Bradfield v Roads and Maritime Services

Land and Environment Court (NSW)|2015-11-24|Before: Pain J

Determination of preliminary question of law

At issue under the separate preliminary question before me is whether the Applicant Mr Bradfield has an interest in land as defined in s 4 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) to found a compensation claim following the acquisition of land by the Respondent Roads and Maritime Services on 6 February 2015. Mr Bradfield has appealed pursuant to s 67 of the Just Terms Act as he did not receive a compensation notice. Mr Bradfield is claiming disturbance under s 59(f). Mr Bradfield is the son of the owner of the acquired land Mrs Bradfield.
The acquired land in issue is Lot 7 DP 735501 identified on the marked up aerial plan which became Exhibit A and referred to as the house lot. Its area is agreed to be 3,272 square metres.

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Section 4 of the Just Terms Act in provides the following relevant definitions: interest in land means: (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. land includes any interest in land. owner of land means any person who has an interest in the land.
Relevant sections provide: 37 Right to compensation if land compulsorily acquired An owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation in accordance with this Part by the authority of the State which acquired the land. … 59 Loss attributable to disturbance In this Act: loss attributable to disturbance of land means any of the following: … (f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition. … 67 Appeal against failure to entertain claim for compensation (1) A person who has not been given a compensation notice and whose claim for compensation under this Part is rejected (or taken to be rejected) may appeal to the Land and Environment Court against the rejection of the claim. (2) Any such appeal must be lodged within 90 days after the rejection of the claim. (3) If any such appeal is duly lodged, the Land and Environment Court is to hear and dispose of the person's claim for compensation. …

Land and Environment Court Act 1979 (NSW)

Relevant sections of the Land and Environment Court Act 1979 (NSW) (LEC Act) provide: 24 Claim for compensation in compulsory acquisition cases (1) If: (a) a claim is made for compensation because of the compulsory acquisition of land in accordance with the Land Acquisition (Just Terms Compensation) Act 1991, Division 2 of Part 12 of the Roads Act 1993 or any other Act, and (b) no agreement is reached between the claimant and the authority required to pay the compensation, the claim is (subject to any such Act) to be heard and disposed of by the Court and not otherwise. … 25 Determination of estate, interest and amount (1) In hearing and disposing of any claim referred to in section 24, the Court shall have jurisdiction to determine the nature of the estate or interest of the claimant in the subject land and the amount of compensation (if any) to which the claimant is entitled. …
The following facts as identified in the affidavits of Mr Bradfield and his mother Mrs Bradfield, both dated 11 September 2015, were not in dispute: 1. Mr Bradfield commenced working on Lot 6 DP 735501, the family cane farm after he left school at the age of sixteen. From the age of seventeen and for the next twenty years Mr Bradfield share farmed on a nearby cane farm, but continued working on his parents' farm. He was not paid as a worker for the help he provided on his parents' cane farm. 2. In about 1977 Mr Bradfield's parents subdivided the house lot (Lot 7) from the cane farm (Lot 6). 3. In about 1984 when the house on Lot 7 was raised up onto a flood mound, Mr Bradfield used his tractor to build the mound. He was not paid for this work or for the use of his tractor as it was understood to be part of a family arrangement. As part of that work, Mr Bradfield also filled the area between the new house location and the highway to provide a flood free storage area. 4. Mr Bradfield commenced occupancy of the house on Lot 7 in 1992 when his parents relocated permanently to Broom's Head and he was expressly told by his mother "It's your house now." 5. His mother's evidence is that "he was entitled to stay in the house as long as he liked". She considered that when her son purchased the family farm on Lot 6, he was purchasing a combined farm and house operation on the basis that (prior to subdivision) Lot 7 had originally been part of the cane farm she and her husband purchased in the early 1970s. 6. For many years Mr Bradfield worked the adjacent farm on Lot 6, which had no dwelling, as a combined farm and house operation. 7. Until the Respondent's acquisition, and following his father's death in 1998, the family arrangement Mr Bradfield had with his parents, and subsequently his mother, entitled him to continue to occupy the house. 8. Mr Bradfield's father's will provided that the house was bequeathed to his son, but because it was held in a joint tenancy with his mother the gift was to no effect. 9. Mrs Bradfield's will confirms the family arrangement that the house was bequeathed to her son and supports her more recent express intention that her son would continue living in the house and farming the adjacent cane land. 10. While Mr Bradfield temporarily relocated to his mother's house in Maclean to care for her in about 2010 he continued to pay rates and services and continued to store his machinery at the house. 11. During the period of caring for his mother, and in particular prior to her health worsening, Mr Bradfield moved back to his house from time to time. 12. During this period of relocation Mr Bradfield had always regarded the house on Lot 7 to be his home and permanent address.
There was disagreement by the Respondent about the extent to which occupation of the whole house lot could be inferred from these facts.

Applicant's submissions

Paragraph (b) of the definition of interest in land in s 4 of the Just Terms Act applies to Mr Bradfield's circumstances. Paragraph (b) is broad and the usual principles of statutory construction identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 apply so that the plain meaning of the words should be applied in the context of the Just Terms Act. The evidence demonstrates that Mr Bradfield had an interest in land being a right, power or privilege in the land at the date of acquisition as he had the ability to occupy the land to the exclusion of any third party. The limiting words of Meagher JA in Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 at 155C to the effect that par (b) interests must be proprietary or quasi-proprietary was distinguished in Minister for Education and Training v Tanner [2003] NSWCA 164; (2003) 128 LGERA 281. Broad interests were recognised in Tanner, George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212; (2013) 205 LGERA 357, Rakus v Energy Australia [2004] NSWLEC 657; (2004) 138 LGERA 373, Mooliang Pty Ltd v Shoalhaven City Council [2001] NSWLEC 83; (2001) 114 LGERA 45, Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30 and West v Roads and Traffic Authority of New South Wales (1995) 88 LGERA 266.
Alternatively, if necessary to define the interest in land, Mr Bradfield had a tenancy at will, or alternatively, a licence to occupy the house lot and house. If characterised as a tenancy at will, this is a legal or equitable interest in the land - a par (a) interest as defined under s 4. If characterised as a licence, it is a right, power of privilege over or in connection with the land, and is therefore a par (b) interest in land as defined. As a simple matter of construction, the circumstances attested to in the affidavits of the Applicant Mr Bradfield and his mother Mrs Bradfield support Mr Bradfield's case that pursuant to a family arrangement he had, "at least", an interest in land in the George D Angus sense, as a tenant at will pursuant to s 127 of the Conveyancing Act 1919 (NSW) or a licence, being a par (b) interest in land.

Respondent's submissions

The nature of the interest in land under s 4 of the Just Terms Act must be defined because the Court of Appeal in Hornsby held that the interest must be based on a proprietary or quasi-proprietary interest in which context the numerus clausus principle applies as explained in an article by Associate Professor B Edgeworth, "The Numerus Clausus principle in Contemporary Australian Property Law" (2006) 32(2) Monash Law Review 387. Under this principle an interest in land must be definable as a proprietary interest of which there is a limited class, ie. the interest must fit within a finite list as identified by Meagher JA in Hornsby. Sydney Harbour Foreshore Authority v Walker Corporation Pty Ltd [2005] NSWCA 251; (2005) 63 NSWLR 407 ("SHFA") is cited in a footnote to support the statement that the category of property rights is not indeterminate. Hornsby has been applied in the subsequent cases of Jax Franchising Systems Pty Limited v State Rail Authority (New South Wales); Jax Tyres Pty Limited v State Rail Authority (New South Wales) [2003] NSWLEC 397, Hua v Hurstville City Council [2010] NSWLEC 61 and Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100; (2015) 319 ALR 151. The evidence of Mr Bradfield and his mother does not identify a recognisable right as required by that principle.
Alternatively, if considering whether there is a right, power or privilege the affidavit evidence of Mr Bradfield and his mother identifies a family arrangement which is not intended to give rise to contractual terms. These arrangements cannot satisfy the definition of interest in land in s 4 as no proprietary or quasi-proprietary right was created in these circumstances. None of the cases relied on by the Applicant have recognised a right in similar circumstances. In George D Angus, West, Golden Mile and Peter Croke there was a written agreement with the owner of the land or rent was paid, arrangements unlike the family arrangement in this case.
Section 25 of the LEC Act requires the Court to determine the nature of an interest in land. It is unfair on the Respondent and the Court not to define the interest to enable compensation to be determined appropriately.

Mr Bradfield had an interest in land under the Just Terms Act at the date of compulsory acquisition

The holder of an interest in land which is divested, extinguished or diminished by a compulsory acquisition is entitled to be paid compensation in accordance with Pt 3 of the Just Terms Act, as provided for in s 37. Extinguishment occurs when the interest in land is inconsistent with the interest acquired by the acquiring authority, per George D Angus at [19]. Diminishment or divestment of an interest in land does not arise on the facts of this case.
I must determine whether Mr Bradfield has an interest in land, as defined in par (a) and/or par (b) of that definition in s 4 of the Just Terms Act. The Applicant submits he has a par (b) interest primarily and, more faintly, a par (a) interest on the basis the arrangement with his parents was a tenancy at will. A par (a) interest is a legal or equitable estate or interest in land. In George D Angus an example of a legal interest in land was a legal estate such as a registered estate in fee simple and a legal interest such as a registered leasehold interest at [21]. The Applicant does not have such a legal interest. Examples of equitable estates or interests referred to in George D Angus also at [21] were those identified in JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies, (4th ed 2002 now 5th ed 2015, LexisNexis Butterworths) at [4-015]. A tenancy at will could constitute an equitable interest in land but it is debatable whether the Applicant's occupation of his mother's house lot constitutes a tenancy at will given that the relationship between the parties as described in the affidavits of Mr Bradfield and his mother does not suggest the creation of a landlord/tenant relationship. It is an arrangement between family members. The definition in par (b) is wider than par (a) and if the Applicant has an interest in land it is more likely to be come within par (b) than (a). Ultimately each case must be determined on its own facts. That the interest asserted in this case is unlike any other case referred to above as the Respondent submitted can be accepted but that is not determinative.
The terms "right", "power" or "privilege" in par (b) of the definition are not separately or collectively defined in the Just Terms Act and principles of statutory construction require their common and ordinary meaning to be applied in the context of the statute. The terms have a wide meaning. Dictionary definitions are useful to consider albeit they should not be relied on exclusively, per Mason P in House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [28]. In Norrie v New South Wales Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 at [84], Beazley ACJ (Preston CJ of LEC agreeing with additional reasons) cited R v Peters (1886) 16 QBD 636 at 641 for the proposition that recourse to dictionary definitions, while not authoritative of legislative meaning, is an accepted technique in the task of statutory construction.
The Macquarie Dictionary (online edition) relevantly provides: right … 18. a just claim or title, whether legal, prescriptive, or moral. 19. that which is due to anyone by just claim: to give one his right or his rights. … power 1. ability to do or act; capability of doing or effecting something. … 5. the possession of control or command over others; dominion; authority; ascendancy or influence. … 7. legal ability, capacity, or authority … privilege 1. a right or immunity enjoyed by a person or persons beyond the common advantages of others. …
Very similar definitions were referred to in Rakus by Lloyd J at [16].

Case law

The question of interest in land under the Just Terms Act has been considered in numerous cases as identified in the parties' submissions. In West (1995) Talbot J held that an interest in land" existed in circumstances where the applicant company occupied part of a house owned by Mr and Mrs West. Family members were shareholders in the company. There was no formal agreement. Evidence concerning payment of rent was equivocal, but there was evidence that the applicant company paid property expenses, including rates, electricity, repairs and maintenance. This arrangement was described at its highest as a "mere contractual licence" not capable of creating a legal or equitable estate which satisfied par (a) of the definition of interest in land in s 4 of the Just Terms Act. That interest was held to satisfy par (b) of the definition of interest in land as a right or privilege in connection with the land and was therefore compensable, at 274.
In Hornsby (1997) a council sought compensation on the basis that it had an interest in the acquired Crown land because it had the care, management and control of the land which it managed as a park under s 344 of the Local Government Act 1919 (NSW) and then under s 48 of the Local Government Act 1993 (NSW). Meagher JA (Mason P agreeing with additional reasons, Powell JA agreeing with Mason P and Meagher JA) described this interest as "…the sole, rather glancing, connection between the appellant and the land…". Meagher JA stated at 155C (emphasis added): …Mr Tobias QC, learned senior counsel for the appellant, submitted that the words of par (b) were extraordinarily wide and should be interpreted literally. However, this could not possibly be correct. In a sense every member of the public has a "right" over the land in question: he can go on it and have a picnic. But it was hardly intended that he could claim compensation on a resumption. If it were, the machinery of notifying holders of "interests" would extend to infinity. Some limitation must be placed on the words. Whilst the rights which fall within par (b) must be wider than the rights which fall within par (a), I feel that they must be limited to jura in re aliena, proprietary or quasi-proprietary rights less than a fully-fledged estate, that is, easements, charges, profits à prendre, profits à rendre, licences coupled with interests, etc.
Mason P stated at 152G: It is true that the definition of "interest" is liberal, especially in its second part. But, as Meagher JA demonstrates, a literal interpretation produces absurdity, and the words cannot be construed out of context. (As to the significance of context in statutory interpretation, see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 71 ALJR 312 at 324.) Part of that context is the colour which each part of the overlapping definition takes from its associates. Even more critical to that context is the reference to ownership of an interest in s 37 of the Land Acquisition (Just Terms Compensation) Act.
The words of Meagher JA bolded by me have been referred to on numerous occasions since including recently in the Court of Appeal in Golden Mile by Emmett JA at [107].
In Peter Croke (1998) Bignold J found that the second applicant company occupied the acquired land owned by the parent company (the first applicant) continuously for 20 years prior to the acquisition date and held this constituted an interest in land within the meaning of par (a) of that definition as a legal or equitable leasehold interest or estate, at 35. Bignold J found there was a periodic tenancy from year to year or at least a statutory tenancy at will which required notice of termination in finding an interest in land existed. The agreement was not in writing. Rent was paid as a book entry between the companies.
At issue in Mooliang (2001) was whether caravan owners' tenancies at will were an interest in land. The owners were in possession of their respective sites. Lloyd J referred to Peter Croke. His Honour found at [40] that par (a) of the definition of interest in land was satisfied, and went on to consider par (b) of that definition. The facts in Mooliang and West were distinguished from Hornsby on the basis that in Hornsby the applicant council had no right of occupancy over the land, at [44]-[48]. While the interest in West was not strictly proprietary, it could be described as "quasi-proprietary" or as a "licence coupled with an interest". That interest was on a more secure footing than a common licence or even a tenancy at will, because of the mutual interests of the parties and their interconnectedness. The rights in issue in Mooliang were more than mere licences as the applicants had a right of exclusive occupancy that could be described as a privilege in connection with the land. This was a par (b) interest, at [48].
In Tanner (June 2003) the Court of Appeal considered an interest in land where a compulsory acquisition of a public road extinguished the right which the claimant had formerly enjoyed to access the public road from his adjoining land. This was held to be a right giving rise to a par (b) interest in land for the purpose of s 4 of the Just Terms Act, at [15]. The Court of Appeal recognised the common law right to pass over a public road from neighbouring land also incorporated in s 6 of the Roads Act 1993 (NSW). This was not a proprietary right, but was distinguishable from the public right which every member of the public enjoys to pass, subject to any special statutory provisions, along the highway. Of Hornsby and the approach to statutory interpretation in compulsory acquisition matters, Brownie A-JA (Beazley and Santow JJA agreeing) stated: 10 …. Section 37 of the Land Acquisition (Just Terms Compensation) Act provides for the payment of compensation to the "owner of an interest in land which is ... extinguished" by a relevant procedure, so that the question becomes whether, within the meaning of the definition of "interest", the respondent had a "right...over or in connection with, the land" compulsorily acquired, that is, the School Street land. 11 What Meagher JA said in Hornsby was apt to resolve the issue posed in that case, but of course his Honour's words ought not to be treated as a substitute for or a restatement of the words of the legislation, and they need to be read in their context. It may be that on some future occasion it will seem appropriate to refine those words, if they are to be used for guidance in the resolution of other cases, but that is not necessary or appropriate now. … 16 In this context it is apt to recall the words of s 3(1)(b) of the Land Acquisition (Just Terms Compensation) Act (providing that the objects of the act include ensuring compensation under the Land Acquisition (Just Terms Compensation) Act for the owners of land that is acquired by authority of the State) and the words of Heydon JA in Roads and Traffic Authority of New South Wales v Heawood [2002] NSWCA 99; (2002) 54 NSWLR 289 at [20]: "The respondent pointed out that in Marshall v Director-General, Department of Transport [2001] HCA 37; 75 ALJR 1218 at 1229 [37]- [38];180 ALR 351 at 364-365 [37]-[38], Gaudron J said, after expressing agreement with the majority: `It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning. Although the rule that legislative provisions are to be construed according to their nature and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to be otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.'" (Footnotes omitted).
In Jax (November 2003), an ex tempore judgment, Lloyd J at [7]-[8] cited the Court of Appeal in Hornsby to the effect that some limitation must be placed on the words in par (b) of the definition of interest in land citing Meagher JA at 155C, and emphasised the importance of context, per Mason P at 152G. The interest of one applicant company being the franchisor under a franchising agreement was held not to amount to an interest in land in the defined sense, at [14]. That applicant did not have a right to occupy and did not occupy the land. Nor did it have any proprietary interest in the business of the franchisee. The other applicant company did not have an interest in land as lessee/sublessor. While rent, fees, royalties and other expenses were paid, there was no element of profit rent. No reference was made to Tanner.
Subsequently in Rakus (November 2004) Lloyd J found that the occupation of an area of Crown land under a permissive occupancy amounted to a par (b) interest, being a right, privilege or power over, or in connection with, the land, at [20]. His Honour cited Tanner inter alia. His Honour stated: 14 These passages [Hornsby at 152G and 155C] demonstrate that the definition may be limited to remove any absurdity that would result from a literal interpretation. That case, however, differs significantly from the facts in these proceedings. Hornsby involved the public's purported interest in a reserve, whereas the applicant submits that he has a personal interest in the land over and above the public through the permissive occupancy. Clearly, the definition of par (b) would be absurd if it entitled the public at large to assert an interest in, and claim compensation for the acquisition of, a public reserve. The limitation imposed by Meagher JA removed that absurdity in the specific circumstances of that case. That limitation, however, need not be applied to other factual circumstances where such absurdity would not result. Rather, the statutory definition must first be considered according to the ordinary meaning of the words. Only if an absurdity then arises in its application, should a limitation be placed upon the definition. The Court of Appeal acknowledged the specific application of such a limitation in Minister for Education and Training v Tanner (2001) 128 LGERA 281 in which Brownie A-JA (Beazley and Santow JJA concurring) considered Meagher JA's judgment and stated (at 284): What Meagher JA said in Hornsby was apt to resolve the issue posed in that case, but of course his Honour's words ought not to be treated as a substitute for or a restatement of the words of the legislation, and they need to be read in their context.
Unlike Hornsby the applicant's interest in Rakus was an interest over the property of another. It was confined to one person and did not extend to the public at large. While the applicant did not have exclusive possession, it had a contractual right to occupy the land. The applicant paid rent. The interest in the land was for more than mere management. The applicant had a right to cultivate the land.
In Sorrento Medical Service Pty Ltd v Chief Executive, Department of Main Roads [2007] QCA 73; (2007) 151 LGERA 328 the appellant company's claim for compensation was for an interest in the part of the resumed land used for car parking for a medical centre. The Acquisition of Land Act 1967 (Qld) informed by the Acts Interpretation Act 1954 (Qld) had the same definition of interest in land as the Just Terms Act. Chesterman JA considered Hornsby including Mason P at 152G and Meagher JA at 155C. His Honour said that Meagher JA at 155C had to be understood in context and the words were not a substitute for the words of the statute, at [68]. Tanner at 284 was quoted with approval, at [69]. Chesterman JA stated that interest should be given its wider meaning and the licence gave rise to a right in relation to land and was probably also a power or privilege over land (which therefore satisfied definition (b) in the Acts Interpretation Act 1954 (Qld)). The right was similar to the right in connection with land in West. It was a right or power over or in relation to land, at [77]. In separate reasons agreeing with the result McMurdo P also concluded that the appellant company had an interest being a valuable contractual right in relation to the resumed land, at [14]. Her Honour distinguished Hornsby and considered her approach to be generally consistent with West, Mooliang and Rakus. In any event the right in that case was found to be proprietary.
The Respondent referred to Hua v Hurstville City Council (2010). In Hua I referred to Meagher JA in Hornsby at [6] in the context of holding that a claimant had an interest in land as it had a licence to occupy land coupled with an interest through the payment of rent. As that interest was not disputed in Hua there was no need for me to resolve the issue that arises in this case. Hua provides little assistance for that reason.
In George D Angus (2013) the interest in land accepted by the Court was at least a tenancy at will which would continue indefinitely. There was an informal agreement between a wife and husband concerning the amount of rent to be paid by the applicant medical services company of which the husband was sole director for leasing land owned by the company of which the wife was sole director. The applicant company had exclusive occupation and possession of the land. This was held to be a par (a) interest, at [127]. Preston CJ also found that the tenancy was a par (b) interest, as a right of exclusive occupancy of a proprietary or quasi-proprietary nature at [128] citing West, Mooliang and Rakus. All were described as involving a right of occupancy on a more secure footing than a common licence, at [27]-[31]. Rakus was cited at [32] as an interest in land that was a right, privilege or power over, or in connection with, the land. Tanner is cited at [33] as recognising that an interest includes a right "in connection with" with the acquired land, as well as an interest over land. The Court of Appeal in Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352; (2014) 88 NSWLR 752 was not asked to review the finding of an interest in land.
It is necessary to consider these authorities when determining if the Applicant has an interest in land as defined under s 4 of the Just Terms Act.

Paragraph (b) interest in land satisfied

In the context of a par (b) interest in land in s 4 of the Just Terms Act, the limiting words of Meagher JA at 155C in Hornsby are relied on by the Respondent to exclude the Applicant's interest as falling outside par (b) because the interest in land is said not to be proprietary or quasi-proprietary.
The application of Hornsby (Court of Appeal) was limited in Tanner at [11] and SHFA at [95] (see below at par 37), Mooliang at [44] and Rakus at [14] (noting that Lloyd J also later applied Hornsby at [21] concluding that Meagher JA's list at 155C of jura in re aliena was not exhaustive) (Land and Environment Court), and Sorrento at [16] and [68]-[70] (Queensland Court of Appeal) on the basis that the statute is broadly worded and Hornsby was directed to avoiding an absurdity inter alia. These cases emphasised the broad construction of the terms in the par (b) definition of interest in land. Tanner at [16], Rakus at [15] and Sorrento at [12] and [46] relied on the statements of Gaudron J in Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 at [37]-[38] set out above at par 24 concerning the approach to statutory construction in the compulsory acquisition context.
Jax applied the words of limitation of Meagher JA in Hornsby. It appears the Court was not referred to Tanner which had been decided by then. George D Angus referred to the limiting words of Meagher JA in Hornsby and it was not considered necessary to refer to the qualifying words in Tanner in circumstances where the interest in land was found to satisfy par (a) and par (b) of the definition. The Court of Appeal in Golden Mile (2015) cited Meagher JA in Hornsby recently with no reference to Tanner citing Marshall but did need to consider other authorities exhaustively in the context of that case.
In cases determined since Hornsby, except Tanner which I refer to separately below, the Court has referred to the interest in land issue as proprietary or quasi-proprietary in nature. West did not use these terms not surprisingly as that case was determined before Hornsby. Talbot J applying the words of the statutory definition described the arrangement in that case as a right and privilege in relation to the land which satisfied par (b) of the definition. West was described in Mooliang at [46] as an example of an interest in land that was not strictly proprietary and as quasi-proprietary as a licence coupled with an interest. The interest in land in West was a right of occupancy that was, because of the circumstances of that case, on a more secure footing than a common licence or tenancy at will. While West predates Hornsby, it has been referred to approvingly in Mooliang, Rakus and cited in George D Angus all of which postdate Hornsby. The Queensland Court of Appeal in Sorrento also referred approvingly to West.
The facts of West are very similar to those before me except that in that case a family company occupied part of the acquired premises and paid expenses. In this case the arrangement is a familial one between Mr Bradfield and his parents originally and then his mother after his father's death. Mr Bradfield has occupied the house and the surrounding lot for 22 years except for recently while he cared for his sick mother elsewhere. He paid the rates and services for that whole period until acquisition in early 2015 and insurance for a substantial part, ceasing in 2013 when he could no longer afford it. It can be accepted this is not a contractual arrangement which gives rise to an enforceable right to occupy as against Mr Bradfield's mother. While Mr Bradfield does not have exclusive possession in that sense he does have exclusive occupation as against third parties (similar to West and Rakus) of the house lot. A par (b) interest in land is not conditional on a claimant having exclusive possession, as Rakus identifies. Mr Bradfield has at least a right of occupancy on a more secure footing than a bare licence, because of his informal arrangement with his mother, his payment of rates and services and the length of time he has occupied the house lot.
In Rakus at [21] Lloyd J considered the list of proprietary or quasi-proprietary interests Meagher JA referred to in Hornsby at 155C, as follows: … his Honour's [Meagher JA's] suggested list of jura in re aliena, proprietary or quasi-proprietary rights is not exhaustive, as evidenced by his use of the abbreviation "etc" at the end of the sentence. An interest in the property of another need not be confined to the examples given and so need not be as much as a licence coupled with an interest …
Consistent with Rakus citing Hornsby, I consider that Mr Bradfield had an interest in land as defined in par (b) as at least a right in the property of another (jura in re aliena) or a quasi-proprietary interest. No absurdity arises from this conclusion.
Further, Tanner supports an expansive approach to the definition in par (b). a right to pass over a public road was held to be a compensable interest in land, which right was not proprietary. While not an interest in land similar to Mr Bradfield's, that decision emphasises the breadth of interests which can fall within par (b) as being a right in connection with land which is not proprietary.
Dealing with other discrete arguments of the Respondent, unless expressly stated in the LEC Act or in another statute, the LEC Act should not be construed as reading down the Just Terms Act. That is effectively the thrust of the Respondent's submissions that the operation of s 25 of the LEC Act requires the Court to specifically define an interest in land under the Just Terms Act. Section 25 provides the Court with the jurisdiction to do precisely what is being done in this preliminary question of law.
As the Applicant submitted, Associate Professor Edgeworth's article relied on by the Respondent is not addressing the statutory scheme in the Just Terms Act and can provide no assistance. SHFA which is referred to in a footnote does not assist the Respondent in any event. The Court of Appeal there distinguished Hornsby and held that a legally enforceable right to have improvements carried out was a right under par (b) of the definition of interest in land, being a direct, non-contingent right (per Basten JA at [99], Beazley JA and Stein A-JA concurring). Further, the article is not a complete review of relevant cases, for example, it does not refer to Court of Appeal cases such as Tanner (NSW) or Sorrento (Qld).
There was some suggestion from the Respondent's counsel in the course of the hearing that the Applicant's affidavit evidence was insufficient to establish that he occupied the whole of the house lot but this was faintly pressed. In the absence of any dispute as to the facts in the affidavits of Mr Bradfield and his mother I consider he has established the fact of his occupation of the house lot for an extended period.
For the reasons identified, Mr Bradfield has a right, power or a privilege being "a right or immunity enjoyed by a person beyond the common advantages of others", satisfying par (b) of the definition of interest in land.

Conclusion

To answer the question of law before me, I consider that Mr Bradfield has an interest in land as defined in par (b) of s 4 of the Just Terms Act.

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: 22 December 2015

Local Government Act 1919(NSW)

(2013) 205 LGERA 357

(2003) 128 LGERA 281

(2004) 138 LGERA 373

(2007) 151 LGERA 328

(2001) 128 LGERA 281

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (33)