Heawood v Muswellbrook Shire Council

APPLICANT Mr R Marshall (Barrister)

SOLICITORS Bilbie Dan Hickey LEGAL REPRESENTATIVES: RESPONDENT Mr J Maston (Barrister)

IN THE LAND AND MATTER No. 40075 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 12-02-2001

David John Heawood and Bonnie Jean Heawood Applicants v

1. By application class four dated 15 May 2000 the applicants seek declarations and an order for compensation against the Muswellbrook Shire Council ("the respondent") pursuant to s32 of the Roads Act 1993 (NSW) ("the Act"). Section 32 of the Act relevantly provides:- 32 Rights of adjoining landowners in relation to the fixing of levels (1) If the fixing of the levels of a public road results in loss of access across the boundary between the road and land adjoining the road, the roads authority must restore access between the road and that land. (2) If the varying of the levels so fixed results in a loss of access across the boundary between a public road and land adjoining the road, the roads authority must pay compensation to the owner of the land for any loss or damage arising from the loss of access.
2. The applicants are the registered proprietors of land in the Shire of Muswellbrook located adjacent to the public roads of Bridge Street ("Bridge Street") and Turanville Avenue ("Turanville"), Muswellbrook ("the property"). Prior to 1993 vehicular access to the property was provided by a driveway from Bridge Street approximately ten metres wide. The carriageway of Bridge Street was at that time approximately one metre below the level of the property.

Excavations undertaken along Bridge Street occurred some time after 1 July 1993. These excavations resulted in a significant change to the level of Bridge Street. The carriageway is now approximately three metres below the level of the property. Access to the applicants' property from Bridge Street is now via a narrow off-ramp.

The excavations also included developing Turanville Avenue into a cul-de-sac.

As a result of these excavations the applicants claim that the business of a service station which is conducted on the property has suffered financially due to a loss of access to the property especially from Bridge Street. Accordingly, the applicants have instituted this action against the appropriate Roads Authority (see s 7(4) of the Act) for compensation pursuant to s 32(2) of the Act. The matter comes before the Court pursuant to s 226(3) of that Act.

In reply, the respondent has raised the following preliminary question of law for determination by the Court:- Whether the only entitlement of the Applicants to compensation, if any, is for the total loss of access across the boundary of Bridge Street and Turanville Avenue, as set out and limited to paragraph 11(a) of the Statement of Particulars of Compensation filed by the applicants herein.

The respondent submits that liability to pay compensation under s 32(2) of the Act only arises in circumstances in which the fixing of the levels of a public road results in a total loss of access across the boundary. Thus the respondent submits that the applicants' claim for compensation must be limited to that period of time when the excavation work carried out on Bridge Street prevented access to the property.

The respondent submits that the provisions of s 68 of the Act assist in the interpretation of the phrase 'loss of access' contained in s 32 of the Act. Section 68(1) of the Act is directed to circumstances where access 'across the boundary between any land and a public road is restricted or denied as a result of the road becoming a freeway, transitway or controlled access road'.

The applicants deny that s 32(2) only creates an entitlement to compensation for financial losses suffered due to a total loss of access and claims for past and future economic loss, as well as diminution in value of the property, suffered due to the partial loss of access to the property as a result of the excavations carried out on Bridge Street.

At the outset the Court finds that s 68 of the Act cannot assist in the manner asserted by the respondent. Section 68 is contained in Part 5 Division 4 of the Act which gives special consideration to landowners whose land adjoins freeways and in such circumstances different considerations for access may apply. Section 32 of the Act contained in Part 3 Division 3 (road levels) and is directed towards entirely different purpose, that is, elucidating rights to persons who own land adjoining public roadways generally.

The context of the phrase 'loss of access' in s 32(2) of the Act offers no guidance to define whether the phrase is intended to be absolute, and encompasses to a total loss of access or whether it includes partial loss of access. Although arising in a different statutory context (that is, under the Docks Regulation 1934 (UK)) the word 'accessible' has been interpreted as meaning 'capable of access without any reasonable let or hindrance' (see Henaghan v Rederiet Forangirene [1936] 2 All ER 1426 at 1433 per Lewis J). A similar interpretation should be adopted for the word 'access' when it appears without qualification. For the purposes of s 32(2) of the Act 'access' means the ordinary means of access to the landowner's premises.

In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 McHugh JA noted at 423:- Purposive construction [i.e. of a statute] often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgment as to where the boundary of construction ends and legislation begins. But it is the technique best calculated to give effect to the legislative intention and to deal with the detailed and diverse factual patterns which the legislature cannot always foresee but must have intended to deal with if the purpose of the legislation was to be achieved. 13. Any construction of s 32 of the Act must therefore promote the object and purpose of the Act (see also s 33 Interpretation Act 1987 (NSW)). The heading to s 32 of the Act, which can assist in confirming that the meaning of the text is the ordinary meaning conveyed by the text (see s 34 Interpretation Act), states that the section establishes the 'rights of adjoining landowners'. The terms of the section create rights for adjoining landowners whenever a roads authority conducts work envisaged by s 29 of the Act. Section 32(1) of the Act provides that if the fixing of the levels, pursuant to work performed under a plan created by s 29 of the Act, results in a loss of access to land adjoining the public road then the authority must restore access between the road and that land. Similarly, s 32(2) of the Act operates where the varying of levels 'so fixed' results in a loss of access to such land then the roads authority must pay compensation for 'any loss or damage arising from the loss of access'.

14. In ascertaining the purpose of s 32 of the Act it must be observed that the Act, read as a whole, is concerned to 'set out the rights of persons who own land adjoining a public road to have access to the public road' (see s 3(b) of the Act). To this extent s 6 of the Act states:- ' The owner of land adjoining a public road is entitled, as of right, to access (whether it is on foot, in a vehicle or otherwise) across the boundary between the land and the public road. ' The express statutory ' right ' to access provided by s 6 of the Act indicates that it was an intention of the Parliament, in creating a legislative scheme which involve public works interfering with the proprietary interests of the public, to ensure that those proprietary rights be respected and, where possible, protected. Thus, if the parliament intended that compensation under s 32(2) would only flow for a total loss of access it would have been made clear by the inclusion of such word in the section. That is, when the ordinary means of access from the public road to adjoining land is interfered with the adjoining landowners are entitled to claim compensation.

15. It appears from the evidence that the ordinary means of access to the applicants' property has been substantially hindered. Accordingly, the applicants are entitled to make a claim for compensation under the Act.

16. In summary, with the absence of clear words to the contrary and in a statute intending to preserve proprietary interests (especially of access) s 32(2) of the Act is not to be construed in the manner asserted by the respondent. The answer to the preliminary question of law for determination is therefore: 'no.'

1.) The preliminary question of law for determination by the Court be answered 'no'. 2.) Costs reserved.

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