_Astway P/L v Council of the City of the Gold Coast_

Judgment (130 paragraphs)

[1]

[1] Wilson J: In 1994 the plaintiff was the owner of 16.75 hectares of land at Molendinar described as lot 241 on RP 844822. The land was taken by the Council of the Shire of Albert pursuant to s 5 of the Acquisition of Land Act 1967 (Qld) ("the Act") on 16 December 1994 "for rubbish depot".[1] In this proceeding the plaintiff seeks -

[2]

(a) a declaration that prior to 16 December 2001, the defendant "no longer require[d]" lot 241 within the meaning of that term in s 41(1) of the Act;

[3]

(b) a declaration that the defendant was obliged to offer lot 241 to the plaintiff at a price determined as at 10 November 2000 by the Chief Executive of the Department in which the Valuation of Land Act 1944 (Qld) is administered.

[4]

[2] Land may be compulsorily acquired only for a stated, prescribed purpose.[2] Section 5 of the Act[3] provided -

[5]

"Purposes for which land may be taken

5.(1) Land may be taken under and subject to this Act--

[6]

(a) where the constructing authority is the Crown, for any purpose set out in Schedule 2; or

[7]

(b) where the constructing authority is a local authority--

[8]

(i) for any purpose set out in Schedule 2 which the local authority may lawfully carry out; or

(ii) for any purpose, including any function of local government, which the local authority is authorised or required by a provision of an Act other than this Act to carry out; or

[9]

(c) in the case of a constructing authority other than the Crown or a local authority--

[10]

(i) for any purpose set out in Schedule 2 which that constructing authority may lawfully carry out; or

(ii) for any purpose which that constructing authority is authorised or required, by a provision of an Act other than this Act, to carry out.

[11]

(2) The power to take, under and subject to this Act, land for a purpose (the "primary purpose") includes power to take from time to time as required land either for the primary purpose or for any purpose incidental to the carrying out of the primary purpose.

(3) The Governor in Council, pursuant to any powers under the Land Act 1962, to resume land, at the request of a constructing authority other than the Crown, may take on its behalf any land comprised in a holding or any easement on a holding within the meaning of Division 11 of Part 10 of that Act required by such constructing authority for a purpose for which it may take under and subject to this Act land or an easement on land granted in fee simple."

[12]

[3] Lot 241 was compulsorily acquired by the Albert Shire Council for "rubbish depot", which was among the purposes in the schedule and a function of local government within s 5(1)(b). The resumption was effected by Proclamation published in the Government Gazette.[4] The land vested in the Albert Shire Council absolutely, not subject to any trust or other obligation.[5]

[13]

[4] Section 41 of the Act[6] provided -

[14]

"41 Disposal of land

(1) Notwithstanding any provision of any other Act, where land has been taken either pursuant to an agreement under section 15 or by compulsory process under this Act and, within 7 years after the date of taking, the constructing authority no longer requires the land, then the constructing authority shall offer the land for sale to the former owner at a price determined by the chief executive of the department in which the Valuation of Land Act 1944 is administered.

(1A) Unless sooner accepted by the former owner the offer shall lapse at the expiration of 28 days after it is made.

(2) In this section--

"the former owner" in relation to land means--

(a) where only 1 person had an interest in the land at the date of acquisition and that person is still alive or, in the case of a corporation, in existence--that person; or

(b) in any other case--such person or persons (if any) as the Minister, in the Minister's absolute discretion, having regard to the interest that existed in the land at the date of acquisition, considers to be fairly entitled to the benefit of this section.

(3) A person contracting or otherwise dealing with the constructing authority is not concerned to inquire whether the requirements of this section have been complied with, and the title of such a person to land acquired from the constructing authority is not affected by any failure to comply with those requirements."

[15]

[5] The critical questions in this litigation are -

[16]

(a) the true meaning of "no longer requires the land" - a question of law;

[17]

(b) whether the defendant no longer required the land within seven years after 16 December 1994 - a question of fact.

[18]

In order to resolve the question of fact it will be necessary to rule upon the admissibility of evidence relating to matters occurring after 16 December 2001 - the retrospectant evidence question.

[19]

[6] The plaintiff bears the onus of establishing affirmatively that within seven years after 16 December 1994 the defendant "no longer require[d] the land" within the meaning of s 41 of the Acquisition of Land Act.[7]

[20]

[7] In 1995 the Albert Shire Council and the Gold Coast City Council were abolished, and a new local government called Gold Coast City Council was made the successor of the abolished councils.[8] Thus the plaintiff has sought relief against the Gold Coast City Council (the defendant).

[21]

[8] Depending on the context, "require" may signify "need" or it may signify a mere "desire or want".[9] Senior counsel for the defendant submitted that the expression "no longer requires the land" in s 41 means "does not want the land". He relied on Hooper v Bourne[10] and Attorney-General v Hull.[11]

[22]

[9] Senior counsel for the plaintiff submitted that as a matter of construction, "the word 'required' should be read as having the same meaning in the Act, whenever it appears."[12] But it became clear in the course of oral argument that the term is used in quite different senses in different parts of the Act. For example, senior counsel for the defendant drew attention to s 14 which provides that "[t]he Registrar of Titles may ... require a person ... to deliver up ... the instrument in question"; failure to comply is an offence. In that section "require" is used in the sense of "compel".[13] By contrast, the sections of the Act which provide for the compulsory acquisition of land refer to "the particular purpose for which the land to be taken is required".[14] On distillation senior counsel for the plaintiff's submission was that "requires" in s 41 is used in the same sense as it is used in earlier sections about the land's being required for a particular purpose, and in this context he referred to a number of cases in which Courts have restrained local authorities from acquiring land not required for an authorised purpose.[15]

[23]

[10] In Hooper v Bourne a railway company had until 1853 in which to complete a railway. In 1848 it purchased approximately 19 acres of land by private agreement. When it finished the railway in 1853, it had used 6 of the 19 acres, as well as certain spots on the remaining 13 acres (for a drain, a cesspool and a passage for a water supply - but not for any buildings or rails). It let the unused lands on a yearly basis, first for agricultural purposes and later to an iron ore company, always reserving a right of re-entry at short notice for the purposes of the railway. In 1875 adjoining owners brought an action for ejectment in reliance on legislation which provided that -

[24]

"with respect to lands acquired by the promoters of the undertaking ... but which shall not be required for the purpose thereof ... within ten years of the expiration of the time limited ... for the completion of the works, ... all such superfluous lands ... shall thereupon vest in, and become the property of, the owners of the lands adjoining thereto ..."[16]

[25]

The adjoining owners had to establish that the lands were "surplus lands" on the date which was 10 years after their acquisition. Earl Cairns LC said -

[26]

"The mere circumstance that at one particular period the land was unbuilt upon, or unused for the purposes of the railway, will not be material, at all events will not be conclusive. It must be shewn affirmatively that, within the meaning of the Act of Parliament, it had become at the date I have mentioned superfluous land, that is to say, 'land not required for the purpose of the railway company's undertaking.'"[17]

[27]

His Lordship observed that by 1868 there had been a strong increase in traffic necessitating additional sidings, and that there was a strong presumption those elements had been at work in 1863. He went on -

[28]

"As your Lordships well know, it is not at all necessary that at the end of the ten years there should have been then the immediate possibility of employing, or the immediate necessity for employing, the pieces of land for the additional work. It would not have been superfluous land if it could have been reasonably said at the end of the ten years, that there was a purpose for which, even after that period, it would be required in connection with the railway."[18]

[29]

Lord Hatherley spoke in terms of whether the land was "wanted" for the undertaking,[19] while Lord Blackburn used the expressions "require" and "want" interchangeably.[20] Of course, one of the meanings of "to want" is to need or require.[21]

[30]

[11] In Attorney-General v Hull[22] land was compulsorily acquired in 1976 for State housing purposes. Under relevant legislation[23] the former owners were entitled to repurchase it if it were "no longer required" for such purposes. Keith J (with whom the other members of the New Zealand Court of Appeal agreed) said -

[31]

"[41] The first, and usually determinative criterion in s 40 is satisfied when in terms of subs (1)(a) the land is no longer required for the purpose for which it was taken. Whether that is so is a question of fact involving an assessment of intention in the light of objective circumstances. Proof that the land is no longer required for the relevant public work may be achieved by demonstrating an affirmative decision to that effect. The point can also be established by examining the conduct of the body holding the land and, if appropriate, drawing an inference that the body has concluded that it no longer requires the land for that work. Alternatively, the evidence may establish that that was not the case and, for instance, that the landholding agency remained in a state of genuine indecision. But if any reasonable person would undoubtedly have concluded that in all the circumstances the land was no longer required for the relevant public work, the agency may well have difficulty asserting that it had not so concluded, and therefore had not come under any obligation to proceed in terms of the section."[24]

[32]

[12] Land may be "required" for a purpose even though it is beyond the constructing authority's immediate needs. That was the case in Estates Development Company Pty Ltd v Western Australia[25] where land was acquired by a State Housing Commission for the purposes of a housing scheme. One of the grounds on which the resumption was attacked was that the Commission had not formulated any definite housing scheme but was planning for the uncertain needs of a fifteen year period, and that it was making immediate acquisitions simply in order to avoid future rises in price, recognising that when a scheme of development was ultimately worked out not all the resumed land would be needed and some would be sold back to former owners. The High Court rejected the argument. First, the legislation contemplated the Commission having land vested in it beyond its immediate requirements for the purposes of the Act, and second -

[33]

"... 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 land values shows only that its purpose was to perform its statutory duty with a minimum outlay. That is quite different from a purpose of reselling at a profit so as to offset the cost of resumptions."[26]

[34]

[13] Whether a constructing authority "requires" land for a particular purpose may be a different question from that of its deciding it does not require the land. For example, in Macfie v Callander and Oban Railway Co[27] land was held to be "required" for the purposes of a railway on the relevant date even though the company's directors had earlier considered it superfluous and actually tried to sell it. But, as the Privy Council explained in Attorney-General v Horton,[28] in that case there was an existing enterprise to which the constructing authority's needs could be objectively related. On the other hand, where there was no existing enterprise, and need for the land depended on the constructing authority's intentions in relation to the establishment of such an enterprise, there would be no distinction between its not requiring the land and its deciding that it did not require the land.

[35]

[14] In my view land is "no longer require[d]" within the meaning of s 41 when it is no longer needed. It will be required if it is still needed, even though there remains no need to use it immediately.

[36]

[15] It is a little surprising that the constructing authority's obligation in s 41 to offer the land for sale to the former owner is predicated simply on its "no longer requir[ing] the land", rather than on its no longer requiring it for the particular purpose for which it was taken. Perhaps the explanation lies in the provision's having been inserted in the bill by way of amendment after the Second Reading.[29] However, given the subject matter of the legislation - the compulsory acquisition of land - and that land may be compulsorily acquired only for a stated, prescribed purpose, I infer that the Legislature intended the constructing authority's obligation to offer to sell the land to the original owner to arise if, at the relevant time, "the constructing authority no longer requires the land for the purpose for which it was acquired".

[37]

[16] In the early 1990s the Albert Shire Council commissioned various investigations into potential sites for a rubbish depot for domestic refuse, putrescible waste and commercial waste. It had an existing landfill known as Molendinar I on land to the east of lot 241, which was expected to be at capacity by 1999/2000.[30] Lot 241 and Molendinar I were separated by a water treatment plant and a treed area.

[38]

[17] Lot 241 lay to the north of the Southport Nerang Road, adjoining the Gold Coast Railway line (which follows the alignment of Old Coach Road). Prior to its compulsory acquisition, it was used for quarrying.

[39]

[18] Sinclair Knight Consulting Engineers recommended the development of a tip on lands on either side of Old Coach Road (excluding land resumed by Queensland Rail) - that is, to the east, on lot 241 and land already owned by Albert Shire Council, and to the west, on lands then owned by Arkinstall, Laerkesen, Robin Wood Holdings Pty Ltd, Lyndalah Pty Ltd, Wangar Pty Ltd and Focone Pty Ltd.

[40]

[19] On 16 June 1994 Albert Shire Council gave Notice of Intention to Resume lot 241 for "rubbish depot purposes", and on 16 December 1994 a Proclamation of the resumption was published in the Queensland Government Gazette.

[41]

[20] The adjoining lands of Arkinstall, Laerkesen, Robin Wood Holdings Pty Ltd and Wangar Pty Ltd were all compulsorily acquired for rubbish depot purposes, and the Lyndalah Pty Ltd and Focone Pty Ltd lands were purchased for those purposes.[31]

[42]

[21] Lot 241 was included in the Future Urban Zone under the 1988 and 1995 Albert Shire Planning Schemes. As such it could not lawfully be used for rubbish depot purposes: rezoning was required. Under the now current 2003 Gold Coast Planning Scheme the land is included in the Community Purposes Domain: refuse disposal and/or a refuse transfer station in that domain could not be lawfully established without a successful impact assessable Material Change of Use application.

[43]

[22] On 24 November 1999 the defendant made an IDAS Development Application under s 3.2.1 of the Integrated Planning Act 1997 (Qld) in relation to lot 241 and the adjoining land[32] ("the Material Change of Use application").

[44]

[23] On 3 March 2000, while the Material Change of Use application was pending, lot 241 was amalgamated with other land owned by the defendant (including Molendinar I, but not the other lands acquired for rubbish depot purposes).[33]

[45]

[24] By November 2000 the defendant had consulted various interested parties in relation to the proposed landfill on lot 241 and the adjoining land - the community, Nifsan Pty Ltd (a developer with interests in the general area), State Government Departments and or Authorities, Nerang Chamber of Commerce and others.[34] Its Suntown Landfill was to be closed to putrescible waste on 31 December 2000. On 10 November 2000 the defendant adopted the following recommendation of its Coordination Committee -

[46]

"1. That, following the closure of the Suntown Landfill to the acceptance of putrescible waste on 31 December 2000, all putrescible waste collected in the City be diverted to the Stapylton Landfill for disposal (recognising that the transition to this operation may take up until the end of January 2001).

2. That following the closure of the Suntown Landfill facility to the acceptance of putrescible waste and during the transition to the Stapylton Landfill, the existing Molendinar Landfill be utilised for the disposal of putrescible waste on a short term interim basis.

3. That Council's putrescible waste disposal contractors be advised of the new arrangements immediately.

4. That Council's waste collection contractor JJ Richards and Sons Pty Ltd be instructed to change its operations so that all putrescible waste collected on behalf of Council be disposed of at Stapylton Landfill.

5. That the Chief Executive Officer (Director Community Services) be authorised to negotiate with JJ Richards and Sons Pty Ltd amendments to the current schedule of rates in contract 165/98/014 Waste Collection and Transportation Services to compensate for the additional costs associated with the change in disposal site.

6. That Council acknowledges that changes will be required to the Waste Management budgets and those changes be reported in the February 2001 Budget review.

7. That the waste acceptance criteria for any new landfill at Molendinar exclude putrescible waste.

8. That the current Material Change of Use Application for the proposed landfill at Molendinar be withdrawn to enable a review of design outcomes with particular attention to the area between the motorway and the railway.

9. a. That consultation be undertaken with the Nerang Community with respect to the proposed new hard fill landfill at Molendinar and for the committee to be established on the lines of the Northern Wastewater Strategy.

b. That a report on this consultation be presented to Council within sixteen (16) weeks of establishment of the committee.

10. That Council officers continue to progress the identification of an alternative waste technology to reduce the reliance on landfilling for the treatment of putrescible wastes and to present a progress report by February."

[47]

[25] On 9 February 2001 the defendant adopted changes to its Waste Management 2000/2001 Capital Budgets recommended by its Health, Cultural and Community Safety Committee.[36] Of present relevance, there was still a capital budget for Molendinar II, albeit reduced from $1,400,523 to $701,994.[37]

[48]

[26] In April 2001 a Nerang Visioning Workshop was facilitated by John Byrne of the School of Design at QUT. There is no evidence that this workshop was an initiative of the defendant. In its summary of outcomes it is recorded that the group "applauded the decision by Council not to use the site ['the former quarry/dump site'] as a dump or landfill", and that they saw the site as "a critically important opportunity for special economic development ...". The group's understanding of the defendant's decision made on 10 November 2000 was flawed. It had decided not to dispose of putrescible waste at Molendinar II, but it had not decided that the site not be used for some other form of dump or landfill.

[49]

[27] On 29 June 2001 the defendant adopted a Capital Expenditure Program as part of its budget for 2001/2002. In the capital expenditure on refuse tips $250,000 was allowed for consultants in relation to Molendinar II.[38] On 30 November 2001 the defendant reduced this amount to $50,000.[39]

[50]

[28] In November 2001 Maunsell Australia Pty Ltd published a summary of its findings of a solid waste management study undertaken for the South East Queensland Regional Organisation of Councils.[40]

[51]

[29] A Nerang Development (Advisory) Committee had been established, made up of representatives of various interested parties including the defendant. It discussed various projects in the area, including Molendinar II. On 6 December 2001 Angela Reidy, a principal project officer of the defendant, told a meeting of the advisory committee that she was developing a project brief in relation to the site in order to determine the most appropriate use for it (for example, landfill or a technology park), and that there would be consultation with the community.[41]

[52]

[30] The defendant undertook a project called the Molendinar Site Development Strategy Project. As part of this, it commissioned Sinclair Knight Merz to report in relation to alternative uses of the land. Negotiations for their appointment took place in early December 2001. [42]

[53]

[31] The seventh anniversary of the resumption of lot 241 passed without mention.

[54]

[32] Meanwhile the defendant's Major Projects Branch had been working on a timeline for the project: it was considering timeframes for work needed if either of the Molendinar sites were used as a landfill, and for work needed if some other site were to be used for a landfill. The project officer communicated with Don Lowry, Colette McCool and others. On 18 December 2001 Mr Lowry stressed -

[55]

"The great benefit to Council of the Molendinar site is its location and associated savings in waste [transport] costs. This should not be understated in any consideration of the future use of the Molendinar site." [43]

[56]

[33] At a Special Budget Adoption Meeting on 28 June 2002 the defendant considered the Performance Plan for Gold Coast Waste Management for 2002/2003[44] and adopted the 2002/2003 budget.[45] In the Performance Plan Molendinar II was listed among the operational strategies. The strategy description was -

[57]

"Possible approval for the development of Molendinar Stage 2 as an alternative solid waste treatment facility".

[58]

The due date was 30 June 2003, and it was to be implemented through the use of mainly external consultants and resources. Expenditure for the project was in the order of $300,000 to be spent on external resources. The responsible officer named was Don Lowry. In the budget Molendinar II was listed in the Project Summary, but no funds were allocated to it.

[59]

[34] On 13 September 2002 the defendant considered the 2020 Vision on Waste - A solid waste management strategic plan for Gold Coast City prepared by Sinclair Knight Merz. The defendant's Coordination Committee recommended that Council endorse the report.[46] The target of Program 17 was the establishment of an effective waste transfer network.

[60]

[35] The defendant's Capital Expenditure Program 2003/2004 and Project Costing and Summary for 2003/2004, prepared in June 2003, referred to the construction of the Molendinar Transfer Station to replace the existing landfill as highly desirable.[47]

[61]

[36] Consideration of the Performance Plan for Gold Coast Waste Management for 2003/2004 was on the agenda for the defendant's Budget Adoption Meeting on 20 June 2003; the Special Budget Committee recommended its adoption. Molendinar II was listed among the operational strategies, described in the same terms as in the performance plan adopted 12 months previously. The due date was 30 June 2004. Implementation and expenditure were described in the same terms as in the previous performance plan, and the responsible officer named was Adrian Smith.[48]

[62]

[37] This proceeding was commenced on 29 March 2004.

[63]

[38] In April 2004 GHD completed its Gold Coast City Council Waste Disposal Network Review[49] in response to the 2020 Vision on Waste.[50] It recommended (inter alia) the establishment of a waste transfer facility at Molendinar II[51] and investigation of the feasibility and suitability of developing Molendinar II as an integrated waste management facility and possibly an inert waste landfill for non-putrescible waste.[52]

[64]

[39] Meanwhile Maunsell Australia Pty Ltd had been engaged to provide, at a conceptual level, a site master plan for waste management facilities at the Molendinar Landfill site. It produced a number of interim reports[53] and a concept plan.[54]

[65]

[40] The defendant's Capital Expenditure Program 2004/2005[55] repeated what had been said in the similar document 12 months previously[56] about the construction of the Molenindar Transfer Station. It also listed as a new project, which was described as essential, "Molendinar #2 - Waste Receival, Reuse & Treatment Facility", and provided for expenditure on it as follows -

[66]

2004/05 $ 100,000

2005/06 $ 100,000

2006/07 $2,600,000

2007/08 $2,500,000.

[67]

[41] Some of the defendant's officers met regularly through 2004 to discuss issues concerning Molendinar II - the "Molendinar 2 Workgroup".[57]

[68]

[42] The Performance Plan for Gold Coast Waste Management for 2004/2005 was put before the defendant's Special Budget Meeting on 26 May 2004.[58] The Molendinar Transfer Station and drop off recycling centre was described as a $3.46 million project, and it was noted that $560,000 was to be expended on external consultants for design and construction in 2004/2005.[59]

[69]

[43] Sinclair Knight Merz furnished the defendant with a further report in relation to the proposed waste transfer station,[60] in particular requirements under the Integrated Planning Act 1997 and the most appropriate development approval process. A report prepared by officers of the defendant subsequently recommended an amendment to the Planning Scheme to include all the defendant's waste management sites within the Table of Lands Designated for Community Infrastructure.[61]

[70]

[44] In the defendant's Gold Coast Waste Management Performance Plan 2005/2006[62] it was proposed to commence construction of the new Molendinar transfer station and recycling drop off centre during the 2005/2006 year, expending $1.6 million of a 3 year project worth $3.9 million.

[71]

[45] The defendant's Four Year Capital Expenditure Program from 2005/2006 referred -

[72]

(a) to the urgent need to build a transfer station and recycling drop off centre at Molendinar II for which $1,600,000 was budgeted in Year 1 and $2,300,000 in Year 2; and

[73]

(b) to a waste receival, reuse and treatment facility at Molendinar II as essential: funds for this were budgeted as follows -

[74]

Year 0 $ 100,000

Year 1 $1,000,000

Year 2 $1,700,000

Year 3 $2,500,000.[63]

[75]

[46] At its Special Budget Adoption Meeting on 19 June 2006 the defendant adopted the Four Year Capital Works Program 2006/07-2009/10 which provided for such expenditures.[64]

[76]

[47] On 11 December 2006 the defendant adopted amendments to its Planning Scheme which placed the land in land designated for community infrastructure.[65] At trial notification in the Gazette and in a local newspaper was the only outstanding step before the changes came into effect.[66]

[77]

[48] By the time of the trial in March 2007 the defendant had not performed any work on the land, and there was no indication that it was about to do so in the immediate future.

[78]

[49] There are some gaps in the evidence presented at trial: a number of the defendant's documents were tendered without proof of their formal adoption.[67] For example, in some cases the papers show only committee recommendations to Council, or that consideration of reports was on the agenda for Council meetings. The defendant prepared a chronology to supplement its written submissions which in some cases glossed over these gaps. For example, the chronology states that on 20 June 2003 the Council adopted the Gold Coast Waste Management Plan 2003/2004; the exhibit shows only that its Budget Committee recommended the endorsement of the plan, and that consideration of the plan was on the agenda for the 20 June 2003 Council meeting.[68] The plaintiff took no issue with the defendant's chronology.

[79]

[50] In any event, the plaintiff bears the onus of proving that the defendant no longer required the land at the end of the relevant period.[69] The defendant tendered the material in question, and it shows that, even without formal adoption of these matters, officers and committees of the defendant were considering the issues outlined above and preparing reports.

[80]

[51] On the facts of this case lot 241 has never been required for immediate use for rubbish depot purposes. Nevertheless there has always been a role for it in the defendant's long term planning of its waste disposal needs, even though the precise character of that role has changed and evolved over time.

[81]

[52] The land was acquired by the Albert Shire Council in December 1994 for rubbish depot purposes. The Council did not intend to use it immediately and had no specific plan in mind; rather it was making provision for future rubbish disposal needs. It was obliged to adopt a coordinated approach to the waste disposal needs of the whole local authority area, and the use and future development of other sites under its control.

[82]

[53] Over the ensuing seven years, the defendant acquired other lands in the immediate vicinity for the same purposes, it made an application for a Material Change of Use of lot 241, and it amalgamated that lot with adjoining land it already held. It consulted with interested parties. It decided that one form of waste, putrescible waste, should not be disposed of on the site, but continued to investigate options for the use of the site for other forms of waste disposal. Withdrawal of the particular Material Change of Use application was not a sign of its abandoning any idea of using the site for other forms of waste disposal; on the contrary, the withdrawal was to enable a review of design outcomes, and was accompanied by a resolution to consult the local community about "the proposed new hard fill landfill" on the site. Importantly, there continued to be allocations in the defendant's capital works budgets for the development of the site for rubbish depot purposes.

[83]

[54] These steps continued after 6 December 2001 without any significant interruption. While some officers of the defendant were investigating possible alternative uses for the site, these came to nothing, and investigations into its use for rubbish depot purposes and the allocation of funds in capital works budgets to be expended in future years continued.

[84]

[55] Counsel for the plaintiff submitted that evidence that the land was required after the seventh anniversary of its compulsory acquisition was irrelevant to the question of whether the defendant no longer required it within seven years of its compulsory acquisition. Counsel for the defendant submitted that it was retrospectant evidence justifying an inference that it was required within the seven year period.[70] Counsel for the plaintiff submitted that continuity of intention had not been made out, and further, that the inference could not be drawn because the retrospectant evidence related to the amalgamated site (which included the land on which Molendinar I was conducted) and not just that contained in lot 241.

[85]

[56] Even without the retrospectant evidence, I am satisfied that the defendant still required the land (and still required it for rubbish depot purposes) seven years after it had been compulsorily acquired. Viewed objectively, there was continuity of need, purpose and intention. That continuity has not been broken since. In my view the retrospectant evidence is admissible, and it confirms the conclusion of fact I have otherwise reached.

[86]

[57] The plaintiff's claim should be dismissed. I will hear the parties on the form of the order and on costs.

[87]

[3] Acquisition of Land Act 1967, reprint 1, in force as at 16 December 1994.

[88]

[4] Acquisition of Land Act 1967, reprint 1, s 9(6).

[89]

[5] Acquisition of Land Act 1967, reprint 1, s 12(1)(a), (5).

[90]

[6] Acquisition of Land Act 1967, reprints 3 (revised version) to 3B (revised version), in force as at November 2000 - December 2001.

[91]

[7] Hooper v Bourne (1880) 5 App Cas 1, 9.

[92]

[8] Further Amended Statement of Claim, [10]; Second Further Amended Defence, [6].

[93]

[9] See the Shorter Oxford, which gives these definitions (among others): "Ask or wish for (a thing) as a favour; desire or request"; "Need (a thing or person) for a particular purpose; depend on for success or fulfilment". See also the Macquarie Dictionary: "To have need of"; "To wish to have".

[94]

[10] (1880) 5 App Cas 1, 14.

[95]

[11] [2000] NZCA 107; [2000] 3 NZLR 63, 77.

[96]

[12] Plaintiff's written submissions, [1.3].

[97]

[13] See transcript of the proceeding, p 130.

[98]

[14] Acquisition of Land Act 1967, reprint 1, s 7(3)(a), s 9(3), 10(1). See also Acquisition of Land Act 1967, reprint 5 (current), s 7(3)(a), s 9(2).

[99]

[15] Sydney MC v Campbell [1925] AC 338; Minister for Public Works v Duggan [1951] HCA 29; (1951) 83 CLR 424, 446-448; Thompson v Randwick Corporation [1950] HCA 33; (1950) 81 CLR 87.

[100]

[16] Hooper v Bourne (1880) 5 App Cas 1, 5-6 (emphasis added).

[101]

[17] Hooper v Bourne (1880) 5 App Cas 1, 9.

[102]

[18] Hooper v Bourne (1880) 5 App Cas 1, 10.

[103]

[19] Hooper v Bourne (1880) 5 App Cas 1, 14, 17.

[104]

[20] Hooper v Bourne (1880) 5 App Cas 1, 21.

[105]

[21] See the Shorter Oxford definition of "want", which includes: "Be in need of; have occasion for, require; need".

[106]

[22] [2000] NZCA 107; [2000] 3 NZLR 63.

[107]

[23] Public Works Act 1981 (NZ), s 40.

[108]

[24] Attorney-General v Hull [2000] NZCA 107; [2000] 3 NZLR 63, 77.

[109]

[25] [1952] HCA 42; (1952) 87 CLR 126.

[110]

[26] Estates Development Company Pty Ltd v Western Australia [1952] HCA 42; (1952) 87 CLR 126, 139-140.

[111]

[27] [1898] AC 270.

[112]

[28] [1999] UKPC 9; [1999] 2 NZLR 257.

[113]

[29] Queensland, Parliamentary Debates, Legislative Assembly, 6 December 1967, p 2297 (A R Fletcher, Minister for Lands).

[114]

[30] Further Amended Statement of Claim, [2(f)(ii)]; Second Further Amended Defence, [1].

[115]

[31] Further Amended Statement of Claim, [4(a)], [6], [7], [12], [14]; Second Further Amended Defence, [1]. Despite admission that Lyndalah Pty Ltd's land was compulsorily acquired, there is evidence it was purchased: exhibit 1, pp 78-82. Nothing turns on this.

[116]

[32] Exhibit 3, Tab 21; Further Amended Statement of Claim, [17]; Second Further Amended Defence, [1].

[117]

[33] Exhibit 1, pp 205-206; Exhibit 2, [2.1].

[118]

[34] Further Amended Statement of Claim, [18]; Second Further Amended Defence, [1], [7]-[15].

[119]

[36] The report which was the foundation for the Committee's recommendation was prepared by Don Lowry, the Special Projects Coordinator - Waste Management, and authorised by Colette McCool, the Director of Community Services: exhibit 3, tab 40. See also Exhibit 4, document 1.

[120]

[37] Exhibit 4, document 1; exhibit 3, tab 40.

[121]

[53] Exhibit 3, tab 51 (20 November 2003), tab 55 (16 April 2004), tab 58 (23 June 2004), tab 61 (22 July 2004).

[122]

[54] Exhibit 3, tab 69 (mid 2006). See the oral evidence of Mr Kearney, at p 74 of the transcript.

[123]

[57] See Exhibit 3, tabs 53, 54, 56, 57, 60, 62, 63.

[124]

[61] Exhibit 3, tab 65 - 24 September 2004.

[125]

[65] Exhibit 5; exhibit 3, tabs 65, 70.

[126]

[66] Transcript of the proceeding, p 66.

[127]

[67] See the documents referred to in [33]-[36], [40], [42]-[45] of these reasons.

[128]

[68] See Exhibit 3, tab 50; see also [36] above.

[129]

[69] See [6] above; Hooper v Bourne (1880) 5 App Cas 1, 9.

[130]

[70] See Butterworths, Cross on Evidence, vol 1 (at service 94) [1170].

At a glance

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Judgment (130 paragraphs)

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Legislation Cited (3)

Cases Cited (3)