Boxall v Sly [1911] HCA 6

Boxall v Sly [1911] HCA 6 - HCA 1911 case summary — Zoe

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applicable the Court in determining the value of the Jand shall exclude any added value "which would accrue" from the con- struction of a railway line as provided in that section. The appellants' contention is, first, that sec. 5 does not app! to the present case, and, secondly, that if it does, the Court di not adopt the rule of valuation prescribed by that section. I have done my best to appreciate the very persistent and earnest arguments addressed to the Court on behalf of # appellants, but Iam not sure even now that I fully appreciat them. They appear to me to be to a great extent illusory, and - to have no foundation either in the provisions of the Statute or the facts of the case. Apart from the facts, the question for determination depends - entirely upon the construction of the Statute, which appears me to be clear and unambiguous in its terms. The Act of 1907 amends the provisions contained in the Principal Act for the - resumption of large estates which are considered suitable for the purpose of closer settlement. It provides for the appointment of boards, called Closer Settlement Advisory Boards, whose duty is to report from time to time to the Minister what land is suitable for closer settlement, its estimated value, the price at which its - acquisition is recommended, and some other matters. See. 4 2 provides that after a Board has reported that any land is suitable for closer settlement, the Governor may purchase it by agreement, or, failing such agreement, when the value of the land exclusive of improvements exceeds £20,000, may resume it under the Act. Both under this Act and the Principal Act which it is an amendment it is assumed that the land is held by one person, or group of persons, under a single title. Every purchase or resumption is subject to the approval by resolutio of both Houses of Parliament. The method of procedure under sec. 4 is that before resumption the Governor, by proclamation - in the Gazette, notifies that he proposes to SERED the land for the purposes of closer settlement. See. 5 deals with the case where, after 6th November 1907, presumably the date of the introduction of the Act, an Act has been passed sanctioning the construction of a line of railway, and -

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the advantage of the Court, and acted on the assumed fact # the resumption had been made under that proclamation. Th proclamation itself recited that it was so, indeed there no other foundation for the action of the Crown in resuming land. The appellants have therefore put themselves in thi: position: Having adopted the procedure which was founde on the second proclamation, they cannot affirm part and disat other parts of the proceedings which followed. If they wish to take advantage of their first objection, it can only be on the footing that the whole of these proceedings in which they tool part under the circumstances I have mentioned were absolutely invalid and nugatory. On that basis the argument in this Court proceeded, and it is only on that basis it can stand. I shall nov deal shortly with the first objection which I take to be this Notification having issued of an intention to resume under see. 4 of the Act, and a period of twelve months not having elapsed, it was unlawful for the Government to issue a second proclamation - notifying an intention to resume under sec. 5. I cannot h thinking that the very earnest and ingenious arguments addressed to the Court by Mr. Wise and Mr, Canaway on behalf of # appellants were founded on a mistaken analogy between resum) tions under the procedure laid down in these Acts and procee ings for compulsory purchase under the Land Clauses Consolid: tion Acts in England. A number of cases were cited by Mr. Canaway, which followed the principle adopted and recognized in Morgan v. Metropolitan Railway Co. (1) and stated as follows by Kelly C.B.: - "Ever since the case of Rex v. Hungerford Market Co. (2) it has uniformly been held that, wherever a company is entitled to take land compulsorily under the powers" of an Act of Parliament, if they give notice of their intention to take the land, that is an exercise of their option from which they 7 cannot recede, and the notice operates as a contract or an unde! taking by them to become the purchasers."

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given, where the acquisition is for the purposes of private under- taking, have no application where the notice is given and the acquisition is to be made by some authority on behalf of the public. In such a case the only matter to consider is in what terms has the legislature conferred the power and whether the public authority acted within the power. It seems to me, there- fore, the line of cases cited in the argument by the appellants' counsel have nothing to do with the question we have to decide. That question, simply stated, is whether the Act we are now considering does or does not permit the Government, which has issued a proclamation notifying its intention to resume land for closer settlement under sec. 4, to issue another proclamation within twelve months thereafter notifying its intention to take the further action provided for by see 5. Looking at the provisions of the Act itself, the language plainly authorizes both these steps to be taken, applicable as they are to different sets of circumstances. The appellants were therefore driven to rely upon arguments founded on other sections to show that the words of the legislature, as used in secs. 4 and 5, were not to be interpreted according to their ordinary grammatical meaning, but must be so construed as to render see. 5 inapplicable to lands with respect to which a proclamation has already been issued under sec. 4. The object and purpose of the Act is perfectly plain. It is founded on the principle that private interest must give way to the public good, and that, where it becomes necessary for the Government to take possession of property for the public use, it is right that the Government should be empowered to take it, but always with the proviso that fair compensation must be made to the owner. One may well agree with the principle relied upon by the appellants' counsel that, in interpreting legislation of that kind, it will be assumed the legislature did not intend to take private property for public use without paying fair and reasonable com- pensation.

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each other. Sec. 4 deals with cases of land acquired mo for the purpose of closer settlement. In such cases no fa of added value, by reason of the construction of a railwa; enter into the consideration of the matter by the Court which to determine the amount of compensation. The only difficult; be guarded against in those cases is that, after it becomes ge ally kuown that there will be a resumption, some action ma; taken by the owners to divide or dispose of the property in sue a way as to prevent the Act from applying. In order therefor to ensure that the land shall remain as itis for the purposes j the resumption, power is given to issue a proclamation of intention to resume under sec. 4, which shall have the effect restricting any disposition of the land by the owner which coul operate to defeat the resumption of the land under the Act, restriction to continue for twelve months from the date of the proclamation. The only effect therefore of the notification under see. 4: is to put a stop todealings with the property by the owner; it gives the Government no right to enter upon the property, to use it, or to interfere with the occupation of the owner in any way. Sec. 5 deals with an entirely different set of things, namely, with cases in which an Act has been passed authorizing the con- struction of a railway. As is well known, statutory sanction to the construction of a Government railway the cost of which is - estimated at over £20,000 is reached only after a series of pro- ceedings under the Public Works Act, from which the public may _ gather, at a very early stage, whether the railway is likely to be constructed or not. Those proceedings generally extend over a' considerable period, and, by the time the Railway Act is passed, there have usually been months, sometimes years, during whiel the public have had the opportunity of judging how the value of - land traversed by the railway is likely to be affected by its con: struction. It is obvious that, when the land is to be resumed for the purpose of closer settlement, it would be unfair to the publi that there should be included in the compensation an added valu arising from the action of Parliament in authorizing, or of the Government in building, a railway through it. The principle of betterment is certainly fairly applicable in the case of land resumed. In order therefore to prevent the Government having

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to pay a higher price for the land by reason of a value added by H. ©. or A. the expenditure or proposed expenditure of public moneys, the aoa = legislature has enacted the provisions of sec. 5. The reasonable- Boxarn a ness of the provisions which I have been explaining cannot, it ae seems to me, be contested where the land to be resumed is dealt with under the provisions of sec. 5 and under no other section. S*4% There would appear to be no reason in the Act itself, nor on any Sty. ground of fair dealing, why the protection which sec. 5 throws ovconnor J. around the public interests should not be always applicable when the building of a public railway over the land has been authorized. The fact that a proclamation under sec. 4 has been previously issued cannot justify a different construction of sec. 5 from that which must be adopted when no proclamation under sec. 4 has been previously issued. The argument of the appellants' counsel turns upon secs. 13 and 9, and is put thus: - Sec. 13 authorizes the owner of land, after notification of intention to resume, to apply to retain a certain proportion of it; the area, situation and boundaries of the proportion to be retained are to be determined by the Minister on the recommendation of the Advisory Board. . If the owner is dissatisfied with the determina- tion, he may waive the exercise of the right. But the right to retain cannot have any effect until after resumption. Before resumption the Government cannot enter on the land or deal with it in any way. It is only in 'anticipation of resumption that the right to apply for retention can operate. How can it be said with any show of reason that the section gives any vested right to the owner of the land? At that stage neither the Government nor the owner have acquired any vested interests. Sec. 9 also operates only after resumption. 'The section enables the owner to have the fair market value of the land and improvements determined by the Court. But he gets no vested interest, even to have the matter brought before the Court, until after resumption. So far as the first point, therefore, is concerned it is quite clear that there is no foundation for the argument that the Act is to be read in a way which does violence to the plain grammatical meaning of 'the words the legislature has used in order to carry out some assumed intention of the legislature.

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Judgment (107 paragraphs)

Cited By (1)