(1981) 147 CLR 677
Attard v Transport for NSW [2014] NSWLEC 44
(2013) ATC 20-409
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53
(2005) 224 CLR 98
G J Coles & Coy Ltd v Commissioner of Taxation (Cth) [1975] HCA 19
(2013) 205 LGERA 357
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100
Source
Original judgment source is linked above.
Catchwords
(1981) 147 CLR 677
Attard v Transport for NSW [2014] NSWLEC 44(2013) ATC 20-409
CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53(2005) 224 CLR 98
G J Coles & Coy Ltd v Commissioner of Taxation (Cth) [1975] HCA 19(2013) 205 LGERA 357
Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100(2013) 9 ASTLR 460
Kennon v Spry [2008] HCA 56(2008) 238 CLR 366
Lam Kee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247
Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2005] VSC 247(2005) 60 ATR 135
Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2007] VSCA 140(2007) 23 VR 474
Lysaght v Edwards (1876) 2 Ch D 499
Minister for Education and Training v Tanner [2003] NSWCA 164(2003) 128 LGERA 281
Mooliang Pty Ltd v Shoalhaven City Council [2001] NSWLEC 83
Judgment (12 paragraphs)
[1]
West v Roads and Traffic Authority of New South Wales (1995) 88 LGERA 266
Texts Cited: P Butt, Land Law, (6th ed 2010, Lawbook Co)
J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed 2006, LexisNexis Butterworths)
Category: Principal judgment
Parties: Dial A Dump Industries Pty Ltd (Applicant)
Roads and Maritime Services (Respondent)
Representation: Counsel:
Mr I J Hemmings SC with Mr M D Seymour (Applicant)
Mr B W Walker SC with Mr N M Eastman and Mr M J Astill (Respondent)
[2]
Solicitors:
DibbsBarker (Applicant)
Henry Davis York (Respondent)
File Number(s): 30703 of 2015
Publication restriction: No
[3]
The separate question to be determined
Land at St Peters, described as Lot 2 in DP 1168612, having a street address of 10-16 Albert Street, St Peters and known as the Alexandria Landfill ('Lot 2'), was compulsorily acquired, by notice published in New South Wales Government Gazette No 126, 19 December 2014, at 4706 by the WestConnex Delivery Authority ('WCDA') for the WestConnex Motorway.
On the date of publication of the acquisition notice, Lot 2 vested in the WCDA and was "freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land": s 20 of the Land Acquisition (Just Terms Compensation) Act 1991 ('Land Acquisition Act').
Each owner of an interest in Lot 2 which was "divested, extinguished or diminished" by the acquisition notice is entitled to be paid compensation by WCDA: s 37 of the Land Acquisition Act.
At the date of acquisition, Alexandria Landfill Pty Ltd ('ALF') was the registered owner of the estate in fee simple of Lot 2 and Boiling Pty Limited ('Boiling') was the lessee of Lot 2 pursuant to an unregistered lease dated 7 February 2014. Both ALF and Boiling were therefore owners of an interest in Lot 2 that was divested by the acquisition notice.
Dial A Dump Industries Pty Ltd ('DADI') asserted that it had permission to use and occupy Lot 2 to operate a waste landfill and carry out crushing, grinding or separating works on Lot 2.
On 13 March 2015, ALF, Boiling and DADI lodged a combined claim for compensation under s 39 of the Land Acquisition Act. On 22 May 2015, ALF, Boiling and DADI lodged individual claims for compensation under s 39 of the Land Acquisition Act. The WCDA gave the claims to the Valuer General. On 30 July 2015, the Valuer General determined the amount of compensation to be offered to ALF and Boiling, but did not determine an amount of compensation for DADI.
On 4 August 2015, WCDA gave each of ALF and Boiling, as the former owners of the freehold and leasehold interests in Lot 2 respectively, a compensation notice offering the amount of compensation determined by the Valuer General. WCDA did not give a compensation notice under s 42 of the Land Acquisition Act to DADI.
On 14 August 2015, DADI appealed to the Court under s 67(1) of the Land Acquisition Act against WCDA's rejection of DADI's claim for compensation. Subsequently, the Court ordered that the Roads and Maritime Services ('RMS') be substituted for WCDA as the respondent.
On 19 August 2015, WCDA wrote to DADI formally rejecting its claim for compensation on the basis that DADI had not established that it had an interest in the land acquired.
DADI applied for, and the Court ordered on 29 October 2015, the hearing and determination of the separate question of "whether Dial A Dump Industries Pty Ltd had 'an interest in land' as at the acquisition date for the purposes of s 5 of the Land Acquisition Act (Just Terms Compensation) Act 1991, as defined in s 4 of that Act, in, over or in connection with Lot 2 DP 1168612".
The hearing of the separate question was held on 25 February 2016.
[4]
The relevant facts for determining the separate question
As noted earlier, ALF at the date of acquisition was the registered proprietor of Lot 2. ALF had purchased Lot 2 from the City of Sydney Council in January 2002. Around the same time, Environment Protection Licence 4627 ('EPL 4627') was transferred from the Council to ALF. EPL 4627 authorised ALF to carry out the scheduled activities listed as "waste facilities - landfilling" and "waste facilities - solid waste land" on Lot 2. Under Pt 3.2 of the Protection of the Environment Operations Act 1997 ('POEO Act'), a licence is required to carry out a scheduled activity. A scheduled activity is an activity listed in Schedule 1 of the POEO Act. Waste disposal by application to land and the processing of materials by crushing, grinding and separating them are listed as scheduled activities (cll 39 and 16 of Sch 1 respectively). Section 48(2) of the POEO Act provides that:
A person who is the occupier of any premises at which any such scheduled activity is carried on is guilty of an offence, unless the person is, at the time that activity is carried on, the holder of a licence that authorises that activity to be carried on at those premises.
From 2002 to about 2007, according to Mr Biggs who was the General Manager to ALF and its subsidiaries, ALF carried out the scheduled activities of landfilling, transfer and recycling of waste on Lot 2.
On 9 December 2003, a Deed of Settlement was made between the settlor and Boiling. The Deed of Settlement recited that the settlor had paid to Boiling the settled sum ($10), which initially formed the Trust Fund, that Boiling had consented to become the Trustee thereof (Recitals B and C) and that Boiling as trustee would stand possessed of the Trust Fund upon the trusts expressed in the Deed of Settlement (cl 12).
The Trust Fund was "the Settled Sum and all moneys investments and property paid transferred to or accepted by the Trustees as additions to the Trust Fund held by them pursuant to this deed or upon the Trusts in this Deed …" (cl 1).
The name given to the Trust was "DAD Employment Services Trust".
The Trustees did not stand possessed of the Trust Fund in trust for the beneficiaries until the Vesting Day (cl 4(1)). The Vesting Day was the first to occur of three dates: the Distribution Date (30 June 2083); an earlier date appointed by the Trustees as the Vesting Day; or the date of expiration of the Perpetuity Period (the date of death of the last survivor of the descendants of King George VI) (cl 1). None of these dates has yet occurred.
[5]
The applicable statutory provisions
Land may be compulsorily acquired by a notice published in the New South Wales Government Gazette. Section 19(1) of the Land Acquisition Act provides:
An authority of the State that is authorised to acquire land by compulsory process may, with the approval of the Governor, declare, by notice published in the Gazette, that any land described in the notice is acquired by compulsory process.
The publication of the acquisition notice has two effects: the land is vested in the acquiring authority and is freed and discharged from all estates, interest and other rights in the land. Section 20(1) of the Land Acquisition Act provides:
On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act:
(a) vested in the authority of the State acquiring the land, and
(b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land.
Only a person who is "an owner of an interest in land which is divested, extinguished or diminished by an acquisition notice is entitled to be paid compensation" under Pt 3 of the Land Acquisition Act by the acquiring authority: s 37 of the Land Acquisition Act.
The term "interest in land" is defined in s 4(1) of the Land Acquisition Act to mean:
(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.
[6]
DADI's argument that it was the owner of an interest in the land acquired
DADI contended that it had an interest in Lot 2 under both limbs of the definition of "interest in land" in s 4 of the Land Acquisition Act.
DADI asserted that it had an equitable interest in Lot 2 (within par (a) of the definition) because it was a beneficiary of a trust administered by Boiling and had a beneficial interest in the assets of the trust, which included the lease of Lot 2 to Boiling commencing on 1 January 2014. As authority for that submission, DADI relied on the sentence by Emmett JA in Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd [2015] NSWCA 100; (2015) 89 NSWLR 237 at [99] that:
Clearly enough, where one person holds land on trust for another, that other person would be regarded as having an equitable interest in that land.
DADI also submitted that beneficiaries of a trust have a right to compel due administration of the trust and that this right is itself a right of property, citing Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366 at [74], [75], [78]-[80], [125] and [126] and Jonsue Investments Pty Ltd v Balweb Pty Ltd [2013] NSWSC 325; (2013) 9 ASTLR 460 at [44]. DADI submitted that Boiling owed fiduciary duties to DADI to ensure that its actions did not conflict with those of DADI: Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd [2013] NSWSC 1755 at [55]. DADI submitted that these actionable rights to enforce equitable duties gave DADI an equitable interest in land for the purposes of the Land Acquisition Act, citing Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd at [96]-[97], [102] and [107].
DADI asserted that it had a legal interest in Lot 2 (within par (a) of the definition) because ALF, as the registered proprietor, and Boiling, as lessee, "actively encouraged and allowed" DADI to occupy Lot 2 for the purposes of conducting the waste facility business on the land. This was done by ALF and Boiling passing corporate resolutions granting permission for DADI to occupy Lot 2. DADI submitted that this amounted to the grant of a legal interest to DADI by the corporations that were empowered to create interests in Lot 2. A right of occupation of land to carry out an activity under permission from an owner of land is a legal or equitable estate or interest in land for the purposes of par (a) of the definition of interest in land, citing George D Angus Pty Ltd v Health Administration Corporation [2013] NSWLEC 212; (2013) 205 LGERA 357 at [127].
[7]
RMS' argument that DADI was not the owner of an interest in the land acquired
RMS contested each of the three bases on which DADI asserted that it had an interest in land.
RMS submitted that DADI did not have any equitable interest in land (falling within par (a) of the definition) deriving from being a potential beneficiary of the Dial A Dump Industries Trust. RMS submitted that DADI was not a beneficiary of the Dial A Dump Industries Trust and had no beneficial interest in the Trust Fund or any individual asset of the Trust Fund, including the lease of Lot 2. This was because the Dial A Dump Industries Trust was a discretionary trust.
RMS relied on the summary of the position of a so called "beneficiary" under a discretionary trust given by Justice Brereton (extra-curially) and adopted by Pembroke J in Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd at [53]:
Thus, a discretionary trust does not have beneficiaries in the traditional sense, whose interests together aggregate the beneficial ownership of the trust property. Instead, there is a class of persons, usually described in wide terms, who are the objects of a power to appoint either income or corpus or both to selected members of the class. The members of the class are objects of a power, rather than beneficiaries in the strict sense. They do not have a proprietary legal or equitable interest in the trust fund. They have no beneficial interest in the trust property, and they are not persons for whose benefit the trust property is held by the trustee; at the highest they are members of a class of persons for the benefit of some one or more of whom the trustee may in due course hold property if it so determines. At best, they are potential beneficiaries, not beneficiaries. In terms accepted by French CJ in Spry, no object of such a trust has any fixed or vested entitlement, and the trustee is not obliged to distribute to anyone; the default distribution gives the default beneficiary no more than a contingent remainder. (emphasis added in the judgment)
At the date of acquisition of Lot 2, Boiling as trustee had not appointed any of the corpus or the income of the Trust Fund, including any individual assets such as the lease of Lot 2, to any selected person, including DADI. Hence, at the date of acquisition, DADI had no beneficial interest in the Trust Fund or any individual asset of it, including the lease of Lot 2.
[8]
DADI did not have an equitable interest in the land acquired
DADI has not established that it had an equitable interest in Lot 2, within par (a) of the definition of "interest in land", flowing from any rights DADI had in relation to the Dial A Dump Industries Trust.
First, DADI did not have any equitable interest in the lease of Lot 2. I note at the outset that it was not established that the lease of Lot 2 from ALF to Boiling commencing 1 January 2014, which was on foot at the date of acquisition of Lot 2, was in fact part of the Trust Fund of the Dial A Dump Industries Trust at the date of acquisition. The only resolution relied on by DADI was the resolution at the meeting of the directors of Boiling on 30 June 2008 "that all leases … formerly held by the Trust … shall forthwith be held upon trust for" DADI. The only lease answering this description at that time was the lease of Lot 2 from ALF to Boiling commencing 1 July 2007. The note in the minutes of the meeting of ALF on 30 June 2008 likewise referred to the intention that the Dial A Dump Industries Trust would hold "the lease of the premises on trust for Dial A Dump Industries Pty Ltd". The lease referred to presumably was the lease commencing 1 July 2007. There was no later resolution of Boiling accepting the lease of Lot 2 from ALF to Boiling commencing 1 January 2014 as an addition to the Trust Fund of the Dial A Dump Industries Trust.
However, even assuming that the lease of Lot 2 commencing 1 January 2014 had become part of the Trust Fund at the date of acquisition of Lot 2, DADI did not have any beneficial interest in that lease or any other trust property. As at the date of acquisition of Lot 2, Boiling as trustee had not appointed any of the corpus of the trust to any person. None of the dates that could constitute the Vesting Day had occurred. Only from the Vesting Day did Boiling as trustee stand possessed of the Trust Fund in trust for the beneficiaries (see cl 4(1)).
Indeed, it was inapt to refer to DADI and ALF as "beneficiaries" of the Dial A Dump Industries Trust, insofar as it suggests the existence of any vested beneficial interest in the assets held in trust under the Deed of Settlement: Kennon v Spry at [125]; Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd at [53]. The Dial A Dump Industries Trust may be described as a discretionary trust. As Justice Brereton stated in the speech adopted by Pembroke J in Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd at [53]:
Thus, a discretionary trust does not have beneficiaries in the traditional sense, whose interests together aggregate the beneficial ownership of the trust property. Instead, there is a class of persons, usually described in wide terms, who are the objects of a power to appoint either income or corpus or both to selected members of the class. The members of the class are objects of a power, rather than beneficiaries in the strict sense. They do not have a proprietary legal or equitable interest in the trust fund. They have no beneficial interest in the trust property, and they are not persons for whose benefit the trust property is held by the trustee; at the highest they are members of a class of persons for the benefit of some one or more of whom the trustee may in due course hold property if it so determines. At best, they are potential beneficiaries, not beneficiaries.
See also J D Heydon and M J Leeming, Jacobs' Law of Trusts in Australia (7th ed 2006, LexisNexis Butterworths) at 47 [314] and 632 [2315].
[9]
DADI did not have a legal interest in the land acquired
DADI has not established that, at the date of acquisition of Lot 2, it had any legal interest in Lot 2, within par (a) of the definition of "interest in land", flowing from any permission for DADI to occupy Lot 2 to carry out commercial operations. There are two problems, one factual and one legal. The factual problem is that DADI has not established who granted any permission to DADI to occupy Lot 2, how any permission was granted or what were the terms of any permission that was granted. The legal problem is that whatever be the permission that was granted to DADI, it did not give DADI a legal interest in land. Any permission to occupy Lot 2 was purely personal and did not give rise to DADI having any proprietary interest in Lot 2.
DADI asserted that permission to occupy Lot 2 was given by both Boiling and ALF and that this permission gave DADI a legal interest. However, the evidence does not establish that either Boiling or ALF expressly or impliedly granted DADI a legal interest in Lot 2. In order for DADI to have been given a legal interest in Lot 2, DADI needed to have been given the legal right to exclusive possession of Lot 2. The evidence does not establish that Boiling or ALF granted DADI the right to exclusive possession of Lot 2. I will start with Boiling.
Boiling was the lessee of Lot 2, first under the lease commencing 1 July 2007 and then under the lease commencing 1 January 2014. Each lease gave Boiling the right to exclusive possession of Lot 2 and an interest in the land (the leased premises). At common law, a lessee has the right to assign, sublet or otherwise dispose of an interest in the whole or any part of the lease: G J Coles & Coy Ltd v Commissioner of Taxation (Cth) [1975] HCA 19; (1975) 132 CLR 242 at 252; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677 at 683. However, the lease may contain a covenant against assigning, subletting, sharing or parting with possession of the whole or any part of the leased premises.
In this case, both leases contained such a covenant, although they were in different terms (see cl 27.1 of the 2007 lease and cl 10.7 of the 2014 lease). Did Boiling ever exercise its right as lessee to assign, sublet or otherwise part with possession of Lot 2 to DADI and if so, did it comply with the covenant under each lease?
[10]
DADI did not have a right, power or privilege in the land acquired
DADI has not established that it had, at the date of acquisition of Lot 2, any right, power or privilege over or in connection with Lot 2, within par (b) of the definition of "interest in land", flowing from any permission to carry on commercial operations on Lot 2 or the environment protection licences held by ALF and Boiling. I will start with the permission to carry on the commercial operations on Lot 2.
For the reasons I have given earlier, DADI has not established that any permission Boiling or ALF or both might have given to DADI to use and occupy Lot 2 gave DADI any legal interest in Lot 2 or caused Boiling to part with possession of Lot 2. Any permission was personal and did not give rise to a proprietary interest in Lot 2. Was that permission to use and occupy Lot 2, however, a "right", "power" or "privilege" over or in connection with Lot 2 within par (b) of the definition of "interest in land"? I do not consider that it was, for at least five reasons.
First, the rights that fall within par (b) of the definition of "interest in land" need to be rights in the property of another that are of a proprietary or quasi-proprietary nature. The permission that DADI had to occupy Lot 2 to carry on commercial operations was not a right in Lot 2 of a proprietary or quasi-proprietary nature.
Meagher JA in Hornsby Council v Roads and Traffic Authority of New South Wales at 155 held that:
Whilst the rights which fall within par (b) must be wider than the rights which fall with 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 and Powell JA agreed with Meagher JA. Mason P added (and Powell JA agreed) at 152:
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.
[11]
Conclusion and orders
DADI has not established that it was the owner of any interest in land which was divested, extinguished or diminished by the acquisition notice by which Lot 2 was acquired. The separate question should therefore be answered in the negative. This answer is dispositive of the proceedings. They should therefore be dismissed.
The parties submitted that costs of the motion for the separate question should follow the event. The parties did not, however, make any submissions as to the costs order that should be made if the proceedings are dismissed because DADI did not have an interest in land and is not entitled to compensation. I will therefore reserve the question of the costs of the proceedings. If any party seeks an order for costs, it should apply within 14 days for the question of costs to be listed before me for hearing.
I order:
1. The answer to the separate question of "whether Dial A Dump Industries Pty Ltd had an 'interest in land' as at the acquisition date for the purposes of s 5 of the Land Acquisition (Just Terms Compensation) Act 1991, as defined in s 4 of that Act, in, over or in connection with Lot 2 DP 1168612" is no.
2. The proceedings are dismissed.
3. The applicant should pay the respondent's costs of the motion for the separate question.
4. The question of the costs of the proceedings is reserved.
[12]
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: 08 April 2016
A "Beneficiary" was "any of the General Beneficiaries in existence or living at any time or from time to time up to and including the Vesting Day" (cl 1). Under the Deed of Settlement, the General Beneficiaries included the children of Mr Malouf (and their relatives) (cl 1 and Sch 1). Mr Malouf, was amongst other things, a director of ALF. The Trustees had power, with the written consent of the Appointer (who was Mr Malouf), at any time or times before the Vesting Day, to nominate any individuals or corporations to be General Beneficiaries (cl 44(1)). On 11 April 2006, Boiling, with the consent of Mr Malouf, nominated ALF and "Dial A Dump Pty Ltd" as General Beneficiaries. On 1 September 2011, Boiling with the consent of Mr Malouf resolved to remove all of the General Beneficiaries except for ALF and any of its controlled entities, which included DADI.
Although the corpus did not vest before the Vesting Day, the Deed of Settlement nevertheless conferred upon Boiling as trustee extensive powers of dealing with the corpus and the income of the Trust Fund before the Vesting Day. Prior to the Vesting Day the Trustees could apply or set aside any part of the net income of the Trust Fund for any of the General Beneficiaries or accumulate the same (cl 3(1)). The Trustees had powers of advancement including to "allow any Beneficiary to occupy have custody of or use any moveable or immovable property for the time being or forming part of the Trust Fund on such terms or conditions … as the Trustees shall think fit" (cl 6(6)). Another of the powers of advancement was that the Trustees could "convey or transfer the whole or any part of the Trust Fund or, out of the capital and/or income of the Trust Fund …" pay any sum to any Beneficiary (cl 6(1)).
The Trustees had a wide power of sale. Clause 8 of the Deed of Settlement provided:
The Trustees shall have power in their absolute discretion and from time to time and at any time or times but without creating a Perpetuity to sell transpose exchange or vary any or all of the investments and assets comprised from time to time in the Trust Fund and to reinvest the monies arising from such sale in the investments authorised for the purpose or otherwise apply the same under the powers given to the Trustees under this deed.
The Trustees had a wide power of investment of the assets of the Trust Fund (cl 9). The Trustees also had other powers relating to assets included in the Trust Fund, including powers (to be exercised or not in the Trustees' absolute discretion) to sell the assets; change or vary the assets; transfer, convey, surrender, let, lease, exchange, take and grant options over or rights in or otherwise deal with any moveable or immoveable property; and partition or subdivide any moveable or immoveable property (cll 10(1), (2), (3), (4)). The Trustees had additional powers as to land forming part of the Trust Fund, including powers to lease or sell the land (cll 11(1), (2)).
From 1 January 2004, the employees who had been working for ALF on Lot 2 became employees of Boiling as the trustee for the Trust. Boiling invoiced ALF for the employment costs, which were paid by ALF.
On 28 September 2006, the Land and Environment Court upheld an appeal and granted development consent for ALF to use land for "waste transfer, recycling and resource recovery …". The land was described as having a street address of 10-16 Albert Street, St Peters and a title description of Lot 11 in DP 1013168 and Lot 100 in DP 845651. However, ALF and DADI proceeded on the basis that the land was the land acquired, namely Lot 2. Condition 1.2 of the consent provided that the development the subject of the consent was limited to a period of 5 years from the date of the consent (28 September 2006), although an extension of time could be sought.
On 10 November 2006, ALF registered the business name of "Dial A Dump Industries". ALF remained the current holder of that business name at the date of acquisition of Lot 2.
On 13 June 2007, Boiling resolved to change the name of the trust from DAD Employment Services Trust to "Dial A Dump Industries Trust".
Also on 13 June 2007, ALF resolved to grant a lease of Lot 2 to "'Dial A Dump Industries Trust' formerly known as DEST for the purposes of carrying on waste collection disposal and recycling activities on a commercial basis".
The lease of Lot 2 was in fact granted by ALF to Boiling, commencing on 1 July 2007 for a term of 6 months but with an option to renew for a period of 5 years. Clause 27.1 of the lease provided:
Clause 10 of Annexure B is deleted in its entirety. The Tenant may assign, sublet, licence or otherwise part with possession of all or any part of the Leased Premises without obtaining the Landlord's consent provided such assignees, sub lessees and licensees are related businesses of the Tenant. The Tenant shall notify the Landlord upon granting a sublease or licence of this nature. In all other circumstances where the Tenant requests to have this Lease assigned, subleased, licensed or otherwise part with possession of all or part of the Leased Premises, the Landlord's consent is required but such consent may not be withheld unreasonably.
The lease was never registered.
On 21 June 2007, the single environment protection licence that ALF had held until then, authorising the carrying on of the scheduled activities on Lot 2, was split between ALF and Boiling. ALF continued to be the holder of EPL 4627, authorising the carrying on of the scheduled activities listed as "waste facilities - landfilling" and "waste facilities - solid waste land". The re-issued EPL 4627 said that it applied to the "Alexandria Landfill" at "10 Albert Street, St Peters" but described the title of the land as "Lot 11 DP 1013168". Notwithstanding this title description, ALF and DADI have proceeded on the basis that EPL 4627 did apply to the land acquired, known as Lot 2.
A separate environment protection licence, EPL 12594, was issued to Boiling authorising the carrying on of the scheduled activities of "crushing, grinding or separating works" and "waste facilities - store/transfer/sep[arate]". EPL 12594 said that it applied to the "Alexandria Recycling Centre" at "10-16 Albert Street, St Peters" but described the title on the land as being part of "Lot 11 DP 1013168 and Lot 100 DP 84165". Again, Boiling and DADI have proceeded on the basis that EPL 12594 did apply to the land acquired, known as Lot 2. EPL 12594 operated subject to the development consent granted by the Court on 28 September 2006, which was limited to a period of 5 years from the date of the consent (condition A5.1 of EPL 12594).
In the period 1 July 2007 to 30 June 2008, ALF, as the owner of Lot 2 and the holder of EPL 4627, carried on the scheduled activity of landfilling on Lot 2 and Boiling, as the lessee of Lot 2 and holder of EPL 12594, carried on the scheduled activities of waste collection and recycling on Lot 2.
On 1 July 2007, Mr Malouf agreed to permit and to license Boiling (as trustee for Dial A Dump Industries Trust), pursuant to a licence agreement, to use the trademark name "Dial A Dump" owned by Mr Malouf in connection with Boiling carrying on "the business of rubbish removal, plant hire and skip bin services".
On 22 May 2008, ALF resolved to authorise the formation of a wholly owned company limited by shares to be called "Dial A Dump Industries Pty Ltd" ('DADI') and that, when formed, DADI should enter into an agreement with Mr Malouf to use the trademark name of "Dial A Dump" owned by Mr Malouf. DADI was in fact formed on 12 June 2008.
On 30 June 2008, ALF noted in the minutes of a meeting of the sole member of the company (Mr Malouf) on that day that:
3. Dial A Dump Industries Trust the holder of the environment protection licence 12594 will cease commercial operations of recycling, waste transfer and collections carried on under the name of Dial A Dump Industries Trust with immediate effect.
4. Dial A Dump Industries Pty Ltd will commence commercial operations of landfilling, recycling, waste transfer and collections which it will carry on under the name of Dial A Dump Industries Pty Ltd. This will be done for and on behalf of the Alexandria Landfill Consolidated tax group with effect from 1st July 2008. Monies collected by Dial A Dump Industries Trust relating to activities before it commenced business will be accounted for to Dial A Dump Industries Trust.
5. NSW EPA has advised that it requires different corporate entities to hold the environment protection licences when there are two separate activities on the one site and that the holder of an environment protection licence must also demonstrate that it exercises control over premises. Licence 12594 will remain with Boiling as trustee for Dial A Dump Industries Trust and the Trust will hold the licence and the lease of the premises on trust for Dial A Dump Industries Pty Ltd.
6. Dial A Dump Industries Pty Ltd will operate the waste facility at 9-16 Albert Street, St Peters on behalf of the Alexandria landfill group and the group will adopt new consolidated accounting practices to be set up within the new AX computer system. Each different activity will be identified as an accounting division within Dial A Dump Pty Ltd and it will account for all waste revenues and expenses on behalf of the Group.
7. All invoicing for the group is to be shown as by Dial A Dump Industries Pty Ltd and the documentation must be amended to reflect the separate ABN.
The directors of Boiling (Mr and Mrs Malouf) also met on 30 June 2008 and passed resolutions on three topics: the cessation of business of Boiling, the nomination of an additional beneficiary of the Trust and the trust property.
In relation to the first topic, the minutes record that Mr Malouf gave notice of his intention to terminate the User Agreement dated 1 July 2007 permitting use of the trade mark "Dial A Dump" and Boiling resolved to accept the termination. Boiling resolved that, with effect from midnight on 30 June 2008, Boiling in its capacity as trustee of Dial A Dump Industries Trust would cease all direct commercial activities in which it had been formerly engaged.
In relation to the second topic, Boiling resolved "to acknowledge" that DADI would be an eligible beneficiary of the Trust.
In relation to the third topic, Boiling resolved that "all leases, licences, loans, choses in action, interests in land formerly held by the Trust in connection with its commercial operation of collecting, receiving, transporting, recycling, selling or landfilling of waste [but excluding monies due to the Trust before midnight 30th June 2008] shall forthwith be held upon trust for Dial A Dump Industries Pty Ltd".
On 1 July 2008, a user agreement was made between Mr Malouf and DADI permitting DADI to use the trademark "Dial A Dump" in connection with "the business of a rubbish removal, plant hire and skip bin services".
From 1 July 2008, the trucks and bins from the waste collection business were sold to DADI who paid for them with funds provided by ALF.
Mr Biggs said that DADI commenced operating the waste collection, landfilling, waste transfer and waste recycling activities on Lot 2 from 1 July 2008.
On 1 August 2008, DADI wrote to customers of the businesses of ALF and Boiling as trustee of the Dial A Dump Industries Trust advising that "we have now merged these two operations and your ongoing account relationship with these two companies has now been assigned and transferred to" DADI. DADI thereafter did invoice customers under its name.
DADI also paid certain expenses of ALF and Boiling. For example, DADI paid the landfill levies required to be paid under the environment protection licences held by ALF and Boiling to the Environment Protection Authority ('EPA'). DADI also paid the fees of a consultant who undertook volumetric surveys of the Alexandria Landfill for reporting to the EPA as required under the environment protection licences as well as consultant fees for environmental management and groundwater and leachate monitoring and management on Lot 2 as required under the environment protection licences.
DADI did not have any employees to carry out its business but instead Boiling made available its employees to DADI and billed DADI for the employment costs. DADI paid these invoices. DADI also paid the invoices of utilities billed to ALF, such as the electricity and water supplied to the Alexandria Landfill.
Mr Biggs said that, on or about 1 September 2011, the class of beneficiaries under the Dial A Dump Industries Trust was confined to be only ALF and its wholly owned subsidiaries, which included DADI.
On 1 January 2014, ALF granted a new lease of Lot 2 to Boiling for a one year term with an option to renew. Again the lease was not registered.
Clause 3 of Annexure A to the lease acknowledged that the lessor (ALF) was the licence holder of EPL 4627, which authorised landfilling on the property, and the lessee (Boiling) was the licence holder of EPL 12594, which authorised resource recovery on the property.
Annexure B to the lease was in the form for a retail lease. Clause 5 of Annexure A provided that "any reference in this lease to the Retail Leases Act 1994 or 'retail shop' is deleted. This deletion includes but is not limited to the Retail Lease Certificate on Page 1 of Annexure B". Clause 10 of Annexure B dealt with the transfer and sublease of the lease. Clause 10.7 provided:
Where the property is a retail shop, the lessee can sub-let, grant a licence or concession, share or part with the possession of the whole or any part of the property or mortgage or otherwise charge or encumber the lessee's estate or interest in this lease only with the written consent of the lessor which can be refused in the lessor's absolute discretion. Otherwise, the lessee cannot do any of these things.
There was no formal written consent of ALF as lessor under cl 10.7 of the lease to Boiling subletting, granting a licence or concession, sharing or parting with possession of Lot 2, including to DADI. The resolution of ALF of 30 June 2008 permitting DADI to carry on commercial operations on Lot 2 predated the lease, which did not commence until 1 January 2014.
DADI asserted that it had a right, power or privilege over, or in connection with, Lot 2 (within par (b)) of the definition) because of the permission for it to be on Lot 2 granted by ALF and Boiling, which facilitated the right and privilege of carrying on the waste facility business, and the permission for it to use EPL 4627 and EPL 12594 granted by ALF and Boiling respectively, by which DADI had the privilege of engaging in what would otherwise be prohibited activity under the POEO Act.
As authority for the proposition that a non-enforceable arrangement for non-exclusive possession gives a person an interest in land within par (b) of the definition of interest in land, DADI relied on the decision of Pain J in Bradfield v Roads and Maritime Services [2015] NSWLEC 203 at [38], [43] and [44] (although noting that the decision is subject to a pending appeal).
DADI submitted that, with the exception of the two decisions of Hornsby Council v Roads and Traffic Authority of New South Wales (1997) 41 NSWLR 151 and Jax Franchising Systems Pty Ltd v State Rail Authority (New South Wales) [2003] NSWLEC 397, other decisions have found that various arrangements for access to and use and occupation of land are interests in land: see West v Roads and Traffic Authority of New South Wales (1995) 88 LGERA 266; Peter Croke Holdings Pty Ltd v Roads and Traffic Authority of NSW (1998) 101 LGERA 30; Mooliang Pty Ltd v Shoalhaven City Council [2001] NSWLEC 83; (2001) 114 LGERA 45; Minister for Education and Training v Tanner [2003] NSWCA 164; (2003) 128 LGERA 281; Rakus v Energy Australia [2004] NSWLEC 657; (2004) 138 LGERA 373; and George D Angus Pty Ltd v Health Administration Corporation.
DADI asserted that the limitation read into the words of par (b) of the definition of "interest in land" by the Court of Appeal in Hornsby Council v Roads and Traffic Authority of New South Wales, that the rights falling within par (b) "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" (at 155), has not been followed in later decisions and has been confined to its facts, notably Minister for Education and Training v Tanner (at [11]). DADI contended that the rights falling within par (b) of the definition can be wider than proprietary or quasi-proprietary rights, and in particular can include the permission granted by ALF and Boiling for DADI to carry out the waste facility business on Lot 2.
RMS accepted that DADI, as an object of a power of appointment by Boiling as trustee, had a right to enforce the proper administration of the Dial A Dump Industries Trust and that such a right could itself be a form of property. But this right to compel due administration of the Trust did not give DADI any interest in the individual assets of the Trust and, in particular, any interest in land, including the lease of Lot 2, which might form part of the Trust Fund. DADI, therefore, did not derive any "interest in land" from its right to compel due administration of the Trust.
RMS submitted that DADI had misconstrued and taken out of context Emmett JA's statement in Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd. That case concerned the interest of a purchaser who had entered a contract for sale of land but, before the contract had proceeded to completion, the land was resumed. Emmett JA noted that "the relationship between the vendor and purchaser at the moment of entry into a valid contract for sale has in the past been described in the terms of a trust … 'the vendor becomes in equity a trustee for the purchaser of the estate sold'" (at [98]) quoting Lysaght v Edwards (1876) 2 Ch D 499 at 506. In this context, Emmett JA made the statement that "where one person holds land on trust for another, that other person would be regarded as having an equitable interest in that land" (at [99]). Emmett JA was not referring to a discretionary trust or making any statement about a trustee of a discretionary trust holding trust property prior to appointment on trust for any selected individual.
RMS also distinguished Jonsue Investments Pty Ltd v Balweb Pty Ltd as it concerned a unit trust, not a discretionary trust as is the Dial A Dump Industries Trust in this case, and the express terms of the Trust Deed creating the unit trust gave the unit holders a beneficial interest in the Trust Fund, while the Deed of Settlement creating the Dial A Dump Industries Trust gave no beneficial interest in the corpus or interest of the Trust Fund until appointment by the Trustees.
RMS submitted that DADI did not have any legal interest in land (falling within par (a) of the definition) flowing from ALF and Boiling permitting DADI to occupy Lot 2 to carry on a waste facility business. RMS submitted that any permission to occupy Lot 2 that ALF or Boiling may have given to DADI was legally ineffective to grant an interest in land. As at the date of acquisition, ALF had granted a lease, commencing on 1 January 2014, giving exclusive possession of Lot 2 to Boiling. ALF held a reversionary interest in Lot 2 and, pursuant to the terms of the lease, was in no position to "permit or actively encourage" DADI to occupy Lot 2.
Boiling's power to create any interest in Lot 2 was subject to the terms of the lease. Under cl 10.7 of the lease commencing on 1 January 2014, Boiling could only sublet, grant a licence or concession, share or part with possession of Lot 2 with the written consent of ALF. Boiling never sought and ALF never granted written consent to Boiling permitting DADI to have possession of Lot 2.
Hence, neither ALF nor Boiling had granted a legally effective permission to DADI to occupy Lot 2.
RMS submitted that merely permitting a person to enter land to carry out a business on the land does not make that person the "owner" of an "interest in land". RMS cited, by analogy, the decision of CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072; (2013) ATC 20-409 holding that the operator of the Cross City Tunnel who had the right to levy and keep tolls and carry on a substantial business and operation in connection with the Cross City Tunnel, did not have an interest in land.
RMS distinguished George D Angus Pty Ltd v Health Administration Corporation in that there the Court found that there was a statutory tenancy at will under s 127(1) of the Conveyancing Act 1991 between the landholder and the service company. In this case, there was no tenancy at will. There was no agreement as to tenancy, no rent agreed or paid, and no terms of tenancy agreed.
RMS submitted that DADI did not have any right, power or privilege over or in connection with Lot 2 (falling within par (b) of the definition) flowing from either the permission to be on Lot 2 or the use of the environment protection licences under permission from ALF and Boiling.
As to the permission to occupy Lot 2, RMS reiterated that any purported grant of permission to DADI to occupy Lot 2 was not legally effective and did not give rise to any right, power or privilege over or in connection with Lot 2.
RMS submitted that the rights referred to in par (b) of the definition of "interest in land" are limited to rights in the property of another, "proprietary or quasi-proprietary rights less than a fully-fledged estate", as held in Hornsby Council v Roads and Traffic Authority of New South Wales at 155. This is supported by the nature of the rights specified in par (b), such as an easement. As Mason P observed in Hornsby Council v Roads and Traffic Authority of New South Wales, part of the context in which the words in par (b) of the definition of "interest in land" need to be construed "is the colour which each part of the overlapping definition takes from its associates": at 152.
RMS submitted that each of the rights specified in par (b) has to be understood in terms of the word at the end of the collocation, namely, "land". It is not sufficient for something to be able to be categorised as a "right" or "power" or "privilege"; it has to be one over or in connection with "the land". This necessary connection to land creates the requirement for the right, power or privilege to be "proprietary or quasi-proprietary" (in real property terms).
RMS submitted that the right, power or privilege within par (b) of the definition of "interest in land" needs also to be one that is capable of being owned. The definition of "interest in land" needs to be constructed in the context of the substantive statutory provisions in which the definition is to be used. Part of that context is s 37 of the Land Acquisition Act, which only entitles a person who is "an owner of an interest in land" that is divested, extinguished or diminished to be paid compensation (see again Mason P in Hornsby Council v Roads and Traffic Authority of New South Wales at 152). Similarly, s 12 of the Land Acquisition Act requires the giving of a land acquisition notice to persons who are "owners of the land". RMS submitted that a person who has only a bare permission to enter and occupy land to carry on a business on the land does not have any right, power or privilege of a proprietary or quasi-proprietary nature in relation to the land. The bare permission is personal but not proprietary. The bare permission is not capable of ownership. It makes no sense to speak of a person who occupies land under a bare permission as being the owner of the permission.
As to the environment protection licences, RMS submitted, first, that it is not clear that DADI was given any permission to use the environment protection licences held by ALF and Boiling. There is no resolution of ALF granting DADI permission to use EPL 4627, the environment protection licence of which ALF was the holder. The minutes of the meeting of ALF on 30 June 2008 note that the Dial A Dump Industries Trust is the "holder of the environment protection licence 12594" and that "Licence 12594 will remain with Boiling as trustee for Dial A Dump Industries Trust and the Trust will hold the licence and the lease of the premises on trust for" DADI. No mention is made of EPL 4627 that was held by ALF. This note about EPL 12594 cannot be a declaration of trust because ALF was not the holder of that environment protection licence and hence was in no position to make a declaration of trust in relation to that licence.
The only resolution of Boiling of potential relevance is the resolution of 30 June 2008 that "all leases, licences, loans, choses in action, interests in land formerly held by the Trust in connection with its commercial operation of collecting, receiving, transporting, recycling, selling or landfilling of waste … shall forthwith be held upon trust for" DADI. RMS submitted that it was not clear that the reference in this resolution to "licences" includes any environment protection licence. But in any event, RMS submitted that an environment protection licence is incapable of being held for another person. An environment protection licence is personal: it authorises the holder to carry out scheduled activity on the land and thereby avoid committing an offence against s 48 of the POEO Act. The statutory scheme has a fit and proper person test for a holder of an environment protection licence: see ss 83, 45 and 79 of the POEO Act. This also emphasises the personal nature of an environment protection licence. Hence, RMS submitted, Boiling could not lawfully declare that it held EPL 12594 in trust for DADI. Boiling's resolution of 30 June 2008, in so far as it purported to make a declaration of trust in relation to EPL 12594, was therefore legally ineffective.
Secondly, RMS submitted that if Boiling's declaration of trust was effective to cause Boiling to hold EPL 12594 on trust for DADI, this still would not relieve DADI from the need itself to hold an EPL to carry out scheduled activities on Lot 2. Section 48 of the POEO Act would still require DADI as the occupier of Lot 2 on which scheduled activities are being carried out to be the holder of a licence authorising those activities to be carried out on Lot 2. Insofar as DADI was carrying out scheduled activities on Lot 2 without being the holder of an environment protection licence, it committed an offence. RMS submitted that the State should not be required to compensate a person in respect of unlawful activities that come to an end through an acquisition; citing Attard v Transport for NSW [2014] NSWLEC 44; (2014) 205 LGERA 396 at [183].
Thirdly, RMS submitted that, even if DADI was permitted by ALF and Boiling, who were the holders of the environment protection licences, to carry out on Lot 2 the scheduled activities authorised by the environment protection licences, this arrangement did not mean that DADI became an owner of any interest in Lot 2. This arrangement placed DADI in no different position from any other contractor who may enter land where the occupier carries out a scheduled activity under the authority of an environment protection licence, to carry out work on the land. The contractor does not need to obtain their own environment protection licence and may rely on the occupier's environment protection licence. This arrangement does not mean that the contractor becomes an owner of an interest in the land.
Fourthly, RMS submitted that Bradfield v Roads and Maritime Services was wrongly decided and ought not to be followed. RMS noted that it is subject to appeal to the Court of Appeal. RMS submitted that the judge was wrong to conclude, on the factual findings made, that the arrangement between the mother and son in that case amounted to something more than a bare licence (at [36]).
Accordingly, DADI, as the object of a bare power of appointment out of assets of the Dial A Dump Industries Trust, had no proprietary interest in those assets, but only a mere expectancy or hope that one day the power would be exercised in DADI's favour: Kennon v Spry at [160]; Brady Street Developments Pty Ltd v M E Asset Investments Pty Ltd at [54] and Gartside v Inland Revenue Commissioners [1968] AC 553 at 607, 613, 618.
The nature of this "interest" of DADI, as an object of a bare power of appointment, made it incapable of assignment to a third party. The lack of assignability of this interest of a bare power of appointment points against it being a proprietary interest: Kennon v Spry at [160] and [162] per Heydon J (dissenting in result that the property of the trust was the property of the parties to the marriage within the relevant provisions of the Family Law Act 1975 (Cth) but not on this point of principle).
Accordingly, DADI at the date of acquisition of Lot 2 did not hold any beneficial interest in the whole or any part of the Trust Fund of Dial A Dump Industries Trust, including in the lease of Lot 2, and therefore could not have had any equitable interest in land on this basis.
I agree with and adopt RMS' submission that DADI has misconstrued and taken out of context the sentence of Emmett JA in Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd. That statement is not authority that an object of a power of appointment under a discretionary trust is a "beneficiary" or has a "beneficial interest" in the trust property.
DADI also sought to establish that it had an equitable interest in land by reason of its right to enforce the due administration of the Dial A Dump Industries Trust. It is true that DADI, as an object of the power of appointment, had a right to enforce the proper administration of the Trust by Boiling as the trustee: see, for example, Gartside v Inland Revenue Commissioners at 617-618; Spellson v George (1987) 11 NSWLR 300 at 316; Kennon v Spry at [74]-[78] and [125] and Jacobs' Law of Trusts in Australia at 632 [2315]. This would have extended to having the trust property, including the lease of Lot 2 if it was part of the Trust Fund, properly managed by Boiling. However, the availability of an equitable remedy in relation to trust property does not confer an interest in any part of the trust property. The equitable right of a person who is an object of the power of appointment against the trustee does not depend on, and does not give rise to, that person having any beneficial interest in the whole or any part of the trust property: Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 at 729; CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) [2005] HCA 53; (2005) 224 CLR 98 at [17]; Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2005] VSC 247; (2005) 60 ATR 135 at [53], [58] affirmed by Lygon Nominees Pty Ltd v Commissioner of State Revenue (Vic) [2007] VSCA 140; (2007) 23 VR 474 at [71], [75]-[78]; Kennon v Spry at [125].
Accordingly, DADI did not have an equitable interest in Lot 2 by reason of any rights to enforce the proper administration of the Dial A Dump Industries Trust.
Boiling at its meeting of directors on 30 June 2008 noted the incorporation of DADI as a wholly owned and controlled subsidiary of ALF and that DADI would become an eligible beneficiary of the Dial A Dump Industries Trust. Boiling resolved that "… all leases … formerly held by the Trust in connection with its commercial operation of collection, receiving, transporting, recycling, selling or landfilling of waste … shall forthwith be held on trust" for DADI. One of the leases that arguably might have fallen within the class of leases formerly held by the Trust was the lease of Lot 2 commencing 1 July 2007. This lease was granted to Boiling but it was assumed that Boiling held that lease in its capacity as trustee of the Dial A Dump Industries Trust.
Boiling's resolution on 30 June 2008 that this lease was thereafter to be held by Boiling in trust for DADI did not of itself assign, sublet or otherwise part with possession of all of any part of the leased premises of Lot 2 to DADI. There is no evidence that Boiling subsequently entered into any agreement with DADI to assign the lease, sublease or otherwise part with possession of Lot 2 to DADI. There is no written agreement or other instrument in writing that assigns, sublets or parts with possession of Lot 2 to DADI. There is also no evidence of any oral agreement between Boiling and DADI, including any agreement on the terms of any sublease or right to possession of Lot 2, such as commencing date, duration, rent or rights and obligations of Boiling and DADI respectively.
On the evidence, Boiling never complied with cl 27.1 of the lease commencing 1 July 2007. If DADI was a related business of the tenant Boiling (and this was not established on the evidence), it would not have needed to have obtained the consent of the landlord (ALF) but it still would have been required to notify the landlord upon granting any sublease or otherwise parting with possession of Lot 2. There is no evidence establishing that Boiling ever gave such notice. If DADI was not a related business of the tenant (Boiling), it would have needed to request the consent of the landlord (ALF) to any assignment of the lease, sublease, or other instrument parting with possession of Lot 2 to DADI, but did not do so. Either way, therefore, Boiling did not comply with cl 27.1 of the lease.
There was never any resolution of Boiling, equivalent to its resolution of 30 June 2008, that it held the lease of Lot 2 commencing 1 January 2014 (which was the lease in force at the date of acquisition of Lot 2) in trust for DADI. There was also no other resolution of Boiling to assign that lease, sublet or otherwise part with possession of Lot 2 to DADI. Again, there is no evidence that Boiling ever entered any agreement, either written or oral, with DADI to assign that lease, sublet or otherwise part with possession of Lot 2 to DADI. There is no evidence of any agreement of Boiling and DADI on the terms of any sublease or right to possession of Lot 2, such as commencing date, duration, rent or the rights and obligations of Boiling and DADI respectively. There is no evidence that Boiling did in fact assign the lease, sublet or otherwise part with possession of Lot 2 to DADI.
In these circumstances, it does not matter whether cl 10.7 of the lease commencing 1 January 2014 applied or was complied with by Boiling. DADI's submission was that cl 10.7 was not applicable because the clause only applied where the leased property was a retail shop, which Lot 2 was not. DADI submitted that cl 5 of Annexure A of the lease, which said that any reference in the lease to "retail shop" was deleted, had the effect of rendering the whole of cl 10.7 inapplicable. There is some force in this submission. The covenant in cl 10.7 is expressed to apply only where the leased property is a retail shop. The deletion of only the words "retail shop" in the opening phrase of cl 10.7 would leave unsaid the circumstances in which cl 10.7 was to apply. The deletion of the words "retail shop" does not clearly indicate that the covenant is to apply in all circumstances. But in the events that happened, it does not matter. Boiling never sublet or otherwise parted with possession of Lot 2 and therefore never sought ALF's consent to subletting or otherwise parting with possession of Lot 2.
I turn to ALF. ALF was the lessor of Lot 2, having granted leases to Boiling commencing, for the first lease, on 1 July 2007 and for the second lease, on 1 January 2014. At its meeting on 30 June 2008, ALF noted that the Dial A Dump Industries Trust would "cease commercial operations of recycling, waste transfer and collections carried on" by the Trust and instead that DADI would "commence commercial operations of landfilling, recycling, waste transfer and collections, which it will carry on under the name of" DADI. ALF noted that DADI would undertake these commercial operations "for and on behalf of the Alexandria Landfill Consolidated tax group" but that DADI would operate the waste facility "on behalf of the Alexandria landfill group." ALF noted that EPL 12594, the environment protection licence held by Boiling authorising certain scheduled activities, "will remain with Boiling as trustee for Dial A Dump Industries Trust and the Trust will hold the licence and the lease of the premises on trust for" DADI. The lease referred to was presumably the lease of Lot 2 that ALF had granted to Boiling commencing 1 July 2007.
None of these notes in the minutes of the meeting of 30 June 2008 of ALF, which were the subject of the resolution, evidence any grant of or intention to grant a legal interest in Lot 2 to DADI.
Nowhere in the resolution of 30 June 2008 did ALF resolve expressly to grant any proprietary interest in Lot 2, such as to lease or otherwise give exclusive possession of Lot 2 to DADI. Instead, ALF referred to the lease that ALF had already granted to Boiling giving Boiling exclusive possession of Lot 2 and noting that Boiling would hold that lease in trust for DADI.
The resolution of 30 June 2008 also cannot be construed as ALF having impliedly granted or expressed its intention to grant a proprietary interest in Lot 2, including to give possession of Lot 2 to DADI, by resolving to permit DADI to carry on commercial operations on Lot 2. Most of the matters noted by ALF in its resolution involved either the commercial operations of Boiling and the Dial A Dump Industries Trust or EPL 12594 that Boiling held authorising the carrying out of the recycling, waste collection and transfer operations that had been carried on by Boiling on Lot 2.
The only cryptic references to ALF's operations on Lot 2 were in note 4 of the minutes that DADI "will commence commercial operations of landfilling, recycling, waste transfer and collections which it will carry on under the name of" DADI, which "will be done for and on behalf of the Alexandria Landfill Consolidated tax group" and in note 6 that DADI "will operate the waste facility … on behalf of the Alexandria landfill group". Whilst the operations of "recycling, waste transfer and collections" were carried on by Boiling as trustee of the Dial A Dump Industries Trust pursuant to EPL 12594 held by Boiling, the operation of "landfilling" was carried on by ALF pursuant to EPL 4627 held by ALF. It might be thought that ALF by this resolution impliedly permitted DADI to carry on the operation of landfilling on Lot 2 that had until then been carried on by ALF. Even if this were to be implied, however, the giving of this implied permission for DADI to carry on the operation of landfilling of Lot 2 would not necessarily carry with it a grant of any proprietary interest in Lot 2, including giving exclusive possession of Lot 2, to DADI.
To permit a person to use and occupy land does not necessarily involve parting with possession. The question of whether an owner of land or a lessee who has the legal possession of land has parted with possession will depend on all the facts and circumstances of the case. An owner or lessee can still retain the legal possession of the land even though they allow another to use and occupy the land: see Lam Kee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247 at 256; Australian Mutual Provident Society v 400 St Kilda Road Pty Ltd [1990] VR 646 at 663; Akici v LR Butlin Ltd [2006] 2 All ER 872 at 880 [37]-[42]. As was noted in the latter case, "it is perfectly possible for a lessee to permit a company, in which he has an interest, to occupy the demised premises for the purpose of its business, without parting with possession of those premises to that company": at [38].
In this case, the evidence indicated that ALF, although noting that DADI would commence commercial operations on Lot 2, did not part with possession of Lot 2. The first indication is that, as at 30 June 2008, ALF was not in a position to give exclusive possession of Lot 2 to DADI because ALF had already granted the lease commencing 1 July 2007, which gave exclusive possession of Lot 2 to Boiling.
The second indication is that ALF recorded that DADI would carry on commercial operations and the waste facility on Lot 2, not on its own behalf but rather "for and on behalf of the Alexandria Landfill Consolidated tax group" or "on behalf of the Alexandria landfill group" respectively. The arrangements were even more confused by ALF recording that "each different activity will be identified as an accounting division within Dial A Dump Pty Ltd", a different corporate entity to DADI, and "it will account for all waste revenues and expenses on behalf of the Group". The precise identity of this tax group or other corporate group was not clearly established, but at least it included ALF and DADI as the wholly owned subsidiary of ALF. In these circumstances, for ALF to give permission to its wholly owned subsidiary to carry on operations on Lot 2 "for and on behalf of the ALF Consolidated tax group" or "on behalf of the Alexandria landfill group" did not give any permission to DADI itself. DADI would not be carrying on the commercial operations or waste facility on Lot 2 as principal but rather only as agent. Hence, the giving of permission to carry on operations on Lot 2 could not carry with it the grant of the right to exclusive possession of Lot 2 to DADI.
The third indication is that ALF at all times remained the holder of EPL 4627 that authorised the carrying on of the scheduled activities of landfilling on Lot 2. As ALF noted at its meeting on 30 June 2008, the EPA required the holder of an environment protection licence to demonstrate that it exercised control over the licensed premises. Hence, ALF, as the holder of EPL 4627, recognised that it needed to, and it sought to, continue to exercise control over Lot 2. This right to control the possession of the premises is inconsistent with there having been any parting of possession of the premises: see, by analogy, Australian Postal Corporation v Ace Property Holdings Pty Ltd [2009] QSC 199 at [92].
In any event, ALF did not give legal effect to the resolution at its meeting on 30 June 2008. ALF did not grant a lease or by another instrument in writing give exclusive possession of Lot 2 to DADI. There is no evidence of any oral agreement between ALF and DADI, including any agreement on the terms of any lease or right to possession of Lot 2, such as commencing date, duration, rent or rights and obligations of ALF and DADI respectively. The resolution to permit DADI to carry on commercial operations on Lot 2 was not effected by any grant to DADI of a proprietary interest in Lot 2.
However, even if the resolution of ALF at its meeting on 30 June 2008 permitting DADI to carry on commercial operations on Lot 2 could be construed as involving ALF parting with possession of Lot 2, such permission could not survive the subsequent grant by ALF of the lease of Lot 2 to Boiling commencing on 1 January 2014. By that lease, ALF formally granted exclusive possession of Lot 2 to Boiling, which overrode any prior, informal permission to DADI. At no time after ALF granted this lease to Boiling did ALF resolve to grant, or in fact effect any grant of, any proprietary interest in Lot 2, including giving exclusive possession of Lot 2, to DADI to continue to carry on commercial operations on Lot 2. There is no evidence of any agreement, in writing or oral, between ALF and DADI, including any agreement on the terms of any lease or right to possession of Lot 2, such as commencing date, duration, rent or rights and obligations of ALF and DADI respectively.
For completeness, I note that DADI itself did not record that it had been granted a proprietary interest in Lot 2, whether by or after the resolutions of Boiling or ALF on 30 June 2008 or at any other time. DADI did write on 1 August 2008 to customers of ALF and Boiling advising of the new billing arrangements and saying that:
Previously you may have received separate invoices for some services from Alexandria Landfill Pty Ltd and others from Dial A Dump Industries.
In order to reduce the opportunities for confusion we have now merged these two operations and your ongoing account relationship with these two companies has now been assigned and transferred to Dial A Dump Industries Pty Ltd …
Neither the statement that the two operations of ALF and Boiling (on behalf of the Dial A Dump Industries Trust) had merged nor the statement that the ongoing account relationship with these two companies had been assigned and transferred to DADI necessarily established that DADI would be carrying on the two merged operations on its own behalf rather than for and on behalf of ALF or Boiling or both. The statements are also not evidence of any grant to DADI of any proprietary interest in any land on which the operations were to be carried out, including Lot 2.
The conduct of ALF, Boiling and DADI concerning the carrying on of the commercial operations on Lot 2 is also not conclusive in establishing that DADI had been given any proprietary interest in Lot 2, including being given exclusive possession of Lot 2.
ALF and Boiling continued to hold environment protection licences in their names rather than DADI's name. ALF continued to hold EPL 4627 authorising the carrying on of the scheduled activities associated with landfilling and Boiling continued to hold EPL 12594 authorising the scheduled activities associated with waste transfer, processing and recycling. Under s 48 of the POEO Act, each person who is an occupier of premises at which scheduled activities are carried out is required to be a holder of a licence authorising that activity to be carried on at those premises. Hence, it can be inferred from the fact that ALF and Boiling continued to hold environment protection licences that they were the occupiers of Lot 2 on which the scheduled activities were carried out: see also s 258 of the POEO Act. This occupation of Lot 2 by ALF and Boiling is not consistent with DADI occupying Lot 2 in its own right. If DADI had been the occupier of Lot 2, it was required to have held an environment protection licence authorising the scheduled activities carried on at Lot 2. However, the fact that ALF and Boiling continued to hold the environment protection licences, but DADI did not, would be consistent with DADI carrying on the scheduled activities at Lot 2 for and on behalf of ALF and Boiling.
The financial arrangements between ALF, Boiling and DADI are equivocal in establishing whether DADI had been granted a proprietary interest in Lot 2. ALF and Boiling were required to pay certain levies, such as waste levies, under the environment protection licences that ALF and Boiling continued to hold. DADI paid the levies on behalf of ALF and Boiling. ALF and Boiling were also required to carry out certain work under the environment protection licences that they continued to hold, such as volumetric surveying and monitoring and environmental management. DADI paid for the costs of the consultants undertaking this work. The payment by DADI of levies and expenses under the environment protection licences on behalf of ALF and Boiling is consistent with a conclusion that DADI was carrying on the scheduled activities on Lot 2 for and on behalf of ALF and Boiling and that there had been no parting of possession of Lot 2 to DADI.
ALF continued to be the client of the utilities that provided services to Lot 2, such as Energy Australia and Sydney Water. Energy Australia continued to invoice ALF for the electricity consumed, and Sydney Water continued to invoice ALF for the water used, in the carrying on of commercial operations on Lot 2. ALF in turn invoiced DADI for these charges, which DADI paid. Again, this is consistent with a conclusion that, although DADI might have carried on the commercial operations on Lot 2, ALF retained possession of Lot 2: see, by analogy, Akici v LR Butlin Ltd at 880 [40], [41] and [42].
Boiling, through the Dial A Dump Industries Trust, provided all of the labour used to carry on the commercial operations on Lot 2. The Trust invoiced DADI for these employment costs, which DADI paid. These payments by DADI are not only consistent with DADI carrying on commercial operations on Lot 2 on its own behalf; they are also consistent with DADI doing so for and on behalf of ALF and Boiling, who were said to have merged their operations on Lot 2, or, as had earlier been resolved by ALF, "for and on behalf of the Alexandria Consolidated tax group" or "on behalf of the Alexandria landfill group".
Hence, the conduct and financial arrangements of ALF, Boiling and DADI concerning the carrying on of the commercial operations on Lot 2 do not establish conclusively that DADI had been granted any proprietary interest in Lot 2, including being given exclusive possession of Lot 2.
In these circumstances, DADI has not established that it was granted by Boiling or ALF any proprietary interest in Lot 2 that amounted to a legal interest in land within par (a) of the definition of "interest in land".
These holdings that rights under par (b) of the definition of "interest in land" are limited to proprietary or quasi proprietary rights have not been overruled. It was affirmed recently by the Court of Appeal in Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd at [107] per Emmett JA with whom Macfarlan JA and Gleeson JA agreed.
Contrary to DADI's submissions, the Court of Appeal in Minister for Education and Training v Tanner did not fail to follow the holdings in Hornsby Council v Roads and Traffic Authority of New South Wales or confine them to the facts of that case. Brownie AJA's statement at [11] that "what Meagher JA said in Hornsby … ought not to be treated as a substitute for or a restatement of the words of the legislation" was self-evidently correct, as Brownie AJA's prefatory words "of course" acknowledged. Brownie AJA's following observation that it might be appropriate on some future occasion to "refine those words, if they are to be used for guidance in the resolution of other cases" was to a similar effect.
The examples of proprietary and quasi-proprietary rights given by Meagher JA in Hornsby Council v Roads and Traffic Authority of New South Wales were not exhaustive as the "etc" at the end of the list of examples demonstrated. Further cases may yield other examples of rights in the land of another of a proprietary or quasi-proprietary nature that could be added to the examples given by Meagher JA. This would provide the refinement of Meagher JA's words to which Brownie AJA was referring. Indeed, the Court of Appeal's decision in Minister for Education and Training v Tanner provided a further example of a right in the land of another that was acquired, being the right of an owner of land adjoining a highway to have access to the highway. This right could be said to be over or in connection with the highway that was compulsorily acquired. The right of access to the highway fell within the category of proprietary or quasi-proprietary rights within par (b) of the definition of "interest in land".
Secondly, the holding that the rights falling within par (b) need to be proprietary or quasi-proprietary rights is supported by the nature of the rights that are listed in par (b). As Mason P said in Hornsby Council v Roads and Traffic Authority of New South Wales, part of the context in which par (b) needs to be construed is "the colour which each part of the overlapping definition takes from its associates": at 152.
The first example given is an easement. An easement is "a proprietary right enjoyed by the owner of land to carry out some limited activity (short of taking possession) on land owned by another person". An example is a right of way entitling the dominant owner to cross the servient tenement to gain access to the dominant tenement. An easement is classified as an incorporeal hereditament. It is a form of real property and can be passed to heirs ("heres") rather than to the next of kin: Peter Butt, Land Law, (6th ed 2010, Lawbook Co) at 439.
Another type of incorporeal hereditament are profits, such as profits à prendre and profits à rendre. Whilst an easement gives a right to enter another person's land, it does not give a right to take away part of that land. A profit à prendre, however, not only gives a right to enter, it also gives a right to remove some part of the soil or its produce (such as turf, wood or crops): Butt at 440 and 512. A profit à rendre also gives a right to enter land in order to put something of benefit on the land: Butt at 513.
Easements and profits need to be created by grant of the owner of the land that is to be the subject of the easement or profit. An easement or profit ordinarily must be created or evidenced in writing unless there are sufficient acts of part performance: Butt at 451-454 and 514-515.
Rights may be created that are not strictly profits à prendre but are in the nature of profits à prendre. An example is where an owner of land grants a licence to enter the land coupled with an interest in the land: Butt at 516. Whether an interest in the land is granted, in addition to the licence, turns on the construction of the terms of the instrument granting the rights: Butt at 516.
Easements and profits are to be distinguished from purely personal rights that have no inherent relationship with land. A licence to carry out some activity on land gives the holder a mere personal right, limited in its effect between the licensor and the licensee. An easement or profit over or in connection with the land, however, binds the land, even in the hands of later owners: Butt at 440.
Another form of incorporeal hereditament is a rentcharge, "an annual or periodic payment charged on land and payable by the landowner". The owner of the rentcharge has no tenurial relationship with the land on which it is charged. A rentcharge is incorporeal property in gross, enjoyed by the owner personally and not in the capacity as proprietor of land: Butt at 518. A rentcharge must also be created in writing: Butt at 519.
These types of incorporeal hereditaments fall within the rights described in par (b) of the definition of "interest in land". They are proprietary or quasi-proprietary in character.
A merely personal permission to occupy land is not of the character of the rights listed in par (b). Any permission that ALF or Boiling might have given DADI to occupy Lot 2 is purely personal and not proprietary, and not of the type of rights described in par (b).
Thirdly, the conclusion that rights falling within par (b) need to be rights in the land of another is emphasised by the reference to "land" at the end of the collocation of rights in par (b). The land is the corporeal hereditament - the tangible thing. The rights referred to in par (b) are required to have an inherent relationship with that tangible thing. This corroborates the construction that the rights referred to in par (b) must have an inherent relationship with the land of another. The personal permission to DADI to occupy Lot 2 does not have this inherent relationship with Lot 2 and was not a proprietary right or quasi-proprietary right in Lot 2.
Fourthly, the rights in par (b) must be capable of being owned. The rights that fall within par (b) are defined to be an "interest in land". Under s 37 of the Land Acquisition Act, only a person who is an owner of an interest in land is entitled to be paid compensation. This requirement for ownership of an interest in land limits the rights falling within the definition of "interest in land" to those rights that are capable of ownership: see Mason P in Hornsby Council v Roads and Traffic Authority of New South Wales at 152. A corporeal or incorporeal hereditament is capable of being owned. The owner of a corporeal or an incorporeal hereditament is able to assign and otherwise deal with that property. Being real property, they are able to be passed to the heirs of the owner.
The notion of "ownership" does not readily apply to a merely personal permission to occupy the land of another. The person to whom the permission has been given is not able to assign that permission to another person so as to entitle the other person to occupy the land or to pass the permission to the first person's heirs. The permission given to DADI to occupy Lot 2 is of this personal character and is not one in respect of which DADI could be properly described as the owner.
Fifthly, a person is not entitled to compensation under s 37 of the Land Acquisition Act unless that person is an owner of "an interest in land which is divested, extinguished or diminished by an acquisition notice". An acquisition notice describes the land to be acquired, that is to say, the tangible thing that is the land itself: s 19(1) of the Land Acquisition Act. Section 20(1) of the Land Acquisition Act provides that, on the date of publication in the New South Wales Government Gazette of the acquisition notice, the land described in the notice is, by force of the Land Acquisition Act, firstly vested in the acquiring authority and secondly, "freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land": s 20(1)(b) of the Land Acquisition Act. It is this second effect of the acquisition notice to which s 37 refers. However, in order for a right to be one that is divested, extinguished or diminished by the acquisition notice, the right must be one that has an inherent relationship with the land described in the acquisition notice. This requires that the right be proprietary - a right in the land - rather than purely personal.
The effect of the acquisition notice is to free and discharge the land from rights that are over or in connection with the land. If the right were to be purely personal and did not have a proprietary relationship with the land, the acquisition notice could not free and discharge the land from that personal right. The person enjoying that personal right would not, therefore, answer the description of being an owner of an interest in land which is divested, extinguished or diminished by the acquisition notice, and hence would not be entitled to compensation under the Land Acquisition Act.
In this case, the personal permission of DADI to occupy Lot 2 was not divested, extinguished or diminished by the acquisition notice by which Lot 2 was acquired by compulsory process. The acquisition notice could not free and discharge the land acquired from a personal permission that had no proprietary relationship with the land. DADI was, therefore, not the owner of an interest in land which was divested, extinguished or diminished by the acquisition notice.
The second way DADI contended that it had an "interest in land" falling within par (b) of the definition was due to it being permitted by ALF and Boiling to use the environment protection licences held by ALF and Boiling, by which DADI had the "privilege" of carrying on what would otherwise be prohibited activities under the POEO Act. This contention is erroneous. DADI did not hold any privilege falling within par (b) of the definition of "interest in land".
The environment protection licences held by ALF (EPL 4627) and Boiling (EPL 12594) were personal to ALF and Boiling. ALF and Boiling were each required to hold an environment protection licence authorising each to carry on the scheduled activities listed in each licence. The holder of an environment protection licence has no power under the POEO Act unilaterally to assign the licence it holds to another person. An environment protection licence can only be transferred to another person upon application being made in accordance with s 54 of the POEO Act and the EPA granting the application under s 55 of the POEO Act. No such application to transfer either environment protection licence to DADI was made or granted.
In exercising its licensing functions under the POEO Act, including granting or transferring an environment protection licence to a person, the EPA is required to take into consideration whether the person is a fit and proper person: ss 45(f) and 83 of the POEO Act. This emphasises that an environment protection licence is personal to the holder.
The holder of an environment protection licence also has no power under the POEO Act to hold its licence on trust for another person who it permits to occupy and carry on at the premises the scheduled activities that are authorised by the environment protection licence. The POEO Act requires each person who is the occupier of premises at which a scheduled activity is carried on to be the holder of an environment protection licence that authorises that activity to be carried on at the premises: s 48(2) of POEO Act. Hence, if a person is permitted to occupy premises in order to carry on scheduled activities on the premises, the person would need to also become a holder of an environment protection licence authorising the carrying on of those activities. The capacity to hold an environment protection licence on trust for another person would also subvert the fit and proper person requirements for licensing.
Under this statutory scheme, ALF and Boiling could not grant any permission to DADI to use EPL 4627 or EPL 12594 respectively and DADI could not acquire any privilege of carrying on scheduled activities on Lot 2 without being the holder of an environment protection licence authorising those activities. DADI, therefore, did not have any privilege falling with par (b) of the definition of "interest in land".