Broadcast Australia Pty Ltd v Kim Noonan & Anor

Judgment 1Mount Cenn Cruaich is near the town of Coonabarabran in north-western New South Wales. On top of the Mountain is an area of State Crown Land (Folio Identifier 44/753383) (the Site) that is licensed to the plaintiff, Broadcast Australia Pty Ltd (formerly known as NTL Australia Pty Limited in the period 16 November 1999 to 23 June 2002 and National Transmission Company Pty Limited in the period 11 February 1999 to 16 November 1999). There is a transmission tower and various buildings and sheds on the Site. The only way to access the Site is along a 13 kilometre access road through a rural property (the Land), of which the first defendant, Kim Noonan (the defendant) is to become the registered proprietor pursuant to the grant in the Will of her late mother, Rube Lambert (in whose name the Land was registered at the time of the trial), whose estate is the second defendant. 2These proceedings arise out of a dispute in relation to the plaintiff's right to access the Site through the Land. The plaintiff seeks a declaration that it has the benefit of the right of access and seeks consequential orders. The defendant claims that the right of access originally acquired by the Commonwealth of Australia (the Commonwealth) was not transferred to the plaintiff's predecessor and thus the plaintiff has no entitlement to access the Site through the Land. Alternatively if the right was transferred, the defendant contends that the plaintiff's right of access is limited to the public purpose for which it was acquired and does not allow the plaintiff to authorise others to access the Site through the Land for other purposes. The defendant also claims that there is excessive and unreasonable use of the right of access. 3The proceedings were heard on 5, 6 and 7 September 2011 when Mr D Robertson, of counsel, appeared for the plaintiff and Mr JJ Webster SC leading Mr M Seymour, of counsel, appeared for the defendants. Lease 1965-2005 4By Deed dated 24 November 1971 the Commonwealth, as lessee, acquired a lease of the Site from the State of New South Wales (the State), as lessor, in accordance with s 69A of the Crown Lands Consolidation Act 1913 and s 8(1) of the Lands Acquisition Act 1955 for a period of 40 years commencing on 1 January 1965 (the Lease). 5The State reserved to itself the right of entry onto the Site "with material and equipment" to construct a "cairn mast vane satellite" or any other construction necessary for "trigonometrical survey purposes" and to "construct and maintain thereon any authorised work and to clear sight lines to other trigonometrical stations and to carry out necessary work for mapping purposes". The State also reserved to itself the right of access to and from the Site "for trigonometrical survey purposes and for such purposes to go pass and repass over" the Site "at all times with or without animals or vehicles": (cl 1(b)). Clause 3 of the Lease included the following lessee's covenants: (b) That the Lessee will not use the demised land except as a site for the installation of a Television Transmitting Station and for no other purposes whatever without the previous consent in writing of the Minister AND will not use nor permit to be used the demised land or any part thereof for residential occupation other than by personnel concerned directly with the effective operation and maintenance of the said Station. ... (h) That the Lessee will not erect or cause or suffer to be erected upon the demised land or any part thereof any building structure erection or improvement other than a television transmission mast or tower together with any necessary buildings and fences to be used for the purposes referred to in paragraph (b) of Clause 3 of this Lease and for which the general design and layout thereof and the materials therefor shall have been first approved by the Minister. Lands Acquisition Act 1955-1966 The Lands Acquisition Act 1955-1966 (Cth) (the Act) provided that the Commonwealth could acquire land for a "public purpose" by agreement or by compulsory process (s 6(1)). It defined "public purpose" relevantly as "a purpose in respect of which the Parliament has power to make laws": s 5(1). Section 5(1) also provided: "interest" in relation to land, means - (a) a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in connexion with, the land; "land" includes an interest in land. 6Part II Division 3 of the Act entitled "Acquisition by Compulsory Process" included the following: 10. (1) Without prejudice to the liability of the Commonwealth under any contract for the acquisition of land by agreement, where - ... (b) the Minister has given a certificate under sub-section (8) of section nine of the Act in relation to land, the Minister may recommend to the Governor-General that the land or any interest in the land (not including an interest in respect of which a notice to treat has been withdrawn) be acquired by the Commonwealth by compulsory process. (2) The Governor-General may, on the recommendation of the Minister under the last preceding sub-section, authorise the acquisition of the land by compulsory process for a public purpose approved by the Governor-General. (3) The Minister may cause to be published in the Gazette notice of the authorisation by the Governor-General and, in the notice, declare that the land is acquired under this Act for the public purpose approved by the Governor-General. (4) Upon the publication of the notice in the Gazette , the land to which the notice applies is, by force of this Act - (a) vested in the Commonwealth; (b) freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, contract, licenses, charges and rates, to the intent that the legal estate in the land and all rights and powers incident to that legal estate or conferred by this Act are vested in the Commonwealth. (5) The land acquired under this section may be an easement, right, power, privilege or other interest which did not previously exist as such, in, over, or in connexion with land. 7The interest of every person in the land acquired was converted into a right of compensation under the Act (s 11). Where land was acquired by compulsory process, the Crown Solicitor could lodge with the Registrar-General, Registrar of Titles or other proper officer of the State in which the land was situated a copy of the notice of acquisition of the land (s 15(1)). Section 15 also provided: (2) The officer with whom the copy of a notice of acquisition is lodged in pursuance of the last preceding sub-section may register the acquisition in the manner as nearly as may be in which dealings with land are registered, and may deal with and give effect to the copy of the notice of acquisition as if it were a grant, conveyance, memorandum or instrument of transfer of the land to the Commonwealth duly executed under the laws in force in the State or Territory in which the land is situated. 8Part III of the Act entitled "Powers in relation to land" included the following: 16. (1) A person authorised in writing by the Minister to act under this section may, for the purpose of ascertaining whether land is suitable for a public purpose or of surveying or obtaining information in relation to land which he considers suitable for such a purpose - (a) enter upon the land, or upon adjoining land, with such persons, vehicles and things as he thinks fit; and (b) make surveys, take levels, sink pits, examine the soil and do any other thing in relation to the land. ... 17. Where land is vested in the Commonwealth, a person authorised by the Minister may, with such other persons as he thinks necessary, enter land - ... and may occupy the land so entered for so long as is necessary for the purposes of any works connected with the carrying out of a public purpose. 18. (1) A person authorised by the Minister under the last preceding section to enter land may - (a) in connexion with the carrying out of a public purpose, on or from that land - (i) construct, build or place any plant, machinery equipment or goods; (ii) take or deposit sand, clay, stone, earth, gravel, timber, wood or other materials or goods; (iii) make roads, cuttings or excavations; (iv) erect workshops, sheds and other buildings of a temporary character; and (v) manufacture and work materials of any kind; and (b) demolish, destroy or remove any plant, machinery, equipment, goods or buildings constructed, built, placed or erected on land in pursuance of the last preceding paragraph. 9The Act also provided for a process by which compensation could be claimed before a court and included the following: 23. (1) In the determination of the amount of compensation payable in respect of land compulsorily acquired under this Act, regard shall be had to - (a) the value of the land at the date of acquisition; (b) the damage (if any) caused by the severance of the land from other land in which the claimant had an interest at the date of acquisition; and (c) the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired. (2) In determining the value of land acquired under this Act, regard shall not be had to any increase in the value of the land arising from the carrying out of or the proposal to carry out the public purpose for which the land was acquired. (3) Where the interest of the claimant in other land adjoining the land acquired is enhanced or depreciated by reason of the carrying out of or the proposal to carry out the public purpose for which the land was acquired, the enhancement or depreciation shall be set off against, or added to, as the case requires, the amount of the compensation otherwise payable to the claimant. 10The Minister was authorised on behalf of the Commonwealth to enter into an agreement with the owner of the land as to the amount of compensation to which the owner would be entitled if the land was compulsorily acquired (s 24). 11Part VII of the Act entitled "Dealings in Land Vested in the Commonwealth" included the following: 52. Land vested in the Commonwealth may, if the Minister thinks fit, and upon such terms as he directs, be transferred to and vested in a corporation incorporated by a law of the Commonwealth. 53. (1) Where land vested in the Commonwealth is no longer required by the Commonwealth, or is not required for immediate use by the Commonwealth - (a) it may be disposed of in any case under the authority of the Governor-General or, in a case where the minister is satisfied that the value of the land does not exceed One thousand dollars, under the authority of the Minister; or (b) a lease of or a licence to occupy the land may be granted in any case under the authority of the Governor-General or, in a case where the lease or licence is for a term not exceeding three years at a rental, or for a periodical consideration, not exceeding One thousand dollars per annum, under the authority of the Minister. (2) The Minister may authorize the grant of easements, or other rights, powers or privileges (other than leases or occupation licenses), over or in connexion with, land vested in the Commonwealth. 12The Act was repealed by the Lands Acquisition (Repeal and Consequential Provisions) Act 1989 (Cth). However it continued to apply to the acquisition the subject of this litigation: s 5 and s 8(1). It was replaced by the Lands Acquisition Act 1989 (Cth) that provides for acquisition of land by agreement or compulsory process: s 16. "Land" is defined as "land in Australia". "Interest" in relation to land is defined to include any right "over or connection with the land or an interest in the land": s 6. That Act also provides as follows: 17 Nature of interests that may be acquired (1) The interests that may be acquired under this Act are: (a) a legal or equitable estate or interest in land; and (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with, land or an interest in land. (2) Those interests include: (a) an interest of the Commonwealth, a State or a Territory in Crown land; (b) an interest that did not previously exist in relation to particular land; (c) an easement in gross; and (d) a restriction on the use of the land, whether or not annexed to particular land. 13The 1989 Act was introduced consequent upon Report No 14 of the Australian Law Reform Commission, Lands Acquisition and Compensation (1980), in relation to a reference to it for report inter alia on the adequacy of the Act. Broadcasting and Television Act 1942 - 1963 14The Broadcasting and Television Act 1942-1963 (Cth) (the B&T Act) included the following definitions in s 4(1): "broadcasting station" means a station for the transmission by means of wireless telegraphy of broadcasting programmes, that is to say, matter intended for aural reception by the general public, and includes the studio, transmitting station and technical equipment for the purposes of those programmes; "commercial broadcasting station" means a broadcasting station other than a national broadcasting station; "commercial television station" means a television station other than a national television station; ... "national broadcasting station" means a broadcasting station used by the Commission for the transmission of its broadcasting programmes; "national television station" means a television station used by the Commission for the transmission of its television programmes; ... "television station" means a station for the transmission by means of wireless telegraphy of television programmes, that is to say, images and associated sound intended for reception by the general public, and includes the studio, transmitting station and technical equipment used for the purposes of those programmes, but does not include a television translator station; "television translator station" means a station for the transmission by means of wireless telegraphy of television programmes, being a station of low operating power and designed to receive and re-transmit signals from a television station, or from another television translator station, without substantially altering any characteristic of the signals other than their frequencies and amplitudes; 15The "Commission" to which reference is made in these definitions is the Australia Broadcasting Commission (the ABC): s 30(1). Part III Division 5 of the B&T Act entitled "Technical Services" included the following: 73. (1) The Postmaster-General shall, except in so far as he otherwise determines, provide and operate, for the purposes of the broadcasting programmes of the Commission- (a) transmitting stations; ... 74. (1) The Postmaster-General shall, except in so far as he otherwise determines, provide and operate, for the purposes of the television programmes of the Commission- (a) transmitting stations. Acquisition of the "right" - 1968 16On 12 September 1968 the Minister of State for the Interior (the Minister) signed a Minute Paper for the Executive Council that was in the following terms: SUBJECT Acquisition by Compulsory Process of an Easement for Access over land near Coonabarabran in the State of New South Wales for the Purpose of Providing Access to the Dubbo (Mt. Cenn Cruaich) Television Station in Accordance with the Broadcasting and Television Act 1942-1967. Recommended for the approval of His Excellency the Governor-General in Council that, in pursuance of Section 10 of the Lands Acquisition Act 1955-1966, he be pleased to authorise the acquisition by the Commonwealth by compulsory process of an easement for access over the land described in the annexed Schedule for the purpose of providing access to the Dubbo (Mt. Cenn Cruaich) Television Station in accordance with The Broadcasting and Television Act 1942-1967, and to approve that purpose as the public purpose for which such easement is authorised to be so acquired. 17The Land (then Old System Land) was described in detail in the Schedule to the Minute Paper. 18An "Explanatory Memorandum" to the Executive Council Minute initialled by the Minister provided as follows: The easement described in the attached Executive Council Minute is required by the Postmaster-General's Department for the provision of road access to the Dubbo Television Station which is on Mt. Cenn Cruaich near Coonabarabran, New South Wales. The land involved is Crown land of the State of New South Wales comprising a Homestead Farm area. Neither the Department of Lands, New South Wales, nor the Crown lessee raise any objections to the Commonwealth's proposal. Compensation has not been claimed. By arrangement with the State Authorities and also with the Crown lessee, it is proposed to proceed with the acquisition by compulsory process to facilitate registration of the Commonwealth's interest in the land. 19On 12 September 1968 the Minister certified pursuant to s 9(8) of the Act that there were special reasons why section 9 of the Act should not apply "to the acquisition by compulsory process of an easement for access" over the Land "namely, that the compulsory acquisition will facilitate registration of the interest in the land". The certificate also recorded that the Minister had "pursuant to the provisions of Section 24 of the Act entered into agreement with the owner as to the amount of compensation". It appears from the Explanatory Memorandum that the owner, at that time the State, agreed not to claim any compensation in relation to the compulsory acquisition. 20On 20 September 1968, the Governor-General, Lord Casey, approved the acquisition. 21On 3 October 1968 the following was published in the Commonwealth Gazette (the Notice): Commonwealth of Australia Lands Acquisition Act 1955-1966 NOTICE OF THE ACQUISITION OF LAND BY THE COMMONWEALTH It is hereby notified that His Excellency the Governor-General acting with the advice of the Federal Executive Council has authorised pursuant to the provisions of the Lands Acquisition Act 1955-1966, the acquisition by compulsory process of the right for The Commonwealth of Australia to go pass and repass at all times and for all purposes with or without vehicles of any description laden or unladen and with or without animals through over and along the land hereunder described, and I hereby declare that the said right over the land hereunder described is acquired by The Commonwealth of Australia under the said Act for the following public purpose approved by the Governor-General: The providing of access to a National Television Station in accordance with the provisions of the Broadcasting and Television Act 1942-1967: (File No: 63/987) (Ex. Min. No. 717). Dated this twentieth day of September, One thousand nine hundred and sixty-eight 22The Land was then described in detail. 23The Land was subsequently converted to Torrens Title being now Folio 41/753383. The Register records the following: NOTIFICATION IN COMMONWEALTH GAZETTE DATED 3.10.1968; EASEMENT FOR ACCESS AFFECTING THE LAND SHOWN SO BURDENED IN CROWN PLAN 2206.3100. 24Crown Plan 2206.3100 includes the following: Site of ("Proposed" struck through) Easement for Access 66 Feet Wide through Portion 41 acquired Gaz (Comm.) 3.10.68 Pks 68.3004. Easement resumed over same area by Electricity Commission, Gaz 8.8.69 Pks 67.3673. From [surveyor's mark] to [surveyor's mark]. 25The Crown Plan shows the access road across the Land to the Site. 26The Site was also converted to Torrens Title being Folio Identifier 44/753383. 27The defendant's family purchased the Land in the 1970s after it was converted to Torrens Title. National Transmission Agency (NTA) 28On 1 July 1992 the National Transmission Agency (NTA) was established as part of the Commonwealth Department of Transport and Communications and was responsible to the Parliament through the Secretary and the Minister for Transport and Communications. Its primary function was the planning, establishment, operation and maintenance of "a nationwide network of multipurpose transmission facilities" established primarily to broadcast the television and radio services of the ABC and SBS. It was funded directly by Commonwealth budget appropriation through the Department and its objectives included expanding "the commercial percentage of NTA's business", a performance indicator of which was the "percentage increase in the number of commercial clients". 29The "Transmission Network" was described in NTA's 1993-1994 Annual Report as follows: The network is a collection of large and small transmission facilities containing in total 1476 transmitters which are used for broadcasting. About one third of these transmitters are used to broadcast commercial and other broadcasting services. In addition, the network accommodates a large number of transmitters for radiocommunications services. The NTA currently operates 1029 transmitters which make ABC and SBS radio and television services available for reception by the public. About 27 per cent of the sites which accommodate these transmitters are owned by commercial or other organizations. 30The NTA's 1995-1996 Annual Report included the following: A transmission facility typically consists of a site, an access road, main and emergency power supplies, a building to house equipment, satellite receiving dish or other equipment to receive signals from the broadcaster's studios, one or more transmitters, a combiner, feeder cables, a mast or tower and one or more antennas. A transmission facility's functions, therefore, are quite different from those of the broadcasting studios, or 'station' used by broadcasters to produce their programs. Sale of the NTA 31The National Transmission Network Sale Act 1998 (Cth) (the Sale Act) provided for the sale of the National Transmission Network and included the following: 3. Definitions ... asset means: (a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and (b) any right, privilege or immunity, including a contingent or prospective one. ... instrument includes a document. . ... original asset means an asset transferred from the Commonwealth under section 9. ... site has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act. ... Telecommunications Act means the Telecommunications Act 1997 . ... Part 2 - Sale of the National Transmission Network 7. Fixtures on non-Commonwealth land (1) The Minister for Finance and Administration may, by notice in the Gazette, declare that this section applies to network facilities specified in the notice. (2) At the end of the day on which the notice is published, any specified network facility that is a fixture on non-Commonwealth land: (a) is severed from the land and remains severed; and (b) vests in the Commonwealth; by force of this section. (3) In this section: network facility means any asset used, or formerly used, by the Commonwealth in connection with the transmission of a broadcasting service. non-Commonwealth land means land not owned by the Commonwealth. 8. Effect of Lands Acquisition Act on past grants etc. of interests in land (1) If an instrument made or executed before the commencement of this Act was expressed to grant or transfer an interest in land to or from the Commonwealth, then section 9 is to be applied on the basis that the grant or transfer is not invalid, and is taken never to have been invalid, solely because the grant or transfer was not made in accordance with the requirements of the Lands Acquisition Act. (2) In this section: interest in land has the same meaning as in the Lands Acquisition Act. Lands Acquisition Act means the Act for the time being in force relating to the acquisition of land by the Commonwealth and associated matters. 9. Transfer of assets and liabilities (1) The Minister for Finance and Administration may, by notice in the Gazette, declare all or any of the following, in relation to a company specified in the notice: (a) a specified Commonwealth asset vests in the company at a time specified in the notice (the transfer time), without any conveyance, transfer or assignment; (b) at the transfer time, the company becomes the Commonwealth's successor in law in relation to the transferred asset; (c) a specified instrument relating to the transferred asset continues to have effect after the transfer time as if a reference in the instrument to the Commonwealth or to the National Transmission Agency were a reference to the company. (2) The Minister for Finance and Administration may, by notice in the Gazette , declare all or any of the following, in relation to a company specified in the notice: (a) a Commonwealth liability specified in the notice ceases to be a Commonwealth liability at a time specified in the notice (the transfer time) and becomes a liability of the company; (b) at the transfer time, the company becomes the Commonwealth's successor in law in relation to the transferred liability; (c) a specified instrument relating to the transferred liability continues to have effect after the transfer time as if a reference in the instrument to the Commonwealth or to the National Transmission Agency were a reference to the company. (3) Declarations in relation to both assets and liabilities may be included in the same notice. The same notice may include declarations in relation to more than one asset or liability. (4) A declaration under this section has effect according to its terms. Note: The assets and liabilities that can be transferred under this section include assets and liabilities that consist of rights and obligations under contracts. ... 11.Registration of transfers of land (1) This section applies if: (a) any right, title and interest in particular land vests in a company under this Act; and (b) there is lodged with a land registration official a certificate that: (i) is signed by an authorised person; and (ii) identifies the land, whether by reference to a map or otherwise; and (iii) states that the right, title and interest has become vested in the company under this Act. (2) The land registration official may: (a) register the matter in a way that is the same as, or similar to, the way in which dealings in land of that kind are registered; and (b) deal with, and give effect to, the certificate. (3) A document that appears to be a certificate under subsection (1) is taken to be such a certificate, and to have been properly given, unless the contrary is established. (4) In this section: authorised person means: (a) the Minister for Finance and Administration; or (b) a person authorised by the Minister for Finance and Administration, in writing, for the purposes of this section. 32On 29 April 1999 the following Notice was published in the Commonwealth Gazette: DECLARATION DECLARATION MADE BY THE MINISTER FOR FINANCE AND ADMINISTRATION UNDER THE NATIONAL TRANSMISSION NETWORK SALE ACT 1998