Marshall v Director-General, Department of Transport

Marshall v Director-General, Department of Transport - [2001] HCA 37 - HCA 2001 case summary — Zoe

[29]

The evidence from Philip James Breene, civil engineer called by the respondent, is that whilst the rock may have some use in the embankment supporting the northbound carriageway; and his opinion on this was more one of speculation than of putting forward a considered view; that part of the rock spill which spread onto the resumed land had, in his view, no discernible purpose to serve. I should mention that no part of the road embankment, if I can use that term generally, extended onto the resumed land in the area of the rock spill. It was suggested by the claimant that the rock may have been associated with a proposed exit lane intended to provide access onto the Marshall land and Mr Breene agreed that the location of the rock spill was at least in part consistent with the provision of such a lane. At some stage, however, the then Department of Main Roads changed its view about how access should be provided into the claimant's land, so even if the rock spill was placed in anticipation of the original access proposal being pursued, I cannot see how a discontinuance of that plan makes the rock spill part of the road structure. It is clearly the case that the rock spill in no way causes the flooding on Mr Marshall's land, so in that sense alone it cannot be the basis of a claim for injurious affection. To the extent that part of the rock spill may have been part of the embankment supporting the northbound carriageway, I need to consider whether the presence of part of that rock spill on the resumed land means that a practical separation cannot be made between the rock spill found on the resumed land and that which is an integral part of the embankment structure. Mr Baker inspected the rock spill and said that he could see no reason for it being in place. Mr Baker is, of course, a surveyor and it would be the evidence of an engineer that I would prefer and it is therefore Mr Breene's evidence which is of greater interest to me on this point. There was no evidence from the claimant's side to say that the rock is part of the structure, it simply being a possibility in the view of Mr Breene who was called by the respondent. Whilst it is clear that for a claimant to bring himself within a head of claim there is a legal onus to adduce cogent evidence in support of such a claim, it matters not that the source of that evidence is the respondent's side. Having said this, however, I note that Mr Breene's evidence is that whilst the inclusion of that rock in the road structure has some possible engineering merit that the remainder of the rock spill located on the resumed land has no arguable or apparent purpose. I cannot hold that the rock spill on the resumed land is therefore part of the works which cause the flooding. Let me demonstrate my reasoning by analogy. If it were the case that the nuisance complained of was noise emanating from the road surface and for the sake of my example assume that gravel from the road surface has been left either tidily or untidily located on the resumed land. In such a factual scenario a dispossessed owner would not be able to claim injurious affection resulting from noise on the carriageway which is not on the resumed land, on the basis of the presence of gravel on the resumed land. Indeed, even if it were the case that the road surface was gravel and the gravelling extended down the supporting embankment and through the drainage area, a claim of injurious affection due to noise could not be maintained." (emphasis added)

[65]

In our opinion, however, the language of s 20(1)(b) of the Act could hardly be plainer. In assessing compensation, regard is to be had not only to the value of the land taken but also to the damage caused by the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other [the remaining, severed] land. The section does not say "the exercise of any statutory powers by the constructing authority on and only on the land taken …". The section clearly distinguishes between the land taken and the severed land. It does not seek to distinguish between the various activities carried out by a constructing authority in the exercise of its statutory powers: for example, the conduct of a survey, the construction of a road, the building of a bridge, the installation of drainage or footpaths beside the road, and the subsequent use of everything that has been done or brought into existence as, and for the purposes of, a road. In truth, all of these can relevantly and properly be characterised as part and parcel of the construction, and subsequently the use of the road. Once the constructing authority acquires land for a statutory purpose and carries out the statutory purpose, it must, pursuant to s 20(1)(b) of the Act, compensate the dispossessed owner for the injurious effect upon the residual land resulting from the undertaking and the implementation of that purpose, actual and prospective.
In this case, the respondent gave notice of intention to the appellant to resume the land for "road purposes" as required by s 7 of the Act. That notice was given following the making of a proclamation pursuant to s 12 of the Act[12]. A constructing authority does not have an unfettered right to resume land. Unless the authority has a bona fide purpose of exercising a statutory power in respect of the land, a purported resumption of it would be unlawful[13]. There is no suggestion of unlawfulness here. What is extraordinary here is the respondent's submission that having acquired the land for "road purposes" its use of the land thereafter was, and is not, for any of those purposes.
The correct view is, in our opinion, that the land, whether it is a site for the deposition of residue from the road works, a site for the support of a batter, or for drainage associated with the roadworks, or for future road-widenings, or has a use as a passive buffer[14], is land used for "road purposes", the Bruce Highway.

[83]

That statement preceded Morison[30], which in turn was decided before the High Court became the final court of appeal in this country for all matters. It had no regard to the fact that the Minister was proposing legislation which used somewhat different language from the 1845 Act and enactments in other jurisdictions. It did not descend to detail and made no reference to the set-off and abatement provision in s 20(3) of the Act. It overlooked that "the principles" which the Minister chose to describe as well established and largely conventional, were, in some respects, controversial and still in fact unsettled as, for example, Morison itself, and a recent case[31] in this Court dealing with the concept of "special value" demonstrates. An analogue of s 20(3) has appeared in relevant Queensland legislation from as early as 1901[32]. The probability is that in 1968 no particular attention was given to s 20(1)(b) of the Act and any construction that may have been given to its predecessors or to differently expressed provisions elsewhere. The Minister's speech provides no basis for reading the Act in a manner contrary to its unambiguous language.
The reasoning in Edwards is in our respectful opinion, in any event unconvincing. Harman LJ[33] described "injurious affection" as a piece of jargon. It is more than that. It is a neat, expressive way of describing the adverse effect of the activities of a resuming authority upon a dispossessed owner's land. Reference to it in disparaging language does nothing in our view to assist in the elucidation of what it involves. The use of this common expression serves well to distinguish the statutory right from the common law claim in nuisance. It is unnecessary, and it would be unprofitable in these reasons, to examine his Lordship's reasons and his analysis of the earlier cases to ascertain why the apparently unambiguous language of s 63 of the 1845 Act was given the meaning which his Lordship and others have attributed to it. Like the Court in Beaver Dredging, we do not read the decision in Morison as embracing the reasoning in Edwards.

[86]

The appeal should be allowed with costs including reserved costs. The orders of the Supreme Court of Queensland (Court of Appeal) should be set aside. In place thereof, the appeal to the Court of Appeal should be allowed with costs, the order of the Land Appeal Court made on 24 July 1998 set aside and the application dismissed by the Land Appeal Court remitted to that Court to be dealt with in accordance with law.
GAUDRON J. I agree with the joint judgment of Gleeson CJ, Gummow, Kirby and Callinan JJ and with the orders which they propose. I wish, however, to add some short observations of my own.
It is a basic rule of statutory construction that legislative provisions are to be construed according to their natural and ordinary meaning unless that would lead to a result that the legislature must be taken not to have intended[36]. The rule serves the important purpose of ensuring that those who are subject to the law understand the nature and extent of their rights and obligations[37]. And because it serves that purpose, good reason must be shown before it will be concluded that the legislature did not intend the consequences that would flow if the provision in question were given its natural and ordinary meaning.
Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in the terms of the statute.
When s 20 of the Acquisition of Land Act 1967 (Q) is construed in accordance with the above principles, the limitation suggested by Edwards v Minister of Transport[38] must be rejected. Accordingly, the appeal must be allowed and consequential orders made as proposed by Gleeson CJ, Gummow, Kirby and Callinan JJ.
McHUGH J. Where a "constructing authority" in Queensland compulsorily acquires land by "severing" it from other land, the law of that State requires payment of compensation to the owner for the damage caused by "the exercise of any statutory powers by the … authority otherwise injuriously affecting such other land"[39]. The appellant owned land adjoining a highway. A constructing authority resumed part of the land "for road purposes". The appellant claims that, when the authority subsequently widened the highway, it altered the drainage system under the highway making the residue of his land vulnerable to periodic flooding. No part of the widened highway or the altered drainage system is on the land resumed. Nor was the resumed land used to carry out work for widening or draining the highway. Is the appellant entitled to compensation if he proves that the altered drainage system makes his land susceptible to flooding? That is the issue in this appeal brought against an order of the Court of Appeal of Queensland.
The Court of Appeal (de Jersey CJ, Davies and Thomas JJA) unanimously held that the appellant was not entitled to compensation for injurious affection to his land. Their Honours said[40] that "[o]n the existing authorities on this subject … 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." The central question in this appeal is whether "the existing authorities" are applicable to s 20(1)(b) of the Acquisition of Land Act 1967 (Qld) ("the Act"). In my opinion, those authorities do not give effect to the language of s 20(1)(b). If the appellant can make good his claim that altering the drainage system makes his land susceptible to flooding - an issue still to be determined - he is entitled to compensation for injurious affection to the land that he retained. Accordingly, the appeal must be allowed.
Section 20 gives effect to the direction in s 12(5) of the Act that, on the date of publication of a Notification of Resumption, the land thereby taken is vested or becomes Crown land "and the estate and interest of every person entitled to the whole or any part of the land shall thereby be converted into a right to claim compensation under this Act". Section 20 provides:

[94]

The natural and ordinary meaning of s 20(1)(b) of the Act directs the relevant tribunal, when determining the amount of compensation to be awarded to the claimant, to have regard to any damage caused by the exercise of any statutory powers by the constructing authority injuriously affecting the land of the claimant that he or she retains after the severance. That is a separate head of compensation from compensation for the value of the land taken and compensation for damage resulting from the severing of the land of the claimant. Nothing in the section gives any ground for supposing that compensation for injurious affection is conditioned on the statutory powers of the constructing authority being exercised on the resumed land. All that the claimant is required to prove is that the exercise of a statutory power by the constructing authority injuriously affected the "other land" of the claimant.
Mr D F Jackson QC, counsel for the appellant, accepted that the damage must be relevant to the implementation of the purpose for which the land was compulsorily acquired. That concession would seem to be correct. The "constructing authority" referred to in s 20(1)(b) is the "Crown or any person or local authority authorised by this Act or any other Act … to take land for any purpose"[41]. It seems natural to read the reference in that paragraph to "the exercise of any statutory powers" by that authority as referring to the exercise of powers implementing the purpose for which the land was taken[42]. The exercise of a power for any function or purpose incidental to the purpose for which the land was acquired is therefore an exercise of statutory power within the meaning of s 20(1)(b). No narrow view should be taken of what is incidental to the purpose for which the land was acquired. If part of a parcel of land is taken for road purposes, any damage caused to the residue in the course of constructing, paving, draining or making safe the road and its accessories will be injurious affection for the purpose of the paragraph.
Damage for the purpose of s 20(1)(b) is not confined to physical damage to the remaining land. Injurious affection does not include damage resulting from the act of severing the land. That is a separate head of damage. But it includes any other injurious consequence, resulting from the exercise of a statutory power, which depreciates the value of or increases the cost of using the "other land". If the exercise of the power limits the activities on or the use of that land[43], interferes with the amenity or character of the land[44], deters purchasers from buying the land[45] or makes it more expensive to use the land[46], the claimant is entitled to compensation for injurious affection.
No narrow view should be taken of what constitutes the exercise of a statutory power when the acts or omission of the constructing authority have resulted or will result in damage to the remaining land of the claimant. In particular, there is no scope for applying the principles that courts use in construing provisions that protect public authorities from actions arising out of the exercise of statutory powers. In that context, the courts accept that a grant of statutory power carries with it "by necessary implication a statutory authority to do all those incidental acts necessary to the exercise of that power which the [authority] ... could not lawfully perform without such an authority"[47]. But, because the implication arises from necessity, it is "limited by the extent of the need"[48]. Consequently, "[t]here can be no implication of a grant of power to do, in the performance of the duty, what is in any case lawful"[49]. Applying these principles, this Court has held that damage caused by a fire engine on its way to a fire was not "damage caused in the bona fide exercise of [the] powers" conferred by the Fire Brigades Act 1909 (NSW)[50]. It has held that injury was not "done under [the] Act" when a Council truck caused injury on the highway in the course of performing duties imposed by the Local Government Act 1919 (NSW)[51]. And it has held that the failure of the Australian National Airlines Commission to provide a safe system of work was not something "done or purporting to have been done" under the Australian National Airlines Act 1945 (Cth)[52]. In each of these cases, the particular act or omission of the public authority was done or omitted to be done in the course of an activity which was lawful independently of the legislation governing the activities of the authority. Consequently, the immunity was construed as not covering acts or omissions causing damage but done in the course of otherwise lawful activities.
In cases conferring immunities on public authorities, the legislation is read with the presumption that the legislature did not intend that the protection to the authority "granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow"[53]. In the case of legislation dealing with the compensation to be awarded in respect of the compulsory acquisition of land, however, a different presumption operates. The legislation is intended to ensure that the person whose land has been taken is justly compensated. Such legislation should be construed with the presumption that the legislature intended the claimant to be liberally compensated[54]. That being so, it would be wrong to construe a provision such as s 20(1)(b) as conferring compensation only for damage that results from an act that is "the very thing, or an integral part of or step in the very thing, which the provisions of the Act"[55] gave the constructing authority power to carry out. Whenever the constructing authority takes steps to achieve any purpose or carry out any function that is incidental to the purpose for which part of the land was acquired, it should be regarded as the exercise of a statutory power within the meaning of s 20(1)(b).

[101]

Cowper Essex was followed and applied by the Judicial Committee of the Privy Council in Sisters of Charity of Rockingham v The King[62], a Canadian appeal. Lord Parmoor, who delivered the Board's Advice, said[63] that there were clauses in the English legislation that did not appear in the Canadian legislation. He pointed out, however, that the words "injuriously affected by the construction of any public work" in the Canadian legislation were also in s 6 of the Railways Clauses Consolidation Act 1845 (UK) "and substantially similar words [were] to be found in s 68 of the Lands Clauses Act, 1845." Applying the reasoning in Stockport and Cowper Essex, the Judicial Committee held that the claimant was entitled to compensation for injurious affection for the depreciation in value of the residue of its land from the use of works that might be constructed upon the land taken from it. The Judicial Committee referred to and applied[64] the statement of principle formulated by Lord Halsbury LC in Cowper Essex that is set out above. Their Lordships said[65] that "the fact that other lands are comprised in the scheme [of works] in addition to the lands taken from the appellants, does not deprive the appellants of their right to compensation, so long as their claim is not extended beyond mischief which arises from the apprehended legal user" of the land taken from them.
Sisters of Charity of Rockingham v The King[66] was followed and applied by the English Court of Appeal in Edwards v Minister of Transport[67], another decision on s 63 of the Land Clauses Consolidation Act. The Court of Appeal held that damage for injurious affection must be confined to damage arising from the use of land taken from the claimant. Where damage arises partly from the use of land taken from the claimant and partly from the use of land that the claimant did not own, compensation for injurious affection is limited to damage arising from the use of the land taken from the claimant.
The principles applied in the English cases concerned with injurious affection have frequently been referred to with approval by Australian courts[68]. In Curtis v The Crown[69], decided three years before the decision in Edwards v Minister of Transport[70], the Land Court of Queensland had applied the principles of the English cases to s 19 of the Public Works Land Resumption Act 1906 (Qld), whose terms were similar to s 20 of the Act. The Court said[71]:

[109]

If this were the reason that s 63 of the Land Clauses Consolidation Act was construed in the way that it was, it would be easy enough to distinguish the English decisions because there is no equivalent limitation on the face of s 20 of the Act. Section 20(1)(b) refers to the exercise of "any statutory powers by the constructing authority otherwise injuriously affecting such other land". But with great respect to his Honour, I doubt that his explanation accurately states the reason that s 63 has been read in the way that it has. As the judgment of Crompton J in Stockport[79] and the speech of Lord Halsbury LC in Cowper Essex[80] make plain, the words of s 63 were not seen as words of limitation. The claimant, according to Lord Halsbury LC, had a right "different in kind from that which is suffered by the rest of Her Majesty's subjects"[81]. It was different because it was the taking of the claimant's land and the use of it that had enabled the authority to damage the retained land of the claimant. Because that was so, the claimant was seen as being in a special position in respect of the land retained in so far as that land was injuriously affected by the use of or work on the acquired land.
Why the claimant should be in a preferred position in respect of work done on the acquired land and have no rights in respect of work done off the acquired land that affected the retained land is not readily apparent. Upon acquisition of the land, the claimant stood in the same relationship to the acquirer as neighbouring occupiers. However, s 63, like s 20(1)(b), gave the claimant a special right to compensation for injurious affection arising from the exercise of the powers of the acquirer. It is not easy to see anything in s 63 which supports the view that, the special right having been given, a claim for injurious affection should be limited to consequences arising from the use of or works done on the resumed land. According to Lord Parmoor in Sisters of Charity of Rockingham v The King[82], the decision in Stockport "[f]or a time ... gave rise to considerable difference of judicial opinion" until its reasoning was subsequently approved by the House of Lords.
I do not think that there are any grounds upon which the principles laid down in the English cases and frequently followed in this country can be persuasively distinguished because of differences in the texts of s 63 of the Land Clauses Consolidation Act and s 20(1)(b) of the Act. The language of s 63 is not readily distinguishable from that of s 20(1)(b). But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.
Mr Keane QC contended that the second reading speech of the Minister for Lands in introducing the Act made it clear that the English decisions were intended to apply to s 20. The Minister said[83]:

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