Federal Court of Australia|1994-06-17|Before: Wilcox J

Hubertus Schuetzenverein Liverpool Rifle Club Limited v the Commonwealth of Australia [1994] FCA 1161; (1994) 51 FCR 213 (17 June 1994)

HUBERTUS SCHUETZENVEREIN LIVERPOOL RIFLE CLUB LIMITED v THE COMMONWEALTH OF

Lands Acquisition - Claim for compensation following compulsory acquisition - Two hectare allotment containing licensed club premises with indoor rifle range - Parties agreed that compensation should be assessed on reinstatement basis - Club acquired a ten hectare site on which it intended to relocate its activities - Applicant claimed that the compensation should reflect an entitlement to establish an outdoor rifle range, as well as the indoor range conceded by respondent - Existing clubhouse had no outdoor range, but club claimed that its planning approval entitled it to establish an outdoor range - Correctness of this claim - Whether club acted reasonably in re-establishing its activities on a larger allotment - Erection of buildings at rear of site more expensive than erection at front of site - Whether club acted reasonably in choosing to erect its new buildings towards the rear of the site.

A A Hyam

Solicitors for the Applicant: Matthews Folbigg

Counsel for the Respondent: R J Bainton QC and

C E Adamson

Solicitors for the Respondent: Australian Government

Solicitor

1. The preliminary questions be answered:

As to question 1: "No".

As to question 2(a) and (b): In each case "Yes".

2. The further hearing of the matter be adjourned to 4 October

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

WILCOX J Prior to 20 December 1989, the applicant, Hubertus Schuetzenverein Liverpool Rifle Club Limited, was the owner of a parcel of land containing about 2.02 hectares (five acres) and known as lot 4 Deposited Plan 239960. The land is situated in Elizabeth Drive, Badgerys Creek within the City of Liverpool. On that day, the land was compulsorily acquired by the respondent, the Commonwealth of Australia, for the purposes of construction of a new airport. The applicant claimed compensation pursuant to the Lands Acquisition Act 1989. There were negotiations about the appropriate compensation figure but the parties were unable to agree; so this proceeding was commenced.

2. Prior to the hearing, counsel informed me that the parties agreed that s.58 of the Act applied to the claim. That section reads:

"58(1) This section applies where:

(a) an interest in land (in this section called the

'old land') is acquired from a person by

compulsory process;

(b) immediately before the acquisition, the person

was using the old land, or intended to use the

old land, for a purpose other than the carrying

on of a business;

(c) but for the acquisition, the land would have

been, or would have continued to be, used for

that purpose;

(d) at the time of the acquisition, there was no

general demand or market for land used for that

purpose; and

(e) the person has acquired, or intends to acquire,

another interest in other land (in this section

called the 'new land') in substitution for the

acquired interest and intends to use the new

land for the same purpose.

(2) The market value of the acquired interest on the day

of acquisition shall be taken to be the greater of:

(a) the amount that, apart from this section, would

be the market value (if any) of that interest

on that day; and

(b) the net acquisition cost in relation to the

interest in the new land.

(3) The net acquisition cost, in relation to the interest

in the new land, is the amount calculated in

accordance with the formula:

CA + E - FI

where:

CA is the amount of the cost, or the likely cost,

to the person of the acquisition of the

interest in the new land;

E is the amount of the expenses and losses

incurred, or likely to be incurred, by the

person as a result of, or incidental to,

ceasing to use the old land and commencing to

use the new land for the same purpose; and

FI is the present value of any real and

substantial saving in recurring costs (relating

to land or an interest in land) gained by the

person as a result of the relocation."

3. Counsel also said that the parties wished me to inspect the acquired land and a ten hectare (25 acres) allotment in Adams Road, Luddenham that the applicant purchased in order to reinstate its activities. Accordingly, immediately before the commencement of the hearing, I inspected both parcels of land, in company with counsel, instructing solicitors and representatives of the parties. When the hearing commenced, counsel told me that the parties agreed that, subject to one qualification, my observations during these inspections should be regarded as evidence; and not be used merely for the purpose of enabling me to understand the issues raised and to follow and apply the written and oral evidence: see Scott v Numurkah Shire Council [1954] HCA 14; (1954) 91 CLR 300 at 313. The qualification was that I would not use my observations to determine any issue that had not been ventilated at the hearing and in respect of which the parties had not been able to adduce evidence and put submissions.

4. At the hearing, it quickly became obvious that there were numerous factual issues. Some were of fundamental importance. Their non-resolution had impeded agreement on the detailed, technical questions. After discussion, counsel asked me to deal with the fundamental issues as preliminary points. They said that, if I did this, their clients might be able to reach agreement on some of the technical matters. I agreed to take this course. Counsel formulated the preliminary questions in this way:

"1. Whether or not the Applicant as at the date of

acquisition had in respect of the acquired land

development approval for an outdoor shooting

range.

2. Whether or not there should be included in

these proceedings in CA within the meaning of

LAA s.58(2):

(a) the whole of the cost of purchase of

the new land (being a 25 acre block) as

opposed to the cost of purchase of a 5

acre block only;

(b) the additional cost of locating the

club house at the rear as opposed to

the front of the new land."

5. The letters "CA" mean the same thing as in s.58(3) of the Lands Acquisition Act. "LAA" is, of course, an acronym for the Act itself.

6. After these preliminary questions were formulated, counsel tendered a deal of affidavit and documentary evidence relating to them. Some oral evidence was adduced. Submissions were made, at the end of which I indicated that I would answer question 1 "no" and both limbs of question 2 "yes". I promised to provide written reasons in due course. I adjourned the further hearing of the matter until 4 October 1994 in order to allow the parties to consider the implications of my answers and endeavour to reach an agreement that would obviate or shorten a further hearing. I now state my reasons for my answers to the preliminary questions. I will deal with each question separately, referring to so much of the evidence as is germane to it.

7. The evidence includes the town planning file of Liverpool City Council relating to the acquired land. It seems that the club acquired the land in 1971. On 24 February 1971, it made application to the council for permission to use the land for "sporting and social activities". Under the heading "Full Description of Development" a person who was apparently a club officer wrote:

"5 Acres to be developed as per attached sketch.

Landscaping, Parking space, Rifle Range, Playground,

Barbeque area, Clubhouse".

Somebody made a locality sketch on the back of the application form showing the position of the land relative to Elizabeth Drive and Badgery's Creek Road. These two roads form a right-angled intersection at a point one block west of the club's land. The layout sketch, referred to in the description, was on a separate sheet of paper. That sketch shows an entrance from Elizabeth Drive to a car parking area for 120 cars. Behind the car parking area is a "future club building" and, behind that, a car parking area for another 60 cars, a children's playground and barbeque area and, at the rear of the allotment, an area marked "50 metres 22 cal. rifle range".

8. The application was made pursuant to the County of Cumberland Planning Scheme Ordinance, the town planning scheme then in force in the City of Liverpool. Under that ordinance, the land was zoned "Rural Area", within which zone the proposed use was permissible with council's consent. However, as the land has a frontage to a main road, Elizabeth Drive, cl. 43(1)(c)(i) of the Ordinance applied to the application. That sub-paragraph had the effect that council could not consent to the application without the concurrence of the State Planning Authority of New South Wales, a body constituted by the State Planning Authority Act 1963 but now abolished.

9. On 16 March 1971, the council adopted a recommendation from its Town Planner that the club's application be approved subject to nine conditions. The first condition was the concurrence of the State Planning Authority. Council immediately applied to the State Planning Authority for concurrence, identifying the proposed development in its letter as "Rifle Range, Playground, Barbeque area and Clubhouse".

10. The council notified the club of its decision on 13 April 1971 but it could not take the matter further until the Authority responded. The Authority did not do so until 1 July 1971. On that day, it informed the council that it did not concur in the proposed development "for the reasons that it would lead to the introduction of ribbon development along this Main Road which is contrary to sound town and traffic planning principles" and it would "create an undesirable precedent for other traffic generating uses along this section of Elizabeth Drive".

11. The Town Planner reported the Authority's decision to the council. On 3 August 1971, council adopted a recommendation that:

"subject to submission of an amended application,

providing for ingress and egress from Badgery's Creek

Road at the rear of Lot 4, Council support it to the

Authority (sic) on the appropriate conditions as

earlier decided".

12. The club obtained the permission of J and P Impey, the owners of Lot 3, Elizabeth Drive, the allotment that lay between the club's land and Badgery's Creek Road, "to apply to Liverpool City Council for development". The file does not indicate what development Mr and Mrs Impey had in mind. However, about this time, a firm of surveyors, B A Homann and Associates, applied for permission to subdivide lots 3 and 4 in such a way as to provide access to the club's land from Badgery's Creek Road. The surveyors forwarded a subdivision plan, which the council labelled "30J". The plan showed an amended lot layout. The old lot 4 became lot 14, with the same major dimensions but with the addition of a 30 foot access strip to Badgery's Creek Road. The plan did not indicate any proposed buildings or land uses. The council sent this plan to the State Planning Authority on 11 August with a request that it "reconsider the matter and give favourable consideration to the proposal on the new conditions as outlined".

13. Without waiting for a response from the State Planning Authority, on 25 August 1971, the council wrote to B A Homann and Associates stating that it approved plan 30J in principle.

14. On 20 September, the Authority advised that, pursuant to cl. 43(1)(c)(i) of the County of Cumberland Planning Scheme Ordinance, it concurred "in the development proposed on the subject land shown on the plan prepared by Messrs B A Homann and Associates and labelled '30J' by the Council" subject to six specified conditions. The conditions included one requiring that "all development" be at least 250 feet from Elizabeth Drive. The conditions also specified the location and quantity of car parking. The conditions were framed in general terms, with no reference to particular development plans.

15. The council sent the Authority's letter to the club on 30 September with a suggestion:

"that you embody these conditions and the applicable

ones from Council's earlier approval into a new plan

for development, and this will then be considered

with a view to issue of Council's development

consent".

16. The evidence does not disclose whether the club and Mr and Mrs Impey proceeded with the proposed resubdivision. I suspect not, because, when it acquired the land, the Commonwealth identified it by reference to its pre-1971 lot number. Whatever the position about this, it was not until 28 July 1973 that the club submitted the new development plan invited by council. The plans then submitted included one dated January 1973 that proposed access from Badgery's Creek Road, rather than Elizabeth Drive, and with "pine tree beautification" along the whole Elizabeth Drive frontage. This plan showed a parking area behind the planting strip and, behind that, a "future club building". Moving further to the rear, there was a "proposed air rifle range" (apparently indoor), a children's playground, more car parking and, right at the rear of the allotment, a "50 metre 22 cal. rifle range".

17. The council responded to this application by a letter dated 12 September 1973 requesting "further information about the proposal". Seven matters were raised. They included questions concerning the air rifle range and the 22 calibre rifle range. At the same time, the council sent the application to the State Planning Authority with a letter stating that it complied with all the conditions specified by the Authority on 20 September 1971 and requesting the Authority's concurrence to the project.

18. There is a note on the council's copy of its letter to the club of 12 September: "Questions answered by the President". The file does not reveal the answers.

19. Council did not receive a reply to its letter to the State Planning Authority until 21 January 1974, when it received a letter stating that "there is no requirement for the Council to consult with the Authority in terms of the Liverpool Planning Scheme Ordinance in respect of this application". The Liverpool Planning Scheme Ordinance had, apparently, recently come into force, superceding within the City of Liverpool the County of Cumberland Planning Scheme Ordinance. No doubt because of the more precise zonings effected under the Liverpool Ordinance, that Ordinance did not reproduce the requirement of cl. 43(1)(c)(i) for State Planning Authority concurrence to all development on sites fronting main roads.

20. It seems that, before it received this letter, the council realised that the Authority's concurrence was not required. On 10 October 1973, the council wrote to the club notifying a consent in these terms:

"Reference is made to your Development Application

dated 28th July, 1973 for the erection of a club

building for club functions comprising of 26 shooting

stands for air rifle shooting, changerooms,

storeroom, toilet facilities, dining room for 90

seats, kitchen and storerooms, entertainment hall and

open bar with storeroom, offices, open air beer

garden, children's playground, parking space for 150

cars and landscaping, at the abovementioned property.

It is advised that the application has been approved

subject to the following conditions ..."

21. There followed ten conditions. None of them makes reference to the outdoor 22 calibre rifle range. Condition 7 read: "No shooting to take place without the prior approval of the Police Department and all relevant authorities". This condition applied to the indoor air rifle range, as well as any outdoor range.

22. On 23 October 1973, the council issued a formal development consent pursuant to the City of Liverpool Planning Scheme Ordinance. This document contained a description of the development in terms identical to those in the letter of 10 October. It made no reference to the outdoor 22 calibre rifle range.

23. It seems that the club acted promptly after receiving the development consent. A clubhouse, including an indoor air rifle range, was constructed and opened in 1974. Nothing was done about the outdoor 22 calibre rifle range. When I inspected the land, the site of the outdoor range was still undeveloped grassland. The area has never been used as a rifle range.

24. The council's file includes notes of inspections in 1976, 1977 and 1978 and correspondence with the club concerning its failure to provide all the stipulated car parking spaces and landscaping. There is a file note dated 7 October 1977 recording a conversation between a council town planning inspector and a Mr Froeschl, the then club secretary, in which Mr Froeschl said there was "no intention to proceed with a southern rifle range"; that is, the outdoor range.

25. On 27 November 1979 the council sent a letter in which it stated that it raised "no objection to the discharge of air pistols" at the rifle range within the building, subject to compliance with the development conditions and acoustical treatment of the building.

26. The remaining documents on the file relate to a dispute between the club and a neighbour regarding access and the club's applications for registration under the Registered Clubs Act (NSW) 1976 and approval of an advertising sign.

27. At the hearing before me, counsel for the club relied on two development consents. They said the first was given on 13 April 1971, the second on 23 October 1973. But it is clear that no development consent was granted in 1971. The resolution of 16 March 1971, notified to the club on 13 April 1971, was expressly subject to the concurrence of the State Planning Authority. Without concurrence, any consent would have been void: see cl.43A of the County of Cumberland Planning Scheme Ordinance. The Authority never gave its concurrence. It did concur in the subdivision approval of September 1971, but that concurrence related only to the subdivision described in plan 30J, not to the erection and use of buildings and other facilities. The council recognised this at the time. That is why it invited the club to submit an amended development application. The club did not do this until 1973.

28. There is no dispute that a valid development consent was given in 1973. It was acted upon. But the description of the development in the consent included no reference to an outdoor rifle range. The evidence does not demonsrate whether this omission was deliberate or accidental. The documents in council's file do not indicate that council was opposed to an outdoor range. But it may have been. One of the requisitions in council's letter of 12 September asked "what protection will there be to stop straying projectiles". Council noted the location of a nearby two storey house. The club may have responded, through its President, by abandoning the proposed outdoor range. Whether or not this was the case, it is impossible to say. However, it does not matter whether the omission from the consent of the outdoor rifle range was deliberate or accidental. The fact is that the council's consent did not extend, at least expressly, to an outdoor rifle range.

29. However, counsel for the club argue that there was an implied consent to an outdoor rifle range. They refer to several cases in which courts have determined the scope of a development consent by reference to the terms of the application. In Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 the plaintiff sought in the Supreme Court of New South Wales to restrain the defendant from using its laundry otherwise than between the hours of 7.30am to 4.30pm, Mondays to Fridays inclusive. These hours had been shown on the defendant's application for approval of the laundry, but the consent imposed no restriction on the hours of use. At 323, Else-Mitchell J accepted "that a consent can incorporate conditions contained in another document" but held that "the mere approval of an application does not ... necessarily have the effect of incorporating all the matters stated in the application". He went on:

"For one thing, many of the matters so stated are

general matters of fact or assertions of intention

furnished or made for the purpose of informing the

council of the nature of the development, and for

another, an application will often consist of or be

supplemented by informal documents and even oral

statements made by or on behalf of an applicant.

Serious inconvenience, ambiguity and confusion could

arise if, in all instances, general statements of

fact and assertions of intention in an application

form, as well as every other statement made in

support of an application, were to be regarded as

terms or conditions of a development consent, and

problems would inevitably arise as to the real scope

and tenor of any such consent."

"It must not be overlooked that a consent to the

development of land under a prescribed planning

scheme is not personal to the applicant but enures

for the benefit of subsequent owners and occupiers,

and in some respects a consent is equivalent to a

document of title."

30. Hope J referred to the notion that development consents operate in rem, rather than merely between the parties, in Auburn Municipal Council v Szabo (1971) 67 LGRA 427. The council had approved "additions" to a building and the question was whether that approval included an approval of their use for the same purpose as the existing buildings. That use did not conform with the zoning of the land under the County of Cumberland Planning Scheme Ordinance but was being lawfully continued in the existing building on the land as an "existing use" operative when the scheme came into operation. By virtue of those facts, it was open to the counsel to permit the building additions to be used for the non-conforming use. The question was whether it had done so. His Honour considered whether it was legitimate, in order to determine what development the council had authorised, to go to the application for approval or any other document. He referred to Royal Ryde Homes and an English decision, Miller-Mead v Minister of Housing and Local Government (1963) 2 QB 196, and commented at 433-434:

"It is apparent from these decisions that in

determining what a council has approved, one

primarily looks at the document constituting the

approval, and construes it. The necessity to do this

arises, inter alia, from the fact that a development

approval does not enure only for the benefit of the

applicant. It enures for the benefit of all future

owners or occupiers, and it would create a confusing

and difficult, if not impossible, position if in

order to determine what a council had approved one

had to go to a whole series of documents and try to

determine which of the documents and which part of

any particular document the council intended to

incorporate in its approval. The terms of another

document may be incorporated in a development

approval either expressly or by necessary

implication, but I do not think that it is possible

otherwise to go to documents outside the formal

approval in order to determine what has been

approved. In particular, it is not possible to go to

the form of application for approval unless in some

way that document has in whole or in part, expressly

or by necessary implication, been incorporated in the

consent. On some occasions no doubt there is such an

incorporation. Thus, if an application were made and

a council did no more than approve the application,

it seems to me that by necessary implication the

terms of the application must be incorporated."

31. This approach has been endorsed by the New South Wales Court of Appeal. In Parramatta City Council v Shell Company of Australia Limited (1971) 2 NSWLR 632 the Court had to determine whether the filling of a service station site, so as to raise its level, was embraced by a consent to the construction of the service station itself. The consent made no reference to filling. The only plan submitted with the application was a site plan that showed no levels. The respondent contended that the plan should be interpreted as indicating that the buildings were to be erected on filled land. The council said it indicated a service station at natural ground level. At 637 Hope JA (as his Honour had become), with whom Jacobs and Manning JJA agreed, said:

"As has been held, it is not permissible, in order to

determine what development has been approved, to

construe the document constituting the approval in

the same way as if it evidenced some inter partes

transaction, for development approvals operate, as it

were, in rem and may be availed of by subsequent

owners and other occupiers of the land. The nature

and extent of the approved development must be

determined by construing the document of approval,

including any plans or other documents which it

incorporates, aided only by that evidence admissible

in relation to construction which establishes, or

helps to establish, the true meaning of the document

as the unilateral act of the relevant authority, not

the result of a bilateral transaction between the

applicant and the council. Thus evidence of the

nature of the site would always be admissible for

this purpose, as would be, in appropriate cases,

evidence as to the meaning of the marks on plans, or

indeed, the meaning of the absence of particular

marks."

32. Stebbins v Lismore City Council (1988) 64 LGRA 132 was another case in which the Court of Appeal used the plan accompanying the application to determine the extent of the consent. The case involved a motel extension. The plan showed a new entrance but the council's planner recommended against the new entrance. Council adopted his report. A copy of the plan was returned to the appellants with a letter notifying council's consent. The plan was stamped "approved", but the area of the new entrance was separately stamped "Amendment required here". The letter of consent made no reference to the new entrance. But for the stamp on the plan, the documents sent to the appellants would have indicated approval to the whole of the development indicated by the plan. Relying on Royal Ryde Homes, counsel for the appellants argued that it made no difference that the plans had been marked "Amendment required here". The Court of Appeal disagreed, saying at 135-136:

"The notice of determination of the development

application should, we think, be read together with

the plan. The written form of application is

meaningless unless the plans accompanying it are

considered as part of the application. Similarly

when the notice of consent refers to the

determination of the development application it must

be referring to the application including the plans

without which that application would not be an

application at all. The consent as granted was to an

application incorporating a plan on which, at the

time of consent, a marking had been placed showing

that the development being approved did not include

the new entrance. Read together the documents

returned to the appellants informed them that the

works shown on the plan were the subject of the

development consent except insofar as an amendment

was required in relation to the new entrance to the

Bruxner Highway. The consent could not, in view of

the stamp, be regarded as allowing for development in

that area in the precise terms shown by the plan."

33. Having regard to the principles enunciated by the Court of Appeal in relation to the position under New South Wales law, it is not necessary to discuss two later first-instance decisions: Wollongong City Council v Australian Iron and Steel Pty Ltd (1988) 67 LGRA 51 and Halglide Pty Ltd v PT Ltd (1990) 71 LGRA 215. The authorities clearly establish that it is legitimate, in construing a development consent, to look at the plans that accompanied the application. However, this may be done only where the consent document expressly or inferentially incorporates the terms of the application and only where this is necessary for the purpose of interpreting the consent. For example, where the council simply approves an application without describing the development, it is permissible to look at the application to determine what it was that the applicant sought to have approved (as in Szabo and Shell Company). It is not legitimate to look at the documents that accompanied the application, or even the application itself, to contradict (whether by way of extension or contraction) the scope of a consent stated in clear terms. Stebbins is consistent with the last-stated proposition. On the view of the case taken by the Court of Appeal, in order to learn the terms of the council's consent it was necessary for a person to read the notification of consent in conjunction with the copy plan endorsed by the council. When the documents were read together, it became apparent that the unrestricted consent suggested by the letter of notification was in fact given subject to the elimination of the new entrance.

34. Applying these principles to the present case, it seems to me that, if a question ever arose as to what Liverpool City Council intended by its reference, in the letter of 10 October 1973 or the subsequent formal consent, to "club building", "beer garden" or "children's playground", it would be legitimate to look at the plan dated January 1973 in which each of these facilities was graphically described. To look at the plan for that purpose would be to use it to interpret the consent. But it is not legitimate, in my opinion, to look at the plan for the purpose of extending the consent; for the purpose of adding a facility that was not mentioned in the consent document to those listed as approved. This would be to use the plan to contradict the document, not to interpret it. The site size

35. The second matter may be discussed more briefly. It will be recalled that the acquired land has an area of 2.02 hectares. The Adams Road land contains about 10 hectares. The club's President, David Weir, gave evidence that, when the club learned that its land was to be acquired, it embarked upon an extensive search for an alternative site for its activities. Mr Weir was personally involved in the search. He estimated that club officials devoted something like 500-600 hours to the search, over a period of 18 months. He said that, before the search began, the board established criteria for a suitable alternative site. They included that the site be in south-west Sydney and contain at least 2 ha. The club approached three councils, Liverpool, Penrith and Campbelltown. He said that Penrith and Campbelltown officers were unwilling to suggest possible sites; they merely said they would consider any application the club might lodge. However, the officers of Liverpool City Council were extremely helpful. They suggested a number of allotments as being worthy of investigation. The club also contacted numerous estate agents.

36. It is common ground that only land zoned "Non-urban" is suitable for a rifle club. The Liverpool Planning Scheme Ordinance provides two minimum lot sizes for non-urban land, depending on location, namely 2 hectares and 10 hectares. As might be expected, 2 ha. lots tend to be cheaper than 10 ha. lots, although the difference is nothing like proportional to the difference in area. So the club first looked for 2 ha. lots. According to Mr Weir, club office-bearers investigated about 30 two-hectare lots. He identified some of them in his evidence. Mr Weir said all these lots were rejected, for some or all of the following reasons:

"(i) The properties were substantially developed

with significant houses erected upon them and

were too expensive.

(ii) Residences on adjacent properties were so close that

the Club's activities would be a major intrusion.

(iii) The vendors would not sign a conditional

contract or grant an option.

(iv) The land was flat and offered no noise or visual

protection."

37. The club then looked at larger allotments. It found some lots whose area lay between 2 and 10 ha.; presumably they were lots created by old subdivisions. But the club rejected them all, for similar reasons. The club investigated some more remote lots, but rejected them because they were insufficiently accessible to members. Following up a suggestion made by the Liverpool City Council Chief Town Planner, the club spent some time investigating the possibility of a long-term lease over a parcel of State government land at Cecil Park. It undertook acoustic tests and environmental impact studies, but the owner would offer only a 15 year lease. The club thought this insufficient, having regard to the capital expenditure needed to develop the site. Mr Weir said the club "then investigated the few twenty-five acre properties which were for sale in the south-western region of Sydney". It chose the Adams Road site because of the following factors:

"(a) it adjoined the proposed airport which would

minimise the noise intrusion to neighbouring

properties;

(b) it was topographically shaped so as to assist

in the visual and noise intrusion to adjoining

properties;

(c) it was vacant;

(d) the vendor was prepared to grant a conditional

contract subject to the Club obtaining a

development approval;

(e) the price was reasonable;

(f) there were no apparent building problems such

as the likely location of rock, flooding, etc;

(g) the site was close to the existing Club;

(h) the site was in the Liverpool Council area;"

38. Mr Weir said the site had some disadvantages: it was larger than necessary, it did not have town water and its size would increase the cost of running services to the clubhouse. Nevertheless, he said, the directors thought the advantages substantially outweighed the disadvantages and proceeded with the purchase.

39. Council for the Commonwealth did not challenge Mr Weir's veracity. But a major aspect of their case was that the club's search was affected by the directors' desire to obtain a site on which they could construct an outdoor rifle range; in other words, they did not look for a site that conformed with their existing facilities and planning approval but insisted on a site that would enable the club to better its position. Accordingly, counsel argued, the search was flawed from the beginning. Having regard to those submissions, it is appropriate to quote some evidence given by Mr Weir in oral evidence-in-chief, which was not challenged in cross-examination or contradicted:

"And what about Liverpool?---Liverpool gave us as

much assistance as they could possibly give us.

And you got lots and lots of responses, did you, from

these estate agents that you circularised?---Yes, we

did.

Were you very selective about the particular type of

land you looked at or did you go and look at a large

variety of different types of allotment?---I looked

at about everything they threw at me.

Yes. Did you have an assumption in your mind when

you were engaged in the search that you would be able

to get an outdoor rifle range and did you look only

at blocks where you felt there was some possibility

of an outdoor range?---I, at that time, never

considered really an outdoor shooting range to be a

possibility.

Yes. What was your belief as to, at that time, at

the time of the search, as to whether or not you had

permission for an outdoor range at the Elizabeth

Drive site?---I had been led to believe since joining

the club that we always had permission- - -

For an outdoor range?---For an outdoor range.

But despite that you were very doubtful of getting

permission for an outdoor range anywhere else in the

area you were looking at?---Well, I take you back to

my conversation with Liverpool Council, yes, I was

very doubtful.

So that you were looking at sites with perhaps the

hope you might find one an outdoor range would go on

but you were looking at a whole variety of sites that

the club might go on without an outdoor range?---Yes,

if we ended up - as long as there was a balance of -

I certainly was not considering a - - -

Sorry?---I certainly was not considering an outdoor

rifle range.

So you were looking for - - -?---Club premises."

I accept this evidence. I was favourably impressed by Mr Weir as a witness. He appeared truthful and careful in giving his evidence.

40. The reasonableness of the club's decision to select a larger allotment is supported by the evidence of a consultant town planner, Mary Laidlaw. The relevant part of her report is lengthy, so I will not set it out. But Ms Laidlaw makes the point that, leaving aside the activity of firing guns, the fact that the club operated as a licensed club raised issues that included "noise, traffic generation, access and parking and compatibility of the use with established developments and land uses". After elaborating on the difficulties these problems imposed, Ms Laidlaw considered 10 small sites (about 2 ha.) identified by a Commonwealth witness, a town planner named Robert Player. She pointed out that eight of those sites were subject to an exchange of contracts at resumption date, when the club obtained its first advance of compensation. According to Mr Weir, it was only at that time that the club was in a financial position to commit itself to a new site. The remaining two sites were in Watts Road and Exeter Road, Kemps Creek. Kemps Creek is close to the club's existing premises, so the general location presented no problem. But both allotments are in areas where, at acquisition date, expensive houses were being erected. Except on the southern side, the Watts Road allotment is surrounded by small non-urban allotments (2 ha. or 2.4 ha.). Five of the eight properties surrounding the site can be developed for dual occupations, under the Sydney Regional Environmental Plan No. 12 - Dual Occupancy. If the land to the south is subdivided in accordance with the relevant planning provisions, Mr Laidlaw said, "there is potential for a total of 14 houses in the immediate surrounds of this site".

41. Leaving aside the problems associated with an outdoor rifle range and considering the proposal only as one for a licensed club with an indoor rifle range, it is apparent that the club would have experienced considerable difficulty in obtaining a development approval for this site. Mr Weir gave evidence that the club had 350 members at the date of acquisition. It now has 530 members, of whom 180 are regular shooters. The internal range at Badgery's Creek Road is regularly used at night and on Sunday mornings, times when noise would most disturb neighbouring residents. The club restaurant opens on three nights each week. The bar operates on five nights, mostly until 11pm or midnight. Mr Weir said that on Friday and Saturday nights there would usually be 80 to 100 people at the club, perhaps 60 for Sunday lunch and about the same number on Sunday night. The club holds functions once a fortnight in the auditorium. These functions attract an average of about 250 people. Although the functions generally end by midnight, it may be 3am before the band and staff leave the building. A person who had recently erected or purchased an expensive home, with a view to pursuing a rural lifestyle in a quiet neighbourhood, would reasonably be apprehensive about the commencement of activities like these on a nearby site containing only 2 ha.. It seems to me that, if the club had purchased the Watts Road site, its development application would have been vigorously opposed and very likely rejected.

42. A similar position obtains in relation to the Exeter Road site. It is affected by fewer adjoining lots but the nearby lots are smaller. Immediately across the road, there are two 0.4 ha. sites. At the rear there are 1.5 ha. lots.

43. I do not think that s.58 of the Lands Acquisition Act requires claimants to demonstrate that they have made the best possible selection of alternative land, and bargain in purchasing it, in order to reinstate their activities. Section 58(1)(e) speaks of the person having acquired, or intending to acquire, "another interest in other land ... in substitution for the acquired interest". The section does not use the word "reasonable" at all. But counsel agree that the concept of reasonableness underlies its application; the resumee must act reasonably in relation to the reinstatement. I think counsel are correct. Their approach accords with the principles underlying the judge-made rules about reinstatement discussed in Banno v Commonwealth (1993) 81 LGERA 34. A new parcel of land that is larger than reasonably necessary to reinstate the activities conducted on the compulsorily acquired land cannot properly be described as being "in substitution" for that land. It does not follow that the new land cannot be larger than the old. It may not be possible for the claimant to reinstate its activities on land as small as the old site. The old site may have unique features. There may no longer be vacant land of that size. Events which occurred between the commencement of the use of the old land and the compulsory acquisition may require that any reinstatement be on a larger site. There may have been development on surrounding land, leading to tighter development controls. Town planning and environmental requirements may have become more stringent. Public attitudes may have changed. A lot size once thought ample for a particular use may now be regarded as insufficient. To make the point, it is enough for me to invite comparison between the amount of land thought necessary for a modern hospital or university and that set aside for those uses 100 years ago.

44. The evidence in the present case does not establish that it would have been impossible for the club to find a 2 ha. lot in south-western Sydney on which it could relocate its activities. But I am satisfied this would have been a difficult task. It would have imposed an enormous burden on the club and its officers, requiring the commitment of even more officer-time (and all serve in an honorary capacity and have their own occupational responsibilities) and considerable monetary expenditure. It would, almost certainly, have been necessary for the club to make a series of development applications, perhaps pursuing one or more to appeal, before it was finally successful. And there would have been no guarantee of eventual success. In the end, the club may well have been forced to take a larger lot. If prices had risen in the meantime, as was predictable in late 1989 in this part of Sydney, the club might have been faced with a Commonwealth argument that it had acted unreasonably in failing to secure its alternative site earlier at a cheaper price.

45. I think that, under all the circumstances, the club acted reasonably in deciding that the sensible course was to go sooner, rather than later, to a larger lot. The Commonwealth does not suggest that the club had available to it a cheaper or more suitable 10 ha. allotment than the land it purchased in Adams Road. Accordingly, the whole cost of the acquisition of that land should be included in the cost of acquisition of the alternative site for the purposes of the formula in s.58(3) of the Act.

46. The evidence establishes that it will cost more to erect a clubhouse of a particular design, and using particular materials, on a site towards the rear of the Adams Road land than it would to erect the same clubhouse near the road boundary. The location of the building towards the rear of the lot necessites the construction of a longer access road. Moreover, a road to the rear of the lot has to cross a section of flood-affected land; so expensive earthworks and culverts are required to elevate the road above flood level. In addition, lengthier runs for services, such as water, sewerage and electricity, will be required. The question is whether it is reasonable for the club to include these additional costs in the s.58(3) formula.

47. From the club's point of view, the rear location has a significant side-advantage. If the clubhouse is located towards the rear of the site, it will almost certainly be possible for the club to construct an outdoor rifle range within a convenient distance of the clubhouse. The allotment backs on to the new airport, so noise is not an issue at the rear. The only house in close vicinity is one near Adams Road, owned and occupied by a Mr and Mrs Trosser. Although they were initially apprehensive about the club going onto the land at all, Mr and Mrs Trosser now accept that a development towards the rear of the land will not present a problem. They have withdrawn their objection to the clubhouse, provided it is sited towards the rear of the site. I gather this is their position even if there is to be an outdoor rifle range near the clubhouse. The acoustical evidence suggests that an outdoor range in this position will not trouble them. It would do so if located near Adams Road. Anyway, it is common ground that there is insufficient flood-free land near Adams Road for a clubhouse, with associated facilities including an indoor rifle range and car parking, and an outdoor rifle range as well.

48. The Commonwealth does not contest the club's entitlement to locate its new development wherever it wishes, or the reasonableness of its decision to construct an outdoor rifle range. However, it says that these wishes should not be satisfied at its expense. The Commonwealth argues (as I have held) that the club's existing development consent extends only to a clubhouse, with associated facilities, and not an outdoor rifle range. The Commonwealth's case is that these activities could be reinstated on flood-free land close to Adams Road; if the club chooses, for its own reasons, to select a location further to the rear, it should bear the additional cost of that choice. For its part, the club accepts that, if it lacks consent to the installation of an outdoor rifle range at its existing premises and has the option (in a practical sense) of erecting its new clubhouse, with associated facilities but excluding an outdoor rifle range, close to Adams Road, it cannot recover from the Commonwealth the extra cost arising out of its decision to locate towards the rear. Accordingly, the critical question is whether it is right to say that the club could locate a clubhouse, with associated facilities, at the front of the site.

49. This issue may be a little more debateable than the other matters raised by the preliminary questions. But I reached the conclusion that, even without any question of an outdoor rifle range, it would be difficult for the club to procure council approval of a new clubhouse sited near the Adams Road frontage. The inspection was particularly valuable in relation to this issue.

50. The difficulty about a position close to Adams Road is the flood-affected land. The creek cuts across the lot, running in the same general direction as Adams Road. If a clubhouse and car park were to be sited between Adams Road and the flood area, in order to find sufficient flood-free land it would be essential to locate the clubhouse close to the western boundary of the land; that is, the Trossers' boundary. And the building would have to be set back from Adams Road approximately the same distance as the Trossers' house. The constraints of flood-affection would force the clubhouse and house into a degree of proximity that would be almost bizarre, considering the size of the two allotments.

51. Given that its case on this issue was that a clubhouse comparable to that on the old site, with associated facilities, could have been satisfactorily located at the front of the block, I would have expected the Commonwealth to tender a carefully prepared plan showing how this could be done. I mean by this a scale plan of a hypothetical development consisting of a clubhouse, with associated facilities, including a car park and indoor rifle range, all the elements being of an equivalent size to those at the old site, or such greater size as is necessary to comply with council's present requirements. With such a plan, it would have been a simple matter to calculate the precise distances between the sources of noise generation on the club's land and the Trossers' house. However, despite the engagement of several experts to assist its case, the Commonwealth did not tender such a plan. It contented itself with the tender of the roughest of sketch plans, not drawn to scale or proved to be accurate. The sketch shows car parking spaces but I do not know whether they would satisfy the council's requirements in either size or number. So rough was the plan that there was even a dispute between the expert witnesses as to whether all the car spaces are above the flood level marked on council's flood map; a matter which ought not to admit of debate. Surprisingly, in a case involving so many expert witnesses, the best evidence of the distance from the Trossers' house to the common boundary between their land and the club's land was Mrs Trosser's statement that, overnight during the hearing, she measured it with a tape at 22.7 metres. This compares with 30 metres, if one scales from the sketch plan. The distance between the common boundary and the nearest point of the sketched clubhouse is stated to be 18 metres; but I do not know how that figure was calculated.

52. Each party retained an acoustical expert to assist it in the litigation. The club's expert, Steven Cooper, focussed attention primarily upon the noise likely to emanate from the outdoor rifle range but he briefly considered the likely effect upon the residential amenity of Mr and Mrs Trosser of a clubhouse development near the road. He referred in his report to the additional building work necessary to cope with the noise emission from mechanical plant, if the clubhouse was located close to the western boundary. It was common ground that, if the clubhouse was built at the front of the land, it would be preferable to have the building, rather than the car park, nearest that boundary. Mr Cooper made a similar comment regarding the standard of construction necessary to cope with noise from the auditorium. He thought that noise disturbance from the car park would be an issue. Mr Cooper contented himself with raising issues, rather than quantifying the likely noise levels at the Trosser residence. Presumably, this was because he lacked a reliable plan. Mr Cooper criticised the Commonwealth's sketch plan, but his rejection of that plan meant that he had no basis for quantified evidence.

53. The Commonwealth's acoustical expert, Robert Bullen, did attempt to quantify noise levels. He considered the noise levels at the Trosser residence from four separate sources: the internal shooting range, the auditorium, the building's mechanical plant and the car park. He concluded that the noise from each of the first three sources could be reduced to acceptable limits at the house by the construction of noise barriers and the use of selected building materials. He did not calculate the additional cost occasioned by these measures. I do not know whether or not it would outweigh the cost of erecting the same building, without the special barriers and materials, towards the rear of the site.

54. The car park presents a greater problem. Because of its size, it is not practical to shield the car park from the house with noise barriers. To some extent, the clubhouse building will act as a noise-shield; but not entirely. Dr Bullen included in his report a table showing typical maximum noise levels at a point 20 metres from activities in a car park. The levels are: vehicle entering the car park, 70dB(A); vehicle starting engine and departing, 76dB(A); door closing, 76dB(A); speech and music, 76dB(A). Dr Bullen referred to a Noise Control Manual published by the Environmental Protection Authority of New South Wales ("EPA"). This work suggests that, to avoid sleep disturbance, the L1 noise level (that is, the noise level that is exceeded for 1 per cent of the time) should not exceed the background noise level by more than 15dB. Having regard to the nature of the area, Dr Bullen took the night-time background noise level to be less than 30dB(A). On this basis, according to the EPA manual, the Trossers would be disturbed if the noise level in their house exceeded 45dB(A). Dr Bullen said that, at this level, "the number of noise-related awakenings is very low". At 55dB(A), noise-related awakenings would rise to two to three awakenings per 100 events.

55. Dr Bullen calculated the likely noise levels at the Trossers' residence from car park activities as follows: vehicles entering the car park, 48dB(A); vehicle starting engine and departing, 54dB(A); door closing 51dB(A); speech and music, 51dB(A).

56. It is clear from Dr Bullen's calculations that, if the EPA figures represent actual experience, the car park would be likely to disturb Mr and Mrs Trosser. If their sleep patterns are typical, they could expect to be woken every night, perhaps two or three times, by club patrons calling out farewells to each other, closing their car doors and starting their engines. However, despite his own calculations, Dr Bullen rejected this conclusion. He opined that "noise levels from activities in the car park will be within the recommended criteria for sleep disturbance". He was able to reach this conclusion only by overruling the EPA standards. He thought this course to be justified because the EPA standards do not "take account of the results of recent research into sleep disturbance". I gather that this research was undertaken in Europe. The nature of the research is not clear from Dr Bullen's evidence. At one stage he seemed to suggest that the research investigated the extent to which people are disturbed by events such as trains or motor vehicles passing their homes. Later in his evidence, he said that it was undertaken away from the subjects' homes.

57. There are several difficulties about relying on Dr Bullen's evidence in reaching an answer to question 2(b). In the first place, even if his logic is acceptable, Dr Bullen was unfortunately misled by the plan supplied to him by the Commonwealth's advisers. He based his calculations on the sketch plan, which overstated the distance between the Trossers' home and the boundary. If he had had correct measurements, he would have calculated higher sound levels inside the house than he did.

58. Dr Bullen said that, adopting the European research, a level of 60d(B)A would be acceptable at the Trossers' residence. The decibel scale is a geometrical progression, not an arithmetical one. An increase of 10 decibels approximately doubles the loudness of a particular noise. So a noise that registers at 60dB(A) is about two and a half times louder than a 45dB(A) noise. It will be seen that the issue raised by Dr Bullen is not marginal. He is arguing for acceptance by planning authorities of noise levels considerably higher than those currently accepted by the EPA manual. I am not persuaded that I should reject the standards adopted by the local statutory authority having expertise in this area in favour of substantially laxer standards that are said to reflect research about which I have been told so little. In particular, I would treat with caution any conclusion that depends upon the measurement of disturbance from regularly recurring low pitched sounds; such as the noise of passing trains or motor vehicles. It is notorious that people who live near railway lines or busy roads adjust to that type of noise. It is a different matter in relation to the irregular, unexpected and high pitched noises made by people leaving licensed premises late at night, calling out to each other and tooting farewells.

59. Finally, and most importantly of all, the critical question is not whether, as a result of recent research into sleep behaviour, I should regard the EPA standard as no longer appropriate. The critical question is whether the club acted reasonably in concluding that it should locate the new building towards the rear of the site, well away from the Trossers' house. Mrs Trosser gave evidence that she and her husband withdrew their objection only when the club agreed to locate the building to the rear of the lot. If the club had persisted with a proposal to build the clubhouse and parking area at the front of the lot, Mr and Mrs Trosser would have pressed their objection. Faced with that objection, the council would probably have refused development consent. It must be assumed that the council's officers knew the terms of the EPA manual. If they had made the same calculations as Dr Bullen, but more accurately, they would have appreciated that, according to the EPA, the proposal would cause an unacceptable degree of sleep disturbance at the Trosser home. I think it unlikely that the council would have gone behind the EPA standards because of some research done in Europe about which it knew little; particularly when it was so easy for the club to solve the whole problem by locating the development elsewhere on the lot. The club acted reasonably in deciding against pressing the issue but, instead, selecting a location towards the rear of the lot.

60. The effect of my findings in relation to question 2 is that question 1 is unimportant. As it happens, the steps reasonably taken by the club in relation to the choice of an alternative site and the location of the clubhouse on that site will enable it to construct an outdoor rifle range near its new clubhouse. That result is its good fortune. It is not a reason to reduce the compensation to which a claimant is entitled under s.58 that the reinstatement puts it in a better position, in some respect, than if its land had not been compulsorily acquired. Section 58 was designed to abrogate the judge- made rule that, in assessing compensation by reference to the cost of reinstatement, it is necessary to deduct a sum of money reflecting the extent to which the claimant's physical assets have improved: see the report of the Australian Law Reform Commission on which the Act was based, "Lands Acquisition and Compensation" (ALRC 14) at paras. 254-259 and the Minister's Explanatory Memorandum relating to cl.58 of the Lands Acquisition Bill.

61. Of course, this does not mean that the Commonwealth is obliged to pay for an unforced upgrading of a resumee's facilities. It is necessary to bear in mind the distinction between two cases. The first is an acquisition, falling within s.58, where it is not reasonable to expect the resumee to reinstate its activities except on a larger site or by providing more extensive facilities. For example, a planning authority may require an off-street car park on the new site even though there was none on the old. In the case of a hospital, the Health Department may require a new building to have facilities additional or superior to those required in existing hospitals. If the superior facilities are forced on the resumee, as the price of reinstatement of its activities, they fall within the formula embodied in s.58. The expenditure in providing those facilities is a consequence of the compulsory acquisition and the decision to reinstate on a new site.

62. That type of case contrasts with one where a resumee, forced to relocate to another site, takes the opportunity voluntarily to improve its facilities. The resumee may decide to purchase a larger site, or to erect a larger building, than would be necessary if it was only interested in providing its previous amenities and services; it wishes to use the move to improve its facilities and services. In such a case, the resumee is not entitled to recover the cost of the upgrading from the Commonwealth. This is a voluntary upgrading, not something forced upon it as the price of being able to reinstate its activities.

63. The distinction I have made finds expression in this case, as the parties recognise. In the view I take, in order to reinstate its activities, it was reasonable for the applicant club to purchase a larger allotment of land than the land at Elizabeth Drive and to locate its clubhouse in a position on the lot that is comparatively expensive to service. The cost of the road works and services needed for a building and range of activities similar to the building and activities at the old site, (and, of course, the cost of the building, with associated facilities, itself) is recoverable from the Commonwealth. It does not matter that the road works and services may also be useful for new or expanded activities, or that the new clubhouse will be available to people using a new facility, the outdoor rifle range. But the additional cost for a larger building than the old, or an outdoor rifle range, are not recoverable. These are improvements voluntarily undertaken by the club in a bid to improve its facilities and services; they are not items of expenditure forced upon the club by the acquisition and reinstatement.

Acquisition Act 1989

State Planning Authority Act 1963

Hubertus Schuetzenverein Liverpool Rifle Club Limited v the Commonwealth of Australia [1994] FCA 1161;

At a glance

Court

Decision date

Before

Source

Judgment (87 paragraphs)

Hubertus Schuetzenverein Liverpool Rifle Club Limited v the Commonwealth of Australia [1994] FCA 1161; (1994) 51 FCR 213 (17 June 1994)

Parties

Legislation Cited (2)

Cases Cited (4)