Azizi v Roads and Maritime Services

Agreed statement of facts

1. The parties agreed a statement of facts (SOAF) as follows which was tendered as Exhibit A (tab documents omitted): The Acquisition 1 Between July 2003 and 28 August 2015 the Applicants were the registered proprietors of the land known as 37 Grace Avenue, Beecroft, New South Wales, being Lot 44 DP 266802 which title was unlimited as to depth or height (the Property). 2 On 22 June 2015, the RMS caused to be registered with Land and Property Information Sheets 1, 2 and 3 of DP 1208231, which amongst other things, identified the following proposed lots in the Property: Lot 14 which is limited below the surface to RL 100 AHD and unlimited above. Lot 46 (at a reference RL 95 AHD) which is limited above to RL 100 AHD and below to RL 60 AHD; and Lot 79 (at reference RL 55 AHD) which is limited above at RL 60 AHD and unlimited below. Copies of Sheets 1, 2 and 3 of DP1208231 are at Tab 1. 3 On 28 August 2015 the Respondent caused to be published in the Gazette pursuant to section 19 of the Land Acquisition (Just Terms Compensation) Act 1991 (JTC Act) an acquisition notice a copy of which is Tab 2. 4 On and from publication of the notice referred to in paragraph 3 above: the Applicants became the registered proprietors of only Lot 14; and the Respondent was vested with that part of Lot 44 DP26802 comprised in Lots 46 and 79 DP1208231, and became the registered proprietor of those lots (Acquired Land). 5 The Applicants have received the following correspondence with respect to the acquisition: letter dated 1 May 2015 from the Respondent to the Applicants a copy of which is at Tab 3; letter dated 13 May 2015, from the Respondent to the Applicants, a copy of which is Tab 4. letter dated 25 May 2015, from the Respondent to the Applicants, a copy of which is Tab 5; and letter dated 28 September 2015. from the Respondent to the Applicants, a copy of which is Tab 6. The Project 6 In 2012, the NSW Government received an unsolicited proposal from a Consortium made up of Transurban and Westlink M7 Shareholders to design, build, operate, maintain and finance a tolled motorway linking the F3 Freeway at Wahroonga (now M1 Motorway) to the Hills M2 Motorway at the Pennant Hills Road interchange at West Pennant Hills in northern Sydney [1] , to be known as NorthConnex (Project). The Project is more fully described in paragraphs 11 to 14 below and the documents referred to therein. 7 The Project is permissible without consent by virtue of clause 94 of State Environmental Planning Policy (Infrastructure) 2007 (ISEPP), meaning that the Project is an activity within the meaning of Part 5 of the EP&A Act and Roads and Maritime is the determining authority. Roads and Maritime, as proponent and determining authority, has formed the view that the project is likely to significantly affect the environment. On this basis, the project is declared to be State significant infrastructure (SSI) under section 115U(2) of the EP&A Act by reason of the operation clause 14 and clause 1 of Schedule 3 of State Environmental Planning Policy (State and Regional Development) 2011 (SRD SEPP). Accordingly, the project is subject to Part 5.1 of the EP&A Act and approval from the Minister for Planning and Infrastructure is required under section 115W of the EP&A Act [2] . 8 The Respondent is the proponent for the Project and 'NorthConnex' is a business name registered in the name of the Respondent. 9 On 16 March 2014, Transurban announced that Lend Lease Bouygues was the preferred design & construct contractor for the Project. 10 The Australian and State Governments have each committed up to $405 million to the Project. The remainder of the cost of the Project would be funded by Transurban and Westlink M7 Shareholders and would be recouped from tolls on the Project and changes to tolling for heavy vehicles on the M7 Motorway and by an extension to the M7 concession term. 11 Between 15 July and 12 September 2014 an Environmental Impact Statement (EIS) was placed on public exhibition for the Project. Chapter 5 in Volume 1A of the EIS describes the Project as at the date of publication of the EIS, a copy of which is at Tab 7. The EIS also included Figure C-1 which is a geological cross-section depicting the location of the tunnels a copy of which is at Tab 8. The Property is located in the proximity of distance marker 2500 metres. 12 By instrument of approval granted on 13 January 2015, the Project was approved as Critical State Significant Infrastructure (SSI 13_6136) under section 115ZB of the Environmental Planning and Assessment Act 1979 (Approval). A copy of the Approval is at Tab 9. 13 The Project, and that part of it that is to be constructed and operated through the Acquired Land comprises the following elements: (a) northbound and southbound twin dual carriageway road tunnels; and (b) ancillary facilities and utilities including: a. drainage systems; b. mechanical systems; c. electrical systems; d. lighting systems; e. ventilation systems; f. fire and life safety systems; g. emergency evacuation infrastructure; h. pavements; and i. road signage and markings. Behind Tab 10 is a plan showing the Property in relation to the proposed works. 14 The Project: (a) Was to be designed, built, operated, maintained by a Consortium made up of the shareholders in WestlinkM7 as a commercial enterprise; and (b) Was to be a tolled motorway with the tolls being paid to or received by the Consortium, in accordance with, inter alia, the terms of the NorthConnex Project Deed between the Respondent and the NorthConnex Company Pty Limited dated 31 January 2015. 15 The Acquired Land (Lots 46 and 79) was acquired under the JTC Act for the purposes of the Project.
2. The parties agreed a supplementary statement of facts which was included with the SOAF in Exhibit A as follows: Separate Question 1 If the Court determines the separate question in favour of the Respondent, this will finally determine the proceedings, save as to costs.

Agreed bundle of documents

1. An agreed bundle of documents was tendered as Exhibit B in the proceedings. The bundle included plans of the lots acquired at ground level and at heights below the surface, as well as the gazettal notice dated 28 August 2015. Correspondence between NorthConnex and the RMS and the Applicants regarding the acquisition of the substratum land was also part of the bundle. Chapter 5 of the NorthConnex Environmental Impact Statement was extracted, which described the proposed scope of work, including the route alignment, corridor width, main project elements, ancillary facilities, design standards and construction activities. The Minister's approval to the state significant infrastructure application under s 115ZB of the Environmental Planning and Assessment Act 1979 (NSW) dated 13 January 2015 was included in the bundle as well as a colour plan showing the property in relation to the proposed works.
2. The Applicants' Bundle of Documents contained various acts of parliament concerning the acquisition of land and public works dating from 1880 to 1929. The explanatory note and the second reading speech of the Land Acquisition (Just Terms Compensation) Bill 1991 (NSW) was also included.

RMS' submissions

1. The question should be answered "yes". The purpose of the acquisition is the construction of tunnels. Section 62(2) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (JT Act) is unambiguous and applies in this case. Nil compensation is payable to the Applicants by the RMS. As I largely accept the RMS' submissions I will address them in the course of my finding below.

Applicants' submissions

1. The question should be answered "no". The purpose of the project as disclosed in par 14 of the SOAF is a commercial project NorthConnex. That is the nature of the project and one of its vital components. It is accepted that the principal physical component of the project is the building of two tunnels. The purpose of the project goes well beyond the construction of these tunnels however and is a commercial enterprise operating a toll road.
2. The RMS as the public authority seeking to disentitle the landholder to compensation must demonstrate that the purpose of the project to be undertaken by NorthConnex comes within the purpose of constructing a tunnel as understood by s 62(2) of the JT Act. To do so the RMS must argue that the words "constructing a tunnel" in s 62(2) mean "constructing and using a tunnel".
3. The parties have presented two competing constructions of s 62(2). A general principle of statutory construction is that if there is to be compulsory acquisition of land without compensation this must be expressed by the legislature in unambiguous terms. It is important to adopt a strict approach to statutory construction where the rights of individuals are involved. The text and context of the JT Act including the objects in s 3 and the entitlement to compensation in s 54 establish a presumption of just compensation for a disentitled owner of land which must prevail in any approach to construction. To the extent that extrinsic materials have a role to play these support the Applicants' approach.
4. Given that s 62(2) expressly refers back to s 62(1), and because s 62(1) is part of the statutory context one applies to interpret s 62(2), the subsections must be read together. The same meaning should be given to the word "tunnel" in both subs (1) and (2) of s 62, because there is no indication that Parliament intended the words to have a different meaning in each subsection. The term "tunnel" is provided by or defined in s 62(1), and is not altered or expanded by s 62(2), but merely repeated. Therefore, a narrower construction of "tunnel" in s 62(2), limited to tunnels for the housing of "passive" service installations, is consonant with the meaning of "tunnel" in s 62(1), and so should be preferred to any wider construction. It would unduly strain the words used in s 62(2), and would impermissibly widen its operation, to read the words "constructing a tunnel" as "constructing a tunnel, and any infrastructure and services reasonably convenient or necessary for the operation of the tunnel as a motorway or railway".
5. This interpretation of s 62(2) explains why the provision only refers to constructing a tunnel, as the passive use of the tunnel envisaged by the legislature does not require the addition of the word "use".

Section 62(2) applies

1. No case in the Court has considered s 62(2) of the JT Act. There is no dispute about the facts relevant to the determination of this matter. The parties agree that the Applicants' land as defined in s 4 of the JT Act has been acquired by compulsory process and that subss (a), (b) and (c) of s 62(2) do not arise in the circumstances of this case. In other words, there is no disturbance of the surface of the Applicants' land or injurious affection to the support of the surface, most relevantly.
2. As the RMS submitted, the actuating purpose of the project on the Applicants' land as disclosed in the SOAF and the agreed bundle of documents is the construction of two tunnels. After construction these will be used as dual carriage highways and for ancillary purposes related to that primary use. That the management and financial delivery of the project will be through a private consortium which will operate the highways as toll roads does not dilute or alter that fundamental physical purpose of the project. It is not an accurate portrayal of the purposes of the project to describe the several paragraphs describing the project at pars 6-24 of the SOAF as components of the purpose suggesting this reduces the significance of its primary physical purpose.
3. Well-established principles of statutory construction are that the plain meaning of the text of a provision must be considered, where appropriate by reference to its context. A purposive approach to construction is reflected in s 33 of the Interpretation Act 1987 (NSW), which the Applicants relied on. The purpose of the JT Act, as the Applicants submitted, is to provide for just compensation for landholders in the event of the compulsory acquisition of their land. Section 3 contains the objects of the JT Act which include in subs (1)(a) a guarantee that the owner of land acquired by the state is awarded an amount of compensation not less than the market value of the land unaffected by the proposal. That object is reflected in s 54(1) which provides that the amount of compensation to which a person is entitled is an amount that will justly compensate that person for the acquisition of their land. The JT Act is a statutory scheme specifying the circumstances in which compensation for acquired land is, and in a few instances is not, payable in the event of compulsory acquisition. Land is widely defined in the JT Act and s 62 is described in its title as a special provision relating to acquisition of easements or rights, tunnels etc. Section 61 is another example of a section described as a special provision, there limiting the payment of compensation where the assessment of market value is based on the potential of land being other than its current use.
4. As the RMS submitted, it is clear from the text of s 62 that subss (1) and (2) address different circumstances. Section 62(1) is directed to the acquisition of an easement or right to use land. Section 62(2) applies to land under the surface acquired for the purpose of constructing a tunnel. The Applicants submitted that the word "tunnel" in subs (2) should be construed by reference to subs (1) and the reference to works and the description in parentheses but there is no statutory basis identified for doing so. The clear wording of subs (2) refers to the construction of a tunnel with no qualification within the subsection. Subsections (1) and (2) operate in different situations.
5. The Applicants' construction that s 62(2) only applies where the compulsory acquisition relates to the construction of a tunnel and does not apply where that tunnel is to be used leads to an absurd result, as the Respondent submitted. I am unaware of any circumstance in which an acquiring authority would compulsorily acquire land for the construction of a tunnel with no intended use envisaged. It would be very troubling if it did given that public resources are usually at stake.
6. I do not consider as legally valid the distinction that the Applicants attempted to draw between "passive" and "non-passive" uses of a tunnel. Use of a tunnel for the conveyance of sewage, water or electricity (as in s 62(1)) is a use, just as use of a tunnel for a roadway is a use. There is no factual or statutory basis for such a distinction. Section 62(2) is not limited to the circumstances outlined in parentheses in s 62(1). As the RMS submitted, s 62(1) only provides examples of the matters that fall within its operation, and the words in parentheses should not be read as a "definition" as the Applicants did in written submissions.
7. In the event of ambiguity, s 34 of the Interpretation Act provides that consideration may be given to extrinsic material. As the Applicants submitted that s 62(2) is ambiguous, they sought to rely on the second reading speech for the Land Acquisition (Just Terms Compensation) Bill as an extrinsic aid to interpretation. First, I consider that the terms of s 62(2) are clear and unambiguous in specifying that compensation is not payable for the construction of a tunnel unless the circumstances specified in s 62(2) arise. No ambiguity arises from this clear language so that resort to the second reading speech is not warranted. Second, and unnecessarily in light of that finding, the reference in the second reading speech to a 1980 Australian Law Reform Commission report on the Commonwealth government's compulsory acquisition powers does not cause s 51(xxxi) of the Commonwealth Constitution to be relevant to the construction of the JT Act. While the Applicants referred to Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, that case considered compulsory acquisition in the context of s 51(xxxi) of the Commonwealth Constitution. There is no equivalent provision in the Constitution Act 1902 (NSW).
8. The Court of Appeal has considered s 62(1) in Gosper v Hornsby Shire Council (1993) 80 LGERA 138 and Pennant Hills Golf Club Ltd v Roads and Traffic Authority (NSW) [1999] NSWCA 110; (1999) 9 BPR 17,001 but these cases address different circumstances and issues reflecting the different wording of s 62(1). They do not have any direct application in the context of s 62(2). To the extent they support a strict application of the JT Act because it deals with compulsory acquisition, the language in s 62(2) is clear and unambiguous.
9. Contrary to the Applicants' submission, the RMS bears no onus to demonstrate that the project can be characterised as the construction of a tunnel, although it has done so in any event.
10. The relevance of the history of broadly similar provisions in 1880, 1900, 1912 and 1929 statutes relied on by the Applicants was not demonstrated and I need not have regard to these. That these pre-dated modern planning law is self-evident but irrelevant to the construction task before the Court. The submission made by the Applicants attempting to rely on the definition of "development" in the Environmental Planning and Assessment Act which distinguishes between "the use of land" and "the carrying out of a work" and apply it to interpret s 62(2) was not clear to me. In any event, that submission again impermissibly attempts to construe s 62(2) by relying on the text of s 62(1). Further, there is no statutory basis demonstrated by the Applicants for interpreting the JT Act by reference to the Environmental Planning and Assessment Act.

Conclusion

1. The separate question is answered "yes". The land referred to in the Schedule, being Lots 46 and 79 of Deposited Plan 1208231, parts of the land in certificate of title 44/26802, known as 37 Grace Avenue Beecroft, was compulsorily acquired from the Applicants by the RMS for the purposes of constructing a tunnel within the meaning of s 62(2) of the JT Act.

Order

1. The orders of the Court are: 1. Costs are reserved. 2. The exhibits are returned.

Endnotes

1. State Significant Infrastructure Application Report, September 2013
2. State Significant Infrastructure Application Report, September 2013 page iv DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2016