Marshall v Director-General, Department of Transport [1999] QCA 440

REAL PROPERTY - RESUMPTION OR ACQUISITION OF LAND - COMPENSATION - ASSESSMENT AND RELATED MATTERS - FACTORS IN ESTIMATING COMPENSATION - resumption of land for road widening purposes - damages for injurious affection - whether balance of appellant's land rendered more susceptible to flooding - s 20 of the Acquisition of Land Act 1967, Edwards v Minister of Transport [1964] 2 QB 134, Commonwealth v Morison [1972] HCA 39; (1972) 127 CLR 32 considered - challenge to correctness of Edwards dismissed

REAL PROPERTY - CROWN LANDS - QUEENSLAND - ADMINISTRATION - APPEALS FROM THE LAND APPEAL COURT - appeal against interlocutory decision of Land Appeal Court rejecting application for leave to call further evidence - nature of appeals to Land Appeal Court - s 44, s 45 of the Land Act 1962-1988 (as amended by the Land Act 1994) considered - whether Land Appeal Court in error in failing to be satisfied that the admission of the appellant's evidence was necessary to avoid grave injustice -whether any alleged agreement between the parties to allow further evidence to be given

REAL PROPERTY - VALUATION OF LAND - OBJECTIONS AND APPEAL - JURISDICTION OF COURT AND GENERAL MATTERS - QUEENSLAND - appeal against interlocutory decision of Land Appeal Court rejecting application for leave to call further evidence - nature of appeals to Land Appeal Court - s 44, s 45 of the Land Act 1962-1988 (as amended by the Land Act 1994) considered - whether Land Appeal Court in error in failing to be satisfied that the admission of the appellant's evidence was necessary to avoid grave injustice - whether any alleged agreement between the parties to allow further evidence to be given

Acquisition of Land Act 1967, s 20

Land Act 1962-1988 (as amended by the Land Act 1994)

s 44, s 45

Commonwealth v Morison [1972] HCA 39; (1972) 127 CLR 32, considered

Edwards v Minister of Transport [1964] 2 QB 134, considered

Mr G Gibson QC, with him Mr R Jones, for the respondent

**[1] THE COURT: The appellant (Mr Marshall) applied to the Land Appeal Court for leave to call further evidence upon his pending appeal in that court. The Land Appeal Court rejected the application. This appeal is against that interlocutory decision.

[2] In February 1986 the respondent resumed 5,555m2 of a substantial area of land owned by the appellant in the Eudlo Creek area. The resumption was for road widening purposes, namely to enable the construction of additional north-bound lanes to the west of the then existing highway. The appellant claimed compensation of approximately $1,250,000. This was made up of four components, the primary claims in respect of which were, in rounded figures, as follows:**

**[3] The judgment of the Land Court given on 20 February 1998 assessed compensation in the sum of $348,446. In determining that figure the Land Court member entirely rejected the appellant's claim for damages for injurious affection.

[4] The basis of the claim for "damages due to injurious affection" was that the balance of the appellant's land had been rendered more susceptible to flooding. His claim was based on "the cost of flood mitigation works already carried out and remaining to be carried out on the balance lands sufficient to return the said lands to the same degree of susceptibility to/immunity from flooding as was the case at the date of resumption for rainfall events in the Eudlo Creek catchment".

[5] The further evidence which the appellant desired to place before the Land Appeal Court upon the hearing of his appeal was very extensive. It may be summarised into five categories of evidence:**

**_(a) A three volume report described as "the complete Connell Wagner Report";

(b) a complete survey of the Eudlo Creek flood plain prepared for the Department of Transport since the conclusion of the hearing of the claim by the Land Court in November/December 1996;

(c) Department of Transport tender specifications for further flood modelling of the Eudlo Creek flood plain and catchment;

(d) a physical survey of the appellant's pre-resumption boundary fronting the Bruce Highway by way of excavation or test bore holes to ascertain the exact position of the resumed land in relation to the structure of the highway duplication; and

(e) a supplementary report of Maxwell Francis Winders (yet to be prepared).

Components (d) and (e) do not yet exist, and it cannot be said whether or not the proposed further survey and report would support the views given below by Mr Winders or those of other experts called on behalf of the respondent._**

[6] Under legislation which existed until 1994, appeals to the Land Appeal Court were by way of rehearing de novo[1]. Whilst the parties might, if they chose, conduct the rehearing on the original materials, the equivalent of a second trial was a common practice. However by an amendment effected by the Land Act 1994[2] subsections (a), (b), (c) and (d) of s 44(13) of the former Act were replaced with the following provision:

"(a) The Land Appeal Court may admit further evidence only if-

(i) it is satisfied that admission of the evidence is necessary to avoid grave injustice and there is adequate reason that the evidence was not previously given; or

(ii) the appellant and respondent agree to its admission."

**[7] This has substantially altered the practice of that Court, and a number of decisions since 1995 reveal a relatively strict approach taken by the Land Appeal Court towards the reception of further evidence on such appeals[3]. Whilst the former Act was repealed by the Land Act 1994, s 521 of that Act preserved the operation of certain parts of the former Act, including s 44 as amended. Section 44(13) and s 44(14) provide that the Land Appeal Court "may" hear or take evidence and that for the purposes of the appeal, the Land Appeal Court has the same powers as the Land Court under the Act. Section 44(15) requires the Land Appeal Court to be guided by equity and good conscience, both in its procedure and in its decisions "without regard to technicalities or legal forms or the practice of the other courts".

[8] Appeals from the Land Appeal Court to this court are governed by s 45 of the Land Act 1962-1988 which includes the following:**

"Appeal to Full Court on questions of law. (1) A party, including the Crown, aggrieved by a decision of the Land Appeal Court on the ground of error or mistake in law on the part of the Land Appeal Court or that it had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision may appeal against that decision to the Full Court...".

[9] The reasons given by the Land Appeal Court for rejecting the appellant's application include the following:

**_(a) That the appellant was unable to identify the grave injustice which would be avoided by the admission of the further evidence.

(b) Lack of specificity of what the new evidence would show.

(c) Inability to demonstrate that there existed a real prospect of the proposed new evidence affecting the decision of the Land Court or the Land Appeal Court.

(d) Having regard to the way the case had been conducted in the Land Court it was difficult for the appellant to submit that the exclusion of evidence that was open to call at trial would result in grave injustice._**

**[10] The present appeal is based upon the alleged wrongful exercise of a discretion. The question whether such an appeal is on the ground of error or mistake in law may need to be considered, but it is preferable to postpone that issue until the nature of the appellant's complaints has been discussed.

[11] The issue to which all the evidence has been directed, which has conveniently been referred to as one of damages for injurious affection, is based upon s 20 of the Acquisition of Land Act 1967 which provides as follows:**

"(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely-

**_(a) the severing of the land taken from other land of the claimant;

(b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land._**

(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.

(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."

**[12] A claim for damages under s 20(1)(b) ("injurious affection") is additional to "the value of the land taken" and is expressed in terms of the damage caused by the exercise of the relevant statutory powers "otherwise injuriously affecting such other land", that is to say damage affecting the balance land otherwise than by severance.

[13] Some understanding of the original decision in the Land Court is necessary in order that the ultimate issues may be considered. In that court the appellant called a consulting engineer, Mr Winders, to say that the construction of the road had caused or contributed to flooding of the appellant's balance land during the 1992 flood. As indicated above, that conclusion was the basis of the relevant claim for damage for injurious affection. This was disputed by witnesses called by the respondent including a consulting engineer (Mr Russell) who concluded that the operative cause of the increased flooding was the appellant's own embankment works and works other than the highway duplication works. The Land Court member presented a comprehensive discussion of the evidence and of the law applicable to the claim in so far as it sought increased compensation by reason of injurious affection.

[14] On the existing authorities on this subject, including Edwards v Minister of Transport[4], additional compensation of this kind could not be granted unless at the very least some damage to the balance land was caused by (or by the use of) works performed on the resumed land. Later discussion will show that on any view of the law at least this much must be established[5]. The Land Court member found that the evidence failed to establish that any part of the works was performed upon the resumed land. Neither was it established that any works on the resumed land caused or contributed to the flooding problem. On the findings of the Land Court member on this issue, which was clearly litigated before him, the flooding problems were entirely attributable to the performance of the works beyond the boundary of the resumed land.

[15] Some notion of the extent to which this issue was litigated, and of the unfairness of permitting a further trial of the same issue (as distinct from an appeal on the record below), can be gleaned from a short summary of the member's findings on this point. The member identified as the critical issue "whether any part of the embankment supporting the north bound carriageway is located on the resumed land". There was evidence of some rocks that were found upon the resumed land described as a "rock spill". The member noted that the surveyors had difficulty in locating the exact boundaries of the spill area, but that such a spill could be identified as extending between five and eight metres into a low lying part of the resumed land. He found that the so called rock spill formed no part of the road embankment and that it had no discernible purpose, the best explanation of it being that it was surplus material with no structural or engineering significance. It was found that the rock spill in no way caused any flooding on the appellant's land. The member then considered the extent and configuration of the road embankment or batter, identifying a primary batter which was located entirely within the western part of the road reserve, none of it on the resumed land, and a secondary batter which some evidence suggested spread into part of the resumed land. The member accepted evidence (and there would seem to have been none to the contrary) that the secondary batter played no structural role in the north bound carriageway. It was described as performing a purely cosmetic purpose, namely to give the job a neat appearance at the end.

[16] The member further found that the secondary embankment did not cause flooding on the appellant's land. The cause of flooding, he found, was the separate carriageway embankment which comprises the primary batter to its full height, together with the culverts and bridge. The member went on to raise a possibility that was "not clear" to him, namely whether a line of projection along the primary batter would reach a point on the natural surface level inside the eastern boundary of the resumed land, noting that the question might be irrelevant but that it had troubled him. It would seem that that particular question was not raised or relied on by the parties. Clearly however issues such as the site of the works and whether the works caused or contributed to the flooding were very much in contention.

[17] It was further submitted by counsel for the appellant both below and here that certain works were performed on the resumed land to improve drainage and alleviate flood levels, and that those works should therefore be regarded as "part of the works" just as much as if those works were a wall. It was held by the member that this could not be regarded as a cause of the damage to the balance land on which the injurious affection claim is based. Indeed, remedial works would seem to have achieved the opposite. In any event, if there is any legal merit in that submission it can be raised before the Land Appeal Court. It does not appear to have any real relevance to the question whether any of the proposed further evidence ought to be received.

[18] Against this background it is now possible to examine the potential relevance and effect of the additional evidence that the appellant sought to present to the Land Appeal Court.

[19] The only evidence that could conceivably advance the appellant's position on the critical questions, (ie whether part of the works were performed upon the resumed land and whether such works caused or contributed to the flooding of which the appellant complained), is that in items (d) and (e) of the summary presented above in paragraph 5. As already noted no positive evidence of the survey or the conclusions that might be drawn from it yet exists. It might fairly be said that the appellant in this respect is still hoping that something favourable might turn up, and that the proposal is for the presentation in due course of the results of a fishing expedition. It is significant that the hearing before the Land Court member occupied more than 20 days during which four surveyors (two on each side) gave evidence. There was no request that core sampling should take place or that the proceedings should be adjourned so that this might occur. The question of relationship of the embankment to the boundary of the resumed land was always a live issue. The present case would seem to be a clear example of a litigant who was prepared to litigate his case, and who having emerged with the result that is unsatisfactory to him desires to litigate the same questions again, this time with additional evidence which no attempt was made to obtain on the first occasion. It seems to have been assumed by the appellant that if a request had been made he would have been denied access to the relevant area, but such a matter does not appear to have been formally raised with the respondent until well after the Land Court determination.

[20] It follows that quite apart from the imprecise and speculative character of the evidence in subparagraphs (d) and (e), it is impossible to hold that the Land Appeal Court was in error in failing to be satisfied that the admission of such evidence was necessary to avoid grave injustice; or that it was in error in failing to be satisfied that there was adequate reason that the evidence was not previously given.

[21] It may be noted that s 44(13)(a) expresses a statutory test which bears at least some similarity with that generally adopted by Courts of Appeal in relation to reception of further evidence[6]. It by no means follows that the Land Appeal Court is limited to application of what might be described as the familiar principles applied by appellate courts on this subject, particularly when one has regard to its statutory duty to act in equity and with good conscience. However the benefit of equity and good conscience is to be available not only to the appellant but also to the respondent. It is also relevant that the case is one involving the requirement that just compensation be awarded to a citizen whose land has been compulsorily acquired. That circumstance however does not necessarily introduce an imbalance into what is ultimately a question of procedural fairness. The primary source of guidance for reception of evidence on appeal is s 44(13)(a) of the Land Act 1962-1994. It might be observed however that where the decision of the Land Appeal Court on a question such as this appears to be in conformity with the general principles applicable in other appellate courts, and where no particular matter emerges to raise a concern as to unfairness, it will be difficult to discern error in that court's failure to be satisfied that admission of the evidence was necessary to avoid grave injustice.

[22] We turn to categories (a), (b) and (c) of the proposed evidence. These three categories of evidence, if received, would be relevant to the issue which counsel for the appellant compendiously described as "quantum". In other words, if the appellant is entitled to an assessment of damages for injurious affection, it is contended that this additional material will show a greater flooding effect in consequence of the respondent's works than the findings of the Land Court member based upon the material placed before him, and accordingly an entitlement to a higher assessment of the damages for injurious affection. Of course that would occur only if the appellant is successful in reversing either the findings of fact earlier discussed, or in persuading the court that Edwards' case and the decisions following it were wrongly decided. For reasons given hereunder the appellant has failed to satisfy us that Edwards should no longer be followed.

[23] It is necessary then to consider in any event whether such evidence is of a character as to satisfy s 44(13)(a) of the Land Act. Much if not all of the evidence in (a), (b) and (c) seems directed ultimately to the heights of flooding. It is impossible to say that such further evidence would have any substantial effect on the level of damages that might be proved, and of course it has no effect unless the appellant first obtains a reversal of essential findings of fact. Mr Winders, speaking of the first two volumes of the three volume Connell Wagner report, stated:**

"I am able to reach a preliminary opinion that the model results in the report ... sit conformably with the model results I reached in my reports given at the hearing in 1996 and do not appear consistent with the model results reached by Mr Russell, the expert engaged by the respondent constructing authority at the hearing in 1996."

With respect to item (b) he referred to the fact that since the conclusion of the 1996 hearing, the respondent had engaged surveyors to conduct a complete survey of the area and that he had been provided with a part of that survey. He states that "in order to properly examine and reach any conclusions in connection with the report I will need a copy of the full survey prepared by or for the department ...". With respect to item (c) Mr Winders stated "in order for me to reach any proper conclusions about the effect of the highway duplication on the claimant's property ... I need to receive copies of the tender specification and all information prepared for the use of the tenderers including short listed tenderers". He then concludes that once he has been provided with all the above information, "and subject to any further information required or needed" he will be in a position to provide a report to the court about the effect of the highway duplication, the removal of anabranch culverts and increase in bridge waterway upon the appellant's property.

**[24] The tenuous nature of the proposed evidence hardly needs to be emphasised. The best evidence for the appellant is probably Mr Winders' "preliminary opinion" of the Connell Wagner report. But this does not go beyond the assertion of an unspecified degree of consistency with his own earlier report, and an unspecified degree of inconsistency with the report of the respondent's expert. This general statement is nowhere further particularised or rendered meaningful. It fails to be persuasive on the question whether any substantially different result is likely to be produced in the litigation as the result of such evidence. It lacks the quality that is sometimes compendiously referred to as cogency in the context of applications for reception of fresh evidence. It is at best for the appellant hypothetically relevant and extremely vague. It does not in our view have the character of evidence that ought to be received in order to avoid grave injustice. Its reception would simply lead to a re-litigation of the issue of quantum.

[25] It is fair to mention that the evidence in item (a) would pass the test of not having been reasonably available to the appellant at the time of the original hearing. The appellant did not have the benefit of discovery, such remedy not being available under the relevant Rules of Court. The resuming authority presented one report but did not introduce into evidence the Connell Wagner report. Apparently Mr Winders obtained a copy of it after the Land Court decision. A private owner could not reasonably be expected to be able to arrange for his own survey of the whole catchment area for the purposes of the litigation. This particular evidence would therefore surmount the second part of the test in s 44(13)(a)(i), namely "there is adequate reason that the evidence was not previously given". However in our view it does not satisfy the first requirement of that provision, and the Land Appeal Court could not be said to have erred in not being satisfied that the admission of such evidence was necessary to avoid grave injustice.**

Challenge to correctness of Edwards' case

**[26] In the course of the appeal counsel for the appellant challenged the correctness of the decision in Edwards v Minister of Transport[7], and was given leave to amend the notice of appeal in order to raise that question.

[27] In Edwards, the claimant owned a house on approximately two acres of land, and an adjacent field of approximately 2.5 acres. The Minister compulsorily acquired an area of about 38 square yards from the house property and about 300 square yards from the field for the purpose of constructing a trunk by-pass road. The parties agreed that if the claimant was entitled to compensation for the injurious affection to the balance of his property resulting from the construction of the road both within and beyond the land acquired, the amount of that compensation should be ,4000. On the other hand, if the claimant was entitled only to compensation for injurious affection to the balance land resulting from the construction of so much of the road as was physically located on the land compulsorily acquired, the amount of such compensation should be ,1600. The Court of Appeal held that the claimant was entitled to ,1600, being of the view that in assessing damage for injurious affection, if the damage to the claimant's retained land arose partly from the use of the land taken from him and partly from the use of land which was never his, he could claim only that part of the damage which could be attributed to the resuming authority's activities on what was formerly his own land.

[28] If Edwards and the many cases[8] which have applied it to s 20 since 1964 are correct, the damages to which the appellant is entitled are limited to the adverse effects upon value of the balance land by reason of the performance of works on the resumed land.

[29] The Queensland provision, s 20 of the Acquisition of Land Act, appears to have adopted similar language to that used in s 63 of the Lands Clauses Consolidation Act 1845 (UK) which was the Act upon which the Edwards decision was given. The relevant UK legislation provided that in awarding compensation for acquired land regard should be had:**

"... to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith".

[30] The Acquisition of Land Act 1967 was enacted subsequently to the Edwards decision[9]. It has been set out in paragraph 11 above. Essentially a question of statutory interpretation is involved. In The Commonwealth v Morison[10], Edwards was distinguished but no member of the court suggested that it should be overruled. Gibbs J[11] and Menzies J[12] considered that the UK legislation in Edwards and the Commonwealth legislation[13] in Morison were materially different. Menzies J observed that in Edwards:

"the earlier authorities were exhaustively reviewed and, in accordance with those authorities, it was decided that, under s. 63 of the Lands Clauses Consolidation Act, 1845 (U.K.), the only compensation payable for injurious affection in relation to land retained is in respect of activities on land taken from that owner, and if damage arises, partly from the use of that land and partly from the use of other land, the owner cannot obtain the whole damage but only that part of it which he could attribute to the activities on what formerly was his land. If s. 23 (1) (c) were in pari materia with the English section, these authorities might be of overwhelming weight, but it is not. No good purpose would be served by discussing the language of s. 63 of the Lands Clauses Consolidation Act. It is sufficient to say that its language is quite different from that to be found in s. 23 (1) (c)."[14]

**[31] Walsh J[15] however thought it unnecessary to decide whether s 23 of the Commonwealth Act should be construed along similar lines to the English decisions including Edwards, and Barwick CJ[16] (with whom McTiernan J agreed) considered that decisions (including Edwards) given under the English legislation were "not necessarily inapplicable" to s 23.

[32] The decision in Morison upheld compensation assessed according to depreciation in value of the adjacent land by reason of the use of the whole of the extended aerodrome. Barwick CJ (with whom McTiernan J agreed) and Walsh J did so on the footing that it was impossible to separate the injurious affection caused to the retained land by activities carried out on the resumed land from that which was caused by a combination of the activities carried out on both the resumed land and other lands on which the works were constructed. Their Honours considered that when it is impossible to ascertain the former amount, it is not appropriate to adopt some arbitrary process of computing the amount to be awarded. In such a case their Honours thought that the land owner should recover the full amount of the damage[17]. Walsh J added however that "[t]he decisions do indicate, I think, that the tribunal should make an appropriate dissection of the total amount of damage where this can be done, although that may be a difficult task. But they cannot go any further than that"[18]. We venture to doubt whether a court today would find the same level of difficulty in apportioning the damage as their Honours expressed in Morison. However that may be, such a question does not appear to be capable of arising here if, as the member found, no adverse effect resulted from any works on the appellant's land.

[33] Only two members of the court, Menzies J and Gibbs J based their decision upon the conclusion that upon the correct construction of s 23 the depreciatory affect of the balance land was to be assessed according to the effect of the overall carrying out of the public purpose of the resuming authority. Whilst the expression of a ratio in Morison is difficult, quite clearly no doubt was cast upon the validity of decisions such as Edwards in relation to legislation such as s 63 of the Lands Clauses Consolidation Act.

[34] Edwards has been criticised in some journals and Law Reform Commission reports, but we do not understand such criticisms to be founded upon the suggestion that the decision is legally unsound. Indeed the criticisms have proceeded upon the basis of inequality of result according to artificial criteria[19]. The criticisms are principally of legislative unfairness, and their subject matter goes beyond the consequences of Edwards, adverting particularly to persons affected by a public project without having any of their land taken, and who accordingly are not eligible for compensation. Other points of criticism involve the types of nuisance for which Australian law has not provided compensation for land owners affected by public projects. Such matters involve wide-ranging aspects of public policy with complex social and economic consequences. It is significant that despite the existence of such criticisms over many years, and despite various amendments in some jurisdictions, no ideal solution seems to have emerged to satisfy the community's desire for both progress and compensation. The criteria settled in Edwards may not be ideal, but they have the virtue of relative certainty, and have been well understood for many years. If they are to be replaced by some other criteria this should be done by the legislature. It is interesting to note that this was done in the United Kingdom in 1973 by s 44 of the Land Compensation Act which requires compensation for injurious affection now to be assessed by reference to the effect of the whole of the works of the acquiring authority and not only those performed on land acquired from the claimant.

[35] Counsel for the appellant in effect sought to deconstruct Edwards, contending that the authorities referred to in that case, including in particular Crompton J's decision in 1864 in Re Stockport, Timperley & Altringham Railway Co[20], did not afford adequate support for the conclusions that were reached. We do not propose to discuss the argument at length. Suffice it to say that by 1889 Crompton J's judgment in Stockport seems to have been interpreted in the House of Lords decision of Cowper Essex[21] consistently with the way in which it was interpreted by Harman LJ, Donovan LJ and Russell LJ in Edwards. We are not persuaded by the submission of counsel for the appellant that Lord Halsbury's remarks in Cowper Essex require different tests to be applied according to whether the loss of value is caused by the original construction of the works or by the future continuing use or nuisance occasioned by such construction. It is true that in Edwards it was necessary for the Court of Appeal to identify divergent approaches in previous cases to such questions and to identify a rule which should prevail. The decision was reached after a rational discussion of such decisions and the submission that Edwards was decided per incuriam is not tenable.

[36] Edwards has been consistently followed in this State for many years[22], and indeed the same construction had already been reached by the Land Court in Curtis v The Crown[23] before Edwards was decided. Edwards has also been applied in other jurisdictions within and beyond Australia, but it is unnecessary to pursue its application further. For the purposes of s 20 of the Acquisition of Land Act 1967 it may be taken as settled law.

[37] For the above reasons this ground of appeal fails.**

**[38] As we are unable to detect any error in the conclusion or reasoning of the Land Appeal Court in declining to receive further evidence on the appeal, it is unnecessary to deal with the respondent's submission that any error in what he referred to as a discretionary exercise should be characterised as an error of fact. Whether the function of assessing the relevant circumstances and applying the law (primarily s 44(13)(a)(i) of the Land Act 1962-1988) to those circumstances is rightly referred to as the exercise of a discretion or not, it is certainly a function where very wide tests are applicable. In such a situation where there is room for different views and different appreciations it is very difficult for an appeal court to conclude that there has been an erroneous exercise of the discretion. However an error of law might be detected if the circumstances before the tribunal were incapable of permitting the discretion to be exercised in the way it was. As Glass JA observed in Azzopardi v Tasman UEB Industries Ltd[24] "[i]t is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open".

[39] It is unnecessary to pursue this question as error is not demonstrated of any kind.**

Alleged agreement to allow further evidence to be given**

[40] A Notice of Motion was filed on the eve of the hearing of this appeal seeking an order

"[t]hat as to the further evidence [ie evidence of a physical survey of the applicant's pre-resumption boundary fronting the Bruce Highway by way of excavation or test bore holes to ascertain the exact position of the resumed land in relation to the structure of the highway duplication] an agreement has been reached between the parties that such further evidence may be obtained and adduced as further evidence on the appeal before the Land Appeal Court."

The contention is that the appellant's solicitors (on 27 July 1998) within a few days after publication of the judgment of the Land Appeal Court which is currently under appeal, asked the respondent for approval of an investigation of the western batters by the appellant and his agents and that on 19 August 1998 that request was conditionally approved. Many months later, after certain work had taken place, the appellant's solicitor asserted in correspondence "my client is of the view that as your client has conceded to this physical survey being carried out, that your client is agreeable to the evidence being adduced at the hearing before the Land Appeal Court, otherwise why would it have agreed to allow the physical inspection to be carried out."

**[41] Counsel for the appellant submitted that there were no other dealings between the parties which would give rise to the work which his client had undertaken to ascertain whether or not the road was on the boundary. However the material does not even come close to establishing any agreement, express or implied, of the type asserted in the Notice of Motion.

[42] In dismissing the appeal it may be noted that the Land Appeal Court may regulate the future conduct of the appeal. It is by no means inconceivable that the question whether the member erred in holding that the appellant failed to surmount the Edwards requirement could be heard as a preliminary issue. If the conclusion of the Land Court on that question was held to be wrong, then the relevance of the evidence in items (a), (b) and (c), accompanied by a better analysis of such items than presently exists might give the appellant a better case for the reception of fresh evidence than he currently has. We are by no means seeking to encourage the appellant to make further applications or to direct the Land Appeal Court to sever the issues in this way. These comments simply underline the prematurity and the lack of quality of the evidence presently relied on, having regard to the statutory test.

[43] The Notice of Motion is without substance and it should be dismissed with costs. This appeal should also be dismissed with costs.**

[1] The Queen v Rigby [1956] HCA 38; (1956) 100 CLR 146, 150; Land Act 1962-1988, s 44(13).

[3] Director-General, Department of Transport v Hibiscus Holdings Pty Ltd (1995) 15 QLCR 408, 420-421; LR & MM Bignell v Chief Executive, Department of Lands (1995) 15 QLCR 528; JT & LJ Barns v Director-General, Department of Transport (1995) 15 QLCR 544; Paino and Heavey Lex No. 64 Pty Ltd v Director-General, Department of Transport (Land Appeal Court, 29 May 1996 - unreported) and GG & HR Kuhn v The Crown (Land Appeal Court, 25 June 1998 - unreported).

[4] [1964] 2 QB 134.

[5] See discussion under "Challenge to Correctness of Edwards' case" later at par 26 to par 37.

[6] Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404; Brisbane City Council v Mainsel Investments Pty Ltd [1989] 2 QdR 204, 215; Hawkins v Pender Brothers Pty Ltd [1990] 1 QdR 135, 137; Akins v National Australia Bank (1994) 34 NSWLR 155; Maddestra v Penfolds Wines Pty Ltd [1993] FCA 406; (1993) 44 FCR 303.

[9] Edwards was published in December 1963. The Acquisition of Land Act was passed in 1967.

[10] [1972] HCA 39; (1972) 127 CLR 32.

[13] Section 23(1)(c) of the Land Acquisition Act 1955-1966 (Cth). It provided that in determining compensation for the acquisition of land, regard should be had to "... the enhancement or depreciation in value of the interest of the claimant, at the date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was acquired."

[14] [1972] HCA 39; (1972) 127 CLR 32 at 45.

[17] Ibid at 39 (Barwick CJ), 52-53 (Walsh J).

[19] See Knetsch, Property Rights and Compensation - Compulsory Acquisition and Other Losses Butterworth & Co (Canada) Ltd (1983) pp 150-152; Australian Law Reform Commission Lands Acquisition and Compensation Report No 14, Canberra AGPS (1980) p 152; South Australian Land Acquisition (Legislative Review) Committee Report (1969) pp 3-4; Jacobs, The Law of Resumption and Compensation in Australia, LBC Information Services (1998) para 13.3, pp 206-208.

[20] (1864) 33 LJQB 251.

[21] Cowper Essex v Local Board for Acton, Middlesex (1889) 14 App Cas 153, [1886-90] AllER 901.

[22] C Westaway v The Council of the Shire of Landsborough (1964) 31 QCLLR 1, 16; Suntown Pty Ltd v Gold Coast City Council (1979) 6 QLCR 196, 206; The Crown v RH & JM Corbould (1986) 11 QLCR 50, 57; MA & DP Syme v The Commissioner for Railways (1988) 12 QLCR 98, 102-105; Vanhoff Pty Ltd v The Commissioner of Main Roads (1992) 14 QLCR 331; Queensland Railways v Somerville Funerals Pty Ltd (1995) 15 QLCR 403.

[23] (1961) 28 QCLLR 310, 313.

[24] (1985) 4 NSWLR 139, 157.