(4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes:
(a) a reference to the expiration of the Act or statutory rule,
(b) a reference to an amendment or repeal of the Act or statutory rule effected by implication,
(c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and
(d) a reference to:
(i) the exclusion from the application of the Act or statutory rule, or
(ii) the inclusion within the application of the Act or statutory rule,
of any person, subject-matter or circumstance."
32 Whether the right claimed by the Council is a right contemplated by s 30(1)(c) is a difficult question which research indicates has not previously been considered. However, as Lord Evershed said in Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 "the distinction between what is and what is not "a right" must often be one of great finesse" (p 552).
33 In Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 Windeyer J observed that "the words 'any right privilege obligation or liability acquired accrued or incurred' which the Acts Interpretation Act uses, … are all general and abstract terms." His Honour concluded that when referring to a liability acquired or incurred the section had in contemplation a liability which was complete when the relevant statute was repealed "rather than a situation in which some future event must occur to make the effect of past events create a completed liability" (p 584).
34 In Abbott v Minister for Lands [1895] AC 425 the Privy Council emphasised that the critical issue is not whether there was, under the repealed legislation, a power to take advantage of the statute which may be termed a right, rather the question is whether it is a "right accrued" (p 431). Before it can be a "right accrued" there must have been some act done by the person claiming the right directed towards availing himself of the right.
35 In Heston and Isselworth Urban District Council v Grout [1897] 2 Ch 306 a local authority served a notice under the relevant statutory provision requiring the sewering of local properties. Under the legislation, if the frontagers did not do the work within a defined time, the local authority had a right to do the work and recover the cost from the property owners. The owners did not do the work and the local authority took steps to carry it out. However, before it had done the work it also adopted provisions in other legislation which had the effect that the relevant provisions of the Act, under which the notice had been served, no longer applied to the district. It was held that the giving of the notice under the previous Act entitled the local authority to both do the work and recover the costs notwithstanding that a new notice could not have been given. The critical element in the reasoning of Lindley LJ is that having served the notice the "right" to do the work and recover the cost had "crystallised" and the relationship between the authority and the landowners was thereby relevantly altered. Although a "contingent right" it was nevertheless preserved.
36 In Hamilton-Gell v White [1922] 2 KB 422 a landlord gave a tenant a notice to quit which entitled the tenant to claim compensation under legislation provided relevant notices were given within prescribed times. Before the second of those times had expired and the tenant not having given the requisite notice, the legislation was repealed, although the tenant subsequently made his claim within time. Notwithstanding the repeal the tenant was held to be entitled to compensation. The Court held that the "right" in the tenant to claim compensation arose when he received the notice to quit. That right, having "crystallised", was an "acquired right" which would accrue to the tenant when he left the property (see Atkin LJ at 431).
37 In Director of Public Works v Ho Po Sang [1961] AC 901 the Privy Council determined that the repeal of an ordinance under which a lessee, in certain circumstances, could apply for a rebuilding certificate which could be granted in the exercise of a discretion, did not give rise to any relevant right. In these circumstances, the lessee had no more than a hope or expectation that it may be given a rebuilding certificate.
38 The High Court has held that in the circumstances where an application for an order that a trade mark be removed from the register was pending in the court when the provision, under which the application was made, was repealed, the "right" to pursue the application was preserved Continental Liqueurs Pty Ltd v G F Heublein and Bros Incorporated (1960) 103 CLR 422. Critical to the reasoning of the court was that a step had been taken by filing the application in the court which "crystallised" the right.
39 In New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 the Court of Appeal was required to consider the situation where under the Aboriginal Land Rights Act 1983 aboriginal land councils were given a right to make a claim for "claimable land", which, if granted, would vest in fee simple. However, by an amendment to the Act in 1986 the title was confined to a lease in perpetuity. The question was whether a claim which had been made before the amendment would, if granted, require a vesting of the fee simple or the lease as provided by the amendment.
40 Hope JA provides a lucid discussion of the difficulties in deciding whether a relevant right exists. His Honour emphasises that if what is identified is a mere right existing in members of a relevant class of the community to take advantage of an enactment without the person taking any steps to avail him or herself of the right the Interpretation Act will not preserve it (see also the discussion of this aspect in Continental Liqueurs to which Hope JA refers).
41 In the present case, the Council had sought and obtained the realignment of the road under the Public Roads Act 1902, subject to s 262(7) of the Local Government Act 1919. Accordingly, it had exercised the power given to it by s 262(1). However, by the time of the repeal of the Local Government Act 1919 in 1993, it had not taken any step to acquire the land. Accordingly, to my mind, it had not taken the step which would have been necessary to "crystallise" its right to acquire the land by the realignment method which would have brought the relevant subsection of s 262 into operation. This could only occur when notice under s 262(3) was given. Although, undoubtedly, the right to serve the notice existed by reason of the exercise of the power in s 262(1), that did not operate to affect the relationship between the Council and the property owner. That relationship could only be affected by the issue of the notice under s 262(3).
42 To my mind, the position of the Council is no different to the situation where a power under a statute, although available to be exercised and, accordingly, a "right" held by the relevant body, was not exercised before the enabling statute was repealed. The "right", although prospectively available, had not "crystallised" because the relationship between the Council and the landowner had not been affected, as it could have been if the notice had issued. Accordingly, there was no "accrued right" within the meaning of s 30 of the Interpretation Act 1987and the current application may be determined without reference to s 26 of the Roads Act 1993.
The position if s 26 of the Roads Act applies
43 Against the possibility that my opinion that s 26 is of no application, I should consider the factual questions which would arise. Section 26 contains a prohibition to which s 26(2) provides an exception. The exception has two effective limbs, both of which must be satisfied. The relevant questions raised by the subsection are:
s Do the proposed building works comprise minor repairs or improvements to a building?
s Are the proposed building works on land affected by the road widening designed merely to enable the reasonable preservation of the building for temporary use?
44 In my opinion, the purpose of the provision is clear. The Parliament was endeavouring to ensure that the value of land to be acquired for road widening purposes would not be significantly increased by improvements made to existing facilities, whilst, at the same time ensuring the continued economic use of affected land and buildings until the acquisition takes place. As is made plain in the present case, the time between the formation of an intention to widen the road and the implementation of that intention may be considerable. It is in this context that the facts of each case must be considered.
45 In the present case the proposed building works are designed to facilitate the conversion of the existing nightclub and two floors of residential apartments to three floors of hotel. A considerable amount of building work is required. Although the external walls and the roof structure will remain, three new concrete floors and associated supporting columns are proposed together with an extensive building refit. In addition to the structural works in the front part of the building, the street facade will be modernised and provided with new windows and doors.
46 The floor areas associated with the front part of the building comprising the area affected by the road widening proposal represent approximately one fifth of the total floor area of the whole building. The proposed building works comprise the construction of new floors and new internal walls.
47 Of particular relevance is the fact that the new floors and associated structural columns have been purposely designed so that when the area of land affected by the road widening is required, the relevant part of the building can be demolished without any adverse effect on the structural or functional integrity of the remaining part of the building. Following demolition, a new facade can be readily installed on the remaining smaller building, which can then continue to fulfil its intended function. The applicant is prepared to accept a condition designed to ensure that the value of the land required for road widening is not increased by reason of the structural improvements proposed for that land.
48 It follows that the works proposed on the land required for road widening are intended to preserve the whole building in its present form until acquisition is required. Accordingly, the proposed works can appropriately be described as temporary being works which enable the use of the building until the land is required for road widening.
49 With respect to the question of whether the works comprise minor repairs or improvements to a building, the applicant faces greater difficulties. To my mind, the works proposed are not repairs but constitute improvements. If for no other reason, contemporary fire safety requirements for an hotel make concrete floors essential. However, the nature and extent of the works which involve the complete replacement of the floors and internal walls could not be described as minor. Although the proposed works are no more than is reasonably necessary to facilitate the continued use of the building until such time as the road widening takes place and are designed in a manner compatible with that widening, if the Roads Act applied, they would not be permissible.