Ibos Pty Limited v DHSH

29 On 23 October 2003, the applicants sent a facsimile to Andrew Campbell of King and Campbell Pty Ltd (Surveyors), stating: "As we are in the process of opening a road over neighbouring property, we were contacted by the Department of Lands to arrange a survey of the road as marked out by the thick black line on the enclosed map. For your reference we also enclose a map of a survey of the existing track (done by your company), which could be helpful. Could you please quote us for a survey in accordance with the specifications as set out in the letter dated 20-10-2003 from the Department of Lands…"

30 On 5 November 2003 Mr Steve Kipreotis, the Surveyors, sent a facsimile to the Department of Lands stating: "We are doing a plan of acquisition over that part of an existing track in use (DP 1037653) shown in thick black lines on the following plan. The plan is to be done in accordance with the letter [of 20 October 2003] from Brenda Meldrum from Dept of Lands (copy also following). The boundary definition for DP 1037653 was suffice for a plan for a right of carriageway over track in use. Could you please advise whether the definition shown on DP 1037653 is still adequate for the proposed plan of acquisition and if not, to what extent the boundary definition is required". The enclosed plan is a copy of DP 1037653, which was attached to the applicants' original application for the opening of a road but the plan shown thereon is now shown as a thick black line instead of the thin red line on the former plan.

31 On 11 November 2003, the Department of Lands replied, advising that all new boundaries and existing intercepted boundaries must be defined by survey, that existing boundaries required further definition, and that, if further survey information was not available, a report detailing the Department's definition of those boundaries should be furnished.

32 On 14 November 2003, the Surveyors wrote to Mr and Mrs Hazenveld stating that they had "obtained formal advice from the Department of Lands (copy enclosed) as to the extent of the survey required to create the road. The letter of advice requires a rather onerous boundary definition survey to be carried out in order to prepare the necessary plan of acquisition. The previous plan for the Rights of Carriageway over Track in Use did not require the boundary definition to be so extensive, hence the need to extend and improve the survey control in accordance with the advice from the Department of Lands." They enclosed a fee estimate to carry out the survey.

33 On 11 December 2003, the Surveyors wrote to Mr and Mrs Hazenveld confirming their instructions to proceed with the survey in accordance with the Surveyors' letter of 14 November 2003. The letter stated that the survey would be carried out in January 2004, the plan completed by mid February 2004 and that they would inform them of a definite date for commencement.

34 On 2 March 2004, the Surveyors wrote to the Department of Lands stating that they had carried out an extensive boundary survey to try and define the associated boundaries in accordance with the Department's facsimile of 11 November 2003. Other details of the survey work that had been carried out were set forth. They stated that the survey to date had taken considerable time and effort, especially as the country was mountainous and heavily timbered and that to extend the survey would be a costly exercise without any strong prospects of finding additional information and would cause undue hardship and unwarranted costs. They asked that the plan be accepted with the extent of the survey to date.

35 On 22 March 2004 the Surveyors sent Mr Hazenveld a bill for their services to date, which included liaising with DHSH's lawyers.

36 On 24 March 2004, the Surveyors wrote to Mr and Mrs Hazenveld noting that since they last met on the 17th February 2004, "we have obtained written confirmation of the welcoming news that the survey work currently undertaken appears to be adequate to define the subject land, subject to a complete examination upon lodgement for registration. We have contacted the surveyors carrying out the survey work, notifying them to proceed with the survey as soon as possible". The letter indicated that the final plan could be anticipated sometime after 19 April 2004.

37 A file note, dated 19 April 2004 by the Surveyors, recorded a conversation with Brenda Meldrum of the Department of Lands in relation to compensation. She said it was up to the two parties involved as to when they sort out compensation; it was better to sort it out before the plan was registered as otherwise the compensation may never be sorted out and it would be a waste registering the plan.

38 On 30 April 2004, the Surveyors sent a facsimile to Mr and Mrs Hazenveld advising that there would be a delay in the finalisation of the plan. On 19 May 2004, they sent another fax to Mr and Mrs Hazenveld stating that there would be a field party on site on 31 May 2004, to complete the field survey and that the final plan would be completed shortly thereafter.

39 On 10 June 2004, the Surveyors sent a fax to Mr and Mrs Hazenveld stating that the field party was on-site the previous week; that the registered surveyor was now preparing the plan of survey, which would be forwarded to the Surveyors for checking once completed; and that they should have the final plan completed and signed the following week. On 18 June 2004, the Surveyors advised the Hazenvelds by facsimile that the plan was still currently being drafted. On 29 July 2004, the Surveyors wrote to the Hazenvelds confirming that the final Plan of Acquisition and accompanying survey report, was forwarded to the applicants' solicitors earlier that month and enclosed a copy.

40 The survey plan is dated 3 June 2004. By letter dated 9 October 2006, the applicants' solicitors wrote to the Department of Lands enclosing a copy of the survey plan. They stated among other things: We enclose for your information a copy of a survey plan of the land to be acquired by the Minister for the opening of the road upon the application of our clients. Would you please confirm that the land marked in yellow on the attached survey plan is the land that the Minister intends acquiring for the road.

We would also be obliged if the Minister would consider lodging with the Land and Property Information an amended Request removing from the amended Request the incorrect reference in the originally filed Request to Section 11 of the Land Acquisition (Just Terms Compensation) Act.

Negotiations between applicants and DHSH re amount of compensation 41 Meanwhile, the applicants and DHSH had been negotiating with a view to agreeing the amount of compensation, as contemplated by s 192. Negotiations commenced on 19 November 2003, when the applicants' solicitors wrote to DHSH's solicitors noting that the Department of Land had now advised that the Minister's delegate had agreed to proceed with the opening of the Crown road. They suggested that the appropriate method of resolving the issue was for the applicants to engage the State Valuation Office to carry out a valuation for purposes of determining the compensation payable and that the parties would then enter into an agreement for compensation as required by the Department of Lands for the amount of valuation. It was said that this would avoid the expense associated with the issue of compensation to be determined by the Land and Environment Court. They requested that DHSH let them know by the 3 December 2003, as to whether that suggested course of action was acceptable.

42 On 12 December 2003, DHSH's solicitors replied stating that DHSH agreed to the State Valuation Office providing an indicative estimate of the compensation likely to be payable under the Just Terms Act for the acquisition of the road area (as well as construction and use), but did not agree to be bound by the determination of the State Valuation Office.

43 A valuation dated 7 March 2005, by the NSW Department of Commerce Property Valuation Services, prepared for the applicants' solicitors, recommended fair compensation for land proposed to be acquired for road opening purposes from DHSH of $21,000. It was based on the attached unregistered plan. This plan was an extract of the survey plan of the proposed road dated 3 June 2004, referred to at [40] above, which had been obtained by the applicants at the request of the Department. There followed correspondence from the solicitors for each party to the Department of Commerce Property Valuation Services making submissions as to that valuation.

44 On 3 May 2005, DHSH's solicitors wrote to the applicant's solicitors, referring to a valuation of the proposed Crown road conducted by the NSW Department of Commerce Property Valuation Services for the applicants. This letter stated that (a) certain matters had not been adequately addressed in the valuation report; (b) notwithstanding that DHSH reserved its rights to obtain its own valuation and to have the amount of compensation determined by a Court, it agreed that it would be useful for the NSW Department of Commerce to provide a valuation as a starting point to negotiations; and (c) DHSH would accept $150,000 as a commercial resolution of the matter.

45 On 29 June 2005, the Department wrote to the applicants' solicitors advising that the road opening could not proceed until the issue of compensation was settled and that the claimant, the applicants or the Minister may apply to the Land and Environment Court to determine the amount of compensation if no agreement can be reached. The letter stated that it was normal for the applicant or claimant to make the application, being the principal parties to the matter.

46 By letter dated 8 September 2005 to the applicants' solicitors, the NSW Department of Commerce provided a revised valuation in which they assessed the fair compensation for the acquisition of DHSH's land at $30,800.

47 A Department file note dated 8 December 2005 commented in relation to a phone call from a DHSH agent that he "seems to be looking for a loophole of some sort to negate the Department's decision".

48 On 12 December 2005, DHSH's solicitors wrote to the Department of Lands asking the Minister to reconsider his delegate's approval in principle in the circumstances set out therein. One of those circumstances was: "While the road is proposed to follow a vehicular track over a historical track in use, the easements which create that track in use only benefit lots owned by our client for most of its length. Accordingly there is no right for any other property to use it". This letter evidences that DHSH knew that the proposed road was over the existing vehicular track. The letter also states that the compensation offered by the applicant is $30,800, whereas DHSH assessed compensation in excess of $150,000.

49 The Department replied by letter dated 20 January 2006, stating: You were advised by letter of 13 November 2003 that the period for objections/submissions in respect of the road opening proposal formally expired on 1 September 2003. As no objections were received by that time approval in principle was given by the Minister's delegate to proceed with the opening of the road as a Crown road. You were also advised that the Minister had accepted your client's Claim for Entitlement to Compensation.

The matter is now waiting agreement between the parties on the amount of compensation. As you were previously advised, where agreement cannot be reached the claimant or the applicant may apply to the Land and Environment Court to determine the amount of compensation. It is considered that the points raised in your letter relate mainly to compensation matters and should therefore be addressed in your negotiations with the applicant or the Land and Environment Court should your client or the applicant decide to pursue that course of action.

50 A letter dated 20 January 2006, from DHSH's solicitors to the Department of Lands (which seems to have crossed in the mail with the last-mentioned letter), enclosed a valuation that they had obtained and stated that it showed that the compensation offered by the applicants was inadequate. That valuation expressed some points of disagreement with the valuation provided by the applicants and contended for a compensation figure based on the value of the land lost, plus an agreed figure for severance compensation.

51 On 17 January 2006, the applicants commenced these proceedings. The first intimation by DHSH that there was any deficiency in identification of the land to be acquired was in its Statement of Points of Law and Issues dated 1 June 2006, filed in these proceedings.

DISCUSSION 52 The applicant's Application to this Court is to determine the amount of compensation for the proposed acquisition under s 193 of the Roads Act 1993. DHSH seeks an order that the Application be summarily dismissed or struck out.

53 DHSH submits that the court may not make a determination under s 193 of the Roads Act, because the Minister has not validly made the necessary prior determinations or validly issued the necessary prior notices required by ss 184, 187 and 189. The reason is said to be because the land was not identified with particularity in those determinations and notices: Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 73; King Gee Clothing Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 196 - 198; and Nedoni Pty Ltd v Minister for Roads [2004] NSWLEC 56. DHSH submits that it is not a matter that can now be overcome and, accordingly, the application should be struck out or dismissed. DHSH submits that a line on a map is insufficient identification, even if the line was stated to follow an existing track in use.

54 The application to the Minister was to open a road over a long-established track in use over specified land owned by DHSH and (for a short distance) a travelling stock route. The location of the existing track in use was identified by a line on the diagram accompanying the application. That was the diagram referred to in the Minister's s 184 newspaper notice of 11 July 2003. The applicants have provided the Minister with a survey of the proposed road, in accordance with the Minister's notice for them to do so under s 183(1)(e). The Minister is empowered by s 183 to give such a notice either before or during the consideration of the application. Such consideration continues until the land is acquired. This suggests that it is not essential that he give notice for a survey before the procedures in ss 184, 187 and 189 are exhausted.

55 The parties had no difficulty in identifying the land proposed to be acquired. It was the existing track in use over DHSH's specified land, which was registered on DHSH's title. They negotiated over the amount of compensation and obtained competing valuations. At no time did DHSH make any complaint about, or raise any issue concerning, the adequacy of identification until 1 June 2006, well after the proceedings commenced, when it filed its Statement of Points of Law and Issues. The Registrar-General also had no difficulty in identifying the land proposed to be acquired from DHSH and making the appropriate recording on the title to DHSH's lands, upon receipt from the Minister of a notice under s 185(1).

56 The issue is whether the land to be acquired was sufficiently identified for the purposes of the Minister's decisions and notices under ss 184, 187 and 189. It is relevant to note that those sections are concerned with matters of a preliminary nature. They are preliminary both to the determination of the amount of compensation and, later, to compulsory acquisition, which may never occur.

57 The Minister's decision under s 184 was merely "to deal with" the application. The notices required by s 184 were notices of that decision. Section 184(3)(b) required that they identify the land. The newspaper notice identified the land by stating that the road proposed to be opened was within lots 58, 63, 64 and 71 in DP 754417, owned by DHSH, as well as TSR 27023 and by stating that inspection of the plan of the proposed road could be made at the Department's offices. The plan to which the newspaper notice referred appears to have been the plan attached to the application to the Minister to open the road. The s 184 notice to DHSH enclosed a copy of the newspaper notice and a diagram, which showed the existing track in use marked with a thick black line over DHSH's land which, I infer, was an aid to visual comprehension of how DHSH's land was affected. In my view, no more detailed identification of the land to be acquired was required under s 184.

58 The Minister's subsequent decision under s 187(1), after considering submissions, was simply "to continue" with the proposed acquisition. The Minister also, under s 187(2), determined each claim of interest and gave notice of that determination to the claimants. DHSH's claim of interest was over the track in use the subject of the application and was recognised by the Minister. Then, under s 189, after the claims of interest had been determined, the Minister gave notice of the decision to continue with the proposed acquisition to the applicants and to DHSH. In my view, there was no requirement under ss 187 and 189 for the Minister to more particularly identify the land to be acquired in his decision, determination or notice.

59 In reaching these conclusions, I have taken into account the cases cited in DHSH's submissions and referred to at [53] above. In Television Corporation at 73 Kitto J said: "…where an Act on its true construction authorises only conditions characterised by reasonable certainty of meaning and application, it is for the courts to hold beyond power any attempt to set up as a condition a provision which does not possess that certainty". In King Gee Clothing at 198, Dixon J held that a Prices Regulation Order fixing the price of outwear was invalid where "it deserts clear objective standards capable of producing a result about which every man must agree if he knows the facts and figures and has made his calculations correctly". Dixon J explained that the Order was struck down because "the power has not been pursued" where the Order is uncertain (at 197). This is the passage to which DHSH points. However, Dixon J was concerned with the issue of power and distinguished between absence of power and difficulty of construction (at 197): …in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power .

In my view, in the present case the first consideration is the construction or interpretation of the contested Ministerial decisions and notices. 60 In Nedoni an order was sought that the respondent Minister resume land that had been reserved for a road, in accordance with a notice issued under a provision of a Local Environmental Plan (LEP). The notice identified the land to be acquired as that part of Lot 2 in Deposited Plan 500653 that was zoned "9(a) (Proposed Road Zone)" by the LEP. The respondents opposed the order on the ground that the notice was void for uncertainty because it did not identify the land required to be acquired with sufficient certainty. Bignold J found that the description of the land was sufficiently certain notwithstanding that the precise dimensions were not specified in the notice: at [49]. This was said to be "because the precise dimensions are readily capable of ascertainment by reference to the zoning map forming part of the LEP which shows in cadastral detail (albeit at a scale of 1:10,000) the physical extent of Zone No 9(a) (Proposed Road), including its extent in respect of Lot 2 in DP 588653. That lot contains an area of 3,576 square metres and the part of that area included with Zone No 9(a) would appear from visual inspection of the relevant sheet of the Zoning Map to be approximately 30 percent, but precise delineation would obviously require some surveying or cartographic input".

61 In my view, these authorities do not weigh against the conclusion that the requirements of ss 184, 187 and 189 were satisfied in this case. They do not require that the land proposed to be acquired be identified at those stages with the precision of a survey. However, as in Nedoni, precise delineation could be achieved in the present case by a survey, which has in fact been carried out and provided to the Minister.

62 It is true that precise identification of the land proposed to be acquired from DHSH is required in order for this Court to determine the amount of compensation and, ultimately, for that land to be resumed. At this stage, this can be achieved by a direction to the Minister to precisely identify that land. The Minister may perhaps elect to do that by reference to the survey with which he has been provided by the applicants in response to the Minister's statutory notice. I propose to give such a direction.

63 Accordingly, I make the following orders: (1) The first respondent's amended notice of motion filed on 20 October 2006 is dismissed with costs. (2) Order that the second respondent file and serve a statement of the precise identification of the proposed land to be acquired on or before 21 March 2007.

(3) The exhibits may be returned. (4) The proceedings will be listed before the list judge for directions on 23 March 2007. (5) Liberty to apply on 2 days' notice.

16/07/2007 - Punctuation amendments - Paragraph(s) 21, 20, 44, 45, 47, 57

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