Estates Development Co Pty Ltd v Western Australia

High Court of Australia|1952-07-01|Before: Kitto JJ, Plan P

High Court of Australia Dixon C.J. Webb and Kitto JJ. Estates Development Co Pty Ltd v Western Australia [1952] HCA 42

The Court delivered the following written judgment:

This is an appeal from a judgment of the Supreme Court of Western Australia (Dwyer C.J.) dismissing an action for a declaration that a purported compulsory acquisition of certain lands of the plaintiff company by the State Housing Commission of Western Australia, was invalid, and for consequential relief.

State Housing Act, 1946; Public Works Act 1902-1945

State Housing at Mount Yokine and Wanneru - Area No. 1. Notice is hereby given, and it is hereby declared, that several pieces or parcels of land described in the Schedule hereto - being all in the Perthshire District - have, in pursuance of the written approval and consent of His Excellency the Governor, acting by and with the advice of the Executive Council, dated the 23rd day of November, 1950, been set apart, taken, or resumed for the purposes of the following public work, namely: - State Housing at Mount Yokine and Wanneru - Area No. 1.

And further notice is hereby given that the said pieces or parcels of land so set apart, taken, or resumed are marked off and more particularly described on Plan P.W.D., W.A., 32549, which may be inspected at the Office of the Minister for Works, Perth.

And it is hereby directed that the said lands shall vest in The State Housing Commission for an estate in fee simple in possession for the public work herein expressed, freed and discharged from all trusts, mortgages, charges, obligations, estates, interests, rights-of-way or other easements whatsoever.

Then followed a schedule identifying the subject lands by means of numbers of lots on the plan, the name of the owner or reputed owner of each lot, its description by reference to lot number on a Lands Titles Office plan and the relevant certificate of title, and the area. Each notice was later amended, but for the purposes of this case nothing turns upon the amendments. After publication of the notices, copies of them were delivered to the Registrar of Titles, who thereupon registered the lands comprised in them in the name of the State Housing Commission. The plaintiff company then brought the action which has led to this appeal, joining as defendants the State of Western Australia, the State Housing Commission and the Registrar of Titles.

The defendants support the challenged resumptions by relying upon the combined operation of the State Housing Act 1946-1948 W.A., and the Public Works Act, 1902-1945 W.A.. The objects of the former Act are stated by s. 5 to be the improvement of existing housing conditions and the provision of adequate and suitable housing accommodation for persons of limited means and certain other persons not otherwise adequately housed. The Act sets up a housing authority called the State Housing Commission, which, subject to any directions of the Minister, is charged with the administration of the Act and is given extensive rights, powers, authorities and duties: s. 8 (1). It is constituted a body corporate and is given, subject to the Act, power to acquire, purchase, sell, lease, hold and dispose of lands and other property for the purposes of the Act: s. 8 (2). It is also empowered with the consent of the Minister to purchase, contract for the use of, or otherwise acquire any land, and also power, in terms to be mentioned in a moment, to acquire land compulsorily: s. 21 (1) (a) and (b). Amongst the powers with which the commission is clothed are powers with the consent of the Minister to erect houses on, and lay out and construct as streets, any land so purchased or acquired or any other land acquired, to set apart any land for gardens, parks, recreation grounds and certain other community and social facilities, and a power to sell, let or lease any such land for any one or more of the purposes: s. 21 (1) (e) (f) (g).

The power to acquire land compulsorily is found in s. 21 (1) (b), which provides that "Subject to this Act, the Commission may from time to time exercise the following powers: - (b) subject to subsection (2) of this section with the consent of the Minister, to take and compulsorily acquire any land under the powers contained in and in accordance with the procedure prescribed by the Public Works Act, 1902-1945." Sub-section (2) confers upon a land owner a limited right of appeal against a compulsory acquisition, except in certain circumstances in which he is given a right to have a suitable block made available to him under the Act.

The Public Works Act provides for the taking of land required for the purposes of any public work which His Majesty, or the Governor, or the Government of the State is authorized, by that or any other Act, to undertake, construct or provide: s. 10. The procedure laid down for compulsory acquisition consists of the publication by the Governor in the Government Gazette of a notice declaring that the land has been set apart, taken or resumed under the Public Works Act for the public purpose therein expressed, and that a plan and more particular description of such land may be inspected at a convenient place to be stated in such notice: s. 17. The effect of the publication of the notice is that the land vests in His Majesty, or the local authority, as the Governor may direct and the case require, for an estate in fee simple in possession for the public work expressed in the notice, freed and discharged from all trusts &c., and the estate and interest of every person in the land is deemed to be converted into a claim for compensation under the provisions of the Act: s. 18. The expression "local authority" is defined in s. 2 to mean and include any municipal council or road board, and any persons or body, however designated, having authority under any statute to undertake the construction of any public work; and "public work" is defined to mean and include "every work which any local authority is authorised to undertake under this or any other Act", as well as a variety of specifically described classes of works.

On behalf of the plaintiff it was argued that the purpose stated in the notices by which the Governor purported to resume the plaintiff's land, namely State housing, was not a "public work" within the definition contained in the Public Works Act, and that for that reason there was not to be found in the latter Act any power which s. 21 (1) (b) of the State Housing Act could make applicable so as to support the resumptions. To uphold this contention would be to deny all operation to s. 21 (1) (b). One answer suggested by the defendants was that the State Housing Commission satisfies the definition of local authority in the Public Works Act, because, by s. 21 (7) of its own Act, any building or structure which, in the opinion of the Minister on the recommendation of the commission, is necessary for the purposes of that Act is deemed to be a "public work" within the meaning of the Public Works Act, and therefore the commission, having authority to undertake the construction of such "public works", satisfies the definition of "local authority" in the Public Works Act. If this be so, it was said, it follows from the definition of "public work" in the latter Act that every work which the commission is authorized to undertake is a "public work", and consequently the power of resumption under s. 17 of the Public Works Act is available, according to the terms of that section itself, to be exercised so as to vest land in the commission. The submission accordingly went on to ascribe to s. 21 (1) (b) of the State Housing Act the office, not of an enabling provision, but of a provision placing upon the exercise of the power of resumption under the Public Works Act a twofold limitation by subjecting it both to the consent of the Minister and to the right of appeal conferred upon a landowner by s. 21 (2).

But the language of s. 21 (1) (b) is that of a provision conferring a power; and, although it is somewhat unhappily expressed, the more natural construction to place upon it is that the provisions of the Public Works Act conferring a power and prescribing a procedure for the compulsory acquisition of land are to apply mutatis mutandis to enable land to be compulsorily acquired by the commission for the purposes of the State Housing Act. The result of thus adapting the relevant provisions of the Public Works Act is that whenever any land is required by the commission for a purpose of its Act, if the Minister consents, and subject to s. 21 (2), that land may be acquired by the commission by means of the publication in the Gazette of a notice by the Governor declaring that the land has been set apart, taken or resumed for that purpose, and that a plan and more particular description of the land may be inspected at a stated convenient place, together with a direction by the Governor that the land shall vest in the commission. Upon this view of the operation of s. 21 (1) (b), it is not necessary for the defendants to maintain that the purpose for which land may be acquired under the State Housing Act is a "public work", or a "public purpose", within the meaning which those expressions respectively bear in the Public Works Act. It is enough to say that s. 17 of the latter Act, and the sections which follow it, are to be applied as if every purpose for which the commission, acting within the scope of its powers, may decide to acquire land compulsorily were a public work and a public purpose within the meaning of those sections.

This conclusion enables an answer to be given at once to one of the minor submissions made for the plaintiff. It was that the Gazette notices in this case did not express a "public purpose" or a "public work" with a degree of particularity sufficient to satisfy ss. 17 and 18. Their only statement of the purpose of the resumptions was contained in the words: "State Housing at Mount Yokine and Wanneru". The expression is brief, but it means, clearly enough, the provision of housing accommodation as an activity of the State by the State Housing Commission in the vicinity mentioned. It would be an unreasonable construction of the sections which would treat them as requiring greater particularity than that. It is obviously with a twofold object that ss. 17 and 18 insist upon the purpose of a resumption being expressed on the face of the Gazette notices: first, that the public in general and expropriated owners in particular may be assured that the authority which Parliament has given to the Executive to deprive individuals of their property is being exercised within proper limits of purpose; and secondly, that it may be publicly recorded that the resumed property, having been resumed for a stated purpose, is devoted exclusively to that purpose by force of s. 18. This dual object is fully served, in the case of a resumption under the combined provisions of s. 21 (1) (b) of the State Housing Act and ss. 17 and 18 of the Public Works Act, by a statement in the terms which appeared in the Gazette notices in this case.

It will be convenient to deal at once with two further criticisms of the Gazette notice which the plaintiff made in the course of its attack upon the resumptions. First, it was argued that the notices erred in following the precise words of s. 17 of the Public Works Act, that is in declaring that the lands had been "set apart, taken, or resumed". In order to be valid, it was said, the reader should have been informed whether the lands had been set apart, or taken, or resumed; and the failure to choose one expression (and that the appropriate one), to the exclusion of the others, made the notices invalid. It is true that the Public Works Act appears to use "set apart" in respect of Crown lands, public reserves, and the like, and to use "resumed" in respect of privately owned lands, and to use "taken" indifferently for both classes of lands. But the use of the three expressions disjunctively in the notices involves no uncertainty of meaning; the section is satisfied by the perfectly clear intimation which the notices give that the lands they describe have been made the subject of the appropriate form of acquisition.

Secondly, it was said that the notices should have declared that there might be inspected at the office of the Minister for Works not only a plan but, in a separate document, a more particular description of the land resumed. There is, however, nothing in s. 17 to require that the plan and the more particular description may not be provided by the one document. The notices were accordingly not defective for referring to the plan which was available for inspection at the Minister's office as performing the dual function of a plan and of a document containing a more particular description.

The main attack upon the resumptions was based upon two grounds relating to the circumstances surrounding the publication of the Governor's notices in the Gazette . The first of these grounds was that the commission had not formulated any definite housing scheme but was vaguely planning for the uncertain needs of a fifteen year period, and was making immediate acquisitions simply in order to avoid future rises in price, recognizing that when a scheme of development should ultimately be worked out it would be found that not all the land resumed would be needed, and that some would be sold back to the former owners. On this it was argued that the purported acquisitions were not for any authorized purpose, and were invalid under the principle applied in Baiada v. Baulkham Hills Shire Council [1] , and cases which that decision followed. The second ground was that although the commission had decided, before the Governor's notices were published, that some lands in the Mount Yokine-Wanneru area should be compulsorily acquired, its decision did not apply to the identical lands which afterwards were included in the notices, and indeed did not define with certainty to what lands it applied. On this basis of fact, it was argued that the publication of the notices was ineffectual to vest in the commission the lands described in them, because there was a failure of the condition precedent, existing by the combined operation of s. 21 (1) (b) of the State Housing Act and s. 17 of the Public Works Act, that the commission must have decided with the consent of the Minister to acquire the land as being required for a purpose of the State Housing Act.

In order to deal with these two grounds of attack it is necessary to turn to the history of the matter so far as it is revealed by the scanty evidence in the case. It appears that on 6th February 1950 an officer of the commission, Mr. J. Gallaher, made a report to the commission's Land Officer, Mr. R. B. McKenzie. After pointing out that the existing land holdings of the commission were sufficient only to satisfy its building needs for two to three years, Mr. Gallaher stated that he considered that the commission's needs should be planned at least fifteen years ahead, and that with this in view he had made a complete survey of the metropolitan area with the object of locating areas where large subdivisions could be established and continuity of building maintained without recourse to continual acquisition of small areas. He then discussed a variety of areas, and ended by recommending the acquisition of all available land in the area surrounding Mount Yokine. Mr. McKenzie sent on this report to the acting secretary of the commission with a memorandum of his own dated 6th April 1950. The memorandum stated that after much consideration, the Yokine-Wanneru area had been included in the commission's land acquisition programme. Presumably this reflected a policy adopted by officers of the commission rather than by the commission itself. The memorandum outlined a suggested procedure to be followed if the commission's approval were given to proceed with acquisitions in the area. It spoke of the proposal to acquire the whole of the area, and said that the acquisition of such a large area would enable planning of all types to proceed in an orderly manner; but it did not attempt to define the exact limits of the area to be acquired.

Presumably the commission gave general approval to the scheme, for on 14th April 1950 the chairman of the commission wrote to the Commissioner of Taxation seeking advice as to values throughout the area. The area was referred to as some 10,000 acres shown in red on a plan attached, but this plan was not put in evidence. The Acting Commissioner of Taxation replied in a letter of 30th May 1950. He described the area as slightly in excess of 10,000 acres, and added that a large number of developed properties within the area would need to be excluded. The letter was accompanied by a set of plans, and stated that the areas recommended for immediate resumption were enclosed within a green border, and areas for possible resumption subject to policy decision were shown hachured green. Improved properties or portions of properties were indicated in red (i.e. shaded red) or (if lightly improved) hachured red. The letter contained a considerable body of information not material to this appeal, and for the sake of clarity in what follows it is necessary only to add that there were references in the letter to a Westminster Gardens subdivision, in which the plaintiff company was largely interested, and that the statement was made that the section of Westminster Gardens west of the Wanneru Road was mostly held by private ownership, only about 80 lots out of 314 being held by the plaintiff company at 30th June 1949.

The commission held a special meeting on 13th June 1950. The secretary, Mr. Bond, was on leave, and the Land Officer, Mr. McKenzie, recorded the decisions arrived at. The minutes state that special consideration was given to the Taxation Department's report on the Wanneru-Mount Yokine area, and that five decisions were made. First, it was decided that the commission purchase or acquire the whole of the area bounded by green lines on the Taxation Department's plans, excluding portions shown as improved or slightly improved properties or portions of properties; and the statement was added that this excluded Westminster Estate except in so far as governed by the third decision. Secondly, it was decided to inform the Minister that it was the commission's considered opinion, in view of recent land transactions and quickly rising values, that the land should be acquired under the commission's powers of resumption. The third decision was to ask the source of the Taxation Department's information that only 80 lots (presumably meaning in the Westminster Estate) were held by the plaintiff company (apparently the reference to 80 lots in the Department's letter of 30th May 1950 had been misunderstood), and that in the event of the company being found to hold more than fifty per cent of the estate the area be resumed. The fourth decision was that the commission resume all land either in quarter acres or larger areas which had not been built upon; and it was added that the commission would accommodate holders of quarter acre lots when subdivision should have been made. Finally, it was decided that, because of the necessity for expedition, the whole plan of acquisition be placed before the Minister immediately, and that, if it should be approved by the Government, the land resumption officer of the Public Works Department be requested to take immediate action to effect the resumption.

The secretary of the commission, Mr. Bond, was called by the defendants to state what took place at a later date when he discussed the proposed resumptions with the Minister. But in cross-examination he was asked questions about the meeting of 13th June at which he was not present, and about the objects and views entertained by the commission and the factors which affected its decisions. Upon such matters he was obviously unable to give admissible evidence, and the answers he gave could not be allowed to affect the decision of the case even if they added anything significant to what has already been mentioned. However, all that they tend to suggest is that the commission's object was to resume the entirety of an area (which Mr. Bond was not asked to specify beyond saying that it was the land within the green line), in order to provide for the requirements of fifteen years ahead, although a development plan had yet to be prepared and some portions of the land would prove not to be required and would be returned to former owners. There is nothing in this to justify a conclusion that the power of acquisition was being employed for unauthorized purposes. The provision of housing in pursuance of the State Housing Act was, so far as evidence reveals, the whole purpose of the proposal; and neither the commission, nor any of its officers, nor even the Taxation Department, directed attention to any matter which was not within that purpose or incidental to it. The legislature has shown by the provisions of s. 21 (1) that it contemplates the commission having land vested in it beyond its immediate requirements for the purposes of the Act: par. (j), and before re-planning and re-subdividing the area: par. (d), and also contemplates its selling (otherwise than under the main power to sell houses and land), any land purchased or acquired under the sub-section or any part of the land: par. (k), and exchanging land for other land: par. (l). The commission is given by par. (q) a power to do all matters and things incidental to any of the subjects of power under the preceding paragraphs of the sub-section. In view of these provisions it is clear that the commission's recognition from the beginning that there would be some part of the land it was deciding to acquire which would not be needed and could be returned to former owners was quite consistent with there being no purpose actuating the commission other than the purpose of planning and developing the whole area as a housing scheme in accordance with the Act, and disposing of such lands as should be found in the process to be surplus. All this was well within the purposes for which the power of acquisition was conferred. It is in the width of those purposes that the distinction is to be seen between this case and Campbell v. Municipal Council of Sydney (No. 2) [1] , (affirmed on another point [2] ), where the statutory purposes were the carrying out of improvements in or remodelling any portion of the city of Sydney and it was held that land could not be said to be required for that purpose until a scheme or plan for improving or remodelling a definite area of the city had been considered and the general nature at least of the improving or remodelling has been determined. Again, the fact that the commission's decision to acquire at once a larger area than was needed for immediate use sprang from a desire to forestall anticipated increases in land values shows only that its purpose was to perform its statutory duty with a minimum outlay. That is quite different from a purpose of reselling at a profit so as to offset the cost of resumptions. There is no trace in this case of such a collateral purpose as vitiated the resumptions in Thompson v. Council of the Municipality of Randwick [1] ; Howarth v. McMahon [2] ; Minister for Public Works v. Duggan [3] ; and Baiada v. Baulkham Hills Shire Council [4] .

(1923) 24 S.R. (N.S.W.) 193; 41 W.N. 13. 2. (1925) A.C. 338. 3. (1950) 81 C.L.R. 87. 4. (1951) 82 C.L.R. 442. 5. (1951) 83 C.L.R. 424. 6. (1951) 83 C.L.R. 344.

The rest of the evidence must now be referred to for the purpose of dealing with the plaintiff's remaining contention, that the resumptions which the Gazette notices purported to effect were not in accordance with any decision of the commission or consent of the Minister, and were therefore unauthorized by s. 21 (1) (b) of the State Housing Act and s. 17 of the Public Works Act.

It is common ground that there was no relevant decision of the commission except at the meeting of 13th June 1950. In the margin of the minutes of that meeting there are two notations indicating ministerial consent, one by Mr. G. P. Wild as Assistant Minister for Housing on 16th June 1950, and the other by the same gentleman as Minister for Housing on 30th October 1950. The secretary of the commission, Mr. Bond, said in evidence that he took the file and a plan "of the whole area" to the Minister on the latter date and discussed with him in broad outline the whole scheme of the intended resumption and the necessary work to be done to resume "the land marked on plan". He said that the Minister had a large plan before him and was familiar with the details of the proposal. At some date, which presumably was before 30th October 1950, the Land Officer, Mr. McKenzie, had made inquiries of the Taxation Department concerning the Westminster Estate in pursuance of the third of the decisions made by the commission on 13th June. He had ascertained that in that estate, which was about one-eighth of the whole area, the plaintiff company owned over fifty per cent of the land. That being so, the effect of the first and third of the decisions of 13th June was that the whole of the area bounded by green lines on the Taxation plans was to be acquired, including (or with the addition of - it is not clear which) the Westminster Estate, but excluding portions shown on the plans by red shading or hachuring, as improved or lightly improved.

Now, until the Taxation Department's plans are examined and compared with a plan indicating the lands which were included in the Gazette notices, there is nothing whatever to suggest that on 13th June the commission was in any uncertainty as to the identity of the lands it was deciding to acquire, or that Mr. Bond was wrong when he said in evidence that on 30th October the Minister, who had a large plan before him, was familiar with the details of the proposal. And it is not unimportant to observe that Mr. Bond, who, in the responsible position he occupied, must have made himself thoroughly familiar with the scheme before interviewing the Minister, was not asked in cross-examination a single question directed to establishing that there was any discrepancy between the proposal to which the Minister gave his consent by notation in the margin of the minutes of 13th June and the resumptions carried out by the Gazette notices. It is highly improbable that the Executive Council would have advised the Governor to resume and vest in the commission land which the commission and the Minister had never decided should be acquired. The onus lies heavily upon the plaintiff to establish that that in fact happened.

In order to establish this, counsel for the plaintiff turned first to the Taxation Department's plans, and pointed out that the green lines do not completely enclose the area they are intended to delineate. He also pointed out, and rightly, that the evidence does not enable the Court to tell where the Westminster Estate was. What were its boundaries or area, or whether it was within the green lines or the areas hachured green, shaded red, or hachured red on the plans, are questions which the evidence leaves unanswered. It must therefore be conceded that on the face of the minutes and the plans it is impossible to know what precise lands the commission considered, and the Minister agreed, ought to be acquired. But to say that one coming fresh to the plans would be uncertain as to this is not to say that the commission's decision itself lacked certainty, or that the Minister, when giving his consent, failed to understand perfectly what that decision was. The case is not to be decided as if the minutes of 13th June were the operative decision of the commission and the task of the Court were to decide whether the minutes, construed with the plans, are void for uncertainty. The minutes are but evidence of the decisions they record; and it does not follow, from the fact that ambiguity exists in the minutes or appears from inspection of the plans, that the commission or the Minister was not entirely clear about the land to which they were directing their minds. Imperfection in the description of that land is found only in documents which, after all, were not drawn up for general information, but were prepared and preserved as intra-departmental records only. And the important fact must not be overlooked that not one person who played any part in the matter has ever given the slightest hint of doubt or lack of unanimity as to the identity of the lands to be acquired.

But undoubtedly discrepancies do appear when the plan showing the lands described in the Gazette notices is set against the Taxation Department's plans. We have been supplied by Mr. Fullagar with a very helpful memorandum pointing out these discrepancies in detail. It is made by this quite clear that some lands which on any view were included in the commission's decision to acquire were omitted from the Gazette notices. It is also clear that of the lands included in the Gazette notices some were not within the green lines on the Taxation Department's plans while some were hachured green on the Taxation Department's plans; and all these lands were outside the commission's decision to acquire, unless they were part of the Westminster Estate.

In this state of things, the plaintiff company would be entitled to succeed if the assumption were justified which underlay the argument presented on its behalf on this part of the case. The assumption was that the challenged acquisitions are to be considered in globo and are to be held valid or invalid according as the whole of the lands described in the Gazette notices were or were not identical with the whole of the lands covered by the commission's decision. But clearly this cannot be so. In point of law, there were as many acquisitions as there were parcels of land separately described in the Gazette notices. The validity of the acquisition of each parcel depends upon the facts concerning that parcel, and it cannot be affected even by conclusive proof that some other parcels were omitted from the Gazette notices though covered by the commission's decision or were included in the Gazette notices though outside that decision. Moreover, the plaintiff company's interest to maintain the action with respect to the purported acquisition of any one parcel depends upon its having been the registered proprietor of that parcel at the date of resumption. It is therefore irrelevant to this action that some parcels of land of which the plaintiff was not the registered proprietor were included in the Gazette notices without any decision having been made by the commission to acquire them. In order to obtain any relief in the action, the plaintiff had to establish that some of its own land included in the notices was not included in the decision of the commission. This it has failed to establish. Because of the complete uncertainty which exists on the evidence as to the identity of the lands comprised in the Westminster Estate, no finding could possibly be made that any land which was included in the Gazette notices and is found to be outside the green lines, or to be hachured green, on the Taxation Department's plans was not within the Westminster Estate. In particular, no such finding could be made with respect to any of the plaintiff's lands. Indeed, in the end counsel for the plaintiff was constrained to agree that, if the condition was in fact satisfied upon which the inclusion of the Westminster Estate in the commission's decision depended, the plaintiff had not proved affirmatively that any of its land which the notices purported to resume was outside the commission's decision. He disputed the fulfilment of the condition, contending that Mr. McKenzie's inquiries of the Taxation Department were insufficient to establish that the plaintiff company held more than fifty per cent of the estate. But though the evidence was slight, it was uncontradicted. The truth of the matter was peculiarly susceptible of proof by the plaintiff company, yet it adduced no evidence on the point. The case must therefore be dealt with on the footing that the Westminster Estate, whatever it was and wherever it was, fell within the commission's decision to which the Minister gave his consent. On that footing, the only possible conclusion is that there was no proof of the inclusion in the Gazette notices of any land belonging to the plaintiff to which the commission's decision did not extend.

The challenge to the validity of the resumption of the plaintiff's lands fails at every point. The learned Chief Justice of Western Australia rightly dismissed the action, and the appeal must also be dismissed.

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