister, by agreement between the relevant authority and the other party concerned or by the court. It was held that while the minister in the case had refused to exercise his discretion to provide a time extension, this did not prevent the court from exercising its jurisdiction under the Act to grant an extension of time.

REMAINDERS OF LAND [2.18] The general rule is that the acquiring authority may resume such amount of land as is necessary to fulfil the purpose for which land is being taken (see 1.38). Frequently an acquiring authority only needs part of an owner’s land to carry out the purpose of the resumption. An obvious example is a road authority that may seek to resume a strip of land from an owner for the purpose of widening a road leaving the owner with a viable but reduced area of land. On the other hand, the authority may seek to resume a substantial portion of an owner’s land that has the effect of leaving the owner with a small area which the owner is unable to use for any purpose. In normal circumstances the resumption statutes contain provisions governing compensation for severance (see 3.29). Some of the resumption statutes address this problem as an alternative to the award of compensation for severance. The Acquisition of Land Act (Qld) s 13 entitles an owner to require a small portion of severed land to be taken. Section 13(1) provides that if the owner and authority agree in writing that

the portion of land in question is of no practical use or value to the owner, the authority must take that land. Section 13(2) governs the position where the principal building erected on the land will be severed. [page 90] By s 13(3) the authority may sell or otherwise dispose of the additional land which it did not originally resume. By the Land Administration Act (WA) s 176, the proprietor of land who has received a notice of intention to resume may require a small parcel of land severed to be taken. In contrast to the Queensland provision the section refers to an ‘original portion’ and ‘small portion’ and defines a small portion as having an area of less than 1,000 square metres. By s 176(2)(b), the section does not apply if the original portion is built upon. Pursuant to Land Acquisition Act (SA) s 12(1)(b), an owner of land may ‘request’ an alteration to the boundaries of the land intended to be taken. The owner does not have a right to compel the authority to take surplus land caused by the severance. The authority is, however, obliged to consider the request. In the jurisdictions where there are no statutory provisions requiring or enabling the authority to take severed portions of land remaining in the hands of an owner from that owner, it may be arguable whether this problem could be the subject of an objection. None of the resumption statutes give a right to an owner to submit an application to the authority to adjust the severance. An owner has no right to argue that the authority could make do with one metre of his or her land for road widening purposes instead of two metres. The owner cannot argue that it would be fairer to resume one metre from the owners on either side of the existing road instead of two metres from him or her and none from the other

side. Resumption law assumes that the acquiring authority knows the precise area and location of land that it requires.

EXCHANGE OR RESETTLEMENT [2.19] In this situation the authority may be in a position to offer the landowner alternative land in exchange for the land it wishes to resume. The authority says to the owner — give us your land and we will give you other land that is as good as, if not better than, the land that you are currently using and occupying. Assuming that the authority has such land available and both parties agree, such an exchange is valid and binding on both parties. Such an agreement does not depend upon any statutory power although the owner may understand that the authority does have the power to resume the land if there is no agreement. A number of the resumption statutes have made express reference to agreements for the purchase of land (see 1.26). It might be arguable whether the Lands Acquisition Act (Cth) s 40 permits the Commonwealth to bypass the making of a pre-acquisition declaration to make such an agreement. Likewise, if it does issue a pre-acquisition declaration it may be arguable whether s 40 envisaged an exchange of this nature. The position may be uncertain where the authority has begun the procedure and the land has become vested in the authority. In this situation the owner would be receiving land in lieu of monetary compensation. [page 91] While it may be safe to say that some of the resumption statutes are neutral on the possibility of an exchange at this stage, there seems to be no logical reason to prevent two willing parties replacing monetary compensation with a transfer of land.

Some of the resumption statutes refer to the possibility of an exchange of land. By the Acquisition of Land Act (Qld) s 22, where the Crown is the constructing authority, and the claimant agrees, the governor-in-council may grant any Crown land in fee simple or demise for any lesser estate or interest to the claimant, in satisfaction wholly or partly of the claim for compensation. By the Land Administration Act (WA) s 212(1), a claimant for compensation may request that the claim be satisfied, in whole or in part, by a transfer of property. By s 212(2) the authority must consider the request and negotiate in good faith in relation to it. The Lands Acquisition Act (NT) s 50A contains a similar provision in respect of the acquisition of native title. In some circumstances a landowner occupying the resumed land may experience considerable difficulty in vacating the land and moving elsewhere. An aged landowner occupying a decaying and dilapidated shack, which is about to be flattened to make way for a freeway, may be unable to cope with the task of using the compensation to purchase an alternative residence and moving into it. Even if the compensation amount is sufficient to buy another decaying and dilapidated shack in the same neighbourhood where the owner has spent the whole of his 93 years, there may be difficulty in finding such a residence. The resumption statutes do not impose a duty on the acquiring authority to resettle a dispossessed landowner. In practice, many acquiring authorities do give assistance in such circumstances but that assistance is dependent upon the good sense of the authority. The problem is recognised in the Lands Acquisition Act (NT): by s 50(1) (b), the minister may offer resettlement, either with or without compensation, to the landowner. By s 50(2) the minister may offer land and improvements which are ‘substantially equivalent’ to the land and improvements which are being acquired. By s 63(1), an offer of resettlement with compensation replaces an offer of compensation only; by s 63(2), where an offer of resettlement is made without compensation under s 50(1)(b), no compensation is payable.

OCCUPATION AFTER VESTING [2.20] Once the notice of acquisition has been issued and served on the landowner, the land becomes vested in the acquiring authority and the authority registers the change in ownership in the titles office. The landowner’s rights change from being a landowner to being a claimant for compensation. In many cases the owner will remain in occupation and the question arises as to how long the owner may remain in possession. Looking at that question from the authority’s point of view the question is — how long must it wait until it can enter upon the land and take possession? [page 92] The earlier resumption statutes were silent on the question and some of the current resumption statutes leave the matter flexible. Beyond describing the former landowner as being a tenant at will it is perhaps preferable to describe the former owner as having a licence or limited right of occupation for a specified or unspecified period. By the Lands Acquisition Act (Cth) s 47(1), the occupier may remain in occupation for six months or for a longer period fixed by agreement. By s 47(2) if the minister is satisfied that the acquiring authority must enter into possession urgently, the minister may issue a notice accordingly stating the reason why the occupier should vacate the land sooner. By the Land Acquisition (Just Terms Compensation) Act (NSW) s 13(1), a proposed acquisition notice must give at least 90 days before the land is compulsorily acquired. By s 13(2)(b) this period may be reduced if there is urgency. By s 15(d) a proposed acquisition notice must specify the period within which the land will be compulsorily acquired. The owner is entitled to remain in occupation until compensation is paid (or in a dispute 90 per cent of the offered amount is paid). By s 34(2), where the acquisition is of a

person’s principal place of residence or place of business, the person may remain in occupation for three months after the acquisition. By the Land Acquisition and Compensation Act (Vic) s 26(1), the authority is under a duty to ‘diligently endeavour’ to obtain agreement with the owner or occupier as to the time of entry. By s 26(2) the authority cannot enter into possession in less than three months if the land is used as a principal place of residence or business. By s 26(4) there is provision for entry where there is urgency ‘or any other exceptional circumstances’. The Acquisition of Land Act (Qld) does not grant the owner any right of occupation after the resumption notice has been gazetted. Although the Land Administration Act (WA) ss 182–186 specify rights of entry onto the land proposed for resumption prior to the making of a taking order, the Act is silent on any right the owner may have to occupy the land after the making of the taking order. Section 171(1)(d)(iii) requires the taking order to include particulars of the date from which the land ‘is likely to be required’. The fixing of that date is in the hands of the authority. It is a matter of discretion for the authority. The Land Acquisition Act (SA) s 24 and the Lands Acquisition Act (NT) s 54 grant the owner or occupier a right to remain on the land for a period of three months. By Lands Acquisition Act (ACT) s 37(1), the period is six months. Section 24(5) of the South Australian Act refers to the owner’s occupation being a ‘tenancy determinable at will’. The Land Acquisition Act (Tas) does not specify any period after the notice to treat has been confirmed and the notice of acquisition is made during which the owner has a right to occupy the resumed land. Where there is no legislative provision to the contrary there is judicial authority for the proposition that the authority has an unfettered right to enter and take the land as soon as it issues a notice to treat or a notice of [page 93]

acquisition: Roberts v Board of Land and Works [1965] VR 265. It follows that the occupier may only remain in possession with the express or implied consent of the authority. It was held that the authority was not required to act ‘reasonably’. It must be doubted whether this case applies to any of the current resumption statutes.

RENT DURING OCCUPATION [2.21] During the period from the date on which the interests in the land are vested in the acquiring authority until the date on which the occupier vacates the land, the issue arises whether the occupier is liable to pay rent to the acquiring authority. Some of the resumption statutes contain specific provisions. By the Lands Acquisition Act (Cth) s 47(4), the owner remains in occupation upon terms and conditions agreed with the minister. If they do not agree, the minister determines the terms and conditions of occupation. By the Land Acquisition (Just Terms Compensation) Act (NSW) s 34(3), in the absence of agreement, the acquiring authority may determine the terms on which the person may remain in occupation of the land, including terms such as the rent to be paid, permitted use, repair and maintenance. Section 34(3A) provides that if the land was the former owner’s principal place of residence, rent will not be payable during the relevant three-month period. By the Land Acquisition and Compensation Act (Vic) s 26(7), the parties may agree to the owner’s occupation but the agreement must provide for the payment of rent. By s 26(8), if the owner occupies the land and there is no agreement, the owner becomes a tenant at will and is liable to pay a fair market rent in respect of that continued occupation. The Acquisition of Land Act (Qld) does not expressly provide for the owner and the authority to agree terms and conditions for the continued occupation, but s 15(2A) provides that the authority may grant a right of occupation to the owner.

The Land Administration Act (WA) does not expressly provide for the occupation of land and payment of rent but s 178(7) enables the minister to declare that occupation may continue to the date specified. By the Land Acquisition Act (SA) s 24(5), a landowner in occupation after the land is vested in the authority becomes a tenant at will subject to such terms and conditions as may be prescribed. The Land Acquisition Act (Tas) s 57 provides for payment of rent by agreement after the authority is authorised to take possession. The Lands Acquisition Act (NT) s 54(1) provides that the authority may take possession before the expiration of three months from the date of acquisition. The section is silent on the subject of rent if the owner remains in occupation after the date of acquisition. [page 94] By the Lands Acquisition Act (ACT) s 37(4), the owner remains in occupation upon terms and conditions agreed with the authority. If they do not agree the authority determines the terms and conditions. In Hague v Lake Macquarie City Council (1994) 83 LGERA 40 upon compensation being determined, the resuming authority paid the balance owing but deducted sums for unpaid rates and a deduction of $5,000 for rent representing 25 weeks for post-resumption occupation. No agreement had been reached on the rent, if any, to be paid during this period. It was held that the authority had no right to unilaterally deduct a sum of $5,000 for rent that had not been agreed. While the relevant statute made provision for the payment of reasonable rent, in the absence of agreement, that rent needed to be determined by the authority at a much earlier point of time, not after the occupation had ended.

TAKING POSSESSION [2.22] The resumption statutes contain different provisions governing the time when the acquiring authority is entitled to take possession of the resumed land. As a broad generalisation the authority may enter into possession at the moment any right the occupier had to remain in occupation has expired (see 2.20). Perhaps the question which is foremost in the mind of the occupier is — can he or she remain in occupation until such time as compensation (or a major proportion of the amount assessed) has been paid? There are a number of practical possibilities: (a)

The acquiring authority can take possession immediately, or at any time of its own choosing, after the date of acquisition.

(b)

The acquiring authority can take possession after a specified period following the date of acquisition.

(c)

The acquiring authority can take possession after a reasonable period has elapsed after the date of acquisition.

(d) The acquiring authority can take possession at any time after the date of acquisition where the owner or tenant is no longer in occupation. (e)

The acquiring authority can take possession at any time after the amount of compensation has been determined.

(f)

The acquiring authority can take possession at any time after the notice of intention if the owner and occupier agree.

(g)

The acquiring authority can take possession at any time after the amount of compensation, or a substantial portion of it, has been paid.

(h) The acquiring authority can activate the provisions governing urgency (see 2.12) and take possession without delay. In a voluntary contract for sale of land it is common for payment of the sale price by the purchaser to coincide with the vacation of the land by the vendor. Arguably the same practice should apply to the resumption of land:

[page 95] the owner should be entitled to remain in occupation on the land until the compensation is paid. The resumption statutes seldom contain express provisions requiring the acquiring authority, after the date of acquisition, to give written notice to the occupant of the date on which it will, or intends to, enter into possession. The resumption statutes make it clear that once the land is vested in the authority, the former owner or occupier has no right of occupation or only a limited right of occupation specified in the relevant statute. The Lands Acquisition Act (Cth) s 47(1) allows a period of six months for the owner to remain in occupation. This period can be extended where both parties agree to an extension. The section gives the occupant a longer period to remain in occupation than other resumption statutes. The Land Acquisition (Just Terms Compensation) Act (NSW) s 34(1) provides that the former owner is entitled to remain in occupation until the compensation (or 90 per cent of it) is paid. Section 34(2) allows the former owner to remain in occupation of any building that is the person’s principal place of residence or the person’s place of business for three months. The Land Acquisition and Compensation Act (Vic) s 26(2) allows the owner or occupier of a principal residence or business to remain in occupation for three months. Section 26(7) allows the period to be extended by agreement. The Acquisition of Land Act (Qld) s 38 does not give a former owner any right of occupation after the notice of acquisition but enables the authority to effect possession where the owner or occupier refuses to give up possession. The Land Administration Act (WA) s 197(1) provides that the minister may issue a warrant to deliver possession but it does not give the proprietor or occupier any right to remain in occupation after the taking order has been made.

The Land Acquisition Act (SA) s 24(1) gives the former owner an opportunity to make an agreement with the authority to remain in possession. Section 24(2) provides that if agreement is not reached the owner can remain in occupation for three months. The Land Acquisition Act (Tas) s 19(2) does not grant a former owner a right of occupation following the gazettal of a notice of acquisition; it provides that the authority is entitled to possession. However by s 17, the promoter is required to place the amount assessed by the valuer-general as the value of the land to be deposited and by s 19(4), where the authority is a promoter, the authority is not entitled to possession until that money has been deposited. The Lands Acquisition Act (NT) s 54(1) allows a former owner to remain in occupation for three months from the date of acquisition. The Lands Acquisition Act (ACT) s 37 is similar to s 47 of the Commonwealth Act above. [page 96]

EJECTMENT [2.23] Where the procedures governing the compulsory acquisition of the subject land have been completed and the land is vested in the authority, the authority can seek an order of eviction or ejectment if the owner or occupier refuses to vacate the land. The authority has either a statutory right to obtain an order from a court or issue a warrant to the sheriff directing him or her to deliver possession of the land. By the Lands Acquisition Act (Cth) s 132(2), the minister may apply to a court of summary jurisdiction to make an order to enter on the land and deliver up possession to the acquiring authority. By s 132(3), the occupier has a right to be heard at the hearing of the application. Section 132 is merely a procedural provision complementary to the acquisition procedure prescribed

elsewhere in the Act: Fitzgerald v Fahey (2000) 61 ALD 145 where it was held that criticism of the minister’s decision going to the factual merits of the decision are not properly the subject of judicial review. By the Land Acquisition (Just Terms Compensation) Act (NSW) s 35(1), if the authority becomes entitled to vacant possession of resumed land, the authority may direct and empower the sheriff to deliver possession of the land. By s 35(2), the sheriff is under a duty to deliver possession on receipt of this direction. By the Land Acquisition and Compensation Act (Vic) s 28(1), if the authority is authorised to enter into possession and the owner and occupier refuses to give up possession, the authority may issue its warrant to the sheriff. By s 28(2), a warrant issued under this section authorises the sheriff to enter onto the land and deliver possession of the land to the authority. By the Acquisition of Land Act (Qld) s 38(1), if the owner or occupier refuses to give up possession, the constructing authority may issue its warrant to the sheriff to deliver possession to the person appointed in the warrant. By the Land Administration Act (WA) s 197, if the proprietor or occupier refuses to give up possession, the minister may issue a warrant to the sheriff to deliver possession of the land to the person appointed in the warrant. By the Land Acquisition Act (SA) s 24(2), if after three months after publication of the notice of acquisition, the authority has failed to obtain agreement upon entry into possession, the authority may apply to the Land and Valuation Court for an order that the person be ejected. In Smith v Minister of Education (1978) 19 SASR 411 the application was made one day early before the period of three months and it was held that the court had no power to make an order of ejectment. By the Land Acquisition Act (Tas) s 71, an acquiring authority may apply to the Supreme Court for a writ authorising the sheriff to deliver possession where a person in occupation of the resumed land refuses to give up possession.

[page 97] By the Lands Acquisition Act (NT) s 55, the minister may apply to a magistrate for a warrant addressed to a police officer to deliver possession of the acquired land. By the Lands Acquisition Act (ACT) s 110, a court may make an order to deliver up possession. In respect of the statutory provisions where the acquiring authority can issue a warrant directly to the sheriff without having to go to a court, it must be doubtful whether a sheriff has any power to question any of the contents of the warrant.

SERVICE OF NOTICES [2.24] In addition to a particular direction that may be contained in a provision requiring notice to be served, the land resumption statutes generally contain provisions governing the manner in which service of such notices should be carried out. The Lands Acquisition Act (Cth) s 137, Land Acquisition (Just Terms Compensation) Act (NSW) s 72, Land Acquisition and Compensation Act (Vic) s 104, Acquisition of Land Act (Qld) s 39, Land Administration Act (WA) s 274, Land Acquisition Act (SA) s 31, Land Acquisition Act (Tas) s 81, Lands Acquisition Act (NT) s 90 and Lands Acquisition Act (ACT) s 114 contain provisions on the manner of giving, delivering, sending or serving notices; the use of the post; and steps that can be taken when the notice cannot be delivered or given personally. Section 274(1) of the WA Act even permits the use of ‘facsimile transmission’. None of the Acts goes so far as to mention email.

RATES AND TAXES [2.25]

The position governing payment of rates and taxes upon the land

resumed after the date of the notice of intention to resume or after the date of acquisition until the date on which the owner or occupier vacates the land is determined principally by the legislation governing those rates and taxes. Liability to pay land tax, for example, is determined by the relevant land tax legislation. Liability may depend upon ownership or occupation. Apart from liability for rates and taxes after the issue of the notice of intention to resume has been served, the landowner may have a debt owing in respect of rates and taxes in respect of a period before the date of the notice of intention. By the Lands Acquisition Act (Cth) s 86(2), the minister may pay the rates, taxes or other similar charges due and payable; by s 86(3) the minister may deduct the amount so paid from the compensation payable. By the Acquisition of Land Act (Qld) s 23(5), before paying any advance of compensation the constructing authority may require the claimant to satisfy it regarding taxes, rates and other moneys which, if unpaid, would be a charge upon the land and may reduce the advance by any sum which is unpaid or will become payable. By s 35 any amount due and unpaid as at the date of the taking of the land in favour of the Crown or any local [page 98] authority shall be a charge upon the compensation payable to a claimant who is legally liable for payment thereof. The constructing authority may deduct from such compensation and pay to the Crown or local authority concerned any such amount. The Land Administration Act (WA) s 242 makes provision for the apportionment of rates and taxes and permits the amount to be deducted or added as the case may be. By the Land Acquisition Act (SA) s 26(a), the court may order compensation to be applied in the purchase, redemption or discharge of any tax, debt, mortgage or encumbrance affecting the subject land.

The Lands Acquisition Act (ACT) s 71(2) is in pari materia (in the same words) with s 86(2) of the Commonwealth Act. The Land Acquisition (Just Terms Compensation) Act (NSW), Land Acquisition and Compensation Act (Vic), Land Acquisition Act (Tas) and Lands Acquisition Act (NT) do not refer to the question of claims for rates and taxes. The resumption statutes that do make provision for the payment of rates and taxes go some way to safeguard the position of the rating or taxing authorities directly. The resumption statutes do not seek to determine the precise date on which the owner or occupier ceases to be responsible for payment of rates and taxes. The authority imposing rates and taxes may be likened to a claimant, such as a mortgagee, with an interest in the land. The rating or taxing authority is entitled to claim and be paid rates and taxes due to it at the date of acquisition or at the date the owner or occupier vacates the land. The resumption statutes generally impose an express or implied duty on the authority to ensure that the rates or taxes are paid and give the authority power to make payment if necessary. The position may be less certain in respect of a landowner whose interest in the resumed land is severed but who remains in possession of the resumed portion until the authority takes possession. The liability to pay rates and taxes for the severed portion taken by the acquiring authority depends upon the provisions of the rating or taxing legislation and whether the fact of occupation as distinct from any legal or equitable right of occupation justifies the imposition of such rates and taxes. The rating or taxing authority may need to reassess the value of the retained, severed portion before the amount of its claim in respect of the resumed, severed portion can be established. It is open to the acquiring authority and the owner to enter into an agreement in respect of liability for rates and taxes in regard to the owner’s occupation following the date of the notice of acquisition.

DISPOSAL OF RESUMED LAND BY AUTHORITY [2.26] At some stage after the land has been resumed, the compensation has been paid and the authority has taken possession, it may become apparent to the authority that some or all of the land is no longer required [page 99] for the purpose for which it was acquired. The authority may not wish to use the land for any purpose. It may wish to use some of the land for the purpose for which it was taken but does not wish to use the remainder of the land. It may wish to use the land for a different purpose from that for which it was taken. The authority may use the land for the purpose for which it was taken but on completion of the relevant work may wish to dispose of the land and its improvements. There are a wide range of possibilities as to why the authority wishes to dispose of the resumed land. The resumption statutes generally empower the authority to dispose of land which it has resumed. The relevant provisions generally enable the authority to dispose of the land in any way it sees fit, for example, by enabling the authority to sell, lease or dispose of any interest in the land acquired. The Lands Acquisition Act (Cth) s 121(1) provides that where an acquiring authority has resumed land, has not made substantial improvements to it, the minister proposes to authorise its disposal and the disposal would be likely to occur before the end of seven years after the acquisition, the minister in authorising the disposal shall have regard to the general principle that the land should be first offered for sale to the former owner at market value. By s 121(2), the minister shall specify the amount that in the opinion of the minister represents the market value of the land. By s 121(3), the minister’s offer is open for 28 days. The Land Acquisition (Just Terms Compensation) Act (NSW) s 71A, inserted in 2016, requires the acquiring authority to first offer land no longer

required for the acquired purpose to the former owner subject to certain conditions. These conditions stipulate that the authority will only be required to offer the land to the former owner if no more than 10 years have passed since the acquisition, the authority has not made substantial improvements to the land, the land is not Crown land and the land is not proposed to be disposed of to another authority of the state for a public purpose. In New South Wales local councils are further prohibited from acquiring land for resale: Local Government Act 1993 (NSW) s 188. The Land Acquisition and Compensation Act (Vic) s 109(1) provides that the acquiring authority may dispose of resumed land. Section 109(2) provides that within 18 months from the date of acquisition, the authority must, if practicable, first offer the land at its market value to the former owner. By s 109(3), subs (2) does not apply if substantial improvements of a durable nature have been made to the land. By the Acquisition of Land Act (Qld) s 41(1), where the constructing authority ‘no longer requires’ the resumed land, then the authority shall offer the land for sale to the former owner at a price determined by the valuation department. By s 41(1A), unless sooner accepted by the former owner the offer shall lapse at the expiration of 28 days after it is made. In Astway Pty Ltd v Gold Coast City Council (2008) 159 LGERA 335 in December 1994 the council resumed land, formerly used as a quarry, for use as a rubbish depot. It used the land as land fill but it still required the [page 100] land for a rubbish depot. In 1991 the issue arose whether the owner could reclaim the land as it has not been used for the purpose for which it was required. It was held that the council was not under an obligation to offer the land for sale to the former owner. It was necessary for the land to be used for the required purpose immediately or within the seven-year period. The fact

that there was indecision on the part of the council did not mean that the council had made a decision it no longer required the land for the purpose of a rubbish depot. In short the council was not obliged to sell the land to the former owner. The Land Administration Act (WA) s 190, in substance, grants an option to the former owner of land to purchase the fee simple where the land has not been used for any public work within a period of 10 years from date of acquisition. The section contains 11 subsections and numerous paragraphs and subparagraphs. By s 190(1)(d), the option does not arise where the land has been substantially improved. By s 190(7), the purchase price of the option is the current market value as determined by the valuer-general. In contrast to s 190, above, the Land Acquisition Act (SA) s 35 stipulates that the authority may sell, lease or otherwise deal with or dispose of any land acquired that it does not require for purposes authorised by an Act. The Land Acquisition Act (Tas) s 73 rivals s 190 of the WA Act in length but in substance it creates a right for the authority to sell land that is not required within a period of seven years to the former owner. The Lands Acquisition Act (NT) s 48 provides that resumed land no longer required may be sold. The Lands Acquisition Act (ACT) s 102 provides that resumed land not required within seven years after acquisition shall be offered to the former owner. There is no judicial authority for the proposition that a former owner can restrain an authority from using the land for a different purpose from that for which it was acquired in the absence of any statutory provision permitting a former owner to seek an injunction for such restraint. Apart from any right that may be available in the relevant resumption statute to buy back the land, a former owner has no statutory avenue to complain that the authority is not using the land for the purpose for which it was taken. The Public Works Act 1981 (NZ) s 40 goes further than any jurisdiction in

Australia in giving a former owner a right to buy back unwanted compulsorily acquired land. The provision has given rise to a number of problems in its operation. No time limit is specified in s 40 within which a claim can be made. In Attorney-General v Methodist Church [1996] 1 NZLR 230 the land had been compulsorily acquired some 80 years earlier. The length of time was not the problem. The difficulty was that the Crown and the church could not agree on a price and the Crown was held to be entitled to put the land on the open market. In Attorney-General v Morrison [2002] 3 NZLR 763 the land was compulsorily acquired in World War II for defence purposes. In 1999 the land was offered to two successors of the [page 101] original owners who agreed to buy the land at its market value. The dispute related to the date on which the purchase price should be calculated. In KerrTaylor v Attorney-General [2004] 3 NZLR 104 land was taken in the 1930s for the purposes of a scientific and industrial research institute and the issue arose as to what point and by whom a decision could be made that the land was not ‘required’ for a public work. It was held that the evidence showed that when the institute had decided to dispose of the land, it decided that it no longer required the land and should be offered to the successor of the former owner. In Te Runanga o Ngati Awa v Attorney-General [2004] 2 NZLR 252, the claim for return of land went back to the 19th century when a portion of a tidal seabed was confiscated from the owners and held by the Crown under the Settlement Act 1863 (NZ). In 1999 the land was declared to be surplus to defence requirements and the successors of the alleged owners claimed it should be offered to them. The court ordered that the department should reconsider its decision. On a number of occasions former owners have lodged caveats in the titles

office in respect of their rights under s 40. In Methodist Church, above, it was held not to be a caveatable interest. Section 40 merely creates a pre-emptive right and does not constitute a caveatable interest in the land: Auckland Regional Services Trust v Palmer [1996] 3 NZLR 752. Section 40 applies only to land that has been compulsorily acquired. It does not apply to land that was acquired by a voluntary contract of sale in 1879: Port Gisborne Ltd v Smiler [1999] 2 NZLR 695. Nor does s 40 apply where the interest in the land compulsorily acquired is different from that being offered where the land is no longer required. In Nicholls v Victoria University of Wellington [2002] 1 NZLR 659 the university compulsorily acquired the leasehold estate in eight residential properties. Subsequently the leases were merged into fee simple. Two of the original lessees sought a declaration that they were entitled to be given the first offer to buy back the residences. It was held that the interest taken had disappeared. Section 40 presumed the continued existence of the same interest that had been acquired. Section 40 provides for the unwanted land to be purchased by a former owner at its market value. Problems have arisen in determining the date on which that value is to be assessed. In Attorney-General v Horton [1999] 2 NZLR 257 the Privy Council held that the obligation to sell was not dependent upon the vendor choosing to sell as soon as the land was no longer required. The obligation to sell arose whenever the conditions in s 40(1) were satisfied. Section 40 applies where there is a change of use in the land compulsorily acquired. In Counties Manukau Health Ltd v Dilworth Trust Board [1999] 3 NZLR 537 the land acquired was used for hospital purposes. The land went through three changes in ownership under different legislation. It ceased to be used for hospital purposes and a clinic was built on it. The former owners sought a declaration that they were entitled to be offered an opportunity to [page 102]

buy the land. The Court of Appeal declined to resolve the dispute without evidence at an interlocutory stage.

DAMAGE TO THE LAND [2.27] At some stage during the period between the service of the notice of intention to resume the land and the date on which the acquiring authority enters and takes possession, damage may occur to the land. The damage may be caused by the owner or occupier, by the authority or by a third party. The damage may affect the value of the land. The date on which the land vests (see 2.13) in the authority may be a critical factor. Damage caused by the owner to the land or to its improvements prior to the issue of the notice of intention to resume is clearly a matter for the owner. It is not the concern of the acquiring authority. It issues its notice of intention to resume in respect of the land in its condition at that date. The fact that damage may have occurred between the time of its inspection and the service of the notice of intention is irrelevant. At some stage between the date of the notice of intention to resume and before the compensation is assessed, damage may be caused to the land by the owner. If, for example, the land, with buildings erected thereon, has a value of $100,000 and the owner negligently allows the buildings to be destroyed by fire thereby reducing the value of the land to $50,000, the position of the owner is less clear. The notice of acquisition has not been issued but it may be issued after the date of the fire. The value of the land may fall to be valued as at the date of acquisition not as at the date of the notice of intention (see 2.17). If that were the case, prima facie the owner would be the loser in respect of compensation. The owner’s occupation after the notice of acquisition may be akin to being a tenant at will or licensee (see 2.20). It may be governed by an agreement which does not necessarily categorise the occupation into the traditional descriptions known to the common law such as lessor and lessee or landlord

and tenant. That agreement may cover the question of damage. It may contain a term in the agreement limiting the occupant’s liability to damage caused by the occupant as distinct from damage caused by third parties or where the cause is unknown. The resumption statutes do not attempt to provide for the myriad of possibilities that may occur during the period of the claimant’s occupation after vesting. Given that the occupant’s occupation is of a limited nature it may well be argued that where the occupant is not at fault, any damage caused to the land is the responsibility of the acquiring authority. If, during any stage after the former owner becomes a mere occupant, the building on the land is destroyed by accidental fire or by third parties, the loss will fall to the authority provided the tenant was not at fault or the occupation agreement did not impose strict liability upon the occupant for destruction by fire. Although this is not a common event in resumption cases, the problem may in unusual circumstances be an important one. For example, [page 103] if the authority has resumed a heritage building in order to preserve it from deteriorating any further and the building is burned to the ground at some stage after the notice of intention has been served and the owner has remained in occupation, the question of who withstands the loss may be difficult to resolve. Not only may the authority and the occupant be uncertain of their liability, but the former owner’s insurer may be hesitant about its liability. The answer to that question may depend upon whether the policy covers occupants as long as they occupy the land as distinct from their ownership being terminated on the date of acquisition. If the policy covers occupation as distinct from ownership, there seems no logical reason why occupants should not receive both the insurance payment as well as the compensation. The

authority is not a party to the insurance contract and there is no reason why it should be the beneficiary of the insurance payment. In Phoenix Assurance Co v Spooner [1905] 2 KB 753 the owner insured her buildings against fire and during the currency of the policy a notice to treat was served. Before anything was done under that notice, the buildings were destroyed by fire and subsequently the insurance company paid her the insurance money. The acquiring authority deducted the amount of the insurance money from its compensation payment. It was held that the insurance company was entitled to the whole of the insurance money. It was not payable to either the owner or the authority. This decision was, however, overruled by the House of Lords in Birmingham City Corporation v West Midland Baptist (Trust) Association [1970] AC 874 on the ground that compensation fell to be determined on the date of possession, not on the date of the notice to treat. Arguably, if the date for determining compensation had been the date of the notice of acquisition, the former owner and current occupant would claim to be entitled to both compensation and the insurance money. The critical issue in such cases is determining the currency of the policy on the date of the fire. There is no sound reason why the authority should reap any benefit from a policy to which it is not a party, and the existence of which it may not be aware. Whether the insurance company could argue that it had an interest in the land resulting in it paying out insurance due to the fire is probably too difficult to maintain but is not wholly impossible.

ESTABLISHING TITLE [2.28] Once the notice of intention to resume land has been received by the owner, the resumption statutes impose two duties on the owner: First, the owner must establish his or her title to the land. Second, the owner must prepare a claim for compensation or respond to an offer (if any) by the acquiring authority. The authority will not be prepared to pay compensation unless the owner can

produce the certificate of title or other documentary evidence to establish the nature of the interest in the land. [page 104] The Lands Acquisition Act (Cth) s 87(1) requires the claimant for compensation to produce proof of title and produce all deeds and documents relating to the interest in the land. The Land Acquisition (Just Terms Compensation) Act (NSW) differs from other resumption statutes in that s 12 requires the authority to give a proposed notice of acquisition to all owners of the land. The onus is on the authority to ascertain ownership. When the notice of proposal is confirmed by the acquisition notice, by s 37, an owner of an interest in land which is ‘divested, extinguished or diminished’ by an acquisition notice is entitled to be paid compensation. Payment is not made contingent on the owner producing proof of title to an interest in the land. The Land Acquisition and Compensation Act (Vic) s 50 requires all claimants for compensation to produce to the authority all deeds and documents relating to or evidencing their title to an interest in the land. The Acquisition of Land Act (Qld) s 14(1) provides that the Registrar of Titles may require a person to deliver up any instrument evidencing the title to the land taken. The Land Administration Act (WA) s 211(2) requires a claim for compensation to be accompanied by all deeds and documents necessary to establish the claimant’s title to the interest in the land. The Land Acquisition Act (SA) s 13(4) empowers the authority to require the recipient of a notice of intention to deliver up to the registrar any instrument evidencing an interest in the subject land. The Land Acquisition Act (Tas) s 36(2)(b) requires a claim for compensation to include particulars of the claimant’s estate in the land.

The Lands Acquisition Act (NT) s 53(1) authorises the minister to require evidence of title to an interest in land. The Lands Acquisition Act (ACT) s 72(1)(c) requires proof of title. In some jurisdictions separate provisions govern claims made in respect of native title or native title claimed but not established (see 1.23). There is a number of reported cases where claimants for compensation have had problems establishing sufficient evidence to persuade the acquiring authority that they have an interest in the resumed land. In Heppingstone v Commissioner of Railways (1901) 3 WALR 63 the claimant was able to establish adverse possession for the statutory period of 12 years. In Arbuckle v Boroondara Shire (1896) 22 VLR 513 a mortgagor who was in actual possession of the land and entitled to such possession was held to be the person entitled to claim compensation. In Wm Collin & Sons Pty Ltd v Coordinator General of Public Works (Qld) (1974) 1 QLCR 1 the claimant was unable to establish its title due to statutory provisions negativing title by adverse possession. In Re Marriott [1968] VR 260 it was held that the claimant in adverse possession had an interest in the land which had a value. In Re Paling (1886) 3 WN (NSW) 41 a person in possession of land without title for 17 years was held in the particular circumstances to be [page 105] a mere trespasser and was not entitled to claim compensation. However, in Re Clissold (1907) 7 SR (NSW) 638 persons showing adverse possession for 26 years were, in the absence of any claim by the documentary owner, deemed to be the owners of the land, and entitled to the compensation, although they were unable to show that the title of the documentary owner was barred by such succession. There is no closed list of interests where the owner has no, or inadequate, documentary evidence to support a claim for compensation of that interest. A

tenant at will may have an interest in the land for the purposes of compensation for resumption even though there may be an absence of a written document: Greco v Swinburne Ltd [1991] 1 VR 304 at 312. Periodic tenancies or a holding of indefinite duration have been held to sustain claims for compensation: Commonwealth v Reeve (1949) 78 CLR 410; Unimin Pty Ltd v Commonwealth (1977) 45 LGRA 338.

DISPUTED OWNERSHIP [2.29] At the time of resumption claimants for compensation may be in dispute as to ownership of their interest in the land (see 1.21). This is primarily a problem for the claimants, not for the acquiring authority. In the absence of express statutory provision enabling the compensation court to determine questions of title, it may be open to the disputants in title to seek a declaration prior to the compensation proceedings to decide which of them is entitled to claim compensation: Chambers v Lane Cove Municipal Council (1971) 21 LGRA 298. In some jurisdictions the land resumption statutes recognise that ownership may be disputed and thus vest the compensation court with jurisdiction to determine which of two or more disputants is entitled to the payment of compensation. The Lands Acquisition Act (Cth) s 127 grants a general power to the Federal Court to make a declaration to determine the nature of interests in the land. The Acquisition of Land Act (Qld) s 29(1)(a) provides that where a right to compensation is questioned the Land Court has power to determine who shall be paid the compensation. The Land Administration Act (WA) s 216 provides that where titles to an interest in the resumed land are disputed, a claimant may apply to the Supreme Court to determine the matter. The Land Acquisition Act (Tas) s 42 provides that a disputed claim for

compensation may be determined by agreement, by arbitration or by the Supreme Court. The Lands Acquisition Act (ACT) s 106 grants a general power to the Supreme Court to resolve disputed claims. Where no specific procedure is prescribed for settling ownership disputes and entitlement to claim compensation, the onus remains on claimants to establish their title to the interest in the land to the ‘satisfaction’ of the [page 106] authority (see 2.28). Depending upon the precise words used in the statute the authority may have a limited discretion to determine which of two or more claimants ‘satisfies’ it as to who has the better title. But if there is doubt, the authority may prefer to hold the compensation money (or arrange for it to be held in trust) until such time as the disputants resolve their competing claims. In the absence of agreement between the disputants, the authority may have the power to withhold payment of compensation, but it probably does not have jurisdiction to determine the validity of two claims to the same title: Robert Reid & Co v Minister for Public Works (1902) 2 SR (NSW) 405; Ex parte Minister for Education; Re Henry Lawson Developments Pty Ltd (1970) 91 WN (NSW) 624. Disputes as to ownership of interests in land may arise before or after compensation has been paid. If compensation has been paid to a person whose title is defective, the person with the valid title remains entitled to compensation from the authority: Re Broughton (1904) 4 SR (NSW) 662. The position may be different if the person with the valid title was negligent in failing to make a claim within the time prescribed, in which case the remedy might lie against the person with the defective title. A dispute between two persons as to title to an interest in land may lie dormant until resumption requires the parties to settle the dispute so that one

of them becomes entitled to the payment of compensation. In Re Goodwin (1904) 4 SR (NSW) 682 it was held that the costs of litigation between two adverse parties to determine their title to land was not the responsibility of the acquiring authority. In the absence of statutory provision there must be a strong presumption that the claimants, successful or otherwise, would not be entitled to the cost of such proceedings to be paid by the acquiring authority. They might wish to argue that they would not have had to settle their dispute but for the resumption. They might argue that they were content to allow the uncertainty over ownership to remain unresolved indefinitely or until such later time of their own choosing. These arguments are unlikely to persuade a court that the authority should bear the cost of such proceedings. There is no authority for the proposition that disputed ownership is a reason why the compulsory acquisition of the subject land should be delayed. In Aufferber v Commonwealth [1980] Qd R 269 it was held that there was nothing in the relevant resumption statute to require the postponement of entry into possession where the liability of a person to give up possession was in doubt. In other words, a dispute between two or more claimants as to title or possession is not a ground for delaying the prescribed procedures or the entry into possession by the authority.

THE CROWN [2.30] Some of the resumption statutes state expressly that the statute binds the Crown. [page 107] The Lands Acquisition Act (Cth) s 4 goes so far as to bind the Crown in the right of the Commonwealth, of each of the states, of the Northern Territory and of Norfolk Island.

The Land Acquisition (Just Terms Compensation) Act (NSW) s 9 provides the Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of parliament permits, in all its other capacities. By s 29(1), land may be compulsory acquired by an authority of the state under the Act even though it is Crown land. The Land Administration Act (WA) s 4 binds the Crown. In the remaining resumption statutes there is nothing to suggest that the Crown is not bound by the relevant Act.

SPECIAL PROVISIONS [2.31] Each of the resumption statutes contains a provision (or provisions) governing a particular subject or matter which is not to be found in any other resumption statute. For example, no similar provision to the Lands Acquisition Act (Cth) s 42 (special provision regarding land in a public park) is to be found in any other resumption statute. So too, the Land Acquisition (Just Terms Compensation) Act (NSW) s 6(d) (non-application of the Act if the acquisition consists of the revocation of exclusive rights of burial that have been granted under an Act in relation to a public ceremony); Land Acquisition and Compensation Act (Vic) s 45 (loans to dispossessed owners); Acquisition of Land Act (Qld) s 31 (power of Supreme Court in respect of building units) and s 31A (powers of District Court for community titles scheme); Land Administration Act (WA) s 162 (taking interests in underground land); Land Acquisition Act (Tas) ss 7A–7J (acquisition of land by the Crown for private sector infrastructure projects); and Lands Acquisition Act (NT) s 31B (pre-acquisition procedure of acquisition of land above the high water mark) have no counterpart in any of the other resumption statutes. This is not an exhaustive list of subjects which are unique to one resumption statute and not to be found in another.

DELEGATION OF POWERS

[2.32] Some of the resumption statutes include express provision enabling ministers to delegate their powers generally or to specified persons. The Lands Acquisition Act (Cth) s 139, Acquisition of Land Act (Qld) s 36B, Land Administration Act (WA) s 9, Land Acquisition Act (Tas) s 79, Lands Acquisition Act (NT) s 94A and Lands Acquisition Act (ACT) s 116 contain express powers of delegation. The Land Acquisition (Just Terms Compensation) Act (NSW), Land Acquisition and Compensation Act (Vic) and Land Acquisition Act (SA) do not contain provision concerning delegation of powers. In addition, the special Act containing the power of resumption may expressly provide for delegation. [page 108] The fact that an Act contains an express power for a minister to delegate a power of resumption does not necessarily mean that the power cannot be lawfully exercised by officials of the relevant government department. A distinction is drawn between a delegation of a power and an exercise of that power through servants and agents: Shoalhaven City Council v DirectorGeneral of National Parks and Wildlife Service (2003) 127 LGERA 280.

REGULATIONS [2.33] The Lands Acquisition Act (Cth) s 140, Land Acquisition (Just Terms Compensation) Act (NSW) s 74, Land Acquisition and Compensation Act (Vic) s 110, Acquisition of Land Act (Qld) s 42, Land Administration Act (WA) s 275, Land Acquisition Act (SA) s 38, Land Acquisition Act (Tas) s 83, Lands Acquisition Act (NT) s 95 and Lands Acquisition Act (ACT) s 117 contain power for regulations to be made for carrying out or giving effect to the relevant statute.

The regulations in 2017 were: Lands Acquisition Regulations 1989 (Cth); Land Acquisition and Compensation Regulations 2010 (Vic); Acquisition of Land Regulations 2014 (Qld); Land Administration Regulations 1998 (WA); Land Acquisition Regulations 2004 (SA); Land Acquisition Regulations 1993 (Tas); and Lands Acquisition Regulations (NT).

[page 109]

3 COMPENSATION INTRODUCTION [3.1] Each of the resumption statutes provides that a dispossessed owner shall receive ‘compensation’ for the loss of the land taken by the acquiring authority. The term ‘compensation’ is not defined in any of the resumption statutes. The statutes do, however, prescribe the matters which are to be taken into account in assessing compensation. In the context of resumption, the term ‘compensation’ bears its ordinary meaning. It is a payment made as reparation for the loss of an owner’s land. It is a payment to make amends for the taking of land. To compensate means to make up for what is lost; to neutralise the effect of a loss; to counterbalance the loss; or to supply an equivalent. In Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 the High Court said that the purpose of compensation is to place in the hands of expropriated owners the full money equivalent of the thing (in this instance, wheat) of which the owners have been deprived: Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it (at 571).

In Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 1 All ER 846 at 852 the Privy Council described the purpose of resumption legislation

as being ‘to provide fair compensation’ under ‘the principle of equivalence’. The purpose of resumption is to attempt to equate the sum paid to the dispossessed owner to the value of the owner’s loss of the land. The money awarded is paid in order to alleviate the adverse effect of the compulsory taking. In English law there has traditionally been an emphasis on the concept of the owner freely negotiating a price for the sale of the land. The only compulsion is that the owner must sell. Therefore the compensation equates to the market value of the land. Indeed the English Court of Appeal has said in one of its leading cases, Horn v Sunderland Corporation [1941] 1 All ER 480 at 491, that the owner gains the right to receive a money payment not less [page 110] than the loss imposed on him or her in the public interest, but, on the other hand, ‘no greater’. The valuation of land is an imprecise art and there may well be occasions when the owner’s compensation reflects the maximum price or more than the owner could reasonably have expected to have been paid if he or she had been a willing and voluntary vendor of the land. Other factors in addition to the market value may ensure that the compensation awarded is not niggardly but is generous. In the 19th century a dispossessed owner may have done well to receive compensation which made him no worse off than he was when he owned the land. In the 21st century the compensation provisions are designed to ensure that the dispossessed owner is never or rarely worse off than before the taking. The nine resumption statutes share common ground in agreeing that compensation should be awarded for the loss (see 3.12) of the land taken. They differ in the wording used to describe the matters that are to be taken into account in determining the amount of compensation (see 3.11). Land Acquisition and Compensation Act 1986 (Vic) s 41 sets out simply the

relevant matters to be considered in determining the amount of compensation. At first sight, its counterpart, Lands Acquisition Act 1989 (Cth) s 55 bears little resemblance to the Victorian provision. Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 3(1) sets out five objects of the Act. Section 3(1)(a) specifies that compensation ‘will be not less than the market value of the land’. Section 54 further notes that a person is entitled to just compensation after having regard to all relevant matters. As noted in Taylor v Roads and Maritime Services [2016] NSWLEC 138, the court simply acts as a judicial valuer in such cases. Each of the provisions from the different statutes across the nation holds a common purpose but the result of an assessment of compensation under one provision may differ from an assessment under the other provision. It is not possible to say that one provision is invariably more generous than another. This may be the result in one set of circumstances but be different in another set of circumstances. It is not the practice of the courts to compare the different statutory provisions in the nine jurisdictions. The focus is upon the relevant statute applicable in each jurisdiction. The term ‘compensation’ is used in a variety of other statutes which have nothing to do with resumption. The term has a well-understood meaning in respect of workers’ compensation. It has another, different, meaning in respect of criminal injuries compensation. It is different from the concept of damages which may be awarded for breach of contract or for committing a tort. In resumption law each legislature has enacted specific matters which are to guide an acquiring authority, a claimant and, if necessary, a court of law in determining the amount of compensation payable. The relevant provisions are consistent with each other in requiring the market value of the land to be determined. The principles of valuation in determining the market value of the land are common to each of the nine jurisdictions in Australia. The statutory provisions differ in regard to the other matters which may, in appropriate circumstances, be added to the market value of

[page 111] the land. The current resumption statutes recognise that the market value alone may not satisfy the test of just terms. The additional matters specified have the aim of ensuring that overall the dispossessed owner receives adequate compensation. The compensation provisions seek to provide objective criteria upon which compensation is to be assessed. Reactions of landowners to resumption may differ. At one end of the scale a former owner may be delighted to have been able to dispose of the land and is overjoyed to have been able to convert it into the handsome sum awarded. At the other end of the scale a former owner may be permanently aggrieved at the compulsory expropriation of land and may be heard to say that no amount of money could amount to adequate compensation for the loss of that land. The long-term effects of resumption may differ appreciably from one dispossessed owner to another. The delighted owner may have been able to put the compensation money to good use and solved a host of financial problems. The aggrieved owner may suffer serious depression to the extent of needing prolonged psychiatric treatment. Compensation for resumption does not directly cover the ‘shock’ effect of resumption. The compensation provisions focus on the value of the land and the owner’s relation with that land. In assessing the amount of compensation the parties and the courts are required to remain faithful to the language used by the different legislatures. The courts do look to judicial decisions to assist them to construe legislative provisions. Where no provision of the statute law negatives the case law that has built up in the 20th century and where adherence to those principles forming part of judicial precedent achieves predictability and consistency, courts tend to follow the earlier decisions: Minister Administering the Heritage Act 1977 v Haddad (1988) 67 LGRA 438. Some of the compensation provisions have been enacted as statutory provisions. It is frequently a difficult task to be certain that particular statutory provisions give full effect

to a principle of law that had earlier emerged from judicial precedent. A statutory provision may modify or vary the common law principle. It may change it significantly. Some of the resumption statutes may have the appearance of being a complete codification of resumption law but it would be rare for a court of law to rely wholly on the statute without examining the judicial decisions on the subject. The accumulated case law continues to be a secondary source of resumption law, particularly in respect of the assessment of compensation.

ENTITLEMENT [3.2] By Lands Acquisition Act (Cth) s 52, a person from whom an interest in land is acquired by compulsory process is entitled to be paid compensation by the Commonwealth. By Land Acquisition (Just Terms Compensation) Act (NSW) s 37, an owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation by the acquiring authority. [page 112] By Land Acquisition and Compensation Act (Vic) s 30, every person, who immediately before the publication of a notice of acquisition, had an interest in land that is divested or diminished by the acquisition to which that notice relates has a claim for compensation. By Acquisition of Land Act 1967 (Qld) s 12(5), on the resumed land becoming vested in the constructing authority, the estate and interest of every person entitled to the whole or part of the land shall thereby be converted into a right to claim compensation. By s 18(1) a right to compensation may be claimed from the constructing authority.

By Land Administration Act 1997 (WA) s 202(1), every person having any interest in land which is taken is entitled to compensation for the interest from the acquiring authority. By Land Acquisition Act 1969 (SA) s 15(5), if the authority decides to proceed with the acquisition of land, a person interested in the land may claim compensation. By Land Acquisition Act 1993 (Tas) s 24(1), an owner of subject land whose estate in the land is taken, either wholly or in part, is entitled to compensation. By Lands Acquisition Act 1978 (NT) s 52(1), where a person had, or asserts to have had, an interest in acquired land before the date of acquisition, the person may lodge a claim with the minister for compensation. By Lands Acquisition Act 1994 (ACT) s 42, a person from whom an interest in land is acquired by compulsory process is entitled to be paid compensation. In short, any person with an estate or interest in resumed land is entitled to claim and be paid compensation for the loss of that estate or interest. In many instances it is realistic to refer to a single landowner being dispossessed of his or her land. In the majority of cases there is a single owner and thus a single claimant. However, all the statutory provisions make it clear that a claim for compensation is made by the owner of each interest in the resumed land. If, for example, there are four interests in the land, say, a freehold title, a lease, a sublease and a mortgage, it may well be that there will be four claims. The resumed land may be held in trust for a life tenant with reversion to the children of the life tenant. The same land may be subject to an easement. The range of possible interests in land may result in a complex combination of claims. It follows that each person who has a separate interest in the land and has a separate claim is entitled to have the value of that interest assessed separately

for compensation: Rosenbaum v Minister for Public Works (1965) 114 CLR 424. The question of entitlement to compensation for native title claims is examined in 1.23. [page 113]

OFFER OR CLAIM [3.3] The question here is whether the acquiring authority or the owner makes the first move in respect of the assessment of compensation. Does the acquiring authority initiate the procedure by making an offer to the registered proprietor of the land? Or, does the claimant start the process by submitting a claim for compensation to the authority? Traditionally it is the claimant who begins the process. However, in three jurisdictions the onus of starting the process and making an offer to the landowner lies upon the acquiring authority. By Land Acquisition and Compensation Act (Vic) s 31(1), after the notice of acquisition has been published in the government gazette the authority must make an offer in writing to each claimant of whose entitlement to compensation it is aware. By s 31(2)(a) such offer must be made within 14 days after the date of acquisition. By s 31(3) the offer must set out the amount that the authority, on the information available to it, has assessed as a fair and reasonable estimate of the amount of compensation payable to the claimant. By Land Acquisition Act (SA) s 23A(1), the acquiring authority must make an offer to the person whom it believes to be entitled to compensation, stating the amount it is prepared to pay. By s 23A(2) the offer must distinguish between the value of the land, disturbance and other compensable matters. By s 23A(3) the authority must pay the amount offered into the Supreme Court within seven days after making the offer. By Lands Acquisition Act (NT) s 50(1)(a), if the minister is of the opinion

that a landowner, on whom the minister is required to serve a notice of acquisition, has a claim for compensation, the minister shall cause the landowner to be served with notice of an offer of the amount of compensation which is considered appropriate for the acquisition of that landowner’s interest in the acquired land. In the remaining jurisdictions (Commonwealth, New South Wales, Queensland, Western Australia, Tasmania and the Australian Capital Territory) the onus is on each claimant to make a claim for compensation. The claimants do not have the benefit of knowing the value the authority places on the land. Almost certainly the authority will have estimated the cost of the resumption and for that purpose will have obtained a valuation of the land. No doubt that valuation will serve as a guide whether or not to accept the claim made by the claimant. If the claimant had the assistance of seeing and examining that valuation it might assist the claimant in preparing his or her claim. In broad principle the resumption statutes encourage, or do not discourage, the parties in reaching an agreement on the compensation. It may be said that some of the resumption statutes expect the parties to negotiate an agreement on the amount of compensation. For instance, following recent amendments to the Land Acquisition (Just Terms Compensation) Act (NSW), s 10A(2) requires the acquiring authority to make a ‘genuine [page 114] attempt’ to acquire the land by agreement and must negotiate with the owner for a period of at least six months (see 1.26). Certainly both parties would be in a better position to negotiate an agreement on the market value of the land if both parties had an opportunity to study all valuations at an early stage regardless of which party obtained them.

NOTICE OF CLAIM [3.4] The land resumption statutes generally require claimants for compensation to complete a prescribed form. By Lands Acquisition Act (Cth) s 67(2)(a), a claim for compensation must be made in the form approved by the minister. By Land Acquisition (Just Terms Compensation) Act (NSW) s 39(2), the claim must be in a prescribed form. By Land Acquisition and Compensation Act (Vic) s 35(1)(a), a claim must be in a prescribed form. By Acquisition of Land Act (Qld) s 19(1), a claim must be in writing. By Land Administration Act (WA) s 211, the claim must be in the approved form. By Land Acquisition Act (SA) s 23A, the offer of compensation is made by the acquiring authority. By Land Acquisition Act (Tas) s 36(2)(a), the claim must be in an approved form. By Lands Acquisition Act (NT) s 52(1), the claim must be in an approved form. By Lands Acquisition Act (ACT) s 56, the claim must be made in the approved form. The form indicates the information that the authority requires. Accurate completion of the form is critical to the success of any application. This is not a straightforward task such as filling in an application form for a driver’s licence. At the outset claimants need to consider every aspect of the relevant compensation provisions to be certain that nothing has been overlooked. The statutes do not generally make provision for second thoughts on the part of claimants. Whether an authority is entitled to reject a claim that is not made on the appropriate form or omits to provide significant information is arguable. While the resumption statutes do not expressly say so, an acquiring authority may have a duty to assist claimants and not hinder them. If a letter contains all the information required by the form and by the statute, then there may have been sufficient compliance with the statute. In Seed v Claremont Municipality (1958) 60 WALR 26 the authority contended that the claimant had not used the prescribed form and hence had not made a valid claim. It was held that the letter claiming compensation was a valid and effectual

notice. There had been substantial compliance with the requirements of the statute in force at the time. While an oral claim is not likely to be acceptable as a claim in the absence of unusual circumstances, a claim made by a solicitor on a claimant’s behalf would normally be a valid claim. In Ubank v Housing Commission (Qld) (1954) 25 QCLLR 5 a letter from the dispossessed owner’s solicitor stating the amount of the client’s claim was held to constitute a valid claim and the constructing authority was precluded from contending that it was not a claim. Where the notice is completed and signed by a valuer on behalf of the [page 115] claimant, it is unlikely to be rejected by the acquiring authority. However, the valuer runs the risk of being accused of acting as a solicitor. In normal circumstances a valuer might be better advised to restrict his or her role to questions of valuation as distinct from handling procedural matters.

TIME LIMIT FOR MAKING CLAIM [3.5] Two issues arise in respect of the time within which claimants may be required to make a claim for compensation: First, what is the time limit? Second, what happens if claimants fail to make a claim within the prescribed time? In many instances, the preparation of a claim for compensation may take some weeks to prepare. It may be a comparatively easy task to value a residence in a suburban area where comparative sales of land are frequent. It may be a complex and difficult task to value premises used for business purposes in a city centre where there is a variety of different interests in the

land. In both examples the claim needs to be set out fully in respect of each interest. The Lands Acquisition Act (Cth) and the Lands Acquisition Act (ACT) do not specify a time within which a claimant must make a claim although there are time limits imposed upon the authority in processing claims. By Land Acquisition (Just Terms Compensation) Act (NSW) s 39, there is not a prescribed time for making a claim but s 42(1) requires the authority to give the former owners notice of their entitlement to compensation and ‘the amount of compensation offered’ within 30 days after the publication of the acquisition notice. The section allows for an extension of time in certain circumstances. By s 42(6), for example, the authority can delay giving a compensation notice if a number of persons claim competing interests in the land concerned. Section 45(1) allows the former owner a period of 90 days within which to accept the authority’s offer or object to the offer to the Land and Environment Court. If the former owner takes no action within the period of 90 days, the authority’s offer is ‘taken to have been accepted’. By Land Acquisition and Compensation Act (Vic) s 33(2), if a claimant fails to respond to the authority’s offer of compensation within three months, the matter becomes a disputed claim. Section 107 provides that time is not to expire until notice has been given. The link between ss 33 and 107 was considered in Roads Corporation v Costa (1997) 93 LGERA 317 where it was held that s 107(1) operates to extend time for acceptance of an offer of an acquiring authority fixed by s 33(1). By Acquisition of Land Act (Qld) s 19, a time limit is not prescribed within which a claimant must make a claim for compensation. By Land Administration Act (WA) s 207(1), a person ‘is not entitled’ to make a claim for compensation more than six months after the registration of the taking order. Section 207(2) enables the minister to extend time. [page 116]

By s 207(3) when the time limit or extended time limit has expired, no action or proceeding lies against the acquiring authority in respect of any claim for compensation. By Land Acquisition Act (SA) s 23A(1), when the authority gives notice of the acquisition, it must make an offer of compensation stating the amount the authority is prepared to pay. By s 23A(3) it must pay the amount offered within seven days after making an offer of compensation into the court. By s 23A(2) if the claimant does not dispute the adequacy of the offer, the claimant is ‘taken to have agreed to accept the offer’. By Land Acquisition Act (Tas) s 37(a), a period of 60 days from the date of acquisition is prescribed within which to make a claim. Section 38 details the effect of failure to make a claim for compensation. By Lands Acquisition Act (NT) s 52(1), there is a period of three years within which to make a claim for compensation. Differences in the resumption statutes governing claims and offers for compensation preclude broad generalisations in respect of time limits and the consequences for a claimant in failing to act within a prescribed time limit. The fate of an application to extend time depends upon the relevant provisions in the resumption statute. It is not possible to speculate whether an authority has discretion to waive a time limit in respect of the relevant statute. Nor is it possible to generalise if the assistance of a court is called upon to extend time. In Public Trustee v Penrith City Council [1976] 1 NSWLR 165 land was resumed in May 1962. The registered owner was informed of his right to claim but subsequently died in June 1967 without having made a claim. In November 1975 the administrator of his estate sought an order extending time within which to claim on behalf of the estate. The prescribed period for lodging a claim was 90 days. The court held that it had discretion to extend time but rejected the application. The period of 14 years was too long to permit an extension of time. Whether or not the relevant statute of limitations applies to a resumption claim must be doubtful where the resumption statute contains its own time

limits. In Dobinson v Lake Macquarie City Council (1994) 82 LGERA 16 land was resumed in June 1970 under the Public Works Act 1912 (NSW), now no longer governing resumption. A claim was served in July 1976 without an explanation being sought by the council for the delay until November 1993. The council applied for an order to dismiss the application on the ground that it was statute-barred under the relevant statute of limitations. The council’s application for an order of dismissal was refused as there was no limitation period specified in the resumption provisions in respect of an application to apply for an extension of time. In the absence of an express statutory provision providing for an extension of time within which to make a claim for compensation, it is arguable whether a superior court of record has an equitable jurisdiction to either strike out a claim or extend time. While in English law, Simpsons Motor Sales (London) Ltd v Hendon Corporation [1964] AC 1088 (see 2.17) might suggest that a superior court could act in respect of a lapse of time, [page 117] this must be regarded as a doubtful proposition. It is true that if there is good reason why a claimant could not submit a claim within the time allowed, and the authority is not prejudiced, a court would be reluctant to deny a claimant an opportunity to make a claim. In most jurisdictions there is provision for unclaimed compensation to be held in trust or paid into court and it would be wholly unexpected if a court were to allow a claimant to argue the amount of compensation at that stage. The claimant would not have a right to dispute the amount of compensation assessed but he or she would have a right to claim that amount which would have been held in trust or in a court.

WITHDRAWAL OR AMENDMENT OF CLAIM [3.6]

Irrespective of whether the first step in respect of compensation is

made by the authority in making an offer or is made by the former owner in making a claim, the issue arises whether the claimant can withdraw or amend the claim or the response to the authority’s offer. Some of the resumption statutes enable a claimant to either withdraw or amend a claim. The fact that some statutes expressly allow withdrawal or amendment does not necessarily mean that a claimant cannot withdraw or amend a claim in the absence of provision in the relevant resumption statute. But the absence of a statutory right to withdraw or amend may give rise to doubt as to whether the claimant has such a right. Lands Acquisition Act (Cth) s 67(3) and Land Acquisition (Just Terms Compensation) Act (NSW) s 39(4) permit a claimant to withdraw the claim. The subsections make no mention of making an amendment to the claim. Acquisition of Land Act (Qld) s 24(3) provides that where a claim for compensation has been referred to the Land Court the claimant shall not amend the claim except upon leave granted by the court. The issue of amendment arose in Melwood Units Pty Ltd v Commissioner of Main Roads (Qld) (1978) 19 ALR 453. The claimant originally claimed $299,528 for the resumed land. The Land Court awarded $21,170, the commissioner having apparently offered $14,840. The claimant then sought leave to increase the claim to $1,800,000. The Land Appeal Court refused leave to amend the claim for want of jurisdiction and awarded compensation of $83,340 ((1972) 39 QCLLR 261). The Supreme Court of Queensland held that the Land Appeal Court could make an estimate of compensation greater than the amount of compensation which the claimant had asked for, for the reason that the claimant is to be fully compensated notwithstanding its timidity or error ((1976) 3 QLCR 209). At the fourth hearing of the case, the Privy Council was silent on this observation. But it did say that if it should appear that the Land Appeal Court had ignored a principle of assessment for resumption, that would be an error of law ((1978) 19 ALR at 455). It would be a curious situation if a claimant claimed $100,000 for the value of the land taken and

applied unsuccessfully to amend that figure to $200,000, and then the court awarded compensation amounting to $300,000. The Supreme Court [page 118] said that it did not matter if the court’s estimate of compensation is greater than the amount that the dispossessed owner has asked for. There is no authority for the proposition that the court is required to confine its award to the amount claimed. The question of amendment did not arise at the fifth and final hearing of the case ((1979) 6 QLCR 251). Section 19 (claim for compensation) does not expressly authorise an amendment prior to an agreement being reached but it is submitted that Melwood implies that in Queensland the claimant could amend the claim. The Land Acquisition and Compensation Act (Vic) does not contain any provision for amendment or withdrawal of the claim. In respect of earlier legislation it was held in March v Frankston City (No 1) [1969] VR 350 that where the claim has been accepted by the authority it cannot be amended. The view taken was that if the claimant were permitted to amend after the notice of offer is filed under the legislation then existing, the whole of the relevant provision would be frustrated. In Smith v Eltham Shire [1977] VR 133 it was held that the relevant provisions applicable at the time had been drafted on the implied basis that there would only be one claim and one offer which would have to be considered when applying the formula. Whether either decision has any application to the Act of 1986 is arguable. Section 31(8) allows the authority to amend an offer of compensation in certain circumstances. Land Administration Act (WA) s 218 allows both the claim and the authority’s offer to be amended at any time before the claim is settled in full. With respect to the legislatures of the other resumption statutes this seems a sensible provision. The purpose of the statutes is to enable the claimant to be

paid fair compensation and if an amendment is necessary to achieve that aim, it is difficult to imagine any court forbidding the amendment of a claim. There may be a stronger argument for not allowing an authority to change its mind, if only because it has the resources and greater expertise than an ordinary citizen. On the other hand, if there are good reasons for the authority to amend its offer then it may be argued that it should be allowed to do so. The statutory procedure should be sufficiently flexible to allow amendments up to the time a court or tribunal determines the compensation, provided there is a sound reason to grant an application to amend.

ABSENCE OF CLAIM [3.7] The resumption statutes unequivocally declare that the owner of an interest in the resumed land is entitled to compensation (see 3.2). The resumption statutes expect the owner to make a claim for compensation or respond to an offer made by the authority (see 3.3). The problem arises where the owner fails to claim or fails to respond to the offer. The reason for the owner’s inaction may be known or unknown. The reason may be acceptable, for example, absence abroad, serious illness, whereabouts unknown or failure to understand the procedure. The resumption statutes [page 119] do not require the procedure to be held up due to a potential claimant’s failure to act. Lands Acquisition Act (Cth) s 74A makes express provision for the authority to make an offer in the absence of a claim. Land Acquisition (Just Terms Compensation) Act (NSW) s 45 provides that if the person entitled to compensation does not lodge an objection to the

authority’s notice of compensation within 90 days, that person is deemed to have accepted the offer and the compensation is paid into a trust fund. Land Acquisition and Compensation Act (Vic) s 31 requires the authority to make an offer. By s 33(2) if the offeree fails to respond, the matter becomes a disputed claim and under s 80 the matter can be referred to the Victorian Civil and Administrative Tribunal for determination. The Acquisition of Land Act (Qld) does not make express reference to the situation where there is no claim for compensation. Section 24(1) enables the authority to refer the matter of the amount of compensation to the Land Court. Section 25(4) enables the court to determine the matter in the absence of the ‘claimant’. Presumably the term ‘claimant’ in this context includes a person who is entitled to make a claim but has not done so. Land Administration Act (WA) s 210 lays down the procedure to be followed where the person entitled to claim compensation is absent from the state, is an infant or is an incapable person. It does not cover the situation where there is an unexplained absence of a claim. Section 249, which enables compensation to be paid into the Supreme Court in certain circumstances, does not appear to include the position where there is no claim. Land Acquisition Act (SA) s 23A(1) requires the authority to make an offer of compensation to the person whom it believes to be entitled stating the amount the authority is prepared to pay. Section 23A(3) requires that sum to be paid into court. The problem of an absence of a claim falls to the court to resolve. Land Acquisition Act (Tas) s 38 provides a complete procedure where there is a failure to make a claim for compensation. Lands Acquisition Act (NT) s 52(3) provides that if no claim is lodged within three years, claims for compensation and interest are statute barred. The Lands and Mining Tribunal does, however, have discretion to extend time. Attempting to generalise, it may be said with some hesitation that where

there is no claim for compensation the authority is entitled to retain the compensation it has assessed or pay it into a trust fund or the court. Its right to enter into possession is not affected by the absence of a claim.

CONTENTS OF CLAIM [3.8] Where the resumption statute requires the owner of an interest in the land to commence the procedure governing the assessment of compensation (see 3.3), the owner is required to submit a claim for [page 120] compensation usually by completing a prescribed form (see 3.4). Where the resumption statute requires the authority to commence the procedure governing the assessment of compensation, the owner is required to respond and normally becomes described as the claimant. The claim is intended to serve two purposes: First, the claim establishes the right of the claimant to be awarded compensation. The claim contains details of the claimant’s title to an interest in the land. Second, the claim may contain the amount of compensation which the claimant is seeking. This is a requirement in some of the resumption statutes but not all. Lands Acquisition Act (Cth) s 67(1) requires the claimant to specify the interest that has been acquired and the amount of compensation claimed. Land Acquisition (Just Terms Compensation) Act (NSW) s 39 requires a person who wishes to claim compensation to lodge a claim in the form prescribed. The section does not require the claimant to specify the amount of compensation claimed. Section 43 places the onus on the authority to issue

a notice of compensation offering to pay a specified amount of compensation as determined by the valuer-general. Land Acquisition and Compensation Act (Vic) s 31 requires the authority to make the initial offer of compensation. Section 33 requires the claimant to accept or serve a notice of claim. Section 35 specifies the matters which are to be included in the notice of claim which includes stating the amount of compensation claimed. Acquisition of Land Act (Qld) s 19(1) requires a notice of claim to include details of the land resumed and the total amount of compensation claimed. Land Administration Act (WA) s 211 requires the owner to make a claim for compensation containing particulars of the land resumed but it does not require the claimant to state the amount of compensation in the notice. Section 217(3) requires the authority to respond by making an offer of compensation. By Land Acquisition Act (SA) s 23B(2), if the authority makes an offer of compensation and the claimant does not dispute the adequacy of the offer, the claimant is taken to have agreed to accept the offer. Land Acquisition Act (Tas) s 36 requires the claimant to make a claim but the claimant is not expressly required to state the amount claimed but this may be implied as s 40(1) requires the authority to admit the amount of compensation claimed or reject the amount claimed. Lands Acquisition Act (NT) s 50(1)(a) enables the minister to make an offer of compensation and s 52 enables a person to claim compensation. Lands Acquisition Act (ACT) s 56(1) is similar to s 67(1) of the Commonwealth Act. There have been instances where doubt has arisen as to whether a particular document submitted by a claimant amounted to a notice of claim. In Re [page 121]

Brisbane City Council and White (1972) 50 LGRA 225 the claimant lodged with the constructing authority a document entitled ‘claim for compensation for my property’ and headed it ‘without prejudice’. The authority sought a declaration to determine whether it was a valid compensation claim. It was held that in lodging the document with the authority the claimant intended that it should be a lawful claim for compensation. The heading ‘without prejudice’ should be treated as meaningless in the circumstances. Simply to mark ‘without prejudice’ a document directed to the settlement of a dispute did not make the document privileged. In Smith v Dandenong Valley Authority (No 2) [1974] VR 276 in response to a notice to treat (under earlier legislation) served upon the owners by an authority empowered to compulsorily acquire land, the owners duly completed and returned the appropriate schedule of claim, but failed to specify the amount of compensation claimed. It was held that the form lodged by the owners, although not quantified, was a claim for compensation within the meaning of the relevant statute. This case is not an authority for the proposition that a claimant does not need to specify the amount being claimed. The claimant remains under a duty to specify the amount claimed. The claimant runs the risk of being treated as having failed to make a claim if no amount is specified.

ACCEPTANCE OR REJECTION OF OFFER OR CLAIM [3.9] Where the authority makes an offer specifying the amount of compensation it is prepared to pay, it follows that the claimant should either accept or reject the offer. Likewise where the claimant has made a claim specifying the amount of compensation, the authority must either accept or reject the claim. If there is an acceptance to either the offer by the authority or the claim by the former owner, then the only outstanding issue so far as compensation is concerned is for payment to be made in whole or in part as the case may be. Both the claimant and the authority are expected to make a positive

response to the offer or to the claim. However, some of the statutes make provision in the event that there is no response by either the claimant or the authority. Lands Acquisition Act (Cth) s 70 requires the minister either to accept a claim and offer compensation or to reject the claim. Section 75 enables the claimant to accept or reject the minister’s offer. Sections 76 and 77 enable the minister to reconsider the offer. By s 70(3), where the minister has not responded to the claim within 42 days, the minister ‘is taken to have rejected the claim’. Where the claimant fails to respond to the minister’s offer s 75 contains no provision for the offer to be deemed to have been accepted or rejected. As no agreement has been reached between the parties it would appear that silence by the claimant may amount to a rejection. Unlike some of the other resumption statutes, the Land Acquisition (Just Terms Compensation) Act (NSW) expects the question of compensation to be settled within specified time limits. As soon as the acquisition [page 122] notice has been published s 42 requires the authority to issue a notice of compensation and offer of compensation within 30 days. By s 44 if the offer is accepted payment is to be made within 28 days. By s 45(1) if there is no response to the offer by the claimant within 90 days the offer ‘is taken to have been accepted’. By s 45(3) the compensation money is paid into a trust account. Sections 45(2) and 66 allow the claimant to object to the Land and Environment Court to this procedure. Land Acquisition and Compensation Act (Vic) s 31 requires the authority to make an offer of compensation within 14 days after the date of acquisition. Section 33(1) gives the claimant a period of three months within which to respond. By s 33(2) if the claimant does not respond within that time, the matter becomes a disputed claim. By s 35 if the claimant rejects the

authority’s offer, the claimant can serve a notice of claim on the authority stating the amount of compensation claimed. Section 36 provides for the authority to accept, reject or offer to vary the amount claimed. Section 37 provides for the situation where the authority fails to make an offer and enables the claimant to make a claim for compensation. By Acquisition of Land Act (Qld) s 24(1), either the constructing authority or the claimant may refer the claim to the Land Court for hearing and determination. The subsection assumes that no agreement has been reached on the amount of compensation payable. By s 24(5)(b) if the claimant has not made a claim within three months, the authority may refer the matter to the Land Court. Land Administration Act (WA) s 217 requires the authority to examine the claim made by the claimant and within 90 days to serve an offer of compensation on the claimant. Section 219(1) gives the claimant a right to object within 60 days. By s 219(2) if notice of rejection is not given within that time, the offer ‘is deemed to have been accepted’. By s 221 if the authority has not made an offer within 120 days the claimant may commence proceedings. Land Acquisition Act (SA) s 23 requires the authority and the former owner to negotiate about the compensation payable. Section 23B deals with the position where compensation is agreed and s 23C deals with the position where compensation is not agreed in which case the authority may refer the question to the court. Land Acquisition Act (Tas) ss 39 and 40 lay down the procedure to be followed on receipt of a claim for compensation. The authority has 60 days within which to respond. By Lands Acquisition Act (NT) s 74, the minister is required to respond to a claim for compensation within one month. If the amount of compensation is not agreed, by s 75 the matter shall be referred to the Lands and Mining Tribunal. Lands Acquisition Act (ACT) ss 50–62 are identical in all important respects to ss 67–77 of the Commonwealth Act.

[page 123] Where the authority fails to comply with the procedure laid down in the resumption statute and that statute does not itself make provision for the consequences of such failure, the claimant is entitled to apply for mandamus or for review in the nature of mandamus to compel the authority to consider its claim: Edwards v Chief Commissioner for Railways (1912) 12 SR (NSW) 117 at 122. On deciding the question whether there should be rigid and strict adherence to time limits in respect of the determination of claims and offers, the courts are likely to look at all the circumstances causing such failure. In G M Damsteegt Ltd v Balclutha Borough [1970] NZLR 877 land was taken compulsorily for a street. No agreement was reached in respect of the amount of compensation payable. In October 1968 the owner posted its claim to the town clerk of the borough. In February 1969 the owner filed a notice in the court and posted a copy to the town clerk later that month. Although the town clerk acknowledged receipt of the claim in 1968 and wrote to the owner’s solicitors in March 1969, he made no report to the council and no councillor was aware of the making of the claim until 11 April 1969. The period of 60 days within which to reject or accept the claim elapsed on 20 April 1969. On 1 May 1969 the council applied to have the filing of the claim set aside. It was held that the circumstances of the case did not show inexcusable inaction by the council and having regard to all the facts of the case it was reasonable to grant the relief sought by the council. It was observed that no meritorious claim or valid defence should be frustrated by non-observance of time limits if the result of strict adherence to those time limits would cause injustice in all the circumstances. Some of the resumption statutes require acceptance or rejection of a claim or an offer to be made in writing. Where the parties negotiate and reach an agreement on the amount of compensation payable by the authority, in general the resumption statutes do not expressly require the agreement to be

in writing. Without expressing any view as to whether the statute of frauds applies and requires such an agreement to be made in writing, it might be possible to argue that an oral agreement would suffice. In normal circumstances one would expect the parties to translate an oral agreement into a written agreement. Obviously the terms of any agreement must be clear in stating the total amount of compensation. In Smith v Eltham Shire [1977] VR 133 the authority offered settlement for ‘$47,500 all in’. The claimant accepted but did not abandon a claim for interest. The authority declined to pay any amount over $47,500. The claimant then filed for a claim of $50,001 and the authority filed notice of an offer of $47,500. The claimant accepted that offer with interest. The authority sought to amend its notice of offer, substituting the sum of $42,500 for the sum of $47,500. It was held that the expression ‘all in’ meant that the sum included satisfaction of the claim, interest and costs. But the authority had no right to amend its offer. The claimant was entitled to interest in the amount of the first offer filed, that is, $47,500. [page 124] Any right of the authority to amend its offer depends on the provisions of the resumption statute. In the absence of such provision the authority may not be able to amend its offer. In Mead Johnson Pty Ltd v Minister for Public Works [1967] 2 NSWR 118 the authority resumed land by gazette notification and gave notice of a valuation of the land of $169,000. The landowner accepted. Subsequently the authority purported to vary the notice by substituting $150,000 for $169,000. It was held that it was not open to the authority at any moment up to the instant of actually making payment to withdraw and decline to proceed further. The freedom of the authority to vary a valuation could not be used as a means of reopening an agreement

already reached in negotiations following upon the due process of the statute having been followed through by the parties.

SEPARATE VALUATION OF INTERESTS [3.10] It has long been recognised that the compulsory acquisition of land often involves the expropriation of an interest of more than one person in the land (see 1.21). There may be a host of different persons with a separate interest in the land. The land may be jointly owned. The land may have two co-owners. One may wish to dispute the amount of compensation offered; the other may wish to accept. The land may be leased to 20 or more lessees. There are scores of possibilities. The owner of each interest in the resumed land has a separate and distinct claim to compensation. The principal issue to arise in former years was whether it was the duty of the court to establish the value of the land inclusive of all interests in it. Assuming that a court did so, the global sum would be apportioned appropriately between the owners of each interest. Alternatively, the question was whether it was the duty of the court to value the different interests in the land separately, irrespective of whether the total value of those interests exceeded the value of the land as if there had been but a single claimant with an unencumbered title in fee simple. The issue has been decided by the High Court in Rosenbaum v Minister for Public Works (1965) 114 CLR 424. Each interest is to be assessed separately for compensation: [I]t should be decided upon the true construction of the Public Works Act 1912 (NSW) each person having any estate or interest in the land, including a termor [a person who holds land for a given number of years] or tenant, has a separate and independent claim to compensation for the value of the interest which is taken from him by the acquisition of the land under the Public Works Act. Each person should as to his own interest be regarded as an owner within the meaning of that word in s 101(1) of the Public Works Act (per Barwick CJ at 425).

Although the Rosenbaum principle was determined in respect of legislation since repealed, it has been incorporated in each of the current resumption

statutes and applied in SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211; Rivers v Minister of Education (1975) 12 SASR 321 at 329; and Lensworth Finance Ltd v Commissioner of Main Roads (1978) 5 QLCR 261. [page 125] The task of valuing a large number of different interests in the resumed land does give rise to some difficulties. If there are, for example, five different interests in the land there may be five different claimants. If each of the five claimants disputes the offers made to each of them, is there to be a single hearing settling the amount of compensation in respect of each interest? If three dispute the offers and two accept, are the two persons who have accepted the offers to be paid the compensation amount before the three other claims are determined by a court? Some of these questions arose in Lake Macquarie City Council v Luka (1999) 106 LGERA 95. In this case the council resumed in November 1993 roads and lanes left in a 1904 subdivision of the land. The roads and lanes comprised an area of 2.2 hectares in the total area of 9.5 hectares. The trial judge awarded $682,836 based on an in globo value which assumed that the land had not been subdivided. On appeal to the New South Wales Court of Appeal it was held that the existing roads and lanes should have been valued as at the date of resumption. Moreover the award had not taken into account the matrix of private rights of way over the roads and lanes. The holders of equitable interests and proprietors of the lots in the subdivision had to be given an opportunity to claim compensation. Notice of the intended resumption had not been given to each and every person who had an interest in the land. Under the Land Acquisition (Just Terms Compensation) Act (NSW) s 37 each of these owners had a personal right to compensation. Whatever difficulty there might be in tracing claimants, the Rosenbaum principle applied. Accordingly the matter was remitted for

further hearing. It would appear that a single hearing involving all possible claimants was envisaged.

ASSESSMENT PROVISIONS [3.11] Each of the resumption statutes lays down the matters that are to be considered in assessing compensation. Some of the statutory provisions are brief, succinct and to the point. Others are lengthy, cautious and aim for precision. At the risk of over-simplification the matters required to be considered are: (a)

market value;

(b)

special or additional value;

(c)

severance loss;

(d) disturbance loss; (e)

injurious affection;

(f)

disregard of increase or decrease of the property’s value due to purpose of resumption;

(g)

solatium; and

(h) other losses, expenses or costs stemming from resumption. This is not an exhaustive or comprehensive list applicable to each of the nine resumption statutes of Australia. There may, for example, be an overlap between (d) disturbance and (h) other losses. This list is only intended [page 126] as a broad guide. There is a possibility that the meaning given to, say, severance loss is not identical in each jurisdiction. Even where the statutory provisions are similar, as they are in respect of the Land Acquisition (Just Terms Compensation) Act (NSW) s 55 and the Land Acquisition and

Compensation Act (Vic) s 41(1), it is unsafe to conclude that the principles of assessment are identical. The tendency in most of the resumption statutes is to define what, for example, is meant by special value. Although the concept of special value originated in judicial decisions, that term may now have its own statutory definition. It is an initial matter of construction to determine whether the statutory definition confirms or summarises its original source or is intended to differ or vary from the meaning given to it by the superior courts prior to the enactment of the legislation. Lands Acquisition Act (Cth) s 55(2) may be summarised as listing the relevant matters as: (a) market value; (b) additional value; (c) severance; (d) disregard of increase or decrease in value due to purpose of resumption; (e) diminution loss due to taking of new interest; (f) loss, injury or damage resulting from acquisition; (g) likelihood of continuation of interest; and (h) legal and professional costs. Sections 56–63 contain further elaboration of the matters which are to be taken into account. Land Acquisition (Just Terms Compensation) Act (NSW) s 55 specifies: (a) market value; (b) special value; (c) severance loss; (d) disturbance loss; (e) disadvantage resulting from relocation (recent amendments made to the Land Acquisition (Just Terms Compensation) Act (NSW) have replaced all references to ‘solatium’ with ‘disadvantage resulting from relocation’); (f) increase or decrease in value of other land by reason of the public purpose for which the land was acquired. Sections 56–65 contain further elaboration of the matters that are to be taken into account. Land Acquisition and Compensation Act (Vic) s 41(1) specifies: (a) market value; (b) special value; (c) severance loss; (d) disturbance loss; (e) enhancement or depreciation due to purpose of acquisition; (f) legal, valuation or other professional expenses. Sections 40–45 contain further elaboration or explanation of the matters to be taken into account. Acquisition of Land Act (Qld) s 20(1) provides that regard shall be had to the value of the land and to the damage (if any) caused by severance or

otherwise injuriously affecting other land. Section 20(4) excludes enhancement from the assessment. Land Administration Act (WA) s 241 differs from other compensation provisions. Section 241(1) warns that ‘regard is to be had solely to the matters referred to in this section’. Terms such as ‘market value’ and ‘disturbance’ are banished from the 13 subsections. It gets down to dealing with unexpected possibilities. For example, where the claimant has ‘actually incurred’ surveyor’s fees in respect of proposed buildings, the owner can claim that expense. It may well be that in some matters the section is more generous to claimants than comparable provisions in the other resumption statutes. For example, by s 241(8) and (9) an amount of up to 10 per cent is permitted to be added to the award ‘to compensate for the taking without [page 127] agreement’ and makes provision for a higher amount to be added in ‘exceptional circumstances’. The subsections refrain from describing this as a ‘solatium’. Land Acquisition Act (SA) s 25(1)(a) requires the former owner to be compensated for the ‘loss’ of the land. Section 25(1)(b) refers to the ‘actual value’ of the land, severance, disturbance and injurious affection. The remaining paragraphs cover a variety of different matters. For example, in contrast to s 241(8) of the Western Australian Act, above, s 25(1)(g) provides that no allowance shall be made on account of the fact that the acquisition ‘is effected without the consent, or against the will, of any person’. Land Acquisition Act (Tas) s 27(1) embraces traditional terms such as market value, special value, severance, betterment, injurious affection and ‘such other matters as the authority, court or arbitrator may consider to be relevant’. Lands Acquisition Act (NT) Sch 2 sets out the rules governing assessment

and includes the expected matters such as market value, special value, severance and disturbance. Rule 6 allows for determinable interests to be taken into account. Rule 7 requires the cost of acquiring other land to be taken into account. Lands Acquisition Act (ACT) s 54 adopts the provisions of s 55 of the Commonwealth Act.

LOSS [3.12] In the past the courts have spoken of the dispossessed owner being compensated for the ‘loss’ of the resumed land. In Moreton Club v Commonwealth (1948) 77 CLR 253 at 257, a decision which predates the current resumption provisions, the High Court said it is the owner’s ‘loss’ that has to be estimated. In the context of resumption the term ‘loss’ is used in two senses: First, it refers to the global sum to be awarded to the former owner for losing the land and being dispossessed. Second, it refers to a particular kind of loss that the former owner has incurred, for example, severance loss. When it is used in its general sense, the term ‘loss’ embraces all the constituent parts of the compensation such as market value, severance and disturbance. Two resumption statutes retain the term ‘loss’ in its general sense. Land Acquisition Act (SA) s 25(1)(a) requires the compensation payable to be such as ‘adequately’ compensates the former owner for the ‘loss’ suffered. Lands Acquisition Act (NT) Sch 2 r 1 requires the compensation payable to be the amount that ‘fairly’ compensates the claimant for the ‘loss’ suffered. The term ‘loss’ refers to all the factors to be taken into account in assessing compensation for the deprivation the owner has suffered. In this context it is unlikely that there is any difference in the terms ‘adequately’ (SA) and ‘fairly’ (NT) used in the two sections.

[page 128] The term ‘loss’ appears on three occasions in Lands Acquisition Act (Cth) s 55. The term is used in respect of a particular matter in determining the amount of compensation. Land Acquisition (Just Terms Compensation) Act (NSW) s 55 uses the term in respect of severance and disturbance as does Land Acquisition and Compensation Act (Vic) s 41(1). Land Acquisition Act (Tas) s 27(1)(f) refers to any ‘loss or damage’ in respect of disturbance. Acquisition of Land Act (Qld) s 20 and Land Administration Act (WA) s 241 do not use the term ‘loss’ in respect of the matters to be taken into account in assessing compensation. When used in a general sense the term ‘loss’ is neither precise nor exact. It is used in a generic sense to describe the purpose of the compensation provisions. It refers to the taking of the land and all the factors or matters that assessed separately comprise compensation for the total loss to the dispossessed owner. In determining the market value of the land the fact that the land has been owned by the claimant is irrelevant. It does not matter who the owner was. That value is determined objectively. But when it comes to determining other losses, the former owner’s personal loss may be appreciably different from another person’s loss. When s 55(2)(c) of the Commonwealth Act refers to ‘any loss, injury or damage suffered … including any circumstances peculiar to the person’, the subsection is referring to factors that apply only to the claimant. This personal loss will probably be different from any other claimant’s loss in similar circumstances. The concept of loss in resumption is often associated with severance, disturbance and injurious affection. For example, in Niall v Lacepede District Council (1987) 66 LGRA 32 nearly 11 hectares of rural farming land were resumed for roads. The effect of the resumption was to divide a perpetual Crown leasehold property used for sheep and cattle grazing. It was held that compensation for severance, disturbance and injurious affection should include: (a) additional weed control; (b) additional stock control occasioned

by having to move stock from one side of the road to another; (c) additional maintenance and depreciation occasioned by the need for additional fencing, gates, paddocks and chains; (d) registration and third party insurance resulting from the need to incur registration fees, etc for one motor cycle, one tractor and one trailer crossing the road; (e) loss in the residual land value resulting from the disadvantage of the property in its severed state; and (f) the costs of extending water lines, electrical fences, etc; but should not include (g) a claim for loss of efficiency and (h) any allowance for enhancement of the value for the land resumed as a result of the purpose of the resumption. In this instance the loss was for the most part assessed on objective criteria which would have applied to any owner of the land. But to some extent the claimant’s particular use of the land by having, for example, certain vehicles which another owner might not have had, introduces a personal element into the assessment. Time spent by the claimant in respect of resumption is capable of being a compensable loss for the purposes of s 41(2)(b) of the Land Acquisition and Compensation Act (Vic): King v Minister for Planning and Housing [1993] 1 VR 159. [page 129]

DAMAGE [3.13] The term ‘damage’ is used in some of the resumption statutes in respect of the assessment of compensation. In many instances it bears an identical meaning to the term ‘loss’ (see 3.12). Acquisition of Land Act (Qld) s 20(1) refers to the ‘damage’ caused by severance or injurious affection. In this sense the term ‘damage’ has the same meaning as ‘loss’ which is used in the New South Wales and Victorian resumption Acts in respect of severance. Land Acquisition Act (Tas) s 27(1)(c) refers to ‘damage caused by severance’. In these contexts the terms ‘loss’ and ‘damage’ have the same meaning. They

refer to the diminution in value of retained land in consequence of a portion of the original land being taken compulsorily. The term ‘damage’ may have a different meaning in Lands Acquisition Act (Cth) s 55(2)(c) which refers to ‘any loss, injury or damage’ suffered by the claimant ‘as a direct, natural and reasonable consequence’ of the acquisition. In this context the term refers to damage suffered by the person not to damage suffered to the land. It may be a fine distinction. In respect of the Acquisition of Land Act (Qld) s 20(1)(b), it was held in R v Courbold (1986) 11 QLCR 50 that damage caused to retained land must be the direct and natural consequence of the resumption and must not be too remote. In this case land was resumed for a road. The road was planned as a replacement for an old road to which the owner of the resumed land had access. He claimed compensation for the cost of providing an internal access to the new road. His claim was rejected for the reason that discontinuance of the old road was not caused by the construction of the new road on the land taken. The claim related to a totally different quality or kind from that necessary to support a claim for compensation.

MARKET VALUE [3.14] In assessing the amount of compensation due to the claimant, the first task is to determine the market value of the land. This is the sum that a willing buyer would pay a willing seller. That sum must be an estimate of what experts in the field of real estate consider is likely to be the price paid. It falls to land valuers to give their opinion on the likely sale price of the land. It falls ultimately to the court to decide if their opinions are justified. Determining the market value of the resumed land is normally the principal component of the amount of compensation to be paid to the dispossessed owner. The means of determining that value was laid down by the High Court in Spencer v Commonwealth (1907) 5 CLR 418. This was a decision made in respect of the Acquisition of Property for Public Purposes Act 1901

(Cth) which contained little about valuation of land. The passages frequently cited, elaborated and relied upon are: In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, that is, whether there was in fact on that day a willing buyer, but by inquiring ‘what would a man desiring to buy the

[page 130] land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’ … The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together (per Griffith CJ at 432). To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and, cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property (per Isaacs J at 441).

The Spencer principle has stood the test of time. No other case in resumption law has achieved the status and attention that has been accorded to it. It has been described as ‘well-known’ (James v Swan Hill Sewerage Authority [1978] VR 519 at 522); ‘classic’ (Basheer & De Conno Pty Ltd v Corani (2005) 92 SASR 468 at [27]); and ‘legendary’ (Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 559). It is the ‘accepted basis for ascertaining value’ (Wilson Bros Pty Ltd v Commonwealth) [1948] SASR 61 at 67). ‘There is no doubt that the best starting point for an evaluation of the

relevant law is Spencer’ (Polegato v Griffith City Council (1988) 64 LGRA 265 at 269). The selling approach to assessment of compensation as explained in Spencer is in almost every situation the most reliable and appropriate basis of valuation for resumption purposes (Brown Bros (Marine) Holdings Pty Ltd v New South Wales Land and Housing Corporation (1991) 72 LGRA 50). It has long been accepted that Spencer ‘correctly formulated the principles to be applied in compensation cases’ (Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [266]). The Spencer principle of the hypothetical willing buyer/willing seller sale has been exhaustively examined in scores of resumption cases. In Commonwealth v Arklay (1952) 87 CLR 159 at 169–70 the High Court restated the principle: Where the amount for which a vendor may sell and a purchaser buy is not controlled the court poses a hypothetical problem, the answer to which supplies this value. It is a familiar rule which in Australia was authoritatively formulated in Spencer. Shortly stated what is required is an ‘estimate of the price which would have been agreed

[page 131] upon in a voluntary bargain between a vendor and purchaser each willing to trade but neither of whom was so anxious to do so that he would overlook any ordinary business considerations’ … It is simply an analysis of what in all the circumstances would be the price that a willing purchaser would have to pay a vendor willing but not anxious to sell in order to obtain the land. Where land has no special suitability for some business or activity carried on by the owner and has no added potential value if put to some better use, the value on a free market is usually its market value.

The Spencer principle has been recognised or adopted in some of the resumption statutes. Lands Acquisition Act (Cth) s 56, Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1), Land Acquisition and Compensation Act (Vic) s 40, Lands Acquisition Act (NT) Sch 2 r 2(a) and Lands Acquisition Act (ACT) s 46 define market value as the amount that would have been paid for the interest in the land if it had been sold by a willing but not anxious seller to a willing but not anxious buyer.

The hypothetical exercise relies upon the willing seller and the willing buyer reaching a conclusion on the price to be paid. It underlines the fact that both parties are aware of market conditions and are influenced by market prices in the area. Both parties are required to be prudent. This aspect was stressed by the Privy Council in Pastoral Finance Association Ltd v Minister [1914] AC 1083 at 1088: Probably the most practical form in which the matter can be put is that [the claimants] were entitled to that which a prudent man in their position would have been willing to give for the land sooner than fail to obtain it.

In practice the evidence of the hypothetical transaction is given by valuers who are experts. They almost have to imagine that they are acting as prudent buyers and sellers. To put it another way: they have to visualise that they are observing a prudent buyer and a prudent seller reaching an agreement on the price that other prudent buyers and sellers would also agree with. They have to estimate what sale price reasonable buyers and sellers would arrive at. In Brewarrana, above (at 578), it was observed: The judicial task is to see the combined results of the valuers’ work not as another valuer would see them, but as material fit to be used in the course of applying the principle laid down in Spencer; the two roles of buyer and seller must … finally merge in the court. I must bear in mind the conclusions of the valuers, and try to accord to each the sort of bearing and weight that would be accorded to them in the normal transaction of sale and purchase propounded by Spencer.

Where the Spencer principle is incorporated into a statutory provision it is clearly a rule of statutory law as to how the market value is to be ascertained. Where the Spencer principle is not incorporated into the relevant resumption statute it may be arguable whether it forms part of the common law applicable to the ascertainment of value. In Melwood Units Pty Ltd v Commissioner of Main Roads (Qld) (1976) 3 QLCR 209, appeal allowed (1978) 19 ALR 453, the Supreme Court of Queensland held that [page 132]

the principles stated in Spencer were not part of the common law. They were principles commended to valuers and to valuation courts. This view found no express support in the Privy Council that clearly approved the Spencer principle. It regarded the principles of assessment of compensation for resumption as part of the law. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 the High Court considered Melwood and said that the reference to common law is better understood as a reference to a body of case law which may be built up in various jurisdictions where there are in force statutes in the same terms or, at least, in relevantly similar terms. The courts in one jurisdiction should not ‘slavishly follow’ judicial decisions of another in respect of similar or even identical legislation (at [31]). The Spencer principle is not in itself a method of valuation. Its ‘practical worth’ is that it permits any method of valuation that, in expert hands, is ‘capable of yielding a result within bounds that are not unreasonable’: Bronzel v State Planning Authority (1979) 44 LGRA 34; 21 SASR 513 at 516. The formidable complexities of modern town planning legislation have made the application of the Spencer test difficult in practice. But judicial decisions confirm that it remains the most reliable means of assessing the value of the resumed land and compensating a dispossessed owner. The Spencer principle assumes that there are no leases in the land and that the vendor will give vacant possession: Perpetual Trustee Co Ltd v ValuerGeneral (2006) 95 SASR 338. The Acquisition of Land Act (Qld), the Land Administration Act (WA) and the Land Acquisition Act (SA) do not expressly use the term ‘market value’. The Land Acquisition Act (Tas) refers to ‘market value’ but does not define it. In each of these four jurisdictions the Spencer principle has been applied.

SPECIAL VALUE

[3.15] In ordinary circumstances, the value of the land resumed equates to its market value. Over the years a separate principle has emerged that resumed land has a market value and in addition may have a ‘special value’ over and above its market value. The principle has its modern roots in Pastoral Finance Association Ltd v Minister [1914] AC 1083 where the Privy Council placed the emphasis on the principle that the value to be established is the value of the land to the dispossessed owner. In Pastoral Finance the Supreme Court of New South Wales, when considering the expression ‘value of the land’ in the Public Works Act 1912 (NSW) s 124 (since repealed), based its decision on the principle that the claimants were not entitled to anything beyond the market value of the land. The Privy Council held this to be erroneous and said that the claimants were clearly entitled to receive compensation based on the value of the land to them. In this instance the claimants had bought the land with [page 133] a view to transferring their business to it, but before they had erected the necessary buildings there the land had been resumed: That which the [claimants] were entitled to receive was compensation not for the business profits or savings which they expected to make from the use of the land, but for the value of the land to them. No doubt the suitability of the land for the purpose of their special business affected the value of the land to them, and the prospective savings and additional profits which it could be shewn would probably attend the use of the land in their business furnished material for estimating what was the real value of the land to them. But that is a very different thing from saying that they were entitled to have the capitalized value of these savings and additional profits added to the market value of the land in estimating their compensation. They were only entitled to have them taken into consideration so far as they might be fairly said to increase the value of the land. Probably the most practical form in which the matter can be put is that they were entitled to that which a prudent man in their position would have been willing to give for the land sooner than fail to obtain it (at 1088).

The Pastoral Finance principle of what the prudent buyer would be willing to give for the land rather than fail to obtain it has been followed and applied in

numerous cases throughout the nation. In consequence numerous judicial decisions have emerged in regard to the concept of special value: Yates Property Corporation Pty Ltd v Darling Harbour Authority (1988) 64 LGRA 331. It has become well settled that the dispossessed owner is entitled to the market value under the Spencer principle and in addition to the land’s special value over and above the market value (if any). The Spencer test envisages two equal parties, an intending vendor and an intending purchaser, sitting at the negotiating table and reaching an agreed price for the land. Neither vendor nor purchaser is unduly anxious. Both are prudent. The Pastoral Finance test places the emphasis on the hypothetical vendor. The intending purchaser plays a lesser role. The land’s special value to the claimant gives rise to a price which the intending purchaser may not be willing to pay. In Commonwealth v Reeve (1949) 78 CLR 410 at 418 Latham CJ explained: The value of the land to the owner is what he can get for it. He can never get for it more than other people will give for it. But what other people will give for it is not unaffected by what the owner is prepared to take for it, and if the sale of the land would involve him in costs and expenses that fact may be an element which would affect the amount which he is willing to take. In some cases, however, such a fact would have no significance at all in relation to value; as, for example, when other suitable land was readily available which any person could buy.

The Pastoral Finance principle is the creation of the superior courts. It arises from the belief that market value alone is not sufficient, in some instances, to compensate the dispossessed owner fairly or adequately. A number of the resumption statutes now incorporate or embrace the principle. Lands Acquisition Act (Cth) s 55(2)(a)(ii) includes the value ‘of any financial advantage, additional to market value, to the person incidental to the [page 134] person’s ownership’ as one of the relevant matters to be taken into account in compensating the former owner ‘justly’. Land Acquisition (Just Terms

Compensation) Act (NSW) s 57 defines ‘special value’ as meaning ‘the financial value of any advantage, in addition to market value,’ which is incidental to the former owner’s ‘use of the land’. Land Acquisition and Compensation Act (Vic) s 40 defines ‘special value’ as meaning ‘the value of any pecuniary advantage, in addition to market value, to a claimant which is incidental to his ownership or occupation’ of the resumed land. Land Acquisition Act (Tas) s 27(1)(b) describes ‘special value’ as a ‘financial advantage incidental to the claimant’s ownership’ of the resumed land in addition to its market value. Lands Acquisition Act (NT) Sch 2 r 2(b) refers to ‘special value’ as ‘the value of any additional advantage to the claimant incidental to his ownership, or occupation, of the land’. Lands Acquisition Act (ACT) s 45(2)(a)(ii) uses the same words as the Commonwealth provision. The wording in each of the provisions is different. There is no authority which suggests that they do anything but incorporate the Pastoral Finance principle as developed, explained and approved by subsequent decisions of the High Court and the Supreme Courts. Each of the statutory provisions contains the term ‘advantage’. That is not a term that has been given undue prominence in some of the earlier judicial decisions. Describing ‘special value’ as that which exceeds market value in Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94 at 100, Bray CJ said that special value must: … arise from some attribute of the land, some use made or to be made of it or advantage derived or to be derived from it, which is peculiar to the claimant and would not exist in the case of the abstract hypothetical purchaser.

This passage was approved by Gleeson CJ in Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [80]. At [83] his Honour said that special value directs attention to the perspective of the vendor. At [292] Callinan J said that special value must be a quality that has an ‘economic significance’. Boland may have ‘left uncertain the precise scope of the concept of special value’: A E Radford, ‘Land Market Value and Special Value in the High Court’ (2000) 74 ALJ 773 at 781.

A claim for special value founders if there is no ‘advantage’ to the claimant. In Mooliang Pty Ltd v Shoalhaven City Council (2001) 114 LGERA 45 the land was occupied by a number of caravan owners who had a right to possession and thus an interest in the land. Their claim for special value was rejected on the ground that they had no special advantage over any potential purchaser of the land. The attributes of the land were not those that only the dispossessed owner could exploit. Pastoral Finance is a ‘landmark decision’ which must be approached in an objective fashion and not upon subjective matters such as ‘sentimental or emotional attachments’. Special value may not exceed the commercial value of the special ‘advantage’ of the land: Polegato v Griffith City Council (1988) 64 LGRA 265 at 269 and 272. In this case the claimant, after purchasing [page 135] the land, became aware of the possibility of resumption. The claimant had begun work on the foundations of a flat and shopping complex. Construction work ceased. Subsequently the council did resume the land. It was held that the land had a special value to the owner for the loss of redevelopment potential of the land. If the council had not resumed the land, the landowner might have had a claim under the Shun Fung principle (see 3.29). The Pastoral Finance principle was applied by the High Court in Dangerfield v Town of St Peters (1972) 129 CLR 586 where the land resumed was used and useable for rubbish disposal, but was unsuitable for building purposes, although it could be turned to recreational purposes. [O]ne supposes that the owner of the land, with his knowledge of it and its suitability for the special purpose to which he had been putting it, was considering buying that land for that purpose from a willing seller. The sum he would pay to secure that land for those purposes rather than lose it will be the value of the land to him. The knowledge and experience he had of the particular use to which it could successfully and lawfully be put must be reflected in that sum (per Barwick CJ at 590).

The owners were familiar with the business of the cartage of city garbage and its disposal. They knew that there was no other suitable land for such purpose available in the vicinity. They knew that they could use the land for this purpose for some considerable time. It was held that the land ought to be valued on the use being made, and desired to be made, of it and not at a price a purchaser wanting it for recreational purposes would pay for it. To value it for recreational purposes would be to deny the owner the value of the land to him and would be erroneous. Special value is a quality of the resumed land which the owner has demonstrated by the use to which it has been put or to which it could be put in the immediate future. The peculiar factor of the land itself needs to be identified. To find special value it is the peculiar factor that will extract a higher offer from a potential purchaser over and above the market value of the land. The claim for special value has nothing to do with the skill or expertise of the owner. In Boland, above (at [292]), a hypothetical illustration of special value was given of land used by a blacksmith operating a forge in the vicinity of a racetrack on land zoned for residential purposes as a protected non-conforming use, the right to which might be lost on a transfer of ownership or an interruption of the protected use. This gave the owner an additional economic advantage which the owner had by reason of ownership. Illustrations of special value can be found in some of the reported cases where the land was used or could be used for a peculiar advantage: a residence adapted with consulting rooms for a doctor (Griffiths v Municipal Tramways Trust [1924] SASR 270); agricultural land worked in conjunction with a neighbouring residence or farm buildings (Minister of Works (SA) v Robinson (1965) 13 LGRA 390); land adjacent to an existing business [page 136] which the owner wishes to expand (Purchen v Minister for Lands (1966) 19

The Valuer 729); a quarry (Enerver v Minister (1933) 3 The Valuer 29); a park (Cheyne v Landsborough Shire Council (1944) 20 QCLLR 42); a warehouse serving a chain of retail department stores (Sterling Finances Ltd v Minister of Water Resources (1984) 35 SASR 208); and a racecourse (Doomben Park Recreation Grounds Pty Ltd v Commonwealth (1954) 13 The Valuer 426). Each of these cases is restricted to its own facts. It could not be said, for example, that resumed land used for a quarry will automatically attract a special value. There may well be a ready market value for the quarry. There may be other sites nearby which could be used as a quarry. The existence of special value is unusual in most instances of resumption. The Pastoral Finance principle is an extension of Spencer, though extended and qualified slightly, to accord with the changed inquiry. What the court is being asked to determine is the price at which a person in exactly the same position as the claimant would ‘come together’ with a hypothetical person on the point of dispossessing the claimant, in circumstances in which the claimant would, in order to retain the land under threat, pay a sum representing the market value of the land, together with its ‘special advantages’ to the claimant, but would not in addition to the market value, pay more than the provable commercial value to the claimant of these special advantages. As before, the hypothetical expropriator would be willing, but not anxious, to allow the other party to pay what the land is fairly worth to the claimant: Commissioner of Highways (SA) v Tynan (1982) 53 LGRA 1 at 9. Pastoral Finance has been described by a former Justice as having ‘achieved almost biblical authority’ (J S Cripps, ‘Acquisitions — Principles and Recent Cases’ (1991) 31 The Valuer 338). That authority has waned in significance but the concept of special value has survived. In valuing the land for its special value, the expert valuer will be astute to identify the financial or economic advantages that the retention of the subject land would confer upon the original land holding, and the corresponding loss of profits or other pecuniary gain, and increase of burden or other outgoings, that will be directly caused by the removal of acquired land from its

established structure, in conjunction and interdependence with the retained land. Once again, the assumption that neither of the negotiators in the imaginary situation would overlook any ordinary business consideration, points the way to the sort of information that is to be expected from the valuer. He or she will suggest ways and means of excluding the provable losses and burdens identified by him or her. In doing so, the valuer will marshal the same sort of commercial considerations and relevant circumstances, mutatis mutandis (with the necessary changes having been considered), as were referred to in Spencer. In the expression of the valuer’s opinions, his or her understanding of the attitude, the knowledge, the experience, and the skills of the informed owner placed in the position of the claimant with respect to the land market, and vested with his or her interests and prospects, will play a prominent part: Tynan, above (at 10). [page 137] The scope and extent of the Pastoral Finance principle was modified in one significant matter. In Kennedy Street Pty Ltd v Minister [1963] NSWR 1252 the resumption deprived the claimant company of land proposed to be used in a profitable venture. It was held that by reason of the special relationship between the claimant company and the subject land, the land had a special value over and above its market value. Land would have a special value to the owner if that owner is in fact in a position where he can develop that site more expeditiously than could the hypothetical purchaser. In Arkaba, above, it was thought that the law was too widely stated in Kennedy Street. The High Court agreed with this observation in Boland, above. Gaudron J (at [100]), Gummow J (at [109]) and Callinan J (at [331]–[359]) agreed that Kennedy Street should no longer be followed. The concept of special value may, in certain circumstances, be difficult to distinguish from severance. In St John Ambulance Association of Western

Australia Inc v East Perth Redevelopment Authority (2001) 114 LGERA 112 the claimant used the resumed land as an ambulance depot. Part of the land was resumed. The site provided convenient access to a major road close to the city centre. In addition to severance damage the claimant also claimed for special value on the basis that it conducted an unusual activity on the site, namely, an ambulance service and the retained portion was not adequate to provide the service required. No suitable alternative site could be found. It was held that the claim should be characterised as special value due to the fact that the claimant could not move elsewhere. In Boland, above, Callinan J said that Pastoral Finance was not a complete exposition of the law relating to special value. He said (at [354]): The concept of a price that a dispossessed owner would pay over and above the market price (if he or she were the purchaser) rather than lose the land may not be an entirely reliable guide to what the special value to the dispossessed owner is. In theory all that the notional purchaser need pay is a dollar more than the next available purchaser (without a special interest in the matter) would pay. In the highly artificial construct that the law requires in resumption cases, the formulation by the Privy Council in Pastoral Finance may only become workable if the dispossessed owner as notional investor be regarded as having a right to bid or fix a price which included special value.

The liability of the claimant to pay capital gains tax (see 3.52) on the amount of compensation received does not give the land a special value to the claimant: Russellan Pty Ltd v Roads and Traffic Authority (NSW) (1992) 75 LGRA 263. Special value only rarely exists: Burns v Eurobodalla Shire Council (2006) 149 LGERA 227 at [18]. However, it was found to exist in Leichhardt Municipal Council v Roads and Traffic Authority (NSW) (2006) 149 LGERA 439 where the authority resumed community land used as open space from the council. By Local Government Act 1993 (NSW) s 45 the council could not sell the land. The primary judge found the market value to be $1,053,740 discounted by 80 per cent by reason of the statutory restrictions [page 138]

on the land, including the restriction on alienability. Allowing the appeal, it was held (at [32]) that where a restriction affects only the person whose land has been acquired, the restriction is not a matter that must be applied when determining its market value. The dominant test is in Land Acquisition (Just Terms Compensation) Act (NSW) s 54 which requires that the claimant be ‘justly compensated’. It is the value of the land to the owner that has to be ascertained (at[25]).

ONE OR MORE PURCHASERS [3.16] The Spencer principle assumes the existence of one vendor and one purchaser. Spencer does not provide the ultimate test of compensation: Turner v Minister of Public Instruction (1956) 95 CLR 245 at 267. It is a useful and conventional method of arriving at a basic figure to which must be added in appropriate cases further sums for disturbance, severance, special value to the owner and the like: Minister for Public Works (NSW) v Thistlethwayte [1954] 2 All ER 843 at 847. It is the entire land which must be valued as at the date of resumption: Turner, above (at 268). The land may be better suited to being sold in two parcels to two separate buyers. The two purchasers may together pay a bigger sum than a single purchaser buying the entire land. The land may be suitable for subdivision into blocks for purchase by 20 buyers. In ordinary circumstances the value of resumed land is the sum that would be paid by a single hypothetical purchaser who in turn would be prepared to subdivide and sell it in separate parcels. To hold that compensation for the resumption of a parcel of land, as to which all that can be said is that it is unsuitable for immediate subdivision, should be the net amount which the land would be estimated to produce to the owner if he or she were to subdivide it and sell the allotments him or her self, is to fall into error. It is the possibilities of the land and not its realised possibilities that must be taken into account: Turner, above (at 281).

There are circumstances where a plurality of purchasers could be assumed. The owner may be in the process of subdivision and selling individual and separate parcels. In Maori Trustee v Ministry of Works (NZ) [1958] 3 All ER 336 the Privy Council held that the court must contemplate the sale of the land as a whole, but in appropriate circumstances may contemplate a plurality of buyers of the whole. A single purchase is not an inevitable assumption: If the area of land taken, for instance, is so large as to be capable of building development in the hands of separate purchasers operating in different sections of the total area more than one hypothetical purchaser could be imagined; but for purposes of valuation the result would seem to be immaterial. The value of the whole in the open market for building development would seem to be equivalent to the sum of the values of the various parts if sold separately for the same purpose. The costs to the seller might be slightly greater in the one case than in the other, and this might lead to the assumption of a slightly higher market price in cumulo in the case of a sale to a number of purchasers; but,

[page 139] as the costs of realisation would be a factor to be taken into account in calculating the amount realised by the owner, the results at the end of the day should be very much the same. A similar situation might exist if there had to be assumed a sale of six houses by a willing ownerseller in the open market. He could hardly be expected to sell them in a single lot to one purchaser for less than he could realise by selling them separately to six purchasers (at 340).

The final sentence in this passage may be arguable. For reasons of speed and convenience a vendor may prefer to sell to a single purchaser of six houses rather than wait an unknown period to complete the sale of six houses one by one, even though the price paid for the six houses in a single purchase might be less than the price obtainable from six separate sales. In the process of ascertaining market value by the hypothetical sale, the answer to the question whether a plurality of purchasers or a single purchaser should be assumed, depends upon the facts and circumstances of each particular case, and the notion of a single hypothetical purchaser for the

whole property being valued is not in all cases an essential ingredient of the valuation process: Nelson v Housing Commission (NSW) (1962) 8 LGRA 408. In Herman v Albury-Wodonga (NSW) Corporation (1982) 27 The Valuer 568 it was found that of the total area resumed, 168 acres would be sold to one hypothetical buyer at $1,250 per acre and 62 acres would be sold to another buyer at $800 per acre. The court envisaged two hypothetical purchasers. If the nature of the land was such as would lend itself to purchase by two buyers rather than a single buyer, it could be valued accordingly. A prudent valuer would value the land in both ways to establish which would produce a higher price. In Flotilla Nominees Pty Ltd v Western Australian Land Authority (2003) 129 LGERA 65 an area of 1,226 hectares of agricultural land was resumed. Planning legislation prohibited sales other than in lots. There was no evidence to support any assumption that there would be a single purchaser for all of the five lots and that a single purchaser would pay less for five lots than they would for one. The fact that the authority had issued only one notice of acquisition and not five was irrelevant to the question of whether the authority paid less or more compensation. In this instance the five lots should be valued separately.

HIGHEST AND BEST USE [3.17] The resumed land may have one market value if sold for its existing use. It may have a different and higher value if sold for a different use. The land may be used at the date of resumption for agricultural purposes. As such it may have a value of $200,000. If it were sold for industrial purposes, assuming that zoning and planning restrictions permitted such use, it may have a value of $300,000. A hypothetical, prudent farmer might be prepared to pay $200,000. A hypothetical, prudent industrial company might be prepared to pay $300,000. The latter figure represents its highest and best use.

[page 140] It is a principle of resumption law that the land taken should be valued for its highest and best use. It is not a principle to be found in the resumption statutes. It is a principle to be found in past judicial decisions. It is to be found in a number of decisions of the High Court. In particular it is located in Turner v Minister of Public Instruction (1956) 95 CLR 245 at 264. The purpose of compensation proceedings is to find a figure that represents adequate compensation for the landowner for the loss of the land. Compensation should be the full monetary equivalent of the value to the owner of the land resumed (see 3.1). Earlier the High Court in Minister of State for Home Affairs v Rostron (1914) 18 CLR 634 stated that resumed land is to be valued for ‘its most advantageous purpose’. Subsequently to Turner in Crisp & Gunn Co-operative Ltd v Hobart City Corporation (1963) 110 CLR 538 the High Court referred to a distinction between ‘present use’ and ‘best economic value’, the latter representing its highest and best use. In Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [271] the High Court sealed its approval of the principle by stating that it is now settled, and for good reason, that dispossessed owners should be compensated for the value of their land ‘on the basis of its highest and best use’. As to how rock solid the principle of highest and best use is in respect of each of Australia’s nine jurisdictions may remain arguable. If one looks at the Land Acquisition (Just Terms Compensation) Act (NSW) s 55, it states that ‘regard must be had to the following [six] matters’. No mention is made of highest and best value. It refers only to ‘market value’ and ‘special value’ which it defines in ss 56 and 57 respectively. However, in the New South Wales case of Reysson Pty Ltd v Roads and Maritime Services (No 3) [2016] NSWLEC 69, the court explicitly referred to the need to determine the highest and best use of the land for the purposes of determining its market value. If one looks at the Valuation of Land Act 1960 (Vic) s 5A, it expressly

provides that land should be valued on the highest and best use. If the legislature found it necessary to embrace the principle in respect of valuation for rating purposes, why should it be implied in resumption legislation? More recently in Challenger Property Asset Management Pty Ltd v Stonnington City Council [2011] VSC 184, Croft J noted that while the present use of land is distinct from the highest and best use of land, the present use may coincidentally be the highest and best use. The concept of highest and best value being applied in the absence of statutory authority was discussed in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [167]. It was observed (at [182]) that the court was engaged on a valuation exercise and the inquiry was one of valuation, not calculation and not an assessment of damages. In South Australia the principle of highest and best value refers to the market value of the resumed land: Cieslinski v Minister of Works (1978) 20 SASR 55. It does not relate to any special value (see 3.15) that the land may have for the former owner. [page 141] In determining the highest and best use of the resumed land, the first task is to identify its market value for its current use. Where it is claimed that the land has a greater value for a different use from its existing use, the claimant needs to establish: (a)

the best use must be legal — it must come within the planning and building regulations;

(b)

the best use must be within the realm of probability — it must be likely;

(c)

the best use must not be speculative, conjectural, unrealistic or improbable;

(d) the best use must be of a kind to come within the imagination of a

hypothetical purchaser who appreciates and understands all the problems involved in a change of use but is nonetheless confident that the problems can be overcome or solved; and (e)

the best use can be carried out within a reasonably short time.

In respect of paragraph (e) the authorities warn of applying the Turner principle where the hypothetical development is not to be carried out within a reasonably short time: Cienda Pty Ltd v South Australian Urban Land Trust (1988) 66 LGRA 360 at 363; 15 Lorimer Street Pty Ltd v Secretary, Department of Infrastructure (1997) 97 LGERA 239 at 252. One of the principal problems which the claimant faces in claiming that the resumed land has a highest and best value over and above its market value for its current use is the effect of planning, zoning and environmental rules. The task may be easier for the claimant where a change from existing use has been approved prior to resumption. In CMB No 1 Pty Ltd v Cairns City Council (1997) 96 LGERA 306 it was held that where there is evidence of a strong possibility approaching near certainty that rezoning will occur that fact should be taken into account. The task is likely to be more difficult where a change of use is a possibility but by no means certain. The zoning of land by a town or country plan will always affect the highest and best use of land at a particular date. But the zoning does not create that highest and best use. The zoning may facilitate the immediate realisation of that highest and best use, or, at the other end of the scale, it may totally prevent such realisation. In between these two, zoning may work to postpone, or defer, full or any realisation of the value of the highest and best use, until some intermediate action is taken and completed. The highest and best use remains throughout, and, on the basis that the highest and best use on the resumption date is different from the permitted use as of right of the land under the zoning on that date, the dispossessed owner is entitled to receive the present value of that highest and best use of the land on the resumption date, so long as such present value exceeds the permitted use as of right value on that date, where the zoning provisions prevent the immediate realisation

of the highest and best value. The present value on the date of resumption, of its highest and best value probably would never be less than its permitted use as of right value, but it could conceivably be [page 142] no more than this, if the highest and best use is a prohibited use under the zoning tables, and on the facts there would be no likelihood of a rezoning. If the highest and best use on the said date is a permitted use by consent, only in exceptional circumstances, if at all, would its present value not exceed, to some extent, its permitted use as of right value. The amount by which it does exceed this last mentioned value will depend, among other things, on the time lapse between the date of resumption and the date of consent: Gallagher v Brisbane City Council (1975) 2 QLCR 368; Hill v R (1980) 7 QLCR 128. In Taylor v Port Macquarie-Hastings Council [2010] NSWLEC 113 the applicant sought a claim for compensation from the local council which resumed their rural land for the purpose of waste management. In considering the dispute regarding the compensation amount, the court explored the potential for the land’s highest and best use permitted by its zoning. In examining this, the court highlighted that it was necessary to consider the ecological issues, physical constraints and the council’s planning strategies as at the acquisition date. The hypothetical purchaser weighing up the degree of certainty or uncertainty in buying the resumed land for a price higher than its market value will take that matter into account in agreeing with the hypothetical vendor that the land does have a highest and best value higher than its market value. Moreover, there has to be an agreement as to what the different use will be. In Blocksidge v Queensland [1990] 2 Qd R 1 two adjoining parcels of land were resumed. Compensation was claimed on the basis that the highest and best use was a combined redevelopment. The Queensland Land Appeal Court

found that there was a strong possibility that the claimants would have acted in concert to obtain the best possible price but discounted the price by 10 per cent for the uncertainty. Dismissing the appeal, it was held that the assessing tribunal was entitled to estimate possibilities and probabilities in percentage terms when considering highest and best use. Determining whether resumed land has a better economic use than that to which it was being put at the time of resumption requires the valuer to assess probabilities. Where the valuer crosses the boundary into ‘unacceptable guess work’ the claim will be rejected: Gugusheff v South Australian Urban Land Trust (1990) 55 SASR 268. It may be added that a valuer’s opinion that the resumed land has a highest and best use needs to be supported by convincing evidence. In an appropriate case, the land resumed may be used for different purposes and thus have more than one highest and best use. This possibility arose in Carson v Minister for Environment and Planning (1990) 70 LGRA 215 where some 1,747 hectares of the claimant’s land was resumed for purposes of conservation and protection. At the date of resumption most of the land was zoned for use for a future national park. A portion was zoned for coastal protection. The rest retained its former non-urban zoning under an interim development order. It was common ground that the zoning restrictions applicable at the date of resumption were steps in [page 143] the resumption process and should be ignored and that the land should be valued as though it retained its non-urban zoning (see 3.21). On that basis agriculture was a permissible purpose of use without development consent and tourist development was permissible subject to discretionary interim consent. The minimum lot size for subdivision was 40 hectares. Consent was required from the relevant authority for clearing and

earthworks. It was held that on the evidence the highest and best use of the land at the date of resumption was for tourist development in respect of part of it and for rural and residential development in respect of the rest of it. The task for valuers ascertaining whether resumed land has an alternative use which gives it a value greater than its ‘ordinary’ market value appears to get more difficult year by year with the increasing number of controls, approvals and restrictions governing the use of land. This applies to both rural and urban property. It was observed in 15 Lorimer Street Pty Ltd v Secretary of the Department of Infrastructure, above, that a weakness of the Turner principle is that it ‘applies an apparently scientific formula to a great number of subjectively established variables’. In the 21st century it would seem to be more difficult to establish that resumed land has a different, more advantageous use than its existing use. It may be a principle that is of waning significance. Where it is established by the claimant that the Turner principle applies, there may, possibly, be one disadvantage. That value may impact adversely on the other heads of compensation. Generally speaking, where land has been valued on a highest and best use which is different from its actual use, the claimant cannot claim the value of improvements which will no longer be required when the land is put to its new notional use: Bergman v Holroyd Municipal Council (1988) 66 LGRA 68; Balquhidder Pty Ltd v Minister for Environment and Planning (1986) 40 SASR 63. A claim in which the claimant sought to argue that he was entitled to a sum greater for the resumed land than the highest and best value put upon the land by the claimant’s own valuer was described as ‘bizarre’ in Tatmar Pastoral Co Pty Ltd v Housing Commission (NSW) (1984) 54 ALR 155 at 156, the last resumption appeal emanating from Australia to be determined by the Privy Council.

LIBERAL ESTIMATE

[3.18] From time to time the courts have observed that if there is doubt as to the amount properly payable by way of compensation that doubt should be ‘resolved in favour of a more liberal estimate’: Dixon J in Commissioner of Succession Duties (SA) v Executor Trustee & Agency Co (SA) Ltd (1947) 74 CLR 358 at 374. Although not a resumption case, this principle has been followed in numerous reported cases before and after the High Court gave the principle the highest authority. It had been said that it is proper to approach the valuation of land resumed ‘in a generous rather than a niggardly spirit’: Latimer v North Coast National Agricultural and [page 144] Industrial Society (1938) 17 LVR (NSW) 67 at 73. Such obscurity as there is ought to be resolved in favour of the person whose property is taken away: Robinson & Co Ltd v Collector of Land Revenue, Singapore [1980] 1 WLR 1614 at 1621. The Executor Trustee principle has been followed in Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547 at 565 and in Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351 and applied in Muller v Department of Main Roads (1985) 29 The Valuer 237 and Gugusheff v South Australian Urban Land Trust (1990) 55 SASR 268. ‘Ceteris paribus [all other things being equal], a court is entitled to lean in favour of the dispossessed proprietor’: Doherty v Commissioner of Highways (No 2) (1974) 7 SASR 57 at 70. Executor Trustee concerned the valuation of land for the purposes of succession duty. Likewise Gregory, above, concerned the valuation of land for tax purposes. This raises the question whether it is a principle that applies to all valuations of land, including resumption, or whether it is restricted to the valuation of resumption land but excludes estimates of compensation for the other matters specified in the relevant resumption statute, such as severance. There is a question whether it applies to the total award in respect of

compensation including the valuation of the resumed land. There is a question whether the claimant’s loss for disturbance requires a doubt to be resolved in favour of the claimant. It is submitted that the Executor Trustee principle applies to the valuation of land but not to the other heads of compensation. The major problem in compensation claims for resumption concerns the ascertainment of the market value of the land. The courts recognise that the valuation of land is difficult and often uncertain. Arguably, there is less need in assessing compensation under the other heads for doubts to be resolved in favour of the claimant. Even where there is a claim for special value, it must be doubtful if, say, obscurity or uncertainty should be resolved in favour of the claimant. The Executor Trustee principle applies where there are conflicting valuations. The court is often faced with a hypothetical problem where the resuming authority tenders two valuations, one arriving at a figure of, say, $500,000, and the other $600,000. The claimant also tenders two valuations, one for $700,000 and the other for $800,000. None of the four valuations can be faulted on any principle of law or on any question of primary fact. Each of the valuers is experienced and knowledgeable. Each claims to have estimated the market value as accurately as possible. The claimant argues that under the Executor Trustee principle, all doubts should be resolved in favour of the valuation of the fourth valuer who has concluded that the market value is $800,000. In practice the courts do not resolve a dispute in this manner. The ‘liberal estimate’ principle does not imply that all doubts must, on the balance of possibilities, be resolved in favour of the claimant. It is submitted that the principle has limited scope and application. The duty of the court is to arrive at a figure that reflects the fair value of the land. The valuations are tendered to assist the court in determining that value. The valuations are not tendered on the basis that the highest figure [page 145]

must be accepted. The valuations are tendered to provide the court with the primary facts and the inferences that the expert valuer has drawn from those facts. Where the arguments are finely balanced in the mind of the judge, it may be that the judge will rely on the Executor Trustee principle. The application of the principle does not require the court to be unfair to the resuming authority. Faced with four different valuations, it may be the quality of the research and the reasoning that primarily influence the court in determining the market value of the resumed land.

ABSENCE OF BUYERS [3.19] The Spencer principle of willing seller and willing buyer to ascertain the market value of the land presupposes that if it were a real sale there would be a willing buyer. That is to say, if the land had been up for sale on the same day as the date of resumption there would have been buyers willing to buy the land. There is an assumption that, whenever land is put up for sale, someone will buy it at a price negotiated between the two parties. The question here concerns the situation where it is known and accepted as a matter of fact that if the land had been offered for sale on the same day as the date of resumption there would have been no buyer willing to buy it, with the exception of the acquiring authority. In these circumstances, the authority may argue that the land has no market value, only a nominal value. The owner may argue that the land does have a real value which cannot be measured or ascertained by the application of the Spencer principle. It is in this situation that the Raja principle has been applied (Sri Raja Vyricherla Narayana Gajapatiraju Bahadur Garu v Revenue Divisional Officer, Vizagapatam [1939] 2 All ER 317). In Raja the claimant owned swampy, malarious land in India. The land was compulsorily acquired by the harbour authority. The land contained a spring that yielded a constant and abundant supply of good drinking water which would be of particular usefulness to the harbour authority and to the oil companies and other industrial concerns which intended to use the harbour. The land was valued

as waste land, that is, as land with little market value. The owner contended that the land had a value for building purposes and as a source of water supply to the acquiring authority. The Privy Council held that in the circumstances of the present case, where the acquiring authority was the only possible purchaser, the land must be valued not merely by reference to the use to which it was being put at the time at which its value had to be determined, but also by reference to the uses to which it was reasonably capable of being put in the future. The owner was entitled to the potentialities even when the only possible purchaser of the potentialities was the authority purchasing under powers enabling compulsory acquisition. The Privy Council was considering s 23(1) of the Land Acquisition Act 1894 (India) which required compensation to be awarded for the ‘market value’ and damages sustained. Raja has been followed in Turner v Minister of Public Instruction (1956) 95 CLR 245 and in Collins v Livingstone Shire [page 146] Council (1972) 127 CLR 477 and in numerous other reported cases. Its reputation and authority have in the past rivalled Spencer. Raja contains a wide-ranging survey of how land should be valued in respect of its own factual situation and in other circumstances. But it predates the compensation provisions in all of the nine Australian jurisdictions. Much of what is said in Raja continues to be relevant. Nonetheless, the starting point in determining the value of resumed land is the particular statutory provisions applicable. Raja remains a helpful consideration of land valuation but its significance is diminishing. The factual circumstances occurring in Raja are unlikely to occur in Australia. It must be a rarity for valuers to be able to find as a matter of fact or opinion that resumed land has only one possible purchaser — the acquiring authority. There may be situations where the acquiring authority would be

the most likely purchaser and might be likely to pay more for it than any other purchaser. Raja does establish that the value of the land is not to be estimated simply at its value to the purchaser. Its role as a particular purchaser and the fact that it may desire it more than others is not to be disregarded. It remains the principle in Spencer that it is the value of the land to the vendor that has to be estimated. The Lands Acquisition Act (Cth) s 58 contains its own provision where there is no general market for the interest in the land acquired as does the Land Acquisition Act (Tas) s 31. The two provisions are different from each other. Neither provision attempts to adopt the Raja principle. Prima facie each provision contains a formula to apply where there are no hypothetical buyers willing to purchase the resumed land. The Raja principle requires a finding of fact that there are no relevant comparable sales and no willing purchasers and that the only possible purchaser is the acquiring authority. In Collins, above, the shire council constructed a reservoir partly on privately owned land and partly on its own land. After building the reservoir it compulsorily resumed the part which was privately owned land. The part of the reservoir on the claimant’s land had become part of that land. There were obviously no comparable sales, no willing purchaser and only the council wanted to buy it. It was held that the compensation to be awarded was the sum which the authority as a possible purchaser would give and the owners would accept for the land with all its improvements, each being willing but not anxious respectively to buy and sell, and not being under a compulsion to do so. Regard might be had to the cost of constructing the partially complete reservoir, not as a measure of price or value, but as a factor to be weighed in estimating the price which would be so agreed. The work carried out unlawfully upon the claimant’s land was not to be excluded from the compensation payable. Part of the reservoir had become the claimant’s property prior to resumption and that was not the fault of the claimant. That was the situation at the date of resumption. The application of planning or building controls and restrictions to land

may have the consequence that the only purchaser is the acquiring [page 147] authority. A town planning authority could, conceivably, set aside an area for a bus station. When the land is resumed by the transport authority in these circumstances it may be the only hypothetical purchaser. In Jovist Pty Ltd v Campbelltown City Council (1970) 19 LGRA 134 the claimant bought land in 1960 near a railway station for business and commercial purposes. In 1965 permission was sought but refused for the erection of shops. At the same time an order was made forbidding all development on the subject and neighbouring land. The land remained vacant and unused when it was resumed in 1968. It was held that the land could not be valued on the basis that commercial development was possible and would be permissible. A prudent purchaser would not take such a risk. It was also held that although the land could not be put to any use at the date of resumption it had a real market value by reason of its position and potentiality. It was apparent that the land would occupy a key position in the redevelopment proposed in close proximity to the railway station. The prospective purchaser would know this and would negotiate to purchase on the basis that he or she would be able to sell it for its full value to the authority needing it. As already indicated a distinction may need to be drawn between a factual situation where there is no possibility of any person other than the acquiring authority buying the resumed land and where there may be other possible buyers but the most likely is the acquiring authority. Again there may be a strong possibility, but no certainty, that a planning scheme may be implemented in the foreseeable future that has the effect, or the likely effect, of making the acquiring authority the only possible purchaser. In Bezjak v Blacktown Municipal Council (1969) 18 LGRA 281 the vacant land resumed was capable of being used for residential purposes but not for commercial

purposes. It was found that the highest and best value was for subdivision into residential lots and that although the land may have lost some of its economic potentiality, the Raja principle did not apply for the reason that the authority was not the only possible purchaser. Similarly in Marshall v Commissioner of Irrigation and Water Supply (Qld) (1973) 23 The Valuer 642, where 1,279 acres were resumed for irrigation, the highest and best use in the hands of the owner was for dry farming in conjunction with cattle farming, the land had no potential for irrigation and the acquiring authority was not the only possible purchaser; the Raja principle was distinguishable in principle and fact. In recent years the Raja principle has lost some of its relevance if only because there is a diminishing area of land that could be confidently described as ‘waste land’. But cases still emerge where the only likely purchaser is the authority exercising its power of resumption. In Bunney v South Australia (2000) 112 LGERA 213, applying the Raja principle, the South Australian Supreme Court held that where there is in effect only one potential purchaser, the value of the land is still what a willing purchaser will pay to a willing vendor. But it does not follow that where the likely sole purchaser had no pressing desire or need to purchase the land, that the purchaser [page 148] must pay a price far higher than any other reasonable purchaser would be prepared to pay. In other words, the acquiring authority is not expected to pay an exorbitant or outlandish sum. The award of compensation needs to be soundly based. One of the situations to arise where there is probably an absence of any buyer is where the authority occupies privately owned land but omits to resume the land. Nonetheless the authority commences construction of

public works. In some instances the authority may complete the work. In Geita Sebea v Territory of Papua (1941) 67 CLR 544 the territory fully constructed an aerodrome before it acquired the land. In Collins, above, the authority had partially constructed a dam when it then resumed the land. The High Court held that the compensation to be awarded was the sum which the authority as a possible purchaser would give and the owners would accept for the land with all its improvements, each being willing but not anxious to buy and sell, and not being under a compulsion to do so. Regard might be had to the cost of constructing a partially complete reservoir, not as a measure of price or value, but as a factor to be weighed in estimating the price which would be so agreed. A similar problem arose in Blue Mountains City Council v Mulcahy (1998) 45 NSWLR 577. In 1972 the council tarmacked the surface of a road believing that the road was on Crown land. The land was in fact owned by the electricity commission. Applying the Collins principle it was held that the work carried out unlawfully upon the land was not to be excluded from the compensation payable. It was argued by the authority that the Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1)(b) abrogated the Collins principle. Section 56(1)(b) provided, in substance, that in determining the market value of land any increase in the value of the land caused by the carrying out by the authority of the state, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, should be disregarded. The New South Wales Court of Appeal rejected this argument and held that if the legislature had intended to introduce a different basis from Collins upon which compensation was to be determined, it would have expected clear words to signify a change. In assessing compensation it was also held that the value of the improvements was not to be equated to the cost of the work carried out before resumption. Collins and Mulcahy were applied in Mood v Cowra Shire Council (1999) 103 LGERA 260 where the council had undertaken maintenance work on a road which it subsequently resumed.

ENHANCEMENT [3.20] In respect of valuation of land for resumption a principle emerged that resumed land should be valued disregarding any increase or decrease in the value of the land arising from the carrying out, or the proposal to carry out, the purpose for which the land was resumed. The principle is known today as the Pointe Gourde principle (Pointe Gourde Quarrying & Transport Co Ltd v Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565). Under the Pointe Gourde principle compensation for the compulsory acquisition [page 149] of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition. In the fifth edition of this book the Pointe Gourde principle was described as a principle of common law. That is incorrect. It is a judicial decision of the Privy Council but it was in effect applying the relevant legislation emanating from Trinidad. It has often been regarded for practical purposes as having been a common law decision. Subsequently the principle developed independently of express statutory provisions: Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196 at 205. In the course of time the Pointe Gourde principle has been given statutory recognition. Today each of the resumption statutes contains an express provision applying the principle to all compensation cases. However, the wording in each of the resumption statutes is not identical. It follows that it is the precise terms of the relevant statutory provisions which the court is required to apply: Parkes Developments Pty Ltd v Burwood Municipal Council (1969) 17 LGRA 257. Each provision has to be read initially to determine whether it is in truth giving effect to the Pointe Gourde principle or to a variation of it: Emerald Quarry Industries Pty Ltd v Commissioner of Highways (1976) 14 SASR 486 at 496, appeal dismissed (1979) 142 CLR 351.

It is a question of statutory construction whether the relevant statutory provision is intended to be an exclusive guide to the subject of enhancement or to clarify and embrace the Pointe Gourde principle. Lands Acquisition Act (Cth) s 60(c) provides that in assessing compensation, ‘any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the purpose for which the interest was acquired’ shall be disregarded. Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1)(a) provides that in determining market value ‘any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired’ should be disregarded. Land Acquisition and Compensation Act (Vic) s 43(1)(a) provides that ‘any increase or decrease in the market value of the interest in the land which is acquired arising from the carrying out, or the proposal to carry out, the purpose for which the interest was acquired’ should be disregarded. Acquisition of Land Act (Qld) s 20(3) provides that 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’. By s 20(4), in no case shall s 20(3) ‘operate so as to require any payment to be made by the claimant in consideration of such enhancement of value’. Land Administration Act (WA) s 241(2) provides that in valuing the land taken ‘any increase or decrease in value attributable to the proposed public work’ should be discounted. [page 150] Land Acquisition Act (SA) s 25(1)(h) provides that in assessing compensation ‘no allowance shall be made for any enhancement or

diminution in the value of the land in consequence of … any proposed or expected development of the land after its acquisition’. Land Acquisition Act (Tas) s 33(1)(b) provides that ‘any increase or decrease in the value of the subject land arising from the carrying out, or the proposal to carry out, the authorised purpose for which the land was taken’ is to be disregarded. Lands Acquisition Act (NT) Sch 2 r 8(c) provides that ‘any increase or decrease in the amount … arising from (i) the carrying out; or (ii) the proposal to carry out, the proposal’ is not to be taken into account in assessing compensation for market value. Lands Acquisition Act (ACT) s 50(1)(c) uses the same words as the Commonwealth provision. The Queensland provision, above, is significantly different from the other provisions, above. It restricts the enhancement provision to severance or adjoining land. Similar, but not identical, provisions are contained in s 55(f) of the New South Wales Act, in s 41(1)(e) of the Victorian Act, and in s 25(1) (j) of the South Australian Act. The fact that these three Acts make express provision in respect of enhancement increasing or decreasing the value of retained or adjoining land of the owner, does not, it is submitted, imply that the Pointe Gourde principle does not apply to other jurisdictions which do not contain a provision of this nature. The Queensland provision is different as it appears to be the only statutory provision governing enhancement. The facts in Pointe Gourde were that land belonging to a quarrying company was acquired for a naval base. The site proved a useful one to the acquiring authority because of its location and because the quarry was a good source of building material for the base. Compensation was based solely on the value of the land taken even though the presence of the rock in the quarry saved the cost of transporting, from a significantly greater distance, rock needed for construction. The owner claimed compensation for the value of the rock later taken by the authority from the quarry. This claim was rejected by the Privy Council on the ground that there was no other potential

purchaser of the rock and that it was therefore useful only for the scheme necessitating the expropriation. The principle to emerge is that no further compensation is payable for any value due solely to the scheme or project for which the land was needed. The term ‘scheme’ is not used in the relevant provisions of the resumption statutes. Most of the statutes refer to the ‘purpose’ of the taking. In Wilson v Liverpool City Council [1971] 1 All ER 628 at 634, Lord Denning MR spoke of a ‘scheme’ affecting the value of the land. In determining the effect of the ‘purpose’ of the resumption, it is submitted that the term does not bear an identical meaning to the term ‘scheme’ used in Pointe Gourde. [page 151] There are three kinds of enhancement. First, there is enhancement where land is resumed and the value of the land increases due to the purpose of the resumption. The factual situation in Pointe Gourde came within this kind of enhancement. Second, there is enhancement where land is severed, and the value of the retained portion by the owner is enhanced due to the purpose of the resumption. And third, there is enhancement where one parcel of land is resumed and the value of adjoining land owned by the claimant is enhanced. The principle does not apply to neighbouring land owned by another person. In addition there are the reverse circumstances where the values are decreased or diminished, not increased. The resumption statutes generally attribute enhancement as resulting from one of two factors. First, the carrying out of the proposal. Second, the proposal itself. In either event the effect of the carrying out of the proposal and the effect of the proposal require determination as at the date of resumption. Whether or not the value of the resumed land or retained land has been increased or decreased requires an estimate to be made. It is one of the factors that is difficult to value.

The onus of proving the existence of enhancement normally lies on the resuming authority: Emerald Quarry, above; Niall v Lacepede District Council (1987) 66 LGRA 32 at 40. The enhancement of value should be assessed according to the best evidence available to the court at the date of hearing, and the court may take some prospective view of the matter, to the best of its ability when the purpose or works for which the land is taken are completed: Zoeller v Brisbane City Council (1973) 40 QCLLR 198. In most instances one would expect the valuation attributable to enhancement to be assessed before the purpose of the resumption has been fulfilled and the work carried out. Presumably the onus of proving that the value of the land was decreased lies with the claimant. In San Sebastian, above, it was observed: A difficulty which arises in the application of [the Pointe Gourde] principle is that valuation is in the ordinary case based on market value and, if the proposed public purpose and the possibility or likelihood of resumption therefore has become known prior to the date of resumption, the market value at the time of resumption will probably reflect by way of increase or decrease the possibility or likelihood of resumption for that public purpose. Therefore that value cannot be accepted. Yet it is inevitably in most cases the starting point of the process of valuation. With the actual market value at the time of resumption as the starting point it is then necessary to determine whether that value has been depressed or elevated by the market’s foreknowledge of the possible or likely public purpose and consequent resumption. It is therefore inevitable in such circumstances that the public purpose has to be taken into account in the process of valuation but it can be taken into account only for that purpose ((1978) 140 CLR 196 at 205–6).

In short, the market price is ascertained. The amount attributable to enhancement is subtracted from the figure for market value. The amount [page 152] attributable to the decrease in market value is added to the figure for market value. In either event it is a hypothetical exercise. The Pointe Gourde principle applies to the increase or decrease in value of the resumed land caused by the acquiring authority’s purpose of the

resumption or the carrying out of works to achieve that purpose. Activities by other public authorities are not relevant. Nor are activities carried out by the acquiring authority which are not part of the scheme of resumption relevant: Rees v Minister for Planning and Housing (1991) 76 LGRA 167. In Melwood Units Pty Ltd v Commissioner of Main Roads (Qld) (1978) 19 ALR 453 (see 3.16), which was an appeal from the Supreme Court of Queensland directly to the Privy Council, the Pointe Gourde principle was applied to a resumption statute which was silent on the question of a decrease in value due to the purpose of the taking. Indeed the Privy Council made no reference to the Public Works Resumption Act 1905 (Qld) under which the land was resumed. It was held: Under the Pointe Gourde principle the landowner cannot claim compensation to the extent to which the value of the land is enhanced by the very scheme of which the resumption forms an integral part: that principle … operates also in reverse (at 457).

The Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1)(a) was considered in Croghan v Hawkesbury City Council (1998) 99 LGERA 375 where the land was resumed by the council and the market value was agreed. The council owned adjoining land and was known to be interested in acquiring the resumed land. It needed extra land to operate a suitable method of disposing of effluent from a sewerage treatment plant. The owner of the resumed land claimed that an additional amount should be added to the market value for the decrease on account of the adjoining owner’s influence. The court awarded a premium of 10 per cent on the market value. The relationship between the Raja principle (see 3.19) and the Pointe Gourde principle was discussed in Roads and Traffic Authority (NSW) v Perry (2001) 52 NSWLR 222. The land resumed was used for grazing. It also contained a disused quarry. The land was resumed for road purposes. The claimant contended that the land had a potential for access of fill suitable in the construction of an embankment for a new section of the highway that increased the amount of compensation. The New South Wales Court of Appeal held that both principles could be applied in assessing compensation

but in this instance the claimant had failed to identify the scheme underlying the resumption as required by the Pointe Gourde principle. The Pointe Gourde principle was considered at length by the House of Lords in Waters v Welsh Development Agency [2004] 2 All ER 915. In 1985 a development scheme was planned to construct a barrage in a river estuary. Work on the barrage started in June 1994. It was anticipated there would be a loss of local wetlands. A possible location was considered for the establishment of an alternative wetland nature reserve. In October 1995 the European Union put pressure on the British Government to [page 153] implement the mitigating environmental measures. Land required for the establishment of a wetland nature reserve was compulsorily acquired. Under the Pointe Gourde principle, compensation could not include an increase in value arising from the use or proposed use to be made of other land also being acquired which was entirely due to the scheme underlying the acquisition. The issue arose whether the scheme affecting the land was its intended use as a nature reserve or was the construction of the barrage. The Lands Tribunal, the Court of Appeal and the House of Lords were unanimous in deciding that it was the barrage scheme that was underlying the acquisition. The acquisition of the land for a wetlands nature reserve was an integral part of the barrage scheme. Whether a different answer would have been given to the question if the key word was ‘purpose’ and not ‘scheme’ is open to argument. Three of the law lords (one of the five dissented) gave lengthy judgments in reviewing the Pointe Gourde principle. The principle was described as supplementing the legislation by one law lord and being ‘fraught with complexity and obscurity’ by another. Lord Nicholls said that there was ‘no

magical detailed formula’ providing a ready answer in every case in applying the principle but gave the following pointers: (i)

The principle should not be pressed too far. It should be applied in a manner which achieved a fair and reasonable result.

(ii) A result was not fair and reasonable where it required a valuation exercise which was unreal. (iii) A valuation result should be reviewed with caution when it would lead to a gross disparity between the amount of compensation payable and the market value of comparable adjoining properties which were not being acquired. (iv) When the principle was applied as a supplement to the legislation it should be applied by analogy with the legislation. (v)

While normally the scope of the intended works and their purpose would appear from the formal resolutions or documents of the acquiring authority, that formulation was not to be regarded as conclusive.

(vi) When in doubt a scheme should be identified in narrow rather than broader terms. The High Court also took the opportunity to discuss the Pointe Gourde principle in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489. Land on the foreshore had previously been used for a petroleum terminal. The owners applied to have it rezoned by the council and a contract to sell the land was on foot when it was resumed. Compensation was assessed by the Land and Environment Court and was paid amounting to $14,375,000. On appeal to the Court of Appeal the matter was remitted to the primary judge. The primary judge confirmed the original assessment. On a second appeal the matter was remitted again to the primary judge. The claimants appealed against both [page 154]

appeals to the High Court. Both appeals were dismissed. It was held that s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act (NSW) relevantly refers to the decrease in the value of the land caused by the carrying out, or ‘the proposal to carry out’ the public purpose for which the land was acquired and thus links the proposal to that of the resuming authority. Only the decrease in value attributable to the authority was to be disregarded in assessing the market value. The authority’s proposal was not to be aggregated with the anterior discussions and agitations, by the council and others in classifying the land as public space. In holding that there was a ‘unity of purpose’ between the council and the state government for the purpose of the acquisition, the primary judge erred in law. It was observed that caution is to be exercised in seeking to apply judicial decisions turning on ‘principles’ derived from early English resumption statutes expressed in terse or sparse language. The machinery of modern land use regulation has become complex, its procedures protracted and the range of participating public bodies is extensive. Modern legislation dealing with compulsory acquisition is, as a consequence, more comprehensively drawn and the terms of that legislation are now determinative. It is not to be assumed that statutes, such as the Land Acquisition (Just Terms Compensation) Act (NSW) reproduce an understanding of ‘principles’ derived by way of gloss upon the sparse terms of the earlier legislation. What was meant by reference to the term ‘scheme’ is not to be found in the New South Wales Act. Waters was not considered by the High Court in Walker but it was by the Court of Appeal in Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd (2005) 63 NSWLR 407 at [34] where (at [85]) it was observed that the lesson of San Sebastian (see 3.21) was that no narrow view should be taken of zoning restrictions which may affect the value of the resumed land. Differences in legislation may result in Waters having little impact in Australia.

RESTRICTIONS PRIOR TO RESUMPTION

[3.21] Prior to the date of resumption a number of restrictions may have been placed by government departments or instrumentalities on the use of the land. Those restrictions may have a significant effect on the market value of the land resumed. Some of the restrictions may have been placed on the land as a step leading up to its resumption. The San Sebastian principle (Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196) applies where restrictions are placed on the land as a prior step to its resumption. The principle requires the effect of those restrictions to be deducted from the assessment of the market value of the land. In San Sebastian the prior zoning of the land and the prior restrictions placed on the use of the land were found to be but a step in the resumption process. The High Court held that in valuing the land it was necessary to ignore that restriction on use. Having discussed the Pointe Gourde principle and the need to determine whether the value of the resumed land had been [page 155] depressed or elevated by the market’s foreknowledge of the possible or likely purpose and consequent resumption, the court then said: A greater difficulty in applying the principle of assessment which is enacted in s 124 of the Public Works Act 1912 (NSW) arises as a result of planning and land use legislation and the processes whereby statutory restrictions on land use are imposed. Restrictions on land use, so that, explicitly or practically, use is restricted to a use for a public purpose for which the land might be resumed, are commonly imposed as a result of consultation with or direction by the public authority concerned with the carrying out of the particular public purpose. In such a case where there is a direct relationship between the restriction on land use and the proposed establishment of the public works the effect on value of the zoning or restriction ought to be ignored (at 206).

The High Court recognised that the relation between the zoning or restriction and the proposed public works may not be clear cut and may be difficult to identify as being a step towards resumption: One can take an example away from the present case. Assume an area of land on the outskirts

of existing settlement, and assume a planning authority concerned to designate land uses in a planning scheme. The land is designated open space. Thereafter it is resumed for the purpose of a public reserve. The fact that the land was zoned as open space may have depreciated its value. Does the resuming authority pay compensation at the depreciated value of open space or at some other value? The question cannot be correctly answered without knowing whether there was any connexion between the zoning as open space and the subsequent resumption. If the zoning was done with the intent or in anticipation that the land should be resumed for a purpose such as a public reserve or if the zoning was proposed or dictated by the resuming authority then s 124 requires that the zoning be ignored. It is only a step in the process of subsequent resumption. But in other circumstances the resumption may be unconnected with the act of zoning. It may be that the resuming authority selects the land for a resumption because it is zoned open space; if it does so it is doing no more than ensuring that it, as well as others, conforms to the planning scheme. In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning; rather, the zoning leads to the public purpose and consequent resumption (at 206–7).

Having identified two factors to be considered in respect of enhancement, namely, the proposal itself and the land use regulations relating to the proposal, the High Court identified an added complexity when the planning scheme is only in the course of preparation and the land is meanwhile subject to interim development control. It was held that, although interim zoning in accordance with a planning scheme that was being prepared and that was likely to zone land in a way which, in a general sense, was related to the kind of purpose for which it might be resumed was a possibility which could not be ignored in assessing the value of the land, a particular designation in a proposed scheme which reflected on intended use for a public purpose must be ignored. [page 156] The High Court examined the application of the San Sebastian principle in Queensland v Murphy (1990) 95 ALR 493. In this case the subject land was zoned rural and was situated near a beach upon which there was a worldrecognised turtle rookery. Prior to resumption, an application for rezoning to

residential was rejected because of the desire on the part of the Queensland Government to preserve the rookery. The land was resumed for an environmental park. In this case the zoning had been preserved for the purposes of the resumption. The Supreme Court of Queensland held that in valuing the land, the value to be ascertained was the value to the owner in its actual condition at the time of resumption with all its existing advantages and disadvantages and with all its possibilities, excluding any advantage or disadvantage entirely due to the carrying out of the proposal, that is, an environmental park with the rookery, involving the acquisition (Murphy v R (1989) 68 LGRA 286). On appeal to the High Court it was held that the purpose of the San Sebastian principle was to ensure that a resuming authority ‘does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential never existed’ (at 496). The principle applies in cases where there is a direct relationship between the planning restriction and the proposal of which resumption is a feature and extends to cases where there is merely an ‘indirect relationship’, provided that the planning restriction can properly be regarded as a step in the process of resumption. In this case there was a question whether the existence of the turtle rookery adjacent to resumed land was an attribute of the resumed land. The task was to inquire first into the value of the land on the footing that there was no possibility of its ever being turned to other than presently permitted purposes and then show how much extra should be allowed for such chance as there was of securing permission for another use at some future date. In claiming that the San Sebastian principle applies, the first task is to identify the restriction that was placed on the resumed land prior to the date of resumption. The second task is to assess its impact on the land. Did it lessen or increase the value? Or did it have no impact on the value? Arguably in Murphy the rejection of the application to rezone the land from rural to residential might not have altered its value. It could be argued that the possibility of the application being successful could have been rated most

unlikely. On the other hand if it could have been shown that the rejection of the application was unexpected then the rejection might have decreased the value of the land. The third task is to identify the direct or indirect link to the decision made by the authority to resume. Was the rejection of the application due to the intention of the authority to resume at a later date? In many instances the authority may have had no intention to resume at a later date. It could have been content for the status quo to be preserved. It may only have been some time after the rejection of the application for rezoning that the authority made up its mind to resume. Other factors may have intervened to influence the authority. On the information available to the claimant when making a claim, the claimant [page 157] may not know what the intention was of the authority at the time it rejected the application. The intention of the authority may be difficult to ascertain. Even the authority may not be able to speak with clarity on precisely why it rejected the application and whether it was contemplating resumption. In Kiley v Minister of Water Resources (1981) 27 SASR 274 the land compulsorily acquired was subject to restrictions imposed by two sets of regulations, the first being general zoning regulations and the second to conserve and enhance the River Torrens to which the land was adjacent. The land was suitable for residential purposes but under both sets of regulations the consent of the council was required for the erection of any building on the land, and it was unlikely that such consent would be given. Applying Pointe Gourde and San Sebastian it was held that the crucial question was: Was the zoning done with the intent that the land should be resumed for a public purpose or in anticipation of such resumption, or was the zoning proposed or dictated by the resuming authority? If so, s 25(1)(h)(c) [of the Land Acquisition Act (SA)] requires that the zoning be ignored. Perhaps the test may be expressed in less formal language: Was the zoning done with an eye to subsequent resumption? (at 282).

It may be argued that the longer the period between the date of the restriction being imposed and the date of resumption, the more difficult it is likely to be to establish that the restriction was but a step towards the resumption of the land. If the restriction takes the form of rejection of an application for a change of zoning, as in Murphy, above, that decision in rejecting the application is clearly identifiable to the particular land. But if neighbouring landowners had had similar applications rejected and had not had their land resumed at a later date, it may be more difficult to establish that the rejection changed the value of the land. It has to be shown that the restriction is closely related to the particular land resumed. In Rowan v Minister for Works (WA) (1986) 62 LGRA 389 in 1967 the land resumed was then zoned as industrial. In 1973 the acquiring authority selected the land as a future site for a sewerage treatment plant. In 1976 it advised that the scheme was not likely to eventuate for many years. In 1977 the land was zoned as non-urban rural. In 1978 it was resumed for a sewerage treatment plant. It was held that the zoning in 1977 was not influenced by the acquiring authority. There was no relevant relationship between that zoning and the public purpose for which the land was zoned. In New South Wales the land owned by local councils is classified as community land or operational land. Community land is reserved for community uses such as sports grounds and parks, with restrictions on development and leasing, and the land cannot be sold. However, the Local Government Act 1993 (NSW) provides a mechanism to reclassify community land as operational: s 30. It has been held by the New South Wales Court of Appeal that discounts for the classification of community land is not appropriate: Leichhardt Council v Roads and Traffic Authority (NSW) (No 3) (2006) 149 LGERA 439. In some instances where there is a restriction on development of the resumed land, the valuers may need [page 158]

to assess the possibility of the restriction being removed or modified. In Blacktown City Council v Roads and Traffic Authority (NSW) (2006) 144 LGERA 265, appeal dismissed Roads and Traffic Authority (NSW) v Blacktown City Council [2007] NSWCA 20, a small portion of the owner’s land was resumed. The whole of the owner’s land was classified as community land. The authority assessed the value of the resumed portion at $30,500, having discounted the value at 85 per cent to reflect the open space zoning and having discounted the value a further 50 per cent to reflect the effect of s 45(1) of the Local Government Act 1993 (NSW) which provided that the land could not be sold. The council’s valuer assessed the value at $270,000, having discounted the value by a single figure of 50 per cent. It was held that both valuations accorded with proper valuation principles and approaches used by the courts in similar cases. However, on the evidence, there was a high probability of the restrictions being removed which gave the resumed land a value of $270,000. However, where the restriction applies only to the owner of the land, then in New South Wales it has been held that it should not be taken into account in determining the market value of the land being acquired: Leichhardt Council v Road and Traffic Authority (NSW) (No 3) (2006) 149 LGERA 439. This decision held that the previous principle that the land owner was only entitled to the ‘value to the owner’ as set out by the High Court in MacDermott v Corrie (1913) 17 CLR 223 (affirmed in Corrie v MacDermott [1914] AC 1056 by the Privy Council) did not apply to the Land Acquisition (Just Terms Compensation) Act (NSW). This is illustrated in the following cases: In Sutherland Shire Council v Sydney Water Corporation [2008] NSWLEC 303 the land was held by council as trustee. A declaration of trust required the council to hold the land for a public park, public reserve or public recreation only. The court held that the restriction arising from the existence of the trust applied to the trustee owner and should not be taken into account is assessing market value.

In Willougby Council v Roads and Maritime Services [2014] NSWLEC 6, part of the land was also held by council as trustee with a declaration of trust which required the council to hold the land for a public park, public reserve or public recreation. The court noted the trust was a charitable trust and council was entitled as trustee to claim for the full value of the land. The restriction arising from the existence of the trust applied to the trustee owner and should not be taken into account is assessing market value. Another part of the land was vested in council by a grant from the Crown which was subject to a reservation if ‘required for public ways’. The court held that this was also a restriction that only affected the person whose land was being acquired and should not be taken into account in determining market value. A similar position applies where a local council is the trustee and manager of Crown land in New South Wales: Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of NSW (1997) 96 LGERA 75 (see 1.21). [page 159] However, in 2001 the Crown Lands Act 1989 (NSW) was amended by the insertion of s 106A (Limits on compensation payable to reserve trusts). This section restricts compensation to the heads of compensation to following matters: (a) the value of any improvements carried out on the subject land; (b) losses attributable to reduction in public benefit from the loss of public open space arising from the acquisition of the land; (c) the reduction in value to the manager of improvements on other land that is caused by the acquired land being severed from other land under management; (d) the cost of acquiring additional land having environmental benefits comparable to the acquired land; (e) losses attributable to disturbance other than losses arising from termination of a lease or licence over the land being acquired. See

Tempe Recreation (D500215 & D1000502) Reserve Trust v Sydney Water Corporation [2013] NSWLEC 221. The restrictions to the heads of compensation are now also extracted in s 2.24 of the Crown Land Management Act 2016 (NSW).

VALUING POTENTIAL [3.22] By the Lands Acquisition Act (Cth) s 57, where the market value of an interest in the land acquired by compulsory process is assessed upon the basis that the land had potential to be used for a purpose other than a purpose for which it was used at the time of acquisition, compensation shall not be allowed in respect of any loss or damage that would necessarily have been suffered, or expense that would necessarily have been incurred, in realising that potential. Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 61, Land Acquisition and Compensation Act (Vic) s 41(2), Lands Acquisition Act (NT) Sch 2 r 3 and Lands Acquisition Act (ACT) s 47 are similar but not identical to this provision. The Acquisition of Land Act (Qld), the Land Administration Act (WA), the Land Acquisition Act (SA) and the Land Acquisition Act (Tas) do not contain a similar provision. It would seem doubtful whether any court in these four jurisdictions would be prepared to imply such a limitation on the valuation should the issue arise.

DISTURBANCE [3.23] The term ‘disturbance’ is used in resumption law to refer to the loss or damage that a dispossessed owner incurs when required to vacate the land taken. It relates to the moving process from the resumed land. Each of the resumption statutes contains provisions governing such damage or loss but only some use the term ‘disturbance’. Lands Acquisition Act (Cth) s 55(2)(c) provides that ‘any loss, injury or damage suffered, or expense reasonably incurred’ by the former owner shall

be one of the matters to be taken into account in the assessment of compensation. Land Acquisition (Just Terms Compensation) Act (NSW) s 55(d) provides that ‘any loss attributable to disturbance’ must be taken into account in determining the amount of compensation. Section 59 defines [page 160] the meaning of that expression in s 55(d) including such items as legal costs, valuation fees and financial costs incurred in relocating. Section 59(d) expressly includes stamp duty reasonably incurred in purchasing other comparable land. Land Acquisition and Compensation Act (Vic) s 41(1)(d) provides that ‘any loss attributable to disturbance’ must be one of the factors to be taken into account in assessing the amount of compensation. The term ‘disturbance’ is defined in s 40. Acquisition of Land Act (Qld) s 20(1)(b) provides that in the assessment for compensation, in every case the claimant’s costs attributable to disturbance must also be taken into account. Section 20(5) provides a comprehensive list of what types of costs may be attributable to disturbance. Land Administration Act (WA) s 241(6) does not use the term ‘disturbance’ but provides that regard is to be had to the loss or damage, if any, sustained by reason of a number of listed matters including removal expenses with a residual provision to cover other factors which the court considers it ‘just to take into account’. Land Acquisition Act (SA) s 25(1)(b)(ii) requires the loss occasioned by ‘disturbance’ to be taken into account in assessing compensation. The term ‘disturbance’ is not defined. Land Acquisition Act (Tas) s 27(1)(f) requires ‘any disturbance relating to any loss or damage suffered, or cost reasonably incurred’ by the claimant to

be one of the matters to be considered in respect of the compensation payable. Lands Acquisition Act (NT) Sch 2 r 2 refers to ‘disturbance’ in the heading and r 2(d) refers to ‘any loss sustained, or cost incurred, by the claimant as a natural and reasonable consequence of’ the acquisition or the service on the claimant of the notice of proposal. Lands Acquisition Act (ACT) s 45(2)(c) is similar to the Commonwealth provision, above. The concept of compensation for disturbance was created by the English courts in the 19th century. Discussion today begins conveniently with the English Court of Appeal’s examination of disturbance in Horn v Sunderland Corporation [1941] 1 All ER 480. In 1936 a housing authority compulsorily acquired 102 acres. The owner, a farmer, used the land largely for rearing pedigree horses, even though the land was far more valuable as a building site at the time of taking. Under the legislation in force at the time the owner was entitled to the value of the land as farm land plus the cost of moving to another site and for the ‘disturbance’ of the farming operations. Instead the claimant was awarded compensation on the basis of the land’s greater value for residential construction and development. No additional claim was allowed for removal and disturbance. The claimant was receiving compensation for the highest and best use of the land (see 3.17) and for that reason was not entitled to disturbance. [page 161] The issue may be illustrated. A claimant owns land that is resumed. The land was used on the date of resumption for farming purposes. As such it had a market value of $500,000. The costs involved in vacating the land and moving elsewhere amounted to $20,000. The claimant is entitled to the market value ($500,000) plus disturbance ($20,000), a total of $520,000.

However, the land is situated on the fringes of an urban area and the planning authority has given notice that the land is likely to be rezoned for residential purposes. The valuers are agreed that in these circumstances the highest and best market value is $800,000. The claimant is entitled to that amount but is not entitled to any amount attributable to disturbance. In Horn it was held that, since the value of the land as building land could only be realised by the removal of the business of horse-breeding, compensation for disturbance could not be awarded because the value of the land as building land exceeded the sum of the value of the land as agricultural land plus the loss by disturbance. If the sum for disturbance had exceeded the difference between the market value of the land as agricultural land and the market value of the land for residential purposes, the claimant could have been entitled to the difference. Horn is today of limited relevance in Australian resumption law. It is a convenient starting point in a discussion of the subject. A leading authority on the topic of disturbance in Australia is Commonwealth v Milledge (1953) 90 CLR 157 where the dispossessed owner had used the resumed land for the purposes of a dairy and racing stud, but the land had been valued as market gardening land, the purpose for which it was best adapted. The trial court allowed a sum of money for business disturbance for loss in respect of pasture for the owner’s cattle, loss on the sale of the dairy herd, and loss of a year’s natural increase in the stud-breeding business. The High Court held it to be an error to make an allowance for disturbance of a business by way of addition to a valuation placed upon the land as a site adapted to a more profitable use than that to which the dispossessed owner was putting it. In other words, prima facie, a claim for disturbance depends upon the land being valued for the purpose for which it was being used at the date of resumption. A claim for disturbance cannot be sustained where the land has been valued for some more profitable use than that to which the dispossessed owner was putting it. It was said: Though it was considered convenient in this case, as it often is, to deal with this topic as a

separate matter, it must always be remembered that disturbance is not a separate subject of compensation. Its relevance to the assessment of the amount which will compensate the former owner for the loss of his land lies in the fact that the compensation must include not only the amount which any prudent purchaser would find it worth his while to give for the land, but also any additional amount which a prudent purchaser in the position of the owner, that is to say with a business such as the owner’s already established on the land, would find it worth his while to pay sooner than fail to obtain the land. But a prudent purchaser in the position of the owner would not

[page 162] increase his price on account of the special advantage he would get by not having to move his business, unless the amount he would have been prepared to pay apart from that special advantage was the value of the land considered as a site for that kind of business. Disturbance, in other words, is relevant only to the assessment of the difference between, on the one hand, the value of the land to a hypothetical purchaser for the kind of use to which the owner was putting it at the date of resumption and, on the other hand, the value of the land to the actual owner himself for the precise use to which he was putting it at that date. It follows that if in the first instance the land is valued on the basis of its suitability for some more profitable form of use, there can be no justification for making an addition to the value so ascertained because of disturbance (at 164).

The Milledge principle was applied in Universal Sands & Minerals Pty Ltd v Commonwealth (1980) 30 ALR 637 where the trial court in assessing compensation of an equitable profit à prendre (extracting basic raw materials) made no allowance for disturbance, on the basis that the items of plant and equipment of the owner were unsatisfactory and would have to be substantially replaced before the owner could expect to carry on its operation at the relevant sites at a profit and that at the date of acquisition it was operating at a loss. The Federal Court held: Disturbance is not a separate head of compensation. In some circumstances, it is a relevant factor in assessing the value of land or an interest in land to the owner for the use to which he was putting it at the date of acquisition. Where relevant, it is calculated by reference to economic loss which can, or should have been, expected to be sustained, or costs which can or should have been expected to be incurred by the claimant as a natural and reasonable consequence of the acquisition (at 640).

In Taylor v Roads and Maritime Services [2016] NSWLEC 138, an issue arose

as to whether a future intended use of acquired land was compensable. In this case, the Roads and Maritime Services (RMS) acquired the applicant’s land which was used as a blueberry farm with the purpose of upgrading the Pacific Highway. However, a dispute arose with the applicant seeking a larger amount of compensation for the land acquired. The applicant claimed that he intended to plant 2 hectares of blueberries in the year following the acquisition. In light of this, he argued that the compensation he was entitled to should account for the profits he expected to receive from the additional blueberry plants. The court accepted the RMS’s argument which was that because the 2 hectares of blueberries did not exist at the date of acquisition, it did not constitute an ‘actual use’ of land and therefore was not part of either the farm being relocated or actual lost profits. The court concluded that the applicant could not rely on the expected yield from the additional 2 hectares of blueberries which were intended to be planted on what had become acquired land. Each of the resumption statutes, with the exception of the Acquisition of Land Act (Qld) and the Land Administration Act (WA), makes reference to disturbance, or to the matters previously regarded as being part of [page 163] disturbance, and treats disturbance as a separate head in the assessment of compensation. The Milledge principle was applied by the High Court in Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538 in respect of legislation which expressly included disturbance as a factor to be considered. In this case one of three separate parcels of land used in combination by the owner in a general business of a timber merchant was compulsorily acquired. The parcel had been used as a scantling yard. The owner transferred its scantling yard to other land owned by it. It was found that the parcel compulsorily acquired had a higher market value for a

different use than for its present use as a scantling yard. It was held that no addition to the market value of the land acquired should be allowed for disturbance where the market value exceeds the ‘present use’ value by an amount in excess of any loss resulting from the disturbance. The current resumption statutes clearly treat disturbance, or its equivalent, as a distinct and separate factor. In Flannery v Cohuna Sewerage Authority (1976) 51 ALJR 135 the High Court made no adverse comment at compensation being calculated under six separate heads of (a) market value, (b) disturbance, (c) severance, (d) injurious affection, (e) solatium and (f) interest. The fact that it appears to be accepted that it is a separate head does not invalidate the Milledge principle. It remains inappropriate to award disturbance if the land is valued for a higher purpose than that to which it was put by the occupier: Brown Bros (Marine) Holdings Pty Ltd v New South Wales Land and Housing Corporation (1991) 72 LGRA 50 at 55. Where a business is conducted on resumed land a hypothetical buyer of the business may offer a sum that represents both the value of the land and the value of the business. The hypothetical buyer may offer an amount of money that represents both components and not differentiate between the two. In this situation it may be convenient to regard disturbance as part of the value of the land. While the emphasis of the authority is on the taking of the land, the claimant’s emphasis may focus on the loss of the business or on the cost of its relocation if that is possible. Where part of an owner’s land was resumed for highway construction in Roads and Traffic Authority (NSW) v Peak [2007] NSWCA 66 and the construction of the highway took place closer to the residence, expert acoustic evidence was called regarding that noise. The expert evidence was generated months after the date of resumption but it was held that there was no error in admitting the evidence. The noise factor came under the heading of disturbance under s 59 of the Land Acquisition (Just Terms Compensation) Act (NSW). Disturbance is a different concept from special value of the land (see 3.15).

It is common ground in both concepts that the land has a market value. The market value is determined by objective criteria under the Spencer principle. In the hands of the dispossessed owner the land may have a special value over and above its market value. Alternatively, the land may have a market value but in addition have a ‘disturbance value’ which arises out of the loss of the land and is reasonable. The special [page 164] value (see 3.15) and the disturbance value may differ and the claimant is entitled to whichever is the greater. The claimant is not entitled to both as it amounts to double recovery (see 3.24). Both disturbance and special value have their origins in the common law but are now recognised, and possibly modified or enlarged, by the current statutory provisions. In St John Ambulance Association of Western Australia Inc v East Perth Redevelopment Authority (2001) 114 LGERA 112, the claimant conducted an unusual activity on the resumed site, namely an ambulance service, but was unable to move to another suitable site. This was characterised as special value and not as disturbance due to the fact that the claimant could not move. The relationship between special value and disturbance was discussed by the Privy Council in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 1 All ER 846. The claimant conducted a mini-mill business using scrap metal at Junk Bay in Hong Kong. In 1985 the land was resumed. July 1986 was fixed as the date of resumption. The claimant was unable to find another site. The business was closed down and the claimant vacated the resumed land in January 1987. Later in 1987 the claimant found a site in China but it took some years to set up the new plant and establish the business there. The Lands Tribunal valued the land on an extinguishment basis as a going concern at HK$131m. It found that if the claim was to be valued on a relocation basis the value would be HK$408m, including

HK$109.75m for the site in China. The Lands Tribunal took the view that the time taken resulted in the creation of a new business, not the re-establishment of the existing business. The Court of Appeal of Hong Kong held a different view. Restoring the decision of the Lands Tribunal, the Privy Council said: Land may, of course, have a special value to a claimant over and above the price it would fetch if sold in the open market. Fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority. As already noted, this is well established. If he is using the land to carry on a business, the value of the land to him will include the value of his being able to conduct his business there without disturbance. Compensation should cover this disturbance loss as well as the market value of the land itself. The authority which takes the land on resumption or compulsory acquisition does not acquire the business, but the resumption or acquisition prevents the claimant from continuing his business on the land. So the claimant loses the land and, with it, the special value it had for him as the site of his business. The expenses and any losses he incurs in moving his business to a new site will ordinarily be the measure of the special loss he sustains by being deprived of the land and disturbed in his enjoyment of it. If, exceptionally, the business cannot be moved elsewhere, so it simply has to close down, prima facie his loss will be measured by the value of the business as a going concern. In practice it is customary and convenient to assess the value of the land and the disturbance loss separately, but strictly in law they are no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner (at 852).

[page 165] In Banno v Commonwealth (1993) 81 LGERA 34 the facts were that in September 1989 the Commonwealth resumed 4.9 hectares of land, used for a poultry farm, for an airport. The farmer remained in possession until March 1993. The Commonwealth conceded compensation totalling $872,299 which included $812,000 for market value, $36,401 for stamp duty and legal costs on the purchase of a replacement property costing $812,000, $2,038 for accounting and valuation fees, $500 for legal fees for initial advice and $21,360 for solatium. The Commonwealth also agreed a sum of $75,743 by way of set-off for the period of occupation from September 1989 to March 1993. The dispossessed farmer claimed further compensation for the reinstatement of the poultry farm on the land he had purchased and for losses

incurred between the date of resumption and the date of vacation of the resumed land. He also disputed liability for the occupation fee on the ground that it was invalid. It was held that the claimant was not entitled in the particular circumstances to compensation of the business on the purchased land. He was not entitled to claim for profits lost during the period he carried on the business between the dates of resumption and vacation. Moreover, s 47 of the Lands Acquisition Act (Cth) did not concede any period of rent-free occupation and permitted a retrospective operation. The power to determine the terms and conditions of post-resumption occupation did not have to be exercised in advance of the occupation. Banno was decided before Shun Fung, above, and depended in part on the relevant statutory provisions. Whether the result in Banno would have been in any way different if Shun Fung had been decided before Banno is uncertain and speculative. Notwithstanding that there is no express mention of disturbance in the Acquisition of Land Act (Qld), there it may apply in appropriate circumstances. In George v R (1979) 6 QLCR 89, for example, the owner claimed compensation under the heading of disturbance for stamp duty and legal costs of acquiring another property. The claim was rejected on the ground that it was too remote and not a natural and reasonable consequence of the resumption. One of the difficulties facing any claimant is to identify where the boundaries of disturbance lie. In West v Roads and Traffic Authority (NSW) (1995) 88 LGERA 266 the former owner claimed disturbance for the personal time spent in locating replacement premises but it was held that he was only entitled to disturbance compensation for the expense of obtaining accounting advice to quantify its claim for compensation. In Matcam Pty Ltd v Kogarah Municipal Council (1995) 105 LGERA 266 a claim for disturbance relating to the cost of relocating a specialist medical surgery by purchase of private rooms fitted out as medical suites in a nearby medical complex amounting to $297,887 was held not to be recoverable. In George D Angus Pty Ltd v Health Administration Corporation [2013]

NSWLEC 212 the Health Administration Corporation resumed land that was used to provide gynaeocological and obstetric services. The applicant relocated the business to Wagga Wagga, but claimed that this relocation [page 166] meant that they could not provide obstetric services because the new location was more than a five-minute drive away from the nearest hospital, meaning that the risk to obstetric patients would be too great. After a period of just under two years, the applicant in 2013 relocated again to new premises in Newcastle and commenced providing obstetric services once more. The applicant, in their claim for compensation, argued that they ought to be compensated for the losses incurred for both relocations. The court held that incurring a second set of relocation costs will not be unreasonable merely because costs had already been incurred for the first relocation. Once it is accepted that two relocations are appropriate, even the second relocation is compensable. However, the applicant in this case failed to obtain compensation for the second relocation as the court ruled that costs were not reasonably incurred. In respect of most of the statutory provisions governing disturbance, or its equivalent, it remains the duty of the court to interpret the particular provisions. In Sydney Water Corporation v Besmaw Pty Ltd [2002] NSWCA 147 Sydney Water resumed an easement over the land for sewerage purposes and laid a subterranean pipeline within the easement. Besmaw carried on a business of extracting and selling sand and rehabilitating the land. It also had the right to recreational activities on the land. Sydney Water had the right to deny access to a drive giving egress from the site. The trial judge awarded the sum of $1,530,122 for disturbance under s 59(f) of the Land Acquisition (Just Terms Compensation) Act (NSW). Dismissing the appeal by Sydney Water, the New South Wales Court of Appeal held that the term ‘reasonable’ referred

to the threat of the loss of access and the consequent cost of building another access. Besmaw was entitled to do what was reasonably necessary to avoid an inevitable consequence of the full exercise of Sydney Water’s rights under the easement. The expression ‘might reasonably be incurred’ referred to the time at which compensation was being assessed even though there was no certainty that access would be denied in the future. It was not feasible for Besmaw to wait until access was denied. Besmaw was entitled to the relief when compensation was being considered. In assessing compensation for disturbance of a business the court will be faced with two possibilities. First, the owner may have moved and bought alternative land and continued the same business on that land. Second, the owner may have difficulty in finding an alternative site that suits the particular business. His or her claim is likely to be an estimate of the cost involved. In Macarbell Pty Ltd v Roads and Traffic Authority (NSW) (2006) 149 LGERA 217 the owner wanted to replace the resumed land to continue the existing business. At the time of claiming compensation the owner had been unable to locate a suitable site. The claim included a sum for the stamp duty and legal fees involved in purchasing a property. It was held that the owner was entitled under the Land Acquisition (Just Terms Compensation) Act (NSW) s 59(f), as the amount was a direct and natural consequence of the acquisition. The same answer was given to a similar claim in Nasser v Roads and Traffic Authority (NSW) (2006) 149 LGERA 289. [page 167] When exploring whether an apparent cost as a result of disturbance was a direct, natural and reasonable consequence of the acquisition, causation must be proven. However, while the term ‘causation’ is often used in different areas of law such as tort law, Secretary to the Department of Economic Development, Jobs, Transport and Resources v Stella [2016] VSC 260 highlighted that the

test for causation in compulsory acquisition was distinguishable. The court noted that the test for causation in relation to natural, direct and reasonable consequence in the context of compulsory acquisition was narrower than common law tests such as identifying what is ‘reasonably foreseeable’. For example, funds from compulsory acquisition compensation used to purchase additional property will not be regarded as disturbance losses if in all the facts and circumstances the purchase is an independent additional investment. In Secretary to the Department of Economic Development, Jobs, Transport and Resources v Manor Lakes (Werribee) Pty Ltd [2016] VSC 358, the court explored the meaning of ‘direct natural and reasonable consequence’. The court affirmed Halwood Corporation Ltd v Roads Corporation (1995) 89 LGERA 280 which considered that ‘natural’ meant arising according to the usual course of things. The meaning of ‘direct’ meant immediate or without intervening agency and the meaning of ‘reasonable’ was characterised as not going beyond the limit assigned by reason or not extravagant or excessive. In light of the use of these three adjectives, both Halwood and Manor Lakes emphasised that there must be a very close connection between the event and the financial loss suffered in order to be eligible for compensation for disturbance. In respect of ss 40 and 41(1)(d) of the 1986 Victorian Act the issue of whether time spent on making a claim came with the term ‘pecuniary loss’ arose in Benton v Road Construction Authority (No 1) [1992] 2 VR 489 and in King v Minister for Planning and Housing [1993] 1 VR 159. The decisions in both cases hinged on the meaning to be given to these particular statutory provisions. They did not depend on the Milledge principle.

DOUBLE RECOVERY [3.24] The compensation provisions in the resumption statutes generally list a number of heads or factors under which compensation may be claimed. The heads or factors may be mutually exclusive of each other or they may overlap. If they overlap the courts will adjust the global sum to ensure that there is no double recovery by the claimant.

The principle of double recovery is often associated with Horn v Sunderland Corporation [1941] 1 All ER 480 (see 3.23), where the claimant was held to be entitled to the special value of the land but could not claim for disturbance for the reason that he would be recovering twice for the loss. He could claim for disturbance where the land was valued for its current use but not where it was valued for its highest and best use (see 3.17). Generally speaking, where resumed land has been valued on a ‘highest and best use’ basis giving it a higher value than on the basis of its current [page 168] use, the claimant cannot claim the value of improvements which will no longer be required when the land is put to its notional use. The value of the improvements is, as it were, absorbed in the higher valuation of the subject land: Balquhidder Pty Ltd v Minister for Environment and Planning (1986) 40 SASR 63 at 78. The claimant is not entitled to obtain the benefit of a valuation for a theoretical use and claim other items of compensation based upon the actual use of the land, such as existing improvements: Bergman v Holroyd Municipal Council (1988) 66 LGRA 68 at 80. Even if an item falls within more than one heading it is only compensable once: N Stephenson Pty Ltd v Roads and Traffic Authority (NSW) (1994) 83 LGERA 248.

UNLAWFUL USE [3.25] The issue here is whether the claimant who has been using the resumed land for an unlawful purpose is entitled to claim compensation. The unlawful use may be varied in nature. The land may be used for the purpose of the manufacture and distribution of illegal drugs. It may be used for, say, the manufacture of glue in breach of the health or environmental regulations. The occupier of the land may be conducting an unlawful business in smuggling migrants into the country in breach of the immigration rules. It

may be argued that the conduct of an unlawful activity is irrelevant. The task before the court is to assess the value of the land. On the other hand it might be argued that a claim for disturbance in respect of the move of the unlawful activity to another place is facilitating the continuation of the unlawful activity. The owner of the land used for the manufacture and distribution of unlawful drugs may be entitled to the market value of the land but could not expect to claim for the extinguishment of the unlawful business. In Hughes v Doncaster Metropolitan Borough Council [1991] 1 All ER 295 the claimant bought land in 1969 and lawfully used it for a scrap metal business. In 1972 he bought additional land and extended the scrap metal business onto it. He did not seek planning permission in respect of the business on the additional land. In 1981 the local authority took possession under a compulsory purchase order made in 1973. The land was assessed for market value and disturbance. The House of Lords held that the two elements should be valued separately. The claimant was entitled to market value and disturbance in respect of the part where there was planning permission but only for market value for the part where there was no planning permission. Lands Acquisition Act (Cth) s 60(b) provides that any increase in the value of the land caused by its use in a manner or for a purpose contrary to law shall be disregarded. A similar provision is also contained in Sch 2 r 8(b) of the Lands Acquisition Act (NT) and s 50(1)(b) of the Lands Acquisition Act (ACT). Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1)(c) provides that in assessing compensation for the land’s market value any increase in the value of the land caused by its use in a manner or for a purpose contrary to law is to be disregarded. In Doueihi v Roads and Traffic [page 169] Authority (NSW) [2005] NSWCA 201 no compensation was awarded for a

business conducting an unauthorised use on the resumed land. An appeal on this issue claiming that the claimant had suffered a loss of opportunity for the use to become lawful was dismissed for the reason that there was no evidence from the council of the likelihood that the use would be authorised. Under the Land Acquisition and Compensation Act (Vic) s 43(1)(c), any increase in value of the land in which the acquired interest subsists that results from use of that land in a manner or for a purpose contrary to law is to be disregarded in assessing compensation. Land Acquisition Act (SA) s 25(1)(f) provides that where the value of the land is enhanced by reason of its use, or the use of any premises on the land, in a manner that may be restrained by any court or is contrary to law, or is detrimental to the health of any persons, the amount of that enhancement shall not be taken into account. In Jameson v Rail Corporation New South Wales [2014] NSWLEC 83, the court noted in passing that the statutes regarding unlawful use of land when determining compensation should not be interpreted in such a way that would allow an applicant to take advantage of such illegal use. It further highlighted that providing any compensation arising from an unlawful use of land would fail to meet the statutory mandate for compensation to be ‘just’.

REINSTATEMENT [3.26] Any difficulty that a dispossessed owner might have in obtaining other land was formerly regarded as outside the scope of the compensation provisions for resumption. Under the principle of equivalence the rationale was that the former owner had been paid a sum of money which enabled him to find alternative land of a similar kind. The duty of the acquiring authority was complete when the amount of compensation had been assessed and paid. In recent years some of the legislatures have seen fit to include provisions in the resumption statutes which take into account the problem of reinstatement or relocation of the dispossessed owner.

The term ‘reinstatement’ has been introduced into some of the resumption statutes. It is used in different senses. It may refer to the costs incurred in reinstating the dispossessed owner on other land. Such costs may be potential, in the sense that they are an estimate at the date of resumption as to the cost of moving from the resumed land and becoming established on other land. Alternatively, such costs may be actual, in the sense that they are the expenses incurred in moving to other land soon after the date of acquisition. The term ‘reinstatement’ may also be used to refer to the estimated cost of buying alternative land of a comparable nature to the land resumed. In this situation the claimant may agree that the market value of the resumed land is $500,000 but that the cost of purchasing comparable other land which is [page 170] no better and no worse than the resumed land with all the advantages and disadvantages of the resumed land is $600,000. The claimant may argue that the cost of reinstatement is $100,000. Alternatively, the claimant may wish to claim that the reinstatement value of the resumed land is $600,000. Lands Acquisition Act (Cth) s 58(1)(e) provides, in substance, that where the former owner intends to acquire land in substitution the market value of the acquired land is to be calculated according to a formula. Section 61(2)(b) makes provision for compensation to be paid in respect of a dwelling acquired for the cost of acquiring a ‘reasonably equivalent dwelling’. Land Acquisition and Compensation Act (Vic) s 42 provides for the cost of reinstatement to be taken into account in certain circumstances. Land Administration Act (WA) s 241(6)(b) provides for regard to be had to the loss or damage by reason of ‘disruption and reinstatement of a business’. Land Acquisition Act (SA) s 25(1)(i) provides that where there is no general demand or market for land, compensation may, if reinstatement in

some other place is bona fide intended, be assessed on the basis of the ‘reasonable cost of equivalent reinstatement’. Land Acquisition Act (Tas) s 30 provides for compensation for a principal residence to be based on the cost of a ‘suitable residence of at least equivalent standard and location’. Lands Acquisition Act (NT) ss 50 and 63 permit an offer of resettlement to be made as an alternative to compensation. Schedule 2 r 7 enables the cost of acquiring other land to be taken into account in certain circumstances. Lands Acquisition Act (ACT) ss 48 and 51 are similar to the Commonwealth provisions, above. Any question of compensation for resumed land being based on the cost of purchasing alternative, similar land must depend on the compensation provisions contained in the relevant resumption statutes. For that reason it must be doubtful whether Birmingham City Corporation v West Midland Baptist (Trust) Association Inc [1970] AC 874 has any relevance on this issue in Australian law. The House of Lords held that where acquired land does not command a market value because of the absence of a general market for the particular activity carried out on the land and of which the land is an integral part, the land may be valued on the basis of the cost of reinstating the former owner. In some special cases, for example, hospitals, schools, churches and theatres, for which there is no ordinary market, the cost of reinstatement may be adopted as the measure of the value of the land taken. It is an alternative method of valuing land where there is an absence of comparable sales of land which were used for the same purpose. The more recent resumption statutes contain express provision for the valuation of land where there is no general market for the land resumed. It follows that the West Midland Baptist principle does not apply in those jurisdictions. These provisions contain their own formula. This was the view taken in McBarron v Roads and Traffic Authority (NSW) (1995) 87 LGERA

[page 171] 238 where it was held that the Lands Acquisition (Just Terms Compensation) Act 1991 (NSW) s 55 sets out the compensable items as explained by ss 56–59 even if that means the claimant will not be justly compensated. For that reason it appears that compensation on a reinstatement basis is not available under the 1991 Act. It may be arguable whether West Midland Baptist might apply in appropriate circumstances in respect of the Acquisition of Land Act (Qld) which is silent on reinstatement. The question of using the cost of relocation for a business as compensation for resumed land was discussed in Re Mills and Minister for Finance and Administration (2002) 70 ALD 780 where it was held that in assessing just compensation, it was proper to have regard to the costs associated with relocating business premises, provided that it was clear that the acquisition was the cause of the relocation. If the costs of relocation exceeded the cost of extinguishment, compensation should be based on the cost of extinguishment. No claim made for loss of profit could be made after an acquisition. The subtle differences between and the application of reinstatement and relocation were discussed in Hua v Hurstville City Council [2010] NSWLEC 61. In this case, the council resumed the applicants’ land which they had used to conduct a bakery business. The applicants appealed to the court in regard to a dispute about compensation for relocation and/or reinstatement. During the course of proceedings, it was at times unclear as to whether relocation and reinstatement were interchangeable terms. The court noted that reinstatement and relocation were not necessarily of the same meaning. Relying on a dictionary definition, the court highlighted that the definition of ‘relocation’ related to moving to a different place as opposed to ‘reinstate’ which referred to returning something to its former position or state. In determining which specific part of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) to apply, the court explored whether

reinstatement compensation could be applied using s 59(c) or 59(f). Section 59(c) referred specifically to costs associated with relocation. Section 59(f) allowed for disturbance compensation for any other financial costs not listed in the section that were reasonably incurred and related to the actual use of the land as a direct and natural consequence of the acquisition. Applying Fitzpatrick Investments Pty Ltd v Blacktown City Council (No 2) (2000) 108 LGERA 417 and Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109, the court referred to s 59(f) as a ‘catch-all’ provision which allowed for compensation for reasonable costs caused by the acquisition. Indeed, the court held that s 59(c) could include the replacement of essential equipment in new premises and to the extent that s 59(c) did not cover all aspects of a reasonable reinstatement claim, further compensation could potentially be sought by activating s 59(f). However, the court added that the preferred view regarding costs associated with re-establishing a business elsewhere was claimable under s 59(c). Notwithstanding this, the court in this case opted to apply s 59(c) which included reinstatement costs of the applicants’ bakery business. [page 172]

EXTINGUISHMENT OF BUSINESS [3.27] Where a business is conducted on the resumed land, the effect of the compulsory taking may be to extinguish the operation of the business. Alternatively, it may be possible for the business to become re-established on alternative land. An example of the resumption terminating the business conducted on the land is Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351. A quarry conducted on leasehold land was acquired for the purpose of constructing a freeway, causing the quarry owner to cease business. There was no alternative site to which the lessee could move to re-establish the quarry business. The acquiring authority was

not, obviously, buying a quarry business. In a sense it was buying the land at its market value. The authority was taking land. In doing so, it extinguished the business conducted on that land. The claimant was entitled to the loss of the quarry business under the heading of disturbance or similar provision. The principles to be applied in the assessment of compensation where the resumption causes the destruction of a business carried on upon the resumed land were considered and discussed in Commissioner of Highways v Shipp Bros Pty Ltd (1978) 19 SASR 215. In this instance the claimant conducted a tow truck business on the resumed land. It was found that at no material time did the business have any goodwill and the business was not transplanted elsewhere. The claimant sought compensation on the basis of notional reestablishment. On the facts it was held that the claimant was entitled to the value of the business as a going concern (less the value of moveable plant and equipment), or the value of the land, improvements and immovable plant, whichever was the greater. There are many circumstances where it is difficult, if not impossible, to relocate to comparable land. In Horton v Wyong Shire Council (No 2) [2005] NSWLEC 45 the council resumed a residence, which the owners had a long historical association with, and where there was a real prospect the claimants would not be able to re-establish their home at a location of equal convenience. Under the Land Acquisition (Just Terms Compensation) Act (NSW) ss 57 and 60(2), the award included amounts in respect of solatium, disturbance and costs. Another example of such a situation was explored in Bligh v Minister Administering Environmental Planning and Assessment Act [2011] NSWLEC 220. Here, the acquiring authority resumed land that was used as part of a piggery business. However, the land that was acquired was used by the business to spray irrigate effluent waste water. Unless an alternative waste water treatment system was introduced on the land retained by the business, the business would be extinguished. Ultimately the court ruled that the applicant was entitled to compensation under s 59(f) of the

Land Acquisition (Just Terms Compensation) Act (NSW) for the value of the extinguished business as at the date of acquisition. The compensation provisions in the resumption statutes do not directly refer to the situations where the act of resumption causes, or [page 173] partly contributes to, the extinguishment of a business. The claimant needs to rely on the provisions governing disturbance (see 3.23), loss (see 3.12) or damage (see 3.13). In Bligh, above, it was accepted that loss of business value was compensable under s 59(f) of the Land Acquisition (Just Terms Compensation) Act (NSW). Section 241(6)(b) of the Land Administration Act (WA) is perhaps clearer in this regard as it specifically directs the compensation court to compensate the claimant for the ‘disruption’ of the business. In Shipp Bros, above, the question of relocation of the business arose. Where on an objective view the business is capable of being relocated without difficulty to other neighbouring land but the claimant does not have the ability to move the business and decides to terminate the business, can it be said that the resumption has caused the closure of the business? At the date of resumption the claimant may have had the intention to relocate but a month later he or she decides to close down the business. Is the dispossessed owner entitled to claim for loss of goodwill and profits when the authority takes the view with some justification that the business could be relocated? The claimant may see the resumption as being the catalyst leading to the decision not to relocate. The authority may consider that the claimant is not mitigating the loss. The claimant may reply that the statute says nothing about a duty to mitigate any loss. In Shun Fung (see 3.23 and 3.29) the Privy Council observed: In the ordinary way, the expenses and losses incurred when a business is moved to a new site

will be less than the value of the entire business as a going concern. Compensation payable on a relocation basis will normally be less than compensation payable on an extinguishment basis. But this will not always be so, and a rigid limitation … could lead to injustice ([1995] 1 All ER 846 at 853).

To sustain a claim on a relocation basis Shun Fung requires that five questions need to be asked and answered in the affirmative: 1.

Can the business be relocated?

2.

Does the claimant intend to move?

3.

Would a reasonable person in the position of the claimant in the prevailing circumstances relocate?

4.

Is it feasible and practicable to relocate within a reasonable time of vacating the resumed land?

5.

Will the cost of relocation be less than the cost of extinguishment?

BUSINESS LOSS: GOODWILL [3.28] The goodwill of a business is the advantage of the reputation and connection formed with customers together with circumstances, whether of habit or otherwise, which tend to make such connection permanent. It is the value of that element of profitability that arises from specific business connections related to the location of the premises acquired or the personality of the proprietor. It is the benefit and advantage of the good [page 174] name, reputation and connection. In Murlam Pty Ltd v Roads and Traffic Authority (NSW) [2009] NSWLEC 1365 the court noted that along with good name and reputation, ‘goodwill’ is something that can distinguish an old, established business from a totally new business and has the power to attract customers. It is something which is attached to the business and does not

have an independent existence. Should the business perish, so too will the goodwill associated with it. The common law distinguishes between local and personal goodwill. Local goodwill attaches to the land. Personal goodwill attaches to the owner or occupier. When the owner or occupier leaves the land that personal goodwill usually goes with him or her. The goodwill of a hotel, for example, may be divided into local and personal goodwill. The local goodwill is reflected in the suitability of the site for the conduct of that business. It may be prominently situated on a busy corner at an intersection in a city. Its presence on the site attracts custom. The hotel’s personal goodwill is reflected in the personality, competency and acumen of the hotelier. The goodwill is a mixture of both, referable in part to its locality, in part to the way in which the business is conducted, and in part to the likelihood of competition: Federal Commissioner of Taxation v Williamson (1943) 67 CLR 561 at 564. For the purposes of a claim for compensation in respect of resumed land on which a business is conducted, it may be preferable to separate local and personal goodwill. In assessing compensation, the former owner or occupier may be able to take the personal goodwill away with him or her. If the business is relocated some or all of the personal goodwill may be transferred. The local goodwill may be extinguished unless the reinstated business is situated without delay on an alternative site that has all the advantages of the resumed land. In these circumstances the personal goodwill may be regarded as travelling with the former owner to the relocated business. It may be regarded as reignited. As personal goodwill is largely associated with an attachment to the owner and usually able to be revived upon the relocation of the business, personal goodwill is generally not compensable. The principle established by the House of Lords in Argyle Motors (Birkenhead) Ltd v Birkenhead Corporation [1975] AC 99 was that compensation could only be awarded in respect of some loss of value of the land taken. Compensation could not be awarded for loss which was personal to the owner of the land or which was related to some particular user of the

land. If that principle were applied to personal goodwill, as distinct from local goodwill, the extinguishment of personal goodwill might, arguably, be regarded as not being compensable. The issue may depend upon the meaning given to the term ‘loss’ in the relevant resumption statute. A compensation court may not find it necessary to distinguish between local and personal goodwill and treat it as a single matter. In ordinary circumstances the local goodwill will be reflected in the market value of the land. A hypothetical willing purchaser will be prepared [page 175] to pay a sum for the land which will include a sum for its business and commercial suitability and potential: Minister for Home and Territories v Lazarus (1919) 26 CLR 159; Commonwealth v Reeve (1949) 73 CLR 410. The purchaser of a hotel will pay a composite sum for land, buildings and goodwill. Alternatively, if the market value of the land does not reflect its local goodwill, the claimant may be entitled to claim an additional sum as constituting special value over and above its market value (see 3.15). In Bickle v Commissioner of Main Roads (1961) 7 LGRA 155 goodwill adherent to a bread-making business was treated as an element in the value to the person which would be taken into account in determining the value of the premises to the owner. In determining compensation for land compulsorily acquired the task of the court is to assess the highest and best value of the land (see 3.17). Its highest and best value may be expected to include its local goodwill. In Feldmayr v Housing Commission (NSW) (1969) 17 LGRA 307 part of the resumed land had been used as a bakery for 30 years and the balance for lesser periods. The bakery was situated in a proclaimed residential district but its continued use as a bakery was likely. It was held to be proper to value the land upon the basis that it would be available to a purchaser as a bakery site. In

determining the value the court distinguished between the goodwill that was lost by the resumption and that which would not be lost but could be removed to other premises. In Hayes v Minister for Works (1913) 15 WALR 106 the court distinguished between local goodwill, which would be reflected in the market price, and personal goodwill, which the caterer of a restaurant had worked up due to his skill and assiduity, and which was not in effect taken away by the resumption. There is a presumption that personal goodwill which is not destroyed is not to be compensated. Where goodwill attaches to the business, it should in ordinary circumstances be possible for the personal goodwill to go with the dispossessed owner and be transferred to the same business if it is established on other land. It is movable goodwill. This was the point argued in respect of Argyle Motors, above. If, however, the business is extinguished it may be that both its local and personal goodwill are extinguished. Whether or not the business and its goodwill are extinguished is a question of fact. If a dispossessed owner can establish that personal goodwill has been extinguished and cannot be re-established, then prima facie the owner has incurred a loss. A doctor whose practice has been terminated by resumption may be able to move the practice to alternative premises. In doing so the personal goodwill may remain attached and there is no loss. A veterinary surgeon may be able to prove that the practice cannot be re-established because the relevant authority is not prepared to issue a licence for it to operate in other premises. In consequence the personal goodwill may be extinguished as the veterinary surgeon has no option but to move to another area where his or her reputation and skill are unknown. [page 176]

LOSS FROM THREAT OF RESUMPTION [3.29]

An owner of land may hear of a proposed resumption in a number

of different ways. The acquiring authority may inform the owner as a matter of courtesy that it is considering the resumption of the owner’s land. The owner may hear of the proposal from a newspaper. A neighbour may tell the owner of the possibility. The authority’s future intention may remain in doubt. But the possibility may hover in the air leading to uncertainty and misgiving on the part of the owner. The likelihood of the authority resuming the land may vary from highly probable to a mere possibility. In many instances the foreknowledge of a likely resumption will make no difference to either party. The value of the land will remain unaffected. The owner may have no ambitions to sell the land or develop it. But in some cases the advance information may result in loss to the owner. The information that the authority is likely to resume may cause the owner to postpone or cancel certain developments which were being considered. An owner of a residential property may refrain from redecorating both the inside and outside of the house in preparation for a sale of the house. In consequence its market value may be less than it might have been had it been redecorated. Prospective buyers may be deterred from making an offer for the land on hearing that there was a possibility of resumption. A bank that was about to lend money to a prospective purchaser of the residence may withdraw from the transaction on hearing of the possibility of the resumption. The principle remains that the value of the resumed land falls to be determined on the date of acquisition (see 2.15). Any measures which are taken before the date of acquisition which may either depreciate or enhance the value of the land are irrelevant in determining the value of the land. In Lion Brewing & Malting Co Ltd v Commissioner of Highways (SA) (1966) 12 LGRA 413 the commissioner gave notice by letter in 1954 to the owner of land that a strip of his land would be required at some future date for roadwidening. In consequence the owner altered plans for the development of the land. He incurred expense in carrying out work on the residue of his land so as to reduce the eventual disturbance. In 1961 the commissioner issued a notice to treat. It was held that the owner was not entitled to claim for

severance damage, injurious affection or disturbance incurred in 1954. The letter was not a notice to treat. It was not part of the statutory procedure. A claim for damage had to be the result of the commissioner’s work. Compensation had to be assessed prospectively, not retrospectively. Knowledge of a proposed resumption does not affect the right of a landowner to make the best use of his or her land until the proposal becomes a reality. But an advance warning that resumption is probable in the near future may deter an owner from making the best use of his or her land. It may have a ‘blighting’ effect. It may deter future purchasers. It may depreciate the market value of the land. [page 177] There is authority for the proposition that a landowner who, with full knowledge of all the facts and dangers, incurs expenditure which is calculated to inflate the compensation will not receive compensation for that expenditure: Yarn Traders Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 427 at 430. There is also authority for the proposition that where an acquiring authority induces an owner not to plant a crop and he or she desists, then, upon the acquisition, the loss of the crop is a sustainable claim: Minister for Environment v Petroccia (1982) 30 SASR 333. In ordinary circumstances, however, acts done in anticipation of resumption are not relevant. The strength of that rule has, arguably, been weakened by the Privy Council in Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 1 All ER 846 where the landowner conducted a mini-mill business using scrap metal. In November 1981 it received a letter from the government stating that the government intended to develop the land as a new town. An order for resumption was not made until October 1985. The business claimed for loss of profits during the ‘shadow period’ between November 1981 and

October 1985. It was found that the notification had a ‘paralysing effect’ on the operations of the business. There was ‘slow asphyxiation’ of the business which operated under the threat of resumption (at 862). The majority view in the Privy Council was that the Pointe Gourde principle (see 3.20) extended to loss resulting from ‘the threat of resumption’: So where can the boundary be drawn sensibly? If the line contended by the Crown is rejected, there is no sensible stopping place short of recognising that losses incurred in anticipation of resumption and because of the threat which resumption presented are to be regarded as losses caused by the resumption as much as arising after resumption. This involves giving the concept of causal connection an extended meaning, wide enough to embrace all such losses. To qualify for compensation a loss suffered post-resumption must satisfy the three conditions of being causally connected, not too remote and not a loss which a reasonable person would have avoided. … … [E]veryone seeks to plan ahead, and the law would be defective if it did not recognise this (at 863–4).

Decisions of the Privy Council emanating from other jurisdictions are no longer binding on Australian courts. But in this instance the decision relies to some extent on the Pointe Gourde principle which has been regarded as binding on all courts until such time as the High Court or a legislature might see fit to depart from it. Although the High Court expressed reservations about Pointe Gourde in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 at [46], it did not go so far as to disapprove it. In Brown Bros (Marine) Holdings Pty Ltd v New South Wales Land and Housing Commission (1991) 72 LGRA 50 it was held that no claim could be made for the loss of profits during the period prior to resumption notwithstanding that the business was probably adversely affected by the threat of resumption during that time. Shun Fung casts doubt on the authority of Brown Bros. The fact that there is no statutory provision in the [page 178] resumption Acts providing for loss from a threat of resumption may render

Shun Fung inapplicable on this issue.

PRE-ACQUISITION LOSSES [3.30] There are often questions which arise during various compensation disputes as to whether the former owner is entitled to pre-acquisition losses. For example, an owner may receive an acquisition notice for land on which their business is situated. In the attempt to find a potentially suitable relocation premises, resources typically dedicated to meeting sales targets may be diverted resulting in certain business losses. Whether a former owner is entitled to receive compensation for these pre-acquisition losses has been a matter explored by the courts on a number of occasions. In New South Wales, such compensation claims are argued to be compensable under s 59(f) of the Land Acquisition (Just Terms Compensation) Act (NSW) which compensates for financial costs reasonably incurred relating to the actual use of land as a direct and natural consequence of the acquisition. Similarly, by s 41(1)(f) of the Land Acquisition and Compensation Act (Vic), regard must be had to any legal, valuation and other professional expenses necessarily incurred by the claimant that have arisen because of the resumption. In King v Minister for Planning and Housing [1993] 1 VR 159 Gobbo J held that any expenses that were necessarily incurred by reason of acquisition were compensable even if those expenses occurred before the actual date of the acquisition. However, while pre-acquisition matters may be taken into account, the court emphasised that there must be a connection between those matters and the acquisition. In the case of N Stephenson Pty Ltd v Roads and Traffic Authority (NSW) (1994) 83 LGERA 248 the court held that as a general rule, any costs incurred prior to the actual acquisition of the land in question are not compensable. It argued that the term ‘consequence’ in ‘direct and natural consequence’ in s 59(f) was to be interpreted as in relation to an event that had already

occurred. Therefore, the court held, pre-acquisition losses were not compensable under that section. However, only a year later in the English case of Director of Buildings and Lands v Shun Fung Ironworks Pty Ltd [1995] 1 All ER 846 Lord Nicholls noted that if business losses which arose before the acquisition of land were not taken into account, the claimant would then unfairly be denied compensation for losses that were attributable to the resumption of their land. The court also emphasised that pre-acquisition losses would only be able to be compensable if the loss was actually caused by the resumption, not too remote and had been reasonably incurred. For instance, if a reasonable person would have continued trading even after receiving the acquisition notice, the court will not compensate a business owner who unreasonably refuses to accept any further business related orders and as a consequence begins neglecting their sales targets. [page 179] The judgment put forward by Lord Nicholls was subsequently adopted in Caruana v Port Macquarie-Hastings Council [2007] NSWLEC 109. In this case, the local council resumed the applicant’s land for the purpose of the redevelopment of a community facility. The resumed land included shops that were under different lease agreements which expired in June and July of 2004 respectively. The land was not resumed until 2 September 2005. The applicant sought compensation for pre-acquisition losses arising from lost rent between the period of the lease expiration and the date of resumption. The court agreed with the reasoning in Shun Fung highlighting that allowing for compensation for pre-acquisition losses that were reasonable as well as directly and naturally consequential to the acquisition was fair and sensible. Indeed, it highlighted that the provision of such compensation was further supported by s 54(1) of the Land Acquisition (Just Terms Compensation) Act

(NSW) which states that the Act will justly compensate a person having regard to all relevant matters. It was further noted that while s 59(f) was often characterised as a ‘catch-all’ provision (see Fitzpatrick Investments Pty Ltd v Blacktown City Council (No 2) (2000) 108 LGERA 417 at 3.26) the requirements to prove causation and reasonableness provided an adequate barrier to claims that were not appropriate for pre-acquisition compensation. The ability to receive compensation for pre-acquisition losses was revisited more recently in Murlam Pty Ltd v Roads and Traffic Authority (NSW) [2009] NSWLEC 1365. The Roads and Traffic Authority compulsorily acquired the applicants’ property for the purposes of constructing a pedestrian bridge over a road. The applicants used this property for the sale of cars. The applicants sought compensation for business losses associated with having to seek out new premises and find adequate storage facilities for their ‘prestige vehicles’ which would otherwise depreciate in value. It was argued that as a result of the pressures of responding to the acquisition in a short time frame, they were unable to maintain a focus on meeting their sales targets. Furthermore, it was argued that prior to the actual acquisition date of the property, construction works blocked the driveway of the business and covered display vehicles with dust. In applying Shun Fung and Caruana, the court reaffirmed that an applicant can be entitled to pre-acquisition compensation subject to meeting conditions of causation, directness and reasonableness. In this case, the applicants were successful in claiming compensation for lost profits which occurred prior to the actual date of acquisition.

SEVERANCE: LOSS TO RETAINED LAND [3.31] Severance occurs where part of an owner’s land is taken by compulsory acquisition and part is retained by the owner. The owner is entitled to compensation for the part taken. The value of the retained land may be affected by the severance and the owner may be entitled to compensation where the value of the retained land has diminished.

[page 180] Where severance occurs the value of the retained land may be affected in different ways: (a)

The value of the retained land may be enhanced or depreciated by the act of severance. For convenience, where the value of the retained land is depreciated by the act of severance, this is usually described as ‘severance damage’.

(b)

The value of the retained land may be enhanced or depreciated by the purpose of the resumption. Where the value of the land is depreciated in such a manner, it is often described as ‘injurious affection’.

(c)

The value of the retained land may be enhanced or depreciated by the carrying out of the works or activity on the land by the authority. The enhancement or depreciation may be temporary or permanent.

(d) The value of the retained land may be enhanced or depreciated by the use, or anticipated use, to which the part resumed is put. (e)

The act of severance may cause temporary damage or loss to the retained land or to the owner in his or her personal capacity.

It is a question of fact whether there has been severance. A landowner may own two adjacent blocks of land. One block only has been resumed. Has the resumed block been severed from the whole of the land? Have the two blocks been a single entity? If the owner runs a business combining the use of both blocks, the resumed block may fairly be described as having been severed. At the other end of the scale the two blocks may each have contained selfcontained residences. One residence is resumed; the other is not. The land containing the retained residence could not fairly be described as having been severed from the whole. Severance damage may occur in one of two ways. First, it may occur where

part of the land is taken, leaving the retained land as a single, but reduced, entity. Second, it may occur where the part resumed bisects the owner’s land leaving the owner with land on either side of the bisecting resumed land. The owner is left with two parcels of land. Contrast, for example, where a road authority resumes a narrow strip of land along the boundary of the claimant’s land and the claimant is left with a reduced but viable retained portion. On the other hand, where a road authority resumes land and constructs a freeway through the claimant’s land, the owner is left with two parcels of land on either side of the freeway. Lands Acquisition Act (Cth) s 55(2)(a)(iii) provides that in assessing compensation regard shall be had to ‘any reduction in the market value’ caused ‘by the severance by the acquisition of the acquired interest from the other interest’. Section 55(2)(a)(iv), in substance, applies the Pointe Gourde principle (see 3.20) of enhancement or depreciation to the valuation of the retained land after severance. Land Acquisition (Just Terms Compensation) Act (NSW) s 55(c) includes ‘any loss attributable to severance’ as one of the matters to be considered in [page 181] determining compensation. Section 58 defines loss attributable to severance as meaning ‘the amount of any reduction in the market value of any other land of the person entitled to compensation which is caused by that other land being severed from other land of that person’. Land Acquisition and Compensation Act (Vic) s 41(1)(c) includes ‘any loss attributable to severance’ as one of the matters to be considered in assessing compensation. Section 40 defines loss attributable to severance as meaning ‘the amount of any reduction in the market value of any other interest of the claimant in other land used in conjunction with the acquired land which is caused by its severance from the acquired land’.

Acquisition of Land Act (Qld) s 20(1)(a) provides that in assessing compensation regard shall be had to the ‘damage (if any) caused by … the severing of the land taken from other land of the claimant’. Land Administration Act (WA) s 241(7) refers to ‘adjoining land’ and damage suffered due to the severing of the land taken or due to a reduction of the value of that adjoining land. The subsection does not define the term ‘adjoining land’. Land Acquisition Act (SA) s 25(1)(b) provides that in assessing compensation consideration may be given to the ‘loss occasioned by reason of severance’. Land Acquisition Act (Tas) s 27(1)(c) provides that in determining compensation regard shall be had to ‘the damage caused by severance of the subject land from other land belonging to the claimant’. Lands Acquisition Act (NT) Sch 2 r 2(c) provides that in assessing compensation the Civil and Administrative Tribunal may take into account ‘the amount of any reduction in the value of other land of the claimant caused by its severance from the acquired land by the acquisition’. Lands Acquisition Act (ACT) s 45 is similar to the Commonwealth provision, above. There are appreciable differences in the wording of the statutory provisions. None of the statutes refers to the land that remains in the hands of the claimant as ‘retained land’. In this context it is a term of convenience. Some of the statutory provisions refer to a reduction in ‘value’ of the retained land. Some refer to the ‘damage’ caused to the retained land. Some refer to ‘loss’. The act of severance may have different results to the claimant. The market value of the retained land may be reduced. In unusual circumstances, the market value of the retained land may be enhanced. The severance may not cause a reduction in the market value of the land, but it may damage the business conducted on the land. It may cause personal loss to the claimant

which is not directly connected to the use of the retained land. The extent to which each of the statutory provisions reaches may be uncertain and be arguable.

[page 182] An illustration of the limits of a claim for severance loss occurred in Morrow v Minister for Public Works (1985) 59 LGRA 29: the claimant submitted a claim for damage to residue land due to resumption of land taken for water supply augmentation purposes and which involved the construction of a dam. The claimant sought compensation for: possible flooding from the dam and the creek; erosion and loss of land due to the construction of the dam; loss of value due to the erection of power lines and underground telephone cables; contamination of the water supply in the creek and the cost of obtaining alternative water; loss of privacy and disturbance during and after construction; and fear of the dam collapsing at some future date. It was held that apart from the ‘fear factor’ none of the items claimed could legitimately be taken into account because they were concerned with the construction works rather than the resumption and did not come within the relevant compensation provisions in operation at that time. They were, in substance, claims for damages for nuisance and/or trespass. In Benton v Road Construction Authority (No 2) [1992] 2 VR 495 the severance had the effect of reducing the existing acres and resulted in the need for the owner to travel extra distances in respect of established procedures for hay carting and livestock droving. It was held that this future loss was a ‘direct pecuniary loss’ for the purposes of the compensation legislation then applicable. It was further held that the claim for future loss should be discounted according to the particular circumstances having regard to the period involved, the subject-matter, the age of the claimants and other relevant factors of uncertainty. In relation to the date for determining compensation for severance, it has been ruled in some jurisdictions that severance may not necessarily need to be assessed from the date of acquisition. For example, in Brisbane City

Council v Mio Art Pty Ltd [2011] QCA 234 the court had regard to s 20 of the Acquisition of Land Act (Qld) and noted that it did not explicitly require compensation for severance to be assessed from the acquisition date. It noted that it would often be sufficient for compensation for severance to be quantified after the taking of the land. A similar issue was also discussed in Lenz Nominees Pty Ltd v Commissioner of Main Roads [2012] WASC 6. The court highlighted that compensation for the value of taken land was a money equivalent of the loss suffered by the applicants at the date of resumption. Severance, in contrast, was frequently claimed for loss suffered because of damages caused by the severing of land. Therefore, so long as the damage caused by the severance is not too remote, a claim for compensation cannot be disregarded merely because the loss suffered occurred after the date of acquisition.

SEVERANCE: ENHANCEMENT TO RETAINED LAND [3.32] Where land is severed, compensation has to be determined for the loss caused to the owner by reason of the land being resumed. The owner’s claim will fall under two heads: [page 183] first, there is a claim for the value of the land that has been severed and resumed; and second, there is a claim for the reduction in value (if any) of the land retained due to the act of severance. Under the Pointe Gourde principle (see 3.20) the determination of the resumed land’s market value disregards the increase or decrease in that value resulting from the scheme for which the land was resumed. The issue arises whether the principle of disregarding the increase or decrease in value applies

to land retained by the owner. This issue arose in Harding v Board of Land and Works (Vic) (1886) 11 App Cas 208. The Privy Council held that according to the true construction of the relevant compensation provisions then applying in assessing compensation for land taken compulsorily for a railway, the enhancement value of the owner’s adjoining lands may be set off against the amount allowed for damage thereto arising from such taking or severance; but may not be allowed against the compensation for the land taken. In Adelaide Fruit & Exchange Co Ltd v Adelaide Corporation (1961) 106 CLR 85 the High Court observed that it is only by virtue of a special statutory provision that the betterment of land from which land is severed can be taken into account for determining the compensation to be paid for the land or for injurious affection of other land. Such special provisions have from time to time been made and sometimes they merely allow betterment of retained land to be set off against injurious affection of that land. In this instance the particular provision made it clear that in determining the compensation payable an allowance should be made for enhancement of value of land adjoining the land taken which arose from the execution of the works for which the land was taken, whether or not the remaining land of the person entitled to compensation is injuriously affected, and there was no ground upon which to imply any limitation of the sort adopted in Harding. The court had to estimate the enhancement, as at the date of the hearing, of retained adjoining land resulting from the prospect of the making of the street, the purpose of the acquisition. It was said that what in every case is of decisive importance is whether the prospect of the execution of the works has increased the value of the land retained. G & R Willis & Co Ltd v Adelaide Corporation (1962) 108 CLR 1 is another illustration of set-off for enhancement. The corporation compulsorily acquired a portion of an area of land on the whole of which was erected a building in which a wholesale business was carried on. The owner intended to carry on the business on the remaining portion of the premises. It was held

that an amount representing the amount of the enhancement in value of the retained land should be deducted from the sums assessed for severance and disturbance damage. However, in Minister v Stocks & Parkes Investments Pty Ltd (1973) 129 CLR 385 it was held that where a small part of the owner’s land is taken for a school it would be inappropriate to set off any enhancement of the value of the interest of the claimant in any land [page 184] adjoining the subject land which existed at the date of resumption by reason of the proposed use of the subject land for the construction of a school. Lands Acquisition Act (Cth) s 55(2)(a)(iv), Acquisition of Land Act (Qld) s 20(3), Land Administration Act (WA) s 241(7), Land Acquisition Act (SA) s 25(1)(j), Land Acquisition Act (Tas) s 27(1)(d) and Lands Acquisition Act (ACT) s 45(2)(a)(iv) expressly provide that where the value of the retained land is enhanced by the purpose of the resumption regard is to be had to that increase in value. In unusual circumstances the doctrine of disregarding the enhancement value of retained land may result in the owner of retained land receiving no compensation where the enhanced value of the part retained exceeds the value of the portion resumed. In Brell v Penrith City Council (1965) 11 LGRA 156 the effect of the resumption was to take from the properties, having frontages on the high street, rear portions which were mostly unoccupied by buildings. It was common ground that this part of the high street was the best business area in the city. The area resumed was used as a car parking space, and effected a vast improvement in the condition of the rear lane. The surface had not previously been kerbed or guttered. The effect of the work enhanced the value of the residue property upon which the business premises were erected. In consequence, the owner of the retained land was held to be entitled to no compensation: the enhancement in value of the retained land

exceeded the value of the part taken. The claimant was in fact deprived of part of his land which he himself might have used for parking, storage, extension of the business or some other purpose of his own choosing. The resumed land was used for car parking which may have brought customers to the claimant’s business but the parking was not reserved for the exclusive use of the claimant’s customers. The claimant might have been able to put it to profitable use. Brell does not stand alone. It was followed in Jones v Blue Mountains City Council (1978) 25 The Valuer 502. In Parkes Developments Pty Ltd v Burwood Municipal Council (1969) 17 LGRA 257 it was held that the legislation then applicable enabled enhancement to be set off against the value of the land resumed in a case where there is no severance damage. The reasoning in Harding, above, was held not to be applicable on the ground that the New South Wales legislation was concerned with compensation and the Victorian provision was concerned with purchase money. The last word may not have been uttered on this topic.

INJURIOUS AFFECTION [3.33] Of the nine resumption statutes examined in this text, only three include direct mention of the term ‘injurious affection’. Yet it is a term closely associated with resumption. Acquisition of Land Act (Qld) s 20(1)(b) provides that in assessing compensation regard shall be had to the exercise of any statutory powers by the constructing authority ‘injuriously affecting’ other land of the claimant. Land Acquisition Act (SA) s 25(1)(b)(ii) provides that in assessing [page 185] compensation consideration may be given to ‘injurious affection’. Land

Acquisition Act (Tas) s 27(1)(e) provides that in determining compensation regard shall be had to ‘whether other land belonging to the claimant is injuriously affected by the carrying out of, or the proposal to carry out the authorized purpose’ of the resumption. None of these three provisions defines the term ‘injurious affection’. The term ‘injurious affection’ is closely related to ‘severance’. In the context of resumption, injurious affection, like severance, arises where part of a claimant’s land has been taken, leaving the question whether the scheme as a whole has diminished in some way the value of the retained land. In Marshall v Director-General, Department of Transport (2001) 205 CLR 603 at [32] the High Court defined injurious affection as follows: It is a neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner’s land.

In Kettering Pty Ltd v Noosa Shire Council (2004) 134 LGERA 99 at [23] the High Court also said: ‘Injuriously affected [or affecting]’ is itself an expression of wide import originally used in ss 63 and 68 of the Land[s] Clauses Consolidation Act 1845 (UK) and thereafter in other enactments providing for compensation for many kinds of deleterious effects on the value of land left in a dispossessed owner’s hands and arising out of the compulsory acquisition and use of other parts of it.

The issue in respect of the six jurisdictions which do not use the term ‘injurious affection’ is whether the term ‘severance’ (see 3.31) is sufficiently broad to cover the ground which would otherwise traditionally fall under the term ‘injurious affection’. Severance and injurious affection have in the past been separate and distinct concepts. Severance has concerned damage to the retained land resulting from the act of severance and thus reducing its value. Injurious affection is concerned with the reduction in value of the retained land resulting from the scheme or purpose underlying the resumption. The term ‘injurious affection’ is also used in a number of statutes which are not concerned with resumption. For example, s 36 of the Metropolitan Region Town Planning Scheme Act 1959 (WA) entitled a landowner to claim compensation where his or her land was injuriously affected, that is,

diminished in value, due to the imposition of planning rules or regulations. Resumption is not involved at this stage. In this situation there will be evidence to show to what extent the change in planning rules or regulations has adversely affected the whole of the owner’s land. A claim for compensation in respect of injurious affection of an estate or interest in land differs in various respects from a claim for compensation for resumption: CMB No 1 Pty Ltd v Cairns City Council (1997) 96 LGERA 306. No taking of land is involved. Injurious affection arising out of resumption has been the subject of judicial scrutiny for more than a century but the convenient starting point is Sisters of Charity of Rockingham v R [1922] 2 AC 315 where the claimants [page 186] owned a school bounded on the west by a road and a railway. On the east side the claimants owned two small promontories of land on the margin of a public harbour on which they had built a bathing house and wharf. The Crown expropriated both promontories on which it built a railway shunting yard. It was held that the retained land had been injuriously affected by the ‘anticipated use’ of works which might be constructed on the two promontories. The court was not concerned with ‘actual user’. If the claim for compensation is determined soon after the resumption it may be that no works will have been undertaken on the land. The depreciation, which must be claimed once and for all, is that due to the anticipated legal use of authorised works which may be or are expected to be constructed on the two promontories. The Privy Council referred to the ‘anticipated construction of authorised works upon land actually taken’ from the claimants (at 328). Three points emerged from Sisters of Charity: (a) injurious affection arose where land was severed; (b) injurious affection related to the works undertaken on the part taken and their depreciating effect on the part

retained; and (c) injurious affection related to anticipated or future works lowering the value of retained land and not to their actual depreciating effect on completion or during construction. The second instalment of judicial scrutiny of injurious affection came in Edwards v Minister [1964] 2 QB 134 where the claimant was the owner of rural land and a new road was built on part of that land. The English Court of Appeal held that if the new road did not impinge upon the land, the owner would have no redress against the promoters but where damage arises partly on the claimant’s land and partly off it, he or she cannot claim the whole damage which has arisen but only that part which he or she can attribute to activities on what was formerly his or her own land. Injurious affection could only be claimed in respect of acts to be done by the acquiring authority upon the severed portion of the owner’s land. Injurious affection could not be claimed for the adverse effect of the scheme as a whole on the retained part of the claimant’s land. The Edwards principle established that any loss or damage caused to the value of the retained land was limited to the anticipated effect of the project to be carried out on the part resumed. Injurious affection did not concern the anticipated effect of the project wherever it was to be carried out. Obviously, in the latter case one would expect the adverse effect to be greater than in the former case. The third instalment came a few years later. Both Sisters of Charity and Edwards were distinguished in Commonwealth v Morison (1972) 127 CLR 32 by the High Court in respect of federal legislation then applicable. The Commonwealth acquired land, used as a sheep station, adjacent to an airport, for an extension of the airport. Before the extension was completed, the airport was unsuitable for use by jet aircraft. After extension it was capable of being used by jet aircraft and was used extensively by them. It was held that in assessing compensation it should be assessed on the footing that [page 187]

allowance should be made for the depreciation in value of the adjacent land caused by the use of the whole of the extended aerodrome. Compensation under this heading was not limited to allowance for depreciatory effects relating exclusively to the construction and use of works carried out on the resumed portion of the owner’s land. Once it becomes necessary to look at the ‘public purpose’ rather than at the exercise of statutory power there is no room for the doctrine confining the inquiry to mischief originating on the portion acquired. Affirming the decision of the Federal Court ((1971) 34 LGRA 273), it may be noted four of the five Justices in the High Court gave separate and different reasons for their conclusions. In the court of first instance separate sums for severance and injurious affection were awarded. At the time the High Court heard the appeal, it knew that the use of the airport for jet aircraft had had a depreciatory effect on the value of the retained land, its proximity affecting privacy, its noise reducing attractiveness, pleasantness and general amenity. In this particular instance at the time of the hearing of the appeal, it had ceased to be a question of future or anticipated use and its consequent depreciation, but in the court of first instance it is clear that the court was examining the future or anticipated effect of the expanded airport. The question then arose whether the Edwards principle or the Morison principle applied to the assessment of compensation for injurious affection in other resumption statutes. The fourth instalment on this issue arose in Queensland where it was held by the Court of Appeal in Marshall v DirectorGeneral, Department of Transport (1999) 106 LGERA 349, where 5,555 square metres of land was resumed for road widening, that the Edwards principle applied and restricted the assessment to the effect of the performance of work carried out on the resumed portion. The court held that it was well settled that the Edwards principle applied. The correctness of Edwards was challenged on appeal where the last instalment was played out. The High Court held in Marshall, above (at [20]), that it was plain in s 20(1) of the Acquisition of Land Act (Qld) in assessing

compensation, regard is to be had not only to the value of the land taken but also to the damage caused by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the remaining, severed land. The section clearly distinguished between the land taken and the severed, retained land. It did not seek to distinguish between the various activities carried out by a constructing authority in the exercise of its statutory powers, for example, the conduct of a survey, the construction of a road, the building of a bridge, the installation of drainage or footpaths beside the road, and the subsequent use of everything that has been done or brought into existence as, and for the purposes of, a road. The section compensated the dispossessed owner for the injurious affection upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective. The High Court added that Morison [page 188] was not an endorsement of Edwards (at [23]) and that its reasoning was ‘in any event unconvincing’ (at [32]). It may be added that Edwards is no longer of consequence in English law. Section 10 of the Compulsory Purchase Act 1965 (England) enabled any landowner to claim for injurious affection resulting from the execution of works irrespective of whether the land was acquired or not. There would not now appear to be any doubt that the Marshall principle applies to the statutory provisions that make express provision for compensation to be paid for both severance damage and injurious affection. The critical issue remains whether the term ‘severance’ in the resumption statutes which omit any reference to injurious affection is sufficiently broad to include what traditionally used to fall under the head of injurious affection. In Mosca v Roads and Traffic Authority (NSW) (2004) 139 LGERA 28 the authority compulsorily acquired 4,954 square metres of a property used for a

dairy farm in October 2002, leaving the owner with the residue divided into two separate portions. The owner, who lived there, ceased to operate the farm and sold most of his livestock. Public awareness of the motorway proposal dated from 1993. There were significant constraints to the development of the land. The primary judge valued the land taken at $941,260 and the injurious affection to the retained land at $278,740. On appeal in Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335 the New South Wales Court of Appeal held that under s 56(1)(a) of the Land Acquisition (Just Terms Compensation) Act (NSW) in respect of the blighting effect created by the motorway proposal, which affected part of the land, the court was bound to disregard any decrease in the value of the resumed land caused by the motorway proposal. The basic principle of compensation law is that land must be valued at the relevant date in its existing condition with its potentialities as potentialities. What could reasonably have been anticipated but for the resumption process was a question of fact, not a question of law. The unrealised potentialities were still there and the matter should be remitted for the compensation to be reassessed. Having earlier ordered a retrial, (2004) 29 WAR 273, the Western Australian Court of Appeal devoted some 50,000 words in Mount Lawley Pty Ltd v Western Australian Planning Commission (2007) 34 WAR 499 to the assessment of compensation for injurious affection to ‘the making of a town planning scheme’ under the Town Planning and Development Act 1928 (WA) s 11. The original hearing had lasted 67 days. The value of the land had originally been assessed at $2.918m. After discussing at length the background and development of the planning scheme, on its second appeal it found that the trial judge had erred in rejecting the evidence of three of the owner’s valuers with no sufficient reason for declining to take their evidence into account (at [374]–[385]). It may be added that this particular legislation has been replaced by the Planning and Development Act 2005 (WA) ss 173– 178.

[page 189]

SOLATIUM [3.34] The issue here is whether in addition to the sum awarded for the value of the land resumed and for other heads of compensation governing disturbance, loss and damage, the dispossessed owner is entitled to an additional sum by way of a solatium, that is to say, a sum to console the owner for his or her injured feelings in being evicted from the land. In the earlier resumption statutes provision was not usually included for payment of a solatium in respect of any hardship, inconvenience, trauma, depression, sentimental attachment, the adverse effect on the owner’s family, or other unspecified loss caused by the resumption. There may be an awareness that the former owner has had to surrender his or her land whereas other nearby owners have been allowed to continue in uninterrupted and peaceful enjoyment. To add a sum to the total may go some way to alleviating the former owner’s sense of loss by paying him or her a slightly larger sum than he or she might have expected had the property been sold on the open market. The underlying scheme of compensation has in the past been to ensure that the former owner is no worse off and no better off as a result of the resumption. The award of a solatium should ensure that the former is no worse off and, on occasions, may be better off. It may not be feasible for the owner to have been compensated for every foreseeable or unforeseeable loss that the dispossessed owner suffers at being evicted from the land. It is a kind of sweetener, perhaps, reflecting some kind of apology. Lands Acquisition Act (Cth) s 60 permits the award of a lump sum payment (as distinct from a percentage of value) where the owner is dispossessed of his or her residence to enable him or her to acquire a ‘reasonably equivalent dwelling’. Land Acquisition (Just Terms Compensation) Act (NSW) s 60(1) permits the award of a solatium for non-financial disadvantage resulting from the

necessity of the person to relocate his or her principal place of residence as a result of the acquisition. It is worth noting that following amendments passed in 2016, all references to the term ‘solatium’ in the Land Acquisition (Just Terms Compensation) Act (NSW) have been replaced with ‘disadvantage resulting from relocation’. Land Acquisition and Compensation Act (Vic) s 44(1) provides that the amount of compensation may be increased by such amount, not exceeding 10 per cent of the market value of the land, by way of solatium as is reasonable to compensate the claimant for intangible and non-pecuniary disadvantages from the acquisition. The Acquisition of Land Act (Qld) makes no provision for the award of a solatium. Land Administration Act (WA) s 241(9) authorises the payment of an additional amount of the compensation awarded of not more than 10 per cent. In exceptional circumstances a larger sum can be awarded. Land Acquisition Act (SA) s 25(1)(g) provides that no allowance shall be made on account of the fact that the acquisition is effected without [page 190] the consent, or against the will, of any person. The paragraph expressly precludes the award of an allowance for such matters as undue hardship and inconvenience. Land Acquisition Act (Tas) s 30(3) permits an award in respect of any hardship that the claimant may suffer when his or her principal residence is resumed because he or she cannot move to another comparable residence solely by reason of age, infirmity or want of means. Lands Acquisition Act (NT) Sch 2 r 9 contains provision for the award of compensation for what is described as intangible disadvantages. Such matters

as the length of time during which the claimant resided on the land may be taken into account. Lands Acquisition Act (ACT) s 50 is similar to the Commonwealth provision, above. Each provision is different. As it currently stands, the Western Australian provision is the most generous and may well be a reason that fewer resumption disputes come to court for resolution than in other states of Australia. Also of note are recent amendments to the Land Acquisition (Just Terms Compensation) Act (NSW) which, under s 60(2), increase the maximum amount of compensation for solatium from $15,000 to $75,000. The term ‘solatium’ under the New South Wales Act is now referred to as ‘disadvantage resulting from relocation’. In spite of the marked increase in claimable compensation for disadvantage resulting from relocation, it is still somewhat less than the potential amount of compensation available to applicants in the Western Australian and Victorian jurisdictions. The award for solatium is a discretionary matter for the court and it is not automatically awarded. As the statutory provisions above show, the award of a solatium may be restricted to the resumption of residential property. Prima facie the onus is on the claimant to claim compensation by way of a solatium. Moreover, such a claim would need to be supported by reasons why any solatium should be awarded. For the most part the award of a sum for a solatium is within the discretion of the court determining compensation. In ordinary circumstances it would be expected that prior to any claim for compensation coming before a court for determination, the acquiring authority would have indicated whether it was willing to pay that particular sum claimed. If, for example, the claim is made in respect of purchasing a residence of a similar character, it would be expected that the claim would give details of the time and money spent in seeking an alternative residence. While some of the provisions focus, or appear to focus, on the personal circumstances of the former owner, there is no rule in respect of the general provisions that excludes claims by corporations even though some of the

criteria specified in the statute may be inappropriate to them: Coastal Estates Pty Ltd v Bass Shire Council (1993) 79 LGERA 188 at 211. In short, evidence will almost certainly be needed to support a claim for a solatium in most jurisdictions. [page 191] In the case of Roads Corporation v Love (2010) 31 VR 451, the court examined the principles of solatium and its application under the Land Acquisition and Compensation Act (Vic). In this case, the Roads Corporation acquired a strip of the applicant’s land in order to widen a roadway. The applicant claimed that he suffered a loss of value for the land as it was to be the site of a potential landfill area. Along with this, an issue also arose as to the applicant’s entitlement to solatium. Section 44 of the Act refers to compensation for solatium to compensate for intangible and non-pecuniary disadvantages resulting from acquisition. The court noted that the phrase ‘intangible and non-pecuniary disadvantages’ was one which was broad and could be flexibly adapted to changes in land use and community values over time. The court also applied March v Frankston City (No 1) [1969] VR 350 which noted that solatium described an award which covered inconvenience and sometimes distress caused by the acquisition of an applicant’s land. The court also ruled that solatium must be considered outside of the other heads of compensation as it represents an aspect of compensation which is generally not able to easily be assessed or specifically provable. The applicant ultimately received solatium because of his strong emotional connection to the property, frustration and stress caused by unreasonable delays in resolving various matters by the acquiring authority along with putting up with noise from rock breaking equipment. In Hoy v Coffs Harbour City Council [2016] NSWCA 257, the resumption of the applicant’s land was initiated through hardship provisions under the

Land Acquisition (Just Terms Compensation) Act (NSW). By s 26 of the Act, special value of land, loss attributable to severance, disturbance and solatium need not be taken into account for owner-initiated acquisition of land in cases of hardship. The valuer-general, in determining an amount of compensation for the applicant, allowed for compensation for solatium. The council argued that s 26 of the Act precluded the valuer-general from doing so. The court found that s 26 conferred a discretion on the valuer-general as to whether to take matters mentioned in s 26 into account when determining the amount of compensation for the applicant. It was not a section which denied outright the ability for applicants to receive compensation, amongst other heads of compensation mentioned in the section, for solatium.

OUTSTANDING PRE-EXISTING CLAIMS [3.35] At the time of resumption each of the interests in the land is, to use the expression in one of the resumption statutes, ‘divested, extinguished or diminished’. The question raised here is: what happens to a claim which the former owner had in respect of the land but which has not been exercised prior to the date of resumption? If the claim was an interest in the land, then it could be taken into account in the assessment of compensation. If the claim, although relating to the land, was not an interest in the land, does the former owner retain a right to make the claim? Or does the claim fall into desuetude? Or does the claim pass to the acquiring authority to exercise? [page 192] The issue has arisen in respect of a claim for injurious affection. To take an example: six months prior to resumption, the claimant’s land is adversely affected by a change in the zoning provisions. Under the relevant legislation the owner has a right to claim for injurious affection against the zoning authority. At the date of resumption the owner has not claimed for

compensation in respect of injurious affection. The land is resumed by a transport authority for the construction of a bus station. The action of the zoning authority is not a step taken in preparation towards resumption. The transport authority values the land as it finds it on the date of resumption. Is the claim for injurious affection to be taken into account in assessing the compensation or is it to be dealt with separately by the former owner? The former owner is no longer the owner. The claim has nothing to do with the acquiring transport authority. The anticipated amount of the claim is not known and uncertain. In Commercial Banking Co of Sydney Ltd v Penrith City Council (1970) 19 LGRA 366 the company owned a corner allotment in the main shopping and business centre of Penrith which was zoned for business and commercial purposes. In March 1960 the land was rezoned partly for local roads and partly for special uses (parking). In consequence, access to the rear of the company’s land was improved. Later a portion of the company’s land was resumed. At the date of resumption the company was entitled to make a claim for injurious affection under local government legislation. No such claim had been lodged. It was held that in assessing compensation for resumption, the court could only award compensation for the damages sustained by the resumption itself. Any claim for loss sustained by reason of the land being injuriously affected by the rezoning was only relevant to the extent that in assessing the loss on resumption, it was necessary to estimate the loss suffered by the company in being deprived of its associated injurious affection claim. A hypothetical prudent purchaser would take into account the possibility of his or her being able to make a claim in arriving at a figure for the value of the land. In Kemp v Gosford City Council (1980) 39 LGRA 266 vacant land was purchased in 1962 which was, at that time, proposed to be zoned residential. In 1968 the subject land was reserved for open space. In 1978 the land was resumed for public recreation. The owner claimed compensation for the resumption and, at the hearing, added a claim for injurious affection under

local government legislation. It was held that under the San Sebastian principle (see 3.21) in respect of the resumption the reservation for open space should be disregarded. The land should be valued on a full, unrestricted residential basis. In consequence a claim for injurious affection was not justified. In Stanfield v Brisbane City Council (1990) 70 LGRA 392 the court assessing compensation took a different approach from Commercial Banking, above. At the date of resumption the claimant had a claim for injurious affection in respect of rezoning under town planning legislation. It was held that the claimant had a right to pursue that claim independently [page 193] of the claim for resumption. The claimant was not deprived of that claim by the resumption. In some cases the claim outstanding may lie against the acquiring authority. If that be the case, it may be more likely that the compensation court would treat the claim as a factor which a hypothetical purchaser would take into account as in Commercial Banking, above. In R v Compensation Court of Western Australia (1990) 2 WAR 242 the claimant had a claim against the electricity authority where the land was later resumed for a variety of other purposes. It was held that, under the legislation applying at the relevant time, the court was invested with sufficient discretion to assess compensation as it considered adequate to meet the special circumstances of the case. The claims that may be outstanding at the time of the resumption may be of a different variety. The solution to a particular problem will depend upon the nature of the claim, the scope of the compensation provisions and the jurisdiction of the court determining compensation.

CONTRACT OF SALE [3.36] At the date of the notice of intention to acquire land compulsorily, or at the date of acquisition, the landowner may be in the course of selling the land to a third party. The effect of the acquisition may be to interfere with the rights of both vendor and purchaser and with the rights of other persons, for example, an estate agent of the vendor. The purchaser may have been in the process of selling his or her own land in order to be able to finance the purchase of the resumed land. The inability of the dispossessed owner to fulfil the contract of sale may have a chain of consequences for other persons. Where the whole of the land subject to a contract of sale is resumed, the effect is to terminate the contract. The contract is frustrated. The vendor is unable to complete his or her side of the agreement. In McMahon v Sydney City Council (1940) 40 SR (NSW) 427 the parties to a contract of sale of the subject land were ready to complete when the land was resumed. It was held that immediately prior to the date of resumption the contract had a two-fold operation. Since it was specifically enforceable in equity it created equitable interests in the land. It also created rights enforceable at common law. The resumption transmuted the equitable interests into claims for compensation. The resumption prevented the contract from being specifically enforced. It prevented any further rights from accruing under the contract either at common law or in equity after the date of resumption. Immediately prior to the resumption the parties to the contract had certain interests in the land and it was by those interests that their claims to compensation should be measured (at 437–8). The practical effect of the notice of intention (see 2.2) to resume land is to freeze all further transactions in respect of the land. The notice of intention is registered in the appropriate titles office (see 2.14) and in consequence all possible future purchasers have notice that the land could not be sold [page 194]

to them until such time as the notice of intention is revoked. There is English authority in Hillingdon Estates Co v Stonefield Estates Ltd [1952] 1 All ER 853 for the proposition that the effect of a compulsory purchase order is that the vendor holds as trustee for the purchaser and that the vendor’s interest in the land is restricted to receipt of the purchase money while the purchaser becomes its owner and entitled to the compensation money. In SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211 and in Holland v Goltrans Pty Ltd [1984] 1 Qd R 18 the English view that the contract could still be carried out was held to be readily distinguishable by reason of the differences in legislation. The effect of the notice of intention and the subsequent confirmation by the notice of acquisition is to vest the land in the authority. It then becomes impossible for the vendor (claimant) to complete performance of the contract, and it follows that he or she cannot under the contract obtain the purchase money from the intending, but frustrated, purchaser. Where part of the land, subject to a contract of sale, is resumed, a question of degree will arise as to whether the contract is capable of being performed. Resumption of a small portion, say, for road-widening purposes, will not necessarily result in frustration of the contract, but where the greater part of the land is taken the contract may be brought to an end, leaving the unresumed portion in the hands of the claimant. In Austin v Sheldon [1974] 2 NSWLR 661 the vendor contracted to sell seven acres to the purchaser but prior to completion of the contract the local council resumed six acres. It was held that the effect of the resumption was to translate the parties’ interests into claims for compensation. Where a small portion of the land subject to a contract of sale is resumed, the resumption may not frustrate the contract but the vendor and the purchaser would both have claims for losses resulting from the resumption, even though the contract was not wholly frustrated. Where the land, subject to a contract of sale, is resumed, the total amount of compensation payable to the interests of the vendor and the purchaser may exceed the purchase price stated in the contract which, presumably, reflects

the market value of the land at the date of resumption. In Rivers v Minister of Education (1975) 12 SASR 321 the vendors contracted to sell the land as land subdivided into serviced allotments. The contract required the vendors to bear the whole burden of bringing the land into subdivision. For this purpose the vendors entered into a contract for the provision of sewerage and water to each of the proposed allotments. Before the completion of either contract the land was resumed. It was held that the vendors’ loss was the loss of the benefits of their contract. In the face of a binding contract of sale, which could and would have been performed on both sides but for the resumption, it is unrealistic to approach the question of compensation by embarking upon an inquiry into the market value of the land by inquiring what a hypothetical purchaser might be prepared to pay for the land as broad acres, with its established potential for subdivision, and upon the footing that a hypothetical purchaser would expect to make [page 195] a profit upon the sale of the land in allotments after incurring the expenses of subdivision. The dates of the contract of sale and of the compulsory acquisition being different, it is not appropriate to take the contract price as the value of the land for the purpose of the hypothetical subdivision basis of assessment. Where the land, subject to a contract of sale, is resumed, both the vendor and the purchaser may be said to have equitable interests in the land and to be entitled to compensation for their respective losses. In Fisher v Minister (1980) 38 LGRA 412 the claimant was a purchaser of two pieces of land under contracts of sale. The first contract of sale was subject to a condition requiring the obtaining of subdivisional approval by the local authority, and the second was subject to due completion of the first contract. At the time of compulsory acquisition the purchaser had paid a deposit, but the balance of the purchase

money was outstanding. Subdivisional approval had not been sought at the time of acquisition. It was held that the purchaser was an owner in equity of the lands and was entitled to claim compensation. The interest did not depend upon the purchaser being able to obtain a grant of specific performance. Where land subject to a contract of sale is resumed, in addition to the vendor and the purchaser, other parties may suffer loss and claim compensation even though it may be doubtful whether they have an interest in the resumed land. In Rivers, above, it was held that in accordance with the principles of law applicable in cases of frustration the agent who negotiated the contract was entitled to a pro rata payment of his commission. Whether a person who suffers loss due to the frustration of a contract of sale caused by the resumption, to which he or she is not a party, is entitled to recover compensation for loss is doubtful. Is, for example, a bank which is lending the money to the purchaser for the purchase of the land, entitled to claim for any loss, such as the cost of valuing the land? The resumption statutes specify that claimants should have an interest in the resumed land but this kind of loss is foreseeable if unexpected. In addition to contracts of sale, other contracts made by the owner with other persons may be frustrated. The owner may have entered into a contract with a builder for the construction of a building on the land. The building may be nearing completion at the time of the resumption. The effect of the resumption is almost certainly likely to terminate the contract unless the acquiring authority undertakes to step into the shoes of the owner and accept responsibility for the completion of the contract. The builder may not have a legal interest in the land but in this instance he or she probably has an equitable interest in the land. A matter of ordinary justice requires the builder to be compensated for the sudden termination of the contract. In Wellington City Corporation v Berger Paints NZ Ltd [1975] 1 NZLR 184 at 196 it was observed that the expression ‘estate or interest in, to or out of land’ in the

relevant resumption legislation should receive a wide meaning. Prima facie a builder should be entitled to compensation in these circumstances. [page 196] The effect of resumption upon a contract made between a city council and the landowner was considered by the High Court in Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143. At the date of resumption the landowner was subject to obligations in respect of a deed, a bond and a mortgage. It was held they ceased to be binding on the parties. The effect of the resumption legislation was to extinguish the fee simple upon resumption and the land became Crown land. Under the relevant legislation certain town-planning processes which occurred after the date of resumption were of no effect. Two Justices held the contract to be frustrated by the resumption but three Justices declined to categorise the effect of the resumption as being to frustrate the contract on the ground that the principal issue was whether the Crown was bound by the town plan and it was not necessary to consider frustration. Non-disclosure by a vendor that land, subject to a contract of sale, is to the knowledge of the vendor subject to a threat of resumption, has been held not to be a ground for avoidance of the contract by the purchaser: Tsekos v Finance Corporation of Australia Ltd [1982] 2 NSWLR 347.

LEASES [3.37] In respect of leases the right to claim compensation for resumed land is subject to each claimant establishing that he or she has an interest in the land. If the land is leased, it follows that the lessor and the lessee have separate interests in the land. There may be more than one lessee and there may also be sublessees. Each has an interest in the land. If the owner holds the fee simple interest in the resumed land and no other person possesses or

holds any other interest in the land, the task of assessing compensation involves making a single award. The valuation of leasehold interests can be more difficult to assess. A lease is an agreement made in a proper form by which the exclusive possession of the land is vested in the lessee by the lessor for a certain term. Compensation to a lessee for land compulsorily acquired is assessed on the basis of the term of occupancy which the lessee can enforce at law under the terms of the lease. In short, the lessee is entitled to compensation in respect of the loss of the unexpired term of the lease. In valuing the interests of the lessor and lessee, the Spencer principle (see 3.14) applies. The question is what would the hypothetical seller and the hypothetical buyer intent on reaching agreement pay for the lessee’s interest or the lessor’s interest. In determining the value of a lessee’s interest the prudent hypothetical buyer would take into account the length of time that the lessee may be assured of exclusive occupation. One of the issues which arises in respect of the valuation of a leasehold interest is whether in the particular circumstances there is a probability of the lease being renewed and, if so, whether that is a factor to be taken into account in determining its value. The lessee may have a reasonable expectation that the lease will be renewed. So may the lessor who may also be optimistic that the rent will be increased. While it was held in Robert [page 197] Reid & Co v Minister for Public Works (1902) 2 SR (NSW) 405 at 414 that the court was entitled to take into account the expectancy of leases being renewed, current authority does not support that proposition. The High Court has held that the court is not at liberty to take into account the probability of the lessee obtaining a further occupation of the land arising out of the personal relationship of the lessor and lessee to one another: Minister v

New South Wales Aerated Water & Confectionery Co Ltd (1916) 22 CLR 56. In Pengley v Commissioner for Railways (1952) 68 WN (NSW) 25 it was held that it is an established principle that a mere hope or expectation that a lease will be renewed does not give a lease a longer life. In Drake v Brisbane City Council (1973) 40 QCLLR 208 it was held that the prospect of a further lease being granted was not to be taken into account. The interest of a lessee is limited to his or her right of occupancy for a definite period. The position would, of course, be different if the lease contained an option for renewal of the lease. Some of the resumption statutes have changed the rule that an expectation of renewal of the lease cannot be the subject of a claim for compensation upon resumption terminating the lease. Lands Acquisition Act (Cth) s 55(2) (d), Land Acquisition and Compensation Act (Vic) s 41(6), Land Acquisition Act (SA) s 25(1)(d), Lands Acquisition Act (NT) Sch 2 r 6 and Lands Acquisition Act (ACT) s 45(2)(d) provide that if the interest of the claimant was due to expire or was liable to be determined, the court must take into account any reasonable prospect of renewal or continuation of the interest. Land Acquisition Act (Tas) s 33(1)(d) has moved in the opposite direction: any expectation by a claimant who was a lessee that the claimant’s lease would be renewed, other than an expectation based on an option of renewal in the lease contract, must be disregarded. Proving the ‘likelihood of the continuation or renewal’ of the lease on the balance of probabilities may present a difficulty for the claimant. Evidence may depend on either subjective or objective factors (or both). If it can be shown that a willing purchaser of the interest of either the lessor or the lessee would as a matter of prudence take into account the likelihood of the lease being renewed, it would seem logical to argue that the likelihood factor is part of the market value of that interest and is capable of being given a value. If the lease is one of 50 leases operating in a shopping centre and it can be shown that nine out of ten leases have been renewed on similar terms and conditions, that objective factor would often justify the inference that it is

more likely than not that the lease would be renewed. Again, when the land is suddenly resumed, the lessor and the lessee may have been discussing the possibility of renewing the lease when it expires in nine months’ time. The fact that both parties had expressed an intention, even if not binding on either party, to renew the lease is not to be regarded as irrelevant. On the other hand, if the lessor has, prior to resumption, intimated to the lessee that he or she does not intend to continue or renew the lease, this may be a critical factor in showing that there is little likelihood of continuation or renewal. [page 198] There is a wide variety of terms in leasehold agreements and the precise nature of a leasehold agreement may depend upon the terms and conditions of the lease. Some leases may be affected by statutory conditions and such conditions may affect the determination of the amount of compensation. For example, in Rugby Joint Water Board v Foottit [1972] 1 All ER 1057 it was held that the agricultural tenants on leases which the landlords could determine on giving 12 months’ notice, but with a statute which debarred the landlords from obtaining possession virtually for the tenants’ lives, fell to be valued on the basis that they were not protected by statute. At the date of resumption a lease may be due to expire in, say, six months’ time. The resuming authority may not wish to take possession and enter the land until after the expiry of the lease. It may not wish to disturb the lessee’s occupation. If the lessee remains in occupation for the six months, it may be argued that the lessee has incurred no loss and is not entitled to compensation. In London Borough of Newham v Benjamin [1968] 1 All ER 1195 it was held that in respect of the relevant legislation applicable compensation does not fall to be assessed immediately but waits until possession is required by the authority and in consequence a lessee has no right to compensation where the authority takes possession after the expiry of

the lease. The effect of the notice of resumption in Australian jurisdictions is different. The effect of the notice of resumption is to divest or extinguish all the existing interests in the land at the date of resumption, not at the date of entering upon the land. In ordinary circumstances, continuation of occupation depends upon an agreement between the authority and the tenant (see 2.20). The onus is upon the claimant to establish that the interest in respect of which compensation is sought is in law a leasehold interest. If the matter is in doubt and the acquiring authority is not satisfied that the claimant does have a leasehold interest, it may fall to the court or tribunal assessing compensation to determine whether a leasehold interest does exist. In Claude Neon Ltd v Melbourne and Metropolitan Board of Works (1969) 20 LGRA 1 the owner of an hotel purported to lease to a company a portion of the hotel building for the purpose of erecting an electronic advertisement on it. The ‘lease’ was for four years with the right of renewal for five years. The hotel was compulsorily acquired. The High Court held that it was possible to take ‘leases’ of such sites and, prima facie, therefore the company became entitled to compensation for the taking of the company’s right of privilege in, over and affecting the land. While there are dissenting dicta to the effect that the agreements were ‘licences’ to use part of the buildings for stipulated purposes, rather than demises of parts of the freehold, for the purposes of resumption it would seem that the company did have an interest in the land. Apart from a lease created by two private persons, there is a variety of different leasehold interests created by the Crown which are governed by legislation. In such cases the Crown may be resuming a leasehold interest in which it is the lessor. Such resumptions may be governed by [page 199] special legislation or they may incorporate the provisions of the general,

procedural resumption statute. Compensation may be determined in accordance with special provisions where compensation is restricted by statute: Taylor v Minister for Lands (NSW) (1975) 132 CLR 235, affirming [1973] 1 NSWLR 352. It is not uncommon for a lessor and lessee to make provision in the lease for the possibility of resumption. For example, in Manly Municipal Council v Lenarker Pty Ltd (1986) 4 BPR 97,258 a lease provided that if the whole or any part of the demised premises should be taken for any public purpose then the lessor should be entitled to terminate the lease. Subsequently the lessor entered into an agreement concerning the development of the land that involved the authority having part of the land for a public road. The lessor purported to terminate the lease. It was held that there had been no ‘taking’. For the purposes of the lease it could not be said that there had been a compulsory acquisition for a public purpose without the consent of the owner. The local authority acquired the land by an agreement with the lessor. However, if there had been a resumption notice issued under the relevant legislation then the lessor would have been entitled to terminate the lease. There is no authority for the proposition that such an agreement would not have been enforceable. Another illustration of the parties to the lease foreseeing the possibility of resumption occurring arose in Ramsdale Pty Ltd v Roads Corporation (Vic) (1992) 76 LGRA 411 where the premises were leased in 1983 for 10 years, with an option for a further three years, with power to terminate on notice after 1993. The land was resumed in August 1990. The lease contained an acknowledgment by the lessees that they had no claim for compensation in the event of resumption. The owner had a planning permit in 1983 to erect food premises on land that was reserved as a main road. The permit could be terminated after 1993. It was held that the condition in the permit as to possible termination after 1993 was a restriction upon the use and development of the land in consequence of a reservation for a public purpose in a planning instrument and under the San Sebastian principle (see 3.21)

was to be ignored. The nature and extent of the interest to be valued was, on a proper construction of the permit and the lease, a leasehold term of 10 years with an option for a further three years with the effect of earlier termination being negligible. The compensation for the loss of the fast food business conducted by the lessee was to be assessed on the past takings averaged over three years. The issue to arise in Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 was how to value leasehold interests where there was a probability of a merger between the two interests which might give the land a greater value as a single entity as distinct from the value of the two interests. The issue arose out of the resumption of a sublease in Luna Park, Sydney, that was due to expire at the end of 2011. It was held that where it is necessary to value a leasehold interest and it can be shown that if the interests of the lessee and the lessor were merged the value of the [page 200] two combined interests would be substantially greater than the sum of the values of the two interests if they were treated as continuing to be separate and where such difference is explained by the difference between the use of the land possible by the holder of either interest inhibited by the existence of the other and the best use of the land if the interests were merged, it is reasonable to suppose that a potential purchaser of the leasehold interest would be prepared to pay something to take account of the possibility of such a merger brought about either by the lessee surrendering its lease for value or the freeholder extending the term of the lease. A valuation of the leasehold interests in such circumstances should reflect that probability of merger. But the probability and hence what should be reflected in the valuation depends upon whether all the parties to the potential merger would be able and

willing, by joining in the merger of their interests, to advise the best use of the land contemplated as the basis of the valuation (at 228). In Home Care Services (NSW) v Albury City Council (2004) 136 LGERA 117 the council compulsorily acquired a lease which had been created by the Home Care Services Act 1988 (NSW). On being given notice of the acquisition the tenant leased new premises on a larger area of land (150 square metres as compared to 101 square metres) at a rent substantially more than the rent being paid for the acquired land. The principal claim was for disturbance under the Land Acquisition (Just Terms Compensation) Act (NSW) s 59(c) for ‘financial costs reasonably incurred in connection with the relocation’ totalling $98,000. The council argued that the claimant had acquired more space than it had in the acquired land and offered $67,000. It was held that in the circumstances the question was not to be resolved by exploring the limits of the valuation doctrine of reinstatement but the relocation was reasonable and the expenses were reasonably incurred.

MORTGAGES [3.38] In addition to a mortgagor, the mortgagee has an interest in the resumed land and is entitled to claim compensation in respect of the value of the mortgage. The amount of a mortgagee’s interest is generally a precise, ascertainable sum of money that can be readily ascertained from the terms of the mortgage agreement. The effect of the resumption is to terminate the agreement. The mortgagor ceases to be liable to the mortgagee for any payments outstanding after the date of resumption. The mortgagee has a claim for compensation and in normal circumstances is one of the first claimants to be paid by the acquiring authority where there is no doubt about the value of that interest in the land. Each of the resumption statutes contains express provision for the payment of compensation for the mortgage interest in the land. There is a wide variation in the amount of detail contained in the mortgage provisions in the

resumption statutes. Lands Acquisition Act (Cth) ss 53, 62, 64–69, 84 and 92 devote some 1,500 words to the subject. This is nearly matched by the Land Acquisition and Compensation Act (Vic) ss 68–73. [page 201] Land Acquisition (Just Terms Compensation) Act (NSW) s 65 manages to deal with the whole subject in less than 100 words. Acquisition of Land Act (Qld) s 32 deals with the topic in less than 200 words. Land Administration Act (WA) s 251 nearly wins the prize for brevity, needing only 80 words. Land Acquisition Act (SA) s 26 is not far behind and covers other interests in addition to mortgages. Land Acquisition Act (Tas) s 34 devotes about 500 words to the subject. Lands Acquisition Act (NT) Sch 2 r 10 takes first prize in needing only 50 words to state that a mortgagee’s compensation cannot exceed the amount of compensation payable for the acquisition of all the interests in the land. In the lengthy provisions governing payment of compensation to mortgagees, considerable thought has been given to unusual situations. Section 64(1) of the Commonwealth Act limits a mortgagee’s claim to a mortgage that is not barred by the statute of limitations and is secured by the mortgage by exercising a power of sale. Section 64(2) defines from what date interest is payable. Section 65(1)(b) entitles the mortgagee to claim for legal or other professional costs. Section 66 entitles the minister to require particulars relating to the mortgage. Section 68 covers the effect of a compensation claim in respect of acquisition of a mortgage interest. In the Victorian Act, s 68 gives power to the acquiring authority to redeem mortgages. Section 69 provides for the deposit of mortgage money on refusal to accept. Section 70 provides for the sum to be paid when the mortgage exceeds the value of the land and s 72 deals with the subject where part only

of the mortgaged land is taken. Many of the matters contained in the Commonwealth and Victorian provisions are left open in other jurisdictions. The statutory provisions governing mortgage interests seldom require the mortgagor to inform the mortgagee of the fact that the authority either intends to resume the land or has been served with a notice of resumption. A mortgage is generally registered in the titles office and the acquiring authority can readily discover that a mortgagee has an interest in the land and can serve the appropriate notices on the mortgagee. In ordinary circumstances the compensation to be paid to a mortgagee will be a sum which reflects the principal secured, the interest due, the costs and charges due to the mortgagee and a sum in respect of the equity of redemption. In the event of the mortgage exceeding the value of the land, some of the statutory provisions provide that the value of the mortgage cannot exceed the value of the land. In this respect the statutory provisions may be said to reflect the Spencer principle (see 3.14), namely, that the value of a mortgage interest is what a willing buyer would pay a willing seller to buy that interest and a willing buyer would not pay more than the value of the land. The mortgagee is entitled to the satisfaction of the mortgage debt so far as the value of the land will extend. In the event that the amount due in discharge of the mortgage at the date of resumption is in dispute, some of the statutes provide that the matter should be settled by agreement between the mortgagor, the mortgagee and [page 202] the acquiring authority. In the event of there being no agreement between the three parties, the value of the interests of the mortgagor and the mortgagee shall be determined as in other cases of disputed compensation.

EASEMENTS

[3.39] ways.

In resumption law the subject of easements arises in one of three First, the acquiring authority may resume land in which there is already an existing easement vested in the neighbouring land (the dominant tenement). Second, the land resumed (the dominant tenement) may have the right to an easement over neighbouring land. Third, the acquiring authority may wish to acquire an easement or a right in the nature of an easement only. It does not compulsorily acquire the other interests in the land. It may take only a right in the nature of an easement. Usually this is described for convenience as an easement or a statutory easement. Frequently the acquiring authority does not possess land next to the resumed land and does not own a dominant tenement.

An easement is a right attached to one particular piece of land that allows the owner of that land to use the land of another in a particular manner or to restrict its use by that other person to a particular extent. An obvious example is a right of way, a positive easement that permits a person to do something on the land of another. The easement provides access for the owner of the land across another’s land. Another example of a type of easement is a right to light, a negative easement that signifies that an adjoining owner may not build above a certain height so as to obstruct the flow of light. Another example is a profit à prendre, a right to take something from or off another’s land, say, sand and gravel. The effect of the resumption is to extinguish such easements: Commissioner of Railways and Tramways v Attorney-General (NSW) (1909) 9 CLR 547. In accordance with the ordinary principles of compensation the onus is upon claimants to establish that they have a right or title to an easement in respect of the land resumed. A preliminary issue may arise as to whether the right claimed is an easement and thus an interest in the land resumed. In Commissioner for Main Roads (NSW) v North Shore Gas Co Ltd (1967) 120

CLR 118 the resuming authority acquired land for an expressway. A company supplied gas to its customers by mains and pipes laid beneath the surface of the land resumed. The High Court held that the company’s rights in the mains and service pipes were neither land nor an interest in land within the meaning of the resumption statute then applying. The exercise of the right to lay pipes in another’s land was not intended to make, and did not make, for the better and fuller enjoyment of the land and the right, when exercised, conferred a right to occupy some part of the land in a very limited and special way. The power to lay pipes was in the nature of a [page 203] privilege. In this instance the acquiring authority bore the cost of relocating the mains and pipes and the company was held not to be entitled to further compensation. However, it may be noted that where an ‘interest’ in land is expressly defined to include a ‘privilege’, for example, Lands Acquisition Act (Cth) s 6(1) and Land Acquisition and Compensation Act (Vic) s 3(1), it may be argued that pipes and mains beneath the surface of the ground do constitute a proper subject for the claim for compensation where loss is incurred. The existence of an easement in or over the resumed land may have had the effect of depreciating the market value of the land. In accordance with the Rosenbaum principle (see 3.10) the value of the land subject to the easement and the value of the easement are the subject of separate claims and separate assessments. Where land is compulsorily acquired and that land has an easement over neighbouring land, there is English authority for the proposition that an easement will not be included within the taking. In Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 land was acquired for housing purposes. The rights were not expressly included in the compulsory

purchase order. The House of Lords held that since none of the ancillary rights had been specified in the order, the order was ineffective to pass such rights to the acquiring authority. It follows that where an authority wishes to acquire an easement which the dispossessed owner had at the date of resumption in neighbouring land, the notice of taking should expressly include the taking of such easement. Alternatively, there must be a separate and distinct notice of taking of the easement. In some instances, the existence of the easement may be of no consequence to the authority and it does not matter whether it acquires it or not. The applicability of Sovmots to Australian resumption statutes may be doubtful or arguable. The resumption statutes speak of the extinguishment of all interests in the land and the vesting of those interests in the acquiring authority. Prima facie, the authority acquires the right of the easement which runs with the land over the neighbouring land. Most of the resumption statutes are silent on the subject of easements. There are, however, three exceptions. Land Acquisition (Just Terms Compensation) Act (NSW) s 62 is a special provision relating to acquisition of easements or rights in respect of tunnels. Section 62(1) provides that if the land acquired consists only of an easement, or right to use land, under the surface for the construction and maintenance of works (such as a tunnel, pipe or conduit), compensation is not payable except for actual damage done in the construction of the work or caused by the work. In Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW) (1997) 96 LGERA 164 an easement was acquired over a golf course for the construction of a tollway. The easement was required to facilitate the installation of underground rock anchors. The golf club sought compensation for the disturbance caused to the soil. It was held that no compensation was payable. Any right to have the soil undisturbed was merely incidental to the [page 204]

easement for the rock anchors. In Bligh Consulting Pty Ltd v Ausgrid [2016] NSWLEC 75 the acquiring authority resumed three easements on the applicant’s land in order to build an electrical substation on neighbouring land. The easements acquired for a rock anchor, as it was situated below the ground and caused no disturbance to the surface or land above, was within s 62. However, compensation was paid for the temporary easements for a crane swing and scaffolding. Acquisition of Land Act (Qld) s 6 authorises a constructing authority to take an easement. Land Administration Act (WA) s 195 authorises an acquiring authority to take an easement notwithstanding the absence of a dominant tenement. Section 196 authorises the creation of public access easements, such as a right of way for the use and benefit of the public at large. Where the acquiring authority acquires an easement, that is, an interest in land, it follows that the authority has the same powers of entry and inspection as if it were resuming the fee simple in the land. The authority may enter the land and undertake such works as are compatible with the exercise of the easement rights: Brisbane City Council v Amstad (No 3) [1968] Qd R 371. The term ‘easement’ is often used to describe the power of an electricity authority to install pylons and transmission lines over privately owned land. In strict land law there is an absence of a dominant tenement. The use of the pylons and transmission lines is exclusive to the electricity authority. The easement acquired will, in most instances, not have previously existed. The electricity authority creates a new interest. It does obviously have to pay compensation. This may not be a negligible amount as was demonstrated in Arrow v Electricity Commission of New South Wales (1994) 87 LGERA 363 where an easement was resumed for the construction and maintenance of an electricity transmission line over the corner of a grazing property. The resumption destroyed the potential of the land for subdivision of part of the property. The compensation for the destruction of the subdivisional potential was assessed at $70,000 and the injurious affection to the property as a

grazing property containing a modern residence was assessed at $30,000. As was observed in Longeranong Pty Ltd v Electricity Trust of South Australia (1990) 55 SASR 493, the effect that the erection of steel towers and power lines is likely to have on a hypothetical purchaser, who has seen the land without the towers and lines and then sees the land with them, may result in the purchase price dropping dramatically. In Tasmania v Effingham Pty Ltd [2005] TASSC 55 a pipeline easement was compulsorily acquired. It was 20 metres wide and 5.6 kilometres long. It ran through the owner’s land of 2,471 hectares which was made up of 12 contiguous parcels with separate certificates of title. The authority offered compensation amounting to $37,793 and the owner claimed $140,000. The court determined a sum of $73,857. [page 205] The terms of the easement will be relevant in determining the compensation payable. In Sydney Water Corporation v Besmaw Pty Ltd [2002] NSWCA 147 the easement for sewerage pipes included a restriction on damaging the pipes that resulted in the closure of a driveway to an industrial property and developing alternative access. This resulted in significant compensation. By contrast, in Tempe Recreation (D500215 & D1000502) Reserve Trust v Sydney Water Corporation [2013] NSWLEC 221 the easement for a water pipeline was more limited as it restricted the works that could be done above the ground.

LESSER INTERESTS [3.40] The statutory definitions of ‘interests’ in land (see 1.21) include a reference to some of the lesser interests that may exist in resumed land. In particular, reference may be made to charges, equitable estates or interests, incumbrances, native title, powers, privileges, rent charges, restrictions,

restrictive covenants and rights. Land Acquisition (Just Terms Compensation) Act (NSW) s 20(1)(b) states that the resumed land is ‘freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land’. It follows that the holder of any of these rights is entitled to claim compensation. Notwithstanding the fact that a contract for the hire of a building for a special purpose may not strictly in land law amount to an interest in the resumed land, the hirer who incurs loss due to the resumption may be entitled to claim compensation. While there is no doubt that an easement is an interest in land and comes within each of the statutory definitions of the term ‘interest’, it is impossible to draw a definite boundary around the term. The starting point is often to establish the existence of loss and from there determine whether it comes within a wide definition of interest. In Hua v Hurstville City Council [2010] NSWLEC 61 the Court held that even a license coupled with an interest will be sufficient to meet the requirement to hold an interest in land for the purposes of a compensation claim. A series of cases in New South Wales have considered the claims by local councils where land is compulsorily acquired. Crown land under the control of council as a public reserve under s 48 of the Local Government Act 1993 (NSW) was held not to give council an interest in the land: Hornsby Shire Council v Roads and Traffic Authority (NSW) (1998) 100 LGERA 105. However, where council held Crown land as trustee and manager of a reserve trust, then council did have an interest in land: Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75. Similarly, where council held land as trustee for a charitable trust it had an interest in land and was the appropriate party to claim for compensation: Willoughby City Council v Roads and Maritime Services [2014] NSWLEC 6. [page 206]

LEGAL AND VALUATION EXPENSES [3.41] The question at issue here is whether a claimant may include as part of the claim for compensation, legal and valuation expenses incurred in: (a) preparing a claim; (b) considering and examining an offer of compensation from the authority; and (c) negotiating the matter of compensation with the authority. These expenses are likely to occur before proceedings are instituted in a court or tribunal to determine the amount of compensation payable. When proceedings are commenced the question of costs of the action becomes a different and separate matter to be decided by the court or tribunal (see 3.46). In the absence of express statutory provision there is English authority (Harvey v Crawley Development Corporation [1957] 1 All ER 504; Horn v Sunderland Corporation [1941] 1 All ER 480) for the proposition that a claimant is entitled to the cost of employing lawyers and valuers to prepare the claim. It may fall under the heading of disturbance. There is also, however, Australian authority (Minister for Army v Pacific Hotel Pty Ltd (1944) 68 CLR 310n; Duncan v Minister of Education [1969] VR 362) for the proposition that a claimant is not entitled to the cost of employing lawyers and valuers to prepare a claim. Both cases related to legislation which has been replaced. Lands Acquisition Act (Cth) s 55(2)(e) provides that in assessing the amount of compensation, regard shall be had to legal or other professional costs reasonably incurred in relation to the acquisition. Land Acquisition (Just Terms Compensation) Act (NSW) s 59(a) provides that loss attributable to disturbance includes legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition. Section 59(b) provides that loss attributable to disturbance includes valuation fees reasonably incurred by those persons in connection with the compulsory acquisition. Land Acquisition and Compensation Act (Vic) s 41(1)(f) provides that

compensation shall include any legal, valuation and other professional expenses necessarily incurred by the claimant by reason of the acquisition of the interest. Section 41(4) provides that the expenses referred to in s 41(1)(f) do not include any costs incurred by a claimant in the course of prosecuting a disputed claim under Pt 10 (ss 80–98). Both subsections were examined in Roads Corporation (Vic) v Love (No 2) (2005) 23 VAR 304 where it was held that legal and other professional expenses may be claimed under s 41(1)(f) notwithstanding they are incurred after the referral of a disputed claim to the court or to the Victorian Civil and Administrative Tribunal or, for example, where they are incidental to the cost of relocating. Under s 41(4) costs are not claimable when they are incurred by a claimant prosecuting the proceeding. The costs of formulating a claim to contest an offer by an acquiring authority and prosecuting a claim in the court are properly dealt with as costs of the proceeding. [page 207] In King v Minister for Planning and Housing [1993] 1 VR 159 negotiations for the purchase of land took place between the owner and the authority. No agreement was reached and the authority resumed the land. The claim for legal, valuation and other professional expenses under s 41(1)(f) included expenses incurred during the negotiations prior to the resumption. It was held that it was expenditure of a nature that would have had to be incurred in any event for the proper disposition and presentation of an initial claim for compensation and represented rights to compensation that had traditionally existed. Lands Acquisition Act (ACT) s 45(2)(e)(i) provides that in assessing compensation regard shall be had to any legal or other professional costs incurred by the claimant in obtaining advice in relation to the acquisition, the entitlement to compensation or the amount of compensation. Section 109

governs the award of costs in administrative appeal tribunal proceedings. The tribunal may recommend to the attorney-general that the executive should pay the whole or part of the costs. Where there is no express mention of legal and valuation costs in the resumption statute the provisions governing the quantum of compensation may be sufficiently broad to allow for legal and valuation expenses to be paid. Land Administration Act (WA) s 241(6)(e) provides that regard is to be had to the loss sustained by reason of ‘any other facts’ which are considered just to take into account. This provision takes its inspiration from the Public Works Act 1902 (WA) s 63(aa)(v) and may be wide enough to permit the authority or the court to pay legal and valuation costs. Lands Acquisition Act (NT) Sch 2 r 2(d) likewise may allow for the payment of legal and valuation costs incurred before proceedings are instituted to determine the compensation payable. This possibility also arises in respect of Land Acquisition Act (Tas) s 27(1)(g). There may also be an argument for including a claim for legal and valuation expenses under the heading of disturbance. In Kirela Pty Ltd v Minister Administering Environmental Planning Act 1979 (NSW) (2005) 141 LGERA 40 the owners claimed $12m and the minister offered $2,913,150. It was held that the maximum value of the land was $4,750,000. The owners claimed the fees paid to a town planner and to a surveyor under the heading of disturbance, but this claim was rejected. Legal, valuation and other professional expenses may be incurred at different stages. A landowner may have good grounds for believing that a notice of intention will be served on him or her. Without waiting for the notice, the owner may engage the services of lawyers, valuers and other professional persons to advise him or her. Soon afterwards the notice of intention arrives. In the light of the professional advice given, a claim is prepared. If it includes a claim for professional expenses, it will become a question of whether the compensation provisions permit such a claim. If the claim is rejected, additional professional expenses may be incurred in

referring the question of compensation to a court or tribunal. At that point the claim for legal and other expenses in respect of the case may be [page 208] determined by the court or tribunal as forming part of the costs of the action. If successful in respect of the claim, the claimant may expect to be awarded the costs of the action. If unsuccessful, the claimant can expect not to be awarded his or her costs, but may also be required to bear the costs of the successful authority. It may be necessary for the claimant to distinguish between legal expenses incurred in preparing a claim for submission to the authority and legal expenses incurred in referring the issue to a court or tribunal.

ADVANCE PAYMENT [3.42] One of the disadvantages of regarding resumption as a compulsory purchase of land was that payment of the purchase price tended to be left to the end of the process. It was the final settlement and was not due until the owner vacated the land. Over the years most of the resumption statutes began to reflect the belief that better efforts should be made to enable the authority to assist the owner with relocation before he or she was required to vacate the land and allow the acquiring authority to take possession. In the case of a voluntary sale of land the vendor normally makes plans to obtain alternative land. A sale does not normally occur suddenly and without warning. The vendor makes his or her own decision to sell. That does not occur in resumption. One of the ways in which a claimant is assisted by the acquiring authority is by arranging for an advance payment of part or the whole of the compensation estimated by the authority to be paid to the owner. Lands Acquisition Act (Cth) s 85(1) authorises the payment of an advance. By s 85(2), where the minister has accepted a claim for compensation and

made an offer to the claimant, the minister shall make an advance. Provided these two conditions are met, the minister is under a duty to make the advance. By s 85(3) the advance shall not be less than 90 per cent of the amount of the minister’s offer. By s 85(4) the mere receipt by a person of an advance on account of compensation does not constitute an acceptance of any offer made by the minister. Land Acquisition (Just Terms Compensation) Act (NSW) s 48(1) authorises the payment of an advance. Section 48(2) requires the claimant to apply for an advance payment. By s 48(3) the acceptance of an advance does not constitute an acceptance of the authority’s offer. By s 48(4) if there is an overpayment, the claimant must repay the amount of the excess. Section 48 probably limits the amount payable to the authority’s estimate of compensation but it does not limit the amount to any percentage of that estimate. Land Acquisition and Compensation Act (Vic) s 51(1) entitles the claimant to apply for an advance of ‘an amount equal to the amount of compensation offered’. Section 51(2) imposes a time limit of one month on the authority to make the payment. Section 51(3) requires the advance to be $5,000 or more. Section 51(4) and (5) relates to interest. Section 51(7) [page 209] enables the authority to claim any overpayment and s 51(9) provides that any advance paid shall not prejudice a final settlement. Acquisition of Land Act (Qld) s 23(1) enables the claimant to apply for an advance at any time after delivering the claim to the constructing authority. By s 23(3)(a) where the constructing authority has made an offer the advance shall not exceed that amount. By s 23(3)(b) where the constructing authority has not made an offer the amount of the advance shall not exceed its estimate of compensation payable. By s 23(4) the advance should be paid within 90

days. Section 23(5)–(7) requires the authority to be satisfied about taxes, rates and mortgages. Land Administration Act (WA) s 248(1)(a) authorises the acquiring authority to offer to pay an amount as an advance payment. Section 248(2) provides that if the authority has made an offer of compensation and the claimant has not accepted, the claimant may require the authority to pay an amount of not more than 90 per cent of the offer as an advance payment. Neither the Land Acquisition Act (SA) nor the Land Acquisition Act (Tas) makes express provision for the payment of an advance before the amount of compensation payable has been agreed or determined. Lands Acquisition Act (NT) s 62(1) provides that where the minister makes an offer of compensation, 90 per cent of that amount is payable to the claimant. Section 62(2) authorises the acquiring authority to claim any money that exceeds the amount of compensation determined. Lands Acquisition Act (ACT) ss 70 and 91 are similar to s 85 of the Commonwealth Act. A number of these statutory provisions enable the authority to recoup any excess amount by which the advance payment exceeds the amount that is subsequently agreed or determined. One of the issues to arise in Wollong Pty Ltd v Shoalhaven City Council (2002) 122 LGERA 331 was whether the New South Wales Land and Environment Court had jurisdiction to determine a claim for overpayment. In November 1998 the council paid $717,093, being 90 per cent of the valuer-general’s assessment of the compensation. The Land and Environment Court determined compensation in the sum of $565,074. The authority claimed the amount of the excess plus interest. The former owner did not dispute its duty in respect of the overpayment but did dispute the authority’s claim for interest. The Land and Environment Court held that it had no jurisdiction to make an order for recovery of an overpayment and therefore had no jurisdiction to order payment of interest. Land Acquisition (Just Terms Compensation) Act (NSW) s 66(2) only gave the court jurisdiction to determine the amount of compensation. In any event, it was

observed that it was doubtful whether there was any right to claim interest on the overpaid amount. In Haig v Minister Administering National Parks and Wildlife Act 1974 (No 3) (1996) 90 LGERA 408 the New South Wales Court of Appeal held that it did have jurisdiction under the Supreme Court Act 1970 (NSW) to order repayment of overpaid compensation together with interest on that amount. [page 210]

PAYMENT OF INTEREST [3.43] In appropriate circumstances the claimant may be entitled to the payment of interest on the amount of compensation assessed between the date of acquisition and the date of payment. The issue is of less consequence in some jurisdictions because of the provisions governing advance payments which obviate to a major extent the need for interest to be paid. The purpose of making interest payable is to compensate the claimant for waiting before the payment is made by the authority. It compensates the claimant for the length of time it takes for the amount of compensation to be settled or determined. The desire to avoid paying interest may spur the authority to avoid any undue delay in making payment. Lands Acquisition Act (Cth) s 91(1) permits the payment of interest to a claimant. Section 91(2) states that the claimant is entitled to interest from the day of acquisition until the day of payment. Alternatively, the claimant is entitled to interest where payment is delayed. Section 91(3) and (4) specifies the areas of procedure where delay may occur. Section 91(4) provides that interest is only payable in the circumstances referred to in the section. Section 92 deals with the payment of interest in respect of mortgage interests. Land Acquisition (Just Terms Compensation) Act (NSW) s 49(1) provides that interest is payable on any amount of compensation from the date the land is acquired until the date on which payment is made.

Land Acquisition and Compensation Act (Vic) ss 52–57 contain a number of provisions governing the payment of interest. Section 53(1) provides, in substance, that interest is payable between the date of acquisition or the date of entry into possession by the authority and the date on which compensation is paid, whichever is the earlier. Section 56 governs the payment of interest in respect of expenses. Acquisition of Land Act (Qld) s 28 authorises the Land Court to award interest on the period from the date of taking and the date on which compensation is paid. The claimant is not given a right to claim interest on unpaid compensation from the constructing authority and the authority is not under a statutory duty to pay interest. Land Administration Act (WA) s 241(10)–(13) provides for the payment of interest. In substance, by s 241(11) the claimant is entitled to interest on unpaid compensation from the date of claiming compensation or the date of entry, whichever is earlier, to the date of the settlement of the claim. Land Acquisition Act (SA) s 33 provides for interest to be paid in certain limited circumstances. In City of Adelaide v Cinema Place Pty Ltd (2006) 94 SASR 165 the city council offered $220,000 for the resumed land. The owner claimed $900,000. The council paid $210,000 into court by s 26 and the claimant applied for an order that interest on $220,000 be paid to it. The court declined to make the order for the reason that the claimant had not asserted that it was suffering hardship. An order was made that the sum of $210,000 be paid to the claimant. [page 211] Land Acquisition Act (Tas) s 47(1) provides, inter alia, that interest is payable for the period from the date of acquisition to the date on which the compensation is paid. Lands Acquisition Act (NT) s 64(1)(a) provides that compensation bears

interest from the date of acquisition to the date on which payment is made. Lands Acquisition Act (ACT) ss 76 and 96 make provision for the payment of interest. The right of the court or tribunal, hearing a claim to determine the amount of compensation, to award interest is usually a matter for the discretion of the court or tribunal taking into account the relevant provisions, above. In Wm Collin & Sons Pty Ltd v Co-ordinator General of Public Works (1974) 1 QLCR 1 the claimant sought interest in respect of a resumption for a riverside expressway. The court declined to award interest on the ground that the claimant had had the full use of the resumed land free from all liability during the whole of the statutory period during which interest, in the discretion of the court, may have been payable. The relevant legislation may give discretion to a court as to what date interest is to run from. In SJR Investment Co Pty Ltd v Housing Commission of Victoria [1971] VR 211 it was held that the legislation at the time was selfexecuting if the tribunal determined the date from which interest should run and it was not proper to include interest in the award itself. This decision would appear to be of general application to the resumption statutes. There is a strong presumption that the term ‘interest’ in the resumption statutes refers to simple interest and not to compound interest. In South Australian Land Commission v Perry (1977) 15 SASR 315 it was contended that the term ‘interest’ in the Land Acquisition Act (SA) s 33 meant compound interest. It was held that while the point was ‘novel’, the claim to compound interest was misconceived. The interest payable was simple interest. The concept of ‘just terms’ has entered into disputes over the award of interest. In Albany v Commonwealth (1976) 60 LGRA 287 the claimant contended that, under the federal legislation then applying, the provision making possible the payment of interest by itself met the criteria of ‘just terms’ required by s 51(xxxi) of the Constitution (see 1.6), but the rate applicable did not. The claimant contended that it should be fixed at a higher

rate. The High Court declined to substitute a different rate of interest from that fixed by the relevant regulations. In Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1995) 88 LGERA 297 it was held that the statutory amount of interest required to be awarded under s 91 of the Commonwealth Act, above, is not a relevant matter to be taken into account when considering, under s 55, whether the amount determined will justly compensate the dispossessed owner. Where an authority makes an offer of compensation or where a claimant makes a claim for compensation, a doubt may arise whether such offer [page 212] or claim takes into account the award of interest. In Smith v Eltham Shire [1977] VR 133, the facts of which were outlined at 3.9, the valuers on behalf of both parties apparently agreed upon the valuation with the acquiring authority’s solicitors referring to previous negotiations and confirming the settlement of the claim ‘for $47,500 all in’. The claimants contended that the sum of $47,500 did not include interest. It was held that the words ‘all in’ meant that the amount offered was the total sum which the acquiring authority was prepared to pay in full settlement of the claim, including interest and costs. However, the claimant was asking for interest in addition to the sum offered ‘all in’ and there was a dispute over the meaning of the legislation then applying. An acquiring authority could not amend its offer and could not file a second offer in different terms. The offer should not include interest. In consequence, the claimant was entitled to interest on the amount of the offer. In Commissioner of Highways v Farmer No 2 Pty Ltd [2015] SASCFC 121, the Commissioner of Highways resumed the applicants’ property in Penfield, South Australia for the purpose of constructing the Northern Expressway.

The land acquired was surplus to the Commissioner’s requirements. As part of the settlement in relation to the acquisition of land, along with monetary compensation, the Commissioner also provided non-monetary compensation by transferring the surplus land back to the applicants. The question then arose as to whether interest was payable on non-monetary compensation. Section 23(6) of the Land Acquisition Act 1969 (SA) provided that the authority’s liability to pay compensation under the Act was reduced by the value of the non-monetary compensation provided. The non-monetary compensation, though valued for the purpose of compensation, was never going to be paid into court. Interest can only accrue on the compensatory amount that would have been paid into court. Consequently, the court ruled that interest was not payable for non-monetary compensation with regard to the compulsory acquisition of land.

DISPUTED CLAIMS [3.44] Where the acquiring authority and the claimant are unable to agree upon the amount of compensation to be paid to the claimant, each of the resumption statutes contains provision for the dispute to be settled and the amount of compensation to be determined by a court or tribunal. In general, either party may institute proceedings. The Lands Acquisition Act (Cth) is unique in that it affords a different range of possible choices to the claimant. By s 99, the claimant may seek a review by the Administrative Appeals Tribunal against the rejection of the claim. By s 100, the claimant may bring an action in the Federal Court claiming a declaration that the claimant is entitled to compensation in respect of the loss to which the claim relates. By s 106, compensation can be determined by arbitration or by an ‘expert’, a term which is not defined. By s 107, compensation can be determined by the Administrative [page 213]

Appeals Tribunal. By s 108, compensation can be determined by the Federal Court. Section 109 allows the claimant to make one of these choices and one choice only. The claimant is given a range of possible avenues to contest the minister’s offer of compensation. No other resumption statute offers such a range of possible means of determining the amount of compensation. The choice may not be an easy one to make. The cost of instituting proceedings in the Federal Court may be expected to be greater than in the Administrative Appeals Tribunal. Arbitration may cost less than actions in either the Federal Court or the Administrative Appeals Tribunal. Arbitration may be preferable where the dispute involves questions of fact only. The cost of an ‘expert’ might be the least expensive. If the dispute concerns a question of law only, the Federal Court may be the preferable forum. The choice of forum is that of the claimant, not the minister. Land Acquisition (Just Terms Compensation) Act (NSW) s 66 entitles the claimant to lodge an objection to the authority’s offer of compensation with the Land and Environment Court within 90 days after receiving a compensation notice. By s 66(3) if the claimant does not lodge an objection within 90 days the claimant is ‘taken to have accepted the offer’. Section 67 allows the claimant to appeal to the same court where the claim has been rejected by the authority. Land Acquisition and Compensation Act (Vic) s 80 gives the authority or the claimant two choices: apply to the Victorian Civil and Administrative Tribunal for determination of a disputed claim; or refer a disputed claim to the Supreme Court for determination. Section 81 limits the choice to some extent in that the claim must be determined by the Tribunal if the amount in dispute does not exceed $50,000. Acquisition of Land Act (Qld) s 24 affords no choice of forum to the claimant. By s 24(1) either the constructing authority or the claimant may refer the matter of the amount of compensation to the Land Court for hearing and determination. By the Land Court Act 2000 (Qld) s 7 the Land Court is not bound by the rules of evidence and may inform itself in a way it considers

appropriate. It must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and form or the practice of other courts. The provision widens rather than restricts discretion. The provision permits resort to a common sense judgment in all the circumstances: Townsville City Council v Chief Executive, Department of Main Roads [2006] 1 Qd R 77. Land Administration Act (WA) ss 220–225 provide for compensation to be determined by the Compensation Court. Sections 226–240 provide for the constitution of the court and the procedure to be followed. By s 223 a claimant may commence an action for compensation in an ordinary court. Land Acquisition Act (SA) s 23C enables either the authority or the claimant to refer the determination of compensation to the Land and Valuation Court. [page 214] Land Acquisition Act (Tas) s 42 offers the claimant the choice of arbitration or the Supreme Court to determine the amount of compensation. By Lands Acquisition Act (NT) s 81 the Lands and Mining Tribunal determines the amount of compensation to which the claimant is entitled. By Lands Acquisition Act (ACT) s 89 the Administrative Appeals Tribunal determines the amount of compensation payable. Why the legislatures of four jurisdictions (Commonwealth, Victoria, Western Australia and Tasmania) offer a choice of forum to determine the amount of compensation is inexplicable and baffling. The task of determining compensation is a difficult one. The parties have had an opportunity to resolve the matter. They have failed to do so. A court of law is the proper forum and it should be the only means of assessing the compensation. This is the only avenue available in five jurisdictions (New South Wales, Queensland, South Australia, Northern Territory and Australian Capital Territory).

One of the procedural issues to arise in Wollong Pty Ltd v Shoalhaven City Council (2002) 122 LGERA 331 was whether the Land and Environment Court had jurisdiction to reopen a case where it had determined the amount of compensation but had reserved the question of valuation fees and costs. It was held that the judgment clearly determined the compensation and the court did not have power to reinstate a proceeding of which it had finally disposed apart from the question of costs and fees. The orders made and entered were final orders.

TIME LIMITATIONS [3.45] Some of the resumption statutes require the claimant who has not accepted the acquiring authority’s offer of compensation to commence proceedings within a specified time. Lands Acquisition Act (Cth) s 107(3) allows a period of three months from the date on which the final offer was made for the claimant to commence proceedings in the Administrative Appeals Tribunal. Section 108(2) restricts the claimant from instituting proceedings in the Federal Court until at least three months after making the claim. Section 106 (arbitration or expert) makes no mention of any time period. Land Acquisition (Just Terms Compensation) Act (NSW) s 66(1) allows a period of 90 days after receiving a compensation notice to object to the Land and Environment Court to the amount offered. Land Administration Act (WA) s 223(2) provides that the claimant may not commence proceedings in an ordinary court unless 30 days’ notice has been given to the authority. Section 224 (commencing an action in the Compensation Court) does not specify a period within which the claimant must commence proceedings. Land Acquisition Act (Tas) s 77(1) allows a period of 12 years within which to institute proceedings.

[page 215] Lands Acquisition Act (NT) s 68 provides that within 60 days of the service of the notice of compensation, the claimant shall serve a notice of dispute which the minister under s 70 refers to the Lands and Mining Tribunal. Land Acquisition and Compensation Act (Vic) ss 80–84 (application to the Tribunal or the Court) and Acquisition of Land Act (Qld) ss 24 and 25 (references to the Land Court) do not specify any time limits within which the claimant must commence proceedings. Where there are no limitation periods specified in the resumption statutes within which proceedings to determine compensation must be commenced, there is a presumption that the relevant limitation statute applies. In McMahon v Minister for Public Works (1995) 86 LGERA 344 proceedings were commenced more than six years after the resumption. It was held that the proceedings were statute-barred under the relevant limitation provisions.

HEARINGS [3.46] Land and Environment Court Act 1979 (NSW) s 38(1), Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(d), Lands and Mining Tribunal Act 1998 (NT) s 11(1) and Administrative Appeals Tribunal Act 1989 (ACT) s 32(1) urge the respective tribunals to use ‘little formality and technicality’ and ‘much expedition’ in the proceedings. Land and Environment Court Act 1979 (NSW) s 38(2), Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(b), Lands and Mining Tribunal Act 1998 (NT) s 14 and Administrative Appeals Tribunal Act 1989 (ACT) s 32(1)(c) provide that the respective tribunals are not bound by the rules of evidence. A number of other provisions concerning the hearings of claims are contained in the legislation. Administrative Appeals Tribunal Act 1975 (Cth) s 35 provides that hearings in the Valuation and Compensation Division of

the Tribunal are to be heard in public. Land and Environment Court Act 1979 (NSW) s 25(1) gives the court jurisdiction to determine the nature of an estate or interest of the claimant in the subject land and the amount of compensation in compulsory acquisition cases. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 97 provides that the tribunal must ‘act fairly’. By s 98(1)(b) the tribunal is bound by the rules of natural justice. Lands and Mining Tribunal Act 1998 (NT) s 11(2) also provides that the tribunal is bound by the rules of natural justice.

COURT COSTS [3.47] In this context the term ‘costs’ signifies the sum of money which the court determining a compensation dispute orders one party to pay to another party to match the expense that the latter has incurred in litigation. The power to award costs at the conclusion of a compensation dispute lies either in the resumption statute or in the statute governing the constitution and procedure of the court or tribunal determining the compensation. [page 216] Administrative Appeals Tribunal Act (Cth) s 69A(1)(a) provides that the Valuation and Compensation Division of the Administrative Appeals Tribunal may order that ‘reasonable costs’ incurred may be paid. By Land and Environment Court Act (NSW) s 69(2)(a) costs are in the discretion of the court. Land Acquisition and Compensation Act (Vic) s 91(1) provides that the Victorian Civil and Administrative Tribunal or the Supreme Court may award ‘such costs as it thinks proper’. In doing so it must take into account: (a) the amount awarded as compared to the amount offered by the authority; (b)(i) unreasonable conduct on the part of the claimant or the authority; (b)

(ii) the failure of the claimant to supply adequate particulars; (b)(iii) an excessive claim by the claimant; (b)(iv) an unduly depressed offer by the authority; and (c) other matters which the Act requires to be taken into account. Described as being a ‘nearness’ provision, it was held in Mario Piraino Pty Ltd v Roads Corporation (No 2) (1990) 72 LGRA 394 that s 91 should be construed flexibly. The question whether a claim was excessive fell to be considered primarily by reference to the amount awarded. By s 109(1) of the Victorian Civil and Administrative Tribunal Act (Vic) each party shall bear its own costs in the proceedings. By s 109(2) the tribunal may order a party to pay all or a specified part of the costs of another party. By s 109(3) where a party has conducted proceedings in a way that necessarily disadvantages another party, this may be taken into account in awarding costs. Acquisition of Land Act (Qld) s 27(1) provides that the award of costs is in the discretion of the Land Court. By s 27(2) if the amount claimed by the claimant is the amount determined or is nearer to that amount than to the amount put in evidence by the constructing authority, costs shall be awarded to the claimant, otherwise costs shall be awarded to the constructing authority. In Commissioner for Railways v Buckler (1994) 84 LGERA 8 the nearness was held to be decisive in determining the award of costs which would normally follow the event. In this case the claimant claimed $3.2m; the authority offered nothing. The Land Court assessed compensation in the sum of $1,474,250. The Land Appeal Court dismissed the appeal. As the valuation was nearer to ‘nil’ than to the amount claimed, the authority was entitled to its costs. Land Administration Act (WA) s 246 provides that costs are at the discretion of a Compensation Court. Land Acquisition Act (SA) s 36 provides that the Land and Valuation Court may award ‘such costs as it thinks proper’. The section requires the amount awarded to be compared to the amount offered and whether there has been ‘unreasonable conduct’ or an ‘excessive claim’. In Minister for

Environment v Florence (1979) 21 SASR 108 at 134–9 it was observed that compulsory acquisition claims differ from ordinary claims dealt with in the ordinary jurisdiction in one significant respect: the claimant, unlike the ordinary plaintiff, has no choice whether to make a claim or not; the claimant cannot be expected to renounce a claim. Upon an ordinary claim [page 217] in the general jurisdiction it is obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who has already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive the reasonable costs of obtaining the compensation that is, ex hypothesi, his or her due, as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. Section 36 begins by stating the general rule that costs are discretionary. It then directs the court, where it considers it appropriate to do so, to take into account one or more facts and circumstances specified. The discretion is not unconditional. Before applying the latter part of s 36 there must be some identifiable facts or circumstances signifying the appropriateness of considering, in particular, the relationship between the authority’s best offer and the amount awarded, unreasonable conduct on the part of either party, or an excessive claim or unduly depressed offer. The section is to be construed flexibly and not restrictively, to the intent that the special nature of the jurisdiction to which it relates should be duly recognised, and orders made in that jurisdiction are to be just and expedient. In Florence it was found that, balancing the gains and the losses, the authority came out of the contest rather better than the claimant. This was to

be regarded as a medial conclusion, not as decisive. The first question was: who on the whole had been the more successful? The second question was: what are the implications of the victory? Regard should be had to the interlocutory proceedings, both formal and informal. Regard had to be paid to the fact that the approach of the authority had not been such as would have instilled complete confidence in those having the carriage of the claimant’s case. There were, in particular, strange discrepancies between the statutory offer and the open offer on the one hand, and the value supported by testimony of the authority’s valuer on the other. The claimant and his advisers could well have viewed, with a measure of disquiet, a case that exhibited in deployment such curious symmetry. The authority was directed to pay three-quarters of the claimant’s costs. By Land Acquisition Act (Tas) s 60 costs of the proceedings are in the discretion of the Supreme Court or arbitrator as the case may be. By Lands and Mining Tribunal Act 1998 (NT) s 18 each party must bear its own costs unless the Tribunal orders otherwise. In exercising a discretion to award costs either to the acquiring authority or to the claimant, the courts have taken into account a wide variety of different factors. The authorities suggest that the following factors should be considered in exercising that discretion. (i)

Where the claim is successful costs should be awarded to the claimant if the award is significantly higher than the amount offered by the authority. [page 218]

(ii) Where the claimant reduces the amount of the claim substantially during the hearing but the authority increases its offer by a small percentage and the court awards that sum to the claimant, the claimant may nevertheless be entitled to costs. Resumption is a

serious interference to a landowner’s right to quiet enjoyment and the claimant may in some circumstances be entitled to costs notwithstanding the amount of compensation awarded is less than that claimed: Yakas v Roads and Traffic Authority (NSW) (2004) 139 LGERA 116. (iii) Where a claimant is unsuccessful on all substantial issues argued and the claim is unrealistic, the claimant may be refused costs: Overton Investments Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (NSW) (2001) 113 LGERA 439. (iv) Where the claim is substantially greater than that awarded giving rise to an obvious and substantial escalation in the costs over and above those that it was reasonable for the claimant to incur, and the litigation that ensued may not have been necessary, the claimant’s costs may be reduced proportionately: Blakes Estates Ltd v Government of Montserrat [2006] 1 WLR 297. (v)

Where the claimant engages in unreasonable conduct and his claim is dismissed, costs may not be awarded: Niezabitowski v Roads and Traffic Authority (NSW) (2006) 147 LGERA 417.

(vi) The conceptual basis underlying the award of costs to a claimant in compulsory acquisition proceedings differs from that in ordinary civil litigation. The litigation arises out of a unilateral decision in respect of the claimant’s land: Murdesk Investments Pty Ltd v Roads Corporation (Vic) (2007) 155 LGERA 13, appeal dismissed Roads Corporation v Murdesk Investments Pty Ltd (2008) 18 VR 327. (vii) Where a claimant fails on some of the issues litigated, only a partial costs order may be appropriate: Constantino v Roads and Traffic Authority (NSW) (No 2) (2005) 144 LGERA 224. (viii) The quality of the claimant’s presentation and argument. (ix) The claimant’s success or failure in arguing a matter of importance

either in law or in fact. (x)

The extent to which the award of costs to the authority will erode the full benefit of the compensation awarded.

(xi) The extent to which the claim was frivolous or excessive as compared to the amount awarded. In Nedoni Pty Ltd v Minister for Roads (NSW) (2004) 19 LGERA 127 the applicant sought an order for costs in proceedings against two ministers where it successfully obtained an order that its land be resumed. One minister opposed the application; the other did not. It was held that the applicant was entirely successful and was entitled to costs against both ministers. It was not necessary to consider the respective positions of each minister. [page 219] Where there is an appeal and the appellate court is seized of the merits of the case, it is also seized of the matter of costs in the court below: Queensland Railways v Somerville Funerals Pty Ltd (1995) 15 QLCR 403. The question of costs was explored in Dillon v Gosford City Council [2011] NSWCA 328. The court noted that costs are to be awarded on a compensatory basis as opposed to being used as a form of punishment. Second, the court highlighted that cases regarding compulsory acquisition were not examples of ‘ordinary litigation’. This is because such cases involve a unilateral exercise of executive power against individual property rights. In light of this, it was determined that there ought to be a strong justification before awarding costs against an applicant who has had their property resumed. It was emphasised that a former owner who has been dispossessed is entitled to take reasonable steps to seek a judgment from the court with regard to the adequacy of the compensation offered. Whether the steps taken in ensuring proceedings are reasonable is determined on a case-by-case basis. The court noted that issues to take into account could include the extent of

the failure of an applicant’s claim along with the time and expense incurred for specific items. However, Basten JA was careful to note that any further specifications on what factors could be considered may unhelpfully fetter the court’s discretion in some way.

APPEALS [3.48] The resumption statutes make provision for disputed compensation between the claimant and the acquiring authority to be determined by a court or by a tribunal (see 3.44). As a general rule the resumption statutes do not provide for an appeal from that court or tribunal. The statute governing the constitution of the court or tribunal determining the amount of compensation normally provides for an appeal. That appeal may be restricted to a question of law. Where, as in the Lands Acquisition Act (Cth), there is a choice of forum to determine the compensation there may be a question of whether or not there is any right of appeal. If, for example, the parties agree to have the question of compensation determined by an expert, it may be noted that the Act does not expressly bestow any right of appeal. Likewise where the parties choose the Compensation Court (WA) in preference to an ordinary court, there may be an absence of a right of appeal. The parties might have to rely on one of the prerogative writs such as certiorari to show that there was an error of law or a patent absence of jurisdiction: Della-Vedova v State Energy Commission of Western Australia (1990) 2 WAR 561. The principal issue to arise in respect of an appeal is whether the appeal is restricted to a matter of law or whether the appeal is a hearing de novo. In Queensland, for example, an appeal from the Land Court to the Land Appeal Court used to be a rehearing (R v Rigby (1956) 100 CLR 146 at 150) but the Land Act 1962 was amended in 1994 (Marshall v Director-General, Department of Transport (1999) 106 LGERA 349) and s 45 confines appeals to error, mistake of law or an absence or an excess

[page 220] of jurisdiction. The onus is on the appellant to identify the error of law in the notice of appeal: Doolan Properties Pty Ltd v Pine Rivers Shire Council [2001] 1 Qd R 585. In the Northern Territory where there is an appeal from the Lands and Mining Tribunal to the Northern Territory Supreme Court, the appeal is a rehearing: Meyering v Northern Territory (1987) 47 NTR 21; Deckana Pty Ltd v Northern Territory (1998) 98 LGERA 205. The grounds of an appeal by a party aggrieved by the court or tribunal on a matter of law are similar to those open to any party aggrieved by a determination in respect of civil litigation. It is, for example, a valid ground of appeal to contend that the inferences and conclusions drawn from the primary evidence by the court or tribunal are in error. It may be argued that the appellant accepts the undisputed facts on which the court or tribunal has relied, but that the inferences or conclusions are not justified and the appellate court should draw its own inferences and conclusions: Flannery v Cohuna Sewerage Authority (1976) 51 ALJR 135. It is a valid ground of appeal that a wrong principle of law or a wrong principle of valuation has been applied by a court of first instance. In Commonwealth v Reeve (1949) 78 CLR 410 it was held that it would not be proper for the High Court on appeal to substitute its own opinion for that of the court below unless it were satisfied that the court below acted on some wrong principle of law, or that the value was entirely erroneous. The court will not interfere with any question of valuation unless it can be shown that some item has improperly been made the subject of valuation or excluded, or that there is some fundamental principle affecting the valuation which renders it unsound: The rule thus laid down is almost indispensable to the administration of justice in compensation cases. For the estimation of a money sum is usually so much a result of judgment and sound discretion and so little the result of analytical reasoning, that, were it

otherwise, every appeal would mean an assessment of compensation de novo, without any assignment of error in the reasoning or conclusions of the court appealed from (at 423).

The rule has been consistently applied in the High Court that on a question of valuation an appellate court is not justified in substituting its own opinion for the opinion of the court below unless the appeal court is satisfied that the court below acted on some wrong principle or that its valuation was entirely erroneous: Commonwealth v Milledge (1953) 90 CLR 157 at 159. The onus is on the appellant to demonstrate that the court of first instance was wrong in the figure it assessed as fair and just compensation: Doherty v Commissioner of Highways (No 2) (1974) 7 SASR 57 at 85. The appellant must show good reason to establish that the assessment was wrong: Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85 LGERA 143. [page 221]

INCAPACITY OF CLAIMANT [3.49] Some, but not all, of the resumption statutes contain provisions where the claimant has not, for one reason or another, the capacity to deal with a resumption matter. Lands Acquisition Act (Cth) s 116, in substance, enables the authority to seek the approval of the Federal Court where the claimant ‘would not have the capacity or power to do something in connection with compensation’. The compensation may be paid to a trustee in this situation. Land Administration Act (WA) s 209 provides for the principal registrar of the Supreme Court to act as guardian in the case of ‘an infant or incapable person’. Land Acquisition Act (SA) s 32 refers to a person whose ‘juristic capacity’ is limited in any way and appoints the Land and Valuation Court to act on that person’s behalf. Land Acquisition Act (Tas) ss 63–64 contains the most detailed of the provisions governing a claimant who is under a ‘disability’ to sell land by the appointment of a guardian or an

administrator. Lands Acquisition Act (ACT) s 97 is similar to the federal provision.

COMPENSATION HELD IN TRUST [3.50] In normal circumstances where the amount of compensation has been agreed or determined the acquiring authority pays the compensation money directly to the claimant. The principal exception is South Australia, where, by Land Acquisition Act 1969 s 23A(3), the authority pays the compensation into the Land and Valuation Court within seven days after making an offer to the claimant. By s 23A(4) the court invests the compensation in an authorised trustee investment. Lands Acquisition Act (Cth) s 114 makes provision for payment into a trust fund which is handled by the minister. Land Acquisition (Just Terms Compensation) Act (NSW) s 51 requires a trust account to be kept where it is necessary for payment to be held. Land Acquisition and Compensation Act (Vic) ss 58–61 require payment of compensation to be made to the treasurer where, for example, the claimant cannot be found or refuses to accept payment. The treasurer puts the compensation into a trust fund where it is invested. An application claiming the money paid into the trust fund requires the approval of the Supreme Court. The Acquisition of Land Act (Qld) does not require the creation of a trust fund. By s 29(1A) where the title of the claimant is in doubt, the constructing authority may pay the compensation into the Supreme Court. Likewise, where the claimant refuses to accept payment, by s 29(3) the compensation may be paid into the Supreme Court. Land Administration Act (WA) s 249 contains a similar arrangement although the wording in the two sections is appreciably different. Land Acquisition Act (Tas) s 52 and Lands Acquisition Act (NT) ss 83A– 83C contain provisions for compensation money to be held in trust in similar circumstances.

[page 222] Lands Acquisition Act (ACT) s 95 is in similar terms to the Commonwealth provision. None of the resumption statutes appoints the acquiring authority as the body responsible for keeping or handling unpaid compensation money. The authority is required to pass the compensation money over to another government department or to a court. Arguably, it might be more efficient if the authority was required to pay the money into a trust fund and have the power to release the money when it should be paid to a claimant. If an authority can be trusted to make payments directly to a claimant surely it can be trusted to make delayed payments to a claimant. Presumably, any interest earned while the money has been held in trust should be paid to the claimant when the sum is released and paid to him or her. These statutory provisions assume that sums of money paid into court or into a trust fund will be safe and will be available when required by a claimant. It is assumed that the money paid in will be secure and, if invested, will not result in any loss. Who bears the loss should money paid in be invested unwisely or badly resulting in the amount of money being less than when paid in is uncertain.

FEDERAL INCOME TAX [3.51] Traditionally compensation paid to a dispossessed owner for the resumption of his or her land is not subject to income tax. However, any interest that is paid on the compensation awarded is liable to assessment and payment of federal income tax: Federal Wharf Co Ltd v Deputy Federal Commissioner of Taxation (1930) 44 CLR 24; West Suffolk County Council v W Rought Ltd [1967] AC 403; Public Trustee v Inland Revenue Commissioner (NZ) (1959) 8 AITR 335.

It is established that any liability of a landowner to federal taxation at the date of resumption has no relevance to the assessment of the landowner’s compensation: Melbourne Saw Manufacturing Co Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 394; Elense No 15 Pty Ltd v Minister for Public Works (1990) 77 LGRA 46. No deduction is to be made for the incidence of any income tax in the amount of compensation that is taxable in the hands of the claimant. There is no authority for the proposition that the amount of compensation should be adjusted or altered so as to take into account the liability of the claimant to any form of federal taxation. None of the resumption statutes contains a provision entitling the acquiring authority to deduct any sums owing to the Federal Commissioner of Taxation at the date of resumption. Any claim by the federal taxation department would be dependent upon the provisions of the tax legislation. However, in Brettingham-Moore v Federal Commissioner of Taxation (1981) 38 ALR 340 it was held that a compulsory acquisition of land was a sale for the purposes of s 26AAA of the Income Tax Assessment Act 1936 (Cth) which taxes profits made on the purchase and resale of property within 12 months. [page 223]

CAPITAL GAINS TAX [3.52] The fact that there might in the future be some capital gains tax liability to the dispossessed owner of resumed land arising from the future disposal of a property purchased to replace the resumed land is not a circumstance sufficiently derived from the resumed land to constitute a special value (see 3.15) which must be added to the market value of the resumed land when determining compensation for its resumption: Russellan Pty Ltd v Roads and Traffic Authority (NSW) (1992) 75 LGRA 263. Capital gains tax cannot be categorised as a financial cost relating to actual use of the

resumed land. It is rightly characterised as a personal liability: Burns v Eurobodalla Shire Council (2006) 149 LGERA 227.

[page 225]

4 VALUATION VALUE [4.1] The term ‘value’ in the context of resumption needs little explanation. It is the monetary worth that the resumed land possesses. It is the estimate in money terms that is put on the resumed land. In resumption the key question to be determined in respect of a claim for compensation is: what is the ‘value’ of the land resumed? The word ‘value’ is both a noun and a verb. In resumption law the task is ‘to value’ the resumed land. The result is ‘the value’ of the land. From time to time the resumption statutes preface the noun ‘value’ with an adjective. The terms ‘actual value’, ‘fair value’, ‘true value’, ‘full value’, ‘assessed value’ and ‘sale value’ are used frequently. Normally such emphasis is of no consequence. The first task in any claim for resumption is to assess the ‘market value’ of the land. An expression such as ‘fair market value’ is no different from the term ‘value’; they are synonymous: Cattanach v Water Conservation and Irrigation Commission [1963] NSWR 304. While a clear distinction in resumption lies between the terms ‘market value’ and ‘special value’ (see 3.15), there can be no prima facie difference between such expressions as ‘just value’ and ‘true value’. Lest the previous paragraph be regarded as too sweeping it should be said that the use of an adjective before the term ‘value’ may on occasions be significant. The term ‘affected value’ has been used to describe the extent to

which the market value of the resumed land has been altered by the acquisition scheme: Bingham v Cumberland County Council (1954) 20 LGR (NSW) 1; Jones v Gosford Shire Council (1975) 33 LGRA 368. The term ‘value’ is not restricted in resumption to ascertaining the value of land. It is also used to determine the value of a business conducted on the resumed land that is extinguished by resumption. It is used in respect of all the interests (see 1.21) that are in the land. A person who has an easement in the resumed land has a right to claim compensation for the loss of that easement. That person claims the value of his or her interest in the land, namely the value of the easement. The resumption statutes generally require the acquiring authority to compensate the dispossessed owner for the ‘market value’ of the land. Of the nine resumption statutes under scrutiny, six use the term ‘market value’. The Acquisition of Land Act 1967 (Qld) s 20(1) and Land Administration [page 226] Act 1997 (WA) s 241(2) use the term ‘value’. The Land Acquisition Act 1969 (SA) s 25(1)(b)(i) uses the term ‘actual value’. The omission of the term ‘market’ in three jurisdictions is of no consequence. Each of these statutes is concerned with ‘market value’: Emerald Quarry Industries Pty Ltd v Commissioner of Highways (SA) (1979) 142 CLR 351; James v Swan Hill Sewerage Authority [1978] VR 519.

VALUERS [4.2] The valuer is a professional person skilled in valuing property from which he or she derives a living. The valuer plays an indispensable and significant role in resumption. The valuer belongs to a profession regulated by the Australian Property Institute. The profession may also be subject to

statutory controls, for example, Valuers Act 2003 (NSW), Valuers Registration Act 1992 (Qld), Land Valuers Licensing Act 1978 (WA), Land Valuers Act 1994 (SA) and Land Valuers Act 2001 (Tas). Valuers do not need to be registered or licensed in Victoria, the Northern Territory or the Australian Capital Territory. In the context of resumption law the valuer is an expert and the success or failure of a claim for compensation may depend on the valuer’s ability and expertise to persuade either the acquiring authority or a court of law that the claim for compensation is fair, reasonable and should be accepted. Indeed, Marroun v Roads and Maritime Services [2012] NSWLEC 199 noted that courts are dependent on the established expertise and knowledge of valuer witnesses called on behalf of both sides of any case regarding compensation. The valuer’s involvement in resumption may arise at the outset when the landowner receives a notice of intention to resume the owner’s land. The determination of compensation begins in one of two ways (see 3.3): either the acquiring authority makes an offer of compensation, or alternatively, the onus may lie upon the claimant to make the first move and claim an amount of compensation. In either event the valuer may be engaged by the claimant to advise the claimant on how to respond to the authority’s offer or the valuer may be engaged by the claimant to assist the claimant to draft, prepare and submit a claim for compensation including a valuation report. As a general rule the acquiring authority is expressly or by implication in the resumption statutes encouraged to settle the question of compensation by negotiation in preference to putting the resumption procedure into effect. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 3(1)(e) states that one of the objects of the Act is to encourage the acquisition of land by agreement instead of compulsory process. There can be appreciable savings for both parties by negotiating the compensation due. Delay may be

avoided. If the claimant is willing to negotiate an agreement with the authority it may well be that the valuer is engaged as the principal or sole [page 227] adviser for the claimant. In these circumstances the valuer will be expected to have negotiating skills coupled with a sound knowledge of values of property in the neighbourhood of the resumed land. The valuer is a professional person, not an amateur. As one court put it over a century ago, a valuer must be more than merely a person ‘of intelligence and common sense’: Broken Hill Proprietary Block 14 Co Ltd v Municipal District of Broken Hill (No 2) (1901) 1 SR (NSW) Eq 178. The valuer appears in negotiations as experienced and knowledgeable. The valuer’s aim is to ensure the claimant receives fair compensation and that no compensable matter is overlooked. Where there are no negotiations for an agreed sale of the land and where the authority has not given any indication of what sum it is prepared to pay for the resumed land, the claimant is required to submit a claim on a proper form. It is at this point that the claimant and the valuer should, ideally, enter into a contract with each other requiring the valuer to provide a valuation report on the market value of the land and in respect of all the other heads of compensation specified in the relevant resumption statute. It is the latter which makes a valuation for a resumption claim appreciably different from a valuation for other purposes, such as for a mortgage or land tax. The claimant needs to know what the valuer’s fee is for preparing a valuation report and the claim and, if required, what their fees would be if called to appear as an expert witness in a court of law. It is one thing to prepare a valuation report. It is another thing to appear in a court of law and be subject to cross-examination on the contents of the valuation report. These matters should be settled before the valuer commences work and prepares the claim. The claim can only be

prepared with the active assistance of the claimant in respect of losses arising out of the resumption. Where the valuer is engaged by a solicitor on behalf of a claimant, again it is desirable that there should be an agreement spelling out what the valuer is required to do and specifying the fees to be charged and paid. There may well be instances where the claimant cannot pay the legal and valuation fees until the compensation is paid. The valuer may be prepared to acquiesce to the claimant’s wishes on this matter but the contract should include a clause to this effect. These matters should be reduced to writing. The solicitor should advise the claimant of the cost of litigation if agreement is not reached with the acquiring authority on the amount of compensation. Where the acquiring authority has made an offer of compensation it may not be necessary for the valuer to prepare a full valuation report. The claimant may only require a quick appraisal of the amount of compensation contained in the offer. The claimant may not wish to incur the expense of obtaining a full valuation report at this stage. Obviously the valuer responding to such a request needs to safeguard his or her position by making it clear that unless he or she researches the matter fully, any opinion expressed is provisional only. This should be made clear in writing. Oral advice in such situations can lead to misunderstanding or muddle at a later stage. [page 228] Where the amount of compensation cannot be agreed by negotiation and the acquiring authority has not made any offer, the claim needs to be full and comprehensive. There may not be an opportunity to revise, amend, modify or insert afterthoughts at a later stage. The claim should contain everything that can be said to support the amount claimed. The approach or attitude of claimants to the valuation of their resumed property may vary significantly. At one end of the spectrum the claimant may have little or no idea of what

amount to claim. At the other end of the spectrum the claimant may consider that he or she is the only person in the whole world who knows what the land is worth. All he or she is wanting is a valuer to back up that unshakable belief. The valuer will explain that the valuation profession requires valuers to determine the market value of resumed land objectively and devoid of personal considerations. Nevertheless, if the claimant insists on the figure he or she has in mind, backed up by whatever reasons the claimant can muster, being included in the valuer’s report, the valuer would be in breach of his or her instructions if the claimant’s opinion was omitted. Should the valuer’s figure be significantly lower than the claimant’s that difference of opinion will emerge from the report. It will be clear that the valuer is not influenced by the claimant’s opinion but has noted its existence for the record. The claimant is not bound to submit the valuer’s report to the authority. Another valuation can be obtained but that is not the responsibility of the first valuer. The valuer can only arrive at a sum that is based on objective considerations of all the relevant factors. Where the acquiring authority reveals its valuation, the valuer has the advantage of examining the reasons underlying that appraisal. In exceptional circumstances, the valuer may be prepared to challenge the method of valuation and substitute an alternative method for reasons that are explained in the valuation report. The valuer may differ on what comparable sales are considered relevant and influential. The authority’s valuation may assist in the valuer’s task in identifying relevant factors. There may be substantial agreement with parts of the report and not with other parts. The valuer may be able to show that part of the authority’s valuation is flawed or that the valuation has underestimated the impact of planning matters. Certainly, the valuer would be expected to indicate what parts of the authority’s valuation he or she agrees with and those parts with which he or she is in disagreement. Where the valuer is engaged to prepare a valuation report, the initial task is to determine the market value of the land resumed. The valuer is regarded as an expert. The valuer is expected to be experienced, to have good professional

qualifications, to be competent and a person of integrity. The valuer is under a duty to disclose all facts that are relevant to the valuation. The valuer must not conceal any facts that are relevant to the valuation of the land. As the High Court expressed it in Dangerfield v Town of St Peters (1972) 129 CLR 586 at 592, the valuer is expected to be ‘expert and competent’ and ‘expert and honest’. A court determining compensation may have a preference for evidence submitted by a valuer whose experience [page 229] is manifested by ‘an intuitive grasp of land values’; it may prefer the evidence of a valuer which demonstrates a ‘flexible’ approach, which demonstrates ‘the thoroughness of his preparation’ and where the reasoning is ‘sound’: Crompton v Commissioner of Highways (1973) 32 LGRA 8; 5 SASR 301 at 313–18. The court may be impressed by the ‘comprehensiveness and cogency’ of the valuer’s testimony (at 321). The valuer who has lived and worked in the area where the land is resumed may have an advantage over the valuer whose particular expertise lies in other areas. Nevertheless, though a valuer may be a most experienced and impressive witness the court may need to be cautious in attaching too much weight to his or her evidence: see 4.7 and Cienda Pty Ltd v South Australian Urban Land Trust (1988) 65 LGRA 419 at 423. In short, the quality of the valuer’s valuation report coupled with his or her experience, knowledge and ability to give clear testimony will ensure that the claim is given a fair hearing in court. Because he or she is much better versed in the land market — its ways, its attitudes, its interests and its standards — than is the average citizen, the expert valuer can, knowing what features and characteristics to look for, make himself or herself acquainted with the subject land; the valuer can search for, identify, marshal and appraise circumstances which may affect its value, having regard to the demand for various kinds of land, and the preferences

that buyers exhibit in their search for suitable parcels. The valuer may add his or her own opinion of value; that then becomes, also, within the framework of the Spencer principle (see 3.14), one of the circumstances that are in the contemplation of the hypothetical seller and buyer. In short, the valuer is likely by reason of his or her training, experience and skill, to be better able to present a comprehensive survey and evaluation of all the facts and circumstances affecting the land than the ordinary person in the street; the valuer is the artist who fills in the details of the imaginary buyer and seller called into being by Spencer: Commissioner of Highways (SA) v Tynan (1982) 53 LGRA 1 at 9. In preparing a valuation report the valuer may have had assistance from valuers or others. It is the valuer who signs and who vouches for the accuracy of the report. The valuer gives a professional and objective opinion as to the market value of the resumed land. Unless the valuer makes it clear in the report that particular information was obtained from a reputable source the valuer takes responsibility for the accuracy of the contents. It may be added that useful articles on legal and practical aspects of resumption appear from time to time in the Australian and New Zealand Property Journal, formerly the Valuer and Land Economist, published by the Australian Property Institute.

VALUER-GENERAL [4.3] By the, Land Acquisition (Just Terms Compensation) Act (NSW) ss 18, 41 and 42 and Land Acquisition and Compensation Act 1986 (Vic) ss 3(1) and 31(5) the responsibility for valuing the resumed land on behalf of the acquiring authority is assigned to their valuer-general. This is the [page 230]

practice in some of the other jurisdictions but not exclusively so. Nothing in the resumption statutes precludes the services of the valuer-general and his or her professional staff being called upon to value the resumed land. It is trite and obvious that a valuer-general cannot personally prepare every valuation report in respect of each resumption occurring within the relevant state or territory. The valuer-general normally has power to delegate his or her authority to professional staff. That delegation may go beyond the professional staff employed in the valuer-general’s department. The valuer appointed to prepare the valuation report takes responsibility for the document and is the valuer who is available to give testimony in court if required. In Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 the claimant objected to the admission of the valuer-general’s valuation tendered by the acquiring authority on the ground, inter alia, that the author had not submitted himself to cross-examination. On the particular facts in this case the submission was rejected for the reason that the claimant’s valuers had commented critically on the valuation report. Nonetheless, the court did not find entirely convincing the explanation relied upon in not calling the several officers of the valuer-general’s department who were responsible in one way or another for the valuer-general’s valuation. Arguably, where the claimant’s valuer assesses the market value of the resumed land at an amount which is less than the amount at which the valuer-general has valued the resumed land, and the authority has not revealed the valuer-general’s valuation, the acquiring authority is required to adopt the valuer-general’s valuation, not the claimant’s valuation. The authority is required to pay compensation in accordance with the statutory provisions. A contest in the court may be an adversarial process but at this stage in the proceedings the authority would, it is submitted, be acting improperly not to act on and rely upon the valuer-general’s valuation. In New South Wales, where the valuer-general values the resumed land, the authority has no right of objection against the amount of compensation that

has been determined by the valuer-general: Gosford City Council v ValuerGeneral (1996) 90 LGERA 413. Recent amendments to the Land Acquisition (Just Terms Compensation) Act (NSW) have in fact strengthened the role of the Valuer-General. By s 39(1), claims for compensation can be lodged with the valuer-general. By s 41(1), the acquiring authority must provide the valuer-general with a list of issues that the authority believes are relevant to the determination of the amount of compensation. By s 41(3) the valuer-general must provide a copy of the determination of the amount of compensation to both the landowner as well as the acquiring authority. By s 42, the period for the determination of compensation has been increased from 30 days to 45 days. Importantly, this period may be extended by the relevant minister administering the Act. [page 231]

FACTS, LAW, INFERENCES, OPINIONS, REASONS [4.4] In any valuation report the valuer must distinguish between facts and law, and inferences from facts and opinions. The borders between these may blur from one into another. Nonetheless it is critical in assessing the quality of a valuation report that the valuer should be clear whether he or she is dealing with facts, orinferences from those facts, the application of the relevant law, and finally his or her opinion as to what the value of the resumed land is, based on the contents of the report. The valuer begins the preparation of the valuation report knowing nothing beyond the fact that land has been resumed. The claimant will obviously show the valuer the relevant papers that the claimant has received. There should not be any problem in identifying the land which is being resumed and its boundaries. From that point on the valuer has to ascertain the facts that are relevant to determine the value of the land. This, the valuer must research. The task is familiar to each and every valuer. This is what land valuers do

every working day. A vast amount of information can be accumulated by means of modern technology. In no time at all the valuer can ascertain details of sales of land that may be comparable to the resumed land. The valuer then uses his or her skill and judgment in determining what sales are relevant to the task in hand. To take a simple illustration: the valuer is called upon to value a block of land situated on a corner in a suburban area. The valuer decides that on this occasion the comparison of other sales should be conducted in respect of seven sales of residential property close to the resumed residence in the six months prior to the date of resumption. As a matter of law, the valuer will know that the value to be determined is that at the date of resumption. The valuation may be carried out months later. This in itself may make a resumption valuation a different process from a valuation for another purpose. In deciding to rely on the sale prices obtained from the seven comparable sales, the valuer is relying on his or her experience and knowledge. It so happens that the valuer has discarded the sale of two other residences. One was a run-down property and was a sale by a mortgagee and may have been regarded as a forced sale. The other residence was in excellent condition but a particularly unpleasant murder took place in it and the valuer considers that event was probably a factor in depressing its sale price. The valuer may wish to establish that the matter has been properly researched. The valuer may wish to forestall any criticism of why these two properties have been omitted by giving the reasons why they were considered not to be relevant. As the preparation of the report progresses the valuer is making a judgment on relevance that comes close to expressing an opinion. Having relied on the sale of the seven residences that the valuer has judged to be comparable, the valuer will detail their similarities and differences from that of the resumed property. He or she will compare the size of the [page 232]

properties and the quality of the residences. The valuer will check whether the sales were conducted at arm’s length. Some of the sales may be more comparable than others. The skill is in explaining why that is so. A mere assertion that a sale of one property has greater weight than another is inadequate. Reasons must be given. This and other differences will emerge from the report. When that task is completed the valuer may be in a position to draw inferences from the facts that have been found. From that information the valuer may be able to find that the sales of the seven residences were all made within three months of the properties coming on the market and being advertised for sale. That is a fact. From that fact the valuer may be able to infer that there is a steady demand for property in the area. That inference may not be justified if in fact there were four residences in the area which were advertised for sale but no buyer could be found. The reason for the failures to sell those four properties may vary. The price asked may have been too high. Intending vendors may have changed their minds. The valuer is expected to reveal this information if possible even though it may not be seen to be in the interests of the claimant’s desire to be awarded generous compensation. The valuer could be sorely embarrassed if this information was revealed later! This is what is meant by honesty and integrity. The fact that the resumed land is a corner block may also be a factor that may affect its value as compared to blocks which are not situated on a corner. It is in these aspects that the valuer formulates his or her inferences aided by his or her experience and knowledge. From all the facts that the valuer has researched, the valuer derives a conclusion or inference. The valuer can work out by simple arithmetic what the average price of the seven residences was. The average price is a fact that is inferred from other facts. The valuer may see fit to separate the unimproved value of each of the seven residences from their improved value. A comparison of hypothetical unimproved values, ie a vacant block with no residence or other building on it, may be helpful. In essence, the valuer makes

an informed guess or estimate. It may be presented in the report as a fact but on analysis it contains an appreciable quantity of opinion. The essential point is that the valuer needs to explain how he or she has arrived at the myriad conclusions that culminate in the final opinion as to the value of the resumed land. Having established the facts and drawn inferences from those facts the valuer then has to consider the appropriate method of valuation (see 4.10). In many instances this will be obvious. Nonetheless what may be obvious to the valuer may not be obvious to others. The method may need to be explained and reasons given as to why it was chosen as the proper method to adopt in the particular circumstances. In drawing conclusions the valuer has to apply the relevant principles of resumption law to the facts revealed in the valuation report. There would be few non-legal disciplines requiring knowledge and consideration of legal principles to the extent that a valuer must have in his or her practice. [page 233] Questions of law, fact and opinion do not always readily and neatly divide themselves into discrete matters in valuation cases: Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [276]. There will be many occasions when an experienced valuer will have a more extensive and detailed knowledge of the relevant legal principles governing valuation and resumption than an instructing solicitor. The valuation report needs to give clear expression to the statutory and case law where appropriate. A valuation which fails to understand what is a question of law and what is a question of fact may undermine the effectiveness of the report: Valuer-General v Dobrel Pty Ltd (1993) 79 LGERA 334. There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. In Roads and Traffic Authority (NSW)

v Mosca (2006) 146 LGERA 335, where one of the issues was the effect of blight created by the proposal to construct a motorway and what could reasonably have been anticipated but for the resumption, the primary judge treated the matter as a question of law. On appeal it was held to be a question of fact to determine what potential there was realisable in the ordinary course of business.

VALUATION PRINCIPLES [4.5] As already explained in 1.15, the term ‘valuation principles’ has been used in the past to describe the guidance stemming from judicial decisions. Without attempting to define precisely what is meant by the term, it is capable of being misunderstood. The starting point for any valuation of resumed land is the legislation applicable. It is true that some of the statutory provisions may have drawn their inspiration from judicial decisions of the past. Even Spencer is not a common law decision on the determination of market value. In all resumption cases it is not judicial decisions which are the foundation of the law. Previous editions of this book have referred to some of the earlier leading authorities as being valuation principles at common law applicable to resumption of land. It is a common error and occurred recently in Halwood Corporation (in liq) v Roads Corporation [2008] VSC 28. In Leichhardt Municipal Council v Roads and Traffic Authority (NSW) (2006) 149 LGERA 439 at [36], Spigelman CJ said in the New South Wales Court of Appeal: An assumption that there is in existence some abstract body of ‘valuation principles’ applicable in all contexts, irrespective of the statutory scheme or contractual provision, is liable to lead to error.

In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 the High Court said that caution must be exercised in seeking to apply judicial decisions turning on decisions derived from early English resumption statutes expressed in terse or spare language. The machinery of modern land use regulation has become complex, its procedures protracted

and the range of participating public bodies is extensive. Modern legislation dealing with resumption is, as a consequence, more comprehensively drawn [page 234] and the terms of that legislation are now determinative. It is not to be assumed that statutes such as the Land Acquisition (Just Terms Compensation) Act (NSW) reproduce an understanding of ‘principles’ derived by way of gloss upon the spare terms of the earlier legislation. It may be added that judicial decisions depending upon the legislation of one state are not to be ‘slavishly followed’ in another. In valuing resumption land a valuer is bound by the relevant statutory provisions. In Minister Administering Environment, Planning and Assessment Act 1979 v Bautovich (2005) 142 LGERA 331 the respective valuers reached an agreement in valuing the resumed land of 16.19 hectares at $30,760,000. The parties agreed to accept this valuation. On appeal it was held (at [48]– [50]) that the court was bound by the Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1) to inquire into and determine on the evidence the market value of the resumed land in accordance with the provisions of the Act. If the court’s determination differed it was bound to ignore the valuers’ agreement and determine the matter in accordance with its own opinion based on the evidence. The agreement between the valuers resulting from their conferring could not ‘trump’ the mandatory requirements of the statute where there is an inconsistency between the two. The parties or their experts cannot impose upon the court what might ultimately be determined to be a false issue or an issue which is inconsistent with the statutory mandate of the court to determine the market value of the land in accordance with the provisions of s 56. In this instance no error of law or fact was revealed. In valuation and determining compensation, acquiring authorities are still

subject to administrative law principles. Such principles include the requirement that authorities take into account all relevant considerations and must not take into account irrelevant considerations in determining the value of a property and the amount of compensation to be offered. For instance, in Hoy v Coffs Harbour City Council [2015] NSWLEC 128, the court highlighted that for the purposes of the Land Acquisition (Just Terms Compensation) Act (NSW) s 66(2), there were no mandatory relevant considerations specified in the statute. It was held that in order to succeed in a claim that the relevant authority/valuer failed to take into account a relevant consideration, the consideration must be mandatory in order to constitute a failure. In light of this, the court determined that where the statute did not provide an identification of mandatory relevant or irrelevant considerations, the matters that must be accounted for will depend on the subject matter, object and purpose of the statute. It is also important to note that along with other considerations outlined further in this chapter, it is possible for events occurring after the date of valuation to be considered in order to ascertain what the value of the land was at the valuation date. See Dolby Australia Pty Ltd v Catto [2004] NSWSC 1196 which was applied recently in Re Australian Water Holdings Pty Ltd [2016] NSWSC 254. [page 235]

VALUATION REPORT [4.6]

In resumption law, the term ‘valuation’ is used in two senses: First, it refers to the activity of assessing value. Second, it refers to the presentation of that assessment in written form.

The term may be used in ‘shifting senses’: Brisbane City Council v ValuerGeneral (Qld) (1978) 140 CLR 41 at 56. In resumption law the valuer values

the interest in the land which has been taken by compulsory process. The valuer also values other losses that result from the taking of the interest in the land. If a business is conducted on the land and the business is terminated in consequence of the taking, the valuer values both the land and the business. There is no set form that must be followed in presenting a valuation report. Its purpose is obvious: to persuade the acquiring authority or later the court or tribunal that it reflects the true value of the land resumed and all the losses that the claimant incurs arising out of the compulsory taking. The valuer is acting on behalf of the claimant but he or she is also acting to assist both the acquiring authority and the court in arriving at a proper determination of the claim for compensation. A court of law will be assisted by the valuation report if the following matters are included. 1. Instructions. The valuer should set out who has instructed him or her and what those instructions are. It should be made clear if the claimant is instructing him or her directly or if a solicitor is instructing the valuer on behalf of the claimant. The name and address of both the solicitor and the claimant should be set out in addition to that of the valuer. 2. Qualifications and experience. The valuer’s qualifications and experience should be set out with dates. If the valuer has had, say, 15 years’ experience in valuation, the report should show where that experience was obtained and who, if anyone, has employed the valuer. It may be appropriate to reveal whether the valuer specialises in certain fields, for example, commercial properties in a large city. 3. Description of resumed land. This should include the formal title of the land as it appears in the titles office and in the notice of intention to resume. There should be a description of the physical characteristics of the property at the date of resumption. It may be appropriate to include photographs of the property. A proper description of the buildings on the land is essential. 4. History of resumed land. Background information on the land may be helpful. For example, if the land has been in the ownership of the claimant’s family for four generations and has never been the subject of a sale in modern

times, this should be revealed. Likewise if the land has been through a frequent change of ownership this also should be revealed. The price at which the land was sold on the last occasion may be included, say, four years before the date of resumption. It is part of the background to the claim in establishing how long the owner has been in possession. There is no reason why this should be omitted even though it may be regarded [page 236] as being too distant in time from being a true indication of its current value. A description of the area in which the resumed land is situated is also required. 5. Identification of interests in land. Where the only interest in the land has been owned by the claimant this fact must be clearly stated in the valuation report. Where there are other interests in the land and these are known, or should be known, by the valuer they should be identified. The valuer needs to make it clear who he or she is acting for. If the land is subject to a lease, then it needs to be made clear that the valuer is acting for the lessor, lessee or both. If the land is subject to a mortgage this fact should also be revealed and the valuer should make it clear that he or she is not acting for the mortgagee. Again, if the land is subject to an easement, the valuer should identify its existence and give details of its nature and the dominant tenement. No opinion should be expressed as to the value of the easement but an opinion should be expressed as to whether it affects the value of the resumed land. The owner of the easement has a distinct and separate right to claim compensation and the valuer is not acting for that owner. 6. Comparable sales. At an early stage in preparing the valuation report, the valuer will determine whether the resumed land can be valued by comparing sales of comparable land. In most instances, resumed land can be valued in this way. There is no hard and fast rule by which a valuer can draw the line

that clearly separates sales that are comparable from those that are not. It is a matter for the expert valuer to determine: Duffy v Minister for Planning (2003) 129 LGERA 271. In unusual circumstances there may be no comparable sales. The valuer’s reasons for deciding there are no comparable sales will become self-evident as the report continues. A valuer’s opinion that there are no comparable sales of any kind which offer any assistance needs to be explained. Where there are comparable sales then the valuer explains which in his or her opinion are relevant and to the extent they are relevant. This is familiar territory to every valuer in which his or her expertise is a crucial element in compiling the report. 7. Method of valuation. Where, in addition to valuing the resumed land by means of comparable sales, the valuer adopts an alternative method of valuation, it is appropriate to explain why this is considered desirable (see 4.9). Where there are no comparable sales, the valuer has no choice but to nominate another method of valuation. Again it is necessary to explain the reason a particular method or methods of valuation is chosen. 8. Other valuations. The acquiring authority may have made available its valuation report to the claimant in which case the onus is upon the valuer to indicate where he or she agrees or disagrees with the findings or opinions contained in that report. Again, the claimant may have already had the land valued but decided that a second valuation is desirable. It is not unknown for as many as six valuation reports to be tendered at a compensation hearing where there are pronounced differences in the conclusions reached in the earlier reports. Valuations carried out for other purposes are generally considered to be of limited assistance (see 4.16). [page 237] 9. Planning considerations. All relevant planning and development aspects need to be identified. If the land is zoned as residential then that fact needs to

be recorded. If no change is likely to occur to that classification, that too needs to be mentioned. The possibility of any change needs to be forecast and what effect any possible or likely change will have on the value of the resumed land. The valuer may be able to obtain assistance in this regard from local councils or planning authorities. 10. Range. In normal circumstances, the valuer is expected to identify a precise figure in respect of the value of the resumed land and for the other losses incurred. However, it is not unknown for valuers to express the highest and best value as lying between a range of two specified figures. The courts accept that the valuation of property is not an exact science and does not lend itself to precision. There are many situations where each and every valuer is prepared to conclude that the market value of the resumed land is fraught with uncertainty. 11. Heads of compensation. The resumption statutes specify the headings under which compensation may be claimed. Thus, the Land Acquisition (Just Terms Compensation) Act (NSW) s 55 specifies six matters to be considered: market value, special value, severance, disturbance, solatium, and increase or decrease due to proposal. A positive or negative finding needs to be made in respect of each matter. If there is no special value that should be stated. Reasons for a solatium to be awarded need to be given, otherwise a court may assume that there is no application for any solatium (see 3.33). 12. Unfamiliar method of valuation. Where an unfamiliar or unusual method of valuation is chosen by the valuer, it should be assumed that the court or tribunal is not familiar with the method. Even where the method of valuation has been recognised and understood it is a safe practice to explain how the method operates. The hypothetical subdivision method valuation is probably accepted and understood by the legal profession but it may be preferable to explain how it operates. Likewise where a valuer speaks of depreciated replacement cost or discounted cash flow it should not be assumed that a lay person or a solicitor readily understands what is meant by those terms.

13. Questions of law. In valuation matters the dividing line between questions of fact and questions of law is blurred (see 4.4). There are occasions when analytical lawyers have recourse to referring to questions of mixed fact and law. It is proper in the valuation report to use the exact words in the relevant resumption statute when dealing, for example, with disturbance. But it is probably unwise for a valuer to discuss aspects of the law and cite Horn v Sunderland Corporation [1941] 1 All ER 480; [1941] 2 KB 26 at 45 and refer to Scott LJ’s obiter dictum that a claim for disturbance must be made as part and parcel of the claim for purchase money. The relevance of this English Court of Appeal’s decision to any of the Australian resumption statutes is at best arguable. Where a contentious point of valuation law arises, it is preferable for the valuer to say that he or she is [page 238] advised by his or her instructing solicitor or by the instructing solicitor’s counsel, as the case may be, on any difficult question of law as to what the law is or believed to be. On the question of disturbance, it would be preferable for the valuer to say that he or she is advised by the instructing solicitor or by counsel that disturbance is or is not treated as a separate head of compensation. The valuer is entitled to say that it has been his or her practice to treat disturbance as a separate head and in that way avoid expressing any opinion about the law. There are many instances where an experienced valuer has a sound understanding of resumption law and is not expected to conceal that knowledge. Nevertheless, it is prudent for the valuer’s report to concentrate on the facts and the opinions arising or emerging from those facts. 14. Attachments. As a matter of convenience the valuer may consider including copies of the notice of intention to resume, the notice of resumption, the certificate of title, and the statutory provisions governing the

determination of the amount of compensation. If there are significant matters covered in correspondence with the authority then consideration should be given to including copies of these documents as part of the attachments. The valuation report needs to adhere closely to the provisions of the relevant resumption statute and it may be desirable for reference to be made to, say, loss attributable to disturbance in s 59 of the New South Wales Act, without necessarily including the whole of s 59 in the body of the report. As indicated in number 3 above, it may be helpful to include a photograph of the resumed property. 15. Conflicts of interest. Where, for example, the valuer was consulted by the acquiring authority on the value of similar property being acquired in the same area, it may be prudent for the valuer to give details of this matter to avoid any suggestion that there is a conflict of interest. Where, for example, the valuer previously worked in the valuer-general’s department, it may be prudent to state that the valuer has never been involved in the valuation of the resumed land. Where, for example, the valuer was formerly a member of the council that is resuming the land, this fact should be revealed to negative any suggestion that there is a conflict of interest. In short, the valuer needs to think whether there is any factor which might suggest that he or she may be prejudiced due to some kind of previous association with the parties or the land involved. 16. Compliance with procedural rules. In tendering a valuation report into evidence, it may be necessary to comply with the relevant civil procedural rules. In Ray Fitzpatrick Pty Ltd v Minister for Planning (2007) 157 LGERA 100 the claimant for compensation sought leave to file and serve a report consisting of a principal report and an update prepared by a consultant town planner. The New South Wales Land and Environment Court refused the application on the ground that the Land and Environment Court Rules 1996 (NSW) provided that no expert report is admissible unless it has been prepared and served in accordance with any relevant practice required to comply with the Uniform Civil Procedure Rules 2005 (NSW).

[page 239] Deciding on the contents of a valuation report is largely a matter for each individual valuer. The above is not intended to present an exhaustive list of matters which must be included in each and every valuation report. Valuation practice is a complex and difficult professional exercise. The law does not expect pinpoint accuracy. No valuer is infallible. The determination of compensation does require that the valuer exercises due skill and diligence (see 4.25). The object of this valuation report is to assist in the determination of compensation. Unlike some other valuations it is not presented with a view to persuading a bank, for example, to enter into a mortgage. It is not prepared to assist insurance companies or superannuation funds. It is not prepared for investment. It is significantly different in many respects as to the ancillary matters, such as a solatium, which arise in resumption claims for compensation. It is a specialist report. The valuation report for resumption compensation differs from a valuation for other purposes in that it depends upon the application of the statutory provisions and the application of valuation methods. If the valuer ignores, for example, the matter of disturbance, the report creates a doubt whether that topic has been considered. The valuer needs to make a positive or negative finding in this respect. The report should reveal that the valuer considered this aspect of resumption and the reasons no claim is being made under that heading.

OPINIONATIVE ACTIVITY [4.7] In Electricity Commission of New South Wales (t/as Pacific Power) v Arrow (1994) 85 LGERA 418 at 419 Kirby P (as he then was) observed: Valuation is not a science. It is an imprecise, opinionative activity involving the consideration of many variables, sometimes with equally legitimate outcomes.

The same point was made in Spencer, the facts of which are summarised at

4.9. In Ardoch Pty Ltd v Valuer-General (No 2) (2006) 148 LGERA 408 at [31] valuation was described as an art, not a science, in which reasonable and experienced valuers may disagree. In Roads and Traffic Authority (NSW) v Hurstville City Council (2001) 112 LGERA 223 Mason P in the New South Wales Court of Appeal observed that in the field of judicial valuations, the task is ultimately evaluative. Within limits, the courts do not require every step to be separately justified. But the courts do expect a high standard in the compilation of a valuation report. The high standard of a valuation report is also arguably necessary given the potential bias that may exist in expert witnesses and/or valuers. This was highlighted in the compulsory acquisition case of Penrith City Council v Sydney Water Corporation [2009] NSWLEC 2. Indeed, Lloyd J stated (at [5]) that ‘it is a notorious fact that expert witnesses are inevitably biased, even if only subconsciously so, in favour of the party by whom they are engaged’. Consequently, it was further noted that the court ought to approach expert evidence with a considerable degree of [page 240] scepticism. In Willoughby City Council v Roads and Maritime Services [2014] NSWLEC 6, Biscoe J did not put this notion as strongly as was contended in the Penrith case but did suggest that experts should search for any conscious or unconscious biases that they may hold, for if such a bias was detected by the court, it would diminish the court’s trust and confidence in the expert.

HEARSAY EVIDENCE [4.8] In addition to possessing a sound knowledge of the statutory provisions governing the assessment of compensation for resumption and the

leading judicial authorities applying to the principles of resumption law, the valuer is expected to have a sound grasp of the rules of evidence. That some of the resumption statutes provide that a court or tribunal determining the amount of compensation is not bound by the rules of evidence (see 3.45) does not mean that the rules may be ignored. There are different types of evidence: direct, circumstantial, oral, documentary, real, indirect, original, derivative, prima facie, sworn, unsworn, opinion and expert. The valuer’s evidence is that of an expert. Being expert evidence, the court allows the valuer to express his or her opinion. Much of the opinion contained in the valuation report is based on experience and the report would be of little value if those opinions were not expressed. In addition, the valuer is expected to have a good understanding of hearsay evidence. Hearsay evidence refers to oral or written statements made by a person who is not called as a witness and which is given to the court by another person who does appear as a witness. Such evidence may be offered as proof of the truth of the facts stated. A valuer, V1, tells another valuer, V2, that certain land was sold for $100,000. V1 does not give evidence but V2 tells V3 of the sale. V2 does not give evidence but V3 testifies that the sale price of the land was $100,000 because V2 told him that was the price. Such evidence is hearsay and is inadmissible if the truth of the statement is in issue. Much of the evidence contained in a valuation report may be hearsay evidence. The valuer normally obtains information about comparable sales from information that is made available by other people. It may be obtained via the internet from reputable sources. Such information is relied upon by the profession as a whole. A valuation report would be rendered almost meaningless if it did not rely on that kind of information. The problem was identified in Wright v Sydney Municipal Council (1916) 16 SR (NSW) 348 where the valuer in resumption proceedings contended that being an expert witness he was entitled to state what sales he had knowledge of, even from hearsay, and to give details of such sales, their feature and price. It was observed:

An expert in land values can … give evidence that he has experience of sales in the district, and also that he has kept in touch with sales not made by himself in the district, to show that he is competent to give evidence as to value in the particular case. He can … give direct

[page 241] evidence of sales of other lands comparable to support his valuation of the land in question, provided he gives proper legal evidence of such sales, or such evidence as has already been given. But he has no privilege beyond any other witness to speak in detail of the prices realised for other lands unless he can give legal evidence of such sales, or that evidence has already been given by the witnesses. It would be a most dangerous thing to allow an expert to speak of the details of sales of which he really knows nothing, and see the difficulty the plaintiff in a case like this would be in if he had to answer such evidence not knowing whether the sales were really existent or not (at 359).

This passage was cited with approval in English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 All ER 726 where it was held that although an expert valuer may in evidence express his or her opinion on values, even though substantial contributions to the formation of those opinions have been made by hearsay, he or she cannot give hearsay evidence as to facts of transactions which lie outside his or her personal knowledge. This principle was also approved in Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407. Wright has since been applied in Roads Corporation v Love (2010) 31 VR 451 where the court noted that just like any other expert, a valuer must reveal the factual and intellectual basis of an opinion. It follows that a valuer therefore must not give hearsay evidence of disputed evidence which is outside of personal knowledge. However, regard can be had to evidence of events which are subsequent to the acquisition which tend to confirm the foresight a hypothetical buyer would have had at the relevant date. In Wright, above, the expert witness had no personal knowledge of the truth or accuracy of a list of sales. He said that he had obtained a list from the other party of alleged sales but that he had no personal knowledge of the truth of those sales, or the accuracy or inaccuracy of the information given to him

by the other party. It was held that he could not give evidence of the particulars of that list of sales. He was not entitled to give hearsay evidence of the particulars of the transactions. The issue arose in Smith v Walsh (1995) 90 LGERA 122 where the court accepted that information collected and made available to members of the valuation profession by the valuer-general in conjunction with the land titles office, based on transactions lodged with the titles office and collected by the valuer-general, was admissible. It was generally and widely relied upon by the valuing profession. This type of information was within the exception allowing admissibility of hearsay.

DIFFERING VALUATIONS [4.9] The majority of disputes concerning the amount of compensation due to the former owner of resumed land arise because of differences of opinions on the value of the resumed land by the different valuers who have been called upon by the claimant and the acquiring authority to give evidence. The court’s task is to scrutinise the differences of opinion and arrive at its own conclusion on the amount of compensation due. [page 242] There is nothing new or unexpected about valuers differing in their opinions on the value of resumed land. It was one of the problems that arose in Spencer v Commonwealth (1907) 5 CLR 418 (see 3.14). The facts in Spencer were that the Commonwealth resumed six acres of sand-hummocks overlooking the Indian Ocean at North Fremantle. The sand-hummocks could not be put to any productive purpose at that time. The land was resumed for the purpose of constructing a fort for the defence of Fremantle harbour. It appears that the decision to resume was motivated by the RussoJapanese war of 1904–5. The fort was never built and Fremantle was never

threatened by this war. The court was faced with different valuations. It was remarked that the valuations made on behalf of the Commonwealth were ‘liberal’ and that in resumption cases ‘no land agent or valuer had any tangible interest in straining the value unduly downwards, whereas most have a tangible interest in the opposite direction, even though testimony has been given honestly’ (at 420). The court has to make a selection ‘among competent and honourable witnesses’. It was also remarked that there is ‘much land in many places the value of which is as definitely fixed as the price of wheat or sugar’ (at 431). The High Court cited a passage from a Privy Council decision in Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 373 at 391, an appeal emanating from Zanzibar in respect of the Indian Land Acquisition Act 1894 which applied in that protectorate: It is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Everyone who has gone through the process is aware of this lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at.

While the courts may not expect an ‘exact exposition’ in the 21st century, they do expect an ‘adequate exposition’! The duty of the court is to assess the compensation due upon ‘the whole of the evidence’ before it, ‘giving such weight to the opinion of the valuers as is justified by the evidence as a whole’: Redeam Pty Ltd v South Australian Land Commission (1977) 17 SASR 508 at 521. ‘Judges do not have to accept the valuations of either side and frequently arrive at a figure or figures which constitute a modification or modifications of the figures submitted by one or more valuers’: Doherty v Commissioner of Highways (No 2) (1974) 7 SASR 57 at 83. The court is guided in coming to its conclusion by the evidence of the valuers together with the other evidence. The duty of the court is to assess the

compensation for any loss that the claimant has suffered by reason of the acquisition. Everything else is simply evidence to be appraised by the court, as all evidence is appraised, upon which to come to its conclusion. [page 243] Differences of opinions in the conclusions reached by valuers in their valuations require the court to determine in what matters the valuers agree and in what matters they differ. It may be a conflict of facts, of relevance of facts, of inferences from facts, of opinions or of law. The solution to the conflict may not be found in valuation texts or decided cases. The difference may lie in the assumptions which the valuers have made. They may, for example, agree on the sales that are comparable, but differ on the potentiality of the resumed land for future development. It is the role of the court to resolve the conflicts of the valuers’ opinions and conclusions. It remains as a characteristic of compensation proceedings arising out of resumption that the testimony given by expert valuers called by the parties demonstrates the ‘extraordinary differences’ in the opinions advanced, after ‘serious and prolonged deliberation’, by ‘experienced professional men in respect of identical subject matter’: Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 543. The valuers may be at odds at the outset. They may disagree with what were, and what were not, comparable sales (at 550). The opportunities for a difference of opinion seem inexhaustible. One valuer may regard it as an extremely risky proposition to value land on the basis that its zoning may be changed soon; another valuer may regard it as virtually certain. Valuers can differ on what is the resumed land’s highest and best value. There is an infinite number of basic matters on which there is ample scope for divergence of opinion and in consequence radically different results in estimates of values of land: Verebes Investments Pty Ltd v Commissioner for Main Roads (NSW) (1972) 25 LGRA 391. The fact

that an authority may offer $1,148,372 and the former owner claim $8,116,916 in respect of land resumed for the purposes of a tunnel/freeway does not necessarily mean that the valuations have not been carried out objectively: Duffy v Minister for Planning (2003) 129 LGERA 271. In arriving at a conclusion that the value of the resumed land was $1,354,000 it was held that the task of the court in respect of differences of opinion, was to listen to the experts’ opinions, select those which seemed, for one reason or another, to be ‘the most persuasive and credible’, and determine from those opinions and other evidence, the probable development of a blighted area had the reservation over the land not existed. Where the court is faced with irreconcilable differences in valuation it looks to the evidence. A judge is not an independent expert even though he or she may preside regularly in compensation proceedings arising from resumption. The judge does not apply his or her own knowledge. It is contrary to principle to bring a third set of opinions into the arena and supplement or condemn testimony properly adduced before the judge. The judge may, however, have proper and rational grounds for preferring one expert to another. He or she may be able to conclude that one opinion is more sound than another. He or she may find a fatal flaw in the reasoning of a valuer. For instance, the valuers in De Battista v Transport for New South Wales [2014] NSWLEC 39 both had regard for [page 244] the comparable sales approach but still reached different conclusions on the value of the acquired land per square metre. The applicant’s valuer believed that a 25 per cent upward adjustment was necessary for the assumed eventual access to sewerage services, subject to the installation of a lead-in main. The acquiring authority’s valuer did not believe such an adjustment was necessary. The applicant’s valuer was asked to justify the 25 per cent

adjustment, given the absence of any comparable market sales that supported such an adjustment. The justification, which the court ultimately accepted, was due to evidence which indicated that the ability for sewerage services to be provided was, though not guaranteed, possible for the applicant’s land. Therefore, while a prospective purchaser of the comparable sale properties would have considered that sewerage services were unlikely to be provided, this was not the case for the applicant’s land and thus an upward adjustment was justified. But it is a judicial mistake to take several figures arrived at by experts and by some averaging process to fix a figure. Cases are not be decided that way: Cienda Pty Ltd v South Australian Urban Land Trust (1988) 65 LGRA 419 at 420; Balquhidder Pty Ltd v Minister for Environment and Planning (1986) 40 SASR 63 at 75. In Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 it was said that in fulfilling the task of making the judicial valuation required in a resumption case the court must choose between the competing experts. This difficult task was said perhaps only to be accomplished by comparing their qualifications, their experience and their general credibility. With respect, some reservation must be expressed about the weight to be given to this observation. The quality and cogency of a valuer’s expert opinion should, prima facie, lie in the quality of the valuation report. The fact that his or her qualifications or experience are more impressive or that his or her oral, supplementary, evidence is given without hesitation in clear and precise terms, should not necessarily be a persuasive consideration.

METHOD OF VALUATION [4.10] When the High Court, comprising Dixon CJ, Williams and Kitto JJ, stated categorically in Commonwealth v Arklay (1952) 87 CLR 159 at 170 that the ‘best evidence of [market] value is that of comparable sales of the land either before or after the date of acquisition’ no one seriously argues that the

normal method of determining the market value of resumed land is other than by means of comparing sales of similar property. An alternative method of valuation usually arises where there are no comparable sales or where there are some comparable sales but they are not regarded by the valuer as giving a satisfactory comparison. The choice as to the method of valuation lies initially with the valuer. Given a dearth of comparable sales or features of the land that are not comparable with the resumed land in the area, particular circumstances may require an alternative method of valuation. An alternative method of [page 245] valuation may seek to verify the result of the first method. If the valuer adopts different methods, it may be necessary for the valuer to explain which method he or she considers is appropriate in the particular circumstances. The valuer may need to convince the court that the method chosen is suitable, particularly if the court is not familiar with the method. In River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651 the claimant contended that the method used in valuing the resumed land should have regard to its productive capacity as a grazing property, taking into account the local market value of the capacity of the land in question. The High Court held that the comparable method of valuation used by the Commonwealth’s valuer was appropriate in the circumstances and should be adopted. In Bronzel v State Planning Authority (1979) 44 LGRA 34 at 38, it was held that the court was not disposed to reject any method of valuation adopted by a valuer on the ground that it was not worth considering. In Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 at [280] Callinan J said in the High Court: There is no legal principle that purports to, or could, close for all times the categories of methods of valuation which might be acceptable in a particular case.

He observed that valuation practice is an evolving situation. The appropriate method of valuation to adopt depends on the particular circumstances and it is permissible to have reference to two or more methods to assist the court, especially where no single method is free from criticism: Gabbay v Minister for Education (1985) 56 LGRA 82. A court is not obliged to find that one method of valuation is better than another in the particular circumstances. It may do so: Gosford Shire Council v Green (1980) 48 LGRA 201. Where the court decides to accept one expert witness’s method of valuation in preference to another, that decision is one of fact. If it can be shown that the court adopted a wrong principle of valuation, that would amount to an error of law: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, appeal dismissed, Tatmar Pastoral Co Pty Ltd v Housing Commission (NSW) (1984) 54 ALR 155. The distinction is a fine one. It was also held that it did not require the court to give reasons why it preferred one method of valuation over another. With respect, that must be a doubtful proposition. A court determining compensation is expected to give reasons on all significant decisions it makes. Where, for example, a court rejects the authority’s valuation it is under a duty to give reasons for that decision: Port Stephens Council v Fidler (1999) 103 LGERA 335. Five methods of valuation have been accepted in appropriate circumstances by the courts to value land that is being resumed: (i) comparable sales; (ii) capitalisation of income; (iii) discounted cash flow; (iv) summation; and (v) development possibilities. There is no closed list of the different methods which valuers choose to use when valuing land and there are variations within the methods selected. In Maidment v Roads and Traffic Authority (NSW) (2006) 153 LGERA the parties agreed that the resumed land should [page 246]

be valued on the ‘bottom up’ methodology described in Sandhurst Trustees Ltd v Roads and Traffic Authority (NSW) [2006] NSWLEC 243 at [74]. Under this methodology, the land is valued on the basis of its restrictive rural zoning in force as at the acquisition date with reference to comparable sales with low to medium density development potential, to which is added a premium for closer development under a transit centre zoning. This methodology contrasts with the ‘top down’ method whereby the land would be valued as though it had transit centre zoning and a declaration made for the chance that that rezoning and development may not eventuate and the time required before it may eventuate. Which method should be applied in a particular case depends largely on the degree of likelihood that existing restrictions may be relaxed and the likely time frame for that relaxation.

COMPARABLE SALES [4.11] To repeat: it has long been established and settled beyond doubt that in normal circumstances the best evidence of market value of resumed land is that of comparative sales. The market value is measured by a consideration of prices that have been obtained for land of similar quality and in similar positions. The market value is determined by inferring from the amounts paid, in actual dealings that are comparable. It is the ‘conventional valuation technique’: River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651 at 653. As was reiterated in Marroun v Roads and Maritime Services [2012] NSWLEC 199, so long as comparable sales are available, their direct comparison provides the conventional method of valuation. It is a question of fact whether a neighbouring property is comparable to the property which is compulsorily acquired. For the sale of neighbouring land to be relevant the valuer needs to establish that the land of the claimant is similar in all or in many important respects to the land of the neighbour and that the latter was sold in the open market at a date close to the acquisition. The date of sale of the neighbouring land must be sufficiently close to the date of acquisition so that the market price could not have

changed to any significant extent. The physical characteristics, amenities and tenure need to be as closely alike as possible. No two parcels of land are exactly alike. Two parcels may, however, be more alike to each other than a third parcel is. In the search for evidence to show the market price of a given property on a given date, there may be a continuous spectrum of cases varying from contemporaneous sales of precisely similar properties to sales at different dates of properties differing greatly in nature and development: Aik Hoe & Co Ltd v Superintendent of Lands and Surveys First Division [1969] 1 AC 1 at 18. Indeed, because the courts have highlighted that no two parcels of land are identical, there exists a need to make adjustments accordingly. In making such adjustments, it was noted in Tomago Aluminium Co Pty Ltd v Valuer General [2010] NSWLEC 4 that it is important for valuers to make explicit adjustments for relevant differences between properties. If such adjustments are made implicitly and/or do not provide itemised and reasoned adjustments, there [page 247] is a chance that such adjustments may be rejected because of a lack of transparency. One comparable sale may have appreciably more weight than another comparable sale. A sale of neighbouring land made within one week of the date of resumption may carry greater weight than a sale made six months earlier. The latter may be readily admissible as comparable; its difference may lie in the weight attached to it. Normally the longer the distance of time is to the relevant date, the weaker becomes the weight to be attached to the comparable sale. There is a line of demarcation between evidence that is admissible, but entitled to little weight, and evidence which is not admissible at all. On this matter, Marroun noted that all comparable sales evidence may be considered relevant. However, the level of relevance of different

comparable sales may vary which can legitimately lead to a valuer providing a differing weight to different comparable sales. Importantly, as highlighted in Citic Pacific Mining Management Pty Ltd v Valuer General [2016] WASAT 23 which applied Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409, if the differences are so great in value, the court may have to make a finding that the land is in no sense comparable and that the adjustments made provide no assistance in determining the value of the resumed land. Further to this, Biscoe J in Holcim (Australia) Pty Ltd v ValuerGeneral [2009] NSWLEC 225 determined that while adjustments accounting for differences in location, area and time between the subject and comparable land are necessary, such adjustments must be made with caution. This is because adjustments must be made in a consistent manner to ensure that the comparable sale is in fact reliably related to the subject property. Minor differences do not render a neighbouring property non-comparable. In Morrison v Commissioner of Main Roads (NSW) (1964) 10 LGRA 314 the claimant contended that the workmanship and materials used in the construction of his house were of superior quality to that generally found in the neighbourhood and therefore difficult, if not impossible, to duplicate. It was held that in determining the market value of the resumed land regard should be had to sales in the locality of land enjoying similar characteristics to those of the claimant’s land; superior quality of the workmanship and materials should not be disregarded and this would be reflected in the market value of the property; the properties compared with each other in broad terms. However, as per Marroun, for comparable sales which substantially differ from the subject property, a process of reasoning is required to establish the utility of that sale for the purposes of valuation. The fact that the sale land compared was different by having a dwelling much larger in size than the dwelling on the resumed land does not mean that the sale on that account cannot be regarded as a comparable sale. In Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 434 it was observed:

Theoretically a comparable sale may be of the very land to be valued, as where, for example, a contract for its sale was entered into on the very day

[page 248] upon which it was to be valued. This would be a most unusual situation, but often evidence is available of sales of very similar land close in point of time to the date of valuation. However, probably more often, the lands the subject of the sales relied upon are in some way different from the land to be valued, giving the latter land a higher or lower value than that to be deduced from the sales. The times of the sales in relation to the date of valuation may also have to be considered in the light of general movements in land prices. The need to make adjustments to values deduced from sales in order to arrive at the true valuation of the land to be valued does not preclude the court which has the task of valuing the land from relying upon the sales as comparable in the relevant sense, nor from the making by the court or by valuers of adjustments which may be nothing more than the best guess that can be made.

The purpose underlying the sale or purchase of a property may be relevant in determining whether a sale is comparable or not. The court may wish to know whether a sale was an ordinary businesslike transaction. If the sale was made by an aunt to her favourite nephew the sale might not be regarded as being made at arm’s length. If the seller was bankrupt or in severe financial difficulties it may be asserted that the seller sold at a lower price than might be expected if the seller was not over-anxious to sell. A sale by a mortgagee may be rejected on the ground that there was no evidence to show that the mortgagor’s interests were being fully preserved: Re Murray (1934) 13 LVR (NSW) 25. Sales by the sheriff or in bankruptcy do not come within the Spencer principle: March v Frankston City (No 1) [1969] VR 350 at 367. A sale of farming land to a large retail establishment may be rejected on the ground that it is not a sale to another farmer and therefore not comparable to sales of farming land: Blefari v Minister (1962) 8 LGRA 1. If the resumed land is expected to attract only a certain class or type of purchaser, the sale of otherwise comparable land to an unexpected and different class or type of purchaser may result in it being regarded as non-comparable. A sale of land which resulted from compromised litigation needs to be viewed with caution,

because many factors extraneous to value may enter into the compromise: Celtic Agencies Pty Ltd v South Australian Land Commission (1978) 20 SASR 176. Sales of comparable land in the neighbourhood may be good evidence in showing, not the value of the resumed land, but that land prices have increased in the area and are increasing. A prudent purchaser would take into account that over a period of years a substantial increase in prices had been paid for vacant land which was becoming scarcer: Hurdis v Minister (1957) 2 LGRA 132. The analysis and use of comparable sales was helpfully outlined by Wells J in Crompton v Commissioner of Highways (SA) (1973) 32 LGRA 8 at 23–4: Upon reading some works on comparable sales, one might be pardoned for supposing that, within narrow limits of tolerance, sales of land similar to the subject land must fall into two rigid categories: comparable sales and non-comparable sales. Such a supposition … would be an over-simplification and could lead to error. It seems …

[page 249] that, ideally, the valuer should in the first instance, look at the sales of land over a wide geographical and temporal range, and from these select those that appear potentially useful as a basis for compensation. Those selected should then be carefully analysed by reference to an extensive list of characteristics of land sales the compilation and assessment of which fall clearly within the province of experts. Whether or not one or more of those sales is, and how it or they ought, to be compared with the subject land becomes then a matter of degree, and a final decision is reached, often by those same experts drawing a series of nice distinctions. Obviously, no two sales of land will be found to be the same, or even similar in all respects. Those that bear a close similarity to the assumed sale of the subject land will be more reliable than those whose similarity is less proximate and in respect of which adjustments or allowances must be made before they can be safely introduced into the valuation process. At a particular point it will be found that, in respect of the remaining available sales, the adjustments and allowances that would need to be made are of such a magnitude that it ceases to be safe or sound to treat them as sufficiently similar to the assumed sale of the subject land, and they must thenceforward be rejected.

In valuing resumed land, the land may have been used for different purposes. To take a simple example: a rural property may have been divided into parts.

One part may have been used exclusively for grazing sheep and cattle; a second part may have been used for planting timber; a third part may have been used for training horses; and a fourth part may have been used as a guest house for backpackers. It is improbable that a property in the neighbourhood would have been used for four comparable purposes. The four parts may have to be valued separately. The prices obtained for grazing property in the neighbourhood may be comparable to the first part of the resumed land. Likewise there may be comparable sales for land used for timber. The comparable sales selected by the valuer may be relied upon by attributing a price per hectare to each of the different types of land. An illustration of the kinds of factors which render other sales noncomparable occurred in Wong v Minister of Water Resources (1985) 55 LGRA 431 where part of a market garden in the Adelaide suburbs was resumed. The various sales put forward as comparable were rejected for a variety of reasons which included: (a)

too great a time lag of 15–18 months before the date of valuation;

(b)

the size of the land sold was twice that of the resumed land;

(c)

lack of evidence to show the sold land’s potential development was similar to the resumed land’s potential;

(d) lack of evidence to show how much would have to be spent on filling on either land; (e)

inferior location;

(f)

differences in demolition work;

(g)

liquidity problems of vendor;

(h) closed sale between a government department and a company; [page 250] (i)

different distances to central business district;

(j)

different public transport; and

(k)

a sale between two government statutory bodies not at arm’s length.

It is well established that the use of comparable sales is to be preferred as the primary method of valuation. But this preference can be given too much weight. One error of judgment in applying a comparable sale can readily lead to a significant error in the final valuation: Waalt Homes Pty Ltd v Road Construction Authority (1987) 64 LGRA 346. There are occasions when the courts accept that identifying comparable market transactions is not the ideal method. In Roads and Traffic Authority (NSW) v Hurstville City Council (2001) 112 LGERA 223 it was held that in respect of the valuation of leasehold interests over land used for playing fields and classified as community land, compensation could be assessed at a premium rental at 6 per cent of land value capitalised for a term of the lease at 10 per cent. The sale of land at auction is, in theory, regarded as being a sound indication of the land’s market value. However, land that is offered at an auction and in respect of which bids are made but fail to meet the reserve price must be treated with caution. The highest bid that was not accepted may not be a true indication of the land’s market value. It is not unknown for the auction to have received ‘dummy’ bids from persons placed by the auctioneer to commence or boost the bidding. Even where the land is sold at auction where there have been ‘dummy’ bids, this throws doubt on whether the sale by auction of comparable land is sound and reliable evidence of the market value of that property. One of the issues to arise in Bennett v Fitzroy Shire Council [2004] 1 Qd R 494 concerned the value resumed land had for being sold in separate lots. Applying Spencer, it was held that to have valued the lots on the assumption that that they were all put up for sale on the day of the resumption would defy common sense. It would have no resemblance to reality. A discount was required for the risk involved in selling a large number of lots over an extended future period. The onus is upon the party submitting evidence of the value of the land to

prove that the sales relied upon are in fact comparable. Having established that prima facie there are grounds for showing comparability, the onus moves to the other party to show that the sales referred to are not comparable. It may be contended that the sales were of an unusual nature, were too distant in time, had different features, were of a ‘forced’ nature, or for some other reason did not amount to a comparable sale or, if they were comparable, they were weak and unconvincing evidence of the resumed land’s market value. A helpful summary of the comparable sales approach was provided in Chircop v Transport for New South Wales [2014] NSWLEC 63, applying Adams v Valuer General [2014] NSWLEC 1005. The case condensed the approach into a four-step model. The first step to a comparable sales approach is to accumulate a pool of potentially comparable sales. The second step is [page 251] to analyse this pool of comparable sites in order to convert them into a common measurement (eg per square metre). Third, adjustments must be made in order to reflect the differences between the comparable property and the subject property. The final step which completes the process is the application of the adjusted unitary rates of the comparable sales to the subject property in order to determine its value. It is during the application stage that differing weight may be attributed to the different comparable sales depending on how direct or limited their degree of comparability is with the subject land. J J Hockley and R T M Whipple, in ‘Valuation Evidence: The Comparable Sales Approach when Sales are not Comparable’ (2005) 11 APLJ 90, focused on the subject of comparable sales in Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180, appeal allowed Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003]

WASCA 295, where an issue was whether a valuer should identify the most important comparable sale. It was held on appeal in Arcus that there was no requirement that a valuer should identify the most comparable sale. One or more may be equally important. The writers question whether in this instance the comparable sales method was appropriate and argue that the valuers should have concentrated on the development potential of the subject site.

SALES AFTER RESUMPTION [4.12] Sales of comparable land made before the date of resumption are normally regarded as the best evidence of the value of the resumed land provided they occurred within a reasonable time before the date of resumption. The issue here is whether sales of comparable land made after the date of resumption are admissible in evidence. As already indicated the High Court in Arklay (see 4.10) held that comparable sales both before and after the date of resumption may be taken into account in determining the market value of resumed land. In Woollams v Minister (1957) 75 WN (NSW) 103 at 109 it was held that there was no principle of law which requires the court to reject completely the evidence of sales even to the acquiring authority of comparable properties in the same area made shortly before and shortly after the relevant date, even if such evidence should be regarded with caution. The same view was taken in Poverty Bay Catchment Board v Forge [1956] NZLR 811. In Googong Pty Ltd v Commonwealth (1977) 13 ALR 449 comparable sales of other land made after the date of resumption were admitted as evidence in the same manner as sales made before resumption. Likewise, evidence of subsequent sales was held to be admissible in Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547 at 576–7. In Melwood Units Pty Ltd v Commissioner of Main Roads (Qld) (1978) 19 ALR 453 the Privy Council held that the sale of retained land severed by the

resumption made by the claimant after the date of resumption was relevant and should be taken into account in determining the value of the part [page 252] taken. The courts prefer subsequent facts to prophecies where such facts are available at the hearing to determine the compensation: Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 515. In respect of a claim for injurious affection arising out of rezoning changes subsequent events should not be ignored in assessing compensation: CMB No 1 Pty Ltd v Cairns City Council (1997) 96 LGERA 306.

SALES TO RESUMING AUTHORITY [4.13] The issue here is whether sales of land, which would otherwise be comparable, made to the resuming authority before or after the date of resumption, are admissible as evidence to determine the market value of resumed land. Traditionally, a sale of land to an acquiring authority made under the threat of compulsory acquisition was regarded as being unreliable: Re Gorman (1912) 29 WN (NSW) 195 at 196; Reading v Valuer-General (1923) 6 LGR (NSW) 132 at 138. The resumption statutes today mostly contain provisions relating to both methods of acquisition of land by an authority: a voluntary agreement or compulsory process (see 1.26). It follows that where a landowner is approached by an authority to sell land voluntarily, the owner would hope that the price would be the same as might be expected if the authority resumed the land. This would include not only the market value of the land but also the other losses expressly contained in the compensation provisions. If, however, the price paid for the market value of the land by the authority

was clearly identifiable and distinct from other losses, then the issue remains whether that sale can be regarded as a comparable sale. In Woollams v Minister (1957) 75 WN (NSW) 103 at 109 it was held that there was no principle of law which required the court to reject completely the evidence of sales to the resuming authority made either shortly before or shortly after the date of resumption. The Woollams principle has been applied and followed in a number of cases, particularly where there are no other comparable sales available, for example, in Beard v Director of Housing [1961] Tas SR 141 and Jovist Pty Ltd v Campbelltown City Council (1970) 19 LGRA 134. In many instances a resuming authority is in the same position as an ordinary purchaser. It wants to obtain the land. It is prepared to pay the market price. The resumption statute may expressly or by implication encourage acquisition by agreement. The authority may not be committed to acquiring the land by compulsory process if the negotiations for a voluntary sale break down. The vendor may be aware that the authority does not want to use its resumption powers. The vendor cannot be certain that the authority will not use its resumption powers. The negotiating vendor may make a shrewd guess that the authority will pay over the market price to avoid the necessity of using its compulsory powers. These and other factors may have the effect of distorting the price paid by the authority in a voluntary sale. Notwithstanding any reservations there may be as to whether the price paid by the authority in a voluntary sale does or does [page 253] not reflect precisely the market price, the court remains under a duty to take such sales into account: March v Frankston City (No 1) [1969] VR 350; Redeam Pty Ltd v South Australian Land Commission (1977) 17 SASR 508 at 515.

In Celtic Agencies Pty Ltd v South Australian Land Commission (1978) 20 SASR 176 the evidence of prices in other transactions relied upon by the acquiring authority included prices paid by the acquiring authority. It was held: (i)

Prices paid by the acquiring authority for other lands are admissible in evidence.

(ii) Those prices must be viewed with great caution if they are sought to be used as a measure of market value. (iii) This is particularly so when there is no evidence of value in the locality at the relevant times. The same approach was adopted in Beutel v Commissioner of Irrigation and Water Supply (1975) 2 QLCR 327 and Minister for Environment v Petroccia (1982) 30 SASR 333. The admissibility of comparable sales of land purchased by the acquiring authority arises in two situations: In the first they are the only comparable sales of any kind. In the second they are but one of a number of other comparable sales. In the first situation they fill a void that would otherwise exist. In the second they may, arguably, be regarded as being confirmatory of the prices obtained for other comparable sales. If they differ appreciably from the prices paid in other sales, there may be an explanation for the differences. In the first situation they may be the only reliable evidence of market value. These are questions of fact which the valuer weighs up in the particular circumstances prevailing. The question is seldom one of admissibility. It is usually what weight is to be given to a sale made voluntarily to the authority. In Merivale Motel Investments Pty Ltd v Brisbane Exposition (1987) 1 QLCR 235 the resumed land was close to another area which was purchased by the authority. The valuers in their original valuations regarded it as of sufficient note to justify its use as evidence of the value of the resumed land. It was held that the

question was not one of admissibility but one of weight to be given to such a transaction.

EARLIER SALES OF RESUMED LAND [4.14] The principle is that the price paid for resumed land within a reasonable time before the date of resumption in a bona fide transaction is good evidence of the market value of land which is resumed soon after that transaction. B buys the subject land from S for $200,000 in January in an arm’s length transaction. That land is resumed in April. The price paid [page 254] for the land in January is evidence of its market value in April. It is not, obviously, conclusive evidence. It is likely to be persuasive evidence. The earlier sale must be within a reasonable period before the date of resumption. In Harris v Minister for Public Works (NSW) (1912) 14 CLR 721 the land was resumed in 1910. Evidence of its sale price in 1897, some 13 years earlier, was rejected by the compensation court. The High Court held that the evidence was properly rejected. A sale of the subject land may be relevant to its value at the date of resumption if there has been no change in its value during the interval. It may be irrelevant where there have been dramatic changes in land values, for example, due to new settlement. There may be an infinite number of intermediate cases. Whether such evidence is relevant or not in a particular case must depend upon an inference of fact to be drawn from all the circumstances of the case, including those of place, time and change of conditions (at 725). The earlier sale of the resumed land may be irrelevant due to the distance of time that has elapsed. It may also be argued that although it was sold within a reasonable period, the sale price does not reflect its market value. It

may be argued that the purchaser was imprudent in paying such a high price for the land. It may be argued that the vendor was naïve in agreeing to sell for a sum that was appreciably lower than its market value. In Garrett v Lackey (1882) 3 LR (NSW) 237 the claimant had paid £10,000 for the resumed land but the authority valued it at £8,750. It was held that the sum paid for it was not conclusive of the land’s market value at the date of resumption. Alternatively, it may be argued that the claimant bought the land at a bargain price, that is to say, at a sum less than its market value. In Kennedy Street Pty Ltd v Minister [1963] NSWR 1252 it was argued, inconclusively, that the claimant had purchased the land some eight weeks prior to resumption and that its market value was considerably higher than the contract price paid for it. The essential question is to determine its market value at the date of resumption, not what was given for it. But it has been said that ‘in ordinary circumstances the price paid for the resumed land would not only be evidence of its value but is the best evidence of value’: Chapman v Minister [1966] 2 NSWR 65 at 69. On the other hand, it has also been said that in most cases the amount paid for the resumed land is irrelevant, but where the sale is so close in time to the acquisition, it is permissible to examine it as a comparable sale. It has been described as providing some evidence of value: Baringa Enterprises Pty Ltd v Manly Municipal Council (1965) 15 LGRA 201. In some circumstances it may be evidence of the resumed land’s lowest value: Cranbrook Playing Fields Ltd v Valuer-General (1936) 13 LGR (NSW) 62. The price paid by the claimant may be evidence of the claimant’s estimate of the value to him or her as distinct from evidence of its market value: McDonald v Deputy Federal Commissioner of Land Tax (1915) 20 CLR 231 at 239. Either party is entitled to give evidence of the price paid for the resumed land prior to resumption if either considers that it is relevant. In Rivers v Minister of Education (1975) 12 SASR 321 (see 3.35) the claimants’ land was approved for subdivision into 19 residential allotments [page 255]

and in November 1972 they contracted to sell the land as subdivided into service allotments for $119,700 subject to certain conditions and completion of certain works. In January 1973 the acquiring authority gave notice of intention to acquire and in August 1973 a notice of acquisition was gazetted, before settlement of the contract of sale. It was held that in the face of a binding contract of sale, which could and would have been performed on both sides but for compulsory acquisition, the claimants’ loss, for which they must be compensated, was the loss of the benefits of their contract. There was no need to resort to the concept of market value on a hypothetical sale where there was a binding agreement for sale in the market on or about the date of resumption. A contention by the acquiring authority that the contract of sale may have exceeded the market value was an error in principle as it seemed to assume that the total compensation could not exceed the market value of the land at the date of acquisition and that some means of apportioning that amount, as between the claimants for compensation, had to be found. The value of the rights in the land could not be compressed within the market value of the land.

EARLIER OFFERS TO BUY RESUMED LAND [4.15] Prior to the resumption of the subject land the owner may have received an offer to buy the land. The offer may have been refused. It may be pending at the date of resumption. It may have been withdrawn before the owner had an opportunity to accept or refuse it. No agreement has been reached and no contract has been made at the date of resumption. The question arises whether the owner may submit evidence of the offer on the basis that it is a factor to be considered in determining the value of the resumed land. In this situation there may be a distinction between a firm, unequivocal offer and an invitation to treat. The starting principle, going as far back as Kilpatrick v Board of Land and Works (1879) 5 VLR (L) 122, is that offers to buy the land made at some relevant time prior to the resumption are not admissible as evidence. The rule

currently derives its principal authority from McDonald v Deputy Federal Commissioner of Land Taxation (1915) 20 CLR 231 at 239 where the High Court was considering the value of pastoral land for the purposes of land tax. It was observed that offers to buy the subject land were at most evidence of the owner’s bona fide belief at that time as to the value of the land; a refusal was no more than an expression of the owner’s opinion as to its worth to him or her. If the negotiations did not end in a concluded bargain, the field is at once open to a multitude of other considerations before the same point of opinion is reached. The court might have to conduct an exhaustive examination of the circumstances surrounding the offer and the rejection of the offer. An offer seldom provides a solid foundation for determining the value of the land: Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547 at 562. However, the McDonald principle is not as rigid and inflexible as the final sentence in the last paragraph indicates. In Phillipou v Housing Commission [page 256] of Victoria (1969) 18 LGRA 254 it was noted that the cases establish that mere offers, even though reduced into writing, were not admissible evidence but could be taken into account as establishing that the owner of adjoining property who made the offer was willing to pay something more than the market value of the property because of its position in relation to his property. The offers made by the owner of the adjoining property were not to be regarded as proof of the value of the land but were to be taken into consideration in determining the value of the land. In Hustlers Pty Ltd v Valuer-General [1967] 2 NSWR 760, for the purposes of valuation in a sale by liquidators, evidence of offers from purchasers was admitted where the offers were coupled with an intention to sell the subject lands by auction and otherwise. In Re Brock [1922] SASR 51, the McDonald principle was followed

but the question whether the price bid at an auction was admissible as evidence was left open. In theory, an auction may be regarded as a proper means of establishing the market value of land (see 4.11). In practice, it may not be regarded by some members of the valuation profession as a reliable means of determining market value in all instances. The rule that offers to purchase the property are excluded from the valuation has been described in the New South Wales Court of Appeal as ‘absurd’ and ‘anomalous and unjust’: MMAL Rentals Pty Ltd v Bruning (2004) 63 NSWLR 167 at [84]–[102]. That proposition can no longer be sustained: Commonwealth Custodial Services Ltd v Valuer-General (2007) 156 LGERA 186 at [8]. In Goold v Commonwealth (1993) 79 LGERA 407 it was accepted that the authorities indicated that a court may receive evidence of an offer in respect of the land being resumed. It was held: [I]t would be anomalous and unjust for the courts to adopt a blanket rule excluding offer evidence. Such a rule might exclude cogent evidence of the interest of a particular purchaser in the land being valued, a person who was willing to pay more than ordinary market price (at 417).

Clearly a distinction needs to be drawn between negotiations for a sale of the subject land during which a figure may be mentioned and even be the subject of an invitation to treat on the one hand, and an unequivocal offer in writing made by a genuine and prudent person desirous of purchasing the land on the other hand. It is no more conclusive evidence of the value of the land than a concluded sale made by the present owner prior to the resumption, but it is evidence, even if it is not strong and highly persuasive. The task of determining the value of the land is sufficiently difficult without making it more difficult by excluding evidence that may have some bearing on the issue. The variety of circumstances that may surround an offer cannot on average be any greater than the variety of circumstances that surround a concluded sale. There are two parties. There is negotiation. There is an identifiable figure which is evidence of what the offeror considers is the value of the land to him or her. His or her offer may or may not reflect accurately the market value of

the land. But it does in many instances provide some evidence of value. It is an indication that [page 257] there is some demand for the land. It may be shown that the offeror had a shadowy and uncertain knowledge of the market value of the land but that is a criticism which can, on occasions, be levelled against a concluded sale of land. If valuers, in the business of advising clients on the value of land, take genuine offers into account in determining the sale price of land, it is at least debatable as to whether a court should exclude the evidence of an offer which demonstrates that the offeror had a genuine desire to buy the land at the relevant figure. In some instances it may be an indication of a sum which is below that of its market value for the reason that the offeror is hoping to obtain the land at a ‘bargain’ price. This would be particularly true where a bid was made at an auction of the land that fell below the reserve price set by the owner. The McDonald principle has been modified by the Land Acquisition Act 1969 (SA) s 25(1)(e) which provides that any bona fide offer to acquire the land made before the passing of the Act authorising the compulsory acquisition of land shall be taken into account. Options to purchase land do not have the same evidentiary value as completed sales and have long been regarded as little better than offers: Barns v Director-General, Department of Transport (1997) 16 QLCR 101 at 119.

OTHER VALUATIONS OF RESUMED LAND [4.16] Before the date of resumption the resumed land may have been valued for a number of other purposes. It may have been valued by a state government for land tax. It may have been valued by a local council for rates.

It may have been valued by the owner, for example, for the purpose of insurance or for the purpose of deciding whether or not to sell the property. It may have been valued by a mortgagee not only for the purpose of a mortgage but also for the purpose of foreclosing. It may have been valued by a bank for the purpose of securing a loan. The question arises whether a valuation carried out for another and unconnected purpose may be admitted as evidence of the resumed land’s market value. A distinction may lie between a valuation carried out for statutory purposes and a valuation carried out for private purposes. The issue arose in Harris v Minister for Public Works (1912) 14 CLR 721 (see 4.14) where the claimant sought to submit evidence of a valuation which had been carried out some 13 years earlier for probate purposes. It was rejected on the ground that the lapse of time had rendered it too remote but the High Court did not rule out the possibility of such a valuation being admissible and relevant if the valuation had been carried out immediately before the date of resumption. In Toohey’s Ltd v Valuer-General [1925] AC 439 the Privy Council noted that the principles in establishing the value of land for revenue purposes under the relevant statute and for compulsory acquisition were exactly the same. It would seem to follow that a valuation carried out to establish the market value for one statutory purpose is relevant in determining the market value for the purpose of resumption if there are no material differences in the statutory provisions. Toohey’s was considered in Valuer-General v Fenton [page 258] Nominees Pty Ltd (1982) 42 ALR 371 where it was held that in ascertaining the value of ‘unimproved land’ for rating purposes aggregation of three sales of improved land could properly be used as comparable sales, with due allowance for demolition of the improvements and clearance of the sites. It

was also criticised in Commonwealth Custodial Services, above at 4.15, and described as ‘unconvincing’ by Spigelman CJ (at [7]). However, the criticism was not shared by Tobias JA (at [125]). In Rowley v Minister (1924) 7 LGR (NSW) 42 it was held that a valuation made under Valuation of Land Act 1916 (NSW) s 70, and to which the owner had entered no objection, must be accepted as the market value of the land as at the date of resumption. It remained open to the claimant to show that the land had a particular value to him. Today the statutory valuation would be regarded, possibly, as evidence of the resumed land’s market value. It is unlikely to have been carried out on the same date as the date of resumption. It may have been one of a hundred valuations carried out at the same time in the neighbourhood. The courts have emphasised the difference in valuations carried out for different statutory purposes. In Gollan v Randwick Municipal Council [1961] AC 82 the Privy Council observed that the principles that determine questions of compensation for property resumed or expropriated are not of assistance in rating assessments. Similarly in Commissioner for Railways v Andreas (1955) 72 WN (NSW) 209 at 213 it was stressed that the Valuation of Land Act 1916 (NSW) was concerned with the valuation of land and interests in land and not with compensation for resumption. The specific matters governing the determination of compensation are laid down by the relevant resumption statute (see 3.11). One of the factors to be determined in assessing compensation is the market value of the land. It is at this point that the judicial decisions determine how the market value should be determined in accordance with the relevant legislation. The Spencer principle is in essence a supplementary judicial decision where the relevant resumption statute contained no provision as to how the value of the land was to be ascertained (see 3.14). When considering whether a valuation that has been carried out for another purpose, statutory or private, is evidence of the resumption, it needs to be determined whether the valuation was carried out to determine the land’s market value only. Where there are any differences in

the rules governing the assessment of the land’s market value, the other valuation ceases to be reliable evidence. It may be fairly said that the current resumption statutes embrace Spencer but not every word uttered in this decision applies to each and every resumption statute. The same reservation applies to the principle of enhancement which has now been replaced by statutory provisions. Those statutory provisions may be described as a summary of the essential elements contained in the Pointe Gourde principle. The principle may be conveniently described as having its origin in Pointe Gourde but it is now the words in the statutory [page 259] provisions which are the starting point. For easy identification, it may be fairly described as the Pointe Gourde principle. These remarks also apply to the Raja principle (see 3.19), sometimes loosely termed a common law source of assessment of market value. In Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 60 the High Court had no difficulty in applying the Raja principle in a rating and valuation appeal. The task was to determine the land’s market value as it is in respect of resumption. If a valuation has been carried out for the purpose of determining the market value of the land, based on its current use, for the purpose of land tax or local government rates, it provides some evidence of the land’s market value for the purpose of resumption provided it was carried out shortly before the date of resumption. If the valuation was carried out for some other purpose, for example, to determine the unimproved value of the land, the valuation may be irrelevant and inadmissible. In Randolph Pty Ltd v Woollahra Municipal Council (1975) 32 LGRA 263 the subject land was resumed in August 1969. During the hearing of the claim for compensation the claimant tendered a certificate of valuation issued by the valuer-general under the Valuation of Land Act 1916 (NSW) s 70 in

which the value of the fee simple interest in possession was stated. The claimant contended that this certificate was evidence of the land’s value on the date of resumption which was identical to the date of the certificate. The court rejected the certificate on the ground that the measure of compensation was provided by Local Government Act 1919 (NSW) s 536C and that s 70 of the 1916 Act applied only to valuations for stated purposes, of which resumption was not a stated purpose. Neither Act is in effect today and the decision appears to be restricted to a consideration of the particular statutory provisions then applying. The sole authority relied upon was Minister for Public Works v Thistlethwayte [1954] 2 All ER 843 where the issue was complicated by the effect of controlled prices which might have been expected to have been lifted. Rowley, above, was not considered. Accepting the obvious distinction between admissibility of prior valuations of the resumed land and, if admissible, the weight to be given to them, it may be argued that there is no compelling reason as to why a valuation carried out by a competent valuer who seeks to establish the market value of the land for any statutory purpose, or for any other purpose, which is sufficiently close in point of time to the date of resumption, should not be admitted into evidence. The weight and cogency of such evidence is a matter for the valuer to determine in framing his or her opinion and for the court to determine whether the valuer is justified in placing reliance upon it. It could even be argued that a valuer might be in error in failing to show why he or she regarded the other valuation as being relevant or irrelevant. In Clune v Brisbane City Council (1974) 1 QLCR 37 it was held that determinations by the Queensland Land Court of the market value of the resumed land in cases between other parties are admissible evidence as a reasoned expression of opinion of the market value based upon the evidence [page 260]

of sales and other relevant matters. If there is a similarity of basic evidence, no material differences in approach, no new or cogently contradictory or conflicting matters introduced, and no valid attack made upon the court’s reasoning or principles in the earlier determinations, their admission as comparative evidence is not unfair. Where such determinations are relied on by the resuming authority, the claimant is entitled to details of such sales proved in the cases in which they were made. To summarise: where a claimant for compensation for resumption submits that a prior valuation of the land’s market value, carried out for any purpose, is relevant evidence, the onus of proof moves to the authority to show that it is not relevant.

POSSIBLE CHANGES IN LAND USE [4.17] The question here is the effect which possible changes to the statutory rules and regulations governing the current or future use of the resumed land may have on the market value of the land. Of the wide range of controls that regulate the present or future use to which land may be put, the most important is the effect of zoning, planning, development and environmental control. It is a characteristic of most land in Australia that its use is subject to a multitude of controls. Gone are the days when a farmer could clear land of trees and bush and then plant any crop that he or she chose. Even the owner of a residence in a suburb may discover that he or she is unable to cut down a tree or must lop branches because they are too close to a power line. A wide variety of restrictions exists in respect of the use of land. Some of them may be expected to change. It is that expectation of change that may have an effect upon the price a hypothetical purchaser would expect to pay for the land. With the growth of the population and the development of the economy, zoning, planning, building and environmental regulations do not remain static or rigid. Such regulations are altered as circumstances require. The

expansion of the population within a city may require constant change to zoning rules. At one time land may be zoned for a particular purpose, for example, rural and agricultural purposes. At the time of resumption there may be a realistic possibility of the zoning being changed to, for example, residential purposes. Oil may be discovered and overnight the value of grazing land in the neighbourhood may escalate because there is a belief that there will be development of a town site. It becomes common knowledge that the zoning of a particular area will have to change to allow the development of the town site. In consequence, the market value of the land may increase rapidly and appreciably. The value of the land may reflect the anticipation of a hypothetical, prudent purchaser that the zoning of the land for grazing purposes will in all probability change. A change in the zoning regulations is not the only kind of land use regulation that may be relevant. Land may be zoned for office development, but there may be a height restriction on office buildings. There may be [page 261] public discussion on whether the restriction should be changed to allow taller buildings to be constructed. The possibility of such a change may be a factor which a purchaser takes into account and which has an influence on the market value of the land. The starting point is the Privy Council’s decision in Corrie v MacDermott [1914] AC 1056 where it was held that resumed land must be valued taking restrictions on its use into account. Further, the possibility of restrictions being discharged must also be kept in view (at 1063). Not all possible changes result in an upward movement in the market value of land. Where there is a possibility of a property being heritage-listed, for example, the market value of the land may drop significantly. The task of valuing land that is subject to restrictions imposed under a

planning scheme ‘bristles with difficulties’ if sales data of land subject to similar restrictions are not available for comparison: Port Macquarie West Bowling Club Ltd v Minister (1972) 28 LGRA 23 at 24. A planning scheme normally has the characteristic of applying to an overall area independently of all questions of title or ownership and its effect has to be taken into account in determining value. It is also a principle of valuation that the prospect of a relaxation of the restrictions under a planning scheme may also be taken into consideration: Royal Sydney Golf Club v Federal Commissioner of Taxation (1957) 97 CLR 379. Where there is a possibility that restrictions governing the use of land may be changed, the proper course may be to inquire first, what is the value of the land on the footing that there is no possibility of the restrictions being lifted or changed, and then, how much extra value should be allowed for the likelihood of the restrictions being lifted allowing a different and more profitable use at some future date (at 391). In some circumstances in the past it may have been reasonably easy to predict a possible change in the restrictions currently governing the land. It may, for example, have been reasonably easy to predict with ‘certainty’ that permission would have been granted if application had been made: Robson v Minister for Education [1964] SASR 308; Yarn Traders Pty Ltd v Melbourne and Metropolitan Board of Works [1970] VR 427. In the 21st century it would be unusual to predict a change of this kind with certainty! In Wattle Park Pty Ltd v Commissioner of Highways (1973) 6 SASR 69 it was held that the cases in which the land to be valued is subject to restrictions may be ranged along a notional scale within which they differ from one another in degree. At the lower end of the scale, there would appear the sort of restrictions that are so far-reaching, and so securely entrenched in the structure of the relevant parts of the law, that the possibility of relaxation, although it exists, is remote. At the upper end of the scale, one would find the sort of restrictions which, either because they are obviously intended to be temporary, or because, in the circumstances, they are unlikely to remain in force for long, may soon be relaxed, in whole or in part. Where land that is to

be valued is subject to restrictions of the kind appearing towards the lower end, a reliable starting point for the valuer will probably be found in [page 262] the value of the land in its unrestricted state; adjustment can then be made, with some reasonable assurance, to allow for the chances of relaxation. In such a case, the possibilities of error or of disagreement would be much greater if the land were first valued in its unrestricted state, and allowances were made in respect of the figure so arrived at. The situation would be otherwise if the restrictions were more like those ranged at the upper end. There the restrictions would have a far less secure lodgment in the relevant law, and the possibilities of error or of disagreement would be greatly reduced by initially arriving at a value for the land in its unrestricted state, and making a deduction in recognition of the restrictions, as qualified by the likelihood of relaxation. In cases in which the likelihood of the zoning restrictions being relaxed or removed is slender, it is appropriate to value the land in the first instance with all its restrictions and to make some allowance, however slight, in favour of the dispossessed landowner for the remote possibility that they will be eased or removed: Nardone v South Australian Land Commission (1978) 20 SASR 168. It needs a factual foundation to establish that there is some kind of prospect that the restrictions might be altered so as to permit the land to be used for a more valuable purpose: Googong v Commonwealth (1977) 13 ALR 449. Evidence from the appropriate officers serving in the relevant authority may be necessary. Such officers may, however, have a problem in divulging confidential information or speculating about future decisions. In Albany v Commonwealth (1976) 60 LGRA 287 the Commonwealth acquired an area of 32 square miles to the east of Darwin for the planned development and control of the city and its adjacent areas. The High Court

held that in determining the true value of the land, a distinction should be drawn between the likelihood of the Commonwealth acquiring the land for the future expansion of Darwin, a factor to be disregarded, and the likelihood of the Commonwealth recognising the need for the future expansion of Darwin and consequently planning that expansion and thereafter imposing land use controls designed to facilitate rather than to restrict urban expansion. While disregarding the fact that development would be by way of acquisition, it is proper to have regard to the possible or probable place of the land in planned urban expansion. In this instance, the land was ripe for urban planning and subsequent division. One difficulty which a valuer may encounter in valuing land is not in identifying the relevant restriction or assessing the possibility of change, but in assessing the impact of a restriction that allows the relevant authority to exercise a discretion. For example, a restriction may forbid the construction of two dwellings on a certain size of block in a particular area in the absence of exceptional circumstances. Over the years the relevant authority has exercised its discretion and decided on a number of occasions that there were unusual circumstances. Sometimes it approves an application to build two residences; sometimes it does not. Assessing the possibility of the authority approving a hypothetical application to build two residences from the former owner may be difficult but can not be disregarded. [page 263]

LAND RIPE FOR SUBDIVISION [4.18] The resumed land may possess unrealised possibilities for development, particularly for subdivision. For example, land used by the owner for agricultural purposes at the date of resumption, might, if subdivided for residential lots, possess a higher value to a hypothetical, prudent purchaser if bought for subdivision. The owner may be unaware that

the land is ripe for subdivision. Even if he or she is aware of its potential the owner may not wish to develop it in such a manner. He or she may wish to continue farming. He or she may not have the finance available to subdivide. If the owner sold the land to a hypothetical purchaser wanting agricultural land, the price might be $300,000. If it was sold to a hypothetical developer who had the resources and ability to subdivide, the price might be $600,000. The market value of resumed land is determined by the principle of its highest and best use (see 3.17). The market price of the land takes into account the prudent purchaser’s assessment of its possibilities, advantages and disadvantages. There are cases where land has a potentiality which might be realisable in the foreseeable future and, if so, will give the land an added value over and above its value for the uses made of it at the time of taking: Maori Trustee v Ministry of Works (NZ) [1958] 3 All ER 336. It is the present value of the land that falls to be valued, including its potential according to the condition of the land as it stood at the time of resumption: its potential should be valued as if it existed: Turner v Minister of Public Instruction (1956) 95 CLR 245. The potential of the land for subdivision does not give the land any special value (3.15) to the owner: Nuland Developments Pty Ltd v Parramatta City Council (1978) 37 LGRA 170; Kaljo v Minister [1963] NSWR 67. Subdivision is a normal business pursuit. It is a factor that is taken into account by a purchaser. In Elliott v Bankstown City Council (1986) 59 LGRA 170 an attempt by the claimant’s valuer to argue that a hypothetical residential subdivision would give the owner of the resumed land a special value because her husband was a licensed real estate agent and auctioneer and had experience in the development and sale of subdivision land was rejected because on the evidence the case was not one where there was any difference between the value of the land in general and its value to the expropriated owner in particular. One of the tasks for the valuer or court in determining the market value of a large area of land is to determine whether the land is or is not ripe for

subdivision. This is essentially a question of fact to be determined from the prevailing circumstances. Zoning regulations may prevent subdivision. There may only be a faint hope that the zoning regulations will be changed so as to permit subdivision. The hypothetical subdivision may lie in the future with all the uncertainty that the future holds. The land may have a definite potential for subdivision at the time of taking, but it must be ripe for immediate subdivision. There may be no planning or zoning restrictions that would prevent a developer from commencing sales by subdivision. On the other hand, it may be necessary for a purchaser to hold the land [page 264] for a considerable period before he or she is in a position to subdivide the land. He or she may be required to service the lots with water, drainage and electricity and it may be estimated that some years might elapse before he or she is able to sell the first subdivided lot. He or she may have to hold the land for an uncertain time until its future potential is realisable. There is a distinction between land ripe for subdivision and land having a potential for subdivision: Crompton v Commissioner of Highways (1973) 32 LGRA 8 at 25. Subdivision is normally dependent upon planning permission being obtained from the appropriate authority. That permission may exist at the time of resumption. If such is the case, there may be little difficulty in establishing as a fact that the land is ripe for subdivision. If it is generally known that an application has been made prior to the acquisition for permission to subdivide and has been rejected it will be difficult to establish that the land is ripe for subdivision. If there has been no application, the prospect of permission being obtained may be uncertain and speculative. If it can be shown that the hypothetical purchaser is confident that permission will be obtained, then it is possible for it to be established that the land is ripe for subdivision. In Crouch v Minister of Works (1976) 13 SASR 553 it was

found that the land was ripe for subdivision into farmlets but not for professional farming and the risk that that approval would have been refused must be taken into account in determining the bargaining price. In Pringle v Minister (1967) 14 LGRA 280 a contention that the resumed land be valued as if ripe for subdivision was rejected on the ground that planning restrictions made subdivision impossible. In De Ieso v Commissioner of Highways (SA) (1981) 27 SASR 248 the parties were agreed that the land was ripe for subdivision into residential allotments. They disagreed whether it could be divided into 18 or 22 allotments. It was found that there would be ready approval for 18 but for 22 it was uncertain. It was held that in assessing compensation the court was called upon to decide not whether a particular plan of subdivision would have received the approval of the relevant authority, but how a hypothetical prospective developer would have viewed his or her potential financial return if he or she were considering a proposal that included the adoption of one or other of the suggested plans. In Ford v Minister of Housing (NSW) (1964) 18 The Valuer 579 the parties differed as to whether it was practicable to subdivide the land into 37 or 27 building blocks and the court found that the potential value should be based upon 28 building blocks, as the remainder of the land would be required for public and recreation works. The testimony of the relevant officers of the authority, even if accepted, that an application for subdivision would be likely to be approved, is not decisive. Other factors may need to be taken into account: De Ieso, above; Elliott, above. A calculation based on a hypothetical subdivision will not be vitiated simply because some very slight delay might be experienced before realisation could begin, but an inordinate delay of, say, several years could, equally plainly, [page 265]

render the whole undertaking so speculative that a conclusion as to value for subdivision would be wholly unreliable: Brewarrana Pty Ltd v Commissioner of Highways (SA) (No 1) (1973) 4 SASR 476. The prospective hypothetical purchaser must have reasonable grounds for believing that there would be a good prospect of selling all available sections and making an adequate profit within a reasonable period of time. In this sort of calculation the prospective hypothetical purchaser has to weigh up the demand for land, the ups and downs of the market, boom conditions, interest rates and a developer’s capacity to raise the necessary capital in addition to the purchase price of the land. The heyday of undeveloped land being ripe for subdivision has probably passed. Evidence from developers may well show that permission to subdivide is today a long and tortuous process. The expression ‘ripe for subdivision’ is not heard as frequently today as it was during the 20th century.

PROFIT AND RISK FACTOR [4.19] Where the land resumed is found to have been ripe for subdivision at the time of resumption, and is being valued according to the number of lots comprised in the land, it is unrealistic to contend that all the available lots could be sold on one day for the prices assigned to them. In assessing the value to the claimant of the resumed land an allowance must be made for an estimated selling period and a profit and risk factor as well as the usual deduction relating to expenses of sale and to holding the land during the selling period. In Closer Settlement Ltd v Minister (1942) 17 LGR (NSW) 62 at 65 it was said: In arriving at the value of the land which is suitable for subdivision a familiar and appropriate method … is to estimate from whatever comparable sales of land in subdivision are available the price which would be realised by the land when sold; then estimate the costs involved in the subdivision and the length of time the realisation would take, making provision for the payment of rates and taxes and for interest on money outstanding; and an estimated net return on the subdivision is obtained. It is of course clear that a person purchasing in globo for the purpose of subdividing it would not pay the sum of money which is the present

equivalent of that estimated return; the land in subdivision may not realise the prices which are at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns.

The profit and risk factor is one of the elements that a prudent purchaser would take into account. A purchaser will only give a sum for the land which would show him or her, when sold in subdivision, a percentage return on the purchase price and his or her expenditure in preparing and submitting the land for subdivision, if the land is not already being sold in subdivision. The principle of deducting a sum for the ‘risk of realisation’ and to allow a sum to represent the profit which a purchaser might expect to make upon reselling in subdivision was approved and applied in Turner v Minister of Public Instruction (1956) 95 CLR 245 by the High Court. [page 266] A prudent purchaser concerned not to overlook ordinary business considerations would base his or her figure somewhat lower than the net sale price. Likewise a prudent purchaser buying in globo, with a view to subdividing and reselling in subdivision, would expect to make a profit out of the venture, as representing an appropriate allowance for the risk of the venture and a profit to him- or herself. No one is going to buy the land to sell it in subdivision if he or she has to pay as much for it as he or she thinks can prudently be counted on to be recouped. Where the owner has obtained approval for subdivision and is ready and willing to sell the land, there is no ground for excluding the profit and loss factor: Canberra Freeholds Ltd v Queanbeyan Municipal Council (1973) 27 LGRA 134 at 136. Having determined in ordinary circumstances where the market value is to be determined according to its development potential, the question which follows to be determined is what allowance should be made for the profit and risk factor and over what period. Illustrations of the answer to that question

may be found in Canberra Freeholds, above, where the court estimated that 48 separate parcels already created but without any road program should assume a two-year sales period and a profit and risk factor of 25 per cent. In Jones v Gosford Shire Council (1975) 33 LGRA 368 the court estimated a risk of realisation of a hypothetical subdivision not requiring roads at 20 per cent. In Minister for Environment v Florence (1979) 21 SASR 108 the court adjusted a valuer’s 35 per cent risk and profit factor as being ‘too sanguine’. In Bromley v Housing Commission of New South Wales (1985) 3 NSWLR 407 the court estimated that the subdivision would take four years to realise and estimated a profit and risk factor of 25 per cent. In G K Fetterplace Pty Ltd v State Planning and Environment Commission (NSW) (1977) 35 LGRA 164 where the resumed land was at the time of resumption being subdivided and four of the 12 lots had been sold, the profit and risk factor was assessed at 5 per cent.

PART OF LAND RIPE FOR SUBDIVISION [4.20] In Stocks & Parkes Investments Pty Ltd v Minister (No 3) (1969) 72 SR (NSW) 104 the claimants purchased 231 acres of land in 1962. The intention was to subdivide the land for residential purposes. A plan was prepared and it was agreed with the council that provision would be made for a school site. In 1966 the education department resumed six acres for the purpose of a school. The claimants contended that the six acres resumed had a value on the basis of its potential residential price of $115,000. The Land and Valuation Court valued the land at a nominal value of $1. On appeal, the New South Wales Court of Appeal held that the claimants, by agreeing to make provision for a school site, had done no more than undertake to make allowance in planning for such a site: Stocks & Parkes Investments Pty Ltd v Minister [1971] 1 NSWLR 932. On further appeal, the High Court held that in valuing the land it was necessary to take into account that it was part of an area ripe for subdivision in a manner for providing open spaces

[page 267] and special purpose uses, and its value could be determined upon evidence relating to any way in which the six acres of land could contribute to the value of the land in subdivision as a whole. It could fairly be asked, as some measure of its value, how much more would a developer pay for the whole of the 231 acres than the whole of the area less the six acres comprising the subject land. Evidence on the value of the land as a school site would be relevant although not decisive to the assessment of its value: Minister v Stocks & Parkes Investments Pty Ltd (1973) 129 CLR 385 at 392–3. In Coastal Estates Pty Ltd v Bass Shire Council (1993) 79 LGERA 188 a portion of the claimant’s land was resumed. The claimant contended that the land should be valued on a hypothetical subdivision analysis method and according to before and after plans that resulted in a loss of 100 allotments. It was held that the chief peril to this analysis method was that it might give an air of certainty by recourse to a mathematical calculation where there was no more and no less than an exercise of judgment.

CAPITALISATION [4.21] In the absence or paucity of comparable sales, valuers sometimes adopt an alternative method valuation of the resumed land, described as capitalisation. The method was explained in Hill v Commissioner of Highways [1966] SASR 316 by means of a formula: Let v r c r

= value = net annual value = capitalisation rate × 100 = v c

In this case the resumed land contained a garage and service station. It was

possible to estimate with reasonable accuracy what sum an oil company would be willing to pay by way of rent for the garage and service station. From this figure, a deduction was made for rates and taxes, leaving a figure of £752 (‘r’ in the formula). The difficulty was to establish the rate of capitalisation in order to convert the income extended over a period of time into an equivalent capital sum representing the value of the land. The valuers submitted figures ranging from 7 per cent to 13 per cent. The court adopted the approach that the rate of capitalisation must be established according to the amount that a prudent investor would expect to derive from such an investment. A prudent investor would be closely influenced by the prevailing mortgage rate and bank rates, but these would not normally be the same as the rates to be derived from investment in property. A prudent investor was said to have expected to obtain 9 per cent (‘c’ in the formula). Thus the formula read: £752 × 100 9

= £8,355

[page 268] The capitalisation method may be appropriate where the nature of the resumed land is such that a hypothetical, prudent purchaser would wish to purchase it for the purpose of investment or income. The purchaser is buying the land with a view to it producing a return to him or her. The capitalisation may be an appropriate method of valuing land which is suitable for, or used as, an office block (Abbey Orchard Property Investments Pty Ltd v Sydney City Council (1978) 37 LGRA 230), a butcher’s shop (Doherty v Commissioner of Highways (No 2) (1974) 7 SASR 57) or a petrol service station (Hill, above). Where land is used for business, commercial or residential purposes the capitalisation method of determining value may not be suitable. In such a case the land is not used directly for the purpose of deriving income. The land

may be incidental to the earning of income, in which event the capitalisation method may be inappropriate. The principal problem in the capitalisation method is to establish a satisfactory and realistic capitalisation rate that takes into account as many factors as possible. Regard has to be had to the depreciation of any building (Marcus Clark & Co Ltd v Commissioner for Railways (1940) 29 LVR (NSW) 98) and to the rate of interest on government and semi-government securities (Block Buildings Ringwood Pty Ltd v Ringwood City (1969) 20 The Valuer 765).

PRODUCTIVE CAPACITY [4.22] A hypothetical prudent purchaser may estimate the amount that he or she is prepared to pay a willing vendor for rural land in terms of its productive capacity. He or she will know how many hectares there are in the resumed land and may be able to calculate the number of sheep that the land is capable of carrying in a good year or in a poor year. From there an estimate can be made of the profit expected to be made from running sheep based on prices obtained in past years and on predictions for the price in future years. The purchase price may be strongly influenced by this factor. This may be particularly relevant where there are no comparable sales but experienced valuers have a sound appreciation of what the value of the land in the area is per hectare. In Lodge v Water Conservation and Irrigation Commission (1967) 14 LGRA 88 some 5,200 acres of land were resumed for the purpose of building a dam. The value of the land was calculated by the number of cattle and sheep that the land was capable of carrying. Evidence was given of the value of a ‘dry sheep area’, that is, the price buyers would be prepared to pay to buy land to keep sheep. In other words willing buyers would buy land, not with an eye to its size, but with an eye to its capacity to carry sheep. It appeared on the evidence that this was $30 per ‘dry sheep area’. Experience over the previous

decade disclosed that the resumed land was capable of carrying 11,875 ‘dry sheep’. Thus the land was found to have a value of $356,250. The test may founder where there are no records available to establish the carrying capacity of the land. In Cattanach v Water Conservation and [page 269] Irrigation Commission [1963] NSWR 304 at 318 it was held that estimates of carrying capacity ultimately depend either on the figures of stock which long experience over many seasons shows can be carried on the land, or on the individual judgment of people who have by experience or training some ability to make an estimate of the number of stock which can be safely carried on particular areas of land in normal seasons. Actual experience of stock carried, supported by records, is to be preferred. The longer that records have been kept the more likely it is that allowance can be made for fluctuations of weather and profitability in farming. The value of land does not necessarily rise or fall annually in conformity with the prices of primary products. A hypothetical prudent purchaser is more likely to have regard to prices prevailing over a period of years: Merriman v ValuerGeneral (1931) 11 LGR (NSW) 119. If the evidence is defective in respect of stocking rates, and the method does not take into account recent abnormal seasons, or such other factors as proximity to a city, the court may not accept the productive capacity method of valuation: River Bank Pty Ltd v Commonwealth (1974) 4 ALR 651. The productive capacity method of valuation may also be appropriate in calculating the value of land containing a quarry or which is suitable for quarrying. The hypothetical purchaser may estimate the market value of the land in terms of the amount of gravel or stone which may be capable of extraction and the amount which can reasonably be expected to be paid for that gravel, less expenses incurred in the process of extraction: Leaf Bros

Numurkah v Numurkah and Nathalia Shires (1958) 15 The Valuer 497. At least quarrying is less susceptible to unreliable weather patterns which are so critical in calculating carrying capacity of sheep or cattle on farming properties.

SUMMATION [4.23] The summation method of valuation means that the values of the constituent parts of a property are estimated separately and such values are added together to arrive at the total value of the land. It is a question of fact whether it is a suitable method of valuation in any particular circumstances. Part of the land may be zoned for open space and part may be zoned for commercial development. The nature and terrain of the land may justify it being valued in two parts, rather than as a single entity. The appropriateness of the method may be a central issue in a claim for compensation: Bronzel v State Planning Authority (1979) 44 LGRA 34. On the other hand, the parties may be agreed that the summation method is appropriate but then differ as to the values of each of the separate parts of the land: Wm Collin & Sons Pty Ltd v Co-ordinator General of Public Works (1974) 1 QLCR 1. Rural land may lend itself to the summation method of valuation. In Vains v Gosford Shire Council (1976) 24 The Valuer 756 the resumed land was valued in four parts: (i) creek flats; (ii) banks, old creek terraces; (iii) lightly timbered hills; and (iv) heavily timbered hills. In Di Giuseppe v Commonwealth (1983) 51 LGRA 341 one-quarter of the resumed land was used as a market garden [page 270] and the remaining three-quarters had been excavated as a sandpit but was no longer used for that purpose. For a sand excavation licence to have any commercial value the claimant would have had to cease his market gardening

and abandon the improvements on the land related to it. The summation method was considered inappropriate. The summation method is more likely to apply where a large area of land is resumed and part of it is suitable for one use and the other part for another. In Carson v Minister for Environment and Planning (1990) 70 LGRA 215 on the evidence the highest and best use of part of the 1,747.25 hectares resumed was for a tourist resort while the highest and best use of the remainder was for rural and residential development. The two parts were valued separately. In Gold Coast City Council v Dobson [2014] QLAC 6, the court was required to consider the most appropriate valuation method to suit the particular circumstances of the case. The council resumed part of a larger parcel of land owned by the applicant which reduced the applicant’s land from 3.084 hectares to 2.643 hectares. The valuation approach by the applicant’s valuer was referred to as the ‘blended rate’ which assumed that at the date of resumption, the applicant’s land had the potential to be developed for a mix of residential and non-residential purposes. This rate was a rate determined on a per square metre basis with the assumption that the necessary development approvals had been obtained. From this amount, a sum was deducted to account for approval costs and further discounting to allow for time and risk. The council’s valuer used the summation method and derived separate rates for the land that may be developed for residential use and a value for land that was available for commercial use and added them together. It was not in dispute that an owner would seek to maximise the amount of commercial development on the land as such a development would be of greater value. The court upheld the decision of the Land Court to adopt the ‘blended’ method as it found that a prudent and properly advised purchaser would have concluded that the council’s past behaviour indicated a likely chance of obtaining approval to develop the land beyond residential use for which it was initially designated. It was also determined that a summation method would not have regard to the uncertainty of the precise apportionment of residential and non-residential developments by the

council on the resumed land. Therefore, in this particular instance, it was held that a summation method would be inappropriate having regard to the particular circumstances of the case. It may be added that the term ‘summation’ is sometimes used by valuers to refer to the addition of the various components of a property, that is, land and buildings, usually on a replacement cost less depreciation basis or direct comparison with the improvement value analysed from sales.

BEFORE AND AFTER [4.24] The expression ‘before and after’ is sometimes used in respect of a valuation where the valuer values land immediately before a certain [page 271] event and then values it immediately after that event. The method is not in itself a complete method of valuation. It is an adjunct to other methods of valuation. It is used frequently where a strip of land is resumed for road widening purposes. The land in its entirety is valued before the strip has been severed and then the remainder is valued after the strip has been severed. The difference between the two values represents the value of the strip resumed. The facts in Roads and Traffic Authority (NSW) v Damjanovic (2006) 146 LGERA 403 illustrate the application of this method of valuation. The claimant owned 10.33 hectares which had a road frontage of 390 metres. The land was used for poultry egg production. Approximately 20 per cent of the land was resumed along the road frontage, leaving 8.233 hectares. The existing poultry egg production was continued on the retained land. The primary judge assessed the difference between the value of the land before severance and the value of the retained land after severance at $15,963,000. Dismissing the appeal, the New South Wales Court of Appeal held that no error on the part of the primary judge had been demonstrated. Again in

Carter v Roads and Traffic Authority (NSW) (2006) 144 LGERA 375, 9,337 square metres was severed from an area of 17.08 hectares of land for a proposed highway deviation. It was found that the resumed land had the potential for residential subdivision and should be regarded as actually affected by the deviation proposal. On a before and after valuation the diminution value amounted to $1,021,650. The expression ‘before and after’ may be used in respect of enhancement and depreciation (see 3.20). The land is valued at the relevant date as if the subject causing enhancement or depreciation had not occurred and then the land is valued as if the subject causing the enhancement or depreciation had been carried out. The difference may signify loss or gain as the case may be to the dispossessed owner. In Parramatta City Council v Gestetner Pty Ltd (1978) 37 LGRA 246 the council resumed a corner allotment in the city for road-widening purposes. The draft planning scheme showed a strip of land intended to be used for road widening and the remainder for business. The council contended that the compensation should be fixed at a value for road purposes. The claimant contended that compensation should be fixed at a value on a commercial base. It was held that the Pointe Gourde principle applied (see 3.20) and the planning scheme should be disregarded as it was part of the scheme for which the land was resumed. It was further held that the ‘before and after’ method was appropriate in the circumstances. Likewise in Bergman v Holroyd Municipal Council (1988) 66 LGRA 68 the zoning of the land was held to be part of the resumption scheme and had therefore to be ignored. The ‘before and after’ method was held to be appropriate. But in Daly v Manly Municipal Council (1983) 50 LGRA 301, where 1,090 square metres was resumed for public recreation from an area of 3,118 square metres with the claimant’s residence standing on the residue not resumed, it was held that the ‘before and after’ approach adopted by the council was not appropriate in the circumstances of the case. It was more appropriate

[page 272] to rely on direct comparison of comparative sales with appropriate deductions for the cost of bringing resumed land to saleable condition and further deductions to reflect any detriment to the value of the residual land brought about by use of the direct method of comparative sales. One of the events which result in the application of the ‘before and after’ method of valuation is the creation of a statutory easement over land. It may apply where an electricity authority exercises its statutory power to construct pylons and powerlines across privately owned land. One looks at the land and asks what was the value of the land before the work was carried out and what was the value after the work had been completed. The scheme may have a devastating effect on a small holding: Longeranong Pty Ltd v Electricity Trust of South Australia (1990) 55 SASR 493. In Roads and Traffic Authority (NSW) v Muir Properties Pty Ltd (2005) 143 LGERA 192 parts of two parcels of land were resumed for widening and upgrading a transit way. The owners claimed compensation for injurious affection. In assessing compensation the primary judge took into account that direct access to the retained land would, possibly, be granted to the claimants by the resuming authority or the council. The primary judge recognised the necessity to determine the ‘before’ value and to reflect in that value the risk of direct access not being approved. Where the primary judge erred was in applying a discount for the risk to the differential between the ‘before’ and ‘after’ valuation of the land without that risk, rather than to the ‘before’ value itself. In the New South Wales Court of Appeal Tobias JA said (at [103]): It is often the case that when only part of a dispossessed owner’s land is compulsorily acquired, a ‘before’ and ‘after’ valuation exercise of the whole of that owner’s land is conducted. In other words the market value of the land before acquisition is determined (including the acquired land) as is its value after acquisition (excluding the acquired land). In this way the difference between the values determines not only the market value of the acquired land but also captures any injurious affection to the retained land by reason of the acquisition for the public purpose. This approach, will also, in an appropriate case, capture any loss due to the severance of the dispossessed owner’s land by that acquisition.

The case of McDonald v Roads and Traffic Authority (NSW) [2009] NSWLEC 105 provided a helpful and brief overview of the before and after valuation method. Summarising various authorities, Biscoe J highlighted that the before and after valuation method was one which is often adopted in cases where only part of the land is resumed. However, it was noted that while the before and after valuation method has been approved, it has not been suggested by the courts that it must be adopted in all cases. McDonald also highlighted that the available case authorities accepted that the before and after method accounted for establishing the market value of the land, severance and increases/decreases in value of the residue land. The before and after method of valuation may not always be helpful where it yields a [page 273] nil value to the residual land: Almona Pty Ltd v Roads and Traffic Authority (NSW) (2008) 160 LGERA 375.

VALUERS’ LIABILITY [4.25] In an era where there is a readiness on the part of members of the public to sue accountants, financial advisers, banks and others for losses which they incur in transactions, valuers also belong to a profession where from time to time they have been found to be responsible for such losses. A claimant for compensation arising out of resumption enters into a contract with a valuer to prepare and complete a valuation report (see 4.6). The claimant expects the valuer to be knowledgeable in respect of the valuation of the resumed land and the compensation provisions. It will be an express or implied term of the contract that the valuer will exercise due diligence and care. Where it is alleged that the valuation report is deficient, inadequate or inept, at one end of the scale of fault the valuation is likely to be regarded as of

little or no use if the valuer has been motivated by fraud, dishonesty or woeful carelessness. There would be a fundamental breach of the contract between the claimant and the valuer. The latter would be in breach of his or her duty to demonstrate honesty and integrity. At the other end of the scale of fault, there may be minor matters that do not entitle the claimant to claim that there has been a breach of contract. Perfection is unobtainable in matters of valuation. Somewhere in the middle of these extremes lies the possibility of an action for breach of contract against the valuer. The claimant needs to establish that there has been a want of care on the part of the valuer, for example, an omission to claim for one of the matters, such as disturbance, which the legislation has stated unequivocally must be considered. This may be an oversight on the part of the valuer but the standards of the profession would require a valuer to have exercised a greater degree of care. The valuer is an expert and a higher standard is required than in respect of, say, a real estate agent who is not a member of the valuation profession. An expert valuer who fails to master and apply the compensation provisions will be liable in damages to a claimant suffering loss in consequence of the valuer’s negligence. It is not only the act or omission on the part of the valuer that must be identified; the claimant has to identify any loss that has been incurred. The valuer may run less risk of being sued in negligence in respect of a valuation for resumed land than in respect of a valuation for commercial purposes. The valuation of resumed land is made for a specific purpose. It is made to persuade the acquiring authority to accept the claim and, if failing to achieve that, it is made to persuade the compensation court that the claimant’s claim is fully justified and is a comprehensive appraisal of all the factors that support the claim. It is not prepared for any other purpose. Where the valuer prepares a valuation for commercial purposes, the valuer will be aware that it is not only the contractor who has engaged his or her services who may use the report, but others may use and rely on its contents

[page 274] and conclusions, even though they were not a party to the contract. They may sue in tort alleging negligence on the part of the valuer. They may claim that they relied on its accuracy and reliability. For example, a lender of money may be approached by a property developer seeking $50m to build a block of offices on a city block that currently is vacant without any improvements on it. The lender engages a valuer who values the land as a vacant site at $10m and with the development completed at an additional $40m. On the strength of this valuation, the lender persuades 10 investors to invest $5m each in the development. Halfway through the construction, the developer becomes bankrupt. The lender sells the property for $15m, this being the best price that the lender can obtain at the time. The lender and the 10 investors incur losses and take action against the valuer in respect of the valuation alleging negligence in its conclusions. That scenario is unlikely to occur in a valuation for resumed land. The valuation must adhere to the statutory provisions and is directed to that purpose, not for a different use by any other persons. The valuation report may expressly refer to this aspect. The two parties directly involved in a valuation submitted by a claimant in support of the application for compensation are the claimant and the acquiring authority. The authority usually carries out its own valuation. It does not depend upon the claimant’s valuation. The authority must obviously consider the claimant’s valuation report. If the claimant’s valuation is significantly higher than the authority’s offer of compensation based on its own valuation, the claimant may incur loss if the valuation is found to be exaggerated, based on a wrong principle or omits facts that are considered to be relevant. If the valuation is rejected it is possible that the claimant may not only have to pay his or her own costs but may have to pay some or all of the authority’s costs (see 3.47). This is one of the risks that any litigant runs but if the valuation is so badly flawed that it is of no assistance to the claimant, there is a possibility that a claimant could claim against the valuer for losses

incurred in respect of court costs. The claimant would argue that but for the valuation report he or she would have accepted the authority’s offer and would not have incurred further losses arising from the litigation. A valuation report may be the subject of adverse criticism on a wide range of matters. Marcus S Jacobs, ‘Impugning Expert Determinations in Australia’ (2000) 94 ALJ 858 lists some of these criticisms: undue partiality; taking irrelevant matters into account; failing to take relevant matters into account; inadequate research; lack of local knowledge; material mistake or error; improper motive; misunderstanding of a valuation principle; conclusion grossly excessive; conclusion ridiculously low; departure from instructions; failure to understand complexities; inadequate market analysis; lack of explanation as to how opinion reached; too many assumptions; too much reliance on personal experience; serious omission of relevant factors; and failure to adopt the correct method of valuation. To establish negligence on the part of a valuer it must be shown that he or [page 275] she did not exercise due skill and diligence. It must be shown that the valuer was in breach of a duty of care to the claimant. Apart from being liable for breach of contract with the claimant for compensation the valuer also runs the risk of being guilty of misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) s 52. For that reason, some claims against valuers are brought in the Federal Court rather than in the state courts. The High Court had occasion to examine the duty of care owed by a valuer in valuing property in Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413. This was not a valuation of resumed land. A lending institution engaged a valuer to value a property under construction. The valuer valued the property at $5.35m as it stood and $5.5m on completion. Its actual value

was about $3.9m–$4m. The lender lent $3.575m. The borrower defaulted. The property was sold for $2.65m. The insurer indemnified the mortgagee for the deficiency in the principal and interest amounting to $1.97m. The insurer sued the valuer in negligence. It was held that the valuer was in breach of a duty of care. But for the negligent valuation there would not have been a mortgage transaction. The valuer’s duty of care was called into existence by the interest of the lender in recouping what was due under the mortgage in the event of default and the foreseeable risk of there being a shortfall in the event of a fall in the value of the property. Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Ltd [2012] FCAFC 31 comprehensively reaffirmed the authority of Kenny noting that valuers hold a duty of care to third parties who rely on their valuation. Specifically, applying Corisand Investments Ltd v Druce & Co (1978) 248 EG 315, the duty of care owed was a duty to use the ordinary skills of an ordinarily competent person exercising the particular art and professing to possess that particular skill, in this case, the skill of a property valuer. Other matters to also consider when determining whether the valuer met their duty of care include whether the valuer relied on matters which no competent valuer could properly rely upon or failed to take into account matters which no competent valuer could have failed to have had regard to. Importantly, it was further noted in Propell that in light of the fact that a valuer must make a value judgment based on material available to him or her there is some room for error that is contemplated and accommodated for by the court. Not all aspects of the High Court’s judgment in Kenny & Good Pty Ltd apply to a valuation for resumption. The case was primarily concerned with the extent of the losses that flowed naturally from the valuer’s breach of duty to exercise skill and care. The valuer’s duty is to take reasonable care in respect of a valuation to ensure that the claimant is paid the maximum amount of compensation possible under the relevant resumption statute.1 [page 276]

Assuming that a valuer is found to have given negligent advice, the assessment of damages may be particularly difficult. In HTW Valuers (Central Queensland) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 Astonland wished to purchase premises in an arcade of eight shops. HTW Valuers were engaged to advise Astonland on the effect a new shopping centre nearby was likely to have on the existing tenancy levels when opened. HTW Valuers advised Astonland that it was not likely to affect the tenancy levels adversely. Astonland acted on this advice and purchased premises in the arcade. After the opening of the new shopping centre, the arcade shops suffered a collapse in gross rental income with a concomitant fall in value. Astonland attempted to sell the premises without success. The High Court held that the correct measure of damages, apart from consequential losses, was obtained by deducting the ‘true value’ of the arcade at the date of purchase from the purchase price. In determining the true value at the date of purchase, regard might be had to subsequent events. It was wrong to characterise the purchaser’s actual loss at the date of purchase as having been contingent on the opening of the shopping centre. The decline in the market value of the premises was not independent, extrinsic, supervening or accidental. Attempts by valuers to avoid liability by means of a disclaimer clause when entering into a contract with a claimant for compensation may well be doomed to failure. The valuer knows that the report will be used to support the claim for compensation and that if agreement is not reached between the claimant and the acquiring authority it will be produced in open court during the hearing. If the report contains misleading or false information, no disclaimer clause is likely to be effective if the claimant’s case is lost because of that fact. In APF Properties Pty Ltd v Kestrel Holdings Pty Ltd (No 2) [2007] FCA 1561 vendors of three farming properties engaged a valuer to prepare a valuation report on the properties. The valuer noticed a discrepancy between the cropping area advised by the vendors and that represented on a map. The valuer’s report featured a disclaimer asserting the report was only for use of addressed properties for prices based on cropping land. The purchaser

purchased the three farming properties for the price based on the valuation. The vendors had made false and misleading statements about the inflated cropping area. Notwithstanding the disclaimer clause the purchaser claimed damages against the valuer who had not inspected the cropping areas. It was held that the disclaimer was not sufficient to prevent the valuer being liable to the purchaser. The vendors were unable to recover damages from the valuer as they had given him misleading information. This was not a resumption case but it serves as a reminder that a duty of care may extend beyond the parties to an agreement. [page 277]

LAWYERS’ LIABILITY [4.26] In addition to a possible negligence action against a valuer in respect of the claimant’s compensation claim, there is also a possibility of a negligence claim against the lawyers conducting the claim. For the small solicitor’s practice a resumption case might cross the threshold once or twice in a 20-year period. It is not a topic with which a solicitor operating in a small practice could be expected to be familiar. Even the newly qualified solicitor cannot usually look back at his or her university notes as it is not a subject that receives much attention in an undergraduate course. Large practices can be expected to have acquired a degree of expertise in handling resumption cases. This is not to suggest that a claimant would be better advised to seek the services of a large practice in preference to a small practice. A small practice can often give a personal service and devote full attention to a problem that the practice has not encountered on a previous occasion. Any complacency that might have existed in the legal profession about the possibility of being found negligent in its handling of a resumption matter was severely shaken in Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575. The facts in Yates were that Yates bought land in the Darling

Harbour, Sydney area. Yates then obtained approval to construct a market building on the land. Soon afterwards the land was resumed by the harbour authority. Yates retained a firm of solicitors and a barrister to represent it in the Land and Environment Court proceedings. Compensation was assessed but there was an appeal to the New South Wales Court of Appeal as a result of which the matter was remitted for rehearing to the Land and Environment Court. That court then fixed an amount of compensation of $22.5m in the light of the appellate court’s decision. Following the conclusion of the proceedings in the Land and Environment Court, Yates sued its firm of solicitors and barristers in the Federal Court contending the claim for special value had not been adequately prepared and presented in the Land and Environment Court. The defendants denied negligence and claimed immunity from liability. Branson J found for the defendant solicitors and barristers (Yates Property Corporation Pty Ltd v Boland (1997) 145 ALR 169). Yates appealed to the Full Federal Court which found the defendant solicitors and counsel negligent and not immune from liability (Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 157 ALR 30). The principal matter on the issue of negligence concerned special value of the land (see 3.15). The solicitors and counsel did not claim that the land had a special value to Yates because they argued that Yates had a ‘head start’ in respect of the development of the land. Yates had obtained approval and in consequence would be able to develop the land’s potential much sooner than a hypothetical purchaser. Yates did not allege negligence against the valuers. The company alleged negligence against the firm of solicitors and the two barristers. The junior counsel was both a barrister and a valuer. The Full Federal Court held that the solicitors with experience in the law relating to resumption should have [page 278]

appreciated that Yates’s claim represented special value as a consequence of two cases, Kennedy Street Pty Ltd v Minister [1963] NSWR 1252 and Baringa Enterprises Pty Ltd v Manly Municipal Council (1965) 15 LGRA 201, where it was held that land will have a special value to its owner if that owner is in fact in a position where he or she can develop that site more expeditiously than the hypothetical purchaser could. It was held that the leading counsel, who had previous experience in resumption matters, failed to formulate the claim for special value and was negligent. So also was the junior counsel who was negligent in assuming that he had no obligation to advise Yates about the formulation of its claim. Leading counsel was not entitled to an advocate’s immunity. At issue also was the extent to which an instructing solicitor can rely on counsel’s opinion in respect of compensation for resumption. On appeal to the High Court it was held that the firm of solicitors and the two barristers had not been negligent. Six expert valuers had been retained to value the land. Three valuers considered that the land had a special value but none of the six valuers in the primary litigation had expressed an opinion in conformity. There was no suggestion any of the six valuers had been negligent in respect of special value. They had valued the land between $12.74m and $75m. The High Court then took the opportunity to examine the subject of special value and decided that Kennedy Street and Baringa, above, had been wrongly decided. Callinan J reviewed the relationship between valuers and lawyers and their respective roles. He said that valuers have to deal with matters of law, or mixed facts and law. There would be few non-legal disciplines requiring a knowledge and consideration of legal principles to the extent that a valuer must have in his or her ordinary practice. He said: I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. However, it is the valuer who has to give the evidence and who must make the final decision as to the form his or her valuation will take. It will be the valuer and not his legal advisers who is under oath in the witness box and bound to state his or her

opinions honestly and the facts accurately. The lawyers are not a valuer’s or indeed any expert’s keepers (at [279]).

Even if the High Court in Boland had not overruled Kennedy Street and Baringa, it is probable that the lawyers would not have been found negligent in this instance. The fact that there were no less than six hearings in the superior courts involving a total of 13 judges is perhaps a reminder that the handling of compensation claims needs care, expert knowledge of resumption law and diligent research on the part of both lawyers and valuers involved. [page 279]

JUDICIAL RESPONSIBILITY [4.27] In compiling a judgment to determine the amount of compensation which the acquiring authority must pay to the dispossessed landowner, the primary judge must find the facts, draw inferences from those facts, apply the law and explain the reasons for the result. In doing so, the judge owes a responsibility to others which extends beyond the duty owed merely to the parties to the case. In most civil cases there is a winner and a loser. The same applies to a resumption case but on occasions it may be that each party may be successful on some issues but not on others. The result may be closer to a draw than a clear win. In any event each party is entitled to a judgment which clearly explains what the judge’s reasons were for the decision. Likewise the solicitors and counsel are entitled to learn the reasons why the case has been won, lost, or partly won or lost. The second reason for providing reasons for the decision is to assist the losing party in deciding whether an appeal is justified. The appeal may be restricted to an appeal on a question of law. The appellant’s lawyers need to frame grounds that demonstrate where the primary judge’s decision is wrong. The primary judge’s findings and reasons are essential to aid the parties to frame a notice of appeal. For example, in City Hill Pty Ltd v ACT Planning

and Land Authority [2015] ACTSC 40 it was ruled that it was only legitimate to appeal a decision in valuation cases on matters which involved a question of law. Third, the primary judge owes a duty to assist the appeal court, should either party appeal. The appeal court expects the judge to have found the facts. It expects to know what inferences have been drawn from those facts. It expects the judge’s reasons for determining the amount of compensation to be explained. It is not enough, for example, for the judge to state that he or she prefers the evidence of one valuer to that of another. It must be explained why the judge finds the evidence of one valuer more convincing and persuasive than the evidence of another. These are the skills expected of the primary judge. The appeal court is placed in a hopeless position if it cannot understand the reasons for the judge’s decision. It may be able to deduce those reasons on some occasions but the failure to give adequate reasons may leave the appeal court with no option but to remit the case back to the primary judge for a rehearing. Indeed there are times when the appeal courts consider the failure to give adequate reasons leaves them with no option but to order a rehearing. An appeal court may order the rehearing to be conducted by the same primary judge or by another. Fourth, an obligation is owed to the valuation profession at large. Not only the valuers who have compiled reports and given oral evidence may be interested; there may be others who wish to see the reasons for the outcome. The judgment may be relevant to other similar cases. The valuers may be more interested in the facts of the case and the inferences drawn by the judge than in any other issue. Fifth, a responsibility is owed to the editors and users of the law reports. It may contain an important point of construction of the relevant statutory [page 280]

provisions. There is a wider field of interest among the legal profession as a whole through the means of law reports. Many resumption cases find their way into the law reports as they belong to a topic on which precedent is comparatively sparse. Each and every judgment is of consequence to the resuming authority. Sixth, a responsibility is owed to the wider public. The outcome of a resumption case may be of public interest to the local community, to a town or to the nation. The consequences of a primary judge’s reasons for judgment being inadequate may create serious financial consequences for the parties. It often results in the matter being remitted back to the primary judge. In Western Australian Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295 the matter was remitted for the reason that the primary judge failed to find whether the sales relied upon to establish the market value of the resumed land were truly comparable. In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 82 ALJR 489 the case began in the New South Wales Land and Environment Court which awarded the sum of $14,375,000 in compensation. As a result of an appeal to the New South Wales Court of Appeal the matter was remitted to the Land and Environment Court which confirmed its original assessment. The Court of Appeal made an order that the matter again be remitted. The claimant appealed against both judgments of the Court of Appeal to the High Court which dismissed the appeal. The cost of litigation to both parties must have been considerable. Those who benefited from the appeal to the High Court were the lawyers and the valuers, not only in the fees paid to them, but in the general appraisal of the Land Acquisition (Just Terms Compensation) Act (NSW) s 56(1).

JUST LAWS? [4.28] The authors are not aware of any survey having been carried out in any state among former owners of resumed land as to whether they were

satisfied about the amount of compensation they received or the procedure followed in removing them from the land. Did they feel that they were treated fairly and justly? Or, were they left with a sense of grievance over the taking? It is perhaps an exercise that a state government might like to undertake to be sure that those who have ‘suffered’ a loss in being deprived of continuous ownership of ‘their’ land by a unilateral decision on the part of an acquiring authority are not left with a lingering feeling of injustice. The compensation provisions concentrate on determining the market value and other matters, such as disturbance, connected with the taking. Valuers are required to carry out hypothetical exercises, such as the calculation of the increase or decrease caused by the purpose of the resumption. There may be a case for arguing that the focus should be on the cost of relocating the owner on alternative land regardless of whether the owner wishes to find similar land. Perhaps as an alternative to the six specific matters contained, for example, in the Land Acquisition [page 281] (Just Terms Compensation) Act (NSW) s 55 (at 3.11) and other matters relating to assessment, the landowner should be entitled to argue that just compensation can only be ascertained fairly by calculating what it costs to find alternative, comparable land within a reasonable distance of the resumed land. It might be argued that there should be an onus on the resuming authority to calculate what it would cost to purchase land elsewhere. This might, in some instances, be a fairer method of assessing compensation. Perhaps the emphasis given by the Lands Acquisition Act 1978 (NT) Sch 2 r 1 to the effect that compensation ‘is the amount that fairly compensates the claimant for the loss he has suffered, or will suffer, by reason of the acquisition of land’ provides an apt and simple summary of the objective of

compensation on just terms. The rules governing valuation of resumption land should, in all jurisdictions, be subservient to this basic principle. _______________________________ 1

Andrew Sharpe, ‘Professional Liability and Risk Management’ (2003) 37 APLJ 329; Stanley Drummond, ‘Liability of Valuers’ (1999) 35 APLJ 699; P W Young, ‘Negligent Valuers’ (2000) 74 ALJ 997; Lindsay Joyce and Andrew Sharpe, ‘Anatomy of Negligence Claim’ (1997) 34 The Valuer and Land Economist 559; John Murdoch, ‘Negligent Valuers, Falling Markets and Risk Allocation’ (2000) 8 Tort L Rev 183; Anthony M Dugdale, ‘Conceptualizing Limits to Valuers’ Liability’ (2000) 8 Tort L Rev 7; Lynden Griggs, ‘The High Court and Liability for an Imprecise and Opinionative Activity — The Profession of Valuation’ (2003) 10 APLJ 40.

INDEX REFERENCES ARE TO PARAGRAPHS Absence of buyers …. 3.19 Acquiring authorities …. 1.18 compensation offers …. 3.3 exceeding powers …. 1.33 position of …. 4.13 sales to, before or after resumption …. 4.13 sole purchaser, as …. 3.19 valuation …. 4.25 vesting of resumed land in …. 2.13 Acquisition agreement, by …. 1.11 basis of …. 1.8 compulsory see Compulsory acquisition overview …. 1.1 Activities affecting land …. 1.8 Advance payment …. 3.42 Administrative law …. 4.5 Agreements acquisition by …. 1.11 compensation …. 3.3 not to resume …. 1.27

purchase …. 1.26, 4.13 resume, to …. 1.28 valuation …. 4.2 voluntary …. 1.21, 4.13 Appeals compensation claims …. 3.48, 4.27 Attachments …. 4.6 Bad faith acquisition by …. 1.34 Business extinguishment …. 3.27 goodwill …. 3.28 loss …. 3.28, 4.6 Buyers absence of …. 3.19 Canada …. 1.6 Capacity claimant …. 3.49 Capital gains tax compensation …. 3.52 Capitalisation …. 4.10, 4.21 Cash flow discounted …. 4.10 Claim for compensation …. 3.3 absence of …. 3.7 acceptance …. 3.9

amendment …. 3.6, 3.9 appeals …. 3.48, 4.27 claimant …. 1.51, 3.2, 4.25 contents …. 3.8, 4.2 court costs …. 3.47, 4.25 determination …. 4.2 disputed …. 3.44 expenses …. 3.41 hearings …. 3.46 incapacity of claimant …. 3.49 judicial responsibility …. 4.27 notice …. 3.4 oral …. 3.4 outstanding pre-existing …. 3.35 purposes …. 3.8 reasons for decision …. 4.27 rejection …. 3.9, 3.44 separate valuation of interests …. 3.10 time limit …. 3.5, 3.9 valuer’s skill, influence of …. 4.2 withdrawal …. 3.6 Clauses reservation …. 1.16 Commonwealth Constitution see Constitution legislation …. 1.12, 1.15 methods of land acquisition …. 1.26 Community land …. 3.21

Comparable sales …. 4.4, 4.6, 4.10, 4.11 after resumption …. 4.12 authority, to …. 4.13 errors …. 4.11 non-comparable …. 4.11 onus of proof …. 4.11 Compensation …. 3.1–3.52 absent owner …. 2.4 agreement …. 3.3 assessment …. 3.11, 4.9, 4.16, 4.28 advance payment …. 3.42 claim see Claim for compensation capital gains tax …. 3.52 contract of sale and …. 3.36 costs …. 3.47, 4.25 damage to land …. 1.46, 3.13 disturbance …. 3.23, 4.6 double recovery …. 3.24 easements …. 3.39 entitlement …. 3.2 extinguishment of business …. 3.27 fettered discretion …. 1.27 heads …. 4.6 injurious affection …. 3.33, 4.24 interest …. 3.43, 3.50 ‘just terms’ …. 1.4, 1.11, 3.43 land in lieu of …. 2.19

leases …. 3.37 lesser interests in land …. 3.40 ‘loss’ of resumed land …. 3.12 meaning …. 3.1 mortgagee …. 3.38 offer …. 3.3, 3.9, 3.44 Pointe Gourde principle …. 3.20, 3.29, 4.24 pre-acquisition losses …. 3.30 purpose …. 3.1 reinstatement and …. 3.26 solatium …. 3.34, 4.6 taxation …. 3.51 time limitations …. 3.45 trust …. 2.4, 3.50 Complaints ombudsman, to …. 1.48 Compulsory acquisition see also Resumption overview …. 1.1 Compulsory purchase …. 1.6, 2.5 Conflicts of interest …. 4.6 Constitution …. 1.4 ‘just terms’ under s 51(xxxi) …. 1.11, 1.12, 1.13, 1.14 limitations …. 1.11 purpose …. 1.11 Contract of sale …. 3.36 Costs court …. 3.47, 4.25 reinstatement …. 3.26

relocation …. 3.26 Councils land, nature of …. 3.21 power to purchase or resume land …. 1.19 Crown compulsory process …. 1.26 historical resumption by …. 1.6 mineral rights …. 1.25 overview …. 1.18 purchase agreements …. 1.26 statutes binding …. 2.30 Crown grants …. 1.16, 1.25 Crown land compensation …. 3.21 Damage to land …. 1.46, 2.27, 3.13, 3.23 Defence purposes resumption of land …. 1.11 Delay compensation claims …. 1.15 compensation payments …. 3.43 development possibilities …. 4.18 notice of intention …. 2.17 Delegation of powers …. 2.32 Development possibilities …. 4.10 Disclaimer clauses …. 4.25 Discovery of documents …. 1.44 Disposal

resumed land by authority …. 2.26 Disturbance …. 3.23, 4.6 Documents discovery of …. 1.44 Double recovery …. 3.24 Duty of care valuer …. 4.25 Easements …. 3.38, 4.24 Ejectment …. 2.23 Emergency requisition of land …. 1.8 English law …. 1.5 Enhancement …. 3.20, 3.32, 4.24 Entry immediate …. 1.39 taking materials …. 1.47 temporary …. 1.45 trespass …. 1.46 vesting, after …. 2.20 Estate in land …. 1.20, 1.21 equitable …. 1.21 fee simple …. 1.21 legal …. 1.21 Eviction …. 2.23 Evidence differing valuations …. 4.9 hearsay …. 4.8

market value …. 4.10, 4.11, 4.14 other valuations of resumed land …. 4.16 types …. 4.8 Exchange …. 2.19 Executive power …. 1.1 Expedited acquisition …. 2.11 Expenses legal …. 3.41 valuation …. 3.41 Expropriation …. 1.6 Extinguishment of rights acquisition, whether …. 1.8 Facts law, inferences and opinions, distinguished …. 4.4 Fee simple estate …. 1.21 Fixtures …. 1.24 Forfeiture of land …. 1.8 Goodwill …. 3.28 local …. 3.28 personal …. 3.28 Grants Crown …. 1.16 Hearings compensation claims …. 3.46 Hearsay evidence …. 4.8

Heritage status …. 4.17 Highest and best use …. 3.17, 3.24, 3.28, 4.17 Hong Kong …. 1.6 Identification acquiring authorities …. 1.18 Improvements …. 1.24 Income tax …. 3.51 Inferences facts, law and opinions, distinguished …. 4.4 Injurious affection …. 3.33, 3.35, 4.24 Interference resumption distinguished …. 1.8 Interest payment …. 3.42, 3.50 Interests in land creation of new …. 1.22 identification …. 4.6 lesser …. 3.39 meaning …. 1.21, 3.39 Invitation to treat …. 2.1 Judicial decisions …. 1.15 Judicial responsibility …. 4.27 Judicial review …. 1.31, 1.32 Just laws …. 4.28 ‘Just terms’ compensation, basis for …. 1.4, 1.11, 3.43 constitutional limitations …. 1.11

interest payments …. 3.43 meaning …. 1.11 Land compensation, in lieu of …. 2.19 community …. 3.21 comparison of parcels …. 4.11 exchange …. 2.19 improved/unimproved …. 1.24 interests in …. 1.20, 1.21 meaning …. 1.20 mortgaged …. 3.38 operational …. 3.21 option to purchase …. 1.21 productive capacity …. 4.22 remainders of …. 2.18 resumed see Resumed land uncertain ownership …. 1.21 Lawyers liability …. 4.26 Leases …. 3.37 nature of interests …. 1.21 Legal expenses …. 3.41 Legality, principle of …. 1.13 Legislation Commonwealth …. 1.12, 1.15 criticism …. 1.4 delegation of powers …. 2.32

earlier …. 1.3 exclusion of provisions …. 1.10 just, whether …. 4.28 purposes …. 1.43 regulations …. 2.33 resumption statutes …. 1.2, 2.2, 2.31, 3.1 special provisions …. 2.31 state …. 1.2, 1.11, 1.13, 1.15 territory …. 1.2, 1.11, 1.14, 1.15 uniform …. 1.4 Liability lawyer …. 4.26 valuer …. 4.25 Limitation of time compensation, review of …. 3.44 Local governments …. 1.19 Loss …. 3.12 business …. 3.28 pre-acquisition …. 3.30 threat of resumption, arising from …. 3.29 valuation …. 4.6 Materials taking of …. 1.47 Mala fides …. 1.34 Market value …. 1.4, 2.15, 2.26, 3.14 best evidence of …. 4.10, 4.11, 4.14 changes in land use, effect of …. 4.17

compensation …. 3.1, 3.11 determination …. 3.16, 3.23, 4.10, 4.11 differing …. 4.3 easements …. 3.39 enhancements …. 3.20 goodwill …. 3.28 ‘highest and best use’ …. 3.17 land substituted for …. 3.26 nominal value …. 3.19 potential uses of land …. 3.22 proposed resumption, threat of …. 3.29 range …. 4.6 restrictions on land use, effect of …. 3.21 severance, effect of …. 3.31 terminology …. 4.1 unrealised possibilities …. 4.18 value of the land, as …. 3.15 valuer’s task …. 4.2 Minerals …. 1.8, 1.25 Mining activities …. 1.8 Ministers delegation of powers …. 2.32 Mortgages …. 3.38 Multiple purchasers …. 3.16 Native title …. 1.23 Negligence lawyer …. 4.26

valuation …. 4.25, 4.26 Negotiation …. 4.2 offers distinguished …. 4.15 New Zealand …. 1.6 Notice of acquisition effect …. 2.13 publication …. 2.9 purposes …. 2.15 rescission …. 2.16 revocation …. 2.16 service …. 2.24 Notice of compensation claim …. 3.4 rejection …. 3.4 time limit …. 3.5 Notice of intention …. 2.1 absent owner …. 2.4 amendments …. 2.6 cancellation …. 2.7 contents …. 1.30, 2.5 effect …. 2.2, 2.13, 3.36 lapse of time …. 2.17 publication …. 2.5, 2.9 purpose …. 1.30, 2.2 review …. 1.32 service …. 2.3, 2.24 variation …. 2.6 Objections …. 2.10

right of …. 1.31, 2.10 Occupation post-vesting …. 2.20, 2.22 rent …. 2.21 temporary …. 1.45 terms and conditions …. 2.21 Offers to buy resumed land …. 4.15 Ombudsman complaints to …. 1.48 Operational land …. 3.21 Opinion …. 4.7 facts, law and opinions, distinguished …. 4.4 Option to purchase …. 1.21 Owner absence of …. 2.4 reactions to resumption …. 3.1 Ownership disputed …. 1.21, 2.29 uncertain …. 1.21 Parliamentary scrutiny …. 1.49 Placitum …. 1.11 Planning considerations …. 1.36, 3.17, 3.20, 3.21, 4.6, 4.17 Planning permission …. 4.18 Possession …. 2.22 Potential …. 3.22 Prerogative powers …. 1.17 Pre-acquisition declaration …. 2.1

amendment …. 2.6 cancellation …. 2.7 contents …. 2.5 publication …. 2.9, 2.13 purpose of resumption …. 2.8 service …. 2.3 urgent …. 2.12 Pre-existing claims …. 3.35 Principle of legality …. 1.13 Property constitutional limitations …. 1.11 meaning …. 1.11 Productive capacity …. 4.22 Profit …. 4.19 Public purposes …. 1.41 Public works …. 1.6, 1.42, 1.46 Purchase agreement …. 1.26, 4.13 earlier offers …. 4.15 underlying purpose, valuation and …. 4.11 Purposes empowering Act …. 1.43 public …. 1.41 sale or purchase of land, valuation and …. 4.11 Questions of law …. 4.6 Rates …. 2.25

Reasons compensation determination …. 4.27 resumption …. 1.30 valuation …. 4.4 Registration …. 2.14 Regulations …. 2.33 Reinstatement …. 3.26 Relocation …. 3.26, 3.27, 4.28 Rent occupation, during …. 2.21 Report valuation …. 4.4, 4.6, 4.8, 4.25 Rescission notice of acquisition …. 2.16 Reservation clauses …. 1.16 Resettlement …. 2.19 Restrictions prior to resumption …. 3.21 Resumed land changes in use …. 4.17 description …. 4.6 disposal by authority …. 2.26 earlier offers to buy …. 4.15 earlier sales …. 4.14 history …. 4.6 possession, timing of …. 2.22 rates …. 2.25 registration …. 2.14

restrictions on use …. 4.17 subdivision potential …. 8, 4.18, 4.20 taxes …. 2.25 title …. 2.14 unlawful use …. 3.25 valuation see Valuation vesting in authority …. 2.13 Resumption see also Compulsory acquisition advance payment …. 3.42 agreements …. 1.28 alternatives …. 1.35 ad faith …. 1.34 basic features …. 1.7 compelling …. 1.50 constitutional powers …. 1.11 contract of sale, effect on …. 3.36 control …. 1.8 criteria …. 1.8 defence purposes …. 1.11 easements …. 3.39, 4.24 emergency …. 1.8 English law …. 1.5 exceeding powers …. 1.33, 1.46 excess land …. 1.37 expedited …. 2.11 focus …. 1.8 immediate use …. 1.39

implied …. 1.8 intention …. 2.1 judicial decisions …. 1.15 lapse of time …. 2.17 laws, whether just …. 4.28 leases, effect on …. 3.37 legal expertise …. 4.26 legislation see Legislation loss arising from …. 3.12 mere possession …. 1.8 minerals …. 1.25 mortgages, effect on …. 3.38 native title …. 1.23 objections …. 1.31 planning considerations …. 1.36 portions of land …. 1.38, 2.18 powers of …. 1.9 preliminary warnings …. 1.29 prerogative powers …. 1.17 purposes …. 1.40, 2.8, 3.1 reactions of owners …. 3.1 reasons for …. 1.30 remainders of land …. 2.18 restrictions prior to …. 3.21 review …. 1.31, 1.32 sales following …. 4.12 similar activities …. 1.8 slowing the process …. 2.11

terminology …. 1.6 threatened, loss arising from …. 3.29 urgent …. 2.12 Review proposal to resume land …. 1.31, 1.32 rejection of compensation claim …. 3.44 Risk …. 4.19 Sales after resumption …. 4.12 authority, to …. 4.13 comparable …. 4.4, 4.6, 4.10, 4.11, 4.12 contract …. 3.36 earlier …. 4.14 offers …. 4.15 underlying purpose, valuation and …. 4.11 Severance …. 1.38, 2.18, 4.6 enhancement …. 3.20, 3.32, 4.24 injurious affection and …. 3.33, 3.35 loss to retained land …. 3.31 rates and taxes …. 2.25 Solatium …. 1.4, 3.34, 4.6 South Africa …. 1.6 Special value …. 3.15, 3.17, 3.23, 4.6, 4.26 State legislation …. 1.2, 1.11, 1.13, 1.15, 1.43 Subdivision …. 1.8, 3.16, 4.14, 4.19 land ripe for …. 4.18 part of land ripe for …. 4.20

profit and risk factor …. 4.19 Summation …. 4.10, 4.23 Taxation …. 2.25 compensation payment …. 3.51 Temporary entry …. 1.45 Temporary occupation …. 1.45 Terminology …. 1.6 Terra nullius …. 1.23 Territory legislation …. 1.2, 1.11, 1.14, 1.43 Threat of resumption …. 3.29 Title establishment …. 2.28 native …. 1.23 Trespass …. 1.46 Trusts compensation payment …. 2.4, 3.50 Ultra vires, doctrine of …. 1.33, 134 Uncertain ownership …. 1.21 Uniform legislation …. 1.4 Unlawful use …. 3.25 United States …. 1.6 Valuation …. 4.1–4.28 absence of buyers …. 3.19 agreement …. 4.2 alternative uses of land …. 3.17

appeals …. 3.48 attachments …. 4.6 ‘bargain price’ …. 4.15 ‘before and after’ …. 4.24 capitalisation …. 4.10, 4.21 comparable property sale prices …. 4.4, 4.6, 4.10, 4.11, 4.12 court, by …. 4.9 date of …. 2.15, 3.29 development possibilities …. 4.10 differing …. 4.2, 4.3, 4.9 discounted cash flow …. 4.10 earlier offers …. 4.15 earlier sales …. 4.14 enhancement …. 3.20, 3.32 entire land, of …. 3.16 expenses …. 3.41 facts, law, inferences and opinions …. 4.4 highest and best use of land …. 3.17, 3.24, 3.28, 4.18 leases …. 3.37 liberal estimate …. 3.18 loss …. 4.6 market value see Market value meaning …. 4.1 method …. 4.6, 4.10 multiple …. 4.6 multiple purchasers …. 3.16 opinion …. 4.4, 4.7 Pastoral Finance test …. 3.15

planning, zoning and environmental aspects …. 3.17, 3.20, 3.21, 4.6, 4.10, 4.17, 4.18 potential …. 3.22 principles …. 4.5 productive capacity …. 4.22 purpose other than sale …. 4.16 questions of law …. 4.6 Raja principle …. 3.19, 4.16 range …. 4.6 reasons …. 4.4 restrictions prior to resumption …. 3.21 separate interests …. 3.10 Spencer principle …. 3.14, 3.15, 3.16, 3.19, 3.23, 3.37, 4.5, 4.9, 4.16 special value …. 3.15, 3.17, 3.23, 4.6, 4.26 summation …. 4.10, 4.23 terminology …. 4.1 waste land …. 3.19 Valuation report …. 4.4, 4.6, 4.8, 4.25 Valuer …. 4.2, 4.3, 4.6, 4.28 bias …. 4.7 claims against …. 4.25 conflicts of interest …. 4.6 disclaimers …. 4.25 duty of care …. 4.25 hearsay evidence …. 4.8 liability …. 4.25 multiple …. 4.2, 4.5 negligence …. 4.25, 4.26

Valuer-General …. 4.3 Vesting occupation after …. 2.20, 2.22 resumed land in authority …. 2.13 Warnings, preliminary …. 1.29 Zoning valuation and …. 3.17, 3.20, 3.21, 4.6, 4.10, 4.17, 4.18

Related Titles Bartlett, Native Title in Australia, 3rd edition, 2014 Cameron-Dow, LexisNexis Questions & Answers: Property Law, 3rd edition, 2016 Croft & Hay, The Mortgagee’s Power of Sale, 3rd edition, 2012 Edgeworth, Rossiter, O’Connor & Godwin, Sackville & Neave Australian Property Law, 10th edition, 2016 Gray, Foster, Dorsett & Roberts, Property Law in New South Wales, 4th edition, 2017 Newton & Cheung, LexisNexis Case Summaries: Real Property Law, 4th edition, 2014 Viglianti-Northway, Understanding Real Property Law, 2015 Webb & Stephenson, Focus: Land Law, 4th edition, 2015