Commonwealth v Morison

Section 23 (1) of the Act provides that in the determination of the amount of compensation payable in respect of land compulsorily acquired under the Act, regard shall be had to -

(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.

It was not disputed before us, although it had been contested below, that under these provisions a claimant is entitled to compensation for the depreciation in value of his remaining land caused by the proposed use of the land taken and not only by the construction of works thereon. In the present case it is of course necessary to remember that an airport was already in existence and to have regard only to the increased level of noise and other increased mischief that will be likely to be caused by the extension of the airport and its consequent use by jets. However, the contention of the Solicitor-General, on behalf of the Commonwealth, was that the Court should consider only that increased noise and nuisance which will be attributable to the use of the resumed land itself and not the increased noise and nuisance resulting from the use of the airport as a whole. In other words, the submission was that assuming that there would have been no significant noise caused by jet aircraft if the airport had not been extended, the appellant is not entitled to compensation for depreciation in value to the retained land caused by all the noise likely to be made by the jets using the airport but only in respect of the depreciation caused by noise made by jets while on and over the resumed land. If this is correct, a valuer would be presented with a very difficult task, but the Solicitor-General suggested that the problem might be solved by assessing the depreciation caused by the increased use of the airport as a whole and then attributing a fair proportion of that depreciation to the use of the resumed land.

The submission on behalf of the Commonwealth appears at first sight to be opposed to the words of s. 23 (1) (c). They entitle a claimant to compensation for the depreciation in value of his interest in the retained land by reason of the proposal to carry out the public purpose for which the land was acquired and are not expressly limited to the depreciation caused by the proposal to carry out on the land acquired the public purpose for which the land was acquired. In the present case the public purpose for which the land was acquired was stated to be the extension of the airport. The learned trial judge has awarded compensation for the depreciation in value of the retained land caused by the extension of the airport, that is, by its proposed increased use when extended. This appears to be in complete conformity with the words of the section, unless they are read subject to a qualification which they do not themselves express. In his submission the Solicitor-General relied on decisions given on s. 63 of the Lands Clauses Consolidation Act, 1845 UK which provided that in estimating compensation, regard should be had to "the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith". In the decisions on that section, which are reviewed in Edwards v. Minister of Transport [1] , it has been held that its concluding words refer only to damage due to the exercise of powers on the land acquired from the claimant, and it has been held to follow, to use the words of Harman L.J. [2] ,

that where damage arises partly on the claimant's land and partly off it, he cannot claim the whole damage which has arisen but only that part of it which he can attribute to activities on what formerly was his own land. 1. [1964] 2 Q.B. 134. 2. [1964] 2 Q.B., at p. 155.

In my opinion, the words of s. 63 of the Lands Clauses Consolidation Act UK upon which the English decisions were given are materially different from those of s. 23 (1) (c) of the Act. The "exercise of the powers" referred to in s. 63 appears to mean the particular exercise of statutory powers by which the land in question was taken. Since the section referred to injurious affection resulting from the exercise of the powers to take the land, it is understandable that it was held to limit compensation to the damage resulting from what was done or expected to be done on the land actually taken. In other words, it is natural to confine damage resulting from the exercise of a power of resumption to damage caused by activity on the land resumed. However, depreciation caused by carrying out the public purpose for which land was acquired may be more extensive than depreciation caused by the use of the land acquired, because the public purpose may involve the use of the land acquired in conjunction with other land, and in carrying out the public purpose use may be made of land other than that resumed.

Particular reliance was placed by the Commonwealth on Sisters of Charity of Rockingham v. The King [1] , where the Judicial Committee held that a Canadian statute which gave a right to compensation for damage to property "injuriously affected by the construction of any public work" entitled the claimants to compensation for damage to the lands which they retained in so far as the damage arose from the apprehended use of the lands taken from them. The material words of the Canadian section were substantially similar to those of s. 68 of the Lands Clauses Consolidation Act but the Canadian Act did not reproduce the words of s. 63. Their Lordships accepted that the Canadian courts had followed the English decisions under the Lands Clauses Consolidation Act and appear to have regarded the English decisions on s. 63 as applicable in the construction of the Canadian statute (see [2] ). However, the provisions of the Canadian statute also are distinguishable from those of s. 23 (1) (c). The decision in Sisters of Charity of Rockingham v. The King [1] , does not directly govern the present case, and in my opinion it does not lay down any principle of construction that would require the words of s. 23 (1) (c) to be given any other than their natural meaning or to be restricted in their application only to a public purpose to be carried out on the land resumed.

1. [1922] 2 A.C. 315. 2. [1922] 2 A.C., at p. 322. 3. [1922] 2 A.C. 315.

We were also referred to some decisions on Australian and New Zealand statutes dealing with injurious affection: Laycock v. Victorian Railways Commissioners [3] (where the provision in question followed s. 63 of the Lands Clauses Consolidation Acts); Sellers v. Minister of Public Works [4] (where the section required the court in assessing compensation to take into account "the extent to which any lands in which the claimant has an interest are or are likely to be injuriously affected by the nature of the works in question"); Konowalow and Felber v. Minister for Works [1] (where the statute referred to the damage sustained "by reason of such other lands being injuriously affected by the taking"); and Cohen v. Commissioner for Main Roads [2] (where under the statute the claimant was entitled to compensation for damage caused "by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other lands"). All of the statutory provisions considered in those cases are distinguishable from s. 23 (1) (c).

1. [1917] V.L.R. 556. 2. [1934] N.Z.L.R. 988. 3. [1961] W.A.R. 40. 4. (1968) 15 L.G.R.A. 423.

It was submitted that the history of the Commonwealth legislation threw some light on the meaning of s. 23 (1) (c). The first Commonwealth statute that dealt with the compulsory acquisition of property, the Property for Public Purposes Acquisition Act 1901 Cth, provided by s. 19 (1) that in estimating the compensation to be paid, regard should be had to the damage, if any, caused -

(a) by the severing of the land taken from other land of the claimant; or

(b) by the exercise of any statutory powers by the Minister otherwise injuriously affecting such other land.

So far this section was similar to s. 63 of the Lands Clauses Consolidation Act, but it contained in addition a proviso which read as follows: Provided also that the valuators or the Justice in estimating such compensation shall take into consideration by way of set-off or abatement any enhancement in the value of the interest of the claimant in any land adjoining the land taken, or severed therefrom, by the carrying out of the public purpose for which the land is taken. The submission made by the Solicitor-General was that it was inconceivable that the legislature should have intended that enhancement in value and depreciation in value should be measured by different standards, and that therefore the words of s. 19 (1) (b) and the words of the proviso were intended to achieve the same result which, it was further said, was the result brought about by s. 63 of the Lands Clauses Consolidation Act. I cannot agree with this submission. The change of terminology suggests that the legislature deliberately intended to adopt a measure for the estimation of the enhancement in value of retained lands which was different from that which the Lands Clauses Consolidation Act had laid down in relation to depreciation.

The Act of 1901 was repealed by the Lands Acquisition Act 1906, which by s. 28 (1) provided that in determining compensation, regard should he had, inter alia, to

(c) the enhancement or depreciation in value of other land adjoining the land taken or severed therefrom of the person entitled to compensation by reason of the carrying out of the public purpose for which the acquired land was acquired.

The effect of this section fell for consideration in In re Smith and Minister for Home and Territories [1] , a case in which the retained land had not depreciated but had been enhanced in value by reason of the acquisition. The Commonwealth had constructed a railway which passed through portion of the land included in the claimants' lease and had acquired by compulsory process for the purposes of the railway certain portions of the leased land. It seems that the land in question had been taken to provide water for the construction of the railway. One of the questions that fell to be decided by Powers J. was whether the enhancement referred to in s. 28 (1) (c) of the Lands Acquisition Act 1906 was the enhancement caused only by the acquisitions in question, or the enhancement caused by the construction and use of the railway, including the works carried out on the lands in question (2). From the judgment of Power J. it appears [2] that the lands on which the railway had been constructed had not yet been acquired and that the contention of the claimants was that the taking of the land for water for the railway construction could not in itself possibly enhance the value of the rest of the land. In reply to this contention it was said on behalf of the Minister, inter alia, that compensation was to be determined in accordance with the principles set forth in s. 28, and that under that section Powers J. in assessing compensation was required to set off the amount by which he found that the other land of the claimants adjoining the land taken was enhanced "by reason of the carrying out of the public purpose for which the acquired land was acquired"; not the enhancement caused only by acquiring any particular piece of land. Powers J. accepted the contention made on behalf of the Minister; he said [3] : I hold that I am required to find to what extent the rest of the adjoining lands of the claimants is enhanced in value by reason of carrying out the public purpose for which the land in question was acquired, namely, for the construction and use of a railway from Port Augusta to Kalgoorlie. It was pointed out in argument before us that the report does not make it clear how his Honour applied this decision to the facts of the case [1] . I have obtained a copy of the award made by Powers J. and it shows that, so far as is now material, he determined as follows: I determine that the claimants are not entitled to any compensation in respect of the four portions of land acquired by the Commonwealth by compulsory process on the ground that the other lands of the claimants adjoining the lands acquired are enhanced in value by the carrying out of the public purpose - the railway from Port Augusta to Kalgoorlie - to the extent of £2,271.10.0 at least, and because I hold that the Commonwealth is entitled to set off that sum against the £2,271.10.0 I would have otherwise determined the claimants were entitled to as compensation in respect of the lands above-mentioned. It seems quite clear that Powers J. held that under s. 28 (1) (c) he was bound to have regard to the enhancement of the land retained which resulted from the carrying out of the public purpose on land other than the acquired land in question. If the effect of s. 28 (1) (c) was that enhancement is to be found by considering the effect of carrying out the public purpose, even though it is not carried out on the land acquired, the same must be true of depreciation. The decision therefore gave a different effect to the section from that which the English cases have given to s. 63 of the Lands Clauses Consolidation Act, and is quite opposed to the contention of the Solicitor-General. Of course, being the decision of a single Justice, it does not bind us, but as it has stood unchallenged for over fifty years, it is of considerable persuasive authority. The Lands Acquisition Act 1906 was twice amended after this decision but no alteration was made to s. 28 and when that Act was repealed by the Lands Acquisition Act 1955 Cth, s. 23 (1) (c) was enacted in its present form. Perhaps it is unnecessary to go so far as to say that these circumstances call for the application of the principle discussed by Lord Macmillan in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. [2] , that where the language of a statute has received judicial inter-pretation and Parliament again employs the same language in a subsequent statute dealing with the same subject matter there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to it. However, the history of the legislation confirms me in the view that s. 23 (1) (c) should be construed according to its own terms and not upon the assumption that the Parliament intended to give its words the same effect as that which the authorities had held should be given to the different words of the English and the Canadian statutes. 1. (1920) 28 C.L.R. 513. 2. (1920) 28 C.L.R., at p. 528. 3. (1920) 28 C.L.R., at p. 529. 4. (1920) 28 C.L.R., at p. 530. 5. [1933] A.C. 402, at pp. 446-447.

The ordinary and grammatical meaning of the words of s. 23 (1) (c) is in my opinion that the depreciation to be considered is that caused by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired. It is not implicit in their meaning that the public purpose should be carried out, or should be proposed to be carried out, on the land acquired. As I have said, land may be acquired for a public purpose which is to be carried out upon that land and other lands as well.

For these reasons, I consider that s. 23 should not be given the restricted construction for which the Solicitor-General contended. It is unnecessary to consider how the provisions of the section would operate in other circumstances. In the present case the learned trial judge gave the provision its true effect and applied it correctly to the facts of the case.