Kevin Snell Pty Limited v Manly Council

Land and Environment Court (NSW)|2004-10-22|Before: Pain J

The Applicant's Submissions 16 The Applicant argued that the wording of s 262(2) and (3) of the Local Government Act 1919 is clearly directed to the situation which occurs after the road realignment (widening) procedures contained in s 28 of the Public Roads Act 1902 have been carried out and the one month period specified in s 28(3) has expired without any apparently valid objection being received. The Applicant argued that that process is referred to in s 262(1) of the Local Government Act 1919 so that it is the Public Roads Act 1902 which is directed to the road widening itself while the Local Government Act 1919 is directed to the method whereby the Council will acquire the affected land to give affect to the road widening. The Applicant argued that a notice under s 262(3) of the Local Government Act 1919 is clearly directed to advising the landowner that the Council elects to adopt the "realignment method of acquisition" as s 262(5) prescribes certain consequences if this method is pursued, rather than an acquisition by the Council of the affected land through the compulsory acquisition powers contained in the Local Government Act 1919. The Applicant argued that the express terms of s 262 of the Local Government Act 1919 make it clear that a notice under s 262(3) may only be served after the realignment has been effected and, as the letter was served nearly ten years prior to the gazetted notice, the letter cannot be a valid notice pursuant to s 262(3).

18 In relation to the Council's argument that cl 16(1) of Sch 2 to the Roads Act 1993 operates to preserve the prohibition contained in s 262(5) of the Local Government Act 1919 the Applicant argued that this clause is expressly limited to actions taken under a previous enactment and does not extend to the prohibition contained s 262(5). Given this, the Applicant argued that the ordinary rules of statutory construction do not allow for the Council's interpretation. In any event, the Applicant argued that, as s 262(3) of the Local Government Act 1919 provides that "until such notice is served the interests of such owners shall not be affected by the realignment", s 262(5) only operates if a s 262(3) notice has been served which the Applicant argued has not occurred.

Finding 19 I agree with and adopt the Applicant's arguments as set out at par 16 to 18 above. The unsatisfactory nature of the Council's arguments is demonstrated when the consequences of the approach it argued for are considered in this context. Section 262(4) of the Local Government Act 1919 makes it clear that, in the case of "land clear of buildings and obstructions" in relation to which a Council has elected to apply the realignment method of acquisition, compensation is payable and is to be determined on the basis of the value of the land as at the date on which a notice under s 262(3) is served. If the Council's submissions are correct, this date could be a date earlier than the date on which the notice referred to in s 28(2) of the Public Roads Act 1902 is published in the gazette. Accordingly, where the amount of land specified in the gazette is smaller than that to which the purported notice under s 262(3) of the Local Government Act 1919 relates, the amount of compensation under s 262(4) would be assessed on the larger area in the notice. Here, the letter referred to the roadway being realigned to be 100 feet wide whereas the gazetted notice, which set the boundary of the road pursuant to the Public Roads Act 1902, stated that the road was to be widened to a width of 56 feet. According to the Council's argument the Council was liable to acquire, by the realignment method, the 100 feet specified in the letter, not the lesser amount referred to in gazetted notice forming the actual road widening order made in 1961.

20 As argued by the Applicant, this liability of the Council under s 262(4) of the Local Government Act 1919 would arise before it was even clear that the Minister, as the responsible person under the Public Roads Act 1902 would agree to the road realignment sought by the Council, as required by s 28(2) of the Public Roads Act 1902, or before any objection under s 28(4) of the Public Roads Act 1902 had been taken into account. This would appear a completely anomalous result which it is unlikely the legislature would have intended.

21 Further, the transitional provisions contained in cl 47 of Sch 2 to the Roads Act 1993 provide that it is the notice pursuant to s 262(3) of the Local Government Act 1919 which is to be regarded as a road widening order under the Roads Act 1993 and not the gazettal of the notice under s 28(2) of the Public Roads Act 1902. Accordingly, if the Council is correct and the letter constitutes valid notice under s 262(3) of the Local Government Act 1919, the prohibition contained in s 26 of the Roads Act 1993 would apply to the 100 feet specified in the letter and not the lesser amount of 56 feet specified in the 1961 gazettal notice. This would again seem to be an anomalous result.

22 In my view the results which necessarily follow if a notice under s 262(3) of the Local Government Act 1919 can be validly issued prior to the publication in the gazette of the notice referred to in s 28(2) of the Public Roads Act 1902 and the one month period specified in s 28(3) of that Act has expired, demonstrate that the Council's submissions cannot be correct. It follows that the letter is not a valid notice for the purpose of s 262(3) of the Local Government Act 1919 and, accordingly, that the letter is not a road widening order and the prohibitions contained in s 26 of the Roads Act 1993 do not apply to the building. I answer the question of law agreed by the parties in the negative.

Finding 23 The question of law formulated as follows is answered "no": Was the letter headed "Application to Realign South Steyne" dated 12 June 1951 from the Respondent Council, addressed to (among others) the then owners of the land the subject of these proceedings, a notice served in accordance with section 262(3) of the Local Government Act 1919 relating to the widening of South Steyne by realignment pursuant to section 28 of the Public Roads Act 1902 , effected by notification published in the Gazette on 24 March 1961, and thereby a notice deemed by reason of clause 47(1) of Schedule 2 to the Roads Act 1993 to be a road widening order for the purpose of that Act?

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Kevin Snell Pty Limited v Manly Council [2004] NSWLEC 567 APPLICANT: PARTIES : Kevin Snell Pty Limited RESPONDENT: Manly Council FILE NUMBER(S) : 10460 of 2004 CORAM: Pain J KEY ISSUES: Question of Law :- Whether notice of realignment method of acquisition given for land affected by road widening Crown and Other Roads Act 1990, sch 2 Local Government Act 1919, s 262 LEGISLATION CITED: Public Roads Act 1902, s 28 Public Roads (Amendment Act) 1968 Roads Act 1993, s 26, sch 2 CASES CITED: DATES OF HEARING: 15/10/2004 DATE OF JUDGMENT: 10/22/2004

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Parties

Cases Cited (1)

Cited By (2)