Devine v Emu Park Historical Museum Society Incorporated [2012] QSC 117

REAL PROPERTY - RESERVE LAND - STATUTORY RIGHT OF USER - INTERLOCUTORY INJUNCTION - where statutory construction in issue - whether the Court has jurisdiction to make the order sought - where application of s 180 Property Law Act in issue

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46

Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618

BMG Resources Limited v Pine Rivers Shire Council [1989] 2 Qd R 1

Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1

Chambers v Kingham (1878) 10 Ch D 743

Coomber v Justices of Berks [1883] UKHL TC_2_1; (1883) 9 App Cas 61

Croudace v Zobel [1899] AC 258

Hornsey Urban District Council v Hennell (1902) 2 KB 73

Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572

Perry v Eames (1891) 1 Ch 658

State Government Insurance Corp v Government Insurance Office of NSW (1991) 28 FCR 511

The Council of the Town of Gladstone v The Gladstone Harbour Board [1964] Qd R 505

Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282

Land Act 1994 (Qld) ss 30, 31, 33, 34F, 36, 46, 52, 91

Property Law Act 1974 (Qld) ss 5, 180

[1] McMEEKIN J: The applicant is Robert Logan Devine. He seeks an interlocutory judgment effectively restraining his neighbour from preventing him using his neighbour's land to conduct his own service station business. The injunction is sought in aid of the primary relief that he seeks, which is that he be given a right of access over his neighbour's land pursuant to the court's powers under s 180 of the Property Law Act 1974 (Qld) ("the Act").

[2] The respondent is the Emu Park Historical Museum Society Incorporated. It holds certain land, Lot 3 on Plan E15653, both as trustee, and for a portion, as lessee from the Crown. I will refer to that land as "the neighbouring land". The neighbouring land has been dedicated as a reserve for "Historical purposes" under Chapter 3 of the Land Act 1994 (Qld). The respondent conducts a museum on that land. It opposes the interlocutory relief.

[3] The respondent submitted that the applicant could not succeed for two fundamental reasons. First, the Court has no power to make any order over its land as it is land held by the Crown. Subsection 180(8) of the Act provides that s 180 does not bind the Crown. Hence no matter how strong the applicant's case might otherwise be, and that is by no means conceded, there is no jurisdiction to make the order sought. In those circumstances a trial will not clarify matters further and the issue should be resolved now. Secondly, even if that hurdle could be overcome, an essential precondition to the imposition of a statutory right of user under s 180 is that the servient owner's refusal to agree to the imposition of the obligation proposed is "in all the circumstances unreasonable" (s180(3)(c)(i)). That, it was said, cannot be shown here.

The Legal Principles Applicable to the Grant of an Interlocutory Injunction

[4] The principles that apply are not in issue. They were explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill.[1] There are two enquiries:

"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."[2]

[5] As their Honours were at pains to explain the issue is not whether the applicant can show that it is more probable than not that he or she will succeed, or has more than a 50% chance of success in eventually obtaining the final relief sought. Rather there is a balancing exercise involved. How strong the probability needs to be that at the trial of the action the plaintiff will be held entitled to relief depends it was said "upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."[3] "[I]t is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial."[4]

[6] The facts here are a little out of the ordinary. The frontage to Mr Devine's land is on Pattison St, Emu Park and he conducts his service station business there through a private company. The land is in two lots - Lots 6 and 14. Mr Devine has had the land and business since 1999. When he acquired the land and business Mr Devine was aware of the lack of legal access over the neighbouring land to Archer St and well aware of the importance of that access to the business.

[7] Mr Devine's land has been used as a service station by successive owners for over 50 years. Over all that time customers and fuel delivery vehicles have accessed the service station from Archer St and across the neighbouring land. That access has now been denied by the neighbour. A barricade was erected a week or two ago and removed only following my ordering that an interim injunction issue last week.

[8] I will refer to the track used to cross the respondent's land as the "access way". It runs for about 40 meters in a north easterly direction from Archer St to the rear of Mr Devine's land, Lot 14.

[9] That access way is crucial to Mr Devine's business. There are two problems if access is denied. He sells motor spirit. A diesel pump, and his only diesel pump, is located at the very rear of Lot 14 and adjacent to the respondent's boundary. That pump is effectively unusable if vehicles cannot cross the neighbour's land because, without that access, to get away from the pump it would be necessary to back into vehicles seeking to enter the service station from Pattison St. Such reversing would be quite unsafe at busy periods. There is no place to resite the pump. Diesel sales comprise over a third of the turnover of the business.

[10] Secondly, fuel is delivered by tanker. Tankers enter the neighbour's land in Archer St and use the neighbour's land to obtain access to the station. Without that access delivery by tankers of the present size used would be impossible due to the constraints of the site. Again reversing would be necessary and, with tankers, into the public road. This is unsafe and not a viable option. Smaller delivery vehicles could be used but at much greater cost.

[11] If Mr Devine closed his diesel pump, or used more expensive smaller tankers necessitating an increase in his petrol prices, he anticipates losing a significant amount of his custom. Mr Devine swears that his business will need to close if access is denied.

[12] While there was some criticism of the applicant's material I am satisfied that refusal of the relief sought will be devastating to the applicant's business.

[13] Conversely there would appear to be no significant impact on the respondent if access across its land was permitted to continue in the interim. The respondent proposes to build a shed to house a maritime collection. The shed will lie across the access way to some extent. Planning permission to erect the shed required a material change of use application which has been granted by the local Council. The Council's decision is the subject of appeal to the Planning and Environment Court by Mr Devine who opposed the application. Until that appeal is resolved, and thus for the immediate future, the respondent does not need the access way.

[14] There is no serious argument that considerations of balance of convenience strongly favour the grant of the injunction.

[15] However it remans necessary that the applicant demonstrate a probability of success in the sense indicated.

[16] The High Court made plain in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[5] and reaffirmed in Australian Broadcasting Corporation v O'Neill[6] that, "where an interlocutory injunction is sought, it is necessary to identify the legal (including statutory) or equitable rights which are to be determined at the trial and in respect of which final relief is sought."[7] Absent such rights no injunction can be granted.

[17] Mr Devine of course has no proprietary right that the respondent seeks to interfere with. Rather Mr Devine seeks to interfere with the respondent's proprietary rights. The right that Mr Devine asserts might be best described as an inchoate proprietary right[8] - a proprietary right that will come into being upon a successful application for a statutory right of user under s 180 of the Property Law Act 1980. Cf. Croudace v Zobel[9] where the plaintiff held only an authority to enter land and so no proprietary interest in the subject land, as opposed to a mining lease under the relevant mining legislation, and yet was successful in obtaining an injunction. Mr Devine has a sufficient legal right to protect.

[18] I turn then to the question of the applicant's prospects.

[19] Submissions were made as to the merits of the application in a broader sense. The applicants must show that the imposition of the right of user is "reasonably necessary in the interests of effective use in any reasonable manner" of the dominant land. Section 180(3) of the Act provides that an order of that kind shall not be made unless the court is satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed, the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation and, as just mentioned, the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation.

[20] Considerations such as the purchase of the land knowing of the access issue,[10] the use of a neighbour's land to make a business more profitable[11] and at least impeding, if not preventing entirely, the respondent from pursuing its plans to erect a shed needed to house its collection, are all cogent factors that militate against the granting of the primary relief sought.

[21] On the other hand the applicant argues that if the relief is not granted then his land will effectively be sterilised. Mr Devine says that because the land has been used as a service station the land will need to be remediated before it is suitable for any other use. The costs of that he estimates to be in the order of $100,000, making his land a very unattractive proposition to any purchaser other than a service station proprietor. As well the business provides an essential service to the small community of Emu Park - a township of some 3,000 people. Its closure would work a significant disadvantage to that community.

[22] However, given the very significant and adverse impact that a denial of the interlocutory relief sought would have on the applicant, and the lack of any corresponding disadvantage to the respondent, I am not inclined to explore too closely the merits of the claim for relief under s 180. They are matters that properly should await exploration on full evidence at a trial.

[23] In my view it can be accepted that apart from the two fundamental issues raised by the respondent, the applicant has a sufficiently arguable case to justify the grant of an interlocutory injunction until trial or other order. I turn then to the principal matters argued.

[24] The first issue is whether a statute which does not bind the Crown nevertheless binds a trustee for the Crown. The parties each submitted that the nature of the title enjoyed by the respondent determined the argument.

[25] The respondent's title arises in this way. The respondent's land is Crown land. On 31 January 1985 the Governor in Council pursuant to an Order in Council under the Land Act 1962 reserved and set apart the respondent's land for a public purpose, namely for local government purposes, and placed the land under the control of the Shire of Livingstone as Trustee.[12] On 8 June 2007 by Notice published in the Government Gazette of that date the respondent replaced the Livingstone Shire Council as trustee of the land. By Notice of that same date the purpose for which the land was held changed from "Reserve for Local Government" to "Reserve for Historical Purposes". The relevant Minister is empowered by s 31 of the Land Act 1994 to dedicate unallocated State land as a reserve for "community purposes". "Community purposes" are defined in Schedule 1 of the Land Act 1994 to include historical purposes.

[26] Prior to 8 June 2007 the respondent had been the lessee of a substantial part of that land - and for present purposes some part of the land over which access is sought by the applicant - from the Shire of Livingstone. I am informed that the lease continues. Hence the land is held by the respondent in two capacities - as trustee and as lessee. There is authority that the estate does not merge in these circumstances: Chambers v Kingham (1878) 10 Ch D 743.

[27] In a reserve of this type the rights and interests of the trustee and the State are governed by the provisions of Chapter 3 Part 1 of the Land Act 1994.

[28] Mr Arnold, who appeared for the applicant, submitted that the nature of the relief that the applicant sought was the imposition of a license (expressly allowed by ss180(2)) to permit vehicles to pass and repass across the respondent's land, which would not be in terms that would bind the Crown and would not in its effect do so and hence would not offend s 180(8) of the Act.

[29] Mr Arnold submitted that s 180 of the Act was plainly remedial in its terms and hence it should not be read down, but its language given as broad a meaning as could fairly be allowed. By its terms s 180(1) empowers the Court to "...impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user..." (emphasis added). So long as the order sought did not purport to bind the land, of which the Crown remains the owner, and was restricted in its terms to affecting the respondent's interests only, and only so long as the respondent's interests continued, then s 180(8) was not engaged. So went the submission.

[30] Mr Arnold submitted that the respondent, for the purposes of the section, fell within the definition of "owner" and so was subject to an order made under the provision. He pointed out that s 91 of the Land Act 1994 (which appears in Chapter 3 Part 1 of the Act) provides that trustees of land "under this Part" are taken to be the owners of the land for the purposes of legal proceedings; that the definition of "owner" in s 180(7) of the Act "includes any person interested whether presently, contingently or otherwise in land" which was plainly wide enough to include the respondent; that s 5 of the Act by its terms provided that the Act applied to land under the Land Act and to "...estates, interests, and any other rights in or in respect of land, granted, created or taking effect under any Act...". Hence it followed that the Act was capable of applying to interests or rights such as those the respondent enjoyed here.

[31] He submitted that the nature of those interests enjoyed by the respondent as trustee has the effect that the Crown "has no more than a bare title to the land unaccompanied by any of the rights of user and enjoyment ordinarily associated with ownership of land": BMG Resources Limited v Pine Rivers Shire Council [1989] 2 Qd R 1 at p5 per McPherson J. It followed that no order made in these proceedings would interfere with any interest of the Crown. Further it was said that if the relief granted were restricted to a license then it was merely contractual in nature between the respondent and the applicant, affected only the rights enjoyed by the respondent, did not pass with the land or otherwise bind the title of the land, and would come to an end should the Crown revoke the dedication of the reserve without any right in the applicant for compensation: s 34F(f) Land Act.

[32] These submissions take as their starting point the view that if the order sought does not in practical terms affect the interests of the Crown then the order can be made if otherwise authorised by the Act.

[33] In my view there are several problems with the submission.

[34] Significantly there is direct authority that a statute that does not bind the Crown does not bind a trustee for the Crown: Coomber v Justices of Berks [1883] UKHL TC_2_1; (1883) 9 App Cas 61 at pp74-75; Perry v Eames (1891) 1 Ch 658; Hornsey Urban District Council v Hennell (1902) 2 KB 73. I can see no basis on which to distinguish those authorities.

[35] Each of those cases was concerned with very different circumstances to those here but in each the principle was the same - where land is held by a trustee for the Crown the trustee enjoyed the same immunity as the Crown. In Hennell the relevant point was that the respondent's ownership and occupation was "for and on behalf of the Crown" (see at p80 per Lord Alverstone CJ). The same point can be made here - the respondent has been appointed trustee to carry out the responsibilities of the Crown, the trustees being "persons who have some particular association or expertise with the reserve or land and its purpose or with the local community" (s 30(b)(i) of the Land Act 1994). Their "ownership" and occupation is for and on behalf of the Crown.

[36] In The Council of the Town of Gladstone v The Gladstone Harbour Board [1964] Qd R 505 at 520, Gibbs J held in reliance, in part, on the authorities that I have mentioned that "the immunity conferred on the Crown ... extends to a person who is or would be so entitled as trustee for the Crown." While the decision of the Full Court in that case was concerned with different legislation and a different question to that confronting me here, I do not read Gibbs J's decision on this issue as limited to the particular circumstances there before the Court. And while his comments may be obiter and so may not be strictly binding, they are certainly of strong persuasive authority.

[37] That being the approach of the Courts over 100 years and more it follows that parliament would assume that s 180(8) would be construed as extending to those who were trustees of Crown land. Against this background one would expect some direct statement in the Act if parliament did not intend the usual rule to apply. There is no such statement and in my view what contextual indications there are, are to the contrary.

[38] While it might be trite to say so, s 180 is concerned only with interests in land. In providing that the section did not bind the Crown, the Act can only have meant that the Act did not apply to land held by the Crown. The Crown remains the owner of the subject land. The appointment of trustees to exercise the powers and functions set out in Chapter 3 Part 1 of the Land Act 1994 does not alter that fact. So much I think is clear from the fact that the respondent is described as a trustee, and from the terms of the Land Act itself, for example the power to revoke the dedication of reserves (s 33 Land Act 1994), but if authority be needed see the analysis of Gibbs J in The Council of the Town of Gladstone v The Gladstone Harbour Board at 520, albeit in relation to the Local Government Acts but which is apposite here.[13] While that does not mean that the respondent cannot too be an "owner" for the purposes of the Act, recognition of the fact of the Crown's continuing ownership highlights the true nature of the applicant's argument. It requires the import of a condition into the Act that it does not apply to land held by the Crown only so long as the Crown has preserved, to a degree not specified, its rights in and to the land. That is to read into the Act a substantial qualification and one that I cannot see is justified by the purpose of the Act or any provision in it.

[39] Further, it seems to me that there is good reason why the Act should not apply to reserves such as this. The object of dedicating the land as a reserve is to ensure that it is held on trust for specific community purposes - here historical purposes. Section 30(b)(ii) of the Land Act 1994 provides that the object of Part 1 of Chapter 3 of the Act which deals with reserves is to "ensure that reserves ...are properly and effectively managed in a way that is consistent with the purpose for which the reserve was dedicated..." Section 46 of the Land Act 1994, which governs the trustee's administrative functions, and s 52, which sets out the trustees general powers, each make plain that the trustee must carry out its functions consistently with the trust and with the purpose for which the reserve was dedicated - s 46(1)(a): the trustee's functions are to "manage the trust land consistent with achieving the purpose of the trust" and s 52(2)(a): the trustee's actions must be "consistent with the purpose for which the reserve was dedicated". The power to impose a statutory right of user having no necessary connection with those purposes (and that is the case here) would run counter to the whole scheme of the Act so far as the Act deals with reserves of the type relevant here.

[40] It is true, as Mr Arnold pointed out, that the Land Act does permit actions inconsistent with the purpose for which the reserve was dedicated (s 52(3)) but the terms of the statute tend only to reinforce the point - such actions are only permitted by approval of the Minister, not the Court, and the Minister must be "reasonably satisfied the inconsistent action will not diminish the purpose for which the reserve was dedicated" (s 52(3)(a)). A statutory right of user might well, and one might suspect ordinarily would, "diminish the purpose for which the reserve was dedicated". The respondent argues strongly that the obligation sought to be imposed here does precisely that.

[41] Allied with that point is an aspect of the second of the two fundamental issues argued by Mr Deaves, who appeared for the respondent. As I have said s 180(3)(c)(i) of the Act requires as a precondition of the imposition of a statutory right of user that there be a finding that the servient owner's refusal to agree to the imposition of the obligation proposed is "in all the circumstances unreasonable". If the obligation proposed is one that is not "consistent with the purpose for which the reserve was dedicated" then the trustees have no option - they are bound by statute not to accept the imposition of the obligation. If it acceded to the imposition of the obligation it would be acting contrary to its function (s 46(1)(a) Land Act 1994) and outside its powers (s 52(2)(a)). That refusal could hardly be found by a Court to be unreasonable in the face of the statute. It might be said that from a jurisdictional view that leaves open the prospect of applications to impose a user on such reserves being permitted which are "consistent with the purpose for which the reserve was dedicated" but that is not this application, and, in a more general sense, s 180 would have very limited utility in respect of reserves of this type if so restricted. This consideration too contends against the construction that the applicant advances.

[42] In my view ss 180(8) of the Act precludes the Court making any order in respect of the neighbouring land.

[43] I have mentioned the respondent's submission above. The only further point to make is that the respondent contends that as a matter of fact it cannot be shown in the circumstances that have transpired that it acts unreasonably in refusing the imposition of the obligation sought to be imposed by the applicant.

[44] To assist the applicant in the conduct of his business by permitting his customers and large fuel tankers to use the access way, the respondent says, can in no way be "consistent with the purpose for which the reserve was dedicated". That seems to me to be plainly right. Land dedicated to community purposes, and here historical purposes, is not intended to be used for private business purposes. Private business purposes would seem to be the very antithesis of community purposes. As explained above it is therefore obliged by statute to reject the proposal.

[45] All that the respondent can do is to seek the Minister's consent under s 52(3) to act inconsistently with its obligations. Here it has done that. The respondent has been advised that the application for the imposition of a statutory right of user is opposed.[14] In the circumstances it can do no more.

[46] I cannot see that the Minster's decision would be justicable. There is no hint in the provisions of the Land Act 1994 that it is. As Mr Deaves submitted, the provisions of s 5 of the Act make clear that the Act is subordinate to the provisions of the Land Act 1994 where land under the Land Act is the subject of the application (see s 5(1)(d)(ii) of the Act).

[47] It seems to me that there is no answer to this point. An unreasonable refusal by the respondent is a necessary precondition to the exercise of the discretion given by s 180 of the Act and that cannot presently be established.

[48] While I received no submissions on the point I think it clear that the unreasonableness must be shown as at the date of trial, not now. There is no reason for thinking that there will, or could be, any material change in the meantime. However, the time for making the relevant finding not having yet occurred, I do not base my decision on this point. I merely observe that the existence of a seemingly insurmountable difficulty does not bode well for the applicant.

[49] Mr Arnold urged that given the devastating effect on the applicant if the injunction sought did not issue and the lack of any significant impact on the respondent if it did, at least until the development appeal is heard, then all he need show was a fairly arguable case and the interlocutory injunction sought should be granted. I am not unsympathetic to that argument. This case is not without its difficulties. However I have come to the clear view that although not straight forward, and it might be said that few questions of statutory construction are, the argument the applicant advances cannot succeed. I am not prepared to order that the interlocutory injunction sought issue.

[50] I have previously ordered that until further order an injunction issue restraining the respondent from acting contrary to the terms of a license which permitted the applicant to continue its business. It is necessary to bring that order to an end.

(a) The order made on 24 April 2012 will continue up and until 4pm on Monday 30 April 2012;

[1] (2006) 227 CLR 57; [2006] HCA 46 at [65]- [72]

[2] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-623 per Kitto, Taylor, Menzies and Owen JJ

[4] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] per Gummow and Hayne JJ

[5] (2001) 208 CLR 199 at 217, [10] 231-232 [59]-[60] 241 [91]

[6] (2006) 227 CLR 57; [2006] HCA 46

[7] (2006) 227 CLR 57; [2006] HCA 46 at [54]

[8] See Meahger Gummow & Lehane's Equity Doctrine & Remedies 4th edn at p 773

[9] [1899] AC 258

[10] See Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 at [14] per P McMurdo J

[11] Re Worthston Pty Ltd [1987] 1 Qd R 400

[12] I adopt the history set out in a letter from the Crown Solicitor Ex "D" to the affidavit of Mr Grant filed by leave at the hearing.

[13] And see Gibbs J's confirmation of that finding in Townsville Hospitals Board v Townsville City Council [1982] HCA 48; (1982) 149 CLR 282 at 287.

[14] See the letter from the Crown Solicitor Ex "D" to the affidavit of Mr Grant filed by leave at the hearing.